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T8413 T8483 T8624 - 6 July 2000

 

    TASMANIAN INDUSTRIAL COMMISSION

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

    See end of Decision for Awards Varied

    Tasmanian Trades and Labor Council
    (T8413 of 1999)

    Private Sector Awards

    Tasmanian Chamber of Commerce and Industry Limited
    (T8483 of 1999)

    Private and Public Sector Awards

     

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

HOBART, 6 July 2000

Wage Rates - State Wage Case July 1999 - applications to review the Wage Fixing Principles and to vary awards in a manner consistent with the Australian Industrial Relations Commission decision in Print number R1999 Safety Net Review - wages - flow-on of federal safety net adjustment approved - operative date ffpp 1 August 1999 - full review of Wage Fixing Principles - Principles revised - new pay equity principle created

    REASONS FOR DECISION-REVIEW OF WAGE FIXING PRINCIPLES [Previous Decision]

    A. CONTENTS

A. Contents

1

B. Preliminary Matters

2

Introduction

2

Abolition of Wage Fixing Principles

3

Approach

4

History and Statutory Basis of Wage Fixing Principles

5

C. The Wage Fixing Principles

8

1. Introduction

8

2. Structural Efficiency

12

3. Enterprise Bargaining

14

4. Role of the Commission in Enterprise Bargaining

20

5. Minimum Rates Adjustment

24

6. The Award Safety Net

24

7. Previous State Wage Case Increases

26

8. Arbitrated Safety Net Adjustments

27

9. Form of Orders

30

10. Allowances

31

11. Superannuation

35

12. Work Value Changes

36

13. Making and Varying an Award Above or Below the Safety Net

38

14. First Award and Extension to an Existing Award

47

15. Standard Hours

49

16. Award Review Process

50

17. Economic Incapacity

53

D. New Principle

55

Equal Remuneration

55

E. The New Principles

72

    B. PRELIMINARY MATTERS

Introduction

Hearing of these matters recommenced on Friday 7 April 2000. On that occasion the Full Bench, as then constituted, issued certain directions regarding the future conduct of proceedings.1 Those directions invited the parties to present written submissions going to the following issues:

(a)  whether and on what grounds we should abolish the Wage Fixing Principles in their entirety;

(b)  whether and on what grounds we should amend the Wage Fixing Principles by abolishing some principles and/or retaining others with or without amendment.

The Full Bench also decided that proceedings would resume on 9 May 2000. On that day the hearing commenced with a private conference between the parties. As a consequence of that procedure the parties subsequently reported a measure of consent regarding some matters but, as to others, indicated that the Commission would need to arbitrate the outcome.

In that regard, we heard submissions from the parties concerning all the current and proposed Wage Fixing Principles except those concerning paid rates awards, which we deferred pending receipt of written submissions on the subject by Friday 26 May 2000. We said we would hear the parties in respect of those submissions on 31 May 2000.

When the proceedings resumed on that day a debate arose as to whether the responses of the Tasmanian Trades and Labor Council (TTLC) went beyond the scope of the directions issued on 31 May in that they concerned matters other than paid rates awards. After hearing the parties and taking time to consider their submissions we determined the question extempore in the following manner:2

"...Given the objections of the Tasmanian Chamber of Commerce and Industry to the additional written submissions prepared by the Tasmanian Trades and Labor Council, we consider that the only fair manner in which to resolve the question of how the Wage Fixing Principles should be reviewed is to adopt in an amended form the proposition of Mr Willingham for the Minister.

To that end, we have decided the following: all submissions put to date, whether they be written or oral, will be disregarded by the Bench and the parties will be permitted to present complete and final written submissions. The parties are to provide to the Commission and to each other their completed written submissions on all Wage Fixing Principles under review by no later than Tuesday 13 June 2000.

The hearing will be reconvened on Wednesday 21 June 2000 at 9:30am. On that occasion, the parties will not be required to address their own written submissions, however, each party will be given an opportunity to respond to the other parties' written submissions after which the Commission will reserve its decision. We do not expect the hearing to go beyond 21 June 2000."

Abolition of Wage Fixing Principles

No party suggested that we should abolish the Wage Fixing Principles in their entirety. To the contrary there was strong support for retention of the Principles on the grounds that, in brief, they promote consistency and equity and reduce uncertainty. The parties also stressed the importance of the Principles reflecting a contemporary outlook. In the circumstances, we accept the parties' submissions and move to consider whether and on what grounds we should amend the current Wage Fixing Principles.

