S.40B VARIATION OF THE METAL TRADES (GENERAL) AWARD NO. 13 OF 1965

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES (COMMISSION'S OWN MOTION)

APPLICANT

-v-

(NOT APPLICABLE)

RESPONDENT

CORAM CHIEF COMMISSIONER A R BEECH

SENIOR COMMISSIONER J F GREGOR

COMMISSIONER J H SMITH

HEARD THURSDAY, 21 JULY 2005

DELIVERED WEDNESDAY, 23 NOVEMBER 2005

FILE NO. APPL 555 OF 2005

CITATION NO. 2005 WAIRC 03121

CatchWords Award – Award variation – on Commission’s own motion to reflect statutory requirements – Proposed variations – Industrial Relations Act 1979 (WA) s 40B

Result Proposed variations issued

Representation 

Respondents Mr B. Entrekin on behalf of the Department of Consumer and Employment Protection acting as agent for the Minister for Consumer and Employment Protection

Ms C. Ozich (of Counsel) on behalf of the Trades and Labour Council

Mr G. Blyth on behalf of the Chamber of Commerce and Industry of Western Australia acting in its capacity under s 40B(2)

Mr L. Edmonds (of Counsel) on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division, WA Branch

Mr D. Hicks on behalf of The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers – Western Australian Branch

Mr M. Borlase on behalf of employer members of the Chamber of Commerce and Industry of Western Australia

Reasons

1          This is an application on the Commission’s Own Motion pursuant to s 40B of the Industrial Relations Act 1979 ("the Act") to allow the Commission to consider what variations are to be effected to the Metal Trades (General) Award No. 13 of 1965.  Section 40B of the Act was examined in a Statement issued by another Commission in Court Session on 3 September 2004 (2004 WAIRC 12690; (2004) 84 WAIG 2739).  That Commission in Court Session did not sit after the retirement of the then Chief Commissioner on 30 November 2004 and the application was subsequently discontinued for that reason.  The Commission in Court Session in this matter asked the parties to the award and the intervenors, and the persons mentioned in s 40B(2) of the Act, whether they wished to make any submissions regarding the matters which should be taken into account in considering the amendments to be made to the award.  The Commission in Court Session sat for the purpose of hearing those submissions.  The Commission announced at the commencement of proceedings that it was considering following the conclusions set out in the Statement and gave all persons appearing an opportunity to comment upon that intention.  The Commission also requested answers to questions asked and issues raised in Attachment A to the discussion paper for the two awards before the Commission and any other clause-by-clause issues under s 40B(1)(e).

2          Submissions were received from the Hon. Minister, the Trades and Labour Council ("TLC"), the Chambers of Commerce and Industry of Western Australia ("CCIWA") and the Australian Mines and Metals Association ("AMMA").  Submissions were also received from the The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers – Western Australian Branch ("AFMEPKIU") and employers bound by the Metal Trades (General) Award who are members of the CCIWA. 

3          When the Commission in Court Session convened, the Commission raised with all persons appearing their status in the proceedings.  An understanding was put to the Commission that all persons appearing sought to appear on the same basis as they had sought to appear in the earlier Commission in Court Session.  On that basis, and having given the matter some consideration, and having regard to the status of persons in application 44 of 2004 as evidenced on page 4 of the transcript of 14 April 2004, the Commission in Court Session determines that the Hon. Minister, TLC, CCIWA and AMMA be granted leave to intervene in this matter.  The named parties to each of the two awards to be heard in these applications are parties to the matter.  Persons who are not named parties to the awards and who have filed warrants to appear in this matter are granted leave to intervene. 

4          We have again considered the comprehensive material placed before the Commission in the earlier Commission in Court Session.  We find it is significant that that material includes areas where substantial agreement was reached between the various parties to that matter.  We consider it important to place weight upon matters where the parties to the awards, and even the persons mentioned in s 40B(2), who work with the awards sometimes on a day-to-day basis have reached agreement.  The Statement which issued dealt comprehensively with all of the issues which arise in the application of s 40B(1) of the Act.

5          In these proceedings, the Hon. Minister resubmitted his detailed submission to the earlier Commission in Court Session including comments on individual award clauses.  The TLC submitted that this Commission in Court Session can, and should use the Statement as a guide and take into account the conclusions in the Statement; the TLC restated its position in relation to facilitative clauses and about issues relating to amending area and scope clauses in awards to ensure clarity in the application of the award and removal of obsolete references. 

6          The CCIWA submitted that the Commission in Court Session should not simply follow the Statement and that it can, and should be disregarded.  The CCIWA submitted that the Commission in Court Session should exercise its own independent judgement and if the Statement is to be considered at all, the Commission must also have regard for all of the materials and submissions that were before the Commission and the Commission must therefore decide for itself whether or not the tentative views expressed in the Statement should now be followed in whole or in part, or be discarded.  The CCIWA submitted that the Commission in Court Session should not follow the Statement where it is inconsistent with submissions which had been made by the CCIWA; the views expressed in the Statement regarding facilitative provisions are “narrow views” and the Commission should not feel constrained by them.  The CCIWA submitted that it is not permissible under s 40B to alter the existing scope of an award by increasing or decreasing its coverage.

