C2001/4124, Transcript of Proceedings [2001] AIRCTrans 3241 (26 November 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE GIUDICE
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER EAMES

C No 2001/4124

APPLICATION TO VARY NORTHERN TERRITORY PUBLIC SECTOR (General Conditions of Service) Award 2000

Application under section 113 of the Act by
the Community and Public Sector Union to vary the
Northern Territory Public Sector
(General Conditions of Service) Award 2000

DARWIN

10.06 AM, THURSDAY, 8 NOVEMBER 2001

PN1

JUSTICE GIUDICE: Could I have the appearances please.

PN2

MS M. COOPER: Appearing for the CPSU with MARK HATHAWAY.

PN3

JUSTICE GIUDICE: Thank you.

PN4

MS D. YALI: May it please the Commission, I'm here on behalf of the Liquor, Hospitality and Miscellaneous Union in this matter. I also have consent from the Australian Manufacturing Workers' Union, the Australian Nursing Federation, the Communications, Electrical and Plumbing Union and the Northern Territory Trades and Labour Council to appear on their behalf in this matter.

PN5

JUSTICE GIUDICE: Thank you.

PN6

MR B. MAPPAS: If the Commission pleases, I appear on behalf of the Commissioner for Public Employment of the Northern Territory.

PN7

JUSTICE GIUDICE: Thank you, Mr Mappas. Well, who is to start? Ms Cooper?

PN8

MS COOPER: If the Commission pleases. This application was made consequent to the award simplification process conducted under the auspices of Commissioner Eames. While some matters were agreed between the parties, the insertion of the 6 weeks annual leave into the award was not. The union then applied to vary the award, so that the existing 6 weeks annual leave could be inserted into the award.

PN9

In proceedings before Boulton J on 9 August 2001, the issue was raised that the application may in fact be above the safety net and accordingly, the matter has been referred - was referred to the president for consideration, and these proceedings today are the consequence. Perhaps I will just commence by giving the Commission a brief background into the history of the recreation leave entitlements for Northern Territory public sector workers.

PN10

Prior to self government, many of these workers were employees of the Commonwealth in the public sector, in the Northern Territory. Those staff then formed part of the Federal Department of the Northern Territory and, among other things were entitled to the benefit of 6 weeks annual leave; That was 4 weeks annual leave plus an additional 2 weeks. When the Northern Territory attained self government, in or around 1978, many of these staff were transferred to the Northern Territory Government. On their transfer, the terms and conditions relevant to their staff are also transferred and were taken up by the Northern Territory administration.

PN11

If I could at this stage, I would like to hand up just a bundle of documents that provide the trail, if you like, of instruments that are relevant to any consideration of recreation leave and its history in the Northern Territory Public Sector. There is a bundle of documents with the most recent document being on top.

PN12

JUSTICE GIUDICE: Thank you. Would you like us to identify those? It might be useful. We will mark that bundle of documents MFI1.

MFI #1 BUNDLE OF DOCUMENTS

PN13

MS COOPER: Now, as I understand it, the representative of the Office of the Commissioner for Public Employment will be able to take you, in more detail, to the content of these documents and their application. If I could perhaps take the Commission though, to determination number 276 of 1980, which is the third document in the bundle. As you can see from this determination, going to paragraph B "An employee who is stationed at a location or place specified in column 1 of the schedule shall be granted an additional period of leave in respect of each month of service in that district or place which shall be calculated as one twelfth of the ordinary hours of duty, for a period specified in column 2 of the table".

PN14

Turning the page on that, you can see in column 2, they have listed the additional period of leave in days. Those locations that are listed in column 1 are all the locations in which the Northern Territory public sector have staff working. As that document indicates, there was an additional 2 weeks of annual leave for all Northern Territory public sector employees, from at least 19 - 1 January 1981 so, since that date, that has continued in various shapes and forms, but if I could just take the Commission to the two documents in that bundle. They are the most recent relevant provisions for the purpose of establishing or verifying that this entitlement has - exists in the by-law. In provides that in 4(2), that the Commissioner may determine that additional recreation leave credits are to be made to Northern Territory employees, then determination number 5 of 1993, which is still current, provides without doubt that all - an employee of the public sector that is stationed in the Northern Territory an additional recreational recreation leave credit of 2 weeks shall accrue for each year of service.

PN15

I suppose what we are trying to establish for the Commission, is that the application to vary the award is only seeking to put in place a term or condition of employment that has been in existence for a very long time, and at the very least, for the last 20 years. Now, how this relates to the Northern Territory Public Sector Awards is another issue. Some of the existing awards of the Northern Territory public sector incorporate this standard by specifically referring to the by-laws, as amended from time to time, otherwise they are generally silent and have been silent as to the quantum of annual leave relevant to the employees covered under that particular award. Some of them incorporate the Northern Territory Public Sector General Conditions of Service Award, the award before you today for variation, and until the award simplification exercise, it too was silent on the quantum of annual leave.

PN16

It has generally been accepted the determination, providing as it does, for 4 weeks annual leave plus and additional 2 weeks was not inconsistent with these Federal Awards, and thereby applied to all Northern Territory public sector employees. That may be the case, but we think the matter has become a little confused, as we hope this chart will establish. If I could just hand this up to the Commission. What I have attempted to do - wait until you give it a number perhaps.

PN17

JUSTICE GIUDICE: Yes, thank you. We will mark that MFI2.

MFI #2 CHART

PN18

MS COOPER: On the left-hand side of the chart is a list of all the awards covering the Northern Sector Public Sector, the relevant numbers and the date made and the number of the recreation leave clause or the closest approximation to it in the award is included in the fourth column. The contents, or a summary of the contents are then included in the fourth column. As the Commission can see from the awards that have simplified, for example the first two awards, the Centralian College Award and the Construction and Maintenance Workers' Award. The Centralian College Award actually does provide for the additional 10 days leave. The Construction and Maintenance Workers' Award are - provides that the conditions under which the entitlement shall accrue is subject to the by-laws.

PN19

The Drafting Award which has not yet been simplified, refers to determination 214 of 1979, as varied from time to time. Now, I'm not quite sure what that determination was, but I presume it was for the - applied to the additional leave or perhaps the Office of the Commissioner for Public Advocate - Public Employment, excuse me, could clarify that one for us. It also indicated that it was subject to the Northern Territory General Conditions of Service Award. The Fire and Rescue - going over the page - the Fire and Rescue Service Award, which has been simplified, again refers to the by-laws and incorporates those, and then continuing on you will see either references to the by-laws or no provisions at all in the awards for the quantum of recreation leave other than a reference to the Northern Territory Public Sector Award, which now currently now provides for a basic paid annual leave credit of 4 weeks.

