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 h smith

 Commissioner S J Kenner

HEARD Thursday, 5 October 2006, FRIDAY, 20 JANUARY 2006, WEDNESDAY, 23 NOVEMBER 2005, Thursday, 21 July 2005

DELIVERED WEDNESDAY, 4 APRIL 2007

FILE NO. APPL 555 OF 2005

CITATION NO. 2007 WAIRC 00318

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

Result Further proposed variations issued

Representation Mr B. Entrekin on behalf of the Department of Consumer and Employment Protection acting as agent for the Minister for 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. Ellis on behalf of The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers – Western Australian Branch

 Mr D. Lee and later Mr P. Moss on behalf of employer members of the Chamber of Commerce and Industry of Western Australia

Reasons for Decision

1          On 23 November 2005 the Commission published its proposed variations in this matter.  The Commission then reconvened on 20 January and 16 October 2006 and heard submissions from the award parties and the Hon Minister, the Chamber of Commerce and Industry Western Australia (“CCIWA”), the Trades and Labor Council of WA and Australian Mines and Metals Association.  The Reasons for Decision which now follow deal with the matters raised both during the hearings and subsequently in writing.  They are in addition to the Reasons of 23 November 2005 (2005 WAIRC 03121); for reasons of consistency, the clause numbers which follow are the numbers referred to in those earlier reasons.  The new clause numbers are also included for ease of reference.

Clause 3. - Area and Scope (now Subclause 1.3)

2          The variation proposed in this matter to the area and scope clause of the award is to remove the words "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 common ground that these words refer to construction work completed decades ago. 

3          The Commission in Court Session invited submissions whether section 29A(1b) of the Industrial Relations Act 1979 (“the Act”) applies where the Commission, acting under section 40B, proposes to remove obsolete wording to correctly reflect the actual, present-day area and scope of an award.  We note the unanimous view of those who responded to our invitation that it does not. 

4          Sections 29A(1a) and (1b) are as follows:

(1a) In this section -

 “area and scope provisions” means the parts of an award or industrial agreement that relate to the area of operation and scope of the award or industrial agreement.

 (1b) Subject to subsection (2a) -

 (a) area and scope provisions of a proposed award or industrial agreement; and

 (b) proposed variations to the area and scope provisions of an existing award or industrial agreement,

  shall be published in the required manner.

5          Section 29A(1b) is mandatory.  Failure to publish a proposed variation to the area and scope provisions of an existing award if it is required will render the proceedings voidable upon appeal: Airlite Cleaning Pty Ltd v The Australian Liquor, Hospitality & Miscellaneous Workers’ Union, Western Australian Branch (2001) 81 WAIG 769. 

6          Section 29A(1b) is subject to subsection (2a) which is as follows: 

(2a) The Chief Commissioner may, if the reference of an industrial matter to the Commission seeks -

 (a) the issuance of an award or the registration of an industrial agreement in substitution for an existing award or industrial agreement the area of operation and scope of which are the same as those of the award or industrial agreement sought to be issued or registered, as the case requires; or

 (b) the registration of an industrial agreement - 

 (i)  the area of operation and scope of which are the same as those of; and

 (ii) the parties to which are the same as the named parties to,

  an existing award,

direct that the area and scope provisions of the proposed award or industrial agreement - 

 (c) need not be published in the Industrial Gazette; or

 (d) need not be published at all,

as he thinks fit.

7          Therefore, unless subsection 29A(2a) applies, if the variation proposed in this matter to the area and scope clause of the award is a “proposed variation to the area and scope provisions of an existing award”, it is required to be published in the required manner.  Subsection 29A(2a) applies to “the reference of an industrial matter to the Commission”.  These proceedings to vary the award are made on the Commission’s own motion under section 40B of the Act.  The Commission has previously held, when considering the application of section 32 to proceedings under section 40B, that the variation of an award pursuant to section 40B is an industrial matter which has been referred to the Commission on the Commission’s own motion (re Dardanup Butchering Co and Others [2004] WAIRC 10864; (2004) WAIG 465). 

8          We see no need to revisit the correctness or otherwise of that finding.  We note however that  what we have before us is a variation of an award and that subsection 29A(2a)(a) applies to the issuance of an award.  We are therefore of the view that subsection 29A(2a) does not apply. 