7          We have given consideration to these submissions, the material before the previous Commission in Court Session and the resulting Statement.  We consider the Statement adequately expresses our view on this occasion.  Where any different conclusion is reached in relation to a particular matter, that will be apparent in the Reasons which follow.  In general terms, however, the proposed variations which now issue are consistent with the conclusions we have reached which, without the need for repetition, are conveniently stated already in the Statement. 

8          We now consider what variations should be made to the award.  In addition to the material which has been before the previous Commission in Court Session, this Commission also has the written submissions of the AFMEPKIU and written responses of the employer members of the CCIWA (letter, 26 August 2005).  The proposed variations which now issue follow our consideration of the submissions and responses and reflect most of the matters raised by the Commission in a discussion paper issued by the Commission on 16 December 2003 at pages 8 to 20 (“the discussion paper”).  We comment on those changes below where we consider it would be of assistance to do so.  The changes we propose include removing language that could be said to be gender biased, update references containing Latin phrases, legislation including subsidiary legislation, names of government departments and amend typographical errors.

CLAUSE 1 – TITLE

9          We are not persuaded that the words after “consolidated” in clause 1 of the Award are obsolete.  We only propose to delete the reference to 1966 in clause 1.

CLAUSE 2 – ARRANGEMENT

10       We propose to vary the arrangement clause as set out at pages 19 to 21 of the discussion paper.  However to assist the parties in considering proposed variations the current numbering of the award will be referred to in this decision and a tracked copy of proposed variations will only contain the new arrangement in clause 2.  Otherwise the other clauses will reflect the current arrangement clause.

CLAUSE 3 – AREA AND SCOPE

11       The award states that it does not apply “within the area occupied and controlled by the United States Navy at and in the vicinity of North West Cape in relation to Increment 1 of the construction of the Communications Centre”.  It is commonly known that the Communications Centre has long since been completed.  The exclusion therefore ceased to have any practical effect a considerable time ago.  We propose to delete these words.

12       Their removal necessarily changes the wording in the parts of the award that relate to its area of operation and scope.  Section 29A(1b) obliges the publication of proposed variations to the area and scope provisions of an award.  We consider that there is much to be said for the view that where the Commission acting under s 40B proposes to remove obsolete wording to correctly reflect the actual, present-day area and scope of the award the obligation does not, by virtue of s 40B, apply.  We invite submissions on this view.

13       We do not propose to list the industries in this clause.  Further we agree that there is no scope to add to or decrease the scope of an award under s 40B.

CLAUSE 4AA – EQUAL OPORTUNITY

14       For the reasons set out in paragraph 195 of the Statement we propose to insert a clause which requires that the terms of this award be interpreted and applied so as not to discriminate on any ground that is unlawful under the Equal Opportunity Act 1984.

CLAUSE 5 – DEFINITIONS AND CLASSIFICATION STRUCTURE

15       We consider that the definitions of “apprentice” and the “Commission” as contained in the Act, together with the definition of “casual employee” in the Minimum Conditions of Employment Act 1993, operate by virtue of that legislation and override any contrary provision in the award.  Accordingly, we propose those definitions be included.  We also propose to update clause 5(2)(c) by deleting references to reclassifications that were required to be commenced by 1973.

CLAUSE 6 – CONTRACT OF SERVICE

16       We propose to vary clause 6(2)(a) to delete the notice period of one day during the first month as this provision appears to breach s 170CM of the Workplace Relations Act 1996.  Further, we propose that where an award provision, as in subclause 6(2)(f)(i), refers to a number of types of paid leave, those types of leave may conveniently be described together as “paid leave”. 

CLAUSE 7 – HIGHER DUTIES

17       The employers bound by this award suggested that this clause should be amended to provide for payment only for hours worked.  We are not persuaded that this is a matter that is able to be done under s 40B.

CLAUSE 8 – UNDER RATE WORKERS

18       We propose to delete and update this clause by substituting a Supported Wage System for Employees with Disabilities clause.

CLAUSE 9 - APPRENTICES

19       The employers bound by this award suggested that the ratio of apprentices to tradespersons should be reviewed.  We are not of the view that this is a matter which is able to be done under s 40B.  We propose to delete the note as it appears to be obsolete.

CLAUSE 10 – JUNIOR EMPLOYEES

20       The parties and interveners who are bound by the award raise the question whether this clause is discriminatory.  In the absence of evidence or argument we are not persuaded that this provision is discriminatory.  However if this is an issue which the parties and interveners who are bound by the award wish to pursue we will hear that argument and if persuaded issue a proposed variation to this clause.

