2004 WAIRC 12690
J100422989
METAL TRADES (GENERAL) AWARD 1966; CHILDREN’S SERVICES (PRIVATE) AWARD; CLEANERS AND CARETAKERS AWARD 1969 AND THE SHOP AND WAREHOUSE (WHOLESALE AND RETAIL ESTABLISHMENTS) STATE AWARD 1977

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

COMMISSION'S OWN MOTION

-V-

DARDANUP BUTCHERING CO AND OTHERS

CORAM COMMISSION IN COURT SESSION

CHIEF COMMISSIONER W S COLEMAN
SENIOR COMMISSIONER A R BEECH
COMMISSIONER J H SMITH

DATE FRIDAY, 3 SEPTEMBER 2004
FILE NO. APPLICATION 44 OF 2004
CITATION NO. 2004 WAIRC 12690

Result Statement issued – meaning and effect of s40B of the Industrial Relations Act 1979
Representation
Mr P Wilding on behalf of the Minister for Consumer and Employment Protection
Ms C Ozich (as Counsel) on behalf of the Trades and Labour Council
Mr A Caccamo on behalf of the Australian Mines and Metals Association
Mr G R Blyth on behalf of the Chamber of Commerce and Industry of Western Australia acting in its capacity under s 40B(2)
Mr T Pope on behalf of the Shop, Distributor’s and Allied Employees’ Association of Western Australia
Mr L Edmonds on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch
Ms J Freeman on behalf of the Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch
Mr P G Robertson on behalf of employers bound by the Cleaners’ and Caretakers’ Award, Cleaners, Contract Cleaners Award 1986, and the Contract Cleaners (Ministry of Education) Award 1990 and the Bakers’ (Metropolitan) Award 1987, and Pastry Cooks’ Award 1981
Mr M Borlase on behalf employers bound by the Metal Trades (General) Award 1966
Ms N Thomson on behalf of employers bound by the provisions of the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977
Mr L Joyce on behalf of employers bound by the provisions of the Children’s Services (Private) Award
Mr P Moss on behalf of employers who are bound by the Clerks’, (Commercial, Social and Professional Services) Award and the Clerks (Wholesale and Retail Establishments) Award
Ms M Kuhne on behalf of employers bound by the Hospital Salaried Officers (Nursing Homes) Award 1976, Enrolled Nurses and Nursing Assistants (Private) Award No 8 of 1978, Hospital Salaried Officers (Private Hospitals) Award 1980, Aged and Disabled Persons Hostels Award 1987, Hospital Salaried Officers (Silver Chain) Award 1980 and the Private Hospital Employees’ Award 1972
Ms S Thorp on behalf of employers bound by the Restaurant, Tearoom and Catering Workers' Award, 1979, Hotel and Tavern Workers' Award, 1978 and the Clerks' (Hotels, Motels and Clubs) Award 1979


Statement

Contents


Paragraphs

Introduction and history of these proceedings

1-2
Argument and conclusions as to jurisdiction to conciliate or arbitrate prior to issuing proposed variations

3
Proceedings following consideration of jurisdictional issues

4-5
Consensus position put to CICS by the Minister, the Council, AMMA and the Chamber

6
The Minister’s Submissions

(a) Minimum wage rates in awards-s.40B(1)(a)
(b) Award conditions less favourable than minimum conditions-s.40B(1)(b)
(c) Unlawful discrimination-s.40B(1)(c)
(d) Obsolete and provisions that need to be updated-s.40B(1)(d)
(e) Efficient organisation and performance of work-s.40B(1)(e)
(f) Language issues
(g) Standard arrangement clause
(h) Standard clauses in awards
(i) Appendices and schedules
(j) Test Case Standards
(k) Variation of wage rates and classifications
(l) Supported Wage System
(m) Modes of Employment including part time employment
(n) Flexibility in working arrangements
(o) CICS Guidelines
(p) Shift penalties and allowances
(q) Award provisions that are inconsistent with the IR Act
(r) Award Provisions that are inconsistent with federal legislation
(s) Scope clauses
(t) The Minimum Rates Adjustment process
(u) References to out of date legislation, codes etc
(v) Dispute resolution clauses
(w) Methods of Calculating Allowances



7-8

9-34
35-40
41
42-43
45-47
48-49
50
51-52
53-56
57
58
59-61
62
63
64
65-67
68-69
70
71
72
73
74

The Council’s Submissions

(a) CICS Guidelines
(b) Whether power under s.40B discretionary
(c) Minimum wage rates in awards-s.40B(1)(a)
(d) Award conditions less favourable than minimum conditions-s.40B(1)(b)
(e) Unlawful discrimination-s.40B(1)(c)
(f) Obsolete and provisions that need to be updated-s.40B(1)(d) and Supported Wage System
(g) Efficient organisation and performance of work-s.40B(1)(e)
(h) Test Case Standards
(i) Flexibility in working arrangements
(j) Structural efficiency and enterprise bargaining initiatives
(k) Scope clauses
(l) Standard arrangement clause



75
76
77

78-79
80

81
82
83-84
85
86
87
88


AMMA’s Submissions

(a) Minimum wage rates in awards-s.40B(1)(a)
(b) Award conditions less favourable than minimum conditions-s.40B(1)(b)
(c) Unlawful discrimination-s.40B(1)(c)
(d) Obsolete and provisions that need to be updated-s.40B(1)(d) and efficient organisation and performance of work-s.40B(1)(e)
(e) Test Case Standards
(f) Structural efficiency, enterprise bargaining initiatives and facilitative clauses
(g) Standard arrangement clause
(h) Standard clauses in awards
(i) Whether power under s.40B mandatory and role of the Commission
(j) CICS Guidelines



89

90-91
92

93-94
95

96-97
98
99
100
101

The Chamber’s Submissions

(a) Whether power under s.40B mandatory and role of the Commission
(b) Minimum wage rates in awards-s.40B(1)(a)
(c) Award conditions less favourable than minimum conditions-s.40B(1)(b)
(d) Unlawful discrimination-s.40B(1)(c)
(e) Obsolete and provisions that need to be updated-s.40B(1)(d)
(f) Efficient organisation and performance of work-s.40B(1)(e) and facilitative provisions
(g) Award provisions that are inconsistent with the IR Act and with federal legislation
(h) Structural efficiency, enterprise bargaining initiatives
(i) Standard arrangement clause
(j) Methods of Calculating Allowances
(k) Scope clauses



102-103
104

105-107
108
109

110-116

117
118
119
120
121
The SDA’s Submissions

(a) Minimum wage rates in awards–s.40B(1)(a)
(b) Award conditions less favourable than minimum conditions-s.40B(1)(b)
(c) Unlawful discrimination-s.40B(1)(c)
(d) Obsolete and provisions that need to be updated-s.40B(1)(d)
(e) Efficient organisation and performance of work-s.40B(1)(e)
(f) Standard arrangement clause



123

124
125
126
127
128

AFMEPKIU Submissions

130-132
ALHMWU’s Submissions

(a) Role of Awards
(b) Whether power under s.40B discretionary and s40B(1)(e)
(c) Unlawful discrimination-s.40B(1)(c)
(d) Obsolete and provisions that need to be updated-s.40B(1)(d)
(e) Efficient organisation and performance of work-s.40B(1)(e)
(f) Test Case Standards
(g) Scope clauses
(h) Standard arrangement clause



133-135
136
137
138-139
140-142
143
144
145

Submissions made on behalf of employers affected by the Cleaners’ and Caretakers’ Award

(a) Minimum wage rates in awards–s.40B(1)(a)
(b) Award conditions less favourable than minimum conditions-s.40B(1)(b)
(c) Unlawful discrimination-s.40B(1)(c)
(d) Obsolete and provisions that need to be updated-s.40B(1)(d) and efficient organisation and performance of work-s.40B(1)(e)
(e) Standard arrangement clause




146(a)

146(b)
146(c)

146(d)&(e)
146(f)
Submissions made on behalf of employers affected by the , Cleaners, Contract Cleaners Award 1986, and the Contract Cleaners (Ministry of Education) Award 1990

(a) Section 40B(1)(a),(b) and (c)
(b) Obsolete and provisions that need to be updated-s.40B(1)(d) and efficient organisation and performance of work-s.40B(1)(e)
(c) Test Case Standards
(d) Standard arrangement clause





147(a)

147(b)&(c)
147(d)-(f)
147(g)
Submissions made on behalf of employers affected by the Bakers’ (Metropolitan) Award 1987, and Pastry Cooks’ Award 1981

(a) Section 40B(1)(a),(b) and (c)
(b) Obsolete and provisions that need to be updated-s.40B(1)(d) and efficient organisation and performance of work-s.40B(1)(e) and facilitative provisions
(c) Role of Awards
(d) Test Case Standards
(e) Standard arrangement clause





148(a)


148(b)
148(c)
148(d)
148(e)
Submissions made on behalf Employers bound by the Metal Trades (General) Award 1966

(a) Role of the Commission
(b) Award conditions less favourable than minimum conditions-s.40B(1)(b)
(c) Unlawful discrimination-s.40B(1)(c)
(d) Efficient organisation and performance of work-s.40B(1)(e)
(e) Test Case Standards
(f) Standard arrangement clause
(g) Structural efficiency, enterprise bargaining initiatives




149

150
151
152
153-154
155
156
Submissions made on behalf of Employers bound by the provisions of the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977


157-158

Submissions made on behalf of Employers bound by the provisions of the Children’s Services (Private) Award

(a) Whether power under s.40B mandatory and role of the Commission
(b) Minimum wage rates in awards–s.40B(1)(a)
(c) Award conditions less favourable than minimum conditions-s.40B(1)(b)
(d) Unlawful discrimination-s.40B(1)(c)
(e) Obsolete and provisions that need to be updated-s.40B(1)(d)
(f) Efficient organisation and performance of work-s.40B(1)(e) and facilitative provisions




159
160

161
162
163

164

Submissions on behalf of employers who are bound by the Clerks’, (Commercial, Social and Professional Services) Award and the Clerks (Wholesale and Retail Establishments) Award

(a) Role of the Commission
(b) Unlawful discrimination-s.40B(1)(c)
(c) Efficient organisation and performance of work-s.40B(1)(e)





166
167
168

Submissions made on behalf of Employers bound by the Hospital Salaried Officers (Nursing Homes) Award 1976, Enrolled Nurses and Nursing Assistants (Private) Award No 8 of 1978, Hospital Salaried Officers (Private Hospitals) Award 1980, Aged and Disabled Persons Hostels Award 1987, Hospital Salaried Officers (Silver Chain) Award 1980 and the Private Hospital Employees’ Award 1972







169-170


CICS Conclusions

(a) Section 40B(1) mandatory
(b) Role of the Commission under s.40B(1)
(c) Section 40B(1)(a)
(d) Section 40B(1)(b) and (d)
(e) Award Provisions that are inconsistent with the IR Act and the WR Act
(f) Standard clauses in awards
(g) Section 40B(1)(c) and (d)
(h) Section 40B(1)(e)and facilitative provisions
(i) Test Case Standards
(j) Modes of employment
(k) Flexibility in working arrangements
(l) Structural efficiency and enterprise bargaining provisions
(m) Scope clauses
(n) Variation of wages rates and classifications
(o) Supported wage system
(p) Standard Arrangement clause
(q) Appendices and schedules
(r) Method of calculating allowances
(s) Other Matters



171-174
175-179
180-181
182-187

188-191
192-193
194-196
197-202
204-205
206
207-208
209
210
211
212
213
214
215
216

