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T2146 T2147 T2152 T2167 - 9 November 1989

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

See end of Decision for Awards Varied

T2146 of 1989

IN THE MATTER OF AN APPLICATION BY THE TASMANIAN TRADES AND LABOR COUNCIL TO VARY ALL PRIVATE AND PUBLIC SECTOR AWARDS AND AGREEMENTS TO INCREASE WAGE RATES AND ALLOWANCES GENERALLY AND TO REVIEW THE WAGE FIXATION PRINCIPLES

 

 

 

AND

 

 

T2147 OF 1989

IN THE MATTER OF AN APPLICATION BY THE BUILDING WORKERS' INDUSTRIAL UNION OF AUSTRALIA (TASMANIAN BRANCH) TO VARY THE BUILDING TRADES AWARD RE BASE RATE FOR TRADESPERSON IN DIVISION A AND TO INCREASE WORK RELATED ALLOWANCES

 

 

 

AND

 

 

T2152 OF 1989

IN THE MATTER OF AN APPLICATION BY THE TASMANIAN PUBLIC SERVICE ASSOCIATION TO VARY NOMINATED AWARDS AND AGREEMENTS RE SALARIES, ALLOWANCES AND AWARD RESTRUCTURING

 

 

 

AND

 

 

T2167 OF 1989

IN THE MATTER OF AN APPLICATION BY THE TASMANIAN TEACHERS FEDERATION TO VARY NOMINATED AWARDS TO INCREASE SALARIES AND SALARY-RELATED ALLOWANCES

 

 

 

CONSEQUENT ON THE DECISION OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION IN THE NATIONAL WAGE CASE DECISION OF 7 AUGUST 1989

 

 

SUPPLEMENTARY DECISION

 

 

FULL BENCH:
PRESIDENT: L A KOERBIN
DEPUTY PRESIDENT: A ROBINSON
COMMISSIONER: R K GOZZI

9 NOVEMBER 1989

 

 

APPEARANCES:

 

 

 

For the Tasmanian Trades and 
Labor Council and Unions
generally

- Mr J A Bacon
  in lieu of
  Mr P A Lennon

 

 

For the Tasmanian Public Service

- Mr G Vines with
  Mr P Mazengarb

 

 

For the Federated Miscellaneous Workers' Union,
Tasmanian Branch and for the Clothing and Allied Trades Union

- Mr K O'Brien

 

 

For the Federated Clerks' Union of Australia,
Tasmanian Branch

- Mr D J Fry

 

 

For the Building Workers' Industrial Union of Australia
(Tasmanian Branch)

- Mr M Clifford

 

 

For the Electrical Trades Union,
Tasmanian Branch

- Mr D Balfour

 

 

For the Printing & Kindred Industries Union,
Tasmanian Branch

- Mr S Walsh

 

 

For the Tasmanian Salaries Medical Practitioners' Society

- Dr G Senator

 

 

For the Federated Engine Drivers' and Firemen's Association of Australasia,
Tasmanian Branch

- Ms D Moncrieff

 

 

For the Hospital Employees' Federation of Australia, Tasmania Branch

- Mr R Warwick
  with
  Mr D Rees and
  Mr D Holden

 

 

For the Australian Railways Union, Tasmania Branch; and for the Ambulance Employees' Association of Tasmania

- Mr R Warwick

 

 

For the Vehicle Builders' Employees' Federation of Australia

- Mr D Holden

 

 

For the Plumbers and Gasfitters Employees' Union of Australia,
Tasmanian Branch

- Mr R Hevey

 

 

For the Tasmanian Confederation of Industries; Pharmacy Guild of Australia, Tasmanian Branch;
Meat and Allied Trades' Federation of Australia
(Tasmanian Branch);
Pasminco Metals - EZ Operations;
Pasminco Mining - Rosebery;
Tasmanian Hairdressers' Association;
Tasmanian Sawmillers Industrial
Association;
Metal Industries Association of Tasmania;
Hop Producers' Association of Tasmania;
Master Builders Association of Tasmania;
Retail Traders Association of Tasmania

- Mr T J Edwards
  in lieu of
  Mr T J Abey

 

 

For Pasminco Metals - EZ Operations and Pasminco Mining - Rosebery

- Mr M Nally

 

 

For the Minister administering the
Tasmanian State Service Act;
His Excellency the Governor;
the Speaker of the House of
Assembly;
the President of the Legislative Council;
the Chairman of the Southern Regional Cemetery Trust and the Commissioner of Police

