T2146 T2147 T2152 T2167 - 9 November 1989
IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 See end of Decision for Awards Varied
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:
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:
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 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:
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
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