Introduction and history of these proceedings

1 This Commission in Court Session issues this statement which deal with the meaning and effect of s40B of the Industrial Relations Act 1979 (the Act”) for the guidance of the parties and other persons interested in a review of the Metal Trades (General) Award 1966, Children's Services (Private) Award, the Cleaners and Caretakers Award 1969 and The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 under s40B of the Act. The Commission in Court Session is grateful to the parties and other interested persons who provided to the Commission comprehensive submissions on all of the issues raised by the Commission in this matter.
2 Prior to convening proceedings in this matter on 15 December 2003, the Commission in Court Session directed the Registrar to publish a discussion paper titled Award Review. Pages 1 to 8 of that paper raised a number of issues as follows:
"Following an advertisement in The West Australian on 12 August 2002 by the Registrar of the Western Australian Industrial Relations Commission pursuant to his obligations under reg 94A of the Industrial Relations Commission Regulations 1985, the Registrar received written submissions in relation to award reviews. The advertisement sought written comments in relation to the review of awards generally or in relation to an award or awards in particular. The Registrar prepared a summary of those submissions. This paper takes into account comments in those submissions which appear to raise relevant issues in respect of four awards, the Metal Trades (General) Award 1966, Children's Services (Private) Award, the Cleaners and Caretakers Award 1969 and The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977. This paper also takes account of some matters that are issues that may arise in relation to award reviews generally. This discussion paper is issued by the Registrar following a direction from the Commission to do so. The Commission in Court Session has determined that it will call on its own motion the four awards to hear submissions in relation to the matters raised in this discussion paper and the attached documents.
Since s.40B was enacted a number of awards have been reviewed by the Commission and amended.
This discussion paper sets out in Attachment A matters which relate specifically to the review, redrafting and modernisation of the four awards under review which have been identified in reports from the officers of the Commission. Attachment B describes a standard arrangement clause recommended by the Registrar following a review conducted under reg 94A.
General Issues for Consideration
S.40B(1) – Industrial Relations Act
S.40B of the Industrial Relations Act 1979 should be applied in accordance with the requirements of s26 of the Industrial Relations Act.
S.40B(1) provides:
'(1) The Commission, of its own motion, may by order at any time vary an award for any one or more of the following purposes —
(a) to ensure that the award does not contain wages that are less than the minimum award wage as ordered by the Commission under section 51;
(b) to ensure that the award does not contain conditions of employment that are less favourable than those provided by the MCE Act;
(c) to ensure that the award does not contain provisions that discriminate against an employee on any ground on which discrimination in work is unlawful under the Equal Opportunity Act 1984;
(d) to ensure that the award does not contain provisions that are obsolete or need updating;
(e) to ensure that the award is consistent with the facilitation of the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises.'
The following issues may arise in relation to the four awards and all awards of the Commission. These issues are –
(a) What is the meaning and effect of s.40B(1)(a), (b), (c), (d) and (e) of the Industrial Relations Act?
(b) When regard is had to s.40B(1)(c), (d) and (e) of the Industrial Relations Act –
(i) whether there should be an explicit right for an employee to refuse to work overtime in circumstances where it would result in the working of unreasonable hours, that is, adopt the Australian Industrial Relations Commission case standard for reasonable hours of work, reasonable overtime and paid breaks after extreme working hours in Re CFMEU v The Coal Mining Industry (Production and Engineering) Consolidated Award ('Working Hours case') (Print PR072002).
(ii) Whether there should be explicit right for part-time work, job-sharing and flexibility in working hours to fulfil family responsibilities, for example, start late, start early or finish early or take a break in the middle of a shift to fulfil family responsibilities.
(iii) Whether rostering arrangements should be flexible to allow employees to fulfil family responsibilities.
(iv) Whether shift penalties are still relevant and should such clauses be reviewed.
(v) Whether all awards should contain redundancy and introduction to change clauses. In relation to the awards to be reviewed by the Commission in Court Session this issue only arises in relation to the Cleaners and Caretakers Award 1969.
(vi) What initiatives have been taken under structural efficiency and enterprise bargaining which are now permanent features of industries which should now be reflected in awards? Some of these may include:
Probation,
Part-time employment,
Fixed term employment,
Casual employment,
Spread of hours,
Consolidation of allowances.
(c) Whether all awards should comprehensively contain all legislative rights and obligations such as minimum conditions under the Minimum Conditions of Employment Act 1993 including contracting out of annual leave conditions under s8 of the Minimum Conditions of Employment Act. Alternatively should awards simply refer to legislative rights and obligations contained in the Minimum Conditions of Employment Act and the Industrial Relations Act (such as parental leave, right of entry, keeping of time and wages records, and inspection of records) and leave the reader to refer to those legislative provisions?
(d) The Minimum Conditions of Employment Act was recently amended by the Acts Amendment (Equality of Status) Act 2003 to delete references to de facto spouse and insert references to de facto partner. These amendments create an entitlement to bereavement and parental leave to single sex partners. Should this legislative change be reflected in variations to the four awards?
(e) Whether the entitlement to take sick leave to care for family members set out in s.20A of the Minimum Conditions of Employment Act 1993 should be incorporated in all awards.
(f) When regard is had to s.40B(1)(d) whether the Commission should give consideration to varying scope clauses in many of its awards and its lists of respondents and parties to reflect the requirements of s.38(1) of the Industrial Relations Act and to define the scope of awards by reference to named classifications of employees and industries rather than defining the industry only by lists of respondents. In particular, whether it is right and proper for the Commission to modernise its awards by –
(i) removing from its lists of parties to an award, parties who in fact no longer exist; and
(ii) amending the scope of awards to define the scope by describing the industry by name and not by reference to named employers; and
(iii) ensuring all awards contain a list of named parties as required by s38(1) of the Industrial Relations Act.
In relation to the awards under review, the issue identified in (f)(ii) only arises in relation to The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (see Bell–A-Bike Rottnest Pty Ltd v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch [2002] WAIRC 06654; (2002) 82 WAIG 2655).
(g) Whether all awards should be redrafted to provide for standard arrangement, title, particular definitions, numbering of clauses and standard clauses for such matters as contract of service, casual employees, sick leave, carer's leave, bereavement leave, parental leave, dispute resolution, right of entry, superannuation, supported wage system, apprentices and traineeships etc.
(h) What steps should the Commission take in fulfilling its obligations under s.40B(1) generally and specifically in relation to the four awards under review?
(i) In relation to s.40B(1)(c) one issue that arises is whether s.40B(1)(c) requires the Commission to take action to ensure its award provisions –
(i) are not interpreted or implemented by the parties and employers bound by an award in a way that creates direct or indirect discrimination; or
(ii) contain mandatory obligations which prohibit direct or indirect discrimination in respect of particular matters.
Discrimination is widely defined under the Equal Opportunity Act in respect of certain grounds. Discrimination in work is prohibited under the Equal Opportunity Act on grounds of –
(a) sex, marital status or pregnancy;
(b) family responsibility or family status;
(c) gender history;
(d) sex or sexual orientation;
(e) race;
(f) religious or political conviction;
(g) impairment;
(h) age;
(i) spent convictions.
For example, in relation to discrimination on grounds of family responsibility or status in respect of work, ss.35A and 35B of the Equal Opportunity Act provide:
'35A. Discrimination on the ground of family responsibility or family status
(1) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of family responsibility or family status if, on the ground of — 
(a) the family responsibility or family status of the aggrieved person;
(b) a characteristic that appertains generally to persons having the same family responsibility or family status as the aggrieved person; or
(c) a characteristic that is generally imputed to persons having the same family responsibility or family status as the aggrieved person,
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who does not have such a family responsibility or family status.
(2) For the purposes of this Act, a person (in this subsection referred to as 'the discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of family responsibility or family status if the discriminator requires the aggrieved person to comply with a requirement or condition — 
(a) with which a substantially higher proportion of persons not of the same family responsibility or family status as the aggrieved person comply or are able to comply;
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
35B. Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of the person's family responsibility or family status— 
(a) in the arrangements made for the purpose of determining who should be offered employment;
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's family responsibility or family status— 
(a) in the terms or conditions of employment that the employer affords the employee;
(b) by denying the employee access, or limiting the access of the employee, to opportunities for promotion, transfer or training or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
(3) Nothing in subsection (1) renders it unlawful for a person to discriminate against another person, on the ground of the other person's family responsibility or family status, in connection with employment to perform domestic duties within a private household in which the employer resides.
(4) Nothing in this section renders it unlawful for a person to do an act a purpose of which is to afford persons with a particular family responsibility or family status rights, benefits or privileges in connection with that family responsibility or family status.'
Indirect discrimination occurs when a condition or requirement is imposed that on the face of it appears neutral but adversely impacts on a particular group of which an aggrieved person is a member. Indirect discrimination can arise when people are treated the same, because of some disadvantage they have or have suffered in the past (Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165). A consequence of the definitions of direct and indirect discrimination appears to be that in considering whether an act is unlawful under the Equal Opportunity Act, the treatment of a person with an attribute, or the effect of a condition, requirement or practice must be compared to how a person without the attribute would be treated or affected, but also to how a person with a different attribute would be treated or affected. To determine whether indirect discrimination arises, the circumstances of an aggrieved person or persons has to be judged against a base group. The requirement also has to be unreasonable.
The question is how can the Commission identify indirect discrimination in its award provisions if it is necessary to consider the factual circumstances of a particular person or persons against a base group.
In some cases discrimination may be clear. For example, discrimination could arise under the Long Service Leave General Order (2003) 83 WAIG 1, which is incorporated into many awards including the awards the Commission seeks to review. The Long Service Leave General Order requires employers covered by the Order to provide long service leave to employees following 15 years 'continuous service'. On its face, the Order may not recognise 'parental leave' as service deemed to be 'continuous'. If so, this provision could discriminate against parents who take periods of parental leave.
Other examples of 'continuous service' or length of service that may require review are redundancy clauses and service related payments. Such provisions may be discriminatory against women, as women tend to have broken patterns of employment. Further, age based pay structures (above the age of 21) would likely breach the requirements of the Equal Opportunity Act.
Given that certain provisions of the Equal Opportunity Act place obligations on employers to ensure that their employees are not provided with conditions of employment that are not accessible to some employees, there may be an argument that the Commission should review award provisions to provide some mechanism to ensure that some award provisions are not inaccessible to groups of employees.
The Australian Industrial Relations Commission in its 1995 National Wage Decision held the third award level arbitrated safety net adjustments would be available where an award was varied to insert a model anti-discriminatory clause. Section 150A(2)(b) at that time (repealed) and now s.143(1C)(f) of the Workplace Relations Act 1996 (Cth) requires the Commission in making an award or an order affecting an award, to ensure that the award or order does not contain provisions that discriminate against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. The Australian Industrial Relations Commission 1995 model clause provided:
'1. It is the intention of the respondents to this award to achieve the principal object in section 3(g) of the Industrial Relations Act 1988 by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
2. Accordingly, in fulfilling their obligations under the disputes avoidance and settling clause, the respondents must make every endeavour to ensure that neither the award provisions nor their operation are directly or indirectly discriminatory in their effects.
3. Nothing in this clause is to be taken to affect:
3.1 any different treatment (or treatment having different effects) which is specifically exempted under the Commonwealth anti-discrimination legislation;
3.2 until 22 June 1997, the payment of different wages for employees who have not reached a particular age;
3.3 an employee, employer or registered organisation, pursuing matters of discrimination in any state or federal jurisdiction, including by application to the Human Rights and Equal Opportunity Commission; or
3.4 the exemptions in sections 170DF(2) and (3) of the Act.'
The New South Wales Industrial Relations Commission also varied all of its awards in 1999 by General Order following its 1999 State Wage Decision by inserting an anti-discrimination clause into all of its awards.
The Commission in Court Session may wish to hear submissions whether dispute resolution clauses in all awards including the four awards under consideration be varied to provide that in fulfilling their obligations under the dispute resolution procedures the parties are required to take all reasonable steps to ensure that the operation of the provisions of the award are not discriminatory in their effects. Such a clause could be utilised to resolve disputes as to whether discrimination arises on a case by case basis, such as a dispute whether rosters create an arrangement that employees with family responsibilities are unable to meet.
Some of these issues may overlap with 'pay equity' and 'equal remuneration' for men and women for work of equal value (s.6(ac) of the Industrial Relations Act). In light of object s.6(ac) the Commission in Court Session may wish to hear submissions whether the Children's Services (Private) Award should undergo a further minimum rates adjustment process to adjust the rates of pay against the Metal Trades (General) Award 1966. In particular, does sex discrimination arise in wage rates paid to women under the Children's Services (Private) Award or alternatively are these rates fair? (See clause 22(7) of the Award) Should the Commission's decision in 73 WAIG 101 be revisited so as to align the rates against the Metal Trades (General) Award?"
Argument and conclusions as to jurisdiction to conciliate or arbitrate prior to issuing proposed variations
3 On 16 January 2004 the Commission heard from parties to the Metal Trades General Award 1966, the Children's services (Private) Award, the Cleaners and Caretakers Award 1969 and the Shop Warehouse (Wholesale and Retail Establishments) State Award 1977, the Chamber of Commerce and Industry ("the Chamber"), the Trades and Labour Council ("the Council"), the Mines and Metals Association ("AMMA") and the Minister for Consumer and Employment Protection ("the Minister"). The Commission also heard from a number of employers on whose behalf the Chamber had filed warrants to appear. These employers are either bound by common rule to one of the four Awards or are parties or bound by common rule to the hearing. The Chamber advised the Commission that it wished to argue that of the Commission proceeded to conciliates or arbitrates in this matter the Commission would be acting ultra vires the Industrial Relations Act 1979 ("the Act"). The Chamber and others filed written submissions in respect of this jurisdictional issue and the Commission issued the following statement on 10 March 2004.
"1 The Commission in Court Session on its own motion convened proceedings pursuant to s.40B of the Industrial Relations Act 1979 ('the Act') for the purpose of hearing named parties, the Chamber of Commerce and Industry ('the Chamber'), the Trades and Labour Council ('the Council'), the Mines and Metals Association ('AMMA') and the Minister for Consumer and Employment Protection ('the Minister') on the matter of amending the following awards:-
(a) Metal Trades (General) Award 1966.
(b) Children's Services (Private) Award.
(b) Cleaners and Caretakers Award 1969.
(c) The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977.
2 Prior to convening the proceedings the Commission in Court Session directed the Registrar to provide to the parties and interested persons a copy of a discussion paper. The opening paragraphs of the discussion paper state:
'Following an advertisement in The West Australian on 12 August 2002 by the Registrar of the Western Australian Industrial Relations Commission pursuant to his obligations under reg 94A of the Industrial Relations Commission Regulations 1985, the Registrar received written submissions in relation to award reviews. The advertisement sought written comments in relation to the review of awards generally or in relation to an award or awards in particular. The Registrar prepared a summary of those submissions. This paper takes into account comments in those submissions which appear to raise relevant issues in respect of four awards, the Metal Trades (General) Award 1966, Children's Services (Private) Award, the Cleaners and Caretakers Award 1969 and The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977. This paper also takes account of some matters that are issues that may arise in relation to award reviews generally. This discussion paper is issued by the Registrar following a direction from the Commission to do so. The Commission in Court Session has determined that it will call on its own motion the four awards to hear submissions in relation to the matters raised in this discussion paper and the attached documents. Since s.40B was enacted a number of awards have been reviewed by the Commission and amended. This discussion paper sets out in Attachment A matters which relate specifically to the review, redrafting and modernisation of the four awards under review which have been identified in reports from the officers of the Commission. Attachment B describes a standard arrangement clause recommended by the Registrar following a review conducted under reg 94A.'
3 Prior to convening proceedings, the parties to the awards, the Chamber, the Council, AMMA, the Minister and the employee organisations parties to the four awards were afforded the opportunity of inspecting the Registrar's s.40B review file. That file contains the steps taken by the Registrar to complete his review by 31 August 2002, including the report he submitted to the Chief Commissioner on 29 August 2002. The report contained the summary of submissions referred to in the opening paragraph of the discussion paper.
4 On 16 January 2004, the Commission heard from the parties to the awards, the Chamber, the Council, AMMA, the Minister and persons who seek to be heard in these proceedings. After taking appearances the Commission heard from the parties and others in conference.
5 As the Chamber points out pages 1 to 8 of the discussion paper identifies issues that may arise in relation to the four awards and all awards of the Commission, which include among other things:
(a) What is the meaning and effect of s.40B(1) of the Act.
(b) Whether there should be an explicit right for an employee to refuse to work overtime in circumstances where it would result in the working of unreasonable hours.
(c) Whether there should be an explicit right for part-time work, job-sharing and flexibility in working hours to fulfil family responsibilities.
(d) Whether shift penalties are still relevant and should such clauses be reviewed.
(e) Whether all awards should contain redundancy and introduction to change clauses.
(f) What ‘structural efficiency’ and ‘enterprise bargaining’ initiatives should now be reflected in all awards.
(g) Whether all awards should comprehensively contain all legislative rights and obligations or should awards simply refer to legislative rights and obligations (such as parental leave, right of entry, keeping of time and wages records, and inspection of records) and leave the reader to refer to those legislative provisions.
(h) Whether references to de facto spouse should be deleted and references to de facto partner inserted into entitlements to bereavement and parental leave by single sex partners to reflect recent legislative changes.
(i) Whether the entitlement to take sick leave to care for family members should be incorporated in all awards.
(j) Whether to define the scope of awards by reference to named classifications of employees and industries rather than defining the industry only by lists of respondents.
(k) Whether all awards should be redrafted in a standard arrangement and format.
(l) What is required to ensure award provisions do not create direct or indirect discrimination. Some of these issues may overlap with 'pay equity' and 'equal remuneration' for men and women for work of equal value.
6 At the conference on 16 January 2004, the Chamber contended that the Commission cannot proceed on its own motion in these proceedings as no variations to the four awards have been proposed by the Commission. In particular it says the Commission only has before it a discussion paper prepared by the Registrar. Specifically the point is also made that the discussion paper is issued by the Registrar following a direction from the Chief Commissioner to do so; see page 1 of the discussion paper. It is not the Commission’s discussion paper and, therefore, it is not the Commission’s proposed variations (as is required by s.40B(2) of the Act): see ss.7 and 8 of the Act for the definition and constitution of the Commission. Also, the discussion paper is not the 'review of awards' conducted pursuant to s.96 of the Act and reg 94A of the Industrial Relations Commission Regulations 1985.
7 The Chamber says that if the Commission proceeds to conciliate or arbitrate in this matter, it will be acting ultra vires the Act. The Chamber also argues that the Commission has no power to convene conferences in these matters. Following the conference the Commission in Court Session directed the Chamber and others to file written submissions in relation to this preliminary jurisdictional issue. The Commission in Court Session received submissions from the Chamber, the Council, the Minister, AMMA, the Australian Liquor Hospitality and Miscellaneous Workers' Union Western Australian Branch ('the LHMWU'), and the Chamber of behalf of particular organisations that have filed warrants to appear. Some of these are Respondents to the Cleaners and Caretakers Award 1969 and the Metal Trades Award (General) Award 1966.
8 The Council says the discussion paper is a valid exercise of the Commission's approach to award updating under the Act. In particular it says:
(a) S.40B(2) provides that before making an order under the section the Commission must give the parties to the award and the s 50 parties an opportunity to be heard in relation to the 'proposed variations'.
(b) The Act does not specify the procedures that apply when the Commission brings on a matter of its own motion. It is therefore reasonable that the broad powers the Commission has under the Act are applicable.
(c) The Commission has broad powers under s 27 to deal with matters before it. Section 27(1)(v) provides for the Commission to 'generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter.'
(d) S.40B does not stand outside the scheme of the Act as a whole. Where s.40B does not provide guidance on how a matter brought under it is to be progressed the general provisions of the Act should apply.
(e) The Council submits that the Commission acted within the power provided by the Act when it brought the current matter under s.40B of its own motion, provided the parties with the discussion paper and sought comment from the parties for directions on how to progress.
(f) Whether or not the discussion paper represents proposed variations is not relevant. While it is clear that the Commission must allow parties to be heard on 'proposed variations' before it makes an order under s.40B, the Commission may exercise its broad powers to deal with the matter in a manner in which it sees fit prior to reaching the stage of being about to make an order.
(g) Further, pursuant to s.26(1)(a) the Commission has the duty to act according to equity and good conscience.
(h) It is appropriate that in the early stages of a complex matter of this nature, the Commission is not seen to be favouring or prejudicing any one party or group of parties to the proceedings.
(i) While this is a matter brought on by the Commission on it’s own motion, the Commission would be aware that the parties to the proceedings would have different views on the issues raised.
(j) In this sense the discussion paper is appropriate in it’s terms as it raises the issues that the Commission seeks to address in it’s motion without providing an indication of the Commission's views of those issues.
(k) Once the Commission has heard from those parties who wish to participate in the proceedings, it can formulate and present 'proposed variations' which parties can again be heard on prior to the Commission making an order.
9 In relation to the power to conciliate the Council says:
(a) Section 32 states that the Commission shall endeavour to resolve a matter by conciliation where an industrial matter has been referred to the Commission.
(b) There is no question that the mater brought by the Commission in these proceedings is an industrial matter.
(c) There is nothing in the Act to suggest that a matter brought on by the Commission's own motion is not a matter referred to the Commission. The process of the Commission bringing proceedings on by its own motion is in effect the Commission referring a matter to itself.
(d) The submissions of the Chamber going to ss.29 and 29A are not relevant to understanding s.32 in circumstances where the Commission has brought the proceedings on it own motion.
(e) The Commission clearly has the power to bring of it’s own motion proceedings under s.40B. S.40B does not provide specific direction on how a matter is to be progressed and thus the general powers of the Commission including s.32 must apply.
(f) Again the fact that this is a matter brought by the Commission on it’s own motion, does not mean that the proceedings are not amenable to the conciliation processes outlined in s.32. The parties will still be in dispute about the issues raised in the proceedings and conferences would play a similar role they do for matters brought under s.29.
(g) If s.32 does not apply to proceedings on the Commission's own motion, then the broad power under s.27(1)(v) would apply to allow the Commission to convene conferences in these circumstances.
10 The LHMWU makes a similar submission to the Council.
11 AMMA contends there is no scope for conciliation in the absence of competing claims between the parties. It however says that the present proceedings are within power. It says so for the following reasons:
(a) AMMA agrees with Chamber's contention that the discussion paper prepared by the Registrar does not consist of proposed variations. But the discussion paper does not purport to consist of, or even contain, proposed variations.
(b) The discussion paper appears to be designed to assist the Commission in it’s review of awards. In it’s opening paragraph it states that the Registrar had received written submissions in relation to award reviews and had summarised those submissions, and goes on to say 'This paper also takes account of some matters that are issues that may arise in relation to award reviews generally.' (Emphasis added) Further in the body of the discussion paper it states 'This is a summary of issues identified by the Commission’s Award Review Team and members of the Commission for the Commission’s consideration in its review of the Metal Trades (General) Award 1966.' (Discussion paper p. 9 Emphasis added). Statements of this nature regarding the remaining awards under review are to be found at pages 22, 32 and 42 of the discussion paper. Clearly the Registrar has envisaged his role as assisting the Commission in the Commission conducting its own review of the four awards under consideration, which coincides with AMMA’s understanding of the proceedings.
(c) The fact that the Registrar has been delegated the task of performing a review does not preclude the Commission from continuing on with this task. First s.96(2) of the Act provides for delegation 'of all or any of the functions' listed. Secondly s.96(7) of the Act provides for a function being performed by the Commission 'despite it being a delegated function'.
(d) The Act is silent on how such a review is to be undertaken by the Commission, as noted earlier s.40B of the Act does not even explicitly spell out the existence of such a power. AMMA submits that in exercising it’s discretion as to how this power is to be exercised the Commission is not precluded from hearing from the parties to the awards and from the s 50 (sic) parties. Indeed AMMA submits that it is sensible to do so and in accord with the overall scheme of the Act.
(e) AMMA submits that the Commission is able to convene conferences for the purpose of conducting it’s review of awards. AMMA submits that the words 'any matter' where they appear in s.27(1) of the Act are sufficiently broad to cover the matter of an award review. Further the words 'Except as otherwise provided in this Act' do not come into play where the legislature has seen fit to confer the power on the Commission to review awards without giving any directions of any nature whatsoever as to how that power shall be exercised, or award reviews conducted. AMMA submits that it therefore follows that the Commission has all the powers enumerated in s.27 of the Act available to it.
(f) S.40B(2) of the Act does not require the Commission to provide proposed variations if it is simply conducting a review.
(g) Properly viewed s.40B(2) imposes a prohibition on the Commission, namely the Commission is prohibited from issuing an order under s.40B without first satisfying the conditions precedent set out in the sub-section, that is giving notice to the parties named and providing them with an opportunity to be heard in relation to the proposed variations.
(h) If and when the review of awards by the Commission gets to the stage where proposed variations actually do come into existence, AMMA has no basis to presuppose that the Commission will then fail to fully comply with this requirement. Indeed AMMA is confident in its anticipation that the Commission will fully comply with the requirements of the Act.
(i) The jurisdictional objection raised by the Chamber appears to be largely predicated upon the present proceedings being something other than a review being conducted. Conversely AMMA’s lack of objection is predicated upon its view that this is a review. Hence AMMA’s view that it is necessary to determine the nature of these proceedings.
(j) If the Commission concurs with the AMMA (and the repeatedly expressed view of the Registrar) that the Commission is conducting a review, it is AMMA’s submission that any jurisdictional objection is without foundation. However, if it is the view of the Commission that it is currently doing something other than conducting a review, AMMA then reserves it’s rights to reconsider it’s position in relation to the question of jurisdiction.
12 The Minister also says the Commission is acting within power to date. In particular the Minister submits:
(a) the discussion paper and standard arrangement clause (collectively referred to as 'the discussion paper') in question were validly made pursuant to s.96(2) of the Act. Specifically, the scope of the term 'review' in s.96(2) is broad enough to encompass the Registrar's process of compiling and issuing the discussion paper;
(b) in the event the discussion paper was not validly made pursuant to s.96(2), the paper was validly made under s.93(8) of the Act. There is no inconsistency between ss.93(8) and s.96(2) of the Act rendering s.93(8) inapplicable;
(c) section 26(1)(b) of the Act enables the Commission to inform itself on s.40B matters by virtue of the discussion paper;
(d) the discussion paper is not intended to be, nor does it constitute, 'proposed variations' as envisaged by s.40B(2) of the Act;
(e) the term 'proposed variations' does not mean 'actual variations', so that the Commission is not required to issue actual variations before affording parties an opportunity to be heard under s.40B(2) of the Act;
(f) the right to be heard under s.40B(2) is 'in relation to' the proposed variations. The term 'in relation to' is broad enough to allow parties an opportunity to be heard before the Commission has necessarily issued any proposed variations; and
(g) the Commission is empowered by ss.40B(2) and 27(1)(v) of the Act to convene conferences. 'An opportunity to be heard' as referred to in s.40B(2) is not confined to parties presenting their case in hearing. What is an appropriate 'opportunity to be heard' depends on the circumstance of the case.
13 The Chamber argues that the terms of s.40B are clear, the Commission cannot on its own motion proceed under s.40B until it has formulated and given to the parties (and persons mentioned in s.40B(2)) proposed variations to the four awards. S.40B(1) and (2) provides:
'(1) The Commission, of its own motion, may by order at any time vary an award for any one or more of the following purposes —
(a) to ensure that the award does not contain wages that are less than the minimum award wage as ordered by the Commission under s.51;
(b) to ensure that the award does not contain conditions of employment that are less favourable than those provided by the MCE Act;
(c) to ensure that the award does not contain provisions that discriminate against an employee on any ground on which discrimination in work is unlawful under the Equal Opportunity Act 1984;
(d) to ensure that the award does not contain provisions that are obsolete or need updating;
(e) to ensure that the award is consistent with the facilitation of the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises.
(2) The Commission shall not make an order under this section until it has given notice to the named parties to the award and the Council, the Chamber, the Mines and Metals Association and the Minister and afforded them an opportunity to be heard in relation to the proposed variations.'
14 Section 96(1), (2)(b) and (6) provides:
'(1) In this section —
'Registrar' means the Registrar or a Deputy Registrar.
(2) Subject to subsection (3), the regulations may provide for and in relation to the delegation to a Registrar of all or any of the functions of the Commission in relation to the following —
(b) the review of awards for the purposes of s.40B'
15 A function performed by a Registrar as a delegate of the Commission is to be taken to be performed by the Commission.
16 Regulation 94A provides:
'(1) Registrar shall undertake a review of all awards pursuant to s.40B of the Act with respect to matters set out in sub-s.40B(1)(a) to (d).
(2) The review shall be completed and submitted to the Chief Commissioner by 31st August 2002.'
17 In identifying matters which may need to be addressed in sub-s.40B(1)(a) to (d), the Registrar shall confer with the parties set out in subclause 40B(2) and relevant registered organisations and employer associations.
18 The Registrar shall publish in a newspaper circulating throughout the State and on the website maintained by the Commission a notice listing the awards of the Commission and advertising the terms of s.40B of the Act. Parties with an interest in these awards are to be invited to provide written comments on matters relevant to the review of awards generally or to an award or awards in particular.
19 With respect to s.40B(1)(e) the Registrar shall, after reviewing all awards and conferring with parties set out in subclause 40B(2) and relevant registered organisations and employer associations, recommend the format for a Standard Arrangement Clause to be applied to awards to facilitate the efficient application of awards by electronic technology for employees, employers, registered organisations and employer associations.'
20 The Chamber also says the status of the discussion paper is unclear. However it was conceded in conference that if the discussion paper can be characterised as a document containing proposed variations to the four awards and these variations are proposed by the Commission, then the Commission may proceed. The Chamber, AMMA and the Minister assume the whole of the discussion paper was prepared by the Registrar under s.96(6) of the Act and reg 94. This contention is with respect misconceived. Attachment B has been prepared by the Registrar. Pages 1 to 8 of the discussion paper and Attachment A were prepared by members of this Commission in Court Session. Attachment A raises clause by clause suggestions in respect of potential amendments to each of the four awards. Attachment A is in part a summary of issues identified by the Commission's award review team as part of the Registrar's award review that was completed on 28 August 2002. The Registrar's review has been reviewed by members of this Court Session and Attachment A was compiled. Attachment A also contains issues the Commission in Court Session itself raises as matters that could be the subject of award variations to each of the four awards, Attachment B was prepared by the Registrar as part of a report to the Chief Commissioner dated 27 November 2003 pursuant to reg 94A(4). Pages 1 to 8 of the discussion paper simply pose questions the Commission sees may be relevant in these proceedings.
21 Whilst the opening paragraph of the discussion paper records that the Registrar undertook a review of all awards under s.40B and reg 94A in August 2002, this review was completed by 28 August 2002 as required by reg 94A(1). Whilst pages 1 to 8 of the discussion paper and Attachment A take account of the comments received by the Registrar when conducting that review, these proceeding are separate and have not been commenced by the Commission by delegation of any of its functions under s.96(2)(b) of the Act. The Registrar however prepared Attachment B as required by reg 94A(4). This function was delegated to him by reg 94A(4) pursuant to the Commission’s power to do so under s.96(2)(b). Attachment B has been provided to the parties to the awards and persons and organisations mentioned in s.40B(2) on the basis that when each of the four awards are varied the arrangement clause may or may not be varied in accordance with the recommended format for the standard arrangement clause.
22 The Chamber also contends that after 31 August 2002, there is nothing more in the Regulations for the Registrar to do in relation to s.40B of the Act. The Chamber's submission is correct in so far as the Registrar's duties under reg 94A(1) to (3) and s.40B(1)(a) to (d) of the Act are concerned, as pursuant to reg 94(A)(1) the review was to be completed by 31 August 2002.
23 There is however no time limit on the preparation of a recommended Standard Arrangement clause in reg 94A(4). Regulation 94A(4) contemplates a separate review by the Registrar in respect of the recommended Standard Arrangement Clause as this review is authorised by s.40B(1)(e) of the Act. Although the Chamber says the Registrar's award review file shows the Registrar submitted a report to the Chief Commissioner on 29 August 2002 with a recommendation on the Standard Arrangement Clause, the Registrar's review process was not completed until 27 November 2003 (see page 55 of discussion paper, the Registrar's report of 28 August 2002 and his report on 27 November 2003). In his report dated 28 August 2002 the Registrar advised that consultation about the Standard Arrangement Clause should take place with unions and employers.
24 In separate submissions filed by the Chamber on behalf of employer organisations that have filed warrants to appear in these proceedings, the Chamber contends that the award review conducted by the Registrar under reg 94A(1) the Registrar failed to confer with the parties set out in s.40B(2) and relevant registered organisations and employer associations. With respect to that submission it is factually incorrect. In his report to the Chief Commissioner dated 29 August 2002, the Registrar states:
'Following the review of all awards, a report on each award was complied setting out issues which needed attention. During the review, the persons or organisations nominated in s 50 have been continually and consistently consulted and copies of reports on each award have been discussed with them. In addition and in consultation with the TLC, we have conducted seminars with unions involved and provided copies of the reports reviewing awards relevant to them.'
25 In any event this submission is irrelevant to the efficacy of these proceedings. As set out above the Registrar's award review conducted under reg 94A(1) to (3) was concluded on 29 August 2002. These proceedings are separate and they do not constitute a 'review' in the sense of an appeal of the Registrar's review.
26 In the separate submissions filed by the Chamber on behalf of employers bound by the Cleaners and Caretakers Award and other organisations the Chamber also contends that the Registrar failed to confer with the parties to the awards as required by s.40B(2) of the Act before recommending the Standard Arrangement Clause. This submission is also misconceived. In a letter dated 2 October 2003 the Registrar attached a draft format for a standard arrangement clause and sought comment from persons and organisations mentioned in s 50 of the Act and all registered organisations. Except in relation to the parties to the awards persons and organisations mentioned in s.50 are the same as those set out in s.40B(2). The parties to the awards will have an opportunity to be heard in these proceedings in relation to whether the recommended Standard Arrangement Clause should be applied to the four awards the subject of these proceedings.
27 The Chamber in its capacity to be heard under s.40B(2) also argues:
(a) It is clear from s.40B of the Act that the Commission, of its own motion, may vary awards for the particular purposes of that section. But before doing so, the Commission is required to give the parties (mentioned in s.40B(2) of the Act) an opportunity to be heard in relation to the proposed variations.
(b) As a matter of construction, it is submitted the plain and ordinary meaning of the term ‘the proposed variations’ must be that they are the Commission’s proposed variations. It is the Commission that may, of it’s own motion, vary the awards. The Commission itself can formulate the proposed variations (perhaps based on the review of awards conducted by the Registrar) that it believes will achieve the purposes of s.40B of the Act.
(c) However, before proceeding to vary the awards for the purposes of s.40B of the Act the Commission is required to allow the parties mention to be heard in relation to the Commission’s proposed variations.
(d) Additionally, the content of the Registrar’s discussion paper is a long way short of providing the parties mentioned in s.40B(2) of the Act with 'the proposed variations'.
(e) The words 'the proposed variations' in s.40B(2) of the Act are general words that should be given their plain and ordinary meaning. Proposed variations must be the actual variations the Commission intends to be made to particular awards (subject to hearing from the parties that are entitled to be heard in the matter). It cannot mean a range of possible variations or listing 'the issues that may arise' or asking whether a provision 'could be re-worded' (in an unspecified way) or 'are these rates fair' or 'is a clause discriminatory'.
(f) Unless the actual ‘proposed variations’ are known, there will be a denial of natural justice to the parties mentioned in s.40B(2) of the Act. Those parties must be made aware of the specifics of the proposed variations so that they may be heard in relation to the ‘proposed variations’ by putting evidence and submissions to the Commission in relation to the specific matters that will arise as a result of the ‘proposed variations’.
(g) If, as the Act requires, those parties are to be heard 'in relation to the proposed variations' that can only be achieved if they have the proposed variations. The discussion paper does not contain 'the proposed variations'.
(h) An examination of the content of the discussion paper reveals that it contains matters that may arise in award reviews and almost endless questions about what might or could be included in an award review. In some limited cases, suggested answers (not 'proposed variations') are provided to the questions but in most cases no answers are given.
(i) The discussion paper can be contrasted to s 29A of the Act that provides where an industrial matter has been referred to the Commission the claimant, or applicant, is required to specify the nature of the relief being sought.
(j) Further, where a party to the award (or some other person) applies to vary the award under s 40 of the Act the Regulations require that an application to vary an award include the particulars of the variation sought and that it be served on the respondents to the award. The respondents can then file and serve an answer and counter-proposal (with particulars) to the claim. The Commission is then required, by s 32 of the Act, to deal with the industrial matter referred to it by conciliation or arbitration.
(k) As a matter of natural justice, at all stages of proceedings before the Commission the parties are entitled to know, with particularity, what is being sought.
28 As set out above it is not the case the discussion paper is not the Commission in Court Session's paper.
29 We are of the view that to adopt the Chamber's construction of s.40B(2) would be to narrowly construe the Commission's power under s.40B. Under s.40B(1) the Commission can on its own motion make orders to vary an award for any one or more of the purposes set out in s.40B(1)(a) to (e). Prima facie those purposes are wide in scope. As the Minister points out unlike s 40, s.40B is not constrained by the same service and notification requirements. S.40B contains few limitations or prescriptions as to the manner in which the Commission is to perform its functions. Section 26(1)(b) confers a 'wide discretion' on the Commission in respect of the matters upon which it may inform itself, and the way in which it is entitled to deal with the material before it without being bound by rules of evidence or legal forms – Australian Workers' Union, Western Australian Branch, Industrial Union of Workers v Hamersley Iron Pty Limited (1986) 66 WAIG 322 at page 323. However s 26(1) does not confer a general jurisdiction on the Commission – there must first be a foundation in the Act itself for the exercise of jurisdiction before s 26 operates: Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11 at page 20.
30 Under s.40B(2) the Commission is required to afford the parties to the four awards and the other persons and organisations mentioned in s.40B(2) an opportunity to be heard 'in relation to' the proposed variations. The words 'in relation to' are words wide in scope (see Smith v Federal Commissioner of Taxation (1987) 164 CLR 513 per Toohey J with whom Wilson J agreed at 516). Although those words gather meaning from the context in which they appear and it is the context that will determine the matters to which they extend (Workers Compensation Board (Qld) v Technical Products Pty Ltd (1988) 165 CLR 642 per Deane, Dawson and Toohey JJ at 653 and 654). In Newbury v Smith (1991) 101 ALR 54 Gray J at 61 observed:-
'It is obviously possible to do an act 'in relation to' an event, before that event takes place. Acts preparatory to an event will usually be regarded as being performed 'in relation to' that event. Even such a thing as the purchase of a ticket for a football match could be regarded as an act performed 'in relation to' that football match, although the match has not yet begun. It was contended on behalf of the defendant that a proposed event may never take place; it may be postponed or cancelled, for whatever reason. This is true, but it does not mean that the event must have begun before any act can be said to be 'in relation to' the event. The postponement of a football match does not make the prior purchase of a ticket for it any less 'in relation to' the football match than it would have been if the football match had proceeded.'
31 The Commission has before it the discussion paper which plainly raises specific proposed award amendments to each of the four awards. The Commission however is not at the stage of issuing proposed variations. Prior to issuing specific variations to each of the four awards the Commission should hear from the parties to the awards and the other persons and organisations mentioned in s.40B(2) whether the Commission should amend any or all of the four awards.
32 The discussion paper also raises a number of issues which the Commission could after hearing from the parties to the awards and other persons and organisations mentioned in s.40B(2) make variations to each of the four awards in relation to those issues. Prior to making a decision whether to do so we are of the view the Commission should hear from those persons and organisations in respect of each issue and any other issues raised by the discussion paper which relate to the four awards and the purposes set out in s.40B(1)(a) to (e). To adopt such a course is within power. The words to be 'heard in relation to the proposed variations' imports the right to be heard in respect of the subject matter and the issues raised in the discussion paper that is to put forward a proposal for consideration acceptance or action. (See Employment Advocate v Williamson [2001] FCA 1164). It is our view it is in power to raise potential award variations including issues for consideration prior to formulating actual variations. The consequence of the Chamber's argument, if accepted is that the Commission is required to put forth actual variations rather than proposed variations. To construe s.40B(2) in the way contended by the Chamber could pre-empt their right to be heard under s.40B(2) if the Commission is required to draft proposed amendments prior to hearing from the Chamber and the parties to the awards and the other persons and organisations mentioned in s.40B(2). This could provide those persons and organisations with a very limited right to be heard.
33 The Commission also notes that the terms of s.49B(2) are similar to those set out in s.50(10) of the Act in that the Commission cannot make an Order under either of the respective provisions until it has afforded the Council, the Chamber, AMMA and the Minister the opportunity to be heard. When considering s.50(10) of the Act, Rowland J in Re Western Australian Industrial Relations Commission; Ex parte Confederation of Western Australian Industry (Inc) stated:
'I should note is passing that the Commission heard submissions from the bodies who attended as to whether or not it should be satisfied that there were good reasons for it to make a General Order. That to me seems an eminently sensible approach although perhaps, surprisingly, the prohibition in section 50(10) is in terms that only apply if the Commission in fact makes a General Order. One could envisage within the strict construction of section 51(2) the Commission, of its own motion, considering the National Wage Decision and deciding there were good reasons not to make a General Order giving effect to it. In these circumstances, as no General Order is made, there is nothing on which section 50(10) could operate. I am not convinced that such was the intention of the legislature.
(6 WAR 555 at 560)'
34 Similarly a decision by the Commission not to vary an award on its own motion would mean that there would be nothing on which s.40B(2) could operate.
35 A principal object of the Act as amended by the Labour Relations Reform Act, 2002 is to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and employees in those enterprises. It is in the spirit of this objective that the Commission has embarked upon the course pursuant to s.40B of the Act. A strictly adversarial approach is not contemplated by s.40B. Section 40B simply contemplates that where the Commission forms a preliminary view that proposed variations may be appropriate, the Commission may hear from the persons and organisations mentioned in s.40B. At the end of the day the Commission in any case may determine not to vary an award.
36 The Commission has the power in s.32 of the Act to endeavour to resolve an industrial matter referred to it by conciliation. Section 32(1) is as follows:
'Where an industrial matter has been referred to the Commission, the Commission shall, unless it is satisfied that the resolution of the matter would not be assisted by so doing, endeavour to resolve the matter by conciliation.'
37 The Chamber has submitted that s.32 does not apply because no industrial matter has been referred to the Commission. It is our view that submission is incorrect. As the Council point out the variation of an award by the Commission is an industrial matter. The Commission has power under s.40B to refer an industrial matter to itself. It is plain that proceedings under s.40B raise an 'industrial matter' within the meaning of s.7 of the Act. This construction of s.40B arises from the Commission’s power not only under s.40B but also from s.23(1) and the duty of members of the Commission under s.19 of the Act. Further, the variation of an award pursuant to s.40B is still a variation to an award. The fact that it is done pursuant to s.40B does not alter this conclusion.
38 The variation of one or more awards pursuant to s.40B has been referred to the Commission on the Commission’s own motion. It has not been referred to the Commission pursuant to s.29 by an application made by a party. It does not have to be in order for the Commission to vary an award pursuant to s.40B. The variation is effectively referred to the Commission by the Commission itself. Accordingly, an industrial matter has been referred to the Commission and s.32 is available to the Commission when it has before it a matter pursuant to s.40B.
39 The Chamber and AMMA also argue that there is no dispute between the parties to the awards and other persons seeking to be heard that is amendable to conciliation. Plainly that is not the case, the Commission is yet formally to hear from the parties to the awards and other persons as to whether there is any dispute in relation to any of the issues raised in the discussion paper. If there is a dispute about any issue, the Commission may conciliate under s.32 (see s.32A of the Act). Further the Commission has a duty to conciliate unless it is satisfied the resolution of the industrial matter would not be assisted by conciliation (s.32(1)). In light of the submissions made by the Chamber and the Council contained in the Registrar's report dated 29 August 2002, this Commission in Court Session would be surprised if there is no dispute about any issue raised in the discussion paper.
40 The Chamber in it’s capacity under s.40B and the Chamber as agent for the organisations that it represents pursuant to warrants to appear and the Council, seek to be joined as parties to the proceedings under s.27(1)(j) of the Act. The Minister seeks leave to be heard as a party or intervenor under s.27(1)(j) or (k) or s.30 of the Act. In light of the observations made by the Industrial Appeal Court in Food Preservers Union of Western Australia, Union of Workers v The Automotive Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch (2001) 81 WAIG 1141 and because of the issues of interpretation going to the Commission’s jurisdiction raised in these proceedings, the Commission in Court Session will grant leave to the Chamber acting in its capacity under s.40B(2) and in it’s capacity as agent for employer organisations and the Council, leave to intervene under s.27(1)(j) of the Act. The Commission in Court Session will also grant the Minister leave to intervene pursuant to s.30 of the Act.
41 The Commission in Court Session intends to progress this matter in the following way:
(a) The parties to the awards are to confer with each other, the Chamber, the Council, AMMA and the Minister, in respect of matters raised in the discussion paper to explore the possibility of reaching a consensus on issues which may be progressed under s.40B with respect to each award.
(b) The Commission in Court Session will convene on 16 March 2004:
(i) to hear any further applications to intervene by organisations who have filed warrants to appear and be heard in these proceedings and who are not parties to the awards; and
(ii) to adjourn into conference to allow the parties and the others referred to in paragraph (a) to carry out the task set out in paragraph (a).
The Commission in Court Session will hear from the parties to the awards, the Chamber, the Council, AMMA, the Minister and any other parties or intervenors who are granted leave to appear and be heard in these proceedings on 17 and 18 March 2004, in relation to the issues raised in the discussion paper. In hearing from the parties and the others the Commission will hear submissions as to the effect of and the requirements of s.40B(1)(a)."

