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T7702

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s23 application for an award or variation of an award

Tasmanian Trades and Labor Council
(T7702 of 1998)

PRIVATE AND PUBLIC SECTOR AWARDS

See end of Decision for Awards Varied

 

FULL BENCH:
PRESIDENT F D WESTWOOD
DEPUTY PRESIDENT B R JOHNSON
COMMISSIONER R J WATLING

HOBART, 15 June 1998

Wage Rates - State Wage Case July 1998 - application to review the Wage fixing Principles and to vary awards in a manner consistent with the Australian Industrial Relations Commission decision in Print number Q 1998 Safety Net Review - Wages - Agreed Settlement - Two-stage Arbitrated Safety Net Adjustment - ffpp on or after 14 July 1998 and ffpp on or after 14 October 1998 - Revised Wage Fixing Principles - Approved

REASONS FOR DECISION

Application T7702 of 1998, an application by the Tasmanian Trades and Labor Council (the TTLC) pursuant to section 23 of the Industrial Relations Act 1984, was lodged with the Commission on 6 May 1998. It sought to review the Wage Fixing Principles and to vary awards in a manner consistent with the Australian Industrial Relations Commission decision in Print number Q 1998 Safety Net Review - Wages.

Similar applications1 seeking variation of nominated awards were lodged by the Australian Workers' Union, Tasmania Branch, the Automotive Food, Metals, Engineering, Printing and Kindred Industries Union and the Association of Professional Engineers, Scientists and Managers, Australia, but were withdrawn prior to the hearing date.

On 29 April 1998 the Full Bench of the Australian Industrial Relations Commission (the AIRC) handed down its decision dealing with the Living Wage claim of the Australian Council of Trade Unions and with other matters. The first element of the ACTU's claim was for a $20.60 per week adjustment for all minimum award rates to achieve a minimum wage of $10 per hour ($380 per week) for ordinary hours. In the event the Full Bench decided on an arbitrated safety net adjustment of the following amounts:

1.  a $14 per week increase in award rates up to and including $550 per week;

2.  a $12 per week increase in award rates above $550 per week and up to and including $700 per week; and

3.  a $10 per week increase in award rates above $700 per week.

When the parties to the matter appeared before us the Commission was informed that preliminary negotiations between the TTLC and TCCI had reached a stalemate and Ms Fitzgerald signalled her intention to proceed with the claim. The Commission then invited the parties to consider whether or not any purpose could be served by engaging in further negotiations to see whether the impasse which had developed could be overcome. They agreed to confer further and after some hours of discussions reported that an agreement had been reached which would result in the full settlement of the claim before us.

Ms Fitzgerald, for the TTLC, tendered the agreement which was in the form of an amended set of Wage Fixing Principles2 which are attached.

The proposed new principles provide for private sector award rates to be varied by the amounts determined in the federal Safety Net Review case, but in two instalments; the first from 14 July 1998, the second from 14 October 1998. Consequently award rates up to $550 per week are to be increased by $10 per week from the first full pay period to commence on or after 14 July 1998 and a further $4 per week from the first full pay period to commence on or after 14 October 1998. Award rates above $550 per week and up to $700 per week are to be increased by $9 per week and $3 per week from those dates and award rates above $700 per week are to be increased by $8 per week and $2 per week also from those dates.

Awards will be varied to include the new arbitrated safety net adjustments, from the above dates, subject to the presentation of completed and agreed draft orders on or before 14 July 1998. Junior, apprentice and trainee rates will be adjusted on a proportionate basis. Where draft orders are not completed and agreed by 14 July 1998 the operative date will be the date that the Commission approves the draft orders. The TCCI indicated that it would adopt the position it took on previous occasions of checking the orders and informing the Commission if the order is agreed.

It was agreed that a single order for each award would cover the two stages of the adjustment. A copy of the format for orders, which is preferred by the Commission, is attached.

Increases in existing allowances relating to work or conditions which have not changed and service increments will be increased in accordance with the formula set out in principle 10.1.2 and applied in one instalment.

Where an award has not been varied for any or all of the previous structural efficiency increases, minimum rates adjustments or arbitrated safety net adjustments, such increases will be accessible, by application, after 1 September 1998. Where more than one previous safety net adjustment is involved the operative date for each increase will be determined by agreement between the parties to the award, or failing agreement, by decision of the Commission.