Approach

Tasmanian Chamber of Commerce and Industry Limited

Any review of the Tasmanian Wage Fixing Principles must occur in the context of the Industrial Commission's jurisdiction. Nevertheless, regard must also be had to similar principles set by the Australian Industrial Relations Commission (AIRC). However, because the Tasmanian Commission operates under a different legislative environment than that of the federal Commission, it is not appropriate to adopt the federal wage fixing principles without "Tasmanianisation".

Over the years the Wage Fixing Principles have been very successful in ensuring a stable industrial relations environment in Tasmania. The system has stood the test of time. It has put the focus on enterprise bargaining while maintaining a secure safety net award system. However, grave fears are held for a continuation of that stability should the Commission "free up" the system by allowing parties to lodge applications to vary awards outside any guidelines and initial tests.

TCCI's proposed principles, except for abolition of provisions dealing with paid rates awards, do not contain substantive wholesale changes. The changes simply propose some "tidying up" and simplification of the current Principles.

Finally, review of the Wage Fixing Principles should be an annual exercise conducted by the Commission in conjunction with each State Wage Case.

Tasmanian Trades and Labor Council

The Commission should retain the Wage Fixing Principles because, in the exercise of its powers, they generally promote consistency and reduce uncertainty. However, the Principles should be amended to reflect contemporary industrial relations and wage developments.

The Principles proposed by TTLC reflect the different statutory regimes that apply in the federal and Tasmanian industrial jurisdictions. They also aim at removing provisions that, for tactical reasons or because of mere pettifogging, thwart good industrial relations by inhibiting realisation of the provisions of the Industrial Relations Act 1984.

Minister for Justice and Industrial Relations

There is logic and benefit in the Commission establishing Wage Fixing Principles that are broadly consistent with those in place nationally. However, in the Tasmanian industrial jurisdiction, wage fixing principles must have a distinctly Tasmanian context.

Wage Fixing Principles should be regarded as an articulation of the criteria - not necessarily exhaustive - that the Commission will apply in respect of any given application. Such Principles should be seen as being of the same kind as those established by the High Court in House v The King3 and by the AIRC in Allied Industries Employees Union of Australia; Ex parte Australian Workers' Union (the Poon Brothers Case)4 in relation to appeals - that is, their primary function is to provide guidance to applicants as to how the Commission will, in general terms, "test" applications. However, the Principles are not a form of constraint on the making of applications.

The Industrial Relations Act 1984 permits the Commission to adopt such procedural criteria as it thinks fit in order to appropriately hear and determine applications. Consequently, the Wage Fixing Principles are an integral aspect of the Commission "communicating its thinking" in respect of those criteria to applicants. Nevertheless, a set of Wage Fixing Principles cannot cover every eventuality because much will depend upon the circumstances of each case. In that context, it is neither possible nor desirable to attempt an exacting and overly prescriptive codification.

Wage Fixing Principles cannot purport to limit or prohibit any statutory right that a party might derive from the Industrial Relations Act 1984. Consequently, the Principles proposed by the Minister remove all reference to statutory rights and obligations; attempt to use plain English expressions; and, where there is an inconsistency with the Minister's view of what the Principles ought to be and do, existing wording has been deleted.

Decision

In recording the fact that there was no support in these proceedings for abolition of the Wage Fixing Principles,5 we expressly acknowledged "the strong support for retention of the Principles" and the parties' emphasis that the Principles should reflect "a contemporary outlook". Accordingly, we accept the parties' submissions that the Wage Fixing Principles should continue in operation, albeit amended as necessary to reflect a distinctly Tasmanian context while being, at the same time, broadly consistent with similar guidelines that are currently in place nationally.

History and Statutory Basis of the Wage Fixing Principles

Tasmanian Chamber of Commerce and Industry Limited

History: Before enactment of the Industrial Relations Act 1984, the Industrial Relations Act 1975 provided for the determination of private sector industrial award arrangements in Tasmania. Under that legislation the Office of the Chairman of Industrial Boards performed a role somewhat similar to that of the present Tasmanian Industrial Commission.

Several attempts by employers within that jurisdiction to have the Chairman of Industrial Boards formally adopt the wage fixation guidelines of the then Australian Conciliation and Arbitration Commission failed because the Chairman ruled that the Act did not permit him to fetter the actions of industrial boards. Indeed, at that time and up until 1983, there was no statutory requirement for an industrial board or the Chairman to have regard to the public interest in determining any particular matter. In 1983, however, Parliament amended the Industrial Relations Act 1975 to include a requirement for the Chairman to have regard to the public interest. That provision, so far as it is relevant for present purposes, is substantially identical to the provisions of Section 36 of the Industrial Relations Act 1984.