Proceedings following consideration of jurisdictional issues
4 The Commission convened conferences on 30 March 2004 and 6 April 2004 for the parties, the Chamber, the Council, AMMA and the Minister to report back on the status of their negotiations.
5 On 13 and 14 April 2004 after being requested to do so the Commission granted leave to the Chamber, the Council, AMMA, the Minister and the employers who had filed warrants for the Chamber to appear on their behalf to be heard as intervenors. The Commission then heard from the Minister, the Chamber, the Council, and AMMA as to the meaning and effect of s.40B(1) of the Act and the matters raised in pages 1 to 8 of the discussion paper

Consensus position put to CICS by the Minister, the Council, AMMA and the Chamber
6 At the hearing, the Minister, the Council, the AMMA, and the Chamber advised the Commission that they had reached the following agreed position:
"Outlined below is a record of the outcomes of discussions between the AMMA, CCI, the Minister and Unions WA (Section 50 parties) on the perceived requirements of S.40B of the Industrial Relations Act 1979 and questions raised in the Western Australian Industrial Relations Commission’s discussion paper on this issue.
S.40B(1)(a)
It is the view of Section 50 parties that the:
· Commission in Court Session (the Registry staff) prepare schedules that incorporate all available ASNA or state wage increases to be applied to awards. That the Schedules are provided to award parties for review and if agreed, the awards be amended by incorporating the increases. If not agreed the Commission would arbitrate the changes in accordance with the Act.
If this is done and a rate of pay previously below the wage exceeds the current section 51 award minimum wage amount then a phase in for the excessive amount may need to apply in accordance with the current Wage Fixing Principles.
It is the view of Section 50 parties that if this is done, in most incidences it should ensure there is no wages in an award less than the minimum award wage ordered by the Commission under Section 51.
· Current clause 1B in awards would remain.
· If after applying the above increases, there are awards that do not meet this test, the parties may consider whether the award is still needed or relevant or whether it should be cancelled. If it is still a relevant award then the parties should consider means of fixing the wages that are still below the s51 minimum.
· Where rates of pay do not attain the level of the award minimum wage, the Commission should direct parties to confer, and arbitrate where necessary, on an expeditious process of MRAs, the use of the work value principle, and other processes, to attain the level of the award minimum wage.
· As is currently provided for in the Commission’s Statement of Principles, MRAs are still available to a party to pursue.
S.40B(1)(b)
No agreement was reached on the manner in which the Commission and award parties should ensure that an award does not contain conditions of employment that are less favourable than those provided by the MCE Act.
S.40B(1)(c)
It is agreed that:
· Pay equity is not a matter appropriately dealt with under S.40B(1)(c)
· Obvious provisions that are clearly directly discriminatory should be changed e.g.
- Gender neutral language
- Where award directs work practices that are discriminatory should be changed.
In progressing this matter it is the view of Section 50 parties that Commission staff prepare schedules of proposed amendments addressing these issues and forward them to award parties for review.
· Indirect discrimination needs greater consideration at a later time and is not part of the award review process in these proceedings. However, if an award party brings to the attention of the Commission an award matter that is potentially indirectly discriminatory, then the Commission should deal with it in accordance with the provisions of the Act.
S.40B(1)(d)
This can be seen as a matter that falls into two areas-;
1. Plainly obvious provisions such as reference to Acts, training schemes, dates, transition provisions, No reduction clauses etc (see discussion paper) and spelling mistakes.
In progressing this matter it is the view of Section 50 parties that Commission staff prepare schedules of proposed amendments addressing these issues and forward them to award parties for review.
If agreed the awards would be amended to reflect the changes. If not agreed the Commission would arbitrate the changes in accordance with the provisions of the Act.
2. In addition to the above, a party may raise a matter that it believes is also obsolete or needs updating. This would then be for the parties to negotiate, conciliate or arbitrate
While recognising that there will be other matters that may be raised as being obsolete or need updating, these would need to be matters for the parties and need to be considered in the context of the industry or occupational group as to whether it is obsolete or needs updating.
In respect to matters under 2, whether provisions are in need of updating is a matter for the parties to decide.
When awards come before the Commission in the aspect of issues raised in one above, the provisions of s.40B should be drawn to the attention of the parties, and their views be sought in respect of paragraphs (d). In the absence of a dispute between the parties to an award in respect of these matters the Commission should not embark on an amendment process, save where the parties agree on amendments.
Section 40B(1)(e)
It is agreed that the scope of this provision is potentially broad. An important consideration in its application is the view of the award parties (and other employers bound by the award) on what is required for the 'award to be consistent with the facilitation of the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprise'
There is no further agreement on the meaning and effect of paragraph (e).
Discussion paper questions
(b)(i) Right to refuse unreasonable overtime No agreement reached on this.
The question of whether the Test Case on hours is a s.40(B) matter directly is not agreed.
It is acknowledged that if a party made a s.40 application it could be joined to a s.40B matter and dealt with in accordance with Act and Principles.
It is not agreed that it would fall within any one of s.40B(1)(a)-(e).
(b)(ii) (iii) Explicit rights for employees to accommodate family responsibilities, including rostering arrangements
First part an (e) or (d) matter
Family responsibility link is a (1)(c) issue and see response to (1)(c)
(b)(iv) Shift penalties to be removed?
It is up to the parties to raise this matter and then negotiate, conciliate and arbitrate in accordance with the Act. Whether the provisions are obsolete or need updating or fall under (d) and/or (e) would need to be considered in the context of the industry or occupational group involved.
(b)(v) Redundancy and introduction to change clauses
It is agreed that a consideration of redundancy provisions additional to the Minimum Conditions of Employment Act provisions (dealt with above in respect of paragraph (b)) should not form a part of these proceedings.
(b)(vi) What Structural Efficiency and enterprise bargaining Initiatives should be reflected in awards? It is agreed that the matters listed are potentially allowable under (d) and (e). However, it is a matter for award parties and the Commission if arbitration is required, to determine. However, industrial agreement matters as such should be considered in the context of S.40A.
(c) Integration of Minimum Conditions of Employment Act in awards See s.40B(1)(b) – no agreement
(d) Acts Amendment (Equality of Status) Act 2003 Agreed as part of (1)(d) – agreed
(e) Sick Leave for family members See s.40B(1)(b) – not agreed
(f) Scope of Application clauses in awards Agreed that this is a (d) issue, provided the updating does not change the scope one way or another i.e. increase or decrease or change coverage.
(g) Standard clauses. No Agreement could be reached on this issue
(h) Steps by Commission to ensure s.40B(1) obligations fulfilled. See all other responses
(i) Steps by Commission to ensure s.40B(1)(c) obligations fulfilled See s.40B(1)(c)
Approach
No Agreement reached on what mechanism the Commission should use to implement the above agreed issues."