Other consequential and drafting amendments to the 1997 Principles were identified and explained.

Ms Fitzgerald submitted that the ACTU Living Wage Claim was based on "the right of the Australian workers to decent standard of living and ... the needs of the low-paid workers."3

She said:

"We all know that low paid Tasmanian workers are struggling to make ends meet, going without basic necessities, renting accommodation and having inequality of opportunity. Our approach in this matter has been to achieve as greater benefit as possible for these low paid workers as quickly as possible. This agreement is thus entered into on the basis of pragmatism.

Whilst we were obviously ready to run our full case for arbitration, we accept that the outcome of seeking arbitration may have been that low paid workers would not get any increase at all for some considerable time. We are pleased with the agreement reached. We are pleased that it delivers quickly, at least an increase of $10.00 to the lowest paid workers. Additionally, where agreement can be reached at the workplace level, then the full $14.00 can be paid."4

For those reasons Ms Fitzgerald submitted that the agreeent reached was in the public interest.

Mr Edwards confirmed that Exhibit 7 reflected the agreement which had been reached between the parties.

He said:

".. it's quite evident that the proposal before you in our agreement is substantially at odds with the decision of the Australian commission and it is a new approach in respect of State Wage Cases, as far as I am aware. I'm not personally aware of a decision of the Australian commission having been modified to this significant extent in the past and in our view, notwithstanding the submissions of the Labor Council, we believe it is directly reflective of the condition of the Tasmanian economy, particularly as it compares to the national economy.

There can be no doubt for anyone that's read the federal commission's decision in Q1988, that they relied substantially on their assessment of the national economy and its robust nature to come to the conclusion they did as to the quantum and the timing of the increases that were awarded by that commission.

It was our assessment and that of other registered employer organisations in this tribunal area, that those increases could not be sustained at a local level and it was for that reason that we sought out negotiations with the Labor Council with a view to reaching some form of amelioration which would soften the impact while still allowing the low paid access to the same level of wage increase, albeit over a slightly longer period of time."5

In addressing the change to Principle 16, Award Review Process, Mr Edwards said the parties were "in the processes of implementing a new consistent award format", and that although "somewhat contentious at the time", the process "had been a valuable experience".

Mr Edwards said his organisation and the parties it represented shared the view that the agreement was consistent with the requirement of section 36 of the Industrial Relations Act. He indicated, formally, that the parties had agreed with the TTLC that the agreement did not create a precedent. He said the agreement had been reached "in light of the specific circumstances of this application and this application alone".

For the Minister for Industrial Relations, Mr Willingham submitted that the Minister, on behalf of the Tasmanian Government, had considered the level of increase awarded by the Australian commission to be "at the very upper limits of what is sustainable within the Tasmanian economy". However, he said given the cooperation and eventual agreement reached between the two major parties, the Government was persuaded to add to its endorsement to the proposal which he submitted did not offend the provisions of section 36 of the Act.

We noted on record the efforts which had been made by the parties to bring this application to a speedy and worthwhile conclusion and informed those present that the proposed agreement would be accepted. We are of the view that it represents a reasonable mechanism to ensure that, in a relatively short time, employees covered by State awards will receive the benefits of the new arbitrated safety net adjustment. In approving the agreed Wage Fixing Principles we also note the comments of the Australian Commission at page 40 of its decision, which we consider apply equally to Tasmania; that Bench said:

"The adjustment we have decided on will result in a manageable net addition to the growth in aggregate labour costs as reflected in AWOTE6 growth over the past year. The increases have been structured to provide greatest assistance to those in receipt of the lowest rates prescribed in awards, whilst moderating the cost impact over the economy as a whole."

This file will remain open to act as the vehicle to vary awards to reflect the arbitrated safety net adjustment described in the 1998 Wage Fixing Principles at Principle 8.

