T209
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
The application to vary the Electrolytic Zinc Award as to margins, allowances and sick leave by consent was introduced by Mr Oldfield for the Electrolytic Zinc Company of Australasia Ltd (the Company). In doing so Mr Oldfield said the matters to be put before the Commission for ratification were complex in nature, but the settlement heralded the dawn of a new era in industrial relations at the Risdon plant of the Company. It was explained that the settlement reached between the parties was achieved after what was described as many hours of amicable negotiations which were conducted in a friendly environment. Such negotiations were conducted against a background of reduced prices for zinc (in US dollar terms) and increased overseas competition. In response, the Company has announced that it intends spending up to $80 million in the next five years at Risdon on modernising the plant to maintain viability. The claims, as detailed by Exhibit 01, were as follows:- EXHIBIT 01 DETAILS OF APPLICATION TO VARY THE ELECTROLYTIC ZINC AWARD
The parties emphasised that each and every item agreed to was wholly sustainable within the wage fixing principles and public interest criteria. It was also submitted that there is no likelihood of flow-on of any of the proposed variations to other awards. I now turn to each item in turn. Item 1 Alteration of the title of the award to "the Electrolytic Zinc Award". This matter was subsequently withdrawn because the change sought has already been put into effect by earlier decision. Item 2 Creation of an Asbestos Eradication Allowance at the rate of 97.5c per hour. The proposed new allowance is to apply only to employees engaged in the process of asbestos eradication on the performance of work within the scope of the award. The same allowance was inserted in the Metal Industry Award (Print F7142, Commissioner Walker, Melbourne 30/11/84). This control and eradication of asbestos is done within the strict guidelines of the National Health and Medical Research Council. The allowance is not "danger money" because safe working is considered paramount, but is to compensate for the disability of wearing special clothing and equipment. Decision Having heard the parties, I am satisfied that the creation of the new allowance is justified in that:-
Accordingly the claim is granted. Item 3 Delete certain words from the current provision relating to ":First Aid Allowance" so as to remove the restriction that only watchmen who are nominated by the Company and required to hold a certificate from St Johns Ambulance or similar body can become eligible for the $4.30 per week allowance. It was pointed out that this was not an attempt to:-
The parties had simply agreed that people who gain the requisite qualification will be required to carry out first aid duties on the job to minimise time involved and maximise first aid treatment facilities; whatever the location at the Plant. Decision It is rather unique to find a situation where no restriction is placed upon the number of employees who may qualify for such an allowance as this. The plant concerned is however an industrial complex where the potential for accidents is always present. Despite the high priority given to observing high safety standards, much manual work is required in relation to servicing, maintaining and checking the multitude of pieces of equipment and moving parts of machinery present in the various Sections. A variety of chemicals are used in vast quantities. So is acid and steam and, of course, hot metal produced and handled in one form or another. These factors illustrate the kind of physical conditions which apply and show why the allowance concerned can be appropriate to such a wide extent even though such an award provision would be a departure from what may be considered as a general standard. The immediate cost of granting the claim would be nil and the future cost negligible. In all of the circumstances the proposal is accepted and approved. Item 4 Vary Part I, Section 1, Division 2 - Roasting Division, by adding the following new allowance:- "Employees in Division 2, hereof, who are holders of a current Department of Labour and Industry Boiler Operators Certificate shall be paid an allowance of $4.30 per week, pro-rata to hours worked." The justification for the introduction of this new allowance is that it is mutually recognised that work requirements have increased since the upgrading of the fluid roaster division of the works. Not only have the parties recognised the increased complexity and changed nature of the work, but the Department of Labour and Industry have reportedly supported fully the contention that for an operator in this division to successfully carry out all duties he must have a good knowledge of boiler operation. Consequently, the Company is now making it a requirement for these operators to gain such a qualification. To gain the qualification, lectures are given over a period of 13 weeks in Company time by acknowledged experts in this particular discipline, under the auspices of DLI. The course is intense and complicated and a high failure rate is predicted. DLI conduct a 3 hour written examination plus a practical examination at the end of the course. Whilst he did not oppose the