NSW award rescinded in course of term

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NSW award rescinded in course of term

The IRC (NSW) has rescinded a mining award in the course of its term on the basis that the application satisfied the requirements of the legislation.

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The IRC (NSW) has rescinded a mining award in the course of its term on the basis that the application satisfied the requirements of the legislation.

The legislation

Section 17 of the Industrial Relations Act 1996 (NSW) was in issue. That section allows for variation or rescission of an award. An award may be varied or rescinded in any of the following circumstances only:

  1. at any time with the mutual consent of all the parties to the making of the original award,
  2. at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions),
  3. during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so,
  4. after its nominal term if the Commission considers that it is not contrary to the public interest to do so.

Reasons sufficient in this case

Deputy President Sams found the following reasons sufficient to agree to the rescission of the award:

'Firstly, the rescission of the Award will provide an opportunity, consistent with Object 3 of the Act, for the parties to enter into negotiations for a new industrial instrument reflecting the interests of the parties and new operational imperatives at the mine

...

'The parties representing employees involved in the negotiations for any such site award or agreement will be able to draw on the provisions of the present enterprise award to support their proposals to the extent desired, notwithstanding its rescission. There will be no bar to submissions being made by them that the provisions of the present award, or some of them, should be considered in a "no net detriment" context.

'Secondly, there is a reasonable "window of opportunity" for negotiations to occur pending full resumption of activities at the mine. This opportunity should not be squandered.

Thirdly, the provisions of the industry award will apply as a safety net for any employees pending the negotiation of a new industrial instrument.

'Fourthly, ... evidence was that the new employer "wants to attract the best workers in Cobar to work at the Elura mine". It seems a logical conclusion that it will be necessary to offer competitive wages and conditions, which will attract and retain such employees.

'Fifthly, the parties will continue to have their rights available under the provisions of the Industrial Relations Act 1996 and the Commission stands willing to assist the parties during the negotiation process for a new industrial instrument.

'Sixthly, the rescission of the Award will have no detrimental consequences (or any at all) on the entitlements of the former employees of Pasminco who have all been guaranteed their outstanding entitlements and redundancy benefits.'

It followed from the foregoing consideration that the Commission found that firstly, Elura Mines was competent to bring the application to rescind the Award; secondly, that it would be in the public interest to grant the application and, thirdly, there were substantial reasons to do so.

See: Re Elura Mine Enterprise (Consent) Award 2001 [2003] NSWIRComm 218 - Sams DP - 17 July 2003.

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