9          We turn to consider section 29A(1b)(b).  It is common ground that the proposed variation will merely reflect the award’s practical area and scope because 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 has long since ceased to exist.  However, in doing so, the proposed variation will nevertheless change the wording of the area and scope clause.  It will vary “the part of the award that relates to the area of operation and scope of the award” (as those words are used in section 29A(1a) and (1b)) even if it does not vary the award’s area and scope in a practical sense. 

10       Further, the requirement is to publish the proposed variations to “the area and scope provisions” of an existing award.  These are not the same as the “area of operation and scope” of the award: the area of operation and scope of an award is determined by applying the area and scope provisions of the award.  The distinction between the two is recognised in section 29A(2a) which gives a discretion to the Chief Commissioner to direct that the “area and scope provisions” of a proposed award or industrial agreement need not be published where the “area of operation and scope” are the same as those of the award or industrial agreement sought to be issued or registered, as the case requires.  Thus, the discretion is available where the area of operation and scope of a proposed award is the same as the area of operation and scope of an existing award even if the wording of the area and scope provisions of a proposed award is a different wording to the area and scope provisions of the existing award.

11       We consider that this leads inevitably to the view that the proposed variation to the area and scope clause of the award must be published in the required manner.  We consider, particularly given the view of the parties, that this conclusion may warrant consideration of whether an amendment to the Act should be made to cater for a circumstance such as the present where the proposed variation is for the purpose of ensuring under section 40B(1)(d) that the award does not contain provisions that are obsolete or need updating.  The Registrar will be directed by the Commission to publish the proposed variation.  

CLAUSE 6. - CONTRACT OF SERVICE (now Subclause 2.1)

12       Those instructing the Hon Minister provided to the Commission in Court Session a draft of proposed amendments to this clause and CCIWA provided comments and amendments to the draft proposed by the Hon Minister. 

13       Pursuant to section 659 of the Workplace Relations Act, 1996 (“the WR Act”), section 661 of the WR Act and the Workplace Relations Regulations 2006 (“the WR Regulations”) in respect of the giving of notice, applies to all employees in Western Australia including those covered by State awards.  It is clear from the comprehensive nature of those legislative requirements that an argument could be raised that those provisions cover the field of giving notice (to terminate a contract of employment) to all employees in Western Australia, except those expressly excluded by section 638 of the WR Act, so there is no room for any inconsistent provision of an award of this State to apply.

14       In relation to the definition of “serious misconduct”, as regulation 12.10 of Division 4 of Part 12 of Chapter 2 of the WR Regulations, provides a fairly extensive definition of serious misconduct, we agree that the definition can be incorporated by reference as proposed by CCIWA.  However, we are of the opinion that regulation 12.10 should be referred to in subclause (1)(b) so that after the words “as defined by” the words should be inserted “regulation 12.10 of Division 4 of Part 12 of Chapter 2 of the Workplace Relations Regulations 2006”, as it is difficult to find the relevant regulation in the WR Regulations without providing a reference to the Division, Part and Chapter.

15       We also agree with the amendments proposed to subclause (2)(d) by CCIWA as that subclause accurately reflects the requirements of section 661(4) and (5) of the WR Act. 

16       In relation to subclause (2)(e) the amendment proposed by CCIWA should be inserted to ensure the clause complies with section 638 of the WR Act.  However, when regard is had to section 638(1)(c) and (e) of the WR Act, the exclusion in respect to probationary employees and trainees should be further defined as follows.  After the word “probationary employees” the following words should be added: “where the duration of the probation is three months or for a longer period and is reasonable having regard to the nature and the circumstances of the employment, apprentices, trainees engaged under a traineeship agreement or an approved traineeship”. 