 

F D Westwood
PRESIDENT

Appearances:
Ms L Fitzgerald for the Tasmanian Trades and Labor Council and for the Australasian Meat Industry Employees Union, Tasmanian Branch with Mr R Hunt
Mr C Willingham intervening on behalf of the Minister for Industrial Relations pursuant to section 27 of the Act, and also appearing for the Minister for Public Sector Management
Mr P Baker for the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union
Ms P Shelley for the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch
Ms G Kitchin for the Tasmanian Automobile Chamber of Commerce
Mr G Cooper for the Construction, Forestry, Mining and Energy Union, Tasmanian Branch
Mr I Paterson for the Australian Municipal, Administrative, Clerical and Services Union
Mr P Noonan for the Shop, Distributive and Allied Employees Association, Tasmanian Branch
Mr R Flanagan for the Australian Workers' Union, Tasmania Branch
Mr C Brown for the Health Services Union of Australia, Tasmania No. 1 Branch
Mr J Gill for the Transport Workers' Union of Australia, Tasmanian Branch
Mr T Curtain for the National Meat Association of Australia (Tasmanian Division)
Mr I Masson for the Australian Mines and Metals Association (Incorporated)
Mr K Rice for the Tasmanian Farmers and Graziers Employers Association and the Retail Traders Association of Tasmania
Mr T J Edwards with Mr W J Fitzgerald for the Tasmanian Chamber of Commerce and Industry Limited; the Metal Industries Association Tasmania; the Hop Producers' Association of Tasmania; the Tasmanian Sawmillers Industrial Association; and the Pharmacy Guild of Australia, Tasmanian Branch;

Date and place of hearing:
1998
May 28
Hobart

EXAMPLE OF FORM OF ORDERS

8.    WAGE RATES

(a)  An employee appointed or promoted to a position within a level prescribed by this award shall be paid at the salary rate determined for that level by reference to the relevant classification standards as set out I Clause 7 - Definitions, subclause (b) - Classification Standards.

(i)  Operative from the first full pay period to commence on or after 14 July 1998:

 

Base Rate Relativity
%

Base
Rate
$

Safety Net Adjustment
$

Weekly Wage Rate
$

Level 1        
Grade 1

90

375.50

44.00

419.50

Grade 2

95

396.30

44.00

440.30

         
Level 2        
Grade 1

100

417.20

44.00

461.20

Grade 2

105

438.10

44.00

482.10

         
Level 3        
Grade 1

110

458.90

44.00

502.90

Grade 2

115

479.80

44.00

523.80

Grade 3

125

521.50

44.00

565.50

         
Level 4

135

563.20

43.00

606.20

Level 5

145

604.90

43.00

647.90

Level 6

160

667.50

43.00

710.50

Level 7

180

751.00

42.00

793.00

         

(ii)  Operative from the first full pay period to commence on or after 14 October 1998:

 

Base Rate Relativity
%

Base
Rate
$

Safety Net Adjustment
$

Weekly Wage Rate
$

Level 1        
Grade 1

90

375.50

48.00

423.50

Grade 2

95

396.30

48.00

444.30

         
Level 2        
Grade 1

100

417.20

48.00

465.20

Grade 2

105

438.10

48.00

486.10

         
Level 3        
Grade 1

110

458.90

48.00

506.90

Grade 2

115

479.80

48.00

527.80

Grade 3

125

521.50

48.00

569.50

         
Level 4

135

563.20

46.00

609.20

Level 5

145

604.90

46.00

650.90

Level 6

160

667.50

46.00

713.50

Level 7

180

751.00

44.00

795.00

TASMANIAN INDUSTRIAL COMMISSION

REVIEW OF WAGE FIXING PRINCIPLES 1998

THE PRINCIPLES

1. INTRODUCTION

This statement of principles to be observed in the jurisdiction of the Tasmanian Industrial Commission has been developed to encourage enterprise bargaining, and the development of equitable and workable enterprise bargaining relationships between employers, employees and their unions.

The process of enterprise bargaining is conducted within the framework of an award system which provides a safety net of secure, relevant and consistent wages and conditions of employment.

The award system provides a safety net of wages and conditions which underpins enterprise bargaining and protects employees who may be unable to reach an enterprise agreement while maintaining an incentive to bargain for such an agreement.

The principles are also designed to ensure that the structural efficiency process continues to apply to awards of the Tasmanian Industrial Commission and that the award review process is effectively implemented.

