IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

Applications T. No. 332 and T. No. 337 of 1986 were made by the Tasmanian Chamber of Industries and the Amalgamated Society of Carpenters and Joiners (Tasmanian Branch) respectively, for the purpose of varying the Building Trades Award by increasing certain wage rates and allowances by 3.8% to reflect the last National Wage Case decision.

Application was made by the Federated Ironworkers Association (Tasmanian Branch) to intervene in this matter.

The main ground for their intervention was that the organisation had a member covered by Section III of the award.

After hearing objections I denied the request as neither application sought to vary Section III of this award and, therefore, prima facie, the Federated Ironworkers Association had no interest in applications T. No. 332 and T. 337 of 1986.

Mr. Edwards, representing the Tasmanian Chamber of Industries, tendered an exhibit (El) which reflected the agreement reached by the parties to amend

1. Part I - Wage Rates -

(a) Section I - Hourly Hire Employees

(b) Section II - Plumbers

2. Part II - Conditions -

(a) Section I - Special Rates, and Multi-Storey Allowance

(b) Section II - Special Rates.

Mr. Edwards spelt out in some detail the method used to calculate the new rates for hourly hire employees in Part I, Section I and Part I, Section II of this award.

This course of action was necessary because the Building Trades Award does not contain a formula for the computation of these rates.

In short, the formula adopted by the parties for the purpose of calculating hourly rates is the same as that appearing in the National Building Trades Construction Award and the Plumbing Trades (Southern States) Construction Agreement.

In passing, I wish to say that I expect this discrepancy to be addressed by the parties during the current review of the award.

Mr. Edwards also informed the Commission that the rates tendered in his exhibit for plumbers were the same as those prescribed in the Plumbing Trades (Southern States) Construction Agreement.

The other major submissions of the parties can be summarized as follows

1. the Australian Conciliation and Arbitration Commission has varied the National Building Trades Construction Award and the Plumbing Trades (Southern States) Construction Agreement to include the 3.8% National Wage Case Decision;

2. this award has a direct nexus with both the National Award and Agreement;

3. the Tasmanian Chamber of Industries requested the Full Bench of the Tasmanian Industrial Commission during the hearing of applications T. No. 265 and T. No. 266 of 1985, to exclude Sections I, II and III of the Building Trades Award from any decision, thus enabling a separate application to be considered at a later date.

This request was granted.

4. the Tasmanian Industrial Commission granted to State awards a 3.8%% increase to take into account movements in the Consumer Price Index for the March 1985 and June 1985 quarters, operative from 4 November 1985;

5. to the best of Mr. Edwards' knowledge, employers covered by this award were already paying the new rates;

6. there has been substantial compliance to the Principles by the parties to Sections I and II of this award;

7. there would be no injury to the public interest by the granting of the claim.

Operative Date.

All the parties requested that the operative date for the variation to be from the first full pay period to commence on or after 4 November 1985 and the arguments for this retrospective operative date can be summed up by quoting Mr. Edwards at pages 16 and 17 of the transcript where he said:

"MR. EDWARDS In respect of the operative date, which is on the last page of the document, sir, I would submit that the operative date for the variations sought should be as from the first full pay period to commence on or after 4 November 1985.

In saying that, I'm well aware of the provision in the Act that says that retrospectivity should be avoided - in essence that's what it says anyway. It says it should be prospective unless special or compelling circumstances exist.

It is my submission that there are special circumstances on this occasion, and that is that the variation of the award by 3.8% has been held up, not by employee representatives failing to submit a claim in time, but by employers (in this case myself) seeking to withdraw them from the National Wage Case hearing and subsequently attempting to rationalize the award - which subsequently has proved to be impossible within the time span I envisaged.

And they are, in my view, special and compelling reasons for the granting of a retrospective operative date. And I put forward 4 November as an appropriate date of variation, which I may further indicate, is in line with the operative date granted by the Federal Conciliation and Arbitration Commission in respect of the parent awards for these sections - and they are the National Building Trades Construction Award and the Plumbing Trades (Southern States) Construction Agreement, both of which have been varied by the Federal Commission, both of which were operative from the beginning of the first pay period to commence on or after 4 November.

So, an additional reason we put forward for the granting of our claim this morning, is the existing nexus or mirror agreement that exists between the parties in respect of these sections of the award and their Federal award counterparts."

Having considered the submissions of the parties I am satisfied that the award should be varied in the manner sought (see Exhibit E1).

I have arrived at this conclusion for the following reasons:

1. it is no secret that this award has an extremely close nexus with the Federal awards;

2. the National Building Trades Construction Award and the Plumbing Trades (Southern States) Construction Agreement have been varied by the Australian Conciliation and Arbitration Commission to include the 3.8% National Wage Case Decision;

3. a Full Bench of the Tasmanian Industrial Commission in its decision arising out of applications T. No. 265 and T. No. 266 of 1985 increased wage rates, salaries and allowances contained in State awards by 3.8%, being movements in the Consumer Price Index for the March 1985 and June 1985 quarters, with an operative date from the beginning of the first full pay period to commence on or after 4 November 1985;

4. the claim is in accordance with the Wage Fixation Principles and does not violate provisions of the Industrial Relations Act, 1984;

5. the unions who have members affected by this decision have given a "no extra claims commitment" in accordance with the Full Bench decision (T. No. 265 and T. No. 266 of 1985).

Operative Date.

I intend granting the operative date sought by the parties. It must be remembered that Sections I and II of Part I of this award were excluded from the National Wage Case taken in this State as the parties wished to rationalize the award. It was decided by the Full Bench that it would be more appropriate to deal with this matter at a separate hearing.

The parties have made every attempt to finalize the reformatting and rationalization of this award but they have found it to be a bigger exercise than first thought and it was put to me that the task "has proved to be impossible within the time span".

I do not believe that the parties should be penalized for taking the time to complete this important task.

I am of the view that these are special and compelling circumstances which warrant the granting of a retrospective operative date as requested by the parties, therefore, this decision will be operative from the first full pay period to commence on or after 4 November 1985.

It is also my decision, consistent with other decisions of the Commission, that the award be varied to contain the following provision -

"Provided that, it is a term of this award that the unions undertake that they will not pursue any extra claims, award or overaward, except where consistent with the Principles of Wage Fixation of the Tasmanian Industrial Commission."

The Orders reflecting this decision are attached. Order Part I and Order Part II

R. J. WATLING
COMMISSIONER