REVIEW OF CLERKS (UNIONS AND LABOR MOVEMENT) AWARD 2004 SCOPE CLAUSE PURSUANT TO S 37D OF THE INDUSTRIAL RELATIONS ACT 1979 (WA) WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION COMMISSION IN COURT SESSION CITATION : 2024 WAIRC 00814 CORAM :CHIEF COMMISSIONER S J KENNER SENIOR COMMISSIONER R COSENTINO COMMISSIONER T EMMANUEL HEARD : FRIDAY, 13 SEPTEMBER 2024 DELIVERED : MONDAY, 16 SEPTEMBER 2024 FILE NO. : CICS 6 OF 2022 BETWEEN : Commission's Own Motion Applicant AND (Not applicable) Respondent Catchwords : Industrial Law (WA) – Commission’s Own Motion – s 37D of the Industrial Relations Act 1979 (WA) – Variation to scope of private sector award – Clerks (Unions and Labor Movement) Award 2004 – Connected to the State of Western Australia – Express application to labour hire organisations – Award scope varied Legislation : Industrial Relations Act 1979 (WA) Result : Award varied Representation: Mr R Knox on behalf of the Western Australian Municipal, Administrative, Clerical and Services Union of Employees Mr G Hansen on behalf of UnionsWA Mr R Sumner on behalf of the Australian Rail, Tram and Bus Industry Union of Employees, Western Australia Branch Ms L Wardle on behalf of the Australian Workers’ Union, West Australian Branch, Industrial Union of Workers Case(s) referred to in reasons: Commission’s Own Motion v (Not applicable) [2023] WAIRC 00801; (2023) 103 WAIG 1752 === REASONS FOR DECISION === ¶1 THE COMMISSION IN COURT SESSION: In reasons for decision concerning the review of the Restaurant, Tearoom and Catering Workers’ Award scope clause under s 37D of the Industrial Relations Act 1979 (WA), the Commission in Court Session set out the process for identifying awards suitable for a scope review, and for reviewing that award’s scope: Commission’s Own Motion v (Not applicable) [2023] WAIRC 00801; (2023) 103 WAIG 1752 (CICS 5 Reasons). It also set out the reasons for and intention behind the scope variations which were made to that award. The Clerks (Unions and Labor Movement) Award 2004 was another of the awards identified as suitable for scope review, as a result of the process described in the CICS 5 Reasons. The Commission published notice of the proposed variations to the Award, and of the opportunity to be heard in relation to them, in the Industrial Gazette and on the Commission’s website. It also gave notice to UnionsWA, the Chamber of Commerce and Industry of Western Australia (Inc), the Australian Resources and Energy Employer Association, formerly known as the Mines and Metals Association and the Hon. Minister for Industrial Relations. It directed that all the named parties to the Award be given notice, as those named parties included: ¶2 (a) a sample of employers which the Commission considered were reasonably representative of the employers who would be bound by the proposed variations, if not all such employers; and ¶3 (b) the Western Australian Municipal Administrative, Clerical and Services Union of Employees (WASU). The Commission conducted a conference in order to consult with and seek feedback from any interested parties in relation to proposed variations to the Award’s scope on 11 July 2024, before listing the matter for hearing. No individual, organisation or employer has advised the Commission of any opposition to the proposed variations. WASU, on behalf of employees covered by the Award and, UnionsWA, the Australian Rail, Tram and Bus Industry Union of Employees, Western Australia Branch and the Australian Workers’ Union, West Australian Branch, Industrial Union of Workers as employers covered by the Award, each informed the Commission they supported the proposed variations. It has not been suggested that the Award contains any obvious gaps in coverage nor that it inadequately defines who is covered by it. It is not suggested that the existing scope clause creates an unintended reduction in scope. It is not suggested it creates overlapping award coverage. The proposed amendments are not intended to alter the Award’s coverage in any way. They are simply intended to clarify and improve the area and scope provisions and in particular to align the format and form with that which has been used in other s 37D scope reviews. That is, they are intended to introduce some uniformity and to modernise the scope provisions. Specifically, the amendments are intended to: ¶4 (a) specify that the scope extends to employees who are ‘connected to the State of Western Australia’ and their employees while performing work covered by the Award; ¶5 (b) expressly refer to the fact the award applies to labour hire organisations that supply employees to host employers to perform work that is otherwise covered by the Award; ¶6 (c) expressly state that the award does not apply to employers and employees that are national system employers and national system employees under the Fair Work Act 2009 (Cth); and ¶7 (d) Contemporise the terminology by using ‘union movement’ in substitution for ‘labor movement’. These purposes, other than (d), are common to the rationale and intent of the variations in the CICS 5 Reasons. The CICS 5 Reasons should be referred to for elaboration about the purpose of the variations. ¶8 Order The Commission orders that the Clerks (Unions and Labor Movement) Award 2004 be varied in accordance with the Schedule in the attached order, with such variations to take effect from the date of the order.