The Minister's Submissions
Minimum wage rates in awards-s.40B(1)(a)
7 Section 40B(1)(a) provides that the Commission may vary an award to ensure that the award does not contain wages less than the minimum award wage. The minimum award wage is set each year under the s.51 State Wage Case process. The meaning of s.40B(1)(a) appears unequivocal. The words “does not contain” wages that are less than that held in principle 9 and clause 1B of each State Wage Case order (an order under s.51 is issued each year) of the Commission under s.51. The merit of undertaking a process under s.40B(1)(a) is obvious. If awards are true to Principle 1, and that is to represent a “safety net” for employees in West Australia, then having rates of pay that are less than the award minimum wage in an award is misleading to small business and employees. At the very least, an employer should be able to expect that the wages clause in their award is legally correct. The Minister agrees to the process set down in the agreed position document that is the Registry staff prepare schedules that incorporate all available safety net and state wage increases into awards that are deficient when compared to the award minimum wage. If this process still does not result in parity with the award minimum wage, then minimum rates adjustment and other processes need to be applied to attain that figure. The Minister emphasises that in such cases the Commission should direct the parties to confer, and if necessary arbitrate where this is not done expeditiously or the parties fail to actively engage in the process. To meet the requirements of s.40B(1)(a) the award minimum wage must be attained at the end of this process.
8 The Minister recommends that the process above is adopted by the Commission in Court Session. This Commission can provide common guidance for parties in future s.40B proceedings on how to amend awards for deficiencies in the rates of pay when compared to the award minimum wage
Award conditions less favourable than minimum conditions-s.40B(1)(b)
9 S.40B(1)(b) provides the Commission may vary an award to ensure that the award does not contain conditions of employment that are less favourable than the minimum conditions. The State Solicitor’s Office has advised that a plain, objective and literal meaning should be applied to s.40B(1)(b). The relevant term is examined in the context of the award and compared with the minimum condition. If the term is overall, on an objective assessment, of less benefit than the minimum condition it will be held to be less favourable. The benefit needs to be primarily considered in monetary sense where that is possible, but also in terms of the amenity that it provides employees.
10 The Minister recommends that a plain, objective and literal interpretation be applied to what is less favourable than the Minimum Conditions of Employment Act 1993 ("the MCE Act").
11 What amendments should be made to award provisions that are inconsistent with the MCE Act? Should these MCE Act provisions be:
(a) replicated;
(b) referred to in the award; or
(c) be inserted into the award where award provision is inconsistent?
12 It is not necessary that the minimum conditions be replicated word for word, but award provisions must not be less favourable than the MCE Act, and should be updated accordingly. It will be more efficient for all parties that the award contains the current standard for all conditions of employment. Cross-referencing in the award to the MCE Act complicates matters. A line-by-line, clause-by-clause examination should occur across all award entitlements that are held to be minimum conditions under the MCE Act. On the grounds of equity and consistency, each individual MCE Act entitlement should be subject to specific Commission in Court Session guidance, including the provision of model approaches to amendment, and model sentences wherever appropriate. The Minister says to set the MCE Act minimum conditions in an award would not expose employers to double jeopardy as these conditions are already implied into awards. The Minister recommends that the Commission in Court Session issue specific guidance to Commissioners and the parties on how to vary awards to ensure that award provisions are not less favourable than the MCE Act.
13 In relation to specific MCE Act issues the Minister makes the following submissions. The MCE Act minimum wage is held to be a “minimum condition” as defined by s.3 – “ a rate of pay prescribed by this Act”, and is therefore within scope of s.40B(1)(b). “Less favourable” is clear – a lesser rate of pay. Consistent with Government policy on minimum wages, the Minister would suggest the logical solution is to continue to equalise the MCE Act minimum wage with the award minimum wage on an ongoing basis. This will remove the need to do anything other than use the Clause 1B. If the MCE Act minimum wage was ever higher than the award minimum wage issued via clause 1B, then the rates of pay in the award would have to be varied to incorporate the higher rate. This could be modelled on a similar basis to the clause 1B. The Minister recommends the Commission in Court Session issue specific guidance to parties in future s.40B proceedings on how to amend awards for deficiencies in the rates of pay when compared to the MCE Act minimum wage.
14 Some awards do not provide entitlements that are minimum conditions. The most common example is the new MCE Act entitlement to Carer’s Leave.
15 All employees are now entitled to use up to five days of their own current year sick leave entitlements to care for immediate family members etc. as outlined in the MCE Act. Some awards do not have this entitlement at all, and in some awards employees only have access to sick leave accrued from a previous year. The new carers’ leave standard in the MCE Act should be incorporated into all awards. Any existing more favourable award provisions such as an entitlement to carer’s leave for extended family members could be retained in the award.
16 The Minister recommends that awards be amended to include all minimum conditions. On the grounds of equity and consistency the Commission in Court Session should issue specific guidance to Commissioners and individual award parties on how to examine award clauses to ensure that they provide for all minimum conditions, including carer’s leave.
Where there are provisions in the award that are less favourable than the Minimum Conditions, firstly, each award provision must be reviewed separately by the Commission to determine whether it contains provisions that are less favourable than those provided by the MCE Act. Award clauses may be less favourable than the MCE Act by:
(a) excluding some employees from accessing a condition of employment, which they are otherwise entitled to under the MCE Act;
(b) providing a benefit or entitlement that is less favourable than the MCE Act; or
(c) imposing conditions or restrictions on employees accessing an entitlement or benefit, where no such conditions or restrictions exist in the MCE Act (manner of use).
17 The wording of award clauses needs to be determined on a line-by-line basis, to determine if any condition of employment contained in an award is less favourable than the MCE Act.
18 The Minister recommends that awards be amended to ensure no entitlements are less favourable than the minimum conditions. On the grounds of equity and consistency the Commission in Court Session should issue specific guidance to Commissioners and individual award parties on how to examine Award clauses to ensure compliance with the minimum conditions. For example Public Holidays for part time employees. The MCE Act stipulates that part-time employees must be paid for a public holiday if they are not required to work on that day solely because it is a public holiday. Certain awards may be less favourable than this, by prescribing a lesser entitlement or by preventing employees who are absent without cause on the day before or after a public holiday from being paid for that public holiday. An example is the Dairy Factory Workers Award 1982 clause 32.
19 Bereavement leave clauses should be reviewed to ensure that:
(a) employees can access bereavement leave on the death of a “de facto partner” and “any other person who, immediately before that person’s death, lived with the employee as a member of the employee’s family” (many awards omit these categories);
(b) the death of a person does not need to be “within Australia”;
(c) employees do not have to be attending or arranging a funeral to be entitled to bereavement leave;
(d) casual employees are not excluded from bereavement leave; and
(e) the two days paid leave need not be consecutive.
20 Bereavement leave clauses should be updated to be not less favourable than the MCE Act in any respect.
21 Maternity Leave clauses and most Parental Leave clauses in State awards need to be updated to ensure that an employee may take parental leave on the birth or adoption of a child to the employee or the employee’s spouse or de facto partner, in accordance with the MCE Act. The conditions for taking leave should also not be less favourable than the MCE Act.
22 A “condition for leave” is held to be a minimum condition under the MCE Act. Therefore an issue arises where the manner of accrual of annual leave and sick leave in an award is inconsistent with the minimum conditions. The weekly accrual rate prescribed in the MCE Act for sick leave is not a controversial issue. The majority of awards provide for a similar entitlement of 76 hours and is either accrued on a monthly or weekly basis. Likewise, the weekly accrual rate prescribed in the MCE Act for annual leave is not a controversial issue. The majority of awards examined provide for a similar or greater entitlement that is either accrued on a weekly or monthly basis. However, most awards do not clearly state this and is often in a clause that discusses annual leave on termination. This is not an issue for Children’s Services (Private) Award and the Shop and Warehouse (Wholesale and Retail Establishments) State Award which are identical to MCE Act. The Metal Trades (General) Award and Cleaners and Caretakers Award have a similar provision but it is not clear. The Minister provided an example of a proposed amendment to the Cleaners and Caretakers’ Award.
23 It is recommended by the Minister that awards be amended to provide for a leave accrual system that is not less favourable than stated in the MCE Act. The Commission in Court Session can provide specific guidance to parties in future s.40B proceedings on how to amend awards for deficiencies when compared to the MCE Act.
24 Section 25(1) of the MCE Act states that:
"Where an employer and employee have not agreed when the employee is to take his or her annual leave, subject to subsection (2), the employer is not to refuse the employee taking, at anytime suitable to the employee, any period of annual leave the entitlement to which accrued more than 12 months before that time."
25 The MCE Act defines a minimum condition of employment to include:
(a) A condition for leave prescribed by this Act, and
(b) The use, in a manner prescribed of a condition for leave prescribed by this Act.
26 The entitlement prescribed in s 25 of the MCE Act is not contained in awards but arguably provides a benefit to employees. Many awards, however, do allow an employer to direct an employee to take leave at a particular time, whether that is to observe a Christmas close down or suit organisational/production needs. These two provisions are not mutually exclusive and can operate concurrently. The MCE Act is silent on the issue of an employer directing an employee to take leave at a particular time. The Minister has obtained advice from the State Solicitors Office which advice suggests that this practice is legitimate within the scope of certain awards.
27 It is recommended by the Minister that awards be amended to provide for a leave system that is not less favourable than s 25(1) of the MCE Act. The Commission in Court Session can provide specific guidance to parties in future s.40B proceedings on how to amend awards for such deficiencies when compared to the MCE Act.
28 Section 8 of the MCE Act allows for the limited contracting out of annual leave conditions for those employees accessing such leave solely through the minimum conditions. An employer and employee may agree that the employee may forgo up to 50% of his or her entitlement to annual leave if given an equivalent benefit in lieu and agreed in writing. Many awards may not provide for the limited “cashing out” of annual leave but it is generally held that the “cashing out” in itself does not displace the provisions of an award. However, such an arrangement could be considered via s.40B(1)(e).
29 The Minister recommends that such arrangements in awards are best considered by the award parties.
30 Section 22 of the MCE Act requires than an employee claiming an entitlement to sick leave or carer’s leave is to:
“provide to the employer evidence that would satisfy a reasonable person of the entitlement”
31 In order to access a sick leave entitlement, many awards require a certificate from a medical practitioner with respect to absences of two days or more. The requirement to produce a certificate from a medical practitioner is arguably less favourable than the burden of evidence that would satisfy a reasonable person. There is also other obvious evidence that would satisfy a reasonable person, such as appearance and behaviour. Furthermore, the potential difficulty of securing an appointment with a medical practitioner to obtain such proof at short notice is an issue.
32 The Minister recommends that the requirement for the employee to provide the employer with “evidence that would satisfy a reasonable person of the entitlement” to paid sick and/or carer’s leave be considered for insertion into the awards. The Commission in Court Session can provide guidance to parties in future s.40B proceedings on how to amend awards for deficiencies when compared to the MCE Act.
33 If the term “de facto spouse” is used instead of “de facto partner” an award clause will always be less favourable than the MCE Act, and the EO Act. Due to the Acts Amendment (Equality of Status) Act 2003, all West Australian Acts and Regulations now refer to a “de facto partner” or a “de facto relationship”, as these terms are defined in the Interpretation Act 1984 to include same sex and opposite partners. The s 50 parties reached broad agreement on this matter.
34 The Minister recommends that awards should all be updated to replace definitions that are inconsistent with MCE Act, in particular, de facto spouse with de facto partner to ensure all same sex partners have the same entitlements as now required by law. The Commission in Court Session can provide guidance to parties in future s.40B proceedings on how to amend awards for deficiencies when compared to the MCE Act.
Unlawful discrimination-s.40B(1)(c)
35 Section 40B(1)(c) provides the Commission may vary an award to ensure that the award does not contain provisions that discriminate against an employee on any ground that is unlawful under the Equal Opportunity Act 1984 ("the EO Act").
36 Discrimination in work is prohibited under the EO Act on grounds of:
(a) Sex, marital status or pregnancy;
(b) Family responsibility or family status;
(c) Gender history;
(d) Sex or sexual orientation;
(e) Race;
(f) Religious or political conviction;
(g) Impairment;
(h) Age; and
(i) Spent convictions.
37 On face value this means that any provision in an award that directly, or indirectly discriminates on the above grounds may be removed by the Commission under s.40B(1)(c). There are specific “unlawful” sub-provisions under some of the above grounds held in the EO Act. The EO Act should not be replicated, but line-by-line consideration be given to individual award entitlements. The Minister agrees to the process set down in the agreed position.
38 The Minister recommends that awards be considered in light of the EO Act, in terms of direct and indirect indiscrimination. The Commission in Court Session can provide common guidance for parties in future s.40B proceedings on how to amend awards for deficiencies when compared to the EO Act.
39 Do we replicate, refer to, or ensure consistency with, provisions of the Equal Opportunity Act 1984 (EO Act)? Award provisions should be updated to ensure that there is no inconsistency with the objects and legal requirements within the EO Act. The Minister agrees to the process set down in the agreed position document. The Minister recommends that awards are amended on a line by line basis to ensure consistency with the EO Act. The Commission should provide guidance on this matter. What is indirect discrimination in an individual award sense, and how do you deal with it? Indirect discrimination may occur when a rule, practice or policy that appears to be neutral actually has a disproportionate and disadvantageous impact on individuals who share an attribute recognised under the EO Act. The rules or requirements may be expressed or unexpressed but revealed when an adverse effect on a group or individual can be identified. This makes it more problematic to determine. The Minister agrees to the process set out in the s 50 party position document.
40 Examples of indirect discrimination include provisions in which sick leave is not allowed beyond 10 weeks in any one year. The award provisions for no paid sick leave beyond 10 weeks in any one-year could be viewed to indirectly discriminate against older employees, those with an impairment or a difficult pregnancy as they would be disproportionately disadvantaged by this clause. On a practical application for an employee to have accrued 10 weeks sick leave they would need to have worked for the employer for five years without ever taking a sick day. Award provisions should be carefully examined and updated to remove this clause in the awards if necessary. Indirect discrimination can also be raised by limits on casual employment (indirect discrimination on the basis of age and sex?). Limitations on casuals on the basis of age and sex could be in contravention of the EO Act. Casuals could be either young or female.
Obsolete and provisions that need to be updated-s.40B(1)(d)
41 S.40B(1)(d) provides the Commission may vary an award to ensure that the award does not contain conditions that are obsolete or need updating. The New Shorter Oxford English Dictionary defines “obsolete” as “no longer practiced or used, outmoded, out of date”. The Australian Concise Oxford Dictionary defines “obsolete” as “disused, discarded, or antiquated”. The Full Bench of the Australian Industrial Relations Commission in the Award Simplification Decision (1997) 75 IR at 306 (“the Award Simplification Case”) held the word “obsolete” when used in relation an award provision meant it dealt with circumstances which were no longer applicable. The Australian Concise Oxford Dictionary defines “update” to mean “to bring up to date”. The term “or need updating” does not lend itself to a definition, but rather is representative of an infinite number of matters. It is an action arising from any number of reasons that may lead an award to “need updating”. It is not a restrictive term, but is suggestive of a process where each reason for updating is to be considered on merit. The Minister agrees to the process set down in the position document issued by the s 50 parties. The Minister recommends that awards be considered in light of the above interpretation. This Commission in Court Session can provide common guidance for parties in future s.40B proceedings on the breadth of issues that are considered obsolete. This Commission in Court Session could also provide a “checklist” arising from these proceedings that can be used by Commissioners and parties to future s.40B proceedings.
Efficient organisation and performance of work-s.40B(1)(e)
42 Pursuant to s.40B(1)(e) the Commission may vary an award to ensure the award is consistent with the facilitation of efficient organisation and performance of work balanced with fairness to employees. This is clearly a matter for the individual award parties, on an individual award by award basis. The Minister contends that this is a vehicle for the perhaps more interesting aspects of award updating, which falls into two categories, as outlined by the Minister in his debate on this section with the Hon Mrs Edwardes on 21 March 2002, stated:
“The Government has said many times that this is about award modernisation. That has two key aspects. One is to ensure that minimum standards are reasonable, and if some awards have languished they need to be brought up to community standards. The second is the need of industry and particular enterprises in which the general conditions of employment have changed through the use of industrial agreements, and the awards have not kept pace with that. It does not mean that suddenly all these things will change, but it does mean that an engine will be driving the direction of change, and it will be done with the parties able to make representation. The Bill later provides that parties must be advised and must have the opportunity to present a case on the changes that may be put forward. Through that process I hope we will see quite radical change that will serve the interests of all parties.”
43 The Minister recommends that variations to awards via s.40B(1)(e) are best dealt with on an individual award basis. This Commission in Court Session could provide broad guidance and encourage parties to make amendments to awards under s.40B(1)(e).
44 The discussion paper also raises a number of questions.
Language issues
45 Should awards be amended to deal with language issues? For example should awards be amended to deal with spelling mistakes? Most awards contain spelling and/or typographical errors. While undertaking the award updating process, the opportunity should be taken to correct these errors. It would provide no confidence to the readers of the award that the contents have been devised carefully and without ambiguity if the parties have not even amended basic spelling mistakes. The maintenance of standards is an end in itself. The correction of spelling mistakes falls clearly within the scope of s.40B(1)(d), as these errors are an element of awards that could be considered obsolete (i.e. disused) or ‘needs updating’. Should awards be amended to remove gender neutral language? The Minister’s position is that all language in awards should be gender neutral. This is an amendment that is within the scope of s.40B (1)(d) as award provisions which refer to ‘he’ rather than ‘he or she’, or use terms such as tradesman, are obsolete and need updating. It could also be discriminatory under s.40B(1)(c).
46 Should awards be amended to remove or explain jargon? Jargon, and unnecessary use of “legalese” is a matter for the parties to deal with on an individual award basis. The Commission in Court Session could however issue guidance on how to make amendments consistent with the removal of jargon.
47 The Minister recommends that awards must be amended to deal with language issues and where industrial jargon hinders clear expression. This Commission in Court Session could provide common guidance on the approach to be taken.
Standard arrangement clause
48 Should awards have standard arrangement clauses? The Registrar has recently issued a standard arrangement clause that has been replicated in the discussion paper for each of the four awards. The Minister fully supports this format. There remains significant commonality of terms and conditions in awards that easily lends itself to a largely uniform structure. At the very least all awards can be uniformly divided into a series of major sections. It is agreed that the proposed standard arrangement clause will not fit perfectly across all awards. However it is felt that parties to awards should not use this as a means to avoid a comprehensive consideration of their award structure. Significant variations to any standard arrangement clause should be the exception rather than the rule. This is a matter that falls under s.40B(1)(d) as old arrangement clauses can be said to be obsolete, outmoded and antiquated.
49 The Minister recommends that the Standard Arrangement Clause proposed by the Registrar be adopted across all awards of this Commission. The Commission in Court Session should issue common guidance to Commissioners and parties on how to implement the Standard Arrangement Clause. Standard titles are a logical consequence of having a standard arrangement clause.
Standard clauses in awards
50 Should awards contain standard contents within clauses? This is dependent on the type of entitlement contained in the clause. Undoubtedly some common entitlements, such as long service leave, anti-discrimination provisions, certain elements of the minimum conditions, records, superannuation, termination etc lend themselves to a common set of words. A second “tier” of award clauses would appropriately have common approaches to amendments when it came to award updating. Some of the more complex minimum conditions “inconsistencies” could be dealt with by the use of partial clauses, or a suite of agreed sentences that can fit into those elements of the original award clause that are more favourable than the minimum conditions. An example would be a model sentence on how to change monthly accrual of annual leave to weekly accrual to be consistent with the MCE Act. A third tier would be those clauses that are clearly a matter for the award parties to resolve on an individual basis. Some matters do not lend themselves to common approaches, for example industry specific allowances.
Appendices and schedules
51 Should the contents of appendices, schedules etc be in the body of the award? The experience of the Department of Consumer and Employment Protection Wageline is that reading awards with appendices and schedules presents certain problems not only for the call centre operators, but also for employers and employees. A significant amount of time is spent locating a clause within an award only to find that the substance is referred to in at least one, or sometimes several attached schedules. Such provisions would fall under s.40B(1)(d) as being obsolete, outmoded and outdated.
52 The Minister recommends that awards should be carefully examined, and where it is appropriate varied to incorporate important information into the body of the award (for example where it applies to all employees and represents a major condition), and subsidiary information retained in appropriately referenced and correctly formulated schedules. The Commission in Court Session could issue common guidance on how to achieve this aim as part of this decision.
Test Case Standards
53 Should Test Case standards / common conditions that are not in State awards generally, or not in the individual State award being reviewed, be inserted? Examples include redundancy clauses.
54 On face value it would appear that the only scope for the introduction of such a standard provision would be through s.40B(1)(d) “to ensure that the award does not contain provisions that are obsolete or need updating”. The incorporation of redundancy provisions into State awards that currently contain no such provisions appears to be beyond the scope of the provisions of s.40B(1). The appropriate vehicle for the incorporation of such standards in awards with no redundancy provisions would appear to be s.40 of the Act in accordance with the current Principles. Whilst the Minister would likely be sympathetic to the provision of more consistent system of redundancy entitlements for employees in West Australia, s.40B(1) is not the appropriate vehicle for achieving this outcome. However, where the awards do not contain provisions as to changes with significant effect and redundancy as per the MCE Act, then it may be appropriate to update the awards in accordance with s.40B(1)(b).
55 Should the Federal Reasonable Hours Test Case be inserted into State awards? The four awards in question, and State awards in general, do not currently contain provisions that go to the specific elements provided in the AIRC’s Working Hours Case decision. For similar reasons as provided in the discussion on redundancy above, s.40B is not considered the appropriate vehicle for introducing reasonable hour's provisions to the State award system. The appropriate vehicle for the incorporation of such standards would appear to be s.40 of the Act in accordance with the current Principles.
56 The Minister recommends the incorporation of test case standards into an award that does not already contain such an entitlement should not occur through s.40B. However existing entitlements could potentially be updated by consent of the parties.
Variation of wage rates and classifications
57 Should wage rates and wage classifications that are not already in the award be inserted. The absence of these wage rates could theoretically be hindering employment in the industry. For example traineeship rates? The Government has a policy that all traineeship rates of pay should move towards the National Training Wage Award ("the NTWA") rates of pay. As a general approach awards that contain existing traineeship provisions should be amended to include up to date rates and accurate and correct scope and application provisions. This should be a priority award updating concern for all parties, as many awards provisions are outdated, irrelevant and confusing for employers. The Government would encourage parties to look firstly at the ability to incorporate the nationally accepted benchmark rate – the NTWA. No party has disputed that traineeship clauses are not part of a modern award. The presence of traineeship clauses represent a “community standard”. This is a matter that falls under s.40B(1)(d). For those awards that do not have any traineeship provisions an investigation should occur to ascertain whether there is a traineeship relevant to the industry or occupation type, and whether the wage system in place supports trainees. In such circumstances trainees are paid the full adult and junior employee rates, which potentially is a disincentive to employing trainees, although in some industries this may be the excepted standard. Once this examination has occurred, where necessary parties should consider the insertion of agreed trainee rates as a matter of priority. The Minister recommends that where necessary, the updating of trainee clauses be considered a priority in award updating and the Commission in Court Session provide common guidance to Commissioners and individual award parties.
Supported Wage System
58 Should Supported Wage System provisions be inserted into awards? The Government is supportive of the insertion of the Standard Supported Wage System clause in WA State awards. The standard clause is the nationally formulated and accepted benchmark for this specific type of employee. It represents the “safety net” for these particular employees. Generally, aged and infirm workers clauses are obsolete. However given the sensitivity and importance of this matter it would more appropriately achieved via a General Order, outside of these award updating hearings – where all the important issues would be properly examined and discussed, or via individual award amendments if parties choose to insert such a provision into their awards. The Minister recommends that Supported Wage Scheme clauses be considered outside of award updating processes at this time.
Modes of Employment including part time employment
59 Should absent “modes of employment” be added to an award? The Commission in Court Session could provide general guidance to individual award parties on how to progress such matters, some via s.40B(1)(e). For example part time employment clauses. Part-time employment is a mode of employment that is not available in some awards. The inclusion of a part time clause comes within the scope of s.40B(1)(c), as it is a matter that a failure to provide part time employment may discriminate against an employee on a ground that is unlawful under the EO Act, Mayer v Australian Nuclear Science and Technology Organisation 2002 FMCA 209. To avoid discrimination on the grounds of family responsibility, employers must reasonably consider and, wherever possible, accommodate an employee's request to work part-time because of their family responsibilities. The Minister’s position is that while it is preferable that all awards contain a part time provision, this is a matter that should be negotiated between the parties to an individual award. The Minister recommends that part time provisions be included in all awards, as a failure to provide part time work it could address indirect discrimination. The Commission in Court Session could provide general guidance.
60 Should casual employment provisions be inserted into awards? Casual employment is a mode of employment that is not available in some awards. The Minister recommends the Government’s position is that casual employment is a matter for negotiation between the parties on an individual award by award basis.