2. STRUCTURAL EFFICIENCY

Consistent with the September 1988; October 1989; August 1991; February 1992; December 1993, December 1994, July 1996 and July 1997 State Wage Case decisions, the structural efficiency principle provides a framework through which it is intended that the parties to an award should co-operate positively in a continuing review of that award with a view to implementing measures to improve the efficiency of industry and enterprises and provide employees with access to more varied, fulfilling and better paid jobs. The measures should include but not be limited to:

· establishing skill-related career paths which provide an incentive for workers to continue to participate in skill formation;

· eliminating impediments to multi-skilling and broadening the range of tasks which a worker may be required to perform;

· creating appropriate relativities between different categories of workers within the award and at enterprise level;

· ensuring that working patterns and arrangements enhance flexibility and the efficiency of industry and enterprises;

· including properly fixed minimum rates for classifications in awards, consistent with the Form of Orders Principle, related appropriately to one another, with any amounts in excess of these properly fixed minimum rates being expressed as supplementary payments;

· updating and/or rationalising the list of parties to awards;

· addressing any cases where award provisions discriminate against sections of the workforce;

· examining both award and non-award matters to test whether work classifications and basic work patterns and arrangements are appropriate - the examination to include specific consideration of:

(i) the contract of employment including the employment of casual, part-time, temporary, fixed term and seasonal employees;

(ii) the arrangement of working hours;

(iii) the scope and incidence of the award;

· inserting facilitative provisions in relevant clauses of the award;

· establishing a consultative mechanism and procedures appropriate to their size, structure and needs for consultation and negotiation on matters affecting their efficiency and productivity;

· providing in awards, in order to ensure increased efficiency and productivity at the enterprise level, while not limiting the rights of either an employer or union to arbitration, a process whereby consideration can be given to changes in award provisions; any agreement reached under this process would have to be formally ratified by the Commission and any disputed areas should be subject to conciliation and/or arbitration; and

· providing in an award a provision to the effect that an employer may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training.

Structural efficiency exercises should incorporate all past work value considerations.

3. ENTERPRISE BARGAINING

3.1 When approving enterprise bargaining agreements, the Commission will have regard for the primary consideration that such agreements should be formalised as Section 55 registered industrial agreements. Parties who wish to pursue a different approach in a particular circumstance will be required to satisfy the Commission to that effect on the basis of the circumstances of the particular enterprise or enterprises involved.

3.2 A section 55 agreement or enterprise award may be made or adjusted to reflect an enterprise bargaining agreement between parties, subject to the following:

3.2.1 the proposed enterprise bargaining agreement is consistent with the continuing implementation at enterprise level of the structural efficiency principle (ie ensuring existing structures are relevant to modern competitive requirements of industry and are in the best interests of both employers and employees), including the consideration of a broad agenda.

3.2.2 any wage rates contained in the proposed enterprise bargaining agreement [apart from rates that may be approved on the basis of other principles] which exceed the appropriate rates set in accordance with the minimum rates adjustment principle or prescribed in an existing paid rates award, must be based on the actual implementation of agreed efficiency measures designed to promote productivity and efficiency.

3.2.3 the enterprise bargaining agreement has been negotiated through a single bargaining unit in an enterprise or section of an enterprise. In the case of a single bargaining unit in a section of an enterprise, the parties must demonstrate that the section is discrete: the fact that it is being treated separately from other sections of the enterprise must not restrict the implementation of the structural efficiency principle and enterprise bargaining in that establishment, or other sections of the enterprise;

3.2.4 where the proposed award or agreement will operate in conjunction with another award or agreement or other awards or agreements, it details the wage increases involved for each classification;

3.2.5 where the proposed award or agreement is not to operate in conjunction with another award or agreement, then the award or agreement should specify the classification in the relevant minimum rates award on which the actual rate prescribed for the key classification in the new agreement or new award is calculated. It should also contain a procedure for re-negotiation of the award or agreement at the expiry of its term;

3.2.6 the proposed award or agreement does not result in a reduction in ordinary time earnings, or departure from parental leave standards determined in test case proceedings and Commission standards of hours of work and annual leave with pay. A proposed award or agreement shall not in any way limit or forego the rights of employers and employees to make application and have determined by the Commission any matter in respect to termination, change and redundancy.

3.2.7 where parties to an enterprise bargaining agreement reached through negotiations with a single bargaining unit include employees within the jurisdiction of the Australian Industrial Relations Commission, an agreement covering those employees is submitted for approval through the processes provided under that jurisdiction.

4. ROLE OF THE COMMISSION IN ENTERPRISE BARGAINING

The Commission will continue to play an active role in encouraging and facilitating the parties in the pursuit of enterprise specific outcomes through enterprise bargaining.

4.1 The Commission, on application by a party which could be by way of Section 29, will undertake a conciliation and/or facilitation role to assist the parties in reaching agreement.