17       In respect of subclause (2)(g), we agree with the CCIWA proposal that ascertaining the period of continuous service can be calculated by reference to the WR Regulations.  However, the specific regulation should be identified.  It is regulation 12.11 of Division 4 of Part 12 of Chapter 2 the WR Regulations.  We are not sure why CCIWA has not proposed to delete (ii) and (iii) of subclause (2)(g) as those provisions are contained in regulation 12.11.  We are also of the view that the provisions of regulation 12.13 should be incorporated.  Regulation 12.13 provides for the inapplicability of the notice requirements where there is a succession, assignment or transmission of the business where an employee is employed by a new employer after the succession, assignment or transmission and the new employer agrees to regard the employee’s employment as continuous for the purpose of calculating a period of notice, if an employee’s employment is terminated sometime after the succession, assignment or transmission occurs.  We propose to add a new subclause to subclause (2), which provides that: “An employee is not entitled to notice under this clause where the termination of employment occurs because of succession, assignment or transmission of the business of the employer to another person and the requirements of regulation 12.13(1)(a) and (b) are met of Division 4 of Part 12 of Chapter 2 the Workplace Relations Regulations 2006 are met”.

CLAUSE 13. – HOURS (now Subclause 3.1)

18       This clause was drawn to our attention in the context of facilitative provisions.  The submission made by CCIWA was that more could, and should, be done in this regard.  We have previously noted however the decision of the Industrial Appeal Court in Ngala Family Resource Centre v. The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Division (1997) 77 WAIG 2551 and that we consider the ratio of that decision to be binding upon us in these circumstances (see paragraph [197] and following of the Commission’s statement in (Commission’s Own Motion v. Dardanup Butchering Co and Others) at (2004) 84 WAIG 2739).

19       The CCIWA specifically drew our attention, nevertheless, to the following provisions within Clause 13. - Hours: 

13(1)(c) and (e) which provide for the spread of hours to be altered by agreement between the employer and the majority of employees in the plant, section or sections concerned. 

13(2)(b) which provides that a roster system may operate on the basis that the weekly average of 38 ordinary hours is achieved over a period which exceeds 28 consecutive days provided the employer and the majority of the employees concerned agree.

13(3)(d) which provides that a lesser period of notice of days off duty than that prescribed may be agreed by the employer and the majority of employees in the plant or section or sections concerned; and

13(3)(e)(ii) which provides that an employer and employee may by agreement substitute the day the employee is to take off for another day.

 (Our attention was also drawn to Clause 34(1) in relation to the dispute resolution procedure however, we have not found that necessarily helpful in what is to follow.)

20       These provisions to which we have specifically referred have their genesis in amendments made, essentially by consent so far as these provisions are concerned, as part of the introduction of the 38 hour week into the award in 1982 (62 WAIG 827 at 831).  We consider it significant that these provisions were introduced essentially with the consent of the employers and the unions who are the named parties to the award.  We also find it significant that there is no submission before us that these provisions have been the cause of any industrial problems whatsoever since that time; neither are we aware from our own knowledge of the award and its operation of any industrial disputes arising from these provisions. 

21       We consider, in the circumstances of this award and its history, that these provisions are 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 as contained within section 40B(1)(e) of the Act.  We propose to extend the provisions to the days of the week upon which ordinary hours are able to be worked.  We have therefore amended Clause 12(c) to provide that the provisions of the clause may be altered by agreement between the employer and the majority of employees in the plant, section or sections concerned. 

22       We observe that if, subsequently, evidence is brought to the Commission showing that this amendment causes unfairness to the employees in the industry and enterprises within it, section 40B provides a means for the Commission to re-consider this on its own motion and consider removing the amendment that we now propose.

CLAUSE 14. – OVERTIME (now Subclause 3.2)

23       We provided an opportunity to be addressed upon the proposal to introduce the "reasonable overtime" provision in this clause.  We consider the provision provides clarification of the right of an employee to refuse to work overtime where it would be unreasonable having regard to certain factors.  In that respect it provides a balance of fairness to the employees in the industry and the enterprises within it as contained within section 40B(1)(e) of the Act.  Accordingly we propose to insert the provision.

CLAUSE 15. - SHIFT WORK (now Subclause 3.3)

24       We have considered this clause also in the context of facilitative provisions.  For the reasons given in relation to Clause 13. - Hours, we propose a similar facilitative provision applying to the working of shifts.  It will provide for the provisions of the clause to be altered by agreement between the employer and the majority of employees in the plant, section or sections concerned.

CLAUSE 17. - TIME AND WAGES RECORD (now Subclause 4.7)

25       We have considered the submissions in this clause that if this clause is to refer to the right of entry and inspection provisions in sections 49D and 49E of the Act it should do so in as simple a way as possible.  We agree and propose to alter the wording accordingly. 

