AW819861 PR958278
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.113 application to vary an award
Australian Municipal, Administrative, Clerical and Services Union-South Australian and Northern Territory Branch
(C2005/1496)
MUNICIPAL OFFICERS (N.T.) AWARD 2002
(ODN 36251/89 )
[AW819861 Print K6756]
Northern Territory | |
COMMISSIONER LAWSON |
SYDNEY, 25 MAY 2005 |
Award variation - correction to simplified award - retrospective operation
DECISION
[1] On 16 February 2005 the Australian Municipal, Administrative, Clerical and Services Union (ASU) made an application pursuant to s.113 of the Workplace Relations Act 1996 (the Act) to vary the Municipal Officers (N.T.) Award 2003 [AW819861] to correct a classification term in subclause 28.2.4 of the award, which reads:
` 28.2.4 An information technology specialist may be required to work ordinary hours between the spread of 7.00 a.m. and 8.00 p.m., Monday to Friday. However, a computer operator required to work ordinary hours before 8.00 a.m., or after 5.00 p.m., will be paid a loading of 15% for all time worked on the day.'
[2] The union seeks to replace the term `a computer operator' appearing in the second sentence of the subclause with the term `an information technology specialist' so as to restore consistency with the first sentence of the subclause. Grounds in support of the application include the restoration of a condition of employment arising from an unintentional redrafting of the relevant subclause during the award simplification process between 2000 and 2002. The ASU sought a retrospective operation of the variation order on the grounds of exceptional circumstance.
[3] The matter was first dealt with in Darwin on the 16 March 2005. At that time the Commission's file contained a letter of consent to the variation from the respondent employers dated the 8 March 2005 from Mr S White, Employee Relations Service Manager, Local Government Workplace Solutions, Western Australian Local Government Association (Mr White is the agent for Northern Territory local government employers). In that correspondence Mr White stated "...It appears that this error was created during the award simplification process". By further letter to the Commission dated the 16 March 2005 Mr White consented to an operative date for any variation being made retrospective to 22 November 2002 - the date the simplified award was made.
[4] At the hearing Mr L Matarazzo appeared for the ASU. Mr Matarazzo produced a draft of a proposed simplified award, prepared by the Department of Employment, Workplace Relations & Small Business (DEWRSB) in November 2000 in which the term `computer operator' appears in the first and second sentence of the proposed sub clause 28.2.4. It was Mr Matarazzo's submission that the substitute words `information technology specialist' were agreed to by the award respondent parties during the 2000 and 2001 negotiations over the proposed simplified award. At that time employer respondents were represented by Mr B Barton as agent for the Local Government Association of the Northern Territory (LGANT). It was Mr Matarazzo's further submission that the subsequent drafting error had not been detected prior to the simplified award being issued by Commissioner Eames on 22 November 2002 [Print PR924989].
[5] Mr Matarazzo produced a file copy of the ASU's correspondence to Mr Barton dated 27 February 2001 in which the union had sought to replace the term `computer operator' with the term `information and technology computer specialist'. On questioning from the Commission Mr Matarazzo was unable to provide record of a response from LGANT to the 2001 correspondence. The proceedings were adjourned to enable Mr Matarazzo to contact Mr Barton in order to provide confirmation of the drafting error and/or supporting documentation.
[6] The matter was relisted for hearing in Darwin on the 29 April 2005. That hearing was cancelled at the Commission's instigation (with Mr Matarazzo's consent) due to an urgent matter requiring the Commission's attention. Mr Matarazzo agreed that the matter be finalised by the Commission having regard to the corroborative content of detailed correspondence from Mr Barton to the Commission dated 8 April 2005. In that correspondence, Mr Barton relevantly informed the Commission:
`3. During negotiations for the simplified Award, Mr Matarazzo requested that the title of "Computer Operator" in what is now paragraph 28.2.4 of the award be changed. The basis of this request was that due to the proliferation of computers in the workplace the classification had a different meaning when the Award was initially made than it did at the time of simplifying that award. On the basis of updating the title to one that was relevant and more accurate, it was agreed by Mr Matarazzo and myself that the title "Information Technology Specialist" would be used throughout that paragraph instead.'
`4. The intent then of the agreed position was that the title "Computer Operator" would be replaced completely, not just in the first sentence of 28.2.4.
`5. Commissioner Eames was the member of the Commission handling the simplification of this award. On 15 November 2002 I emailed the Commissioner advising that I had reviewed the, then, final draft of the Award. I indicated that I had reviewed the draft, made some minor changes and consented to the new award being issued including the changes. That email was copied to all of the chief executive officers of the respondent councils.
`6. It is obvious that the draft approved by myself, on behalf of the respondents, contained an error in that the second sentence on 28.2.4 retained the old title of "Computer Operator" rather than the new title.
`7. I most firmly believe that this error needs to be corrected.
`8. Whilst it is up to the parties to make their submissions regarding the operative date of any correction, I would hope that the circumstances of this matter are such that sS146(2) and any other relevant provisions of the Act can be met in that exceptional circumstance exist that warrants the award to be amended with effect from November 22 2002. Only through such a correction would the true intent of the parties be reflected, further confusion avoided, and an entitlement contained to what it should be.'
Mr Barton concluded by offering "...to convert this account to a statutory declaration, affidavit or provide it in oral evidence". In the circumstances the Commission accepts Mr Barton's statement as a statement of fact and opinion in support of the ASU's substantive application.
[7] S.146 of the Act states:
146 Commencement of awards
(1) An award shall be expressed to come into force on a specified day.
(2) Unless the Commission is satisfied that there are exceptional circumstances, the day specified in an award for the purposes of subsection (1) shall not be earlier than the date of the award.
Do `exceptional circumstances' exist in the present case?
[8] The question whether exceptional circumstances exist in any given case is a question relevant to each case considered alone. While it may be appropriate to order retrospectively in one case, it may not be appropriate in similar but not identical circumstances.
[9] In the present matter I am satisfied that the parties common intent in 2002 was to include in the simplified award an amendment to subclause 28.2.4 to substitute the words `information technology specialist' for the term `computer operator' wherever the latter appeared in the subclause. To allow the current dissimilar terms to continue is to perpetuate an inconsistency not intended. The drafting error requires correction.
[10] In my view, the inconsistency constitutes an exceptional circumstance sufficient to satisfy s.146(2). It follows that any order varying the award ought to be made retrospective to coincide with the operative date of the order which established the simplified award.
[11] An order to that effect is separately issued as PR958299.
BY THE COMMISSION:
COMMISSIONER
Appearances:
Mr L Matarazzo for the Australian Municipal, Administrative, Clerical and Services Union.
Hearing details:
2005.
Darwin.
March 16.
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