4.2 Section 61 of the Act [Private Arbitration] may be utilised by the parties where needed, to conclude an agreement.

4.3 Failing agreement to private arbitration in accordance with Section 61, or should a party wish to pursue an enterprise award or variation to an existing award, the relevant provisions of the Act may be pursued.

4.4 When approving an enterprise bargaining agreement which is to be reflected in a Section 55 agreement or enterprise award, the Commission will ensure that the Section 55 agreement or enterprise award, taken as a whole, will not disadvantage the employees concerned.

5. MINIMUM RATES ADJUSTMENT

Minimum rates adjustment for minimum rates awards in accordance with the October 1989 and August 1991 State Wage Case decisions shall continue to be allowable and shall be in accordance with the following:

5.1 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;

5.2 the second and subsequent instalments of these adjustments will not be automatic and an application to vary the relevant award will be necessary; and shall take into account those matters referred to in Principle 7 - Previous State Wage Increases.

5.3 supplementary payments may be prescribed in the wages clause of awards.

6. THE AWARD SAFETY NET

Existing wages and conditions in the relevant award or awards of the Commission shall be the safety net underpinning enterprise bargaining.

The award safety net may, on application be reviewed and adjusted from time to time to ensure its relevance. Generally the detailed nature and timing of any adjustments will be determined in the context of specific applications and in the light of prevailing economic, social and industrial circumstances.

7. PREVIOUS STATE WAGE CASE INCREASES

7.1 Increases available under previous State Wage Case decisions such as structural efficiency increases, minimum rates adjustments and the three previous $8 arbitrated safety net adjustments will on application continue to be accessible.

7.2 The spacing of increases to awards by the minimum rates adjustment process or the structural efficiency process in accordance with principle 7.1 shall be determined by agreement between the parties to any particular Award or failing agreement by decision of the Commission.

7.3 The application of any outstanding safety net adjustments into an Award in accordance with Principle 7.1 will be available by application on or after 1 September 1998. In respect to an application seeking to vary an Award by more than one arbitrated safety net adjustment the spacing of those increases shall be determined by agreement between the parties to the Award or failing agreement by decision of the Commission.

8. ARBITRATED SAFETY NET ADJUSTMENTS

8.1 All wage rates in private sector minimum rates and paid rates awards will be varied to include arbitrated safety net adjustments in accordance with the following schedule, subject to the presentation of completed and agreed draft orders on or prior to 14 July 1998. Junior, apprentice and trainee rates will be adjusted on a proportionate basis.

Award Wage Rate Total Safety Net
Adjustment

14 July
1998

14 October
1998

Up to and including
$550 per week

$14.00 p.w.

$10.00 p.w.

$4.00 p.w.

Above $550 and up
to and including $700 per week

$12.00 p.w.

$9.00 p.w.

$3.00 p.w.

Above $700 per
week

$10.00 p.w.

$8.00 p.w.

$2.00 p.w.

The dates specified in the previous table are from the beginning of the first full pay period to commence on or after the date specified.

Where draft orders are not completed and agreed by 14 July 1998, the operative date will be the date that the Commission approves the draft orders.

8.2 The amount of the arbitrated safety net adjustment is to be reduced to the extent of any over award payment currently being paid by an employer.

8.3 In the event of a public sector award not having been varied to incorporate increases from enterprise bargaining, application may be made to incorporate safety net adjustments.

9. FORM OF ORDERS

9.1 Arbitrated safety net adjustments shall be shown as a separate amount against each classification in the award.

9.2 Where the minimum rates adjustment process has been completed in a minimum rates award or in a paid rates award the Commission may on application determine to combine the base rate and supplementary payment into an award rate. The arbitrated safety net shall continue to be expressed as a separate amount to protect the integrity of the relativities established in the structural efficiency process.

9.3 Where the minimum rates adjustment process has not been completed, the safety net adjustment may be taken into account in determining the size and phasing in of a minimum rates adjustment.

9.4 By consent of all parties to an award, where the minimum rates adjustment process has been completed, the weekly award rates may be expressed as hourly rates as well as weekly rates. In the absence of consent, a claim that award rates be so expressed may be determined by arbitration.

9.5 The application of the increases arising from the July 1998 State Wage Case shall be effected by a single draft order which will embrace both components of the increase.