PN20

The point we are trying to make is that there is little consistency, and possibly problems and confusion that are - follow from any attempt to examine the Northern Territory Public Sector and the annual leave as it applies to its employees. Now, this is partially because some of the awards are yet to be simplified, but depending on the outcome today, of course that will aid considerably in that process. At the very least though, we say that now there is a potential for confusion even though the determination is in existence and it would - it could be said that it does override the awards, although I think that is far from clear. So I just - after providing the Commission with that background, I will just proceed on to jurisdiction in this matter.

PN21

It would seem clear that the Commission has jurisdiction. Annual leave is an allowable matter for the purposes of section 89A of the Workplace Relations Act, specifically being referred to in 89A (2)(e), that this includes the quantum of annual leave was established in the award simplification decision, print 7500. At attachment D, under the table allowable matters, incidental and necessary table. I might hand up an excerpt from that decision to which I refer. I apologise to the Commission for not having the citations and having only the downloaded from the internet versions of the decision. If the Commission requires, I can provide formal citations.

PN22

JUSTICE GIUDICE: No, that is all right. We can track that back through our own system, thank you.

PN23

MS COOPER: If you open up the excerpt, going to attachment D, allowable matters, incidental and necessary table. The opening paragraph provides - I think that is actually page 41, at the top of the page. This table refers to provisions in the current and proposed Hospitality Award, which we have determined are allowable or incidental and necessary. The determination of whether or not an award provision is incidental to an allowable matter and necessary for the effective operation of the award, may depend on the circumstances in a particular case, and specifically, over the page at 89A (2)(e), where it says annual leave and leave loadings, the quantum of the leave entitlement and of the loading, is clearly a matter that is within jurisdiction.

PN24

Therefore, that leaves us with the question; well, what is the safety net in relation to annual leave? The award simplification decision accepted submissions put to it that existing rights and protection should not be lightly set aside, and that the nature of the industry should be taken into account when considering proposals to vary existing award provisions. That was at page 5 of the decision, paragraphs 2 and 5. It is also worthy of note that in attachment 4, the comparative table, and I believe that is in the expert - excerpt that I have handed up, and that is page 143 of 176, at paragraph 30.1, where it says how long is annual leave. It says "An employee, other than a casual employee, is entitled to at least 4 weeks annual leave after every 12 months of continuous service. In this context, we submit, it is clearly contemplated that an award of annual leave in excess of 4 weeks may exist in an award and not be considered to be above the safety net.

PN25

That is, in consideration of existing rights and entitlements of Northern Territory public sector workers, and the industry itself, which has an established history or recognition of 6 weeks or more appropriately or more accurately, 4 plus 2 weeks annual leave. An award clause reflecting this entitlement may not, in fact, be regarded above the safety net; or there is at least potential for it not to be regarded above the safety net.

PN26

In addition, an examination of the history of annual leave in the Federal award system, does not reveal any test case standard of 4 weeks although the 1971 annual leave case refused an application for a general increase in the annual leave entitlement to 4 weeks, citing the ILO standard of 3 weeks. That annual leave test case, or that annual leave decision was 1972, 144, CAR528, it seems that the 4 weeks actually started to flow into the awards following a decision of the Australian Federal Government to award its public sector employees 4 weeks leave - annual leave, in late 1972. Thereafter, the parties to the Metal Industry Award agreed to vary the award to insert 4 weeks annual leave. That agreement was approved by the Commission in June 1974.

PN27

In August 1974, the New South Wales Industrial Commission, in court session, prescribed a 4 weeks leave - 4 weeks annual leave for all employees within its jurisdiction, and this was followed not long after by amendments to the New South Wales Annual Holidays Act, which was amended to provide for 4 weeks annual leave for all New South Wales employees, so the standard of 4 weeks could be seen to have flown from those, from those events, not necessarily from any specific pronouncement in a test case by the Commission.

PN28

Therefore - I suppose what we are trying to establish, that in relation to the safety net for annual leave, it is arguably a relatively fluid concept. It is not necessarily constrained by test case standards, but is able to be considered in line with the full bench award simplification decision, after a consideration of the industry and the existing rights and entitlements of employees within it. As the Commission can see from the chart that was handed up, there have already been some decisions, some simplified awards that have maintained or retained that extra leave. So then, even so, the - - -

PN29

JUSTICE GIUDICE: Could I just ask on that point, are there any awards which include the 6 weeks where it previously hadn't been in the award?

PN30

MS COOPER: The Aboriginal - that was in the award beforehand?

PN31

MR MAPPAS: Perhaps I could answer that one, your Honour.

PN32

JUSTICE GIUDICE: Yes, Mr Mappas?

PN33

MR MAPPAS: None of the public sector awards as have been referred to, prior to simplification, had less than the 4 plus 2.

PN34

JUSTICE GIUDICE: So the 4 plus 2 was in the award?

PN35

MR MAPPAS: They were in the award prior to the simplification, that is correct, your Honour. This is in relation to public sector awards only - - -

PN36

JUSTICE GIUDICE: Yes - - -

PN37

MR MAPPAS: - - - that I'm aware of.

PN38

JUSTICE GIUDICE: - - - but I understood that that was only done by some sort of reference to the by-laws or some other method.

PN39

MR MAPPAS: There are two - - -

PN40

JUSTICE GIUDICE: Were there actually public service awards that provided for 6 weeks in terms?

PN41

MR MAPPAS: Are you happy for me to answer?

PN42

MS COOPER: Yes.

PN43

MR MAPPAS: It was done in two ways. Two of the awards, the fire service award - Fire and Rescue Service Employees Northern Territory Award 2001 contained reference to 6 weeks annual leave prior to simplification and contains reference now to 6 weeks annual leave. The Centralian College Lecturers' and Educational Administrators' NT Award 2001, contained a reference to 4 weeks plus 2 weeks additional leave prior to simplification and it is reflected similarly after simplification. However, there were other awards which Ms Cooper referred to which had a reference to the by-law. I think those are the ones you were picking up on, your Honour.

PN44

The Construction and Maintenance Employees was one that Ms Cooper referred, so there was a clause in there, if you like, that said something along the lines, and I can quote it if you like, that the provisions - "There will be 4 weeks leave but there will be an additional 2 weeks leave provided in accordance with the by-law 4(2) of the Public Sector Employment and Management by-laws, as determined by the Commissioner", so there were two types of references.