application as such, Mr Holden of the FEDFA expressed some reservations about the recognition of a special boiler operators certificate in respect of Risdon employees when various boiler attendant certificates are already commonly recognised. The parties conferred briefly and it was agreed that should the claim be successful, careful attention would need to be given to properly defining what features made the special certificate at Risdon so different. Decision I am satisfied from the evidence that the claim is not contrived and can be accommodated within Principle 9(b)(iii) and the granting of same would not be inconsistent with public interest. The new requirement placed upon employees was not previously comprehended in setting the skill margin and the new knowledge acquired through the DLI certificate is knowledge which shall constitute a significant net addition to work requirements. In other words, the additional skills are not simply desirable, but the employer requires that knowledge and those skills to be used continually in the day-to-day function of employees in the Roasting Division. The claim is granted and in doing so I remind the parties of the need to clearly define the certificate when submitting a draft of this and other award variations. Item 5 An increase in "Tool Allowance" payable to carpenters of $3.00 per week to restore the traditional nexus with the National Building Trades Construction Award. The wording of this claim and the initial approach to its presentation caused the Commission some difficulty in that the first impression gained was that the exercise contemplated was one of comparative wage justice and not one within the Principles; save perhaps for reference to an anomalies conference. This impression turned out to be a false one, but illustrates the necessity for parties to make and present claims clearly from the outset. Briefly the history is that carpenters employed at Risdon have traditionally been paid the same tool allowance as those employed under the National Building Award, because the former are deemed to be on all fours with their Federal counterparts so far as provision of tools is concerned. It is a matter of common ground that as increases occurred in the Federal award this information was passed on to the Company and they consented to an award variation as a matter of course. For some reason there apparently has been a breakdown in communications and as a result there is a shortfall in the current tool allowance of $3.00 per week. The claim clearly falls within Principle 9(a)(i) which provides:-
The review of the amount of the actual expense incurred relied upon was carried out by Alley, J of the Conciliation and Arbitration Commission and the last assessment made has been widely accepted and relied upon in awards generally. Mr Currie reliably informed the Commission the new figure sought has been accepted into the Metal Industry Award. I do not believe a separate State assessment of the cost of providing a kit of tools for a carpenter employed at Risdon is necessary in present circumstances. Decision The circumstances are such that the claim meets the necessary criteria and is therefore granted. Item 6 Increase Special Rates (High Work) of 24c per day to restore the traditional nexus with the Federal Metal Industry Award. Decision After some debate it was made clear to the parties that they could not achieve their objective before me because of the limitations imposed by the Principles. I was advised that this matter will be raised as an anomaly before the Anomalies Conference. Item 7 Variation to Part II, Section I, Clause 2, Overtime, by deleting certain unnecessary and confusing wording. Currently Clause (2)(c) provides as follows:-
The proposal agreed to by the parties is to delete the words:- "in a next succeeding fortnightly period" from sub-paragraph (ii), above. In the experience of the parties the words proposed to be deleted add nothing to the meaning, but in fact have created difficulty and confusion only. Decision This is merely a tidying-up variation which is approved. Item 8 Variation to Certain Margins Mr Oldfield introduced this item at pages 48 and 49 of transcript, and I believe in the circumstances that I should quote his words verbatim:-
Exhibit 011, below, demonstrates the precise award changes sought:- PROPOSED CLASSIFICATIONS TO BE VARIED
PROPOSED NEW CLASSIFICATIONS
Any employee commencing with the Company in a position attracting a margin of $135.80 will during the first three months of such engagement receive a margin of $127.30." The variations to margins sought were to do two things:-
It was argued that the first point of change is justified on the basis of very small cost increase. This was graphically demonstrated by production of random pay sheets which illustrate that the mixed functions clause of the award is extensively used and that it is usual, for instance, for a shift labourer to spend 95 - 100% of his time in any week working in a higher paid classification. To now increase shift labourer's margins from $115.90 to $135.80 would notionally be an increase of $19.90 per week, but because of the fact that the mixed functions clause has been extensively used, the practical effect would as likely as not cause little or no cost to the Company. It was then further argued that justification for the award variation sought could be found in the fact (which was demonstrated) that employee numbers have already, and are continuing to be, reduced through attrition, but that production levels are being maintained. Mr Oldfield said in this regard at page 59 of transcript, inter alia:-