CLAUSE 30. - MATERNITY LEAVE (now Subclause 6.5 - Parental Leave)

26       Those instructing the Hon Minister provided to the Commission in Court Session a draft parental leave clause which incorporates the provisions of the Minimum Conditions Employment Act, 1993 (“the MCE Act”), the WR Act and the provisions of Clause 30. - Maternity Leave which remain operative. 

27       CCIWA proposes that a new subclause should be added to the draft proposed by the Hon Minister prior to the heading “Definitions” which makes comment about the provisions of the MCE Act and the WR Act.  We do not agree that such a provision should be included for two reasons.  Firstly, the subclause proposed by CCIWA does not reflect the legal effect of the provisions of the WR Act.  Section 689 of the WR Act extends the provisions of the WR Act in respect of Parental Leave in Division 6 of Part 7 of the WR Act to employees covered by State awards and the MCE Act in Western Australia.  However, section 690 of the WR Act provides that the provisions of the WR Act are intended to supplement, not override, entitlements under State legislation and awards.  Consequently, it is incorrect to say that the provisions under the award and the MCE Act “may also be” supplemented by the relevant provisions of the WR Act. 

28       Nor is it correct to say that where the clause in the award is inconsistent with the provisions of the WR Act, the provisions of the WR Act shall apply.  To the contrary section 690 of the WR Act states an intention of the Commonwealth not to cover the field of parental leave or to create any inconsistency with any provision of State law or a State award so as to render a State law or award provision inoperative.

29       Under the heading “Definitions”, we agree that the reference to parental leave is unnecessary in the definition of continuous service.

30       In respect of subclause (3), we agree the amendments proposed by CCIWA should be made as they reflect the requirements of section 34 of the MCE Act.

31       Under the heading “Transfer to a Safe Job”, CCIWA proposes to apply the provisions which relate to “ordinary maternity leave” in the WR Act through the application of the documentary requirements of sections 270 and 271 of the WR Act.  In our view such an amendment is not appropriate as the award currently provides for the right of a female employee to transfer to a safe job which is not subject to the documentary requirements set out in sections 270 and 271 of the WR Act.  In our opinion, the documentary requirements of sections 270 and 271 of the WR Act cannot be characterised as supplementary as the requirements of sections 270 and 271 arise in relation to “ordinary maternity leave” under section 265(1)(b) of the WR Act and impose requirements which are inconsistent with the documentary requirements of Part 4 of Division 6 of the MCE Act. 

32       Under the same clause CCIWA proposes under subclause (4)(d) that the provisions contained in the WR Act in respect of an employee’s basic periodic rate of pay be adopted.  In our opinion such an amendment is directly inconsistent with section 18 of the MCE Act which provides, in respect of paid leave, that payment is to be made at the rate the employee would have received as his or her payment at the time the leave is taken under the award. 

33       Further, the subclause proposed by the Hon Minister does not properly reflect section 18 of the MCE Act as it states the obligation to pay is the amount the employee would reasonably have expected to be paid.  In our opinion the clause should provide as follows:

“If the employee takes paid leave under subparagraph (c)(i) or (ii) during a period the employer must pay the employee for that period the amount the employee would have received as her payment at the time the leave is taken.  Where the number of hours cannot be determined, the total number of hours worked in the 52 weeks immediately before the leave is taken are to be averaged.”

34       In relation to the clause proposed by CCIWA, under the heading “Variation of Period of Parental Leave”, CCIWA makes a comment about proposed subclause (5)(a), that where the leave does not extend beyond 52 weeks, section 278(2) of the WR Act requires 14 days’ written notice before the end of the period stating the period by which the leave is extended.  As CCIWA points out these provisions are inconsistent with section 38A(2) of the MCE Act which provides for notice to be given at least four weeks before the day on which the employee finishes the period of parental leave.  In our view subclause (5)(a) should be deleted.  This provision is inconsistent with subclause (2)(f) which reflects the requirements of the MCE Act.  In addition, the provisions of subclause (5)(b) should be shifted to subclause (2) and be contained in a separate subclause. 