In matter CR No 1 of 1983, an application by TCCI for a common rule hearing to determine appropriate wage fixation guidelines in Tasmania, the Chairman of Wages Boards issued an expression of opinion that, in effect, declared the purpose and foundation of the Wage Fixing Principles or Guidelines, as they were then known. That is to say, they are the Commission's statement of the public interest requirements (at least in part) of both the then legislation and the current Industrial Relations Act 1984.

The measure of restraint inherent in a set of wage fixing principles is specifically designed to limit the capacity of parties, who obtain the benefit of a centralised system, to obtain other benefits outside that system. These factors are borne out by the many State and national wage case decisions taken since 1983. The restraint inherent in wage fixing principles and the benefit that flows from them of ensuring wage increases are kept within reasonable limits are very much matters of public interest. That concept is embodied in many of the State Wage Case decisions of this Commission, in particular the decisions of April 1985, November 1985, July 1986, April 1987 and September 1988.

The 1988 decision is also authority for the proposition that there is need for a significant level of consistency between federal and State systems, particularly given the economic factors examined at national level. A similar view is to be found in the State Wage Cases of August 1991 and February 1992.

In the December 1994 State Wage Case the parties, by consent, urged the Commission to adopt a "Tasmanianised" version of the federal principles to accommodate the different legislative schemes underpinning the two systems. That decision also demonstrates that, even in the face of the emergence of significant differences between State and federal industrial legislation, the desire of the parties and the Commission was to ensure that, as far as practicable, consistent principles should apply. That was the position that also applied in the 1997 and 1999 State Wage Cases, even though in the latter case there was no consensus between the parties.

In summary the cases show that, since 1983 at least, the Tasmanian Industrial Commission has tended to act in a manner broadly consistent with, although not identical to, the Australian Industrial Relations Commission. The question of commonality or uniformity is even more important given the finding of the July 1999 State Wage Case that "The uncontested assumption before us is that awards of the Federal Commission cover a substantial majority-within the range of 63-75 percent of Tasmanian employees".

Statutory Basis of the Wage Fixing Principles: The power of the Commission to make wage fixing principles resides in two different sections of the Industrial Relations Act 1984. In the first place, Section 36(2)(c) of the Act clearly provides the statutory underpinning for the contention that such principles are, in part at least, an expression of the public interest.

Second, Section 35(1)(d) empowers a Full Bench of the Commission "...to make an award ... making provision for, or altering, rates of wages generally or in the manner in which rates of wages generally are to be ascertained". In addition, Sections 35(7) and 35(8) put beyond doubt the Commission's capacity to make "common rule" type decisions, such as State Wage Case decisions, "... subject to such conditions as the Full Bench considers appropriate". Those conditions could take the form of a codified set of wage fixing principles.

It is sometimes suggested, also, that the Wage Fixing Principles might be ultra vires the Industrial Relations Act 1984 in that they arguably tend to fetter the discretion otherwise available to Commission members under that Act. However, it is clear from the judgment of the High Court of Australia in R V Moore; Ex parte Australian Telephone and Phonogram Officers Association (1982) 148 CLR 600 - which considered the status of the then federal wage fixing guidelines-that, even if the guidelines did have that effect, they were nevertheless a valid exercise of jurisdiction provided the Commission applied them consistently from case to case. The Tasmanian Industrial Commission should adopt a similar approach.

Decision

We have no doubt that the Wage Fixing Principles as determined from time to time by Full Benches of this Commission in accordance with the provisions of Sections 25 and 35 of the Industrial Relations Act 1984 are a valid expression of the public interest of the kind referred to in Section 36(2)(c) of the Act. It is appropriate to quote the whole of sub-section (2) so that paragraph (c) can be seen in context:

"(2)   In deciding whether a proposed award or a proposed industrial agreement would be consistent with the public interest, the Commission shall -

    (a)  consider the economic position of any industry likely to be affected by the proposed award or proposed agreement;

    (b)  consider the economy of Tasmania and the likely effect of the proposed award or proposed agreement on the economy of Tasmania with particular reference to the level of employment; and

    (c)  take into account any other matter considered by the Commission to be relevant to the public interest."