Mr Oldfield and I debated the relevance of such an argument in a case such as this. He expressed the view that the value of the maintenance of productivity with fewer men was, in this instance, synonymous with "work value". The third aspect of the case for increased margins for specified classifications was to illustrate actual work value changes. This was introduced by Mr Oldfield, saying at page 65:-
There then followed the introduction of evidence by first of all Exhibits 015, 016 and 017, which extensively detailed the extra duties and higher skills being exercised by trades assistants generally in the various areas around the Risdon plant. Secondly, expert witnesses were called to testify as to the genuineness of those actual changes which have occurred and the resultant increased work value which has occurred since 1978. Mr Kevin Tew, a mechanical tradesman who has been employed by the EZ Co since 1966, was called as a witness, followed by Mr Glen Jordon, an electrical tradesman who has been employed by the Company since 1979. Both witnesses gave evidence which supported the argument that duties had changed to a significant extent in recent years and considerably more responsible and skilled duties were imposed upon trades assistants. Decision All of the proposed variations specified in Exhibit 011 were a matter of consent following a number of negotiations held between the EZ Company and the relevant unions, whose members are to be affected. However, I am not prepared to ratify the whole of the proposals. I do agree that the "gains" detailed are to a significant extent superficial because of the extraordinary extent to which the Company has used the "mixed functions" clause of the award. Arguably the Company misused the mixed functions provision in the past. It is, to say the least, quite out of step with good personnel practice to have employees consistently spending in the order of 95% or even 100% of their time acting up in a position over and above that designated to them as their "correct" classification. Nevertheless the Company must be now commended for recognising the need to make a fresh approach and to redress the situation of past practices. However I cannot agree to simply re-arrange wage rates to correct what is essentially a reclassification problem. A further significant related factor which was used as an argument supporting the claim is that responsible trade unions have acknowledged the fact that some $80 million is to be spent on plant upgrading and the labour force is to be reduced through attrition and those who are left are to become more efficient and ensure that the Company remains competitive on world markets. The quid pro quo is that those changed work practices, resulting in the exercise of higher skills, be properly recognised and adequately and fairly rewarded. I find no criticism with the motives of the parties, but the Commission must continue to have presented to it evidentiary material going to significant changes in net work value for each and every classification for which increased margins are sought where Principle 4 (Work Value Changes) is relied upon. Evidence produced on work value grounds was limited to selected classifications only and I am satisfied on that criteria to grant the claim so far as tradesman's assistant and/or tradesman's helpers (specified in 011) are concerned. The other general grounds relied upon to support the granting of the claim to all of the other classifications are not persuasive. One of such "grounds" was minimal cost. Whilst minimal, or no cost is given prominence in the Principles it is a fall back or limiting consideration if one or other of the Principles is first met. The preamble to the Wage Fixing Principles stipulates quite clearly that such Principles have been formulated on the basis that the great bulk of salary and wages movements will emanate from national adjustments, ie CPI movements and national productivity. Whilst they go on to say that increases outside national wage must constitute a very small addition to overall costs, that cannot and should not be interpreted as meaning small increases are justifiable outside of Principles 1 to 11 inclusive. Every increase must be capable of fitting squarely and comfortably within one or other of the Principles before the "small addition to overall labour costs" criteria is to be applied. Apart from evidence of work value for some but not all classifications the argument before me has sought, erroneously, to apply the converse of what I have said. I also reject that part of the argument which relied upon increased worth of employees who maintained productivity with fewer people. Unfortunately perhaps, the notion that if we work twice as hard we are entitled to twice the pay does not apply unless a piece work or tally system is in operation. Whilst Mr Oldfield for the Company tried to turn this subsequently to working smarter rather than harder, it all came under one of this three points of argument. The only mention of productivity under the Principles is Principle 2 - which is confined to National Productivity. Of all the classifications contained in 011, and for which increased margins are claimed, evidence was only presented which went directly to tradesmen's assistants in the various departments. That evidence withstood the rigorous tests applied to it and could not be shaken and I accept it and grant the increases sought so far as tradesmen's assistants are concerned. The evidence proved beyond doubt that the changes:-