35       Under the heading “Special Parental Leave and Sick Leave”, CCIWA proposes an amendment to subclause (a) which enables a female employee to take a period of unpaid leave where the parental leave ends otherwise than by the birth of a living child.  The award currently provides for such leave where parental leave terminates after 28 weeks, other than by the birth of a living child, whereas the clause proposed by CCIWA provides that the entitlement exists where parental leave has ended within 28 weeks before the expected date of birth of the child otherwise than by the birth of a living child.  There is nothing in the MCE Act which provides for special parental leave in these circumstances.  It is our opinion that the entitlement under section 265(1)(a) of the WR Act, supplements the entitlement under the award, as the award provision only operates approximately after six months of pregnancy whereas the entitlement under section 265(1)(a) of the WR Act arises after 10 weeks, assuming that the normal length of a pregnancy is 38 weeks.

NEW CLAUSE – CARER’S LEAVE (Subclause 6.6)

36       Having reviewed the clause as proposed on behalf of the Hon Minister and the amendments to that draft proposed by CCIWA, we are of the view that the clause proposed by the Hon Minister should be amended to comply with the provisions of the MCE Act.  In our opinion subclause (1) should be amended after the words “an employee” by inserting the words “other than a casual employee who has been in continuous service with an employer for 12 months” as the entitlement to take paid carer’s leave only arises under section 20A of the MCE Act where an employee has been continuously employed for 12 months immediately before they take carer’s leave.  The clause drafted on behalf of the Hon Minister does not reflect that requirement.  In relation to subclause (3) of the carer’s leave, this subclause does not reflect the requirements of section 20B(2), which provides that “an employee is entitled to unpaid carer’s leave for a particular permissible occasions only if the employee cannot take paid carer’s leave during the period”.  Although, the words proposed by CCIWA reflect the provisions of section 20B(2) perhaps a better way of expressing subclause (3) would be to provide, “an employee is only entitled to take unpaid carer’s leave if the employee cannot take paid carer’s leave”.

APPENDIX 1 - OLD CLASSIFICATIONS

37       In subclause (2)(j) of this Appendix there is a classification missing for subparagraph (iii) "A certificated rigger or scaffolder, other than a leading hand …"  The Commission has traced the omission back to page 35 of the schedule to the original application by the union in matter number 1465 of 1991 which inserted Appendix 1 into the award  (22 December 1992, The Metals and Engineering Workers’ Union – Western Australia & Anor v. A.C. Electrical Engineering Pty Ltd & Ors (1993) 73 WAIG 151).  The order which amended the award adopted that schedule and it has remained without a classification since that time. 

38       This subclause also makes reference to "subparagraph (i) of paragraph (a) of subclause (3) of this clause".  No such reference exists in clause (3) of this Appendix.  This appendix contains old classifications and the parties are requested to confer and advise the Commission whether or not a classification should now be inserted.

SCHEDULE OF RESPONDENTS - ADDRESSES

39       The Commission raised with the parties whether the addresses listed for each respondent named in the Schedule of Respondents could be deleted.  We did so because:

• The frequency with which addresses change means that many respondents’ addresses are no longer current and amending the address in the award requires a formal application to vary the award; this in turn requires the application to be served upon respondents at the addresses in the award. 
• There is no requirement in the Act to include addresses when parties are named in the award. 
• Deleting the addresses from the award will remove the need to continually vary the award to update addresses, remove the need to serve respondents at an address in the award known to be incorrect and it will permit service to be effected at a current address.   

40       However, we note that almost all persons who made a submission on this matter wished to have the addresses retained for the purposes of assisting in determining the scope of the award; being able to refer to a respondent’s address is seen as an aid to determining the industry carried on by particular respondents which may operate different businesses at separate addresses.

41       Our consideration of this issue is as follows.  The award contains two provisions of relevance: 

• the Second Schedule, which is headed "List of Respondents" and contains the industry headings and the names of the employers party to the award; and 
• the Third Schedule of the award which is headed "Named Parties to the Award" and contains the names of the unions party to the award. 

