NURSES' (DAY CARE CENTRES) AWARD 1976

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES on the Commission's own motion

CORAM Chief Commissioner A R Beech

HEARD Thursday, 30 April 2009

DELIVERED Wednesday, 27 May 2009

FILE NO. APPL 12 OF 2009

CITATION NO. 2009 WAIRC 00318

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

Result Award varied 

Reasons for Decision (extemporaneous)

1         On 1 April 2009 the Registrar notified the Australian Nursing Federation WA Branch, Industrial Union of Workers (ANF) and the named parties to this Award of the Commission’s intention to vary this Award on the Commission’s own motion under s 40B(1)(d) of the Industrial Relations Act, 1979 (the Act).  Section 40B of the Act permits the Commission to amend an Award for a wide range of reasons.  This application is limited in that it is to amend the Clause 20. - Wages to simplify the clause prior to the application of the next State Wage order.  The clause contains wage rates operative in 1988 and 1989.  The Commission proposed to delete the columns of wages other than the current wage rate as the Commission considers that it would be efficient for the clause to merely specify the current wage rate.  Accordingly, the Commission proposed to delete the references to Arbitrated Safety Net Adjustments also contained in subclause 20(1).

2         The Commission also proposed to:

- Delete the reference to “1976” in the Title clause of the Award,

- Amend Clause 3. - Scope to reflect reference to current legislation,

- Delete Clause 5. -  Term,

- Delete Clause 7. - Contract of Employment,

- Amend Clause 10. - Sick Leave to include reference to the Minimum Conditions of Employment Act, 1993,

- Delete or amend Clause 15. - Time and Wages Record with a reference to the Act,

- Delete Clause 21. - Liberty to Apply,

- Rename Schedule "A" – Respondents to Schedule A - Named Parties to the Award, and

- Delete Appendix - s.49B - Inspection of Records Requirements.

3         The notification from the Registrar advised that this matter would be listed for 30 April 2009.  There were no appearances at the hearing, however the notification stated that there was no obligation on any party to appear unless they wished to make particular submissions.

4         Written responses were received from the Labour Relations Division of the Department of Commerce on behalf of the Minister for Commerce on 21 April 2009 and from the ANF on 28 April 2009.

5         The Minister raised three issues, being matters of detail which the Minister had picked up.  I record my thanks for the matters being drawn to my attention.  The amendments to issue in relation to this Award will take into account the details raised by the Minister. 

6         The ANF did not object to the proposed amendments.

7         In relation to Clause 7. - Contract of Employment, I have decided that the Commission will not proceed with that amendment at this stage.  It was to delete the clause because of the overriding provisions of the Workplace Relations Act, 2006.  However, given that that legislation is due to continue only for another two months and be replaced by the Fair Work Act on 1 July 2009, the amendments to be made to the Award ought await the promulgation of the Fair Work Act on 1 July. 

8         Also, in relation to amending the title of Schedule "A" - Respondents, I have decided that the Commission will not proceed with that amendment at this stage because of the reference in the Scope clause of the Award to "the respondents".  Amending the title of Schedule "A" - Respondents without correspondingly amending the Scope clause may cause some uncertainty about the Award's scope.

9         Therefore the proposed amendments to Clause 7 and Schedule A will not proceed and they can be addressed in a subsequent application.

10      In all other respects the Award will be varied as set out in the Registrar's letter and an order will issue to that effect. 

11      Therefore the proposed amendment to that clause will not proceed and it can be addressed in a subsequent application after that time.