CLAUSE 11 – PART TIME EMPLOYMENT

21       We consider that references to specific types of leave should include reference to the entitlement in s 20A of the Minimum Conditions of Employment Act for an employee to use a portion of their sick leave entitlement to be primary care giver of a member of the employee’s family (“carer's leave”).  Accrual of sick leave should be the same as that in the Minimum Conditions of Employment Act.

22       The unions propose that clause 11 can be varied to delete the references to specific types of leave and replace them with a statement that a part time employee is entitled to be paid leave in the award in the same proportion as the hours worked.  We however do not agree.  Clause 11 deals with a number of matters that do not relate to proportionate leave.  For example clause 11(3)(e) deals with overtime.

23       The parties and interveners bound by the award contend that limitations on hours of work for part time employees, particularly to allow variation by agreement of rosters without penalty for up to 38 hours a week should be allowed.  In the absence of evidence or argument about this matter we are not persuaded that this is a matter that arises under s 40B.   However if this is an issue which the parties and interveners who are bound by the award wish to pursue we will hear that argument and if persuaded that this is prima facie a matter that arises under s 40B and that  a proposed variation to this clause should issue we will issue a proposed variation at that time.

CLAUSE 12 – CADETS

24       The Registrar has informed the Commission that no notifications of engagement of cadets under this award have been received for at least the past seven years. In light of this information we propose to delete this clause.

CLAUSE 13 – HOURS

25       We propose to delete clause 13(3)(b) and clause 13(4) as they appear to be obsolete.

CLAUSE 14 – OVERTIME

26       The unions submit that the decision of the Full Bench of the AIRC in the Working Hours Case [PR072002] should be incorporated into the “reasonable overtime” provision in subclause 14(3)(i).  We have had regard to the Statement at [204] and [205].  We note that s 40B(1)(e) requires a balancing of the facilitation of the efficient organisation of work according to the needs of an industry and the enterprises within it and fairness to the employees in the industry and enterprises.  The AIRC decided to insert a provision which clarifies the right of an employee to refuse to work overtime where it would be unreasonable having regard to certain factors.  We regard that provision as providing that balance and propose to issue a proposed variation to the award accordingly and wish to be addressed upon this intention.

CLAUSE 15 – SHIFT WORK

27       The employers who are bound by the award contend that the award should be amended to provide for facilitative provisions to allow individual agreement on matters between the employer and employees relating to among other things, hours of work, overtime and shiftwork.  For the reasons set out in paragraphs [197] to [202] of the Statement we are of the opinion that the insertion of facilitative provisions of the kind sought by the employers is beyond the power of the Commission.

CLAUSE 16 –PAYMENT OF WAGES

28       The parties and intervenors who are bound by the award contend that this clause should be amended to provide for salary packaging.   In the absence of evidence or argument about this matter we are not persuaded that this is a matter that arises under s 40B.  However if this is an issue which the parties and interveners who are bound by the award wish to pursue we will hear that argument and if persuaded that this is prima facie a matter that arises under s 40B and that  a proposed variation to this clause should issue we will issue a proposed variation at that time.

CLAUSE 17 – TIME AND WAGES RECORDS

29       This clause should be replaced with a provision consistent with the requirements of the Act. 

CLAUSE 18 – SPECIAL RATES AND PROVISIONS

30       The unions suggested in this clause, and in some other clauses, that the formula for calculating each allowance should be included.  We are not persuaded that that is a matter which comes within s 40B of the Act. 

CLAUSE 22 – LOCATION ALLOWANCES

31       The employers bound by this award submit that an amendment should be made to require dependents to live with the recipient of the location allowance in order to be entitled to the second allowance provided for.  We do not consider this is a matter that falls within s 40B.

CLAUSE 23 – PUBLIC HOLIDAYS AND ANNUAL LEAVE

32       We consider the provisions of this clause will be easier to read if annual leave and public holidays are in separate clauses.  The employers bound by this award suggest that any provision within the award which is covered by the Minimum Conditions of Employment Act ought to be deleted.  We have given consideration to this but, consistent with our views expressed in the Statement, we consider it appropriate under s 40B to ensure that the provisions in the award remain and are consistent with the Minimum Conditions of Employment Act. 

CLAUSE 24 –ABSENCE THROUGH SICKNESS

33       We consider that this clause should be renamed Sick Leave and propose that a separate clause should be added to the award to provide for carer’s leave.  In addition we propose that the provision be consistent with the Minimum Conditions of Employment Act.

CLAUSE 26 - REPRESENTATIVE INTERVIEWING EMPLOYEES

34       We propose that clause be deleted and ss 49G and 49H of the Act be incorporated by reference.  We also propose a new clause to incorporate by reference s 49I of the Act.

