Secure Employment Test Case (No 3) [2006] NSWIRComm 104 (30 March 2006)

Last Updated: 30 March 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Secure Employment Test Case (No 3) [2006] NSWIRComm 104

FILE NUMBER(S): IRC 4330 of 2003 and 1306

HEARING DATE(S): 14/03/2006, 21/03/2006, 23/03/2006

DECISION DATE: 24/03/2006

PARTIES:

APPLICANTS

Unions NSW

New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU)

RESPONDENTS

Employers First

Australian Business Industrial

The Australian Industry Group New South Wales Branch

JUDGMENT OF: Wright J President Walton J Vice-President Haylen J Tabbaa C

LEGAL REPRESENTATIVES

APPLICANT

Mr A Hatcher of counsel

RESPONDENTS

Mr T McDonald

Employers First

Mr B Gee, Solicitor

Recruitment Consulting Services Association

Ms J Wang

Australian Business Industrial

CASES CITED: Secure Employment Test Case [2006] NSWIRComm 38

LEGISLATION CITED:

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: Wright J, President

Walton J, Vice-President

Haylen J

Tabbaa C

Friday 24 March 2006

Matter No IRC 4330 of 2003

SECURE EMPLOYMENT TEST CASE

Application by Labor Council of New South Wales for variation of awards re secure employment clause

Matter No IRC 1306 of 2006

CLERICAL AND ADMINISTRATIVE EMPLOYEES (STATE) AWARD AND OTHER AWARDS

Application by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union for variation of awards re Secure Employment Test Case 2006

DECISION OF THE COMMISSION

[2006] NSWIRComm 104

1 In these matters the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (the USU), supported by Unions NSW, seeks the variation of the Clerical And Administrative Employees In Temporary Employment Services (State) Award (the award) to insert a casual conversion provision consequent upon the decision of the Full Bench of 28 February 2006 in the Secure Employment Test Case [2006] NSWIRComm 38. The USU does not press its application so far as it sought the insertion of an occupational health and safety provision in the terms determined in the Secure Employment Test Case decision.

2 The Union application as to the award has been the subject of submissions, along with submissions concerning a large number of other awards, on 14 and 21 March 2006 before the Full Bench and on 23 March 2006 before the President.

3 During the course of the proceedings yesterday the USU tendered an amended application expressed in the form of two alternative proposals. The USU's "primary application" sought to address the issues raised by the various employers who opposed the application (including the Recruitment Consulting Services Association (RCSA) and Employers First) by prefacing its proposed award variation with a series of new definitions in the following terms.

(a) Definitions

For the purposes of this clause:

(i) A reference to a casual employee is to be read as a reference to a person employed as an hourly temporary employee under this award.

(ii) A reference to casual employment is to be read as a reference to employment as an hourly temporary employee under this award.

(iii) A reference to a full-time employee is to be read as a reference to a person employed on a permanent basis to work 38 hours per week with all the rights and benefits of a weekly temporary employee under this award.

(iv) A reference to permanent full-time employment or full-time employment is to be read as a reference to employment on permanent basis for 38 hours per week with all the rights and benefits of a weekly temporary employee under this award.

(v) A reference to a part-time employee is to be read as a reference to a person employed on a permanent basis to work more than 12 but less than 38 hours per week with all the rights and benefits of a part-time temporary employee under this award.

(vi) A reference to permanent part-time employment or part-time employment is to be read as a reference to employment on a permanent basis for more than 12 but less than 38 hours per week with all the rights and benefits of a part-time temporary employee under this award.

4 These definitions were intended to address the unusual set of definitions to be found in clause 2, Definitions, of the current award which, relevantly, are in the following terms:

2. Definitions

(i) An "employer" means a person, firm or company, carrying on business as a supplier of clerical staff and/or as an employment agency which provides for its customers from time to time the temporary services of clerical personnel and which employs such personnel on a temporary basis as and when the need arises to meet the individual requirements of such customers.

(ii) A "temporary employee" means any person employed on a temporary basis by an employer in any clerical capacity whatsoever.

(iii) A "weekly temporary employee" means an employee employed to work 38 hours per week for an assignment equal to or exceeding a period of 12 months.

(iv) A "part-time temporary employee" means an employee employed to work more than 12 hours per week but less than 38 hours per week for an assignment equal to or exceeding a period of 12 months.

(v) An "hourly temporary employee" means an employee employed for assignments of less than 12 months duration.

...

5 In opposing the application the RCSA, supported by Employers First, primarily relies on the proposition that the "Secure Employment Test Case decision does not contemplate inserting a casual conversion provision in an award, to provide for conversion from casual employment to permanent employment, if the award does not already contain provisions for both casual and permanent employment"

6 Reference is also made to the unique nature of the award, in that it is the only New South Wales award that deals with specifically and exclusively with the terms and conditions of employment for employers and employees in the on-hired services sector in respect of clerical occupations and that it would, as a consequence, be inappropriate and unnecessary to insert the casual conversion provision into the award.

7 The Union contentions in support of the application stress that, although the award is unusual in that it only covers employees of labour hire companies, that results from the situation brought about by the awards in the clerical sector which create a division between award coverage for labour hire employees and award coverage for non-labour hire employees, who are covered by the general state award. The Unions however submit that this represents a difference which does not provide a relevant distinction for the purposes of consideration of the present issue. The Unions point to the fact that the Secure Employment Test Case standard clause has been inserted in most state awards and therefore covers employees of labour hire companies and non-labour hire employers generally. It is said that it would therefore be anomalous if the only employees of labour hire companies who were not the subject of the causal conversion clause were those employed in the clerical industry. We agree with that contention. We also reject the primary submission of the employers that the test case decision did not contemplate inserting casual conversion provisions in an award which did not contain provisions for both casual and permanent employment.

8 Further, the only substantive basis for departing from the test case decision is, as that decision indicated, the unusual nature of current award provisions which might make it necessary to vary the standard clause in relevant respects. We consider that this issue has now been addressed by the USU's "primary application" which makes clear the way in which the standard clause is now intended to operate in relation to the particular provisions of the award. Further, we consider that the remaining concerns of the employers are addressed by providing a slightly longer period (that is, nine months) as the relevant period for the purposes of the casual conversion clause instead of that proposed by the USU in its "primary application", which sought the standard provision of a six month period.

9 We accordingly vary the Clerical and Administrative Employees in Temporary Employment Services (State) Award by inserting a new clause in terms of the "primary application" set out in Exhibit "KK" in these proceedings, subject to the substitution of the reference in that provision to "six months", by reference to "nine months". This variation shall take effect from 24 March 2006.

10 These proceedings are now concluded

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LAST UPDATED: 29/03/2006