PN45

JUSTICE GIUDICE: Yes. Thank you.

PN46

MS COOPER: I think it - it has not been consistent. I think that - - -

PN47

JUSTICE GIUDICE: I'm sorry?

PN48

MS COOPER: It has not been consistent - - -

PN49

JUSTICE GIUDICE: No, no.

PN50

MS COOPER: - - - at all. Turning now to the consideration of whether or not the application is above the safety net. I would like to hand up the decision of the Full Bench in the casuals test case, and again, I apologise for only having the internet version. Principle 1 of the current statement of principles - do you want to mark that as an exhibit? No? - emphasises that existing wages and conditions in the relevant awards of the Commonwealth constitute the safety net which protects employees. In the decision that I have just handed up; if the Commission could go to paragraph 42, the Full Bench there said, going to the last sentence there - the second last sentence "On that view, on that view of the safety net - - -

PN51

JUSTICE GIUDICE: Is that paragraph 22?

PN52

MS COOPER: 42, sorry.

PN53

JUSTICE GIUDICE: 42. Yes, thank you.

PN54

MS COOPER: - - - on that view of the safety net, any change to an existing condition in an award requires a variation of the award above or below, or perhaps along or about the safety net". In its submissions, the AMWU, in this case, have relied on a Full Bench decision in the Vicki v ALHMWU and I will hand that up just for the Commission's purposes, but we don't need to go to it directly. Going to paragraph 43 of T4991, just under the last reference. The Full Bench says "If the award safety net is being circumvented, then a variation designed to prevent such circumvention cannot, in our view, be regarded as a variation above the safety net".

PN55

Now, although the Vicki and LHMWU case related to employers possibly using the award, or attempting to get around provisions in the award in relation to shift payment, and accordingly, the Full Bench in that decision did not consider that the variation requested by the LHMWU was above the safety net, it was more in terms of a remedial variation, so they granted that variation.

PN56

In this case, the Full Bench found, even though the circumstances were slightly different and the application was relating to an increase in the level of loading for casuals, the Full Bench found this case was apposite to its consideration in relation to the proposed variations to the entitlements of casuals, saying at paragraph 44 "Variation of the award to adjust it to bring it more closely in to alignment with what is perceived to be a more appropriate minimum standard condition is consistent with a remedial variation of the award." It also said "A remedial variation might be one that reduces the possibility of ambiguity."

PN57

It is our submission that in view of this, the more appropriate minimum standard for the Northern Territory public sector is 4 plus 2 weeks, as is evidenced by the long application in the industry of this level of entitlement and the determinations giving it effect. The current provision of 4 weeks leave in the - if I could refer to the award under consideration as the GCOS Award, rather than recite the full title, that would be helpful.

PN58

The current provision of 4 weeks in the GCOS Award might be seen to have created ambiguity and uncertainty across the Northern Territory Public Sector Awards, given the number of them, as can be seen by the chart, the variations that currently exist, and especially those that currently refer to the GCOS Award, under the general, general conditions entitlement clause. So GCOS is already potentially in conflict with the provisions of the determination. Again, this creates uncertainty and ambiguity.

PN59

Thus we contend it is open to the Commission to find that the application to vary is remedial in nature, and accordingly, can be made on that ground, however, in the alternative, if that submission isn't accepted, we will need, obviously, to establish that the variation sought warrants a determination of the matter as a special case, so, is the variation, as sought, above the safety net? We would take, in relation to that matter, the Commission to the Full Bench decision in the Finance Sector Union v Commonwealth Bank of Australia case.

PN60

That is P1297; I think it is generally known as the accident pay case. Now, going to - unfortunately, the pages aren't numbered, so if you could go to 4.4.5. It is the third last page of that decision. It talks about the Newlands underground mine bonus case, which was print 1888 and the reference is citing from pages 8 to 9 of that decision; I have that there too. Going to the third last page, the second paragraph. The Full Bench said:

PN61

Newlands further contended that the application was beyond jurisdiction because the benefit claimed is not capable of being a component of the minimum rates ...(reads)... some of which may go to jurisdiction will have to be determined on the merits of the case presented.

PN62

In the following paragraph, on the same page, I think it is the fourth paragraph, the Full Bench said:

PN63

The safety net aspect of the issues raised, leads us to observe ...(reads)... significant individual awards provide only for a 26 week period of accident pay.

PN64

Further on:

PN65

Subject to satisfaction as to the whereabouts of the safety benchmark for accident pay and other considerations going to the merit of the case ...(reads)... the level of accident pay in excess of an identifiable community standard.

PN66

A case would need to be made out as to why accident pay for CVA and perhaps banks generally, should exceed that standard. In our submission there is a demonstrable standard of 4 plus 2 weeks annual leave in the Northern Territory public sector which has been in existence in the Northern Territory public since its inception, and even before then, for those employees that were employed under the predecessor Commonwealth Government. In addition, in considering whether or not to increase the rate of casual loading, the Full Bench in print T4991, if I could take you back to that decision, said at paragraph 146 and 7. Again, we are talking about increases above the safety net:

PN67

An increase to the casual rate loading of an award is an increase above the safety net ...(reads)... type of employment provided for under the award.

PN68

Further down:

PN69

Our general conclusions in the preceding paragraph tie in ...(reads)... provides compensation for in the particular relevant award.

PN70

In the context of the current application therefore, we say that the application does not go beyond levels consistent with other awards in the industry. In fact, if it is accepted that the relevant industry is the Northern Territory public sector. The level of the variation requested is entirely consistent, if not with existing awards, because this award is regarded as, is regarded as the over-arching award in the Northern Territory public sector, I think that is ..... to say.

PN71

The level of variation is entirely consistent with the existing instruments covering recreation leave in the Northern Territory public sector. Nor does it go beyond factors peculiar to the industry covered by the award. Again, if it is accepted that the industry is the public sector, in the Northern Territory, 6 weeks annual or 4 plus 2 may be seen as peculiar to it, and the application seeks nothing more that to meet that standard.

PN72

Of the qualifications cited in the concluding sentences in paragraph 147, we would say the first does not apply, and the second, regarding the centrality of award based benefits and in consideration of the centrality of the GCOS Award in the Northern Territory public sector as a whole, we contend it supports our submissions, that the entitlement should be enshrined in that award.

PN73

Finally, I would just like to take the Commission to the application of the principles. If I could just hand up, again, just excerpts from the safety net review decision made 2001 - - -

PN74

JUSTICE GIUDICE: Thank you.