- Mr C Willingham
  in lieu of
  Mr A Pearce

 

 

For the Minister for Employment,
Industrial Relations and Training

- Mr C Willingham
  with
  Mr I Finley and
  Mr J Hickman

 

 

For the Retail Traders
Association of Tasmania

- Mr D A C McDougall

 

 

For the University of Tasmania
and the Council of Advanced
Education

- Mr N Buchanan

 

 

For the TFGA Industrial Association

- Mr K Rice

 

 

For the Australian Road Transport
Industrial Association

- Mr J G Blackburn

 

 

For the Tasmanian Teachers Federation

- Mr C Lane

 

 

For the Secondary Colleges Staff
Association

- Ms P Moran

 

 

DATES AND PLACE OF HEARING:

 

 

 

2 November 1989
3 November 1989

Hobart
Hobart

 
   

On 30 October 1989, we handed down a decision in the matter of the State Wage Case following the lodgement of applications by the Tasmanian Trades and Labor Council (TTLC), the Tasmanian Public Service Association (TPSA) and others.

Taken together those applications sought determination of a number of issues.

Firstly, we were requested to adopt the revised Principles of Wage Fixation issued by the Australian Industrial Relations Commission, subject only to minor procedural changes.

Secondly, we were asked to endorse a consent arrangement entered into by the TTLC and the Tasmanian Confederation of Industries (TCI) for all (except two) private sector awards to be simultaneously varied by granting employees covered by those awards the first increase available under the Structural Efficiency Principle from 1 October 1989. As part of that package of proposals we were asked to endorse the right of employers covered by the Chemists Award1 to mount an incapacity to pay argument later.

The adjustment to be applied would translate to an increase of either $10.00, $12.50, $15.00, or 3% per week depending upon an employee's skill level.

We had also been asked to increase the minimum wage by $10.00 per week and certain work-related allowances by 3% from the same operative date.

It was said by both the TCI and the TTLC that their agreement in relation to the private sector was capable of being endorsed for a number of reasons, principal among which were:

  • That the TTLC was committed to positively examining a wide range of possible agenda items for possible inclusion in a fundamental review of individual awards consistent with the requirements of the Structural Efficiency Principle.

  • The agreement of the parties included a significant cost saving item to employers in the deferral of a further increase which is available only to lower paid workers under the Minimum Rates Adjustment Principle from 1 January 1990, to 1 July 1990, except in limited qualified circumstances.

  • The second increase under the Structural Efficiency Principle, ie an amount of money (or percentage) the same as the first increase, will definitely not be available except on an award-by-award basis following the completion of a satisfactory structural efficiency exercise, after a minimum of six months has elapsed from the date of the first increase.

  • That in respect of most private sector awards very little, if any, work has been done pursuant to the requirements of the Structural Efficiency Principle apart from some notable exceptions.

  • There is an expectation of a wage increase being available before Christmas this year.

  • If the increase in wage rates and allowances is not granted industrial action is likely.

Finally we had been asked to grant a similar wage increase in respect of the public sector, ie for an across-the-board increase in wage rates and certain allowances from the same common operative date. This was to be an arbitrated matter because of the absence of any agreement with the Government.

The TTLC, TPSA and others had at that time presented details designed to illustrate to us that they had already co-operated positively in a fundamental review of award matters intended to improve the efficiency of the State Service and provide workers with access to more varied, fulfilling and better paid jobs.

However, the Minister administering the State Service Act opposed the claim on the basis that further negotiations were required, and that a number of important, outstanding matters needed to be further addressed.

In response to each of these matters we decided firstly to endorse the decision of the Australian Industrial Relations Commission handed down on 7 August 19892 in the National Wage Case, together with the revised principles of Wage Fixation with only minor procedural variations. And in this regard we point out that as a consequence of our decision meant Tasmanian workers employed under State awards were able to access the first increase under the structural efficiency principle from 30 October 1989.

We also gave reasons why at that time and in respect of each of the claims before us, we had rejected adoption of an across-the-board increase in both the public and private sectors of employment.

However we did acknowledge that much work had already been done in relation to public sector award restructuring, preparation of classification standards and award rationalisation. And in this regard we had this to say at page 13:

"Nevertheless we have some sympathy for Mr Lennon's position. It is no secret that much work has been done on public sector award restructuring, preparation of classification standards and award rationalisation. Clearly the relevant individual unions have done more than pay lip service to the notion of structural efficiency and award restructuring. It is equally true that TTLC Exhibits 4 and 5 need to be more specific.