10. ALLOWANCES

10.1 Existing Allowances

10.1.1 Existing allowances which constitute a reimbursement of expenses incurred may be adjusted from time to time where appropriate to reflect the relevant changes in the level of such expenses.

10.1.2 In circumstances where the Commission has determined that it is appropriate to adjust existing allowances relating to work or conditions which have not changed and service increments for a monetary safety net increase, such allowances and service increments shall be increased by a percentage derived as follows: divide the monetary safety net increase by the weekly wage rate for Level 7 - Metal and Engineering Industry Award immediately prior to the application of the safety net increase to the award and multiply by 100.

10.1.3 Increases to existing allowances as a result of the July 1998 State Wage Case shall be applied in one instalment from the first full pay period commencing on or after 14 July 1998 equal to the percentage computed be the method outlined in Principle 10.1.2 for the total safety net adjustment.

10.1.4 Existing allowances for which an increase is claimed because of changes in the work or conditions will be determined in accordance with the relevant provisions of the work value changes principle.

10.2 New Allowances

10.2.1 New allowances to compensate for the reimbursement of expenses incurred may be awarded where appropriate having regard to such expenses.

10.2.2 No other new allowances shall be created unless changes in work have occurred or new work or conditions have arisen; where changes have occurred or new work or conditions have arisen, the question of a new allowance, if any, shall be determined in accordance with the relevant principle.

The relevant principle in this context may be work value changes or first awards and extensions to existing awards principle.

10.2.3 New service increments may only be awarded to compensate for changes in the work and/or conditions and will be determined in accordance with the relevant parts of the work value changes provisions of this statement of principles.

11. SUPERANNUATION

11.1 Agreements may be approved or consent awards made providing for employer contributions to approved superannuation schemes for employees covered by such agreements or consent awards provided those agreements or consent awards:

11.1.1 operate from a date determined or approved by the Commission; and

11.1.2 are consistent with the provisions of the Industrial Relations Act 1984 and the September 1994 AIRC Superannuation Test Case decision [Print L5100].

11.2 Where, following a claim for employer contributions to approved superannuation schemes for employees, the parties are unable to negotiate an agreement consistent with this principle, and conciliation proceedings before the Commission have also failed to achieve such an agreement, the Commission shall, subject to the provisions of the Industrial Relations Act 1984, arbitrate on that claim.

11.3 The Commission will not grant retrospective operation for any matters determined in accordance with this principle.

11.4 For the purpose of this principle, approved superannuation scheme means a scheme approved in accordance with the Commonwealth Operational Standards for Occupational Superannuation Funds.

12. WORK VALUE CHANGES

12.1 Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification.

These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this principle.

12.2 Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole.

12.3 The time from which work value changes in an award should be measured is, unless extraordinary circumstances can be demonstrated in special case proceedings, the date of operation of the second structural efficiency adjustment allowable under the 30 October 1989 State Wage Case decision, or the date of any increase awarded in accordance with this principle since that date.

12.4 Care should be exercised to ensure that changes which were or should have been taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this principle.

12.5 Where a significant net alteration to work value has been established in accordance with the principle, an assessment will have to be made as to how that alteration should be measured in money terms. Such assessment should normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work. However the Commission will also take account of the relativities and the integrity of the internal award classification structures and the external classifications to which that structure is related.

12.6 The expression "the conditions under which work is performed" relates to the environment in which the work is done.

12.7 The Commission should guard against contrived classifications and overclassification of jobs.

12.8 Any changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed, taken into account in assessing an increase under any other principle, shall not be taken into account in any claim under this principle.

13. MAKING AND VARYING AN AWARD ABOVE OR BELOW THE SAFETY NET

An application to make or vary a minimum or paid rates award for wages and/or conditions above or below the award safety net shall be referred to the President for consideration as a special case. A party seeking a special case must make an application supported by material justifying the matter being dealt with as a special case. It will then be for the President to decide whether it is to be dealt with by a Full Bench and whether or not it constitutes a special case. Exceptions to this process are applications which fall within the provisions in the Enterprise Bargaining and First Award and Extension to an Existing Award Principles.

In considering an application to make or vary a paid rates award for wages and/or conditions above or below the award safety net, the Commission will ensure that any such paid rates award sets fair and enforceable wages and conditions of employment that are maintained at a relevant level.