PN75

MS COOPER: - - - page 30, of that decision - sorry, page 29.

PN76

COMMISSIONER EAMES: Sorry, which page was that?

PN77

MS COOPER: Page 29. That is at attachment A. In principle 1, where they talk about the role of arbitration in the award safety net, again, it talks about existing wages and conditions, protecting employees and as the Commission can see, there is no uniformity or consistency in the existing conditions in the relevant awards which apply to the Northern Territory public sector in respect of annual and recreation leave. Although the termination provides for 4 plus 2 week entitlement to its employees, we would say that this does not satisfy the principles of the awards contained in these provisions.

PN78

We submit the variation, as proposed, would enable this threshold requirement of the principles to be satisfied. In addition, principle 1 marks the function of the award as the benchmark against which the no disadvantage test is applied. The award as it currently stands, cannot be regarded as a benchmark, as it is not truly reflective of the standards that exist in the Northern Territory public sector. We would therefore contend that it could be seen to undermine the no disadvantage test and thwart the effectiveness of the award as the safety net is envisaged by the principles.

PN79

JUSTICE GIUDICE: Would the by-law be required to be taken into account and applied under a disadvantage test do you know?

PN80

MS COOPER: You would, you would think so, but looking at, for example the Employment Advocate applying the no disadvantage test to an AWA that is put before him. It is not necessary for the parties who submit that AWA to - excuse me - to provide all the relevant information to the Employment Advocate, and while the Employment Advocate may, in his research, find that these by-laws exist, unless it was brought to his attention, and the Act does not require it to be brought to his attention, he may well measure that AWA against the 4 weeks that is currently in the GCOS Award, being unaware that the determination exists providing for the additional 2 weeks. Of course, that would also have an impact on the loading that is received by the employee, because the 17_ per cent loading, obviously, would be less on 4 weeks than it would on 6 weeks.

PN81

Just going here - filing an AWA as an ancillary - 170VN of the Act. There is no - the AWA must be - the 170VO must be signed and dated, it must be accompanied by a declaration saying it complies with VG, that the employee was given a copy, must include information about, but may include other information. This is 170VO, paragraph 2, Commonwealth Statutory Entitlements, Occupational Health and Safety Law, Services provided - this is the information prepared by the Employment Advocate, sorry, it is not the information provided to the Employment Advocate.

PN82

JUSTICE GIUDICE: The application of a no disadvantage test does seem to require that relevant laws of the Commonwealth or State or Territory should be taken into account.

PN83

MS COOPER: Any law of the Commonwealth that the Employment Advocate or the Commission, as the case may be, considers relevant. I suppose our point is that the Employment Advocate may well not be aware of these existing determinations, and unless they were brought to his attention, there is a potential that the no disadvantage test would be applied against the award as it exists.

PN84

Going to principle 2 of the statement of principles, there it outlines a number of circumstances in which an award may be varied without the claim being regarded as above or below the safety net. It is apparent that none of these instances apply to this application, so consequently, the relevant principle for consideration is principle 11 which provides for the variation of awards. As it states:

PN85

Any first award or extension to an existing award must be consistent with the Commission's obligations under part 6 ...(reads)... perform its functions in a way that furthers the objects of the Act in part 6.

PN86

So turning to those objects in part 6 of the Act, the first one is that wages and conditions of employment are protected by a system of enforceable awards. In the context of this variation application, we would say that the GCOS award, this object might be seen to be undermined by virtue of the fact that the entitlement actually is 4 plus 2 and the award does not provide for this. It might also be seen to be undermined in respect of other Northern Territory public sector awards, because of their incorporation of the GCOS provisions. Prior to this version of the award, GCOS was silent on recreation leave quantum, but now it says the 4 weeks. The relationship of that award to the awards that have yet to be simplified is considerably confused by the current provision.

PN87

I - in addition, it creates difficulties with enforceability of leave loading provisions, as I briefly mentioned before, given that the amount previously paid was based on a 6 week entitlement, the insertion of the 4 week entitlement into the award has the potential to cause confusion in relation to the leave loading. I should mention though that the determination does provide for leave loading as well. Another object of the Act, is that the Awards Act is a safety net of fair minimum wages and conditions of employment. As our previous submissions we hope demonstrated, the award is not currently performing its function as a safety net as annual leave provided for in it is less than the standard which otherwise applies to the Northern Territory public sector.

PN88

A further consideration in this context we would say, custom and practice. There is a general recognition that industrial law must take account of history and accepted practice in an industry occupational workplace. Given the history of the entitlement to 4 plus 2 weeks recreation leave for Northern Territory public sector employees, we contend that this has become a part of practice, except a practice in the Northern Territory public sector. The current 4 week award provision does not deal with that custom and practice. It is our submission that this is a relevant consideration in the context of maintaining a safety net of fair and minimum conditions.

PN89

Further objects of part 6 require that awards are simplified and suited to the efficient performance of work according to the needs of particular work places or enterprise. It is arguable that the Northern Territory public sector awards are not currently suited to efficient performance of work because the lack of clarity and apparent inconsistency across the awards. The perception - this could impact on efficient deployment of staff in the Northern Territory public sector if there is a perception that an annual - that a lower level of annual leave applies, even if in fact the determination is in place that the office of - the Commissioner of Public Employment we argue would override these provisions. It think at the very least, it gives a perception to employees that, on reading the award, that it is all a bit too confusing or that the provisions that are in the award are less than what they are entitled to moving across public sector agencies.

PN90

The Commission's functions and powers in relation to making and varying of awards are performed and exercised in a way that encourages the making of agreements between employers and employees at the workplace level. This is another object of part 6. In particular, we would say that the 4 weeks as currently in the award constrains what can be achieved in enterprise bargaining. If the 4 plus 2 week provision was inserted into the award, it would allow greater room for negotiations in bargaining. Section 88B(2) further requires the Commission, in performing its functions to ensure that a safety net of fair minimum wages and conditions of employment is established and maintained having regard to economic factors.

PN91

It is contended, and we understand, supported by the Office of the Commissioner for Public Employment that the insertion of the additional 2 weeks annual leave will have no cost impact to the employer. 4 plus 2 is the current entitlement for all Northern Territory public sector employees. In addition, there is no danger of a flow-on effect as the industry covered, the Northern Territory Public Sector, already receives this entitlement.

PN92

SENIOR DEPUTY PRESIDENT WATSON: Ms Cooper, can I take you back to the agreement object of the Act. What is the experience with certified agreements within the Northern Territory Public Service?