We are of the opinion that both sides can and should be more flexible. Therefore, we have decided to refrain from finally arbitrating on the merits of the matter at this stage. However we would expect that in the true spirit of conciliation the parties will positively explore the possibility of reaching some accommodation. We would hope that progress in this regard can be reported when next this Bench convenes.

If agreement is out of the question, individual members of this Commission will be requested to monitor and expedite award-by-award consideration commencing immediately."

Finally we indicated that we would convene again on 2 November 1989 for the purpose of taking commitments to the revised principles from the parties to both private sector and public sector awards.

We also said that following the giving of commitments it may be opportune for the parties to take up the invitation of the Bench to present further proposals in support of the Structural Efficiency Principle.

When the Commission reconvened on 2 November, union representatives said they were not in a position to give a commitment to the Principles at that time.

Both the unions and the TCI were critical of our decision, with the TCI being more strident than any other party.

On the other hand, the Minister for Employment, Industrial Relations, and Training described our decision as a sound judgment.

Pasminco Metals - EZ Operations, one of the State's largest private sector employers and a member of the TCI, intervened for the first time to tell us it was very much in favour of our decision not to grant an across-the-board increase.

It presented substantial detailed evidence to the Commission relating to the fact that significant progress had been made in its own structural efficiency exercise at its Risdon plant. Similar progress had been made in respect of its West Coast Mines operation at Rosebery.

Whilst the Pasminco Metals - EZ Operations representative stated that they were not yet in a position to present a final proposal to the Commission, it was said that the company is confident of being able to do so in the very near future.

Similarly the Retail Traders Association representing many employers in the retail industry who employ many thousands of Tasmanian employees subject to the Retail Trades Award reported to us that the award by award approach contemplated by the Bench in our original decision would be acceptable to it. Indeed we were advised by Mr McDougall that structural efficiency negotiations were progressing with the Shop Distributive and Allied Employees' Association, Tasmanian Branch to the extent that a first instalment proposal could be expeditiously submitted to the Commission for consideration.

However, notwithstanding the apparent advanced stage of the negotiations in this industry, Mr McDougall also indicated an across the board approach would be acceptable to the retailers he represented.

A like picture emerged when the Hospital Employees' Federation of Australia, Tasmanian Branch, (HEF) also made a separate submission illustrating that it too had had considerable involvement in Structural Efficiency exercises in the hospitals area (Federal and State) and was ready immediately to have its proposals in this regard presented to the Commission for ratification.

Other evidence of substantial work having been done in relation to structural efficiency exercises came from the teaching staff representatives. We can only conclude from this that if pressed to do so, other groups, employer as well as employee, could illustrate a similar position.

Whilst we cannot but commend Mr Bacon of the TTLC for his presentation of a far more comprehensive and well co-ordinated case than was before us earlier, certain individual unions who, because of their forays during proceedings while not quite being able to decide if they were represented by the TTLC or not, at certain times assisted neither the TTLC's case nor this Commission. Even after we adjourned briefly and the TTLC was able to assure us of its charter to speak for all unions, the Australian Nursing Federation (ANF) and the Secondary Colleges Staff Association (SCSA) told us they could not at that time give an assurance that they accepted the totality of structural efficiency measures put forward as a package in the public area.

Whilst the ANF claimed it had not had sufficient time to study the draft Memorandum of Understanding (Exhibit W6), the SCSA had a more fundamental and specific concern with the particular item of contact hours for teachers being listed on the "secondary agenda". However, although the Tasmanian Teachers Federation (TTF) obviously also held strong views on the subject, they were at least prepared to leave the question on the list of matters to be discussed with recourse to arbitration if necessary. And by an already filed separate notification under Section 29 of the Act, the TTF wanted the question of rationalisation of schools to be considered in the context of structural efficiency.

The public sector also could not agree on the question of operative date of any award variation.

Having now heard additional submissions from each side it is our considered opinion that the Tasmanian public sector Structural Efficiency Memorandum of Understanding between the TTLC and the Minister administering the State Service Act (as contained in Exhibit W6) covers a significant number of meaningful initiatives intended to improve the efficiency of the State Service. Those measures also will provide workers with access to more varied, fulfilling and better paid jobs. They are very largely agreed and include the following head notes:

Sick Leave
Ten and Twelve Hour Shifts
Spread of Hours
Aggregated Wage Rates
Uniforms
Minimum Rates
First Instalment Increase
Operative Date
Special Cases
Translation
Multiskilling
Demarcation
SIPS
Allowances
Training and Skills Formation
Qualifications
Other Matters

Full Details are appended hereto as Appendix "A".