61 Should probationary requirements be inserted into awards? The Minister’s position is that the inclusion of probationary clauses in awards is not directly within the scope of s.40B(1)(a) – (d) but could form the deliberations of individual parties undertaking award updating via s.40B(1)(e).
Flexibility in working arrangements
62 Should “flexibilities” be added to an award? For example job sharing and flexible hours and rostering etc. The Minister’s position is that while it is preferable that all awards contain flexible working arrangements, these are matters that should be negotiated between the parties to an individual award. An appropriate vehicle would be s.40B(1)(e). However it is important that parties consider such amendments as potentially being within the scope of s.40B (1)(c), as an EO Act issue.
CICS Guidelines
63 The Minister says the Commission in Court Session can provide general guidance to parties in future s.40B proceedings on how to examine each award to ensure that it provides the appropriate flexibility under s.40B(1) (c) or (e).
Shift penalties and allowances
64 Should shift penalties and allowance regimes be amended or deleted? The updating of these entitlements does not readily fall within the scope of s.40B(1)(a) – (d). The Minister would encourage individual award parties to consider such amendments via s.40B(1)(e).
Award provisions that are inconsistent with the IR Act
65 What amendments should be made to awards with provisions that are inconsistent with the Industrial Relations Act 1979? For example:
(a) Time and Wages Records; and
(b) Right of Entry provisions.
66 The Labour Relations Reform Act 2002 amended the time and wage records and right of entry provisions in the Act. Many awards now contain provisions that are inconsistent with the requirements of the Act, and are therefore out of date. The amendment of such award provisions falls within the scope of s.40(1)(d) of the Act, and should be included as part of the award updating process. They are now obsolete and outdated. Clause 17 of the Children’s Services (Private) Award provides an example.
67 The Minister recommends that provisions that are outdated and inconsistent with the Act be amended accordingly. The Commission in Court Session could issue specific guidance to Commissioners and individual award parties on how to achieve this amendment as part of this decision.
Award Provisions that are inconsistent with federal legislation
68 What amendments should be made to awards with provisions that are inconsistent with conditions contained in, and manner of use of, federal legislation? For example: Notice of termination under the Workplace Relations Act 1996 (“the WR Act”). The WR Act establishes minimum notice of termination standards that must be followed by all employers throughout Australia. State awards need to meet these minimum standards, or else they will be inconsistent with Federal legislative requirements. This would appear to clearly fall within s.40B(1)(d) of the Act, as being obsolete and outdated. The Minister recommends the minimum notice of termination provisions in the WR Act applying to employers should be inserted into state awards, where an award prescribes a lesser entitlement for employees. The Commission in Court Session could issue specific guidance to Commissioners and individual award parties on how to achieve this amendment as part of this decision.
69 Many state awards contain superannuation clauses that are out-of-date, refer to obsolete Acts and standards, and only require employers to contribute 3% superannuation. These clauses should ideally be updated to reflect the requirements of the Superannuation Guarantee Act 1992 ("the SGA Act) (i.e. 9% superannuation, who is entitled to receive superannuation, when it is payable). Choice of fund provisions would also need to be included (s.48B). The Minister recommends that awards be amended to reflect the current requirements of the SGA Act. The Commission in Court Session could issue specific guidance to Commissioners and individual award parties on how to achieve this amendment as part of this decision.
Scope clauses
70 What amendments should be made to inaccurate or out of date award scope clauses? It would be highly desirable if award scope clauses describe the industry or occupation they apply to without referring to the list of respondents. This would make award coverage easier to understand, and would correct some of the unusual anomalies that occur with State awards. If scope clauses must continue to refer to the list of respondents it is important that the list is updated via s.40B(1)(d). The Minister’s views are also reflected in the agreed position document. It is recognised by the Minister that this is an important issue that has implications across individual industries. The Minister would therefore suggest that the Commission in Court Session could provide broad guidance to individual parties on issues to be considered in updating awards, such as amending problematic scope clauses by consent, on a purely individual award by award basis.
The Minimum Rates Adjustment process
71 Should award wage rates above the minimum wage(s) be amended? For example a Minimum Rates Adjustment process? This discussion relates to updating rates of pay outside of the scope of s.40B(1)(a). Whilst there is an argument that dealing with “outdated” award general rates of pay, or rates of pay that are outdated relative to established benchmarks, represents a process arising from s.40B, it is not something that can be achieved by a common across awards approach. The Minister is sympathetic to those employees in low paid classifications, and would welcome an examination of rates of pay for such employees in the context of greater fairness and equal remuneration. However there are existing mechanisms to achieve such outcomes, such as Minimum Rates Adjustment processes and other provisions consistent with the Wage Fixing Principles. Such processes would provide a much more definitive examination of the individual wage rates. The removal of rates in the award that are less than the minimum wage may spur award parties to deal with out of date rates using such a process on an individual award by award basis. The Minister says that adjustments to rates of pay outside the operation of s.40B(1)(a) and (b) are matters better progressed through s.40B(1)(e) or existing approaches consistent with the Wage Fixing Principles.
References to out of date legislation, codes etc
72 Should awards be amended to deal with reference to out of date legislation, codes, definitions and policies? Section 40(b)(1)(d) provides the Commission with the authority to vary an award to ensure the award does not contain provisions that are obsolete or need updating. References to legislation, codes, policies, etc., that are out of date would meet the definition of obsolete or in need of updating. Any necessary references to legislation should be updated to facilitate the efficient and effective operation and use of the awards. The Minister recommends that in accordance with s.40(b)(1)(d), references to out of date legislation, codes and policies be removed from awards, and updated to reflect current legislation, codes and policies if appropriate. The Commission in Court Session should provide specific guidance to Commissioners and award parties on amending such deficiencies. Should awards be amended to remove no reduction clauses? Section 40(b)(1)(d) provides the Commission authority to vary an award to ensure the award does not contain provisions that are obsolete or need updating. The Cleaners and Caretakers, Children’s Services Private, and Shop and Warehouse (Wholesale and Retail Establishments) Awards all contain “No Reduction” clauses that are out of date, rendering them obsolete. Furthermore, the Children’s Services Private and Shop and Warehouse (Wholesale and Retail Establishments) Awards contain out of date and therefore obsolete “Liberty to Apply” clauses. It is recommended by the Minister that in accordance with s.40(b)(1)(d) of the Act, out of date and therefore obsolete clauses including “No Reduction” and “Liberty to apply” be removed from awards. The Commission in Court Session should provide guidance to Commissioners and award parties on amending such deficiencies.
Dispute resolution clauses
73 Should the Commission delete specific dispute resolution clauses in individual clauses, rather than a single dispute resolution in the award? Section 48A requires that awards and agreements to make provision for resolution of disputes, this takes the form of dispute resolution clauses. There is some discussion that these current clauses could be improved as part of the award updating process by removing references to out of date legislation. Furthermore, the Council has proposed the insertion of a standard dispute resolution procedure clause. Section 40(b)(1)(d) provides the Commission authority to vary an award to ensure the award does not contain provisions that are obsolete or need updating. In addition to the required dispute resolution clause, typically found in award appendices, some awards also include references to dispute resolution within other clauses. For example the Metal Trades Awards includes mention of dispute resolution within clauses relating to hours, redundancy and training. The Minister says it is not clear that the removal of these additional references to dispute resolution is appropriate as a part of the award updating process. While these references may be repetitive or even superfluous, they arguably do not meet the definition of obsolete or in need of updating. Parties should however be encouraged to actively consider such provisions.
Methods of Calculating Allowances
74 Should awards be amended to outline specific methods for calculating allowances? The maintenance of allowances in awards is problematic in practice. In a perfect world the clause would be robust enough in construction to enable parties to be able to understand what factors external to the award would lead to an increase in the allowance (for example CPI). At the very least parties should attempt to simplify allowance provisions, and ensure the maximum degree of clarity. The Minister says this issue is best left to award parties to determine via s.40B(1)(e).
The Council’s Submissions
CICS Guidelines
75 The Council made a strong submission that it sees the award updating process under s.40B as vital in ensuring the continuing integrity of the award system. The Council acknowledges that during the last decade awards have not been kept up to date and although there are several areas under s.40B that can be commonly amended in all awards, there needs to be a recognition of the differences between awards. Accordingly, award updating should occur on an award by award basis. The Council says the award review power under s.40B cannot be compared to the award simplification process under the WR Act. The Council, like the Minister, also supports the concept of guidelines although it recognises that guidelines set by the Commission in Court Session will lend themselves more appropriately to certain sub paragraphs of s.40B(1) than to others.
Whether power under s.40B discretionary
76 The Council says that the terms of s.40B(1) of the Act confer a discretionary power which must be exercised according to equity, good conscience and substantial merits of the case without regard to technicality or legal forms. Further, that any variation to an award needs to be in accordance with the objects of the Act.
Minimum wage rates in awards-s.40B(1)(a)
77 The Council advised the Commission in Court Session that it supports the agreed position document. In particular it supports the process set out in that document in respect of s.40B(1)(a). The Council contends that s.40B(1) should be approached on an award by award basis in a way that maintains wage relativities. The Council would expect that awards that have wages less than the minimum award wage should be able to be resolved by award parties through conciliation.
Award conditions less favourable than minimum conditions-s.40B(1)(b)
78 As to s.40B(1)(b), it is the Council’s position that the Commission should ensure that the award provisions reflect MCE Act provisions. Many awards have already been updated in a comprehensive way to include the provisions of the MCE Act and experience has shown that many amendments to incorporate the minimum conditions can be dealt with in a way that is simple. The Council says that awards need to contain as much information that is reasonable and relevant to working conditions. If the Commission was merely to remove less favourable clauses from awards, awards will become patchwork documents and the task of determining what wages and conditions need to apply for a particular worker would be confusing and difficult if employers and employees have to search and read a number of different documents. The Council says that the Commission is empowered to incorporate the provisions of the MCE Act into awards under s.40B(1)(d) and (e). It is clear from the Minister’s second reading speech, when introducing the Labour Relations Bill Reform to Parliament, that Parliament intended awards to be updated to reflect minimum conditions under s.40(1)(b). The Council, however, argues that there is no need to incorporate the provisions of s.8 of the MCE Act in awards which enable employers and employees to enter into agreements to contract out of ten days’ annual leave a year. The Council argues that s.8 is not intended to create an entitlement to contract out of annual leave but rather provide a limitation if such a right already exists in an award or an agreement.
79 The Council, like the Minister, made a submission that the provisions of the MCE Act are reflected in an award where there is no potential for an employer to be found in breach of both the award and the MCE Act.
Unlawful discrimination-s.40B(1)(c)
80 As to s.40B(1)(c) of the Act the Council also supports the agreed position. As to indirect discrimination the Council says this issue will require further examination by the Commission. In regard to the model discrimination clause raised in the discussion paper the Council has no objection to such a clause but it is of the view that the effects of such a clause should first be considered in more depth and understood by all parties prior to the implementation of such a clause in an award. Although the Council agrees that pay equity cannot be raised under s.40B(1), pay equity continues to remain an issue of great importance for the Council. They are of the opinion that s.40B is too limited for a proper contemplation of pay equity issues.
Obsolete and provisions that need to be updated-s.40B(1)(d)and Supported Wage System
81 In respect of s.40B(1)(d) of the Act, the Council agrees with the submissions made on behalf of the Minister in respect of the definition of “obsolete”. The Council says that matters that are obsolete are most appropriately raised and should be dealt with by award parties on an award by award basis. As to updating, the Council is of the view that if there are inconsistencies in awards provisions in matters such as “right of entry”, “keeping of and access to employment records” and termination of employment under s.170(CM) of the WR Act, these award provisions should be amended to reflect the statutory rights and obligations as part of the updating process. Further, the Council supports under rate workers clauses being replaced with a standard Supported Wage System award clause.
Efficient organisation and performance of work-s.40B(1)(e)
82 As to s.40B(1)(e) of the Act, the Council says that this subparagraph is possibly the most contentious. There is no agreement between the parties as to what the provision means or how the Commission should apply the sub section to the award updating process. The Council put a similar submission to the Minister. The Council is of the view that the award parties’ views are vital. The parties to an award are in the best position to know what aspects of an award are not working, or need to be amended to ensure the award is operating in a productive and fair way. Further, that the Commission’s role under s.40B(1)(e) necessitates or requires the Commission to instigate its conciliation and arbitration role. Any review by the Commission under s.40B(1)(e) of the Act should start from the proposition that longstanding award provisions should be considered fair and only be altered after close examination of the terms of the clause, its history and its use.
Test Case Standards
83 In relation to reasonable working hours, it is the Council’s position that the Commission in Court Session can adopt the result of the Federal Working Hour’s Test Case in circumstances where an award already has a provision relating to working reasonable overtime. For example, clause 14.1.3.1 of the Metal Trades (General) Award provides:
“An employer may require an employee to work reasonable overtime at overtime rates and such employees shall work overtime in accordance with such requirement.”
84 The Council suggests that the adoption of the test case provision could be applied to update the clause to clarify the circumstances of what is regarded as “reasonable” and “unreasonable” overtime. Whilst the Council supports the position that all awards should contain standard severance pay conditions which are reflected in the Federal test cases, the Council is of the view that consideration of redundancy provisions in addition to the provisions of the MCE Act should not form part of these proceedings, although there may be circumstances where a consideration of a redundancy provision is raised when updating an award pursuant to s.40B(1)(d).
Flexibility in working arrangements
85 As to whether provision for part time work, job sharing and flexibility in working hours, and rostering arrangements to meet family responsibilities should be inserted into awards, the Council is of the view that such measures are matters which should be left to award parties to consider. The Council holds very strong views that shift penalties are still relevant in awards and any review of penalties should be limited to the means of providing such penalties.
Structural efficiency and enterprise bargaining initiatives
86 As to the issues raised in the discussion paper about structural efficiency and enterprise bargaining, the Council says that the Commission in Court Session should be cautious about drawing any direct comparison with the operation of the structural efficiency principle under s.40B(1)(e). As to the implementation of enterprise bargaining initiatives, the Council contends that s.40A of the Act limits the operation of s.40B and that any incorporation of enterprise bargaining provisions must be implemented under s.40A through an application by the parties to an award. The Council opposes facilitative clauses of the kind proposed by the Chamber and says that such clauses “clash” with the objects and scheme of the Act.
Scope clauses
87 As to the issue raised by the Commission in Court Session in respect of scope clauses, the Council agrees that this is an issue that falls under s.40B(1)(d) as an updating matter, which should be dealt with by award parties. To preserve the integrity of the common rule system, the Commission and award parties should proceed cautiously when reviewing scope clauses. The Council also says that amendments to scope clauses can also be progressed by award parties through s.40.
Standard arrangement clause
88 The Council does not support the implementation of the standard arrangement clause prepared by the Registrar and says that each award has its own history. However, the Council says it does not reject out of hand a standard arrangement clause but they do not see the implementation of a standard arrangement clause as a priority. The Council points out that some unions in award updating proceedings have already re-arranged their clauses to make them more readable. The Council supports unions who are doing that. However, the Council says that re-arranging award clauses is a time consuming task, which raises difficulties for unions as they have limited resources. If the Commission in Court Session is to implement a standard arrangement clause, the Council suggests that the Commission’s resources should be used to carrying out the task.
AMMA submissions
Minimum wage rates in awards-s.40B(1)(a)
89 As to s.40B(1)(a) AMMA says that the requirement to ensure that an award does not contain wages that are less than the adult minimum wage under s.51 is not always a straight forward issue. In a matter arising in respect of three nickel mining awards in The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers’ Union of Australia, Engineering and Electrical Division, Western Australian Branch v Western Mining Corporation Resources Limited 83 WAIG 3641, an issue arose as to whether an industry allowance specified in the awards should be included in calculating whether there were any wages in the awards that were less than the minimum weekly rates of pay under the MCE Act. In that case it was held that the definition of wages included the industry allowance because of the origins of that allowance.
Award conditions less favourable than minimum conditions-s.40B(1)(b)
90 As to s.40B(1)(b) AMMA says that awards should not comprehensively contain all legislative rights and obligations such as minimum conditions under the MCE Act, including contracting out of annual leave conditions under s.8 of the MCE Act. AMMA says that provisions which are less favourable than the MCE Act should be deleted from awards and in their place, a provision should be inserted into each award which refers to the relevant sections of the MCE Act. Section 40B(1)(b) is not broad enough to require inclusion of MCE Act provisions expressly into awards. In essence, s.40B(1)(b) only requires a judgment by the Commission of specific conditions in an award to see if they are less favourable or not. It is contended that the main benefit of this approach is that awards will remain current, so that the operation of the terms of the award will not be affected if provisions in the MCE Act or other provisions in the Act, such as right of entry provisions, are changed by Parliament.
91 Further, it is argued that if MCE Act provisions are replicated in an award there is potential for interpretation difficulties, as the wording may conflict with the context of an award. If the wording is changed to allow for peculiarities of an award, then this may lead to a different rights being established from that envisaged by the MCE Act.
Unlawful discrimination-s.40B(1)(c)
92 In relation to preventing indirect and direct discrimination under s.40B(1)(c) of the Act, AMMA says that it is not possible for the Commission to prevent discriminatory implementation of award provisions as potentially every clause in an award could be implemented in a discriminatory fashion. The most the Commission can do is ensure that the provisions are worded in a non-discriminatory way and to specify clearly that there is no intention for award provisions to be interpreted in a manner that it leads, directly or indirectly, to discrimination. This could be done by inserting a general interpretation clause into all awards by General Order to provide that the rights and obligations in the award are to be interpreted having regard to the provisions of the E O Act. However, AMMA does not support the inclusion of an obligation on parties to consider the effect of the provisions of the EO Act when resolving a dispute under a dispute resolution clause in awards. AMMA says that the Commission is not tasked as a custodian of anti-discrimination provisions even though the Commission should not approve the variation of awards which contain discriminatory provisions. AMMA says that to take on a custodian role would require a summary of the principles contained in the EO Act. It is difficult to see what benefit would be derived from reiterating the statutory obligations as obligations under an award.
Obsolete and provisions that need to be updated-s.40B(1)(d) and efficient organisation and performance of work-s.40B(1)(e)
93 AMMA says that s.40B(1)(d) and (e) are essentially different in nature to subparagraphs (a) and (e). AMMA submits that awards should not include provisions that impede the efficient operation or the efficient organisation of work. In particular, AMMA says that it is clear from the objects of the Act, s.26 and s.40B(1)(e) and (d) that the priority for awards is that they are to provide relevant conditions to employees and parties within an industry. Accordingly, AMMA says that the priority issues for award parties arise under s.40 (1)(d) and (e). Further, AMMA sees that this central role in the award updating process should be undertaken by the parties, as they are the best placed to determine matters that arise under s.40(1)(d) and (e). In addition to the agreed position, AMMA submits that whether provisions are in need of updating may prove to be in the eye of the beholder. An appropriate balance between the efficiency of an enterprise and fairness to employees would appear to be the area which is most likely to give rise to a divergence of views.
94 AMMA submits that when awards come before the Commission the provisions of s.40B(1) should be drawn to the attention of the parties, and their views sought in respect of subparagraphs (d) and (e). In the absence of a dispute between the parties to an award in respect of these matters AMMA submits that the Commission should not embark upon an amendment process, save where the parties agree on amendments.
Test Case Standards
95 In respect of whether there should be an explicit right for an employee to refuse to work overtime in circumstances where it would result in the working of unreasonable hours, that is whether to adopt the Australian Industrial Relations Commission test case standard for reasonable hours of work, reasonable overtime and paid breaks after extreme working hours in the Working Hours case AMMA says that this is a matter that could be raised during the award review process by award parties or through a s.40 application. Whilst this is a matter that can arise under s.40B(1)(e) of the Act, there would be a need of the parties to adduce evidence as to whether the working hours test case should be applied on an award by award basis.
Structural efficiency, enterprise bargaining initiatives and facilitative clauses
96 As to whether structural efficiency initiatives undertaken generally under enterprise bargaining, which are now permanent features of some industries, including probation, part time employment, fixed term employment, casual employment, spread of hours and consolidation of allowances, AMMA says as a matter of principle it is not appropriate to provide, under s.40B, that agreement initiatives can be reflected in awards. Those matters need to be considered on an award by award, industry by industry, agreement by agreement basis. As a principle, AMMA does not support inserting into awards industrial agreement initiatives solely because they are now reflected in agreements. Each application would need to be considered on it’s merits having regard to the evidence and the industry to which the award applies. AMMA is of the view that awards should be written in a facilitative way.
97 This would allow agreement initiatives to be implemented at a workplace without the need to amend an award. This would address issues relating to spread of hours, rostering arrangements, taking of leave and other similar matters. AMMA says facilitative provisions are clearly matters that are contemplated by s.40B(1)(e).
Standard arrangement clause
98 As to whether awards should be re-drafted to provide for a standard arrangement clause including titles, particular definitions and numbering of clauses, AMMA says this is not a matter that has been raised as an issue by parties in the mining industry. However, AMMA says that it is of the view that a standard arrangement should not be imposed upon parties to awards, even though there may be benefits for some organisations or enforcement agencies that have a large number of awards that need to be amended or enforced. The benefit to award parties with a small number of awards is problematical. AMMA, however, also concedes it would be useful to implement standard arrangement clauses for electronic search functions but their experience suggests that re-drafting award clauses to fit standard clause titles, is extremely difficult and resource intensive. AMMA says that if the Commission determines the Registrar’s standard arrangement clause should apply to all awards, it should be imposed on the basis that it is voluntary for parties for existing awards and that the standard arrangement clause should be imposed on parties to an application for a new award.
Standard clauses in awards
99 AMMA does not support the imposition of standard clauses for such matters as contract of service, casual employment, sick leave, carers’ leave, bereavement leave, parental leave, dispute resolution, right of entry, superannuation, supported wage system, apprentices and traineeships, etc. AMMA’s experience with the award review process to date suggests that although this may be a worthwhile objective, in practice, awards in different industries have different provisions because of the history or nature of the industry. Trying to obtain agreement to change clauses for the purpose of having a standardised clause and/or an award that may or may not generate a better outcome for the parties to awards, is problematical and is not supported. That is not to say that award parties to individual awards could not do that if they so desire. However, the Commission should not, through this process, determine standard clauses.
Whether power under s.40B mandatory and role of the Commission
100 It is contended on behalf of AMMA that s.40(B)(1) imposes a mandatory duty under which the Commission must act. As to the steps by which the Commission is to ensure s.40B(1) obligations are fulfilled, AMMA submits that, as the power to amend awards may be exercised “at any time”, the Commission has on going function of review. Accordingly, AMMA submits that the Commission should devise an award process that uses the minimum of bureaucracy and resources. AMMA favours the formulation of a standard clause to be inserted into all awards to achieve the ends enumerated in s.40B(1). For example, the Commission could insert a provision in all awards requiring the award to be interpreted to comply with the requirements of the MCE Act and to provide any provisions of the award that have a contrary effect are null and void. The AMMA says this could be achieved by General Order. This would bring to the attention of the award parties the need to ensure the provisions of the MCE Act are complied with. It would also ensure that the currency of the award is maintained if the MCE Act is changed. However, if specific award parties by consent, wish to amend specific award clauses to reflect the MCE Act, it should be a matter for them and the Commission to consider such applications in accordance with the provisions of the Act.
CICS Guidelines
101 Finally, AMMA says that this Commission in Court Session should not establish guidelines or principles for award review in a similar way to the wage fixing principles, as this may cause another round of debate as to what those guidelines or principles mean. This may not progress the award review process in any specific or expedient way.
The Chamber’s Submissions
Whether power under s.40B mandatory and role of the Commission
102 The Chamber says that the role of the Commission under s.40B of the Act is limited to the specific purposes set out in s.40B(1). There is a clear direction to the Commission that its activities are limited to the purposes specified in each subparagraph of s.40B. It follows that the Commission cannot act other than for the reasons specified in subparagraphs (a) to (e) to vary an award when acting under s.40B(1). The Chamber says there is no capacity within s.40B(1) for the Commission in Court Session to issue principles, guidelines or checklists for members of the Commission in amending awards under s.40B of the Act.
103 The Chamber says that each subparagraph of s.40B(1) prescribes a duty which requires the Commission to remove objectionable provisions in awards. The provisions of s.40B(1) of the Act are not discretionary. The direction given in s.40B(1) of the Act is mandatory. The Chamber says that the Minister’s argument that matters raised in s.40B(1)(d) and (e) should be largely left up to the parties, is not sustainable as it is the Commission who is required to act under those sub sections. The Chamber points out that it is open to the award parties to also make an application to vary an award under s.40B(5) of the Act but this provision does not detract from the Commission’s duty under s.40B(1).