PN93

MS COOPER: I might have to defer to our branch secretary for some information on the certified agreements in the Northern Territory. Branch Secretary, are you able to address that?

PN94

MR HATHAWAY: Yes, your Honour. The normal agreements that we have managed to negotiate with the Commissioner for Public Employment have generally been non-comprehensive agreements that have made in conjunction with awards. They also make reference to by-laws and determinations of the Commissioner for Public Employment, and maybe Mr Mappas might be able to assist.

PN95

SENIOR DEPUTY PRESIDENT WATSON: Can you just tell me the nature of those agreements? Is there a general agreement or a specific agreement?

PN96

MR HATHAWAY: They are general across the public sector in terms of we have - a Community and Public Sector Union have coverage. There are two agreements that apply. One is the Northern Territory Public Sector 2002 certified agreement and then the other one is the Power and Water Authority certified agreement. There are a number of - there are two other agreements with other unions; I'm talking about the teaching - the Australian Education Union and there is also a 2001 certified agreement which I think has just been replaced, has it Mr Mappas?

PN97

SENIOR DEPUTY PRESIDENT WATSON: Thank you for that.

PN98

MS COOPER: Sir, just finishing off that last point, the insertion of the variation into the award would only have the effect of maintaining the status quo and reducing any uncertainty that might arise by the inclusion of 4 weeks in the award. In addition, we submit that the application is consistent with more general objects of the Act in section 3 - - -

PN99

JUSTICE GIUDICE: Just before you go to those, may I just ask you about 88B(2)(a). It seems to require us to have regard to the - to some generally prevailing standards.

PN100

MS COOPER: In that, in that context, we would say that a level of annual leave above 4 weeks is not an unusual provision in an award. There are in existence, several awards where shift workers are granted an additional annual leave period of a week.

PN101

JUSTICE GIUDICE: Yes. What is the position in the private sector in the Territory in relation to annual leave. Is it still 4 weeks?

PN102

MS COOPER: I, I would have to get back to the Commission on that. I think it is a 4 week standard. Mr Mappas or Mr Hathaway might have more information on that.

PN103

MR MAPPAS: Perhaps if I might, your Honour, there are, and I'm not sure whether you were going to mention, there are a couple of awards in the private sector which already have 6 weeks leave in them, and there are a few that have 5 weeks in them, but it is generally 4 weeks, off the top of my head. I'm not just exactly sure what those are, but we can get those to you.

PN104

JUSTICE GIUDICE: Yes.

PN105

MS COOPER: The Northern Territory University Academic and Related Staff Award has an annual leave provision of 30 days, in clause 10. The Journalists, Commercial Radio Award, that is not a Northern Territory public sector award, it has 6 weeks annual leave. The Northern Territory Aboriginal Legal Aid Services Award 1990 has provision for additional leave, and the Public Sector Union Central and Northern Land Council's Award 1999, also has provision for additional leave.

PN106

JUSTICE GIUDICE: Thank you.

PN107

MS COOPER: Going to the objects of section 3, as described above, the granting of the variation as proposed, we say would promote fair and effective agreement making by enhancing the capacities of the party to negotiate. It would mean the award would provide a more appropriate base from which enterprise bargaining could be conducted. In addition the objects at 3(b) and C(b) will be promoted. That is, ensuring that the primary responsibility for determining matters effecting the relationship between employers and employees is decided at the workplace or enterprise level. In this application, the Office of the Commissioner for Public Employment is supporting our application.

PN108

Similarly, the object's aim to provide the means for wages and conditions to be determined, as far as possible by agreement, and again, the variation as sought if included, we say would enhance that. The objects of 3(d)(2) also aim to ensure the maintenance of an effective safety net of fair and enforceable minimum wages and conditions. As alluded to above, the effectiveness of the above GCOS award, as a safety net, is in doubt because of the inconsistencies and uncertainty created by the insertion created by the insertion of the 4 week leave provision. In addition, if it is accepted that the 4 plus 2 is the standard appropriate minimum in the Northern Territory public sector, then on the current award, this is not enforceable.

PN109

The determination of the Office of the Commissioner for Public Employment can be unilaterally altered. While this is not indicated under the current Government, of course there can be no guarantee that this won't happen in the future. Accordingly, the insertion of the basic 4 plus 2 week entitlement in the award will give greater certainty and enforceability to the award as a fair and effective safety net. It is submitted that the additional benefit would also assist in reducing the likelihood of any industrial unrest as a consequence of a unilateral withdrawal of the entitlement.

PN110

In conclusion, therefore, we would say the award as it stands is an inaccurate reflection of existing terms and conditions applicable to employees in the Northern Territory public sector, and its current terms have potential to cause uncertainty. It is a variation agreed by the parties; in this context, we refer the Commission to another Full Bench decision, print R1485 in the Wool Classers' Award. Actually, I will also hand up a decision - another Full Bench decision that adopted and agreed with this approach, so that is prints R1485 and 9499.

PN111

There the parties had agreed to a variation - sorry. This is R1485. There the parties agreed to a variation that departed from the safety net. The Full Bench, in granting the application, said at paragraphs 13 to 14 "The agreement is in the form of a safety net approach to the award. It is agreed to by the parties who know the industry and is considered by them to be fair in all the circumstances"; and a little further on "In the circumstances we have set out, we regard this as a special case within principle 10 of the Commission's statement of principles and accordingly, think it appropriate to vary the award in the terms of the draft order."

PN112

This approach was followed by the Full Bench in the Pastoral Industry Award 1998 case, in print R9499, which I have also handed up. Therefore, in all other aspects we contend the claim satisfies the principles in the act and is not contrary to public interests to grant it. In our submission, there is a compelling case for granting the variation as sought.

PN113

If the Commission pleases, we have no further - - -

PN114

SENIOR DEPUTY PRESIDENT WATSON: Ms Cooper, can I just ask you; the present application is to vary the GCOS Award and that award only?

PN115

MS COOPER: That is correct.

PN116

SENIOR DEPUTY PRESIDENT WATSON: How does that address the inconsistency between the awards?

PN117

MS COOPER: Going back to the chart - - -

PN118

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN119

MS COOPER: Now, the Centralian College Award and the Construction and Maintenance Workers' Award have already been simplified. The Centralian College Award contains the 20 plus 10. The Construction and Maintenance Workers' Award says "4 weeks" - it says "they accrue subject to the by-laws." There may be a variation sought - need to be sought there if this claim was successful.