I perceive no likelihood of a flow-on consequence because the ratio wage rates for tradesmen's assistant bear to that of tradesman will be brought up to that generally pertaining already and not establish a new standard. Additionally, whilst the Plumbers Union and the FEDFA have reserved their position, other key unions have acknowledged that the deliberate disturbance of relativities cannot create a ground for flow-on. The assessment of the value of the changes is based upon previous work requirements and the nature and extent of the change. Item 9 Deletion of Certain Obsolete Classifications The award contains a long list of redundant classifications set out below and contained in Exhibit 019, ie:- "OBSOLETE CLASSIFICATIONS Section 1
Decision The parties agree to the list and there is no good reason why the award should not be improved by the deleting of such unused classifications. Accordingly this claim is granted. Item 10 Insertion into the award provisions relating to Sick Leave. Currently there are no provisions in this award relating to the granting of Sick Leave. This is because an alternative contributory scheme has existed at Risdon for many years. Sick Leave is governed by an organisation known as the Electrolytic Zinc Employees' Insurance Society which administers a fund jointly managed by elected trustees from the workforce and the Company. The current scheme not only covers sick leave, but also funeral benefits, death benefits and certain other special payments. Following rather lengthy negotiations which involved the ACTU, agreement in principle was reached as to certain recommended variations to the fund itself, but also for the inclusion in this award of provisions for sick leave, but simply to cover a contingency situation. Mr Oldfield explained as follows at page 46 of transcript:- The concern expressed by the union movement was that if the fund, for whatever reason, was to cease operation tomorrow there are no provisions in the award for sick leave. So what in fact we are looking at creating here is a safety net that should the fund collapse, or wind up, or go out of business for whatever reason, then employees could immediately enjoy the State standard. This is the exact same provision that is contained in the Mining (Lead-Zinc) Award and is, I believe, basically the State standard. You will notice that it starts off by saying, `Sick leave for employees who do not subsidize a sick or accident payment." Decision The provision sought is a contingency provision only. If it is ever required to be used it is no more than what might be regarded as standard in private sector awards. To grant the claim would not offend the Principles or be contrary to the public interest. For these reasons the claim is granted in the terms expressed in Exhibit 010. "APPLICATION TO VARY THE ELECTROLYTIC ZINC AWARD - PART II SECTION BY THE INCLUSION OF THE FOLLOWING PROVISION - 24 Sick Leave For employers who do not subsidise a sick or accident fund for the benefit of their employees, the following provisions shall apply - (a) An employee, other than one engaged as a casual, who is absent from work on account of personal illness or on account of injury by accident shall be entitled to leave of absence without deduction of pay, subject to the following conditions and limitations - (i) he shall not be entitled to such leave of absence for any period in respect of which he is entitled to workers' compensation; (ii) he shall, within 48 hours of commencement of such absence inform the employer of his inability to attend for work, and as far as may be practicable, state the nature of the illness or injury and the estimated duration of the absence; (iii) he shall prove to the satisfaction of the employer (or in the event of a dispute, the Secretary for Labour), that he was unable on account of such illness or injury to attend for work on the day or days for which the sick leave is claimed; (iv) he shall not be entitled in any year (whether in the employment of one employer or of more) to sick leave credit in excess of 2 weeks of ordinary working time. (v) For the purpose of administering paragraph (iv) of this sub-clause an employer may within one month of this award coming into operation or within 2 weeks of the employee entering his employment require an employee to make a sworn declaration or other written statement as to what paid leave of absence he has had from any employer during the then current year, and upon such statement the employer shall be entitled to reply and act." Operative Dates Again there is agreement by the parties as to two operative dates.
Orders The parties are requested to prepare draft orders to the Commission incorporating the variations outlined.
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