WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Nos. 99 and 101 of 1986. Between Australasian Society of Engineers, Moulders and Foundry Workers, Industrial Union of Workers, Western Australian Branch, Applicant and Minister for Education and Others, Respondents. Before the Commission in Court Session. Chief Commissioner B.J. Collier, Senior Commissioner G.G. Halliwell, and Mr Commissioner I.E. Gregor. The 12th day of June 1986. Dr J. Crouch on behalf of the Applicant. Mr J. Radisich on behalf of the Respondents. Reasons for Decision. THE CHIEF COMMISSIONER: These are applications by the Australasian Society of Engineers, Moulders and Foundry Workers Industrial Union of Workers, Western Australian Branch for variations to the Engineering Trades (Government) Award 1967 and the Tool and Material Storemen (Education Department) Award 1975, concerning compassionate leave. The Union seeks to extend the existing clauses in the awards so that leave may be granted on the death of parents-indaw and to delete the restriction that deaths must occur within Austraha before any compassionate leave becomes available, although the formal application in matter No. 101 of 1986 did not include parents-in-law. The main thrust of the Union's argument in support of the claims was that the Commission in Court Session had ratified similar amendments to a number of awards in the State Energy Commission in March 1985 after agreement had been reached between the parties. That agreement had been reached after the involvement of the Office of Industrial Relations and the State Treasury and central to the discussions was that after the State Energy Commission awards had been amended action would then be taken to amend other awards in the public sector. Support for this contention was said to be contained in a letter from the Treasury to the Office of Industrial Relations which was tendered to the Commission. The letter covered estimated costs on an "upper limit" basis if the improved conditions were applied to all govern- ment wages staff and reflected lost productive time rather than additional cost payment. The Union also tendered the transcript of the State Energy Commission cases which recorded Dr Crouch for the Union saying — It has to be said that in the discussions which have taken place it has been recognised that this would not be the only area in which the awards would be amended in like manner. The Unions would come back to the Commission seeking to amend other government awards in the same terms as those which are currently before the Commission (page 4 Transcript). And Mr Dwyer, appearing for the Minister for Industrial Relations remarking — ... I do not think there is any doubt that it will give rise to flow-ons — how quickly is another question ... I think you can safely assume that it is an infinitesimal consideration in terms of overall labour costs, although it might be large in terms of what the corner shopkeeper considers to be a large wages bill (page 11 Transcript). In short, we understood the Union to be saying that when agreement was reached on the merits of the State Energy Commission variations the agent for the Govern- ment was well aware that the agreement was an "in principle" one for all government wages employees and we find it difficult to reach any other conclusion in view of evidence led in support of the claim. The respondents now oppose the applications on merit..The Commission was told that bereavement leave for government wages employees fell into three categories. First, those employees who received com- passionate leave by virtue of administrative instruction, those who were covered by awards which reflected that administrative instruction and lastly those who were covered by awards which provided more favourable conditions than the administrative instruction. In the respondents view only a minority of awards provided better conditions than those contained in the administrative instruction and it was suggested that even some of those came about by a misconception by Johnson C. to which attention had been drawn by Cort S.C. when he refused to include "in-laws" in govern- ment building trades awards in November 1981 (Decision 4 November 1981). Only the State Energy Commission awards which were amended last year and the National Building Trades Construction Award provided for leave in the event of a death outside Australia. When the State Energy Commission awards were amended last year the Commission in Court Session was satisfied that the changes could be processed under Wage Principle II so there is no doubt that the cost implications of flow-on to the awards now under review were then considered. There is no impediment, therefore, to the approval of the amendments now sought because of the Wage Principles. Is there merit then in the union's applications? Viewed in absolute terms we consider that there is an insufficien- cy of evidence before the Commission for this bench to decree that the amendments sought are warranted. The case was far too limited in its consideration of the question for a decision to be made on the intrinsic merits of the claims. It is quite conceivable that the death of a relative either in or outside Australia might provide good reason for the absence of an employee from his work. Yet this might not be so in every instance and automatic leave on all occasions might simply not be fair to an employer, especially if it involved him in costs as well as inconvenience. However, when applying the provisions of section 26 of the Act to the case, it is difficult to conclude other than that the Government has been "hoist on its own petard". There is neither rhyme nor reason for some segments of the Government's wages workforce to receive compassionate leave upon the death of "in-laws" and for other segments to be refused. It is not just the "one-off" situations of better conditions obtaining in a State Instrumentality but in this case it extends to 28 awards covering a wide area of government activity. In all the circumstances we would approve the variations as they apply to "in-laws". As for the extension of the award to cover deaths occurring outside of Australia there is no doubt that the current "standards" in the public sector awards restricts the leave to deaths within the nation. This seems to be the case elsewhere in Australia both in the public and private sectors. We do not consider that the decision to extend the leave to State Energy Commission employees for deaths occurring outside Australia is sufficient to warrant a flow of this condition across the public sector as a matter of merit, notwithstanding the discussions which took place last year. Accordingly, we would refuse this part of the claims. The minutes of the proposed orders will now issue. 1044 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 66 W.A.I.G. BEFORE THE