TASMANIAN INDUSTRIAL COMMISSION

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

Construction, Forestry, Mining and Energy Union,
Tasmanian Branch
(T.5343 of 1995)

FURNISHING TRADES AWARD

Wage rates - third and final minimum rates adjustment

REASONS FOR DECISION

This matter concerns an application by the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (CFMEU) to vary the Furnishing Trades Award by applying the third minimum rates adjustment to nominated classifications contained in Clause 8 of the award.

At a hearing held on 10 April 1995 leave was granted for the application to be varied by consent to include additional classifications in the third minimum rates adjustment process.

Those parties present at the hearing initially sought and were granted a brief adjournment to hold off-record discussions in relation to details of the proposed draft order prepared by the applicant.

Upon resumption of the hearing the parties indicated that they had reached agreement in principle in relation to the manner in which the third and final minimum rates adjustment would be applied to existing wage rates, but that a revised draft would need to be prepared to give effect to correct formatting and the revised calculation of some figures.

The Commission indicated on transcript that provided other organisations with an interest in the award were consulted as to the content of the revised draft order, this process was acceptable.

Whilst there was consent to the granting of the third minimum rates adjustment to classifications contained in each section the question of the award's date of effect was not agreed and was made subject to arbitration.

Mr Gill for the CFMEU argued that the variations concerned should properly apply from the first full pay period to commence on or after 16 February 1995, but Mr Gates for the Tasmanian Chamber of Commerce and Industry Limited (TCCI) opposed this date and put forward a number of arguments in support of an operative date of the date of my decision.

I have reviewed all of the elements of each argument advanced by the respective parties and taken them into account in deciding this contested issue.

It is my decision that there are special circumstances that make it fair and right to give retrospective effect to this particular award variation and accordingly it shall apply as from the beginning of the first full pay period to commence on or after 16 February 1995.

My reasons for deciding this way comprehend:

1.  The general jurisdiction of the Commission to hear and determine any matter arising from, or relating to, an industrial matter pursuant to Section 19(1) of the Act.

2.  The proper exercise of jurisdiction in accordance with the mandatory requirements of Section 20(1) of the Act.

3.  The mandatory public interest requirements of the Act contained in Section 36.

4.  The mandatory requirements of the Industrial Relations Act (1984), as amended, and particularly Section 37(4) and (5) of that Act which relate to the date of effect of an award.

5.  The Full Bench1 decision of 20 December 1994, and particularly as that decision relates to the Minimum Rates Adjustment principle.

In reaching my decision in relation to the question of appropriate operational date I have been persuaded that in the context of Section 37(4) and (5) of the Act there are special circumstances that make it fair and right to give retrospective effect to the variation sought in the application as amended. Ordinarily the provisions of an award have effect on the date on which the award is made or on such later date or dates as the Commission determines and as is or are respectively specified in the award [37 (4)].

However I have noted that in his Reasons for Decision2 issued by Commissioner Imlach on 3 January 1995 he said at page 1, inter alia:

"In essence the application reflected ... the furthering of the Minimum Rates Adjustment (MRA) process in the Award."

and later at pages 1 and 2:

"The key elements of the Union's case were: (inter alia)

.  ...

.  ...

.  The implementation of the second MRA in the Award."

and later at page 2:

"The Tasmanian Chamber of Commerce and Industry Limited confirmed its agreement to the Union's application."

and

"At the commencement of the hearing the parties were at odds as to the operative date and form of the MRA, but at the close of proceedings settlement had been reached as to the date of operation (the date of the hearing) and the details of the second MRA."

and finally:

"The award will be amended as requested to operate from the first full pay period to commence on or after 16 November 1994."

Commissioner Imlach's comments in relation to settlement having been reached in relation to the operative date and form of the MRA are supported by the transcript of 16 November 1994. The transcript also indicates that the position adopted by TCCI supported the second MRA applying from the first full pay period to commence on or after 16 November 1994 with the second and third minimum rates adjustment being three (3) months apart. In this regard the transcript shows that at page 26 that Mr Edwards for TCCI said, inter alia:

" I take the commission, as Mr Lowe did, to the wage fixing principles of the commission and indicate that the prima facie position is that there be four minimum rate adjustments at 6 monthly intervals, and I acknowledge the point made by Mr Lowe that longer or shorter phasing-in arrangements may be approved or awarded. However, the prima (sic) position nevertheless is still four instalments at 6 monthly intervals. We have put before the commission in our original agreement three instalments at 6-monthly intervals which in itself in our view was a generous way of dealing with the original claim. We have now altered that position to say that it's three instalments with the second and third being only 3 months apart so we are a long way in advance of the prima facie position established by the minimum rates adjustment principle of the commission and we'd suggest that it should only be in extraordinary circumstances where the commission should intervene arbitrarily to alter what was effectively an agreed position between the parties.

I accept that in the present matter TCCI does not now agree that the third MRA should apply 3 months from the second, notwithstanding what was said on 16 November 1994. Accordingly 37(5)(a) of the Act does not apply. However I am of the view that the expectancy created by things done and said earlier constitute special circumstances that make it fair and right to award retrospectivity to the extent now decided by me.

Mr Gates submitted that Mr Edwards' comments on transcript should be read down as a result of his further comments found at page 28 of the same transcript and which are contained in the following exchange:

"COMMISSIONER IMLACH: Thanks, Mr Lowe. So the second MRA - first full pay period on or after the 16th November and the third 3 months thereafter. And as I understand it, we now have complete agreement on the application before us - is that true, Mr Lowe?

MR LOWE: That's correct.

COMMISSIONER IMLACH: Mrs Dowd?

MRS DOWD: That's true, Mr Commissioner.

COMMISSIONER IMLACH: Mr Edwards?

MR EDWARDS: It is, commissioner. I think I should perhaps just make the observations - it's probably trite but I'll do it anyway - and that is, that the third MRA of course under the Principles must be by application.

COMMISSIONER IMLACH: Yes, I thank you for that, Mr Edwards, I concur with that entirely.

MR EDWARDS: Thank you, sir.

MR LOWE: Application will be made to the commission this afternoon.

COMMISSIONER IMLACH: No, it has to be made when its due. Right? I know it's a technicality, but within a few days or a couple of weeks when its due, put the application in and as far as I'm concerned it will be granted. But that remains to be seen doesn't it, Mr Edwards?

MR EDWARDS: Of course it does commissioner.

COMMISSIONER IMLACH: Yes, all right. Now we're all clear, settled? Right, I indicate now that the application will be granted as agreed, the second MRA to operate from the first full pay period on or after today's date and the third MRA on application 3 months later."

The exchange as a whole is informative and as already indicated I accept that the present matter relating to operative date of the third MRA was not agreed regardless of what was said before. But the earlier condition requiring a further formal application to achieve the final increment of a process earlier put in train, in my view, simply re-states a requirement of the MRA Principle and in any case was fulfilled by the CFMEU when they made application on 12 January 1995.

The Commission provided TCCI and other appropriate organisations with a copy of the CFMEU application for the third MRA on 12 January 1995. Therefore I am not persuaded on public interest grounds that employers would be caused undue hardship in meeting unexpected retrospective payments given the prevailing circumstances taken as a whole.

The parties are requested to prepare a draft Order.

A ROBINSON
DEPUTY PRESIDENT

Appearances:
Mr J Gill with Ms W McMullan for the Construction, Forestry, Mining and Energy Union, Tasmanian Branch
Mr S J Gates for the Tasmanian Chamber of Commerce and Industry Limited

Date and Place of Hearing:
1995
April 10
Hobart

1 T No 5214 of 1994
2 T No 5228 of 1994