42       Section 38(1) and 38(1a) of the Act now become relevant.  They state:

(1) The parties to proceedings before the Commission in which an award is made, other than the Council, the Chamber, the Mines and Metals Association and the Minister, shall be listed in the award as the named parties to the award.  (emphasis added)

(1a) If after the commencement of section 12 of the Industrial Relations Amendment Act 1993 —

(a) any party to proceedings in which an award is made, other than the Council, the Chamber, the Mines and Metals Association and the Minister, is not listed in the award as a named party as required by subsection (1); and

(b) the Commission has not ordered that the party is not to be a party to the award,

the party is to be taken to be a named party to the award.

43       In order to bring the award into conformity with the Act, it will need to reflect the fact that any party to the proceedings in which the award was made is taken to be a named party to the award.  The award was made in 1966; necessarily a number of those parties no longer exist or have changed their names.  We are obliged to remove obsolete provisions and update those that require it.  This should be done with the assistance of the parties.  Once it is done, it will result in a clause called “Named Parties” and will replace, and consist of those presently described in, the Second Schedule.  The named parties’ addresses will not be included in the clause.  The Act does not require them to be included. 

44       The determination of the scope of the award does not refer to “named parties”.  The relevant part of the area and scope of this award is set out in Clause 3 Area and Scope as follows:

This award relates to each industry mentioned in the Second Schedule to this award and applies to all employees employed in each such industry in any calling mentioned in Clause 31. - Wages and Supplementary Payments (including the appendix thereto) of Part I - General or Clause 10. - Wages of Part II - Construction Work of this award but 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.

45       Significantly, the scope of the award is to be determined by referring to each industry mentioned in the Second Schedule, not to the “named parties” to the award.  It is the industries in the Second Schedule, and the employers listed under each of those industries, which is essential to determine the scope of the award.  We propose to list in a clause called “Industries” the industries and employer names and addresses which are now in the Second Schedule. 

46       Thus, in accordance with the Act, the award will list the named parties to the award in one clause and in accordance with Clause 3.- Area and Scope the award will list the industries in another clause.  The addresses are contained in the Industries clause and will be available in the event that an address is significant in determining the scope of the award.

47       The two clauses, Named Parties and Industries, are for different purposes and the current difficulties stem from a failure in the past to keep the two purposes separate:

(1)   When an application is made to vary the award, other than to vary the area and scope provisions, section 29A(3) requires service to be effected on the named parties to the award.  The addresses for service of the named parties are not contained in the award; they will be provided by the applicant in a schedule attached to the Declaration of Service which is required by the Regulations.  The addresses in that schedule will be used by the Commission and other persons for purpose of service.  If an address becomes obsolete when it is next proposed to vary the award, it can be changed in the schedule to be attached to the declaration of service relating to that future application; an award amendment to update and maintain addresses will no longer be necessary.

(2)   When it is necessary to determine the area and scope of the award, the award requires the industries, not the named parties, to be referred to.  The list of industries contains the industries, and in each case the representative employers and those employers’ addresses within those industries, to assist in the determination of the scope of the award if it is necessary to do so.

48       If the Commission acts under section 47(2) of the Act to strike out as a named party to the award an employer who is no longer carrying on business as an employer in the industry to which the award applies, service will be effected at a current address and the employer’s name will be deleted from the Named Parties clause.  The employer’s name and address is not also required to be deleted also from the Industries clause which remains available for determining the scope of the award as required by Clause 3. – Area and Scope.

49       We observe that whether this manner of dealing with the problem of out-of-date addresses in this award is applicable to other awards will be dependent upon the wording of the area and scope clause of the award in question.  Where the scope of the award is determined by reference to the industry as carried on by the respondents to the award, in contrast to this award, care will need to be exercised in order to achieve the same result. 

GENERAL

50       A number of typographical errors, word changes and inconsistencies drawn to our attention have been rectified. 

51       The award formatting has also been changed.  The changed formatting may serve to identify that an award has been amended pursuant to section 40B.  The technical information regarding the award formatting we have adopted will be placed upon the Commission’s website and will also be available upon request from the Registrar.

52       We observe that the requirements of section 40B upon the Commission are ongoing.  This examination of the Metal Trades (General) Award does not prevent the Commission on its own motion on any future occasion again examining the award on its own motion, or a particular clause within it. 

53       The award as we propose to vary it now issues.  A copy of it, and a copy of it marked-up with the changes from the previous proposed variations, in order that the parties may see readily the variations we now propose, will be placed on the website.