Announcement - Award Review - Section 19

15 February 2011

On 16 December 2010 as part of the State Wage Case 2010 (SWC) a Full Bench of the Commission ordered that parties attend a directions hearing on 24 February 2011 for the purpose of the Commission determining the process to be followed and establishing a timetable for the review of Awards under s19 of the Industrial Relations Act 1996 (IR Act). The directions hearing will be presided over by his Honour, the Vice President, Justice Walton and will commence at 9.30am in Court 3.3, Level 3, 47 Bridge Street, SYDNEY.

To facilitate proceedings at the Directions Hearing the Commission has drafted a program for consideration by the parties prior to​ the directions hearing. The aim of the Commission is to minimise, as far as possible, impacts on all parties to the process.

Parties will recall that the Minister for Industrial Relations (MIR) submitted the approach the Commission should follow to s 19 reviews, in light of the passing of the Industrial Relations (Non-operative Awards) Act, was as set out in State Wage Case 2010 [2010] NSWIRComm 183 at paragraph 63 , that is : ​

      a. To first consider whether the awards which fall into the Minister's categories 3 and 4, noted, are 'non-operative awards' within the meaning of the IR Act as amended; and

      b. To thereafter proceed to review the other awards in the usual manner.

It should be noted that the Commission has made no final decision on the approach to be taken in that respect , however, if the submissions by the MIR as set out above are accepted the Awards which may fall under the four categories are listed below.

Category 1
being Awards that apply to public and local government employees, namely:
a. public sector awards;
b. local government sector awards; and
c. private sector common rule and occupational awards which also apply to employees in the public and local government sectors;

Category 2
being common rule and occupational awards that apply to deemed employees pursuant to Schedule 1 of the IR Act. These include milk vendors, cleaners, carpenters, joiners, bricklayers, painters and bread vendors;

Category 3
being enterprise awards that apply to a specific enterprise and which have no ongoing application [note - this list has been enhanced to include any awards appearing to be enterprise awards . Initial analysis indicates there may still be instances where the provisions of clause 44C deeming certain awards as enterprise agreements may be relevant];

Category 4
being awards which appear to have no current application to any employer or employee as a result of the referral of industrial relations powers to the Commonwealth - 'non-operative awards'.

What will happen at the Directions hearing:
The first question requiring attention will be whether the MIR's approach or some other approach to the disposition of the reviews should be undertaken (including the establishment of categories and the order of disposition of matters). In that respect, some attention should also be given by the parties as to the accuracy of the lists above.

Should the Commission, after hearing from the parties, decide to follow the MIR's proposal, the Commission may then, for example, adopt the following approach:
    1. make a final decision as to what categories are appropriate,
    2. seek to resolve which awards will fall within the categories and, where necessary, move an award or awards to another category if that is deemed appropriate. (The Commission would expect, if this approach was adopted, the parties would be in a position at the directions hearing to nominate any specific award and the reasons why they would be seeking to have such an award move from one category to another).
    3. once that process has been completed, consider whether the following or some other action would be the most appropriate:
      • all Category 1 and Category 2 matters will fall for review in accordance with the well-established procedures of the Commission and separate advice to the parties will issue in that respect.
      • all settled Category 3 matters will be referred to a member of the Commission to deal with in chambers. Matters that are deemed s44C agreements will be declared such, other matters may be marked 'obsolete' and rescinded.
      • all settled Category 4 matters will be referred to a member of the Commission to deal with in chambers. These matters will be declared 'non operative awards'.
      • whether any Awards require special or separate consideration.

Mick Grimson
Industrial Registrar ​