100106202

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH AND ANOTHER

APPLICANTS

 -v-

 ANODISERS W.A., DARDANUP BUTCHERING CO, BRADFORD INSULATION

RESPONDENTS

CORAM COMMISSIONER J F GREGOR

DELIVERED TUESDAY, 3 JULY 2001

FILE NO APPLICATION 1785 OF 2000

CITATION NO. 2001 WAIRC 03164

____________________________________________________________________________

Result Award Varied

Representation

Applicant Mr T. Kucera and with him Mr D. Hicks

 and Mr J. Fiala on behalf of the Applicants

Respondent Mr M. Borlase on behalf of the Respondents

____________________________________________________________________________

Reasons for Decision

1         This application is by consent but in view of the implications of the changes I intend to issue Reasons for Decision.

2         As I understand it the parties consent to a variation to the award, in the terms of the schedule submitted.  This is a different process to the Commission taking the action under Section 47 of the Industrial Relations Act, 1979 (the Act) which empowers it to cancel defunct awards or delete employers from awards in certain cases.  The power can be exercised specifically where the Commission is of the opinion that a party of the award, named as an employer is no longer carrying on business as an employer in the industry to which the award applies or for any other reason is not bound.  Section 47(2) empowers the Commission to strike out that employer as a named body.

3         There is some limitations to the strike out power.  For instance the Commission is not authorised to do things that the parties are otherwise able to do under s.40 of the Act.  Superficially the task of deleting employers named as parties to the award who for example no longer seem to exist, might seem to be relatively a simple task.  However in cases where the scope of the award is defined by reference to the activities of that employer the exercise is one which can have the incidental consequence of limiting the scope and operation of the award.  The parties have both told the Commission that is not the case here and that the effect of the amendment does not limit either the scope or area of operation of the award.

4         The scope of many Awards of the Commission, including a number of key awards, is defined by reference to the activities of employers named specifically in the award.  A good example of that is the Cleaners and Caretakers Award 1969 which provides that it applies “… to the industries carried on by the respondents.”  There are similar examples in the Building Trades Award 1960, the Store and Warehouse Wholesale (Retail Establishments) Award 1997 and in the Licensed Establishments (Wholesale and Retail) Award 1979.  They apply to “the industries carried on by the respondents in the schedule attached” to the award.

5         In each case respondents are, not surprisingly, all employers.  In such cases the scope of the award is referrable to the activities carried out by those named employers.  As explained in Glover’s Case (WA Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union v Terry Glover Pty Ltd (1970) 50 WAIG 704) it is therefore not possible to ascertain the industries to which the award applies without knowing the activities of the respondents.  The Industrial Appeal Court in Freshwater Corporation v Transport Workers Union of Australia WA Branch (1991) 71 WAIG 1747 held that for these purposes the relevant activity that is carried on by the named employer at the time the Award was made and not that being carried out by the employer currently.

6         It follows that to delete an employer named in the list of respondents to an award of that kind, even though the employer is by definition a named party, and even though the employer is no longer carrying on business is effectively to delete the industry represented by the activities of that employer at the time it was made, thereby amending the scope of the award.

7         This problem led to the Transport Workers (General) Award being amended in 1995 to make the scope of the award referrable to the industry specified by name rather than by reference to industries carried on by respondents to the award (see Transport Workers Union of Australia, WA Branch v W.D. Moore & Co (1985) 76 WAIG 198)

8         In each case it is a question of interpretation as to the extent, if at all, that the scope of the award is governed by the activities of the named employer.  Some Awards define the scope by reference to the “employers engaged in the industry set out in the schedule”.  A good example is the Clerks (Commercial, Social and Professional Services Award 1972) and of course the Award under consideration here.  The formula typically involves a schedule of respondents which contains a list of industries specified by name.  Mr Borlase has named two today, these are accompanied by a list of employers associated with the industries for example Domestic Appliances and Two Stroke Engines.

9         The difference between that formula and the one previously mentioned is that the scope of the Award is directed to the industries set out in the schedule of respondents rather than the industries carried on by the employers in the schedule.  The emphasis is more on the list of industries than on the activities of the respondents, the distinction was explained in Donovan’s Case which was determined in 1977 (R.J. Donovan and Associates Pty Ltd v FCU (1977) 57 WAIG 1317).

10      The implementation of changes sought to the Award in these proceedings is not as significant as changes to the Awards where the employer’s industry is the guide.  Nevertheless what is being done today has to be undertaken with caution because if there is some ambiguity as to the extent of the industry stipulated in the schedule of respondents it will be necessary to look to the activities of the named respondents to define the limits, particularly if there is an industry title where there is confusion about the description of the industry.  If employers are struck out from a schedule it might be the cause of some difficulty when the award has come to be enforced. 

11      It is right and proper to take steps to modernise the awards.  I accept that is why the parties have brought this application.  It is of assistance to the Commission in the administration of its Awards that when it sends out notices for hearing it does not get dozens returned as being undelivered.  This application deals with that problem of administration, but importantly it does not change the original parties to the award at all, therefore it does not change the scope of the award.

12      For those reasons the Commission will approve the amendment which is before it by consent.  The parties are happy with the minutes of the proposed order which they have submitted and orders will issue accordingly.