Minimum wage rates in awards-s.40B(1)(a)
104 In relation to s.40B(1)(a) the Chamber says that this sub section simply means that where an award contains wages that are less than the minimum award wage awarded by the Commission under s.51 of the Act, the award wages should be increased to meet that minimum. The Chamber says, however, it is important to recognise that the term “wages” may include allowances in some awards. It is not simply an exercise for the Commission to increase the total rate of pay. The Chamber agrees with the submissions made by AMMA in respect of this issue. The Chamber argues it is not uncommon for a clause in an award to be headed “wages” and within the clause there are provisions which provide for ordinary rates of pay under classifications and a range of allowances. The Chamber submits that in such a case the word “wages” in s.40B(1) should be interpreted to include both the ordinary rate of pay and the allowances specified in the clause.
Award conditions less favourable than minimum conditions-s.40B(1)(b)
105 The Chamber made lengthy submissions in relation to the meaning and affect of s.40B(1)(b). The Chamber submission in summary is that where an award contains conditions of employment that are less favourable than those provided under the MCE Act then the less favourable provisions should be deleted from the award. The Chamber says that s.40B(1)(b) is not a legislative direction to the Commission to ensure that awards replicate the provisions found in the MCE Act. The Chamber says the simplest way of satisfying the legislative command is to remove from awards all matters that are dealt with by the MCE Act, thus ensuring there is no conflict between the award prescription and the MCE Act, either now or in the future. The Chamber says that anything that is already found in the MCE Act should not be replicated, as to do so would render an award provision obsolete, as it would simply repeat the same terms of the legislation. For example, if an award provision provides that four weeks annual leave is to be allowed to each employee, that provision should be removed, together with the accrual rate because these are matters dealt with in the MCE Act. The Chamber says, however, that provisions in an award which provide for over award conditions should not be removed, such as an entitlement in an award to five weeks annual leave. The Chamber says that unless this course of action is adopted, or alternatively unless an award repeats, word for word, comma for comma, full stop for full stop, precisely the same provisions as the MCE Act a “lawyers’ picnic” will be created which will create an argument between parties at some later stage as to the differences between award obligations and those of the MCE Act.
106 The Chamber also says that if this approach is adopted any future changes to the MCE Act would then be easily accommodated. The Chamber also makes the same submission as AMMA in relation to future changes to the MCE Act. The Chamber says that if the MCE Act changes at some time in the future then the provisions of s.40B of the Act would require the Commission to review all awards. They submit that this would be an onerous task and impose a burden on the Commission and award parties to the State awards. Further, the Chamber says that if the Commission determines that the provisions of the MCE Act should be reflected in the awards, then the Commission should ensure that all of the provisions of the MCE Act be set out in awards. For example, all awards should include a provision for cashing out of ten days’ annual leave. It is also contended by the Chamber that the Commission, itself, cannot finally determine what the rights of employers and employees are under the MCE Act. The Chamber says it also has concerns about double jeopardy. If award obligations expressly reflect the MCE Act that could create an additional burden for employers if they fail to comply with those obligations as they would be exposed to both breach of an award and a statutory breach of the MCE Act. The Chamber acknowledges, however, that pursuant to s.7 of the MCE Act, together with s.5 of the MCE Act, that the minimum conditions are implied into the awards as if they are terms of an award and that enforcement of an implied entitlement can be pursued as if it were a breach of the award under s.83 of the Act. The Chamber concedes that double jeopardy may not be of a concern if the award provisions in question exactly duplicate the conditions of the MCE Act. However, the Chamber says that if the award is not amended in a way that exactly replicates the MCE Act there is a possibility of both an award breach and a statutory breach being created.
107 It was also argued by the Chamber that the nature of an award supports their argument in relation to s.40B(1)(b). The Chamber says that awards are made following conciliation or arbitration and that in arbitrating the Commission must decide which matters are of real dispute or disagreement between parties; and that matters fixed by statute cannot be the subject of arbitration. It follows, therefore, that an award is not a comprehensive source of all of the terms and conditions covering an employment relationship. This is a well known principle. Further, it follows that there is no mandate in s.40B(1)(d) of the Act to incorporate into awards the statutory provisions of the WR Act relating to the minimum periods of notice of termination, adoption leave or parental leave. It is contended that because of the operation of s.170CM of the WR Act that the notice provisions in State awards are obsolete and should be removed and that the Federal provisions should not be copied and inserted into State awards. They also say there is no mandate in s.40B(1)(d) to incorporate into awards statutory employment records provisions and right of entry provisions under the Act. Again, it is argued that because of the nature of those statutory rights and obligations the award provisions should be deleted which cover the same topic because they are obsolete..
Unlawful discrimination-s.40B(1)(c)
108 In relation to s.40B(1)(c) the Chamber says that this sub section simply means that where an award contains provisions that discriminate against an employee on any ground on which discrimination in work is unlawful under the EO Act then that discriminatory provision should be deleted from the award. The Chamber says that the Commission should not, under s.40B or by way of General Order, insert any provisions into awards which make statements to the effect that the rights and obligations under EO Act have to be complied with. The Chamber says that this exposes employers potentially to a breach of an award and the EO Act. It is also contended that the EO Act and the Federal Sex Discrimination Act 1984 provide comprehensive legislation for the prevention of discrimination on a range of grounds which are unlawful in employment and it is unnecessary to codify into awards the effect of those important pieces of legislation. It is conceded by the Chamber that if an award contains provisions which are obviously discriminatory in a direct sense then those provisions should be removed. Accordingly, the Chambers submission appears to be that s.40B(1)(c) of the Act only goes as far as the Commission being required to prevent direct discrimination. It is also contended on behalf of the Chamber that long standing descriptions such as “tradesman” should not be changed. The Chamber says it is the responsibility of an employer to ensure when they apply award provisions that they also comply with the law generally which includes the equal opportunity legislation, which prevents an employer from acting in a way which discriminates against a person on the basis of, for example, family responsibilities. The Chamber says that pay equity and equal remuneration are issues that cannot be reviewed under s.40B(1)(c) because to do so it would require a finding that unlawful discrimination is created by rates of pay.
Obsolete and provisions that need to be updated-s.40B(1)(d)
109 In relation to s.40B(1)(d) the Chamber says that where an award contains provisions that are obsolete or need updating, those obsolete provisions should be deleted from the award and where appropriate, updated provisions should be inserted. The Chamber says that subparagraphs (d) and (e) of s.40B(1) are the most important provisions of s.40B(1). It is contended that subparagraphs (a) to (c) are tidying up exercises.
Efficient organisation and performance of work-s.40B(1)(e) and facilitative provisions
110 In considering s.40B(1)(e) the Chamber says that inefficient provisions should be deleted. However, an alternative to deleting inefficient provisions would be for the Commission to insert a facilitative provision into an award which would have the effect of overriding the otherwise inefficient provisions in the award. In support of its submission the Chamber says the Commission should apply the Australian Industrial Relation Award Simplification Principles in print P7500 (del. 23 December 1997). In particular the Commission should apply Principle 7 which provides:
“Award simplification does not involve a general review of the level of award entitlements. Despite this, entitlements coming within items 49 (7)(b) and (c) and items 51 (6)(b) and (c) may be altered if a proper basis exists for doing so.” Those obligations in (b) and (c) are that each of the items “does not prescribe work practices or procedures that restrict or hinder the efficient performance of work” and “does not contain provisions that have the effect of restricting or hindering productivity having regard to fairness of employees.”
111 The Chamber says that there are many restrictions in awards that are not consistent with the facilitation of the efficient organisation and performance of work, according to the needs of an industry and enterprises balanced with fairness to employees. They say that the use of workplace agreements by employers and employees before the repeal of the operative provisions of the Workplace Agreements Act 1993 was a direct and obvious indication of the failure of the award system to meet the needs of employers and employees. The Chamber says that when the Minister introduced the Labour Reform Relations Bill to Parliament in his second reading speech, he acknowledged that many awards have not kept pace with the progressive changes in working conditions. It is the Chamber’s submission that this was said by the Minister as an acknowledgement that employers and employees had used workplace agreements as a vehicle to achieve what met their own individual circumstances and needs at an enterprise level. Following the abolition of workplace agreements and the subsequent growth in the use of Australian workplace agreements under the WR Act, this is seen by the Chamber as continuing confirmation of the failure of the State award system. They say this Commission should take judicial notice of this trend and accept that in part the trend in the growth of Australian Workplace Agreements is driven by the failure of the award system to meet the flexibilities and efficiencies required by industries and its enterprises.
112 The Chamber presented a comprehensive list of matters that ought to be included in the Commission’s proposed variations, when they are issued. It says that these are matters that can be dealt with under s.40B(1)(e) of the Act. The list is as follows:
(a) Removal of any limitations on the ordinary hours of work;
(b) Remove existing penalty payments for working ordinary hours outside the “traditional award ordinary hours”;
(c) Remove limitations on working overtime;
(d) Remove prescription on start and finish times and the days for ordinary hours;
(e) Remove prescription on minimum and maximum shift hours;
(f) Remove prescription of timing and duration of meal breaks;
(g) Remove prescription for a ‘rostered day off’ system to be worked;
(h) Allow for agreement to roster variations;
(i) Provide for an employer to direct when annual leave is taken;
(j) Removal of provisions requiring third party agreement, consultation or notification;
(k) Insert facilitative provisions;
(l) Insert a majority provision;
(m) Remove all limitations on casual employment (number of hours, duration, frequency, etc);
(n) Remove all limitations on part-time employment;
(o) Provide time in lieu and make-up time (by agreement);
(p) Insert salary packaging (by agreement);
(q) Provide for negotiated salaries in lieu of other award entitlements;
(r) Remove prescriptions on frequency and mode of payment;
(s) Insert stand-down provisions;
(t) Simplify dispute settlement procedures;
(u) Remove prescriptions for employee Counselling, suspension warning and dismissal;
(v) Remove staffing ratios;
(w) Insert probation provisions;
(x) Payment of higher duties to be for hours actually worked; and
(y) Remove prescriptions for amenities, uniforms, tools, equipment, first aid facilities, protective clothing, etc.
113 In relation to facilitative provisions the Chamber says that a provision which allows for an employer and employee to agree to vary an award provision will enable the purposes set out in s.40B(1)(e) to be achieved. The type of facilitative provision the Chamber proposes, they say, is different to enterprise flexibility clauses typically inserted in awards as part of the structural efficiency process. They say that those clauses are not adequate and are necessarily restrictive as they require the participation of unions who are party to the award, and the approval of the Commission by way of an actual variation to the award in respect of a particular enterprise. The Chamber says that experience shows that very few, if any, enterprise flexibility clauses have resulted in agreements being submitted to and approved by the Commission. However, the type of clause proposed by the Chamber will enable employers and employees to reach an agreement on matters that have previously been outside the capacity of employers and employees to agree upon. The Chamber does not suggest that a facilitative provision should allow employers and employees to reduce ordinary rates of pay, allowances quantum of overtime, penalty rates, or to alter the quantum of leave entitlements. The Chamber says a facilitative provision should deal with matters such as scope of ordinary hours of work, part time employment and other matters which relate to the direct interests of particular employees and employers within a particular enterprise.
114 The Chamber says that the Commission has the power to insert facilitative clauses of the type contemplated by the Chamber. They say that to the extent that the Full Bench decision of Confederation of Western Australian Industry (Inc) v The West Australian Timber Industry Industrial Union of Workers, South West Land Division (1990) 71 WAIG 15 and ALHMWU v Ngala Family Resource Centre (1996) 76 WAIG 1658 and Forest Products, Furnishing and allied Industries Industrial Union of Workers, WA v Joyce Australia Ltd (1996) 76 WAIG at 2491, expressed views to the contrary, those decisions are plainly wrong and should not be followed.
115 The list of matters that the Chamber says should be addressed under s.40B(1)(e) of the Act are the sort of changes which they say, would dramatically improve award provisions. The Chamber says that to the extent that any limitation on ordinary hours of work, it is common sense to conclude that such a limitation will inevitably impose an unnecessary restriction on some businesses within that particular industry. The Chamber says the same applies to prescriptions in awards that provide for minimum or maximum length of shifts. If an award provides, for example, that shifts shall be a minimum of three hours that may restrict an individual employer and employee who are prepared to work for only two hours in a particular shift. The Chamber does not see that the removal of a maximum period for a shift would raise any occupational health and safety concerns because employers have obligations under the Occupational Safety and Health Act 1984, (“the OSH Act”) which prohibit an employer putting in place a shift the length of which makes work dangerous. The Chamber submission is that this is a matter left to the OSH Act and it is unnecessary for an award to deal with such a prescription.
116 The Chamber says whether in a particular case its list should be relevantly applied to a particular award will depend upon the circumstances of the industry and enterprises within it and to deal with each one of these matters in the list might require evidence as to how arrangements in an existing award have operated, how they have impacted on efficiency of an enterprises or enterprises and what, if any, the impact of any removal of those provisions would have on the balance or fairness to employees against the needs and requirements of efficiency for employers.
Award provisions that are inconsistent with the IR Act and with federal legislation
117 In relation to s.49H of the Act, (which deals with the right of entry by unions for discussions with employees), it is conceded by the Chamber that s.49H (2) specifically contemplates that an award may specify a period of notice that an organisation is required to give prior to exercising their right of entry. The Chamber says that if a period of notice is contained in an award the provision should not be removed. In similar vein the Chamber says that the inclusion of Federal superannuation legislation requirements is another matter that should be deleted.
Structural efficiency, enterprise bargaining initiatives
118 As to the question raised in the discussion paper whether structural efficiency in enterprise bargaining initiatives should be reflected in awards, the Chamber says that s.40A makes specific provision for incorporating by consent the terms of industrial agreements into an award. In the absence of an application under s.40A of the Act the Chamber says that any consideration of incorporating enterprise bargaining initiatives under s.40B(1) would require substantial evidence that enterprise bargaining provisions are now so widespread across an industry that award provisions could then be said to be obsolete and require updating to reflect the new, apparent, standard. These are matters, the Chamber says, that cannot be entertained lightly and the Commission would have to examine the whole of the enterprise bargaining agreement to assess what, if any, trade offs there were for the new standard and the Commission should vigorously guard against what the Chamber would describe as “cherry picking” of the “good bits” out of an enterprise bargaining agreement without necessarily having regard to other matters in the agreement. The Chamber says that this matter would have to be dealt with on a case by case basis.
Standard arrangement clause
119 The Chamber opposes the imposition of a standard arrangement clause. It says the process of implementing the standard arrangement clause would be enormously resource intense process which would serve no practical purpose or benefit to employers or employees.
Methods of Calculating Allowances
120 Another matter that arises in the discussion paper is the proposition that awards should have inserted into them formulae for the calculation of allowances or calculations of the way in which wage increases are to be applied and matters of that kind. The Chamber says that they are not s.40B(1) matters, in particular, it is not appropriate for an award to reflect the methodology for the calculation of increases or variations to an award.
Scope clauses
121 The Chamber also submits that there is no mandate in s.40B for the Commission to vary the scope, respondency or application of awards.
The Shop, Distributors and Allied Employees’ Association of Western Australia Submissions
122 The Shop, Distributors and Allied Employees’ Association of WA (“the SDA”) says that at the urging of the Commission, it gave the Commission an undertaking that it would seek to modernise the Shop and Warehouse (Wholesale and Retail Establishments) Award. The SDA filed Application 926 of 2003 in which it proposes to amend the Award. That application is not part of the proceedings before this Commission in Court Session.
Minimum wage rates in awards–s.40B(1)(a)
123 In respect of s.40B(1)(a) the SDA says that the wages and allowances in the Shop and Warehouse (Wholesale and Retail Establishments) Award have been updated at regular intervals as are all the awards of the SDA. Consequently s.40B(1)(a) is not an issue between the award parties.
Award conditions less favourable than minimum conditions-s.40B(1)(b)
124 In respect of s.40B(1)(b) of the Act the SDA says the Shop and Warehouse (Wholesale and Retail Establishments) Award in almost all respects contains conditions which are superior to the minimum conditions in the MCE Act. The SDA says that it has taken steps to amend the Shop and Warehouse (Wholesale and Retail Establishments) Award to comply with the MCE Act and it was not a difficult exercise to do so. It is contended by the SDA that the suggestion by the Chamber and AMMA to delete provisions would have the effect of creating “blanks” in the award which would cause as many drafting problems as an attempt to reflect the minimum conditions of employment requirements into the Act. The SDA says that “the troops on the ground” expect to be able to pick up an award and have a reasonable chance of understanding what their wages and working conditions might be. They should be able to either read exactly what those conditions are or at least be referred through an editorial comment to a source where they can determine what their conditions are. To that end, the SDA proposes to amend the Shop and Warehouse (Wholesale and Retail Establishments) Award to explain precisely how the wages and allowances are varied and the precedents for them. For example they propose, in relation to the motor vehicle allowance, to set out the nexus to the Metal Trades (General) Award. Other allowances are varied by the Perth consumer price index from time to time and that should be clearly explained in the award.
Unlawful discrimination-s.40B(1)(c)
125 In respect of s.40B(1)(c) the SDA says that awards should not contain discriminatory provisions.
Obsolete and provisions that need to be updated-s.40B(1)(d)
126 As to s.40B(1)(d) the requirement that an award should not contain conditions that are obsolete or need updating raises a large problem for the Shop and Warehouse (Wholesale and Retail Establishments) Award. This is substantially because of the definition of “shops” in the award. The SDA, in application 926 of 2003, does not propose to amend the definition of “shops” because trading hour’s legislation was possibly going to be considered by Parliament, which would require an amendment of the Shop and Warehouse (Wholesale and Retail Establishments) Award. However, the SDA concedes that the definition of “shops” should be updated. The other matter which is of great concern to the SDA is the respondency list. It was drawn up in 1976 so it is almost 30 years out of date. Since that time, a number of industries, such as the animal skin industry, no longer operate and there are other industries which have been created, such as video shops and mobile telephone shops which are not covered by the award. The SDA favours re-defining the scope of the Shop and Warehouse (Wholesale and Retail Establishments) Award so as to define the scope by the callings set out in the award within the State of Western Australia, whereby types of shops or occupations which are covered by other awards of this Commission could be listed as exemptions. Alternatively, towns or places could be excluded.
Efficient organisation and performance of work-s.40B(1)(e)
127 In relation to s.40B(1)(e) of the Act the SDA says that this subsection is aimed at restrictive work practices rather than a review of unit labour costs. They conceded there are some restrictive work practices in the award, such as the fixing of the ratio of juniors to seniors but say there is a good reason to do so. Further, where businesses are restricted to only opening on certain days of the week, the SDA says that these restrictions are not restrictive work practices. There is not necessarily a link between the efficiency and organisation and performance of work to penalty rates. The SDA says that if a particular employer or industry is of the view that the Shop and Warehouse (Wholesale and Retail Establishments) Award is restrictive for their needs, they should approach the SDA and ask them to do something about it by entering into an enterprise bargaining agreement or Australian Workplace Agreements. The SDA says that there are plenty of flexible options. It is their view that the award updating process is not a difficult process if parties to an award come along in a spirit of updating an award and not in the spirit of trying to defeat awards and promoting other industrial instruments.
Standard arrangement clause
128 The SDA says that it is in favour of the standard arrangement clause which has been proposed by the Registrar. The SDA does not see this as a difficult exercise but only a “cutting and pasting” exercise that is only complicated in its “cutting and pasting”.
129 The SDA says that the Commission in Court Session should be mindful of the type of employees who are covered by the Shop and Warehouse (Wholesale and Retail Establishments) Award when it considers amending the award. It says that the majority of members of the SDA are female. Many of them are young and many of them are in older age groups. They are the typical sort of employees who work in retail establishments who are not in a position to bargain with their employer in respect of their wages and working conditions.
The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch Submissions.
130 The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch (“the AFMEPKIU”) informed the Commission that it agreed with the submissions made by the Council. The view of the AFMEPKIU is that s.40B(1)(a), (b) and (c) are simple and easy to address. The purpose of those subsections is to provide for updating awards and is not to provide for an exercise of stripping back awards.
131 In respect to s.40B(1)(d) the AFMEPKIU’s view is that it is the Commission’s task to ensure that an award does not contain provisions that are obsolete or need updating. It says a provision of an award is not made obsolete by the fact that it is dealt with by statute. However, a provision in an award is made obsolete if it is no longer practical, or no longer serves any real purpose. It is contended that s.40B(1)(d) should be read narrowly to ensure that awards meet appropriate standards and to ensure that awards do not contain provisions that are not applicable or no longer necessary.
132 In relation to s.40B(1)(e) the AFMEPKIU says that this subsection also needs to be read narrowly, and should not be construed as an invitation to employers to strip back provisions in awards. It says that sub section (1)(e) is to ensure that where structural changes take place within an industry, the award itself, shall be appropriately structured to ensure that it efficiently recognises those structural changes and to ensure the award reflects those issues. The AFMEPKIU says that if employers want flexibility inside their workshops there are a number of avenues open to them, including using structural efficiency clauses in awards and entering into enterprise agreements. The AFMEPKIU says that in their experience a vast majority of employers are happy to abide by award conditions and have done so for a considerable amount of time, while still maintaining efficient businesses that meet their needs and the needs of the employees.
The Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch Submissions
Role of Awards
133 The Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch (“the ALHMWU”) also informed the Commission that it agrees with the submissions made by the Council. The ALHMWU is party to two awards in these proceedings, the Children’s Services (Private) Award and the Cleaners’ and Caretakers’ Award. It represents two very different industries and two very different enterprises within those industries.
134 The child care industry relies quite heavily on the award but it also has Federal awards that apply to some of the enterprises within the child care industry. The ALHMWU says that the process before the Commission in s.40B of the Act is not an award simplification process. Although it says that it doesn’t mean the Commission cannot consider some of the arguments that might occur in an award simplification process under the WR Act. In particular, it has been held by the Australian Industrial Relations Commission that penalty rates do not restrict or hinder productivity and that such rates should continue in the hospitality industry. The ALHMWU says that the Commission should consider the objects of the Act, in particular, sections 6 (ca) and (d). The ALHMWU maintains that any assessment of s.40B(1) needs to recognise the role of awards as comprehensive documents in establishing wages and conditions of employment. Object 6(d), provides for observance and enforcement of agreements and awards made for the prevention and settlement of industrial disputes. The ALHMWU maintains that the plain meaning of “observance” is the act of observing, that is, seeing something before you, and this is what awards are for. ALHMWU members and employers, observe the provisions of an award because they see it. Consequently, the ALHMWU argues that to provide for observance it is necessary to maintain awards that are as comprehensive as possible. They agree with the Council submissions that the Commission must act according to equity, good conscience and the substantial merits of the case in determining the limits of how comprehensive an award can or should be.
135 The ALHMWU submits that an award should be comprehensive enough so that people can observe what their day to day roles and conditions of employment are. When employers sit down and draft an offer of employment, they should be able to simply state “you’ll be employed under the terms and conditions as set out in the Children’s Services (Private) Award” so employers and employees can read the award and ascertain all of their employment conditions. It is not appropriate that for an employment contract to say “your terms and conditions of employment are also those implied by the MCE Act”.
Whether power under s.40B discretionary and s.40B(1)(e)
136 The ALHMWU contends that s.40B(1) of the Act confers a discretion on the Commission. It also says that awards should reflect statutory conditions which include statutory obligations under the WR Act. The ALHMWU agrees with the submissions made on behalf of the Minister and the Council that the provisions of s.40B(1)(e) should primarily be left to the award parties to put forward award amendments.
Unlawful discrimination-s.40B(1)(c)
137 The ALHMWU does not disagree with the proposition that pay equity is not a matter that can be appropriately dealt with under s.40B(1)(c) of the Act. They maintain that one consideration the Commission should have regard to under s.40B(1)(c) is that fair wages and conditions of employment should take into account is that beneficial legislation is created under the EO Act. They also say the Commission should not limit it’s evaluation of award provisions to direct discrimination but should review awards for both direct and indirect discrimination. The ALHMWU says that direct discrimination is relatively easy to identify, but that indirect discrimination is not as it occurs where the same rules apply to everyone, but in doing so certain groups are disproportionately disadvantaged. The ALHMWU says a common form of indirect discrimination arises where part time employees are required to work beyond full time hours before they accrue an entitlement to overtime. Further, that classification structures based on years of service indirectly discriminate against part time workers, where the requirements do not enable proportional access or progression for part time workers. The ALHMWU says that the Commission should insert a model anti-discrimination clause in all awards as this would ensure that employers are aware of what is required in order to observe awards and responsibilities under the EO Act.
Obsolete and provisions that need to be updated-s.40B(1)(d)
138 To vary an award to include MCE Act conditions the ALHMWU argues that this can be carried out under s.40B(1)(d). They say that if the minimum conditions are not included in an award and an employer is prosecuted for breach of an award for an implied condition, where the award did not expressly reflect those conditions the employer may have, in good faith, relied upon the award as a comprehensive document. The ALHMWU says that it has come to their attention that some employers are not paying their employees, or providing them with conditions of employment that satisfy the minimum conditions because of their lack of knowledge of the MCE Act rather than a deliberate intention to ignore those conditions.
139 The ALHMWU sees that the updating of statutory provisions, including the WR Act and the MCE Act should be carried out under s.40B(1)(d) and that an exercise such as updating parental leave clauses is not a difficult task, nor is updating superannuation and time and wages records clauses. The ALHMWU also argues that where wages do not reflect industry standards or trade provision equivalents they should be updated pursuant to s.40B(1)(d). In particular, under the Cleaners and Caretakers Award, the ALHMWU says that whilst the contract cleaning companies pay their cleaners a “trade rate equivalent”, those directly employed are disadvantaged by the terms of the award as they are paid less.
Efficient organisation and performance of work-s.40B(1)(e)
140 In relation to s.40B(1)(e) the ALHMWU agrees with the Council’s submission that a primary requirement under this subsection is to achieve a consolidated and up to date award document that should be reliant on the award parties’ negotiations in reaching agreement or arbitrating issues in dispute whereby each party’s case is supported by evidence. The ALHMWU is opposed to facilitative clauses proposed by the Chamber as its members are not in a power relationship with their employers to enter into a genuine agreement, or genuinely consent to some aspects of a facilitative clause. The ALHMWU maintains it will always be the parties to awards that are best placed to assess the requirements of an industry and that facilitative clauses which enable employers and employees to contract out of an award provision is not a mater that can be dealt with under s.40B. The decision of the Industrial Appeal Court in Ngala Family Resources Centre v ALHMWU (1996) 77 WAIG 2551 should be applied by this Commission in Court Session.
