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T3456

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.23 application for award or variation of award

Federated Liquor and Allied Industries Employees' Union of Australia -
Tasmanian Branch

(T.3456 of 1991)

HOTELS, RESORTS, HOSPITALITY AND MOTELS AWARD

 

DEPUTY PRESIDENT A ROBINSON

HOBART, 10 October 1991

Division A - Second and Third Minimum Rates Adjustment
Division B - Structural Efficiency second instalment and first Minimum Rates Adjustment

REASONS FOR DECISION

This application seeks to vary the Hotels, Resorts, Hospitality and Motels Award. In Division A - Hotels, Taverns and Wine Saloons - the application is to apply the second and third minimum rates adjustment (M.R.A.) by consent. However the operative dates to apply are not agreed and require arbitration.

A claim for 2.5% wage increase was, by agreement, adjourned sine die.

Mr Sherry for the Federated Liquor and Allied Industries Employees' Union of Australia - Tasmanian Branch (FLAIEU) claimed that there are exceptional circumstances which warrant retrospectivity and that:

    (a) the second M.R.A. should apply from 23 February 1991

    (b) the third M.R.A. should apply from 23 August 1991

He said this was justified on the basis of:

    - A nexus with the Federal counterpart award.

    - All Federal and State award bound employers are aware of the increased rates applying in the industry generally because circulars were sent out to them.

    - An unfair competitive advantage would be gained by a small minority of State award employers if later dates were to be set.

    - The claimed rates were being paid already in most instances.

    - Liquor prices had already been increased because of the wage increases.

    - The present application generally favours State award employers because wage rates are being brought back in line with Federal rates.

    - The first M.R.A. applied over 12 months ago when an agreement was reached.

    - Delays have occurred consequent upon the late State Wage Case decision.

    - The Principles support the application of M.R.A.'s at 6 monthly intervals.

    - The impact upon employers will not be great. Because State rates of pay were being brought back in line with Federal rates classifications such a "Usefull", "Waiter", "Bar Attendant" and "Cashiers" will receive no increase via the second M.R.A.

    - Where over award payments exist they may be absorbed when applying M.R.A. increases.

    - Whilst the economy is generally down the hospitality industry held up well during the past year.

    - The Principles do not forbid retrospectivity.

In his argument opposing retrospectivity Mr Clues for the Tasmanian Confederation of Industries (TCI) made a number of points including, inter alia:

    - To grant the claim retrospectively would cause hardship to employers.

    - There would be difficulty in enforcing such an adjustment.

    - The claim in its present form is not consistent with 1989 and 1991 Wage Fixation Principles.

    - The phasing in of M.R.A.'s should be by consent.

    - There is no precedence for the granting of retrospective M.R.A.'s.

    - There is no evidence that employers are paying the increased rates of pay. Employers under this award would be paying State rates.

    - There is no evidence of alleged prices increase co-incident with increases granted under Federal awards.

    - Any delay in processing the award is not employers' fault.

    - Delays have occurred as a result of unions following the ACTU's attempt to follow a course different to the April 1991 National Wage Case decision.

    - The present applications were lodged late.

    - There would be an adverse administrative cost associated with calculating and applying retrospective adjustments.

    - Section 36 of the Act relied upon.

The alternative suggestion of TCI is that the second M.R.A. should apply from the date of my decision, with the third six months later.

Decision

The Act provides in Section 37(5) that:

"(5) The Commission may, in an award, given retrospective effect to the whole or any part of the award -

(a) if and to the extent that the parties to the award so agree; or

(b) if, in the opinion of the Commission, there are special circumstances that make it fair and right to do so."

And the current Wage Fixation Principles provide as follows in relation to M.R.A.'s, inter alia:

"3.2 Minimum rates adjustment

Minimum rates adjustments for minimum rates awards in accordance with the October 1989 State Wage decision shall continue to be allowable under this decision and shall be in accordance with the following:

(a) the appropriate adjustments in any award will be applied in no less than four instalments which will become payable at six monthly intervals provided in appropriate cases longer or shorter phasing-in arrangements may be approved or awarded and/or parties may agree that part of a supplementary payment should be based on service;

(b) the second and subsequent instalments of these adjustments will not be automatic and an application to vary the relevant award will be necessary;"

It will be seen that the essential elements of the October 1989 State Wage Case decision continue but that, in appropriate cases, longer or shorter phasing-in arrangements may be approved or awarded.

In this instance I am not satisfied that there are special circumstances to award retrospectivity.

The applications have been heard promptly and processed without delay.

I do not intend retracing the already well reported series of events which followed the handing down of the April 1991 National Wage Case decision or the subsequent delays in unions applying for a State Wage Case hearing or the adjournments which were consented to by both parties in that case, but I do suggest all of those delays were calculated ones, and not of the Commissions making.

Whilst this award is a mirror of the Federal counterpart award, it has never been accepted that such a strong nexus has been the basis of flowing wage increases necessarily from the same operative date.

Turning now to what the operative dates should be I decide that both the second and third M.R.A.'s will apply in combination from a single date and that date will be from the first full pay period to commence on or after Tuesday 8 October 1991.

I have decided on such date because:

  • It co-incides with the date completed orders were received by the Commission and the date to apply to all other award variations by agreement.
  • The first M.R.A. applied from August, 1990.
  • The Principles now permit variations of the requirement for six monthly intervals in appropriate cases, and the present circumstances are appropriate in my view.

In Division B - Motels the parties were agreed upon a package of matters to support the granting of the second structural efficiency increase and the first M.R.A.

The package of matters went to:

    1. Achieved structural efficiency matters

    2. Incorporation of a new career structure

    3. Certain other sundry variations including:

(a) Payment of Wages
(b) Enterprise bargaining
(c) Work to direction provisions
(d) Meal breaks after 6 hours in lieu of 5 hours
(e) Time off in lieu of overtime
(f) Flexible working arrangements

Details of these changes were placed on transcript and, in combination satisfy the requirements of public interest and the Structural Efficiency Principle.

For these reasons all consent matters were endorsed and the award will be varied accordingly.

Date of Operation

These variations should have effect from the first full pay period to commence on or after 8 October 1991.

Orders will follow.

 

A Robinson
DEPUTY PRESIDENT

Appearances:
Mr N J Sherry with Mr G Burgess for the Federated Liquor and Allied Industries Employees' Union of Australia - Tasmanian Branch
Mr S Clues for the Tasmanian Confederation of Industries

Date and place of hearing:
1991
Hobart
October 1