T5471
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Health Services Union of Australia WELFARE AND VOLUNTARY AGENCIES AWARD
Wage rates - State Wage Case December 1994 - Second $8 Arbitrated Safety Net Adjustment - Summit Industries - application granted - award varied - operative ffpp 22 May 1995 REASONS FOR DECISION Application was made by the Health Services Union of Australia, Tasmania No. 1 Branch (the HSUA) to vary the Welfare and Voluntary Agencies Award by the granting of the second $8.00 per week safety net adjustment at an enterprise - i.e. in respect of all award employees of Summit Industries. The application relied upon the presentation of submissions and the production of exhibits intended to demonstrate that all of the conditions contained in the relevant Wage Fixing Principle had been met. More particularly the HSUA relied upon Principle 7 which forms part of the Decision of the State Wage Case Full Bench dated1 20 December 1994. That principle provides as follows: 7. ARBITRATED SAFETY NET ADJUSTMENTS In accordance with the State Wage Case decision reviewing the Wage Fixing Principles (T5215 of 1994) dated 20 December 1994, awards of the Commission both minimum and paid rates may be varied to include three arbitrated safety net adjustments of $8.00 per week each in accordance with the following: 7.1 First arbitrated safety net adjustment 7.2 Second arbitrated safety net adjustment 7.2.1 Enterprise level: On application a second $8 per week arbitrated safety net adjustment will be available at enterprise level from no earlier than 20 December 1994 subject to the following tests: 7.2.1.1 that the award covering the enterprise has been varied to include the first $8 per week arbitrated safety net adjustment referred to in 7.1 above; 7.2.1.2 that the employees concerned have not received the benefit of an arbitrated safety net adjustment during the preceding 6 months; 7.2.1.3 that the union applicant has genuinely sought to reach an agreement with the employer but failed; 7.2.1.4 that there is no likelihood that, within a reasonable period, further conciliation or negotiation will result in an agreement covering the employees concerned; and 7.2.1.5 that the amount of the arbitrated safety net adjustment is to be reduced to the extent of any wage increase resulting from agreements reached at an enterprise level since 1 November 1991 insofar as that increase has not previously been used to offset an arbitrated safety net adjustment. Dealing with each of the elements of Principle 7 I find that: 7.2.1 The present application is consistent with that part of the Principles. 7.2.1.1 This award was varied by the granting of the first safety net adjustment in matter T.4805 of 1994, effective from the first pay period to commence on or after 18 January 1994. 7.2.1.2 No arbitrated safety net adjustment has been received by the employees of Summit Industries during the past 6 months. 7.2.1.3 Whilst the parties expressed different views as to whether the union applicant had genuinely sought to reach an agreement, I am satisfied on the evidence before me that the actions taken by the HSUA went well beyond simply serving a claim on Summit Industries and treating the employer's non acceptance as being sufficient to fulfil the Principle's requirement in this regard. A claim was made by the HSUA on Summit Industries for a wage increase on 18 October 1994 and discussions and negotiations continued for a period of five months. Part of the bargaining process was the formation of a Consultative Committee at the workplace. Accordingly I am satisfied that the union applicant has genuinely sought to reach an agreement with the employer but failed. 7.2.1.4 Notwithstanding the Commission's attempts to find a proper basis for agreement to be reached through further conciliation or negotiation, I have concluded that there is no likelihood of agreement being reached within a reasonable period. 7.2.1.5 There is an acceptance by the parties that this part of the Principles must apply. DECISION It is my decision to grant the HSUA application and to vary the Welfare and Voluntary Agencies Award to provide that the Second $8.00 per week safety net adjustment will apply to the enterprise known as Summit Industries and its employees. My reasons for decision are: 1. Compliance with the requirements of the Commission's Wage Fixing Principles. The only non agreed provisions were 7.2.1.3 and 7.2.1.4 of the Principles which go to the questions of the union genuinely seeking to reach an agreement and whether or not there was a likelihood, within a reasonable period that further conciliation or negotiation would result in an agreement. The negotiations held over quite a long period failed to produce a mutually acceptable outcome and the employer officially declared that enterprise bargaining negotiations with the HSUA were being put on hold as from 30 March 1995. Despite optimistic predictions being made by the employer's representative in relation to the likelihood of agreement being reached in the near future with the Commission's participation there was, in my view, an insufficient show of cordiality and goodwill between the adversaries during the hearing to support this hypothesis. Advocates, regardless of whom they represent, should realise that body language as well as other more obvious indicators can contribute to the outcome of objective decision making which involves reliance upon the capacity of other parties to successfully cope with the challenging demands of enterprise bargaining. In addition the response the Commission received from both parties in relation to its attempts to establish proper ground rules for resolving the issues with its active participation was considered less than encouraging. 2. I am satisfied the granting of the second $8.00 safety net adjustment would be consistent with public interest. In coming to this conclusion I have had regard for all of the evidence before me in this regard relating to Summit Industries' improved viability compared with its performance over the previous 4 years. Operative Date This variation shall be operative from the first full pay period to commence on or after 22 May 1995. Order
A ROBINSON Appearances: Date and Place of Hearing: |