Roof Tile Makers (State) Award [2005] NSWIRComm 1079 (26 May 2005)

Last Updated: 31 May 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Roof Tile Makers (State) Award [2005] NSWIRComm 1079

FILE NUMBER(S): 5702

HEARING DATE(S): 15/04/2005

DECISION DATE: 26/05/2005

PARTIES:

NOTIFIER

Industrial Registrar

RESPONDENTS

CSR Limited

The Federated Brick, Tile and Pottery Industrial Union of Australia, New South Wales Branch

JUDGMENT OF: Cambridge C

LEGAL REPRESENTATIVES

CSR Limited

Mr D R McInnes

The Federated Brick, Tile and Pottery Industrial Union of Australia, New South Wales Branch

Mr T Melksham

CASES CITED:

LEGISLATION CITED: Industrial Relations Act 1996 [NSW]

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

COMMISSIONER CAMBRIDGE

26 May 2005

Matter No IRC 5702 of 2003

Roof Tile Makers (State) Award

Notice of Award review pursuant to section 19 of the Industrial Relations Act 1996.

DECISION

[2005] NSWIRComm 1079

S U P P L E M E N T A R Y D E C I S I O N

1. This Supplementary Decision is issued further to the Decision made in this matter on 24 January 2005.

2. On 24 January 2005, the Commission issued a Decision concluding the Award review made in respect to the Roof Tile Makers (State) Award, (the Award). The Award review had broadly involved the provision of a series of agreed changes to the Award that the Parties had sought to have made so as to finalise the Award review as required by section 19 of the Industrial Relations Act 1996 [NSW], (the Act).

3. The Commission considered the proposed changes to the Award and determined that the variations as sought were consistent with the Principles that are established for review of Awards.

4. After the Decision of 24 January 2005 was issued, the Commission was provided with written advice from an Assistant Deputy Industrial Registrar indicating that one of the provisions of the reviewed Award document appeared to contravene section 27 of the Act, and further, it appeared that the antidiscrimination provisions in the reviewed Award document had inadvertently excluded reference to "responsibilities as a carer."

5. Section 27 of the Act relevantly states as follows:

"Section 27 Prohibition on cashing-in of accumulated sick leave

(1) [No cashing in of sick leave provisions] An award must not allow an employee to cash-in the employees accumulated sick leave.

(2) [Cashing in accumulated sick leave defined] Accumulated sick leave is cashed-in if the leave is not taken and a payment is made by the employer to or on behalf of the employee of the amount of remuneration for the period of accumulated leave, or of any other amount calculated by reference to that period.

(3) [Time of cashing in immaterial] It is immaterial when the accumulated sick leave is to be cashed-in, including on termination of employment (whether by resignation, retirement, death or otherwise) or during the period of employment.

(4) [Award provisions contravene section 27] A provision of an award, whether made before or after the commencement of this section, does not have any effect to the extent that the provision contravenes this section.

(5) [Award defined] In this section, award includes:

(a) a former industrial agreement, and

(b) a public sector industrial agreement."

6. Clause 7.2.2 of the Award includes the following:

"Untaken sick leave is to be accrued and any untaken sick leave shall be paid out upon the employee being:

(a) retrenched;

(b) retired;

(c) terminated due to medical grounds.

7. Consequently it would seem that, prima facie, the provisions of Clause 7.2.2 as identified above, conflict with section 27 of the Act. Further it would seem that by way of the operation of section 27(4) of the Act, the provisions of Clause 7.2.2 of the Award would have no effect and are essentially rendered inoperative by virtue of section 27(4) of the Act,

8. It should also be noted that the provisions of Clause 7.2.2 as identified above (the offending provisions) appear to have been included in the Award for many years. The offending provisions of Clause 7.2.2 existed in the Award document that was the subject of a reviewed Award determination made by Tabbaa C. on 7 August 2000, (Serial B9658).

9. Consequently it would appear that section 27(4) of the Act would have operated so as to render the offending provisions of the Award null and void in both the Award as currently under Review, and also in respect to the earlier reviewed Award document as made by Tabbaa C. on 7 August 2000.

10. Rather than perpetuate an Award provision which is rendered inoperative by virtue of section 27(4) of the Act, it would be appropriate to rectify the Award documentation such that it would comply with section 27 of the Act. Consequently the Commission reactivated proceedings and advised the Parties to the Award of the conflict that had been identified in respect of the offending provisions contained in Clause 7.2.2. of the Award, and section 27 of the Act. The Parties were advised that the Commission intended to delete the offending provisions of Clause 7.2.2 of the Award as part of a supplementary alteration to the Award review Determination.

11. In addition, the Parties to the Award were advised of the apparent omission of reference to responsibility as carers in the antidiscrimination provisions of the Award as set out in Clause 1.3.1 of the Award.

12. The Parties to the Award were invited to consider the Commission's proposition that involved the deletion of the offending provisions of Clause 7.2.2 and the inclusion of the words "and responsibilities as a carer" at the end of Clause 1.3.1 of the Award. The Parties to the Award were required to provide written response regarding the Commission's propositions for variation to the reviewed Award document, and that such response should be provided by no later than close of business on 13 May 2005.

13. The Commission has received correspondence dated 4 May 2005 from CSR Limited, a Party to the Award. This correspondence indicates that the Parties to the Award have no objection to the Commission's proposition to vary the Award by virtue of the deletion of the offending provisions in Clause 7.2.2. and the inclusion of the words "and responsibilities as a carer" in Clause 1.3.1.

14. Therefore the Commission hereby Determines that the Award shall be further varied by deletion of the following words appearing in Clause 7.2.2:

"Untaken sick leave is to be accrued and any untaken sick leave shall be paid out upon the employee being:

(a) retrenched;

(b) retired;

(c) terminated due to medical grounds."

15. Further the following words "and responsibilities as a carer" are to be included at the end of Clause 1.3.1.

16. The reviewed Award documentation, initially the subject of Determination made on 24 January 2005, shall be amended accordingly and the settled version of the finalised Award review document shall not contain the offending provisions and shall include the additional words in Clause 1.3.1.

17. Accordingly proceedings in this matter are now concluded.

By the Commission:

I W CAMBRIDGE

COMMISSIONER

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LAST UPDATED: 26/05/2005