141 In relation to other matters that arise under s.40B(1)(e) the ALHMWU is of the view that this provision can be invoked to review groups of awards. In particular, the ALHMWU says that it has three State child care awards because there used to be three funding models in place, whereas the child care industry funding models have changed. What should be investigated under s.40B(1)(e) is whether the Children’s Services (Private) Award should be amalgamated with the Children’s Services (Consent) Award and the Children’s Services (Subsidised Centre) Award.
142 As to the Cleaners and Caretakers Award there is also a Cleaners and Caretakers (Car and Caravan Parks) Award 1975 which potentially causes confusion in the cleaning industry. The question is whether these two awards meet the needs of enterprises and can they be brought together.
Test Case Standards
143 As to other issues raised in the Commission’s discussion paper they support the Council’s submission in relation to these matters. In addition, the ALHMWU says that changes to shift penalties would require supporting evidence and argument prior to any diminution to those conditions. The ALHMWU maintains that redundancy is a community standard and should be contained in all comprehensive awards. However, for the purposes of these proceedings the ALHMWU does not pursue the inclusion of a redundancy clause in the Cleaners and Caretakers Award. They reserve the right to argue that the new Federal test case may fall within s.40B(1)(d) of the Act in relation to the redundancy provision of the Child Care Services (Private) Award.
Scope clauses
144 As to amending the scope of awards to named classifications of employees in industries, rather than defining an industry by a list of respondents, the ALHMWU says that common rule awards provide safety nets and no disadvantage tests, so it is imperative that the scope and area of awards be as clear, comprehensive and up to date as possible. The ALHMWU says that if there is a need to change the scope of awards that this would have to be implemented through an application made under s.40 of the Act.
Standard arrangement clause
145 As to implementation of the standard arrangement clause, the ALHMWU has the view that this task requires a lot of work for little benefit. But if the Registrar’s Standard Arrangement clause is adopted by the Commission in Court Session it should be implemented at the end of the review process when all amendments have been either agreed to or arbitrated.
Submissions on behalf of Members of the Chamber who are employers affected by the Cleaners’ and Caretakers’ Award, Cleaners, Contract Cleaners Award 1986, and the Contract Cleaners (Ministry of Education) Award 1990 and the Bakers’ (Metropolitan) Award 1987, and Pastry Cooks’ Award 1981
146 The employers affected by the Cleaners & Caretakers’ Award made the following submissions.
Minimum wage rates in awards–s.40B(1)(a)
(a) In relation to s.40B(1)(a) these employers say the awards do not contain any wages that are less than the minimum award wages ordered by the Commission under s .51 of the Act.
Award conditions less favourable than minimum conditions-s.40B(1)(b)
(b) As to s.40B(1)(b) it is the view of these employers that the MCE Act provisions should not be incorporated into the award in any shape or form. It is also the view of these employers that provisions in the award which provide less favourable conditions to those provided for in the MCE Act should be removed. However, the employers say there is merit in inserting a reference to the MCE Act in awards where any provision has been removed. For example, clause 12(1)(b) of the Cleaners and Caretakers Award provides that the entitlement to payment of sick leave accrues at the rate of one sixth of a week for each completed week of service with the employer, should be removed and a reference should be made in its place that the accrual of sick leave is governed by the provisions of the MCE Act.
Unlawful discrimination-s.40B(1)(c)
(c) In relation to s.40B(1)(c) of the Act these employers support the agreed position that pay equity is not a matter appropriately dealt with under subsection (1)(c) and that provisions that are clearly discriminatory should be amended. Gender neutral language should be varied and where the award creates work practices that are clearly discriminatory the award should be amended. Matters of indirect discrimination should not be the subject of an independent exploration of this Commission. Should any award party be of the view that any provisions of the award are indirectly discriminatory then that particular award party can bring the issue to the attention of the Commission. These employers say that employees should not be able to dictate to the employer the hours they can work because of their family responsibilities, devoid of the operational requirements of the employer.
Obsolete and provisions that need to be updated-s.40B(1)(d) and efficient organisation and performance of work-s.40B(1)(e)
(d) In relation to s.40B(1)(d) and (e) these employers agree with the agreed position and say that obviously obsolete areas of the award need updating and should be the subject of this Commission’s consideration. However, there may be issues which employers may wish to raise on an industry and/or enterprise basis in relation to provisions that they see as being either obsolete or need of updating, or should be included to make the award consistent with the facilitation of the efficient organisation and performance of work in accordance to the needs of industry and enterprise within it, balanced with fairness to the employers in the industry and enterprises. The employers say that examples of such areas include the ability to work ordinary hours on every day of the week. In addition, starting and finishing times of ordinary hours should be reviewed given the changed nature of working hours. The views of the employers are that the spread of hours should more appropriately be from 5.00am to 8.00pm. Another area which employers feel that changes to the award should occur relate to facilitative provisions. In particular there should be the ability for employers and employees to utilise make up time. This would mean that an employee who cannot attend the site to work ordinary hours when they are rostered to work because of personal or other circumstances, could by agreement make up those ordinary hours at times which may or may not otherwise attract penalties and loadings under the award, but would still be paid at ordinary hours. That is, an employee by agreement, could seek to vary their rostered hours to suit their convenience providing it does not bring an additional cost burden to the employer.
(e) Another matter that the employer parties to the Cleaners & Caretakers Award think should be raised is that employees should be required to give the same notice periods to employers (based on their length of service), as employers are required to give to employees. The employers believe that the best way to progress the aforementioned issues in 146 (d) to (e) of these reasons is for them to make an application through the Commission through s.40 of the Act.
Standard arrangement clause
(f) Further, that they are in favour of a standard arrangement clause and formatting of awards as they deal with numerous awards. They are of the view that it would be of assistance to be able to pick up any award and know roughly, where they can find all the leave provisions, the hour’s provisions or the overtime provisions.
147 The employers who are affected by the Cleaners Contract, Contract Cleaners Award 1986 and the Contract Cleaners (Ministry of Education) Award 1990 made the following submissions:
Section 40B(1)(a),(b) and (c)
(a) These employers make the same submissions about s.40B(1)(a)(b) and (c) as the employers who are affected by the Cleaners and Caretakers Award. In relation to rostering to embrace family responsibilities their view is that employees should not be able to dictate hours that they require work. The business needs of an employer are paramount and that if, within those business needs, an employee’s needs can be factored in without much of a problem, then so be it.
Obsolete and provisions that need to be updated-s.40B(1)(d), efficient organisation and performance of work-s.40B(1)(e) and facilitative provisions
(b) In relation to s.40B(1)(d) and (e) they agree with the agreed position that obviously outdated and obsolete provisions need to be updated (and this is an exercise that can be conducted by the staff of the Commission). However, it is for the award parties to raise any specific issues for the Commission’s determination. Some areas that these employers see falling within s.s.40B (1)(d) and (e) are matters like the spread of hours, which in their opinion should be expanded because of the change in the nature of work patterns, flexitime, job sharing and the reduced significance of working hours outside of Monday to Friday. Another area they see could be updated or could facilitate the efficient organisation or performance of work is the removal of the two hour minimum requirement for payment for part time and casual employees. In their industry if a small client only has a half hour, or hour job which would take less than two hours to clean, the choice for contract cleaners is to either reject the contract or make up some kind of running shift whereby an employee has to move between jobs on one shift. The employers say this is very difficult to organise. Further, this is an area where facilitative provisions could be utilised if the general removal of the two hour minimum is not sanctioned by the Commission.
(c) The employers would like to see facilitative provisions inserted into the awards to promote the efficient organisation and performance of work according to their needs, balanced with fairness to employees. In particular, they embrace the concept of make up time and being able to reach agreements with the employees to suit both the employees’ needs and those of the organisation at any particular point in time. These employers believe that the best way for them to progress these issues is for them to make application to the Commission under s.40 of the Act.
Test Case Standards
(d) In relation to reasonable overtime, they say the key to the issue whether an employee should have the right to refuse unreasonable overtime is that an employer is not able to require an employee to work unreasonable overtime and therefore an employee is able to refuse unreasonable overtime.
(e) In relation to shift penalties, the employers consider that while shift penalties are relevant the loadings that are currently applicable are too high and need to be reviewed.
(f) In relation to redundancy clauses neither of these awards contains redundancy clauses. It is contended the nature of the contract cleaning industry is that contracts change on a regular basis and it has long been the view in the industry that a change of contract that happens on a regular basis does not constitute a redundancy situation because it forms part of the ordinary and customary turnover of labour.
Standard arrangement clause
(g) In relation to a standard arrangement clause, these employers have a neutral view. They recognise that in dealing with a number of awards a standard arrangement clause may assist in reading and interpreting an award.
148 The employers affected by the Bakers (Metropolitan) Award 1987 and the Pastry Cooks’ Award 1981 made the following submissions:
Section 40B(1)(a),(b) and (c)
(a) These employers make the same submissions in respect of s.40B(1)(a)(b) and (c) as the employers affected by the Cleaners and Caretakers Award 1969. They also have the same view as the Contract Cleaners employers with respect to rostering to embrace family responsibilities.
Obsolete and provisions that need to be updated-s.40B(1)(d) and efficient organisation and performance of work-s.40B(1)(e) and facilitative provisions
(b) In relation to s.40B(1)(d) and (e) they also take the same view as the employers affected by the Cleaners, Contract Cleaners Award 1986 and the Contract Cleaners (Ministry of Education) Award 1990 in terms of updating an award and ensuring the award is consistent with the facilitation and efficient organisation and performance of work. These employers, too, would like to see facilitative provisions inserted into the awards to promote the efficient organisation and performance of work according to the needs, balance and fairness to employees. They also embrace the concept of “make up time” and being able to reach agreement with the employees to suit both the employees’ needs and the enterprise at any particular point in time.
Role of Awards
(c) These awards were written at a time when bread was plain, square and sliced, pastry had rosettes on it, a baker was a baker and a pastry cook was a pastry cook. New technology and new ingredients have revolutionised production and production skills to a point where hot bread and pastry production is effectively 24 hours per day, 7 days a week and the traditional trades of the baker and pastry cook have merged to become one trade. Accordingly, employers say that the two awards and the Bakers (Country) Award No 18 of 1977 should be merged into one award in a revised classification structure. They also say that the spread of hours and shift penalty rates need updating. The ratio of apprentices, juniors and assistants to trade persons are acronystic and the need for them is questionable. In addition, employers see the limitation on the use of casuals to four weeks to be restrictive and that arguably through facilitative provisions employees should have the right to work as a casual for longer than four weeks if they agree to. Employers believe that the best way for them to progress these issues is for them to make an application to the Commission under s.40 of the Act.
Test Case Standards
(d) In relation to the specific discussion paper questions, these employers also make the same comments in relation to the working of reasonable overtime and the employers affected by the Cleaners, Contract Cleaners Award 1986 and the Contract Cleaners (Ministry of Education) Award 1990. As to redundancy provisions, these employers agree with the agreed position.
Standard arrangement clause
(e) In relation to a standard arrangement clause they are of the view that it is a useful concept as it makes reading a number of awards easier as the reader will know relatively where to go in each of the awards to find similar types of provisions.
Submissions made on behalf Employers bound by the Metal Trades (General) Award 1966.
Role of the Commission
149 Employers bound by the Metal Trades (General) Award endorse and generally adopt all of the submissions put by the Chamber in its capacity as the Chamber in this matter. In particular these employers say that emphasis should be on the requirement for the Commission to put forward proposals under s.40B(1)(e). Whilst the Act clearly contemplates the capacity for award parties to make application to vary an award under s.40B(5), this does not relieve the Commission from its duty to act and enable it to leave the matters that arise under s.40B(1)(e) to the award parties. Whilst the Commission should properly make a decision as to what variations of an award it will make, based on the views of a party, it is contended that the Commission is obliged to put forward proposals under s.40B(1)(e) in the same fashion as it is required to do so under s.40B(1)(a) to (d).
Award conditions less favourable than minimum conditions-s.40B(1)(b)
150 In relation to s.40B(1)(b) these employers say that all award provisions that provide lesser benefits than those contained in the MCE Act should be deleted and it is unnecessary to repeat or replace those provisions with those contained in the MCE Act. The concept of an award simply referring to another document for details of a condition is not foreign to this Commission in current awards. A typical example is the long service leave provisions which refer to the Long Service Leave General Order. A reference in an award that the MCE Act should be referred to for other conditions may be supported. It is contended that if award provisions are deleted and inserted in their stead the MCE Act provisions, this may have the consequence of going further than the purpose prescribed by s.40B(1)(b). An example is the proposition to delete the requirement for a medical certificate to be presented in order to obtain payment for sick leave. This may well remain an appropriate test for a reasonable person in many circumstances. However, the award condition is still valid in the circumstances of an employee claiming sick leave from leave accrued pursuant to the award, from previous years’ service. Leave accrued pursuant to the MCE Act, not used, does not accumulate from year to year as it does under many awards. To remove that condition from the award would be to go beyond s.40B(1)(b) as the requirement for a medical certificate remains valid for leave which is provided as a benefit in addition to the MCE Act provision.
Unlawful discrimination-s.40B(1)(c)
151 In relation to s.40B(1)(c) the employers bound by the Metal Trades (General) Award say that the Commission should not enter into an exercise of “second guessing” the Equal Opportunity Commission on issues of indirect discrimination. They contend a model anti-discrimination clause as described in the discussion paper would not prevent discrimination in any sense and is beyond the scope of s.40B(1)(c). Accordingly, insertion of such a clause is not supported The employers say that in discussions with the AFMEPKIU and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Workers’ Union of Australia, Engineering and Electrical Division, WA Branch (“the CEEIPU”), they agreed that an anti-discrimination clause not be inserted into the Metal Trades (General) Award. In relation to rostering of employees to accommodate family responsibilities, the agreed position is agreed to by these employers.
Efficient organisation and performance of work-s.40B(1)(e)
152 There is no meeting of minds between the unions and the employers in relation to flexible hour’s arrangements, the removal of limits on the working of ordinary hours or whether shift penalties should be moved.
Test Case Standards
153 In respect to the reasonable overtime, it was agreed with the AFMEPKIU and CEEIPU that the Metal Trades (General) Award adequately deals with the right to refuse working unreasonable overtime.
154 There is no meeting of minds between the unions and the employers in relation to flexible hour’s arrangements, the removal of limits on the working of ordinary hours or whether shift penalties should be moved.
Standard arrangement clause
155 In relation to a standard arrangement clause, the employers say that they discussed this with the AFMEPKIU and CEEIPU and the parties agree that there is no need to implement a standard arrangement clause. The employers say the implementation of a standard arrangement clause is generally seen as an unwarranted use of resources and does not come within any head of power in s.40B(1).
Structural efficiency, enterprise bargaining initiatives
156 In relation to structural efficiency and the adoption of enterprise bargaining agreements, the employers bound by the Metal Trades (General) Award say that these matters are s.40A matters and should not be dealt with under s.40B.
Submissions made on behalf of Employers bound by the provisions of the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977.
157 Employers bound by this award advised the Commission in Court Session that they adopt the submissions made on behalf of the Chamber in the capacity of the Chamber.
158 In relation s.40B(1)(c)(d) and (e) these employers say that these are matters which should be dealt with by the award parties and not on an “all awards” basis. These employers have met with the SDA to discuss the modernisation of the award and they are in the process of meeting with the Retail Council and consulting within the retail industry and are to receive further instructions regarding those parts of the award the employers consider fall within s.40B(1).
Submissions made on behalf of Employers bound by the provisions of the Children’s Services (Private) Award.
Whether power under s.40B mandatory and role of the Commission
159 It is contended that the provisions in s.40B of the Act are mandatory, that is where the Commission identifies that an award provision contains objectionable provisions it must move to vary the award and remove those provisions. The Commission, in relation to each subparagraph of s.40B(1) is directed “to ensure that” the objectionable provisions are removed. If the word “may” were to be treated as discretionary, it would mean that the Commission could do nothing and the express and apparent purposes of the section would be defeated. This submission is supported by s.6(af) of the Act which provides that it is an object “to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises” (see also s.26(1)(d)(vi)). These employers say that object s.6(af) would be defeated if the Commission could treat s.40B of the Act as discretionary.
Minimum wage rates in awards–s.40B(1)(a)
160 In relation to s.40B(1)(a) of the Act, the agreed position is agreed by these employers. The Children’s Services (Private) Award currently provides for all State wage increases. Accordingly, s.40B(1)(a) has no application at this particular point in time.
Award conditions less favourable than minimum conditions-s.40B(1)(b)
161 In relation to s.40B(1)(b) they object to repeating provisions from the MCE Act in the award. Such a process, they say, would result in operational difficulties for employers in the industry. For example, the MCE Act provisions relating to absence due to illness do not require an employee to notify the employer of their absence from duty is subject to Regulation 30 of the Community Services (Child Care) Regulations 1988 which requires employers to provide minimum staffing ratios each shift. Consequently, employers are reliant upon minimum staffing requirements and the current award provision that requires employees to notify them of their absence from duty for paid sick leave in order to engage temporary staff to meet the minimum staffing requirements. Relieving employees of such an obligation would result in employers unavoidably breaching the child care regulations if an employee is absent from duty and elects not to notify the employer of their absence. Employers say that where award provisions are removed because they are less favourable than the MCE Act, a reference could be made in the award to the relevant MCE Act provision, to ensure that award respondents are aware of their full rights and obligations. This will assist with compliance with s.40B(1)(b), whilst avoiding unintended consequences or operational difficulties arising from a simple repetition of MCE Act provisions.
Unlawful discrimination-s.40B(1)(c)
162 In relation to s.40B(1)(c) of the Act these employers adopt the agreed position. The suggestion that the Commission Registry prepare a schedule of obviously discriminatory provisions is supported. Where an award party believes that a provision is directly or indirectly discriminatory, then it is open to that award party to bring the issue to the attention of the Commission. These employers submit that this area should not be independently explored by the Commission.
Obsolete and provisions that need to be updated-s.40B(1)(d)
163 In relation to s.40B(1)(d) the suggestion that the Registry prepare schedules of obviously obsolete provisions, is also supported. However, matters of substance will arise for the award parties and it is submitted that identification of award specific outdated or obsolete provisions is not a matter the Commission should endeavour to deal with independently.
Efficient organisation and performance of work-s.40B(1)(e) and facilitative provisions
164 In relation to s.40B(1)(e) of the Act, this sub section deals with matters which these employers say are best dealt with by the award parties. These employers also support a facilitative provision being inserted into awards, as proposed by the Chamber.
165 In relation to the specific issues raised in the discussion paper, the submissions made on behalf of the Chamber in its capacity as the Chamber are endorsed and adopted by these employers.
Submissions on behalf of employers who are bound by the Clerks’, (Commercial, Social and Professional Services) Award and the Clerks (Wholesale and Retail Establishments) Award.
Role of the Commission under s.40B(1)
166 The employers bound by these awards say that whilst it may be possible, as part of these proceedings, to address broad questions as to the meaning affect of s.40B(1)(a) and (b) of the Act it would be inappropriate to examine the majority of the other issues raised in the discussion paper on the basis of “one size fits all” for all awards. In particular, when regard is had to s.40B(1)(c),(d) and (e), and the specific questions raised in the discussion paper, those issues, in most cases, should be addressed at the enterprise level or at the very highest at the industry level.
Unlawful discrimination-s.40B(1)(c)
167 In relation to 40B(1)(c) these employers submit that the Commission should restrict their enquiry into to issues that are viewed as directly discriminatory and that discrimination should be examined having regard to the intention of the particular clause in question and the specific circumstances of the industry to which the clause relates.
Efficient organisation and performance of work-s.40B(1)(e)
168 In relation to s.40B(1)(e) when read with s.6(af), an award review must be dealt with having regard to the needs of specific industries and those enterprises within it, which may result in variations to specific awards, but in doing so should not result in any benchmark or justifications for inclusion in other awards.
Submissions made on behalf of Employers bound by the Hospital Salaried Officers (Nursing Homes) Award 1976, Enrolled Nurses and Nursing Assistants (Private) Award No 8 of 1978, Hospital Salaried Officers (Private Hospitals) Award 1980, Aged and Disabled Persons Hostels Award 1987, Hospital Salaried Officers (Silver Chain) Award 1980 and the Private Hospital Employees’ Award 1972.
169 The Employers bound by these awards say that there are matters of general application to all awards which can be determined by the Commission under s.40B(1)(a) and (b). However, in respect of s.40B(1)(c)(d) and (e) they say it is very important that the award parties be involved in the process of debate over any changes might be to particular awards.
170 In relation to the hospital and aged care industry these employers say that they are predominantly regulated by Federal awards and instruments and through the award simplification process under item 51 of the Workplace Relations and Other Legislation Act 1996 and section 89 of the WR Act, all of the Federal awards have undergone a lengthy and exhaustive award simplification process. These say that the Federal awards cover the majority of employees in relevant areas. Consequently Federal awards should be used as a model for modernisation of the equivalent State awards as it would not be desirable for the industry to apply different outcomes between State and Federal awards.
CICS Conclusions
Section 40B(1) mandatory
171 The weight of the authority is that where there is a power conferred upon a court to exercise jurisdiction, that power must be exercised even though expressed in discretionary terms (see Pearce and Geddes “Statutory Interpretation in Australia” (5th ed.) at 11.9 and the cases cited therein). When this principle is applied to s.40B(1) it is our view that this provision is mandatory, in that once the preconditions in subparagraphs (a) to (e) for the exercise of the power are met, the power must be exercised by the Commission.
172 It is clear from the opening words of s.40B(1) that the Commission has had conferred upon it wide powers to amend. These powers can be exercised at anytime and more than once in relation to any award. Section 40B(1)(a) does not simply provide that the Commission at any time may vary an award to ensure that the award does not contain wages that are less than the minimum award wage as ordered by the Commission under section 51. The power to amend under each subparagraph of s.40B(1) is wide as the opening words provide that the Commission may vary an award “for any one or more of the following purposes…” Consequently, providing the Commission by order, varies an award for one or more of the purposes set out in (a) to (e) of s.40B(1) the Commission acts within power.
173 The Macquarie Dictionary defines “purpose” to mean:
“Purpose – noun 1. the object for which anything exists or is done, made, used, etc. 2. an intended or desired result; end or aim. 3. intention or determination. 4. that which one puts before oneself as something to be done or accomplished. 5. the subject in hand; the point at issue: to the purpose. 6. practical result, effect, or advantage: to good purpose.
verb (t) (purposed; purposing) 7. to put before oneself as something to be done or accomplished; propose. 8. to determine on the performance of; design; intend.”
174 Accordingly, providing that the Commission varies an award under s.40B(1) for the objects to be attained under s.40B(1)(a) to (e) the Commission acts within power.
Role of the Commission under s.40B(1)
175 As set out below the role of the Commission in relation to a review of an award under s.40B(1)(a) and (b) is relatively straightforward. Having regard to its own knowledge of awards the Commission can, by reading an award, ascertain prima facie whether an award needs to be varied for the purposes set out in subsections (a) and (b) of s.40B(1). However as to s.40B(1)(b) the condition precedent to varying the award under that subsection is that there must be a provision in the award that is less favourable than a minimum condition. Section 40B(1)(b) on its own does not entitle the Commission to insert a provision in an award when there is no clause in the award that deals with the same subject matter as the minimum condition.
176 The same can be said in relation to varying an award to remove provisions that unlawfully directly discriminate in work under the EO Act under s.40B(1)(c). Ascertaining whether an award provision indirectly discriminates is a more difficult task and without a matter being brought before the Commission by an award party or a person with a sufficient interest in the matter the Commission may find it difficult if not impossible to ascertain whether an award provision is capable of unlawfully indirectly discriminating against an employee or group of employees on the grounds of work. The Commission as a body exercises judicial power. It also has an important role in conciliation and arbitration. The Commission in Court Session is mindful of its duties under s.40B(1)(c) and must act when circumstances arise for the exercise of its power, that is the preconditions prescribe the circumstances. Where an award provision unlawfully discriminates against an employee on grounds of work the Commission may vary the award provision.
177 This Commission in Court Session agrees with the Chamber that it has no power under s.40B(1) to issue “guidelines”. However, we consider it appropriate to issue this statement as a guide to the approach to be followed when considering the proposed variations this Commission in Court Session intends to issue in respect of each of the four awards.
178 As to s.40B(1)(d) the role of the Commission may be straightforward as set out below. However in some matters it will have to rely upon the parties to an award and other persons with a sufficient interest in an award, in other proceedings such as an employer bound by common rule to bring issues to the attention of the Commission. Once brought to the attention of the Commission, which may in some cases require the hearing of evidence, the Commission will be required to act in separate proceedings under s.40B(1)(d). Further, the purposes in this sub section can in some matters be utilised when a review is conducted for the purposes set out in s.40(1)(b), (c) and (e).
179 As set out below, it is our view the purposes set out in s.40B(1)(b), (c), (d) and (e) do not stand alone. In relation to some industrial matters and statutory obligations they can overlap. Further is our view that the power to vary an award for the purposes of updating a provision in an award may in an appropriate case include the power to vary an award to implement a test case standard. This would be particularly so where the preconditions in s40B(1)(e) are also met.
Section 40B(1)(a)
180 The Commission in Court Session agrees with the agreed position set out in paragraph 6 of these reasons. The Commission is of the view that any argument as to maintaining wage relativities and whether “wages” include any “allowances” in an award would have to be considered on an award by award basis after considering the history of the award provisions in question. The Commission in Court Session, however, is of the view that simply because an allowance is contained in the same clause as ordinary rates of pay, this does not mean that the Commission could necessarily draw an inference that the allowance be considered “wages” within the meaning of s.40B(1)(a).
181 As to the submission made on behalf of the Minister that the Commission continue to equalise the MCE Act minimum wage with the award minimum wage, this is not a matter that can be dealt with under s.40B. It is a matter than can only be considered under ss.51 and 51D of the Act.
Section 40B(1)(b) and (d)