13.1 Considerations which may be relevant in determining such wages and/or conditions in a paid rates award are:

13.1.1 ensuring it is suited to the efficient performance of work according to the needs of the particular industries and enterprises, while employees' interests are also properly taken into account;

13.1.2 the market and the extent of restructuring and associated efficiency improvements;

13.1.3 that a range of rates may be introduced for classifications in the award;

13.1.4 skill and responsibility;

13.1.5 recruitment and retention;

13.1.6 the commitment of the parties at both state and corporate level;

13.1.7 that the rates fixed do not lead to wage adjustments elsewhere;

13.1.8 that in a review of a paid rates award applying to a single enterprise/employer or a number of enterprises/employers, consideration should be given to internal relativities, if necessary, by a process of collective review of all the paid rates awards applying only to the particular enterprise/employer or enterprises/employers. Relevant factors in such a review are the particular circumstances of the enterprise/employer or enterprises/employers, including the particular market; and

13.1.9 that reliance on nexus itself provides no justification for a paid rates adjustment.

13.2 Where the market is a consideration the following should apply:

13.2.1 in the first instance, before any steps are taken to obtain information about the market, appropriate classifications and internal relativities should exist or be set for the workplace or sector concerned on the basis of skill and responsibility;

13.2.2 market information should not be used to alter the internal relativities already set without good and sufficient reason and the onus must lie on any party seeking to alter those relativities to demonstrate good and sufficient grounds for alteration;

13.2.3 in some cases the relevant market will be the local geographical market, although in other cases national market considerations will be relevant and the market may include the public sector;

13.2.4 when using information about market rates of pay, care must be taken to ensure that the rates examined have been set for classifications which are comparable and that conditions of employment have been objectively taken into account; and

13.2.5 in obtaining information about market rates, the relevant consideration is the level of actual rates paid not the amounts of any increases in rates.

14. FIRST AWARD AND EXTENSION TO AN EXISTING AWARD

The following shall apply to the making of a first award and an extension to an existing award:

14.1 In making a first award the long established principles shall apply. That is, prima facie the main consideration shall be the existing rates and conditions.

14.2 In the making of a first award, the other main consideration shall be that the award meets the needs of the particular industry or enterprise while ensuring that employees' interests are also properly taken into account. Structural efficiency considerations shall apply in the making of such an award.

14.3 In the extension of an existing award to new work or to award-free work the rates applicable to such work will be assessed by reference to the value of work already covered by the award, providing structural efficiency considerations, including the minimum rates adjustment provisions where relevant, have been applied to the award.

14.4 Additional matters which are to be considered when making a first paid rates award would include:

14.4.1 whether the wages and conditions of employment of the employees concerned have customarily been determined by a paid rates award;

14.4.2 whether the parties to the award are appropriate, bearing in mind that a paid rates award is most appropriately framed on the basis of limited coverage;

14.4.3 that such an award should generally cover all important aspects of the employment relationship considered appropriate for award regulation;

14.4.4 that wages and conditions of employment in a paid rates award are to be fair and enforceable and maintained at a relevant level. Considerations which may be relevant to the determination of such wages and conditions are:

14.4.4.1 ensuring it is suited to the efficient performance of work according to the needs of the particular industries and enterprises, while employees' interests are also properly taken into account.

14.4.4.2 the market and extent of restructuring and associated efficiency improvements;

14.4.4.3 that a range of rates may be introduced for classifications in the award;

14.4.4.4 skill and responsibility;

14.4.4.5 recruitment and retention;

14.4.4.6 the commitment of the parties at both state and corporate level; and

14.4.4.7 that the rates fixed do not lead to wage adjustments elsewhere.

14.4.5 that the award should specify the classification prescribed in the relevant minimum rates award on which the paid rate prescribed for the key classification in the award is calculated; and

14.4.6 the need for the parties to give a commitment that they will maintain the integrity of the paid rates award. [The Commission may convert into a minimum rates award a paid rates award which ceases to be maintained as a true paid rates award. The conversion of a lapsed paid rates award into a minimum rates award will involve the evaluation of classifications in it by comparison with similar classifications in other minimum rates awards].