Notwithstanding the fact that there are a number of sticking points remaining we accept the foregoing matters as satisfying the requirements of the Structural Efficiency Principle and intend arbitrating those issues that are not agreed.

Our preferred option is for an award-by-award approach even in the State Service. But because, to all practical intents and purposes, there is a single employer involved in the public sector, we are prepared to allow the total package to apply to all public sector awards so far as the first instalment is concerned. However, no increase in wages or allowances will be granted until all employee organisations party to a particular award give the required commitment.

The question of operative date is addressed by us later in this decision. Suffice it to say the TTLC requested 1 November while the TCI sought the date of decision. The Minister, on the other hand, requested 7 December.

We turn again to the question of the private sector.

We had of course firmly decided on 30 October to refuse to endorse the agreement made between the TTLC and the TCI in relation to a package of proposals purporting to meet the modified requirements of the Principles as a whole, and the Structural Efficiency Principle in particular.

Since that time the parties concerned have taken advantage of the opportunity given to them to make further submissions.

Whereas we understood that the TCI had a second option ready in the event we did not accept their original package of agreed matters, we were given only a re-run of the same case, albeit with a clear strength of commitment that the deal is a one-off deviation from the award-by-award approach for the reasons already alluded to in our interim decision. Moreover, there was a reiteration by both sides concerning the intrinsic merits of the agreement.

In finally deciding this matter we have found it difficult as a Full Bench to arrive at a consensus view. There remains an arguable case for maintaining our preferred position of rejecting the agreement between the TCI and the TTLC because of its across-the-board approach rather than award by award.

Such a case is sustainable because of this Commission's need to apply the Wage Fixation Principles strictly; because the public interest is best served by such a course.

That view encompasses the belief that any departure by Tasmania runs the risk of setting a dangerous precedent, not only for the State, but elsewhere given that tribunals generally have adopted an award by award approach; even in respect of the first instalment increase.

There is also a concern that to grant the consent package in present circumstances may be wrongly interpreted as this Commission being prepared to be influenced by threats of industrial action thereby colouring fundamental questions of merit and principle. Clearly we would not be influenced in that way.

There is also a case for concluding that the picture presented by the TIC and the TTLC in respect of the private sector is little different from that which in all probability applies in the rest of the Commonwealth, or any other State or Territory. In this regard there are clearly both employers and trade unions who have reached an advanced stage of readiness to have structural efficiency exercises presented for ratification and implementation. On the other hand a great many others have not.

It is arguable in any case that it is unfair that the likely recipients of respective benefits, ie wage increases and enhanced efficiencies, should be further frustrated by any more delays in allowing them to proceed at their own pace; or, put another way, to simply be overtaken by everyone else gaining the same increase regardless of whether the same amount of work has been done or not.

Given the complexities of the matters before us we agree that a majority decision in a State Wage Case matter would be an unfortunate although understandable outcome given the importance of the issues to be decided.

However, as mentioned earlier, we acknowledge that a great deal more detail was put to us by each of the parties on the 2 and 3 of November 1989. Moreover, and in addition to the strengthened commitment of the parties to undertake an award-by-award exercise using all of the structural efficiency agenda matters, other concessions were made.

More particularly, it was agreed that not only will the final minimum rates adjustment not be available to the vast majority who qualify before 1 July 1990, but agreed exceptions will also now have to be considered by the Commission as a "special case". Previously the consent of the parties was the only criterion needed.

And again the cost savings to employers was highlighted as a significant feature of the TTLC/TCI agreement.

To a large extent the existence of such a large combined body of opinion by the two biggest organisations representing employers and employees has created such a groundswell of expectation in the community that the outcome is difficult for us to ignore. Nevertheless the totality of the exercise has, we hope, been a learning experience to all those who contemplate adapting well settled National guidelines, endorsed by this Commission, to suit their own convenience.

Our one comfort is that in both the public and private sectors the approach from this point on and for the duration of the Principles is to be strictly in accordance with those Principles. In that regard we announce now that we intend to closely monitor progress of structural efficiency exercises on an award-by-award basis.

However we do not necessarily believe that a lot is to be achieved by that monitoring being carried out solely by a Full Bench.