PN120

The other awards, the Drafting Award, sorry - going across the page the Fire and Rescue Service Award has been amended to incorporate the additional leave, but the Drafting Award, the Government Printing Office Award, the Law Officers Northern Territory Award and the Nurses Northern Territory Public - sorry, that one has been amended. They all refer to the General Conditions of Service Award, so in respect of those awards, it will provide guidance and assistance when they come up to simplification.

PN121

They would also then remove that uncertainty whereby the General Conditions of Service Award now says 4 weeks, whereas before it said nothing, so the referral to the General Conditions of Service Award are - was - had no impact on the annual leave that was granted because the General Conditions of Service Award was silent on annual leave.

PN122

Now, the reference in those awards to the General Conditions of Service Award and the inclusion of 4 weeks in that award will create the uncertainty, or give the impression that the 4 weeks annual leave is actually incorporated by reference into those other awards, where in fact, those people are of course still covered by the determination. It was never intended that the annual leave that is in the General Conditions of Service Award apply to those awards.

PN123

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN124

JUSTICE GIUDICE: Ms Cooper, are you able to tell us anything else about the reason why the additional 2 weeks were originally introduced?

PN125

MS COOPER: As I understand it, it goes back to the public sector, the Commonwealth public sector days. The leave as I understand it was introduced because of the, well, mainly the need to retain and recruit staff in isolated localities and in consideration of climatic conditions and the remoteness and the difficulty of moving between states, particularly in the Northern Territory.

PN126

The Northern Territory public sector, when it was established, considered that those were - and perhaps Mr Mappas can elaborate a little on this too. It is my understanding that those additional benefits, and there were others in addition to the annual leave, should be transferred to the staff, their own staff, in the Northern Territory public sector, and they have continued to apply the additional recreation leave. I think the recruiting and retaining of staff is possibly the most relevant reason - - -

PN127

JUSTICE GIUDICE: Yes, thank you.

PN128

MS COOPER: - - - and I can provide further evidence of submissions if the Commission requires on factors going to isolation, climate, cost of living, those other types of issues.

PN129

JUSTICE GIUDICE: Yes, well I suppose there is room for discussion about whether those factors are still as relevant, but anyway, that was the original reason for the introduction.

PN130

MS COOPER: I think perhaps, in a small way, they are still relevant. Not perhaps so prevalent as before, but I think the issue of recruiting and retaining staff to this part of the world is still a pre-eminent consideration, and as I said, I'm sure the Office of the Commissioner for Public Employment would be able to elaborate a little further on that.

PN131

JUSTICE GIUDICE: The Centralian College Award, which is the first one there. Was the addition 10 days part of the award prior to simplification?

PN132

MS COOPER: I'm not aware of that, your Honour.

PN133

JUSTICE GIUDICE: Yes. Commissioner Eames seems to think it was.

PN134

MS COOPER: I'm sorry your Honour, I've just lost my case.

PN135

JUSTICE GIUDICE: That is all right.

PN136

COMMISSIONER EAMES: I think, generally, the criteria that was adopted in relation to award simplifications in the Territory, was that if there was an existing entitlement, then that would be reflected in the new simplified award. The difficulty a number of the parties came up against in the process, was the fairly consistent reference to either determinations of the Commissioner for Public Employment or the by-laws and how we deal with that, and that really was a genesis for I think this application as much as anything else.

PN137

There was a decision taken early in the piece by the parties to the public sector awards that the GCOS Award was the most significant award in the Territory in that area and that once we were able to have that award simplified, even by agreement or by arbitration, as in fact it turned out to be, that generally would set a standard which would be adopted by parties to other public sector awards in the Territory.

PN138

The difficulty we had was this particular application and the one that related to the Northern Territory allowances to what we would we would do with that, and the parties, I think following a recommendation from myself, indicated they would make an application to simply vary the awards, or vary the GCOS Award, once it was simplified, to determine the matters once and for all. We are dealing with one of those issues in this matter. As I recall, I think that is where we came from.

PN139

MS COOPER: Having read the transcript as well, I think that is - - -

PN140

JUSTICE GIUDICE: I must have asked the wrong person.

PN141

MS COOPER: Thank you.

PN142

SENIOR DEPUTY PRESIDENT WATSON: Just one final question. Does the APS workforce still retain the additional leave in the Territory?

PN143

MS COOPER: Yes they do. The APS Award currently has 5 weeks leave for - recreation leave for its staff, but that 5 weeks is a consequence of a deal done, if you like, in 1982, whereby there was negotiation between the Commonwealth and the public sector unions in relation to the recreation leave and the other conditions that flowed to people who worked in the Northern Territory and other remote localities. What happened there was the staff were given a chance to vote on two options. One option was to retain the 6 weeks annual leave and keep a bi-annual air fare.

PN144

That was an air fare every 2 years, to any capital city in Australia, or have 5 weeks annual leave and then get an air fare every year instead of every second year to the closest capital city, which was Adelaide. The result of that vote was that the staff opted for the 5 weeks and the air fare every year. So that is how that was reduced to the 5 weeks. Otherwise the 6 weeks, and Mr Hathaway can add something to those submissions, if the Commission pleases.

PN145

MR HATHAWAY: Your Honour, that was a one-off election in 1982, and in fact there were some staff who were employed by the Commonwealth prior to 1982 who are after that election retained their 6 weeks leave and their option of paying $50 towards their air fare to any capital city in Australia, but certainly new recruits from 1983 onwards were only entitled to 5 weeks leave.

PN146

It was also related to the history of the Public Service Commission and it acting as an arbitral tribunal, whereas, in the '80s, there was a movement away from the Public Service Board determining its own conditions and arbitrating that and a movement across to the Industrial Relations Commission, and that took time in terms of reform, because these conditions generally contained under the old Australian Public Service Act 1929 and determinations from those.

PN147

JUSTICE GIUDICE: Yes, Mr Mappas. I'm sorry, Ms Yali do you have any submissions?

PN148

MS YALI: Yes, your Honour.

PN149

JUSTICE GIUDICE: I'm sorry about that.

PN150

MS YALI: The LHMW, the AMWU, the ANF, the CPU and the TLC adopt the submissions of the CPSU in this matter. If I could add a further submission on behalf of the Trades and Labour Council. It is generally agreed that in the simplification process, this GCOS Award would be, you could call it, the template award in simplification matters for the NT. It would obviously follow that applications to vary other public sector awards would follow should this application be successful today. May it please the Commission.

PN151

JUSTICE GIUDICE: Yes, thank you. What do you say about the private sector?

PN152

MS YALI: Sorry?