14.5 Where the market is a consideration the following should apply:

14.5.1 in the first instance, before any steps are taken to obtain information about the market, appropriate classifications and internal relativities should exist or be set for the workplace or sector concerned on the basis of skill and responsibility;

14.5.2 market information should not be used to alter the internal relativities already set without good and sufficient reason and the onus must lie on any party seeking to alter those relativities to demonstrate good and sufficient grounds for alteration;

14.5.3 in some cases the relevant market will be the local geographical market, although in other cases national market considerations will be relevant and the market may include the public sector.

14.5.4 when using information about market rates of pay, care must be taken to ensure that the rates examined have been set for classifications which are comparable and that conditions of employment have been objectively taken into account; and

14.5.5 in obtaining information about market rates, the relevant consideration is the level of actual rates paid not the amounts of any increases in rates.

15. STANDARD HOURS

In approving any application to reduce standard hours to 38 per week, the Commission should satisfy itself that the cost impact is minimised. A reduction in standard hours below 38, or an increase in standard hours up to 38, will be approved only in circumstances where the parties demonstrate their consent.

16. AWARD REVIEW PROCESS

16.1 Consistent with the decision of the Tasmanian Industrial Commission in the July 1996 and July 1997 State Wage Cases the parties are to continue to pursue their commitment to review Awards in the context of:

(i) consistent award formatting;

(ii) removal of discriminatory provisions;

(iii) removal of obsolete or amendment of inaccurate award provisions;

(iv) updating Clause 6 - Parties and Persons Bound;

(v) re-writing of the award in plain English;

(vi) the appropriate use of facilitative provisions;

(vii) the inclusion of an appropriate enterprise flexibility clause.

16.2 The Commission will convene conferences of parties to each award to receive reports on the award review process and to assist in the development of timetables including where relevant a timetable to finalise the review by conciliation and/or arbitration.

16.3 At the time of an application for any future arbitrated safety net adjustment (however described) the Commission must take account of the extent to which the parties to the Award have actively pursued the Award review process.

17. ECONOMIC INCAPACITY

Any registered organisation subject to an award may apply on behalf of an employer or group of employers to reduce and/or postpone the application of any increase in labour costs determined under the principles on the grounds of very serious or extreme economic adversity. The merit of such application shall be determined in the light of the particular circumstances of each case and any material relating thereto shall be rigorously tested.

It will be a matter for the President to decide whether any such application should be dealt with by a Full Bench.

 

1 T7692, T7701 and T7705 of 1998
2 Exhibit 7
3 Transcript p.12
4 Transcript pp.12/13
5 Transcript pp.14/15
6 Average Weekly Ordinary Time Earnings

 

Awards Varied:
Aerated Waters
Automotive Industries
Baking Industry
Barristers and Solicitors
Bootmakers
Broadcasting and Television
Building and Construction Industry
Building Trades and Correction Order
Butter and Cheesemakers
Carriers
Child Care and Childrens Services
Clay and Mud Products
Cleaning and Property Services
Clerical and Administrative Employees (Private Sector) and Correction Order
Clothing Industry
Community Services
Concrete Products
Dairy Processing
Dentists
Disability Service Providers
Draughting and Technical Officers (Private Industry)
Electrolytic Zinc
Entertainment
Estate Agents
Farming and Fruit Growing
Fibreglass and Plastics
Fish, Aquaculture and Marine Products
Fuel Merchants
Furnishing Trades
Health and Fitness Centres
Horticulturists
Hospitals
Hotels, Resorts, Hospitality and Motels
Independent Schools (Non-Teaching) Staff
Insurance
Medical Diagnostic Services (Private Sector)
Insurance
Laundry and Dry Cleaning
Licensed Clubs
Meat Retailing
Meat Processing Industry
Medical Practitioners (Private Sector)
Metal and Engineering Industry
Miscellaneous Workers
Monumental Masons
National Training Wage (Tasmanian Private Sector)
Nursing Homes
Optical Industries
Pasminco Rosebery (Mining)
Photographic Industry
Plant Nurseries
Printers
Produce
Professional Engineers and Scientists (Private Industry)
Public Accountants
Public Vehicles
Quarrymens
Restaurant Keepers
Retail Pharmacy
Retail Trades
Rubber Trades
Security Industry
Shellfish Industry
Shipbuilders
Shipping
Surveyors (Private Industry) (Order 4 of 1998) and  (Order 1 of 1998)
Textile
Timber Merchants
Totalizator Agency
Veterinary Services
Wholesale Pharmaceutical
Wholesale Plant Bakeries
Wholesale Trades
Wireworking