T1154
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
On 15 February 1988 the Clothing and Allied Trades Union of Australia lodged a claim to increase rates of pay contained in the Clothing Makers Award by 4% in accordance with the "second tier" principle of the Wage Fixation Principles. At that time this matter, together with a number of separate matters also relating to the Clothing Makers Award, were being dealt with by Commissioner King. When the file was transferred to me late in 1989 the claim had changed from a 4% wage increase to a claim for an extra $9.00 per week flat increase plus an additional $10.00 per week for all classifications as a supplementary payment. Whilst both parties had settled upon a list of changed conditions of employment designed to offset as much as possible the cost of a second tier wage increase, two items were not agreed and therefore had to be put to arbitration. Those two items related to "Overtime" and "Saturday, Sunday and Holiday Work" provisions of the award. The employer party was prepared to give qualified support to a 4% wage increase, but opposed the revised union proposition involving a flat wage increase together with a supplementary payment. In summary the agreed award variations going to the question of cost offsets sufficient to warrant a "second tier" wage increase contained in Exhibit S1 fall under the following headings and clause numbers: Clause 9 - Annual Leave The two cost offset items not agreed concern an employer proposal to add a new subclause to Clause 20 - Overtime and Clause 28 Saturday, Sunday and Holiday Work. The proposed new subclauses are identically worded in each case, and expressed as follows: "Where requested by an employee and agreed to by an employer, time off in lieu of payment for overtime may be taken. Time off shall be calculated by multiplying the hours worked by the appropriate overtime rate. Alternatively, time off equivalent to the period of overtime worked may be taken, in which case the employee shall be paid the appropriate penalties for such overtime work, less the single time component for time taken in lieu of payment." Mr Smith submitted that this particular proposal is not particularly onerous, given that it relies upon being initiated by an employee and that there would then have to be agreement by both parties concerned. He said also that it is consistent with employees opting for more leisure time such as by having a 19-day month. From the employer perspective it is a genuine cost offset and one that will be of value over time. Whilst no evidence was produced to the Commission it was asserted by Mr Smith that the provision is not new and applies in a number of other awards of the Commission. Mr O'Brien opposed such a provision on a number of grounds. He said that firstly, in the context of a second tier cost offset, the proposal is of no real value. Concern was expressed at the likelihood of employers subjecting employees to duress to take time off in lieu of payment; employers introducing shift work by stealth; and eroding legitimate award entitlements. In my view no case has been made out for the inclusion of such a provision at this time. As in any other claim, the onus is upon the party seeking a new provision, and that onus has not been satisfactorily discharged in this instance. No evidence was produced to demonstrate how or where cost savings would result in the context of the "second tier" principle; nor was any attempt made to produce evidence of properly arbitrated decisions supporting the employer's case. It is simply not sufficient to assert that other awards already contain a similar provision. Even if such provisions do exist elsewhere already, it is not for the Commission to carry out the advocates research. And even so the mere existence of such a matter in another award is not of itself persuasive material unless it can be shown that the decision was properly arbitrated, and in all other respects ought to be considered as relevant. For all of these reasons I am not prepared to include the proposed proviso at this time. However, leave is reserved for this item to be reconsidered at another time, particularly in the context of the Structural Efficiency Principle. The other unresolved issue goes to the argument as to whether current wage rates should be increased by an amount of 4% or by a combination of a flat $9.00 per week and a supplementary payment of either $10.00 or $10.50 per week. It must be said that whilst the employer view supported the 4% approach, its consent to such a wage increase was contingent upon my endorsement of the time-off in lieu of overtime and weekend penalty rates proposed which was advocated by Mr Smith. Mr O'Brien proposed that since the vast majority of the industry is covered by the Federal Clothing Makers Award that, as a matter of equity, I should vary the State counterpart award by accepting his organisations preferred position. He asserted that Deputy President Riordan of the Australian Industrial Relations Commission arbitrated on a restructuring and efficiency increase of $6.00 per week in December 1987. It was further asserted that this decision was appealed and the appeal was heard in July 1988. Mr O'Brien added further at pages 33 and 34 of transcript: "The appeal, as I understand it, was substantially dismissed but, indeed, the parties following that appeal, agreed that there would be an additional amount under that principle of $3.00, effective 5 February 1988, and subsequently agreement was reached on the introduction of a supplementary payment of $10.00. Although, I think that Deputy President Riordan had some role, certainly had a considerable role, in the establishment of that vote and surveys were conducted, as I understand it, by the Federal Commission as part of those proceedings and they were national surveys." And later: "The award was varied; I believe effective 1 July 1988, to provide for a supplementary payment for all adult classifications of $10 and in fact I believe that that $10 amount. has been affected by the 3% increase in September, so I think it's now $10.50." And Mr O'Brien submitted that his proposal was consistent with the Supplementary Payments Principle then operable. In particular emphasis was given to that part of this principle which, inter alia, provides that: "The prime consideration will be the level of actual payments to the employees covered by the award under review. Where relevant the level of supplementary payments made to similar classifications of employees in other minimum rates awards may also 'be taken into account." He again stressed that the vast majority of employees in Tasmania are covered by a Federal award and are therefore already receiving supplementary payments. Mr Smith argued that the strict requirements of the Principles had not been met and that the union's claim if granted would have the effect of piercing the 4% ceiling because of the low incidence of overaward payments in the industry in Tasmania. However no survey of rates paid had been conducted so far as employees covered by State awards are concerned. A number of prepared exhibits were produced by Mr Smith to illustrate the effect that the union proposal would have upon Tasmanian employers. In deciding this matter I am duty bound to have proper regard for the requirements of the Wage Fixation Principles applying at the relevant time. And in this regard the matter was heard before the last State Wage Case decision was handed down1. I am also statutorily bound by public interest provisions contained in Section 36 of the Act. However, before I turn in any detail to those matters I need to be satisfied that a case has been made out upon merit, and according to the evidence. The only "evidence" relied upon is hearsay assertions of a Federal decision, the assertion of an appeal and the assertion of the making of an award containing new wage rates containing two flat amounts of money. This Commission was provided with no exhibits by the union to enable it to study the decisions relied upon or to confirm the existence of precise figures claimed. Certainly Mr O'Brien quoted excerpts of documents in his possession going to comments attributed to the Appeal Bench in the Federal matter, but that falls a long way short of what an experienced advocate need to present to a tribunal to justify the upholding of a claim such as the present one. To this extent the Clothing and Allied Trades Union of Australia therefore overly relied upon unsupported rhetoric. Whilst the notion of equity is one which the Commission ordinarily recognises and supports, such a consideration can only be relied upon in circumstances where other essential ingredients have been properly established. As I said earlier in relation to the approach adopted by Mr Smith, the Commission cannot be reasonably expected to do research which is the responsibility of advocates. For all of these reasons I decide not to grant the revised union claim in respect of a flat wage increase and a supplementary payment at this time. However all rights are reserved to again present such a claim, particularly in the context of the Structural Efficiency Principle. Since the alternative claim for 4% is a matter of consent, save for the two matters (essentially the same) which have been arbitrated; has been largely achieved at minimal cost; and public interest would not, in my view, be offended, a 4% wage increase is granted. OPERATIVE DATE Consistent with the consent of the parties this award variation shall have effect as from the first pay period to commence on or after 30 November 1989. Order will follow.
A. Robinson 1 Decision 30 October 1989; | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||