In our opinion Wage Fixing Principles determined by a Full Bench of the Commission, after hearing the parties in relevant proceedings, clearly constitute in the context of Section 36(2)(c) of the Act a "matter ... relevant to the public interest" that the Commission shall take into account when satisfying itself, in terms of Section 36 as a whole, that a matter before it is consistent with the public interest. Consequently, we are of the view that Section 36(2)(c) of the Industrial Relations Act 1984 provides the necessary statutory basis for any Wage Fixing Principles that the Commission might establish from time to time in the course of determining a matter or matters properly before it in accordance with the provisions of the Act.

C. THE WAGE FIXING PRINCIPLES

In our consideration of the parties' submissions concerning amendment of the Wage Fixing Principles we deal with the arguments by reference to the nomenclature and order of the existing Principles.

1.  Introduction

Tasmanian Chamber of Commerce and Industry Limited

The new introductory Principle should take the following form:

"1.     INTRODUCTION & OVERVIEW

    This statement of principles has been formulated to guide the parties operating within the jurisdiction of the Tasmanian Industrial Commission.

    These principles have been developed to regulate the dual aims of providing a secure, relevant and consistent award framework of wages and working conditions and to encourage the development of equitable and workable workplace bargaining relationships between employers, employees and their unions.

    The award system provides a safety net to underpin workplace bargaining and to protect employees who are unable to reach an agreement while maintaining an incentive to bargain for such an agreement."

The introduction, amended as proposed, provides a clear statement of the purpose of the Wage Fixing Principles. It also informs the parties how to utilise the Principles to provide a relevant safety net for wages and conditions of employment in the development of workplace bargaining agreements. This approach reflects the dual aims of the Principles compared with the existing Introduction, which places a stronger emphasis on the development of principles to encourage enterprise bargaining.

The word "Overview" has been added to the title of the Principle to widen its explanatory nature and the wording changed to reflect the Commission's role, as set out in the long title to the Act, to "encourage workplace bargaining". In that regard TCCI rejects TTLC's submission that the Commission does not have the power to regulate bargaining.

TCCI agrees that all applications must be dealt with in accordance with the provisions of the Industrial Relations Act 1984. However, because the Wage Fixing Principles are a guide for the parties, they should go further than merely restating relevant statutory provisions-R v Moore; Ex parte Australian Telephone and Phonogram Officers Association (1982) 148 CLR 600.

TCCI does not agree with the views expressed by TTLC that the Wage Fixing Principles have thwarted good industrial relations. To the contrary they have ensured stability in the Tasmanian industrial relations system, a view supported by data included in a Tasmanian Government publication-The Competition Index - A State by State Comparison-which observes that Tasmania has the lowest level of industrial disputation in Australia.

TTLC's proposed Introduction does not go to the issue of the system under which the parties must operate, i.e. the safety net award system that underpins enterprise bargaining. While TCCI does not necessarily disagree with the intent of TTLC's proposed Introduction it must, however, contain statements regarding safety net awards and workplace bargaining.

TCCI does not have a problem with the Minister's proposed Introduction, other than to suggest that it is too brief. The Principle should also address the duality of the current system, i.e. workplace bargaining underpinned by a safety net award system.

Tasmanian Trades and Labor Council

The new introductory Principle should take the following form:

"1.     INTRODUCTION

    This Statement of Principles arises out of the most complete review of the principles for many years.

    They are issued recognising that there is a need to maintain a contemporary and relevant statement as to how the Commission will exercise the statutory powers available to it, in relation to matters touching on issues covered by this Statement of Principles.

    It is the view of the Commission that the power in section 35(7) to give effect a decision of the Australian Commission that is applicable to the wages payable, in such a manner and subject to such conditions as the Commission considers appropriate, is wide enough to formulate principles which are consistent with the statutory framework of the Act.

    Such principles should not prevent the exercise of the Commission's jurisdiction.

    In doing so the Commission recognises that the legislative regime under the Industrial Relations Act 1984 is different to that of the Workplace Relations Act 1996.

    The Commission recognises that users of the system need to be aware of the approach of the Commission to its statutory responsibilities, in a concise and simple manner.

    These Principles aim to achieve this end."

The legislative regimes that govern the operations of the Australian Industrial Relations Commission and the Tasmanian Industrial Commission are significantly different. That fact must impact upon the nature of any wage fixing principles established in Tasmania.

Perhaps the most significant difference between the two jurisdictions is that the federal Statement of Principles includes principles that encourage enterprise outcomes and limit the extent to which labour costs can differ from established award safety net levels-other than in accordance with those Principles. Federal legislation provides the basis for such principles.

In Tasmania, however, the statutory framework does not give the Commission power to regulate bargaining. The Commission's sole power in that regard is to approve or refuse to approve agreements pursuant to Section 55 of the