182 The Commission in Court Session agrees that it has a duty to review all awards and vary all conditions of employment that are less favourable than those provided for in the MCE Act. However, the Commission does not agree with the submission that its power to vary an award to deal with matters that arise under the MCE Act ends there. The Commission is empowered to vary an award under s.40B(1)(b) and (d) “for the purposes of” ensuring an award does not contain conditions of employment that are less favourable than the MCE Act and to ensure the award does not contain provisions that are obsolete or need updating. Amending an award provision to include the expressly implied MCE Act provisions is, in our view, is to amend an award for the purposes of updating an award. For example a provision in an award that contains a condition which provides that after 12 months continuous service an employee is allowed four weeks paid leave, is less than favourable than s.23 of the MCE Act. Such a provision should be updated. Pursuant to s.40B(1)(b) and (d) the Commission after complying with the procedure in s.40B(2), (3) and (4) can vary an award which contains a provision which is less favourable than the award condition or covers the same matters that are covered by the minimum condition. When the less favourable provision is rescinded a new updated provision can be added. Where the award provision covers the same subject matter then that provision can be varied if it can be found that the award provision needs to be updated and the appropriate means of doing so is to vary the award to include the minimum condition. If that is not the case the jurisdiction cannot be invoked.
183 The Commission in Court Session does not accept the submission that to reflect the provisions of the MCE Act would create a “lawyer’s picnic”. Further, AMMA, the Chamber and others who made this submission did not point to any examples where re-drafting of award clauses to reflect MCE Act provisions has created a “lawyer’s picnic” or any difficulties in interpreting awards. As the ALHMWU stated it is not a difficult task. The provisions of the MCE Act are not complex. Many awards of this Commission have already been updated to include some, if not all, of the minimum conditions in the MCE Act.
184 The ALHMWU point out that it is very difficult for many users of awards, that is employers and employees who are unrepresented by a registered organisation or a s.50 party to understand their rights and obligations where they have to search a myriad of documents and sources. This Commission is of the view that awards should be easy to access, easy to read and contain as many terms and conditions of employment as reasonably possible. Having said that the Commission in Court Session recognises that in relation to some matters it will be appropriate to refer in an award to the source of other rights and obligations such as the EO Act.
185 Whilst s40B(1) does not provide a mandate to create new forms of employment this Commission in Court Session is strongly of the view, that all awards should comprehensively set out all existing award contract of employment conditions that apply to the award employees such as conditions that relate to full time, part time or casual employment, etc. All forms of leave including carer’s leave and bereavement leave, public holidays and rates of pay should also be comprehensively set out where the award already contains such obligations. As to carer’s leave if the award contains a provision for sick leave the award should be updated to include a carer’s leave provision as the right to take carer’s leave is part of the right to take sick leave pursuant to the MCE Act. Where rights and obligations in relation to a condition of employment are solely contained in another document such as the Long Service Leave General Order, it is our view that the Long Service Leave General Order can if the parties wish continue to be incorporated into the award by reference. Where, however, long service leave entitlements are partially or wholly reflected in the Long Service Leave General Order and other award conditions apply, then the provisions of the Long Service Leave General Order terms which are to apply should be set out in full in the award together with the additional award conditions. This principle, in our view should apply to all award conditions. We do not consider s.8 of the MCE Act to be a condition of employment that should necessarily be set out in an award without the consent of the parties.. Section 8 only creates the ability for an employer and employee to enter into an agreement to pay out 10 days’ leave per year. Whether s.8 should be expressly incorporated into an award is a matter for award parties.
186 It is also the Commission in Court Session’s view that it would encourage parties to expressly incorporate, by setting out in full in an award, as many of the minimum conditions as is reasonably practicable. This is particularly in the case of Part 5 of the MCE Act which provides for minimum conditions for employment changes with significant effect, and redundancy. The Commission is continually faced with a significant number of claims brought under s.29 and s.44 of the Act where employees claim their employer has breached s.41 of the MCE Act. In many of these cases the employer is unaware of their obligations under Part 5 of the MCE Act. However the Commission in Court Session recognises that if an award is silent on the topic of redundancy and or changes with significant effect the Commission has no power under s40B to vary an award. Yet to include such provisions is within power under s.40B(1)(d) when it is for the purpose of removing an obsolete award provision or to update an award provision.
187 We also do not agree with the submissions made on behalf of employers bound by the Metal Trades (General) Award that a requirement in an award for a medical certificate to be produced as a precondition to an entitlement to paid sick leave is not ousted by s.22 of the MCE Act as pursuant to s.21 of the MCE Act s.19 does not apply to sick leave that has accrued beyond 12 months. Section 19 of the MCE Act applied to that leave prior to accrual beyond 12 months and continues to do so. All s.21 does is to provide that nothing in Division 3 of Part 4 of the MCE Act requires accrual of sick leave from to year. The fact that an award provision provides for accrual of sick leave does not oust the operation of s.19.
Award Provisions that are inconsistent with the IR Act and the WR Act
188 It is also our view that the provisions of the WR Act that apply to employers and employees who are regulated by State awards should be expressly incorporated into State awards. Some contract of employment clauses and parental leave clauses in awards of the Commission are obsolete by virtue of that legislation. To vary such a clause to incorporate the WR Act requirements is to vary an award to delete an obsolete provision or to update the clause. If there are no existing contract of employment provisions or parental (including maternity leave clauses) in an award there is no power to incorporate the WR Act provisions into an award. The WR Act provisions are s.170CM in respect of termination of employment, Division 5 of Part VIA – Parental Leave - of the WPA and Division 2 of Part 5A of the Workplace Relations Regulations (‘the WR Regs”). In relation to s.170CM the Commission’s experience is that a substantial number of cases come before the Commission each year under s.29 and s.44 in which an employer informs the Commission that they were unaware of their obligations under s.170CM. Many termination of employment provisions in awards create rights and obligations that are in addition to s.170CM. Consistent with our views set out above, in our opinion notice provisions should be comprehensive. As to parental leave obligations, the WR Act, s.170KA(4) provides that Schedule 14 establishes minimum entitlements and so is intended to supplement, not override, entitlements under State legislation and awards. Item 1(2) of Schedule 14 provides that an employee’s entitlement under Schedule 14 is reduced by parental leave entitlements under a State award or State law. Regulation 30(f) of the WR Regs makes a similar statement. Consequently, Schedule 14 and Division 2 of the WR Regs must be read together with Division 5 of Part 4 of the MCE Act. The Commission sees no reason why a parental leave clause in an award cannot be redrafted to expressly set out the obligations of Schedule 14 of Division 2 of Part 5A of the WR Regs and Division 6 of the MCE Act.
189 As to statutory rights created under the Act and the Regulations made under the Act, it is clear that some statutory conditions such as superannuation, under s.48B recognise it is not necessary to incorporate a superannuation provision into an award. Section 48B(2) makes this plain. It is only when the Commission makes an award which requires contributions to a superannuation fund that s.48B(2) and the Industrial Relations (Superannuation) Regulations 1997 must be complied with. Notwithstanding this view, it is also our opinion that award parties should be encouraged to incorporate superannuation provisions in all awards so as to enable employees to access the choice of fund options in s.48B(2). But this is not a s.40B matter if there is no superannuation clause in an award.
190 As to Division F of Part II of the Act and Regulation 4 of the Industrial Relations (General) Regulations 1997 the Commission in Court Session is of the view that for the same reasons why Part 5 of the MCE Act should be expressly set out in awards, Division F and Regulation 4 should also be expressly set out in awards or incorporated by reference where the award provides for record keeping. From time to time the Commission deals regularly with industrial matters that involve an alleged non-compliance by an employer to comply with statutory employment record keeping obligations whereby an employer claims ignorance of their obligations.
191 As to Division 2G of Part II, s.49H(2) expressly contemplates that an award may contain a right of entry clause for an authorised representative of an organisation to hold discussions with employees, which provides for a period of notice to be given by a representative. Pursuant to s.49N(3) this is the only requirement that may vary from the provisions of Divisions 2F and 2G. In updating an existing provision or in deleting an obsolete provision the provisions of ss.49g and 49H can either be set out in full in the award or be incorporated by reference.
Standard clauses in awards
192 This Commission in Court Session is not generally in favour of standard clauses for conditions of employment in awards. Each award has its own history which should be considered when varied under s.40B. For example, in relation to annual leave, whilst many awards incorporate the MCE Act minimum conditions these provisions for annual leave awards contain conditions that are not dealt with by the MCE Act and are peculiar to an industry. For example, some awards enable employers to direct employees to take annual leave during the Christmas break or during periods of stand down. Whilst such provisions cannot apply without the consent of an employee to periods of annual leave that has accrued longer than 12 months, (see s.25 of the MCE Act) these provisions can be applied to periods of annual leave that have not accrued for a period of 12 months. When amending an award to incorporate MCE Act provisions or other statutory conditions, each award should be reviewed by the Commission in light of its history and the matters set out in s.40B(1)(e), s.26(1)(vi) and Object s.6(af). The Commission may also be required in some matters to review other legislation. For example, employees bound by the Children’s Services (Private) Award contend that an operational conflict exists between Regulation 30 of the Community Services (Child Care) Regulations 1988 and the provisions of the MCE Act in respect of sick leave. This Commission in Court Session is of the view that if there is an operational conflict, the Commission can explore in the context of updating an award provision whether the conflict can be resolved by taking into account both requirements. If it is the case that it is an operational requirement or a need of the child care industry for employees to be compelled to notify absences prior to shifts commencing and if it is the case that the MCE Act does not empower deduction of pay from paid sick leave if an employee does not notify their employer, whereas clause 11(3) of the Children’s Services (Private) Award contemplates some form of compulsion, it is open to consider whether having regard to the matters set out in s.40B(1)(e) of the Act, some other form of compulsion or encouragement to employees to notify employers of their absence from work should be provided for in the award.
193 In relation to the agreed position set out in paragraph 6 of this statement in respect of s.40B(1)(d) the Commission in Court Session agrees with that position except in relation to one matter: It does not agree that where there is no dispute in relation to matters (under point 2 of paragraph 6) raised by an award party in (the absence of consent) the Commission, should not determine the matter. There are many applications to vary awards that are heard by the Commission where no party or person seeks to be heard to oppose the application. This Commission in Court Session agrees that references to out of date legislation, codes, definitions, policies and no reduction clauses should be updated under s.40B(1)(d). Some references are obviously out of date so that the Commission, can bring such matters to the attention of award parties. Other matters may not be obvious except to those who work in a particular industry or workplace. The updating of these matters by the Commission should occur after award parties have raised a matter before the Commission .
Section 40B(1)(c) and (d)
194 In relation to s.40B(1)(c) this Commission in Court Session agrees that provisions in awards that directly, unlawfully discriminate in work should be identified by the Commission. After hearing from the award parties and others in s.40B(3) those provisions may be removed. Award parties can also bring an application to the Commission under s.40 where they say a provision directly, unlawfully discriminates in the workplace. This process should also apply to indirect discrimination. However, as the submissions made in these proceedings reveal, the identification of award provisions that create or have the potential to create indirect discrimination is more difficult. Analysis of whether an award provision is capable of being applied in a workplace that indirectly discriminates will usually require knowledge of how an award provision is applied in that workplace. Such knowledge is within the knowledge of those who work in the workplace. Further it would be an impossible task for the Commission to investigate all workplaces in which each of its 353 awards apply. This Commission in Court Session is surprised that, with the exception of AMMA and the ALHMWU, an anti-discrimination clause in the form adopted by the Australian Industrial Relations Commission is not favoured by any of the bodies who made submissions in this matter. This Commission is of the view that it has the power under s.40B(1)(c) and (d) to insert into an award a clause of the kind contemplated by AMMA and the ALHMWU in their submissions where it is satisfied that it is appropriate to do so to address indirect discrimination. Such a clause can be characterised for the purposes of ensuring an award does not contain provisions that discriminate against an employee on any ground on which discrimination in work is unlawful under the EO Act by the Commission. Further, in inserting such a clause into an award the Commission can rely upon the power of s.40B(1)(d) to vary an award for the purposes of ensuring an award provision is up to date.
195 The Commission in Court Session does not accept the submission that pay equity is not a matter appropriately dealt with under s.40B(1)(c). The application of the minimum rates adjustment process would appear to be the basis upon which the adjustment process could proceed. This may attract a consideration of s.40B(1)(c) and or (d).
196 This Commission in Court Session accepts the submission that an award can be amended under s.40B(1)(d) to correct spelling and typographical errors, remove gender neutral language, remove or explain jargon or legalese and change references in awards from “de facto spouse” to “de facto partner”. Making such amendments can be said to be for the purpose of updating an award provision.
Section 40B(1)(e)and facilitative provisions
197 Each member of the Commission is required under s.19 of the Act to keep him or herself acquainted with industrial affairs and conditions. There may be circumstances where it comes to the Commission’s attention that prima facie conditions exist for the exercise of the power and require the Commission to conduct a review under s.40B(1)(e) without any issue being first raised by any person. Issues encompassed by s.40B(1)(e) may come to the attention of the Commission from other proceedings involving or relating to that award . If a review is commenced by the Commission in such circumstances, the Commission is required to give the award parties and the others named in s.40B(2) to give them an opportunity to be heard. Where conciliation between those persons fails the Commission should determine the matter which might involve evidence to be adduced as to the matters set out in s.40B(1)(e).
198 The Commission in Court Session agrees with the submission made by the ALHMWU that the Commission has no power under s.40B(1)(e) to implement facilitative clauses of the kind contemplated by the Chamber. In Ngala Family Resource Centre v ALHMWU (1996) 77 WAIG 2551 (“the Ngala decision”) the Industrial Appeal Court held that an enterprise flexibility provision in an award that enabled an employer and an employee or a group of employees to reach agreement upon terms and conditions of employment to meet the requirements of the employer’s enterprise and the aspirations of the employee or employees, was invalid. Whilst the clause required that where the terms of the agreement would be inconsistent with the terms of the award, the union was to be notified before the term is settled, the enterprise flexibility provision provided for non-union negotiation. Anderson, J with whom Franklyn and Scott, JJ agreed held at 2554:
“It seems quite clear from the Principles and from all that is said in the State Wage Decision about enterprise bargaining that it is to be achieved within the existing legislative framework, that is, the Industrial Relations Act. That legislative framework provides for an award based system in which awards are negotiated or arbitrated between employers and registered organisations of employees. I think Ms Jackson who appeared on behalf of the respondent union is correct in her submission that the Principles relate to an award based system of industrial regulation and because that is the system, and because under the system the union is an essential party to the award, the union is an essential part of the system. Therefore the attempted introduction into an award of provisions which in effect provide for a non-union stream of wage determination is incongruous, and inconsistent with the Principles.
In my opinion, it does seem out of keeping with the present long standing legislative framework to have in an industrial award binding upon a union and to which the union is a principal party a provision which contemplates that the award may be varied on the striking of an agreement with a body of persons not a principal party to the award - especially as some of the body may be wholly opposed to the agreement. This seems to me to be, with respect, inimical with the award based system provided for in the Industrial Relations Act as that Act presently stands.
Whilst there may be, outside of the award system created by the Industrial Relations Act, through the medium of the Workplace Agreements Act, a means whereby substantially the same result can be achieved the question is whether it is a proper exercise of discretion on the part of the Commission to import into the award based system a non-union stream, by the device of award amendment.
In answering that question not much help is to be gained from a consideration of other legislation such as the Workplace Agreements Act or even, these days from a consideration of the enterprise flexibility provisions in the Industrial Relations Act, 1988 (Cth). As was pointed out during this appeal the Commonwealth legislation has developed along very different lines than has the State legislation on this subject of enterprise bargaining. For better or for worse, it is the State Act to which the Court must first look for the guiding principles and if it can be seen that the inclusion of a particular provision in an award by way of amendment to the award is inconsistent with the principal objects of the State Act I do not think it could be regarded as a proper exercise of discretion, prima facie at any rate. No doubt there will be cases in which an award provision might seem to conflict with one or other of the stated objects of the Act and yet the provision may be in overall conformity with those objects.
In my opinion a provision such as that which was inserted by the Commission at first instance into these awards takes enterprise bargaining at enterprise level well beyond the warrant provided in the State Wage Fixing Principles and does run counter to the main features of the award based system laid down by the Act and to the principal objects of the Act. By force of the Act it is absolutely necessary that the union must be heard upon any application for an award variation or upon any application for registration of a s.41 agreement; therefore I do not see how it could possibly "promote goodwill in industry" (s.6(a)), "encourage, and provide means for, conciliation with a view to amicable agreement thereby preventing and settling industrial disputes" (s.6(b)), "provide means for preventing and settling industrial disputes...with the maximum of expedition..." (s.6(c)), "provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes" (s.6(d)) to effectively shut the union out of negotiations in respect to amendments to its own award, allowing it to be heard only at the stage of formal application for variation or registration and then only if its opposition should be held not "unreasonable". It enables an industrial outcome to be achieved which is coercive and enforceable against the union, and employees who are or are eligible to be members of the union, without union involvement and by amendment to the union's own award through an agreement to which the union is not a party. There seems to me good reason to hold that within a legislative framework containing a statement of the objects recited above, a system of wage fixing by award variation which substantially excludes a party to the award from the process of negotiation is a system which is incomplete and less than whole.”
199 After the Ngala decision was decided the objects of the Act have been amended.
200 The Labour Relations Reform Act 2002 added objects (ad), (af) and (ag) which provide as principal objects of the Act:
“… to promote collective bargaining and to establish the primacy of collective agreements over individual agreements,”
“… to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises” and
“…to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises”.
201 These objects, in our view, reinforce the system of industrial relations whereby unions are essential parties to the award system and the making of agreements under the award system. Even if implementation of facilitative clauses of the kind contemplated by the Chamber could be said to be prima facie authorised by the provisions of the Act, this Commission would have to be satisfied that some mechanism could be put in place within the facilitative provision that ensured that the process was fair to relevant employees and industry, whilst facilitating efficiency.
202 As to whether the Chamber’s list of matters , such as the removal of limits on the ordinary hours of work should be dealt with under s.40B, the Commission in Court Session is of the view that if employers wish to pursue these issues they should do so by making an application under s.40 of the Act as it is the award parties who are in the best position to assess these issues as these are matters within the knowledge of the parties and persons who are bound by the provisions of an award.
203 In relation to the specific questions raised in the discussion paper this Commission in Court Session makes the following observations.
Test Case Standards
204 This Commission in Court Session is of the view that where there is an express right in an award for an employer to direct employees to work overtime, the award provision should be reviewed by the Commission to ascertain whether the provision should be updated. Part of that review would consider whether the principles enunciated in the Federal Working Hours Case should be adopted by the Commission in relation to that award. Consideration of the application of the Federal Working Hours Case will require the Commission to consider whether the standards enunciated in that case can be said to establish a benchmark that needs to be applied to modernise an award. The same principles, in our view, apply to a review of a severance pay provision in an award.
205 We do not agree with the submissions made on behalf of employers bound by the Metal Trades (General) Award that that award adequately deals the right of an employee to refuse to work unreasonable overtime. This Commission in Court Session is of the view that prima facie clause 14(3)(i) of the award is capable of being updated as this clause does not define the circumstances of the requirement of employees to work “reasonable” overtime.
Modes of employment
206 Whether awards should contain a provision that enables employees to work part time, is a matter that will have to be considered on an award by award basis under s.40B. In considering whether to vary an award to insert a clause providing for part time employment, the Commission may come to the view it is relevant to consider in the context of s.40B(1)(c) and (d):
(a) Whether prima facie an employee or group of employees could be indirectly discriminated against if part time employment is not available to them;
(b) In determining (a), the Commission would be required to decide whether the requirement to work full time is unreasonable. In considering this issue, the nature of the industry and enterprises within it and the needs of the employees may be relevant; or
(c) Whether the inclusion of a provision for part time work is necessary to update a provision in the award.
Flexibility in working arrangements
207 We adopt a similar approach to whether provisions should be inserted into awards to provide for job-sharing, flexibility in working hours to fulfil family responsibilities and rostering arrangements.
208 Whether shift penalties are able to be reviewed s.40B is a matter that may or may not arise. Such a question would have to be considered on an award by award basis. In some industries such provisions could be regarded by some as outdated. However, to vary a shift penalty clause the Commission may also have to consider whether the clause is consistent with the facilitation of the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises.
Structural efficiency and enterprise bargaining provisions
209 Whilst the Commission in Court Session notes that s.40A of the Act empowers the Commission to vary an award by consent to incorporate some or all of the provisions of an industrial agreement into an award, the Commission in Court Session is of the view that in some cases a work pattern or work patterns may have become entrenched over time because a series of industrial agreements have over-ridden the provisions of an award. At the same time, technological changes, changes in community standards, or matters such as the system of provision of services or goods in an industry may have rendered the award provision obsolete or out of date. Whether an award provision should be varied in such a case under s.40B(1) would, in our view, require a consideration of the matters set out in s.40B(1)(d) and (e).
Scope clauses
210 As to scope clauses in common rule awards, it is the view of this Commission in Court Session that the scope clauses of many awards of this Commission are obsolete or out of date and should be updated. As acknowledged by the SDA the Shop and Warehouse (Wholesale and Retail Establishments) State Award is out of date. This Commission is of the view that the award parties should have discussions about this issue. We acknowledge that this issue is being addressed in Application 926 of 2003 pursuant to s.40 of the Act.
Variation of wages rates and classifications
211 In relation to the Minister’s submission that all existing traineeship provisions including traineeship rates of pay should be updated under s.40B(1)(d) the Commission in Court Session notes that is a matter that is being dealt with as a separate and discrete issue by the Commission. In the 2004 State Wage decision (2004) 84 WAIG 1521 the Commission in Court Session at [86] to [90] held that the Commission would review traineeship provisions in all awards.
Supported Wage System
212 Where an award provides for out of date clauses such as “under rate workers clauses” the Commission in Court Session is of the view that such clauses should be replaced with a standard Supported Wage Scheme clause. To do so in our view is to vary an award for the purposes of ensuring an award does not contain provisions that are obsolete or need updating within the meaning of s.40B(1)(d).
Standard Arrangement Clause
213 The Commission in Court Session is of the view that the Registrar’s Standard Arrangement clause is a matter that can be implemented when varying an award under s.40B(1) of the Act. The variation of the arrangement clause, and other clauses, to arrange an award in accordance with the Registrar’s Standard Arrangement clause is within power and such a variation is, in our view, clearly to be for the purposes of s.40B(1)(d) and (e). In particular to ensure an award does not contain provisions that need updating and to facilitate the efficient organisation and performance of work by providing for arrangement clauses to be easily accessed by electronic technology and to be easily read and understood by common numbering. The Commission in Court Session is of the opinion that the Registrar’s Standard Arrangement clause should be applied to all awards of this Commission. Clauses 1 to 7 of the Registrar’s Standard Arrangement clause should be the same in each award, that is, Award Structure, Arrangement, Contract of Employment, Hours of Work, Rates of Pay, Allowances and Facilities, Leave and Dispute Resolution Procedure. Whilst clauses such as 4.1 Minimum Adult Award Wage, should usually be the same number in all awards, there will not be the same number of sub-clauses in each clause. For example, Clause 4 – Rates of Pay in one award may contain sub-clauses 4.1 and 4.2, whereas in another award Clause 4 – Rates of Pay may contain a number of rates of pay such as sub-clauses 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8 etc. As each State award is an award of this Commission and it is the duty of the Commission to act under s.40B(1) once the award parties agree to the format of an arrangement clause and the process in s.40B(2) has been complied with, the Commission through its Registry staff will carry out the task of re-arranging the award in accordance with an agreed arrangement clause. Where there is a dispute as to the contents and form of the standard arrangement clause the Commission will, if conciliation fails, determine the matter in accordance with the requirements of s.40B.
Appendices and schedules
214 It is also this Commission in Court Session’s view that appendices and schedules should be reviewed and if appropriate be incorporated into the main body of an award. Many appendices and schedules duplicate provisions already contained within the main body of an award, such as resolution of disputes requirements.
Method of calculating allowances
215 The Commission in Court Session is of the view that where a formula is well established for calculating an allowance in accordance with the State Wage Principles the formula can be inserted in an award as to do so can be said to be an amendment for the purposes of updating and award provision.
Other Matters
216 The Commission in Court Session notes that the Commission constituted differently has before it a number of applications under s.40 of the Act which seek to amend each of the four awards. These are, Application 926 of 2003 to amend the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 and Application 740 of 2002 to vary the Metal Trades (General) Award 1966. Further the ALHMWU has filed applications to vary the Children’s Services Private Award (Application 399 of 2004) and the Cleaners and Caretakers Award 1969 (Application 417 of 2004). The Commission in Court Session is of the view that all of those applications should proceed separately to this matter. We do not consider that applications under s.40 can be incorporated into these proceedings because these proceedings are on the Commission’s own motion. As Application 740 of 2002 and 399 of 2004 raise substantially the same issues as the matters raised in the Commission’s discussion paper the Commission in Court Session will not progress this award review in respect of the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 and the Children’s Services Private Award until those applications have been dealt with. We note that Application 417 of 2004 seeks to vary the Cleaners and Caretakers Award 1969 to insert an introduction to change and redundancy clause into the award. As that award does not presently contain such a provision that issue is in our view not a s.40B matter. Consequently the s.40B review by the Commission in Court Session in respect of that award can proceed prior to the determination of Application 417 of 2004. In so far as Application 740 of 2002 seeks to deal with matters raised by the Commission in Court Session in its discussion paper which relate to the Metal Trades (General) Award 1966 the Commission in Court Session will not deal with those issues until Application 740 of 2002 has been determined by the Commission.
217 This Commission in Court Session will issue proposed variations in due course. As foreshadowed before doing so it proposes to divide the matter into four and minutes of the order will be forwarded in due course.