It is far preferable, we believe, to allow individual members of the Commission to monitor those awards for which they are responsible. And to test the bona fides of the parties in this regard we would expect to receive applications from the TCI and the TTLC during the month of February or March 1990 for the purpose of reporting progress on an award-by-award basis.

To summarise the position we have reached we now indicate that:

1. We have decided that subject to the giving of commitments by all unions party to an award to vary all public sector awards in accordance with the Memorandum of Understanding contained in Exhibit W6 and the Structural Efficiency Principle. Those matters not agreed in Exhibit W6 have now been arbitrated.

2. We have also decided that subject to the same proviso as in (1) above to vary all private sector awards except the Electrolytic Zinc Award and the Mining Lead-Zinc Award in accordance with the agreement reached between the TCI and the TTLC as contained in Exhibit TTLC 4 and the Structural Efficiency Principle.

3. In no case shall the first instalment Minimum Rates Adjustment be available before 1 July 1990, except where accepted by the Commission as a special case.

4. Where it applies the Minimum Wage will be increased by $10.00 per week.

5. Appropriate rounding off will be applied in respect to both wage and salary rates and nominated work-related allowances.

6. Should any queries arise they should be directed to individual Commissioners according to award assignments, who will be responsible for drawing up necessary orders reflecting our decision.

7. Where there are any inconsistencies between our decision and agreements in either public or private sectors, our decision shall prevail.

8. The Chemists Award3 shall be included subject to any successful application under the Economic Incapacity Principle.

9. The Electrolytic Zinc Award4 and Mining (Lead-Zinc) Award5 are referred to the Commissioner concerned. They may or may not need to be considered as special cases.

10. We will reconvene on 15 November for the purpose of taking commitments to the Principles.

OPERATIVE DATE

We have decided that all award variations will have effect from the first full pay period to commence on or after 23 November 1989.

1 P016
2 Print H9100
3 Op Cit
4 P025
5 P047


Awards Varied:
Aerated Waters
Agriculturists
Australian Cement Holdings Enterprise and Correction [31.1.1990] and Correction [15.10.1990]
Automotive Industries
Barristers and Solicitors
Boarding Schools and Student Hostels and Correction Order
Bootmakers
Broadcasting and Television
Building Trades
Butter and Cheesemakers
Carriers and Correction (31.1.1990) and (Correction (18.4.1990)
Chemists
Child Care and Childrens Services
Cleaners and Correction Order
Clerical Employees
Clothing Makers
Concrete Products and Correction Order
Dairymens
Dental Employees
Dentists
Draughting and Technical Officers (Private Industry)
Electrical/Electronic Trades (Public Sector)
Electrical Engineers
Entertainment
Estate Agents
Ferro Alloys
Fibreglass & Plastics
Fuel Merchants and Correction Order
Furnishing Trades and Correction Order
General Conditions of Service
General Officers
Governor of Tasmania Staff
Hairdressers and Correction Order
Hobart Regional Water Board Staff
Horticulturists
Hospitals and Correction Order
Hotel and Motel Keepers
Ice Cream Makers
Independent Schools (Teachers) Tasmania
Inland Fisheries Commission Staff 
Insurance
Laundrymens and Correction Order
Legal Practitioners
Licensed Clubs
Meat Trades
Medical Practitioners (Private Sector)
Medical Practitioners (Public Sector)
Metal Trades (State Employees)
Miscellaneous Workers
Miscellaneous Workers (Public Sector) and Correction Order
Monumental Masons and Correction Order
Musicians
Officers of the State Fire Commission and Correction Order
Optical Industries
Parliamentary Staff
Plumbers and Correction Order
Police
Police Departmental Employees & Road Safety Officers
Port Arthur Authority and Correction Order (5.9.1990) and Correction Order (4.12.1990)
Printers
Prison Officers
Produce
Professional Engineers & Scientists (Private Industry) and Correction Order
Public Accountants
Public Vehicles and Correction Order
Quarrymens
Restaurant Keepers
Retail Trades
Rubber Trades
Sea Fisheries
Security and Watching Services
Shipbuilders and Correction Order
Shipping
Southern Regional Cemetery Trust
Surveyors (Private Industry)
Tasmanian Ambulance Service
Tasmanian Museum & Art Gallery Employees
Technical Officers
Textile
Timber Merchants and Correction Order
Totalizator Agency
Tourism Tasmania Staff and Correction Order
Vegetable Preservers
Veterinary Services
Welfare and Voluntary Agencies
Wholesale Trades and Correction Order
Wireworking