PN153

JUSTICE GIUDICE: What would be the impact on awards in the private sector?

PN154

MS YALI: Would be unlikely for any flow-on effect, your Honour.

PN155

JUSTICE GIUDICE: Thank you. Mr Mappas?

PN156

MR MAPPAS: Thank you, your Honour. Perhaps if I could just first address some of the matters that Ms Cooper referred to and left for me to provide clarification on - or that I think need clarification. One of those matters was a reference to - which is in the table that was provided to you, MF2 I think it was, your Honour, in relation to the Drafting, Supervisory, Technical and Other Employees Award 1985 which as at the bottom of page 1, there is a reference in there to determine notion number 214 of 1979; that determination, your Honour, is in fact the general conditions - that is the Public Service Arbritrator's determination which was the predecessor to the General Conditions of Service Award 1987.

PN157

JUSTICE GIUDICE: Yes.

PN158

MR MAPPAS: The second matter I would like to touch on, your Honour, is that you asked a question about the benchmark in respect to the principles, the benchmark and the no disadvantage test and whether the by-law would be considered in that test, and I just simply point out that the by-law as it stands is a by-law of the Commissioner for Public Employment made under the Public Sector Employment and Management Act an whilst the Commissioner has given some assurances about not amending that by-law without consultation, the fact is that that by-law could be amended at any time by the Commissioner on his own motion.

PN159

So I just raise that as to whether that effects the - whether that could be considered as being part of a benchmark where that could be altered at some stage. So perhaps it is a benchmark that may be questionable. I can confirm that the 2 additional weeks leave that was provided - has been provided for some considerable time. Is a - we see as a very good recruitment and retention tool and notwithstanding that the factors of the isolation and climatic conditions and distance are also factors that originally drove this man to some degree, still exists.

PN160

The recruitment retention is very high priority for the Northern Territory public sector. The issue and it is a point of clarification from the Commissioner for Public Employment's view, Ms Cooper advised the Commission that there is little consistency between awards and the determination and one of the reasons for including the additional 2 weeks leave in the General Conditions and Service Award is to remove that inconsistency and confusion perhaps.

PN161

The Commissioner for Public Employment will simply say that, yes there is quite a bit deal of difference between the awards and yes there is a determination which provides an additional 2 weeks leave which isn't provided for in some of the awards and it does cause confusion from time to time amongst people trying to apply those provisions but we do recognise that there is a hierarchy between Commonwealth legislation and the Northern Territory legislation where Commonwealth legislation exists and is inconsistent with the Northern Territory legislation.

PN162

The Commonwealth legislation will prevail to the extent of that inconsistency. Your Honours, as indicated by Ms Cooper the Northern Territory Commissioner for Public Employment supports the application to vary the - if I can refer to it as the GCOS Award 2000 to include an additional 2 weeks recreation leave and the submissions put to you by the Community and Public Sector Union. Your Honour, this view now expressed by the Commission of Employment can be seen as contrary to that put to the Commission in June 2000 when this award came before it for simplification.

PN163

At that time, the view held by the Commissioner for Public Employment was that while there were already a number of NTPS awards and we referred to those earlier, the Fire Service Award and the Centralian College Award and there was also another award, the Tafe award which has since been set aside. There is also another award, the Darwin Port Authority Award which all contain provisions providing for a total of 6 weeks recreation leave. Our argument was that these should not be used as precedents as they were remnants of decisions made a long time before the Australian Industrial Relations Commission came into existence by the Public Service Arbitrator and should have no bearing on decisions made by the Commission.

PN164

It was also the Commissioner for Public Employment's view at that time that the simplification process should only allow what we refer to then as a national standard of 4 weeks to be included. However, since that view was expressed the Australian Industrial Relations Commission has under the Workplace Relations Other Legislation Amendment Act simplified two Northern Territory public sector awards that provide for a total of 6 weeks recreation leave and these awards, and they have been mentioned earlier, the Centralian College Lecturers and Educational Administrators Award 2001 and the Fire and Rescue Service Employees Award 2002.

PN165

The Commission has, since that time which was June 1980, also simplified - sorry, June 2000 has also simplified one other award, the Construction and Maintenance Workers Award 2001 and is in the process of simplifying two other awards, the Health Employees Miscellaneous Workers Union Award 2001 and the General Employees Miscellaneous Workers Union Award 2001, which I understand decisions are pending.

PN166

They all contain provisions referring to the by-law which provides for the additional 2 weeks recreation leave. In light of those decisions, the Commissioner for Public Employment now believes our earlier view can no longer be sustained and that it is now open for the inclusion of the 2 weeks additional leave in the GCOS 2000 award, making a total 6 weeks recreation leave in the Northern Territory public sector a standard.

PN167

Your Honours, the Commissioner for Public Employment believes that the inclusion of the 2 weeks additional leave in the GCOS award will not set a precedent for employees outside the Northern Territory public sector. The NT public sector is an entity created and regulated by the Northern Territory Parliament under the Public Sector Employment and Management Act and awards and certified agreements between the Commissioner for Public Employment and the relevant public sector unions. As such, the NTPS is a descent in a distinct and unique position.

PN168

These will be the public sector employers and the Commissioner for Public Employment believes it will be difficult, if not impossible for analogies to be drawn between the two. In fact, terms and conditions of employment within the NTPS do currently vary quite considerably from those in the public sector and the two sectors have, and continue to exist side-by-side and quite independent on each other; peacefully if I could use that term.

PN169

Your Honours, the application before you by the Community Public Sector Union reflects the existing character and level of entitlement for recreation leave for employees covered by the General Conditions of Service Award 2000. As indicated by Ms Cooper, the entitlement to 4 weeks recreation leave and the additional 2 weeks recreation leave goes back some time and in fact to the 1970s under the Australian public service and certainly since 1981 the additional 2 weeks has been available to all employees in the Northern Territory public sector.

PN170

Commissioner, I should just clarify with you if I can what I mean by that and if you can refer to the bundle of documents that Ms Cooper handed up as MF1.

PN171

JUSTICE GIUDICE: Yes.

PN172

MR MAPPAS: If you go to the last document in that bundle headed in handwriting APS for Australian Public Service General Conditions in force as at 1 July 1978. This document sets out the provisions that applied to employees that were covered under the - at that time would have been determination 214 of 1971, well, the determination which preceded that public service arbitrator's determination.

