WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH AND ANOTHER, APPLICANTS v. DIRECT ENGINEERING SERVICES PTY LTD AND OTHERS, RESPONDENTS CORAM COMMISSIONER J F GREGOR DATE FRIDAY, 8 NOVEMBER 2002 FILE NO. APPLICATION 1235 OF 2002 CITATION NO. 2002 WAIRC 06960 _________________________________________________________________________________________________________ Result Award varied Representation Applicant Mr C. Young Appeared On Behalf Of The Applicant Respondent Mr P. Moss Appeared On Behalf Of The Respondent _________________________________________________________________________________________________________ Reasons for Decision 1 On 9th July 2002 The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch (the Union) applied to the Commission to vary the Air Conditioning and Refrigeration Industry 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2921 (Construction and Servicing) Award No. 10 of 1979. As is required by the Industrial Relations Commission Regulations 1985, Schedule B set out the form of the variation. 2 Schedule B embodies the executive form of the Order sought and in paragraph 1 describes the amendments to be made to Clause 2. – Arrangement. Paragraph 2 describes the amendments to be made to Clause 2A and so on through to paragraph 7 which shows changes that the parties wish to effect to Clause 29. – Wages. 3 Procedural requirements having been met and at the request of the Union the Commission listed the matter for hearing on 14th October 2002 at which time Mr C. Young appeared for the Union and Mr P. Moss appeared for Direct Engineering Services Pty Ltd and Others, the Respondents to the application. 4 The transcript of proceedings records the consent of the parties to an amended schedule which is in exactly the same form as the Schedule B attached to the original application. It can be seen from the transcript that the Commission indicated that it had not prepared Minutes of Proposed Order for distribution and that Mr Young told the Commission an amended schedule would be filed. 5 In due course such a schedule was filed but it was in a different form to the schedule attached to both the original application and the amended schedule put before the Commission on the date of hearing. 6 The difference in the schedule is that it contains what appears to be citations, described as a ‘preamble’, said to be for the purpose of the recording the underpinning reasons for the amendments to the award. 7 The Commission having determined that such ‘preamble’ should not, because it would have no legal effect, be part of a an executive order of the Commission produced Minutes of Proposed Order in the form of the amended schedule produced to the Commission at the date of hearing and distributed those Minutes of Proposed Order to the parties. 8 The Respondent agreed to the Commission’s Minutes of Proposed Order but the Union, through its advocate Mr Young, did not and asked that there be a further Speaking to the Minutes. Mr Young was requested to submit grounds why a further Speaking to the Minutes be held and he did so by electronic mail on 30th October 2002. 9 The Commission having considered those submissions decided that it did not need to hear from the parties in person and could decide the matter on the written submissions. 10 It seems the reason to include in the ‘preamble’ Order is that it provides a permanent record for the parties to, so it is said, enable certainty in the method of varying the award and the periods for the various variations. It is said the approach would create certainty and predictability for the parties to awards of the Commission. 11 That may well be so but the matters which form part of the ‘preamble’ in my view cannot form part of the executive order of the Commission. 12 If the parties wish to file a note of the reasons for which they have given their consent to the amendment they are perfectly free to do so and the Commission will keep that as part of its record. 13 The purpose of the executive part of the Order is to ensure there be a clear instruction of the amendments ordered to an award by the Commission in the exercise of its powers. It seems to me that the so called ‘preamble’ would be unenforceable as an amendment to the award. As a matter of fact, the ‘preamble’ does not and cannot amend the award, only changes to the existing clauses to awards can do so. Alternatively if I am wrong about that and the Award can be so amended it will soon be superfluous verbiage which has the potential to clutter the document decreasing its practical utility. 14 In short the intention of the Union to record the reasons for its consent in an Order in the way suggested, is misconceived. If such reasons need to be recorded that can be done by filing a note with the Commission, the parties exchanging of documents, or by recording the relevant information on transcript during the proceedings. 15 Finally I note the final form of Orders is a matter for the Commission. The Orders are a result of the exercise by the Commission of the powers vested in it by the Industrial Relations Act, 1979 to make and amend Awards which, with respect, is the province of the Commission, not the parties. It is a mistake for any party to believe that it can direct the Commission as to form that Orders to amend the Awards should take. 16 An Order amending the Award to reflect the consent of the parties will now issue. _________ 2002 WAIRC 06959