CLAUSE 28 – BOARD OF REFERENCE

35       The unions submit that this clause can be deleted as obsolete on the basis that it is rarely, if ever, used.  This is opposed by the employers bound by this award.  We draw attention to s 48 of the Act which provides that for every award there is to be a Board of Reference; there may be an argument that the Act thus provides for a Board of Reference for this award even if the clause within the award was to be deleted.  Significantly, however, the Act prescribes that the functions of the Board of Reference are those which are prescribed for it in the award.  We therefore propose to retain the clause in the award.

CLAUSE 29 – BEREAVEMENT LEAVE

36       We propose that this clause be consistent with the Minimum Conditions of Employment Act.

CLAUSE 30- MATERNITY LEAVE

37       We propose to delete and replace this clause with a clause that reflects the provisions of the Minimum Conditions of Employment Act and the Workplace Relations Act and the Workplace Relations Regulations 1996.

CLAUSE 31 – WAGES AND SUPPLEMENTARY PAYMENTS

38       We do not consider that removing the makeup of the total wage to a schedule would be of assistance.  As the rates for juniors under the age of 16 years and the rates for 16 years, 17 years and 18 years are less than the rates for juniors set by the minimum wage we are of the opinion that these rates should be amended to reflect the minimum wage.  We do not consider that the unions’ and the employers’ submission that an adult rate of apprentices should be set at the third year rate is a matter that arises under s  40B.

CLAUSE 32 – INTRODUCTION OF CHANGE

39       We do not agree that this clause should be renamed or be deleted.  We do however propose to amend the clause to reflect the provisions of the Minimum Conditions of Employment Act.

CLAUSE 32A – REDUNDANCY

40       We propose to vary this clause to ensure consistency with the 2005 TCR General Order with respect to redundancy. 

CLAUSE 33 – SUPERANNUATION

41      We propose to vary this clause by updating this clause to reflect the current law and to simplify the clause.

CLAUSE 34 – AVOIDANCE OF INDUSTRIAL DISPUTES

42      We propose to rename this clause to be Dispute Resolution Procedure and delete references to the 1995 Act.

CLAUSE 36 – TRAINEESHIPS

43       We propose to vary this clause to refer to the National Training Wage award.  The Commission will be favourably inclined to include a provision if one is agreed between the parties. 

PART II – CONSTRUCTION WORK, CLAUSE 2 – CONTRACT OF SERVICE

44       We propose to vary Clause 2 with respect to casual employees to ensure consistency with the Minimum Conditions of Employment Act.  We also propose to delete the notice provisions as they are provided for in Part I.

45       The unions’ submission that the notice of termination provisions are consistent with practice in the construction industry is not clear to the members of the Commission in Court Session.  Consequently we invite further submissions in respect of this matter if it is an issue the unions wish to pursue.

PART II – CONSTRUCTION WORK, CLAUSE 9 – RIGHT OF ENTRY

46       We consider this clause is superfluous on the basis that the corresponding provisions in Part I – General of the award apply. 

PART II – CONSTRUCTION WORK, CLAUSE 14 – TERMINATION/REDUNDANCY

47       We propose to vary this clause to ensure consistency with the 2005 General Order with respect to redundancy.

PART II – CONSTRUCTION WORK, CLAUSE 15 – SPECIAL PROVISION – STATE ENERGY COMMISSION OF WESTERN AUSTRALIA

48       We propose to update this clause by deleting references to the State Energy Commission and substituting a reference to Western Power.

SECOND SCHEDULE – SCHEDULE OF RESPONDENTS

49       The Commission proposes to delete from the Schedule of Respondents those businesses no longer in existence.  The Commission is wary of replacing respondents by including a new current business unless it is clear that the business has not changed, it is merely a change of name.  However it will hear the unions further in relation to this issue.

50       The Commission proposes to delete addresses.  We invite submissions about whether the deletion of addresses will have any effect on the scope of the award (if, for example, there is a business operating at different addresses; in such a case the address may be used for correctly identifying the business referred to.  The Commission is unaware of any example of this).  The Commission asks the parties to note that a person applying to amend the award will need to provide a list of addresses for the purpose of service of the applications.  However that is a requirement separate from the identification of respondents in this schedule.

THIRD SCHEDULE – NAMED PARTIES TO THE AWARD

51       We propose to update the names of the union parties.

APPENDIX –S.49B – INSPECTION OF RECORDS REQUIREMENTS

52       We propose to delete this appendix.

CONCLUSION

53       The Commission now issues the proposed variations.  They are in the form of a “marked-up” copy of the award for the convenience of seeing the proposed variations in context.  A copy will be posted on the Commission’s website and the parties to the award will be notified by the Registrar of its presence.  The Commission will contact the parties shortly in order to re-list the matter for the purpose of receiving submissions regarding the proposed variations.