PN173

Certainly - if you look through the list at the back there, there - and it includes a range of localities all around Australia, but on the page 18 of 19 which is in the bottom left-hand corner where it is headed up Northern Territory about two thirds of the way down the page, you will see that column 2 there has a number of different digits, so there were various amounts of additional leave provided, depending on the locality in which the person resided.

PN174

Most of those are very remote and these aren't all the - these weren't all the localities in the Northern Territory, they are only those localities where there were employees present. The vast majority of these employees got 10 weeks. Most of these are outlying, small communities and other smaller centres. The majority of employees received 10 weeks. That - those provisions were carried over, if I can refer you to the document up from that, which is headed up "Public Service Commissioner's determination number 12 of 1978" which simply reflects the entitlements that existed under the Australian public service and continued with the additional amounts being different, depending on the locality that you were living in.

PN175

Then we, if you can turn to determination 276 of 1980 which is the fourth document in the bundle which was referred to by Ms Cooper. That is when everybody started to receive the additional 2 weeks, but I must stress the point that prior to that, there are only a small minority of employees who didn't get the additional 2 weeks because of the localities that they were living in.

PN176

JUSTICE GIUDICE: Are there any employees that currently don't receive the 6 weeks?

PN177

MR MAPPAS: There are some who don't receive the 6 weeks under enterprise agreements. So there have been some bargaining under enterprise agreements. The one that comes to mind is the Power and Water Authority Enterprise Agreement. So varying the award to include the additional 2 weeks leave, simply reflects the current level and character of the entitlement as being available to employees covered by this award for at least 20 years.

PN178

Your Honours, the Commissioner for Public Employment submits that the application is consistent with the requirements for an extension to an existing award set out in principle 11 of the Statement of Principles of the safety net; review pages, May 2001 decision.

PN179

The application consistent with the objects of part 6 of the Workplace Relations Act and they have already been referred, both by yourselves and by Ms Cooper, and I would just simply say that in relation to the objects 88A, the - in respect to B, the current level of entitlement is, as previously advised, has been for some time 6 weeks. The application will simply reflect that is the case. It reflects the needs under C of the particular work places because that, again, is what has been in place and existed for some time, and it will certainly assist in the - agreements - certified agreements between employers and employees under object 88A(d).

PN180

Turning to section 88B(2), in particular in relation to 88B(2)(b), the economic factors, the Commissioner for Public Employment submits that the granting of the 2 weeks additional leave will not adversely effect productivity, inflation and levels of employment, as the additional 2 weeks leave is already in existence, has existed for some time, and as such, has already been factored into the budgets of NT public agencies and the Northern Territory and Australian economic indicators. So that - the cost of that, if you call it a "cost" has already been taken into account, and the inclusion in an award will not effect - will not impact on that.

PN181

Your Honours, certainly we agree with the submission of the Community and Public Sector Union in respect of the matter being an allowable matter under section 89(A) of the Workplace Relations Act. It is also submitted that it is not against the public interest for the application to be granted for the, for the reasons outlined. Your Honours, in conclusion, the NT Commissioner for Public Employment submits that it is open for the Commission to include the 2 weeks additional leave in the award, as it represents the formalisation of an existing level of entitlement and meets requirements of the Workplace Relations Act, if the Commission pleases.

PN182

JUSTICE GIUDICE: Thank you, Mr Mappas. Yes, thanks for your submissions. We will adjourn until 12 o'clock at which time we hope to be able to give you a decision. Even if not a comprehensive decision, it will be a result. It may have to await some further fuller reasons for decision in due course. I will adjourn now until 12.

SHORT ADJOURNMENT [11.27am]

RESUMED [12.16pm]

JUSTICE GIUDICE: Thank you for waiting. We are in a position to give a decision in this matter. This is an application by the CPSU for variation of the Northern Territory General Conditions of Service Award 2000, in relation to annual leave for public sector employees in the Northern Territory.

PN183

The application seeks an increase in the quantum of the award entitlement to annual leave from 4 weeks to 6 weeks. The application was filed on 31 July 2001 in proceedings before Boulton J on 9 August 2001. Application was made by the CPSU that the matter be referred by the President to a Full Bench for consideration as a special case. The reference was granted on 26 September and the application was heard in Darwin on 8 November 2001.

PN184

The CPSU was represented by Ms Cooper and Mr Hathaway, Ms Yali appeared on behalf of the LHMU, CEPU, AMWU and ANF and Mr Mappas appeared on behalf of the Commissioner for Public Employment. All parties consent to the application. The provision of additional leave for public sector employees in the Northern Territory commenced prior to self government. It was introduced by the Australian Government for employees in the Australian public sector working in the Territory. We were told that an additional 2 weeks of leave above the standard generally applying, was introduced for reasons relating to the isolation of the Territory and the need to attract and retain staff to work there.

PN185

Since self government, successive determinations of the Northern Territory Government, or the equivalent by-laws have provided for 6 weeks of annual leave for public sector employees. The first determination we were shown was made on 22 December 1980, by the deputy public service Commissioner for the Northern Territory, although there was apparently an earlier determination made in 1979. Subject to one or two exceptions, all public sector employees continue to received 6 weeks annual leave. The exceptions are cases in which parties have varied the amount of leave by enterprise agreements.

PN186

Ms Cooper tended a schedule showing the annual leave entitlements under each of the public sector awards. We have included that schedule as an appendix to this decision. It shows that two awards prescribe 6 weeks annual leave and the others have a variety of provisions which in most cases confer an entitlement by reference to the relevant determination or equivalent by-law.

PN187

We have reached the view that the circumstances before us constitutes a special case and that we should grant the application. Our reasons include the following. The additional 2 weeks of annual leave has been a feature of employment in the public sector in the Northern Territory for more than 20 years. The additional 2 weeks leave should be regarded as part of the safety net for the employees concerned. There can be no basis for a flow of the additional leave into the private sector and we note that no suggestion was made that there would be any such flow. Our decision simply recognises an existing level of benefit which has been a feature of employment in the industry for a very long time, and provided for in one way or another in most of the public sector awards. The Commissioner for Public Sector Employment consents to the application, and finally, there will be no increase in labour costs resulting from the variation.

PN188

The variation will operate from today's date. We have noted that a number of the public sector awards incorporate the additional 2 weeks leave by reference to the relevant determination or by-law. We think it is desirable, as a general principle, that as a result of this decision, each of the awards should be varied on application, in the same terms as the variation in this case. Thank you for your assistance and we will now adjourn.

ADJOURNED ACCORDINGLY [12.21 pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

MFI #1 BUNDLE OF DOCUMENTS PN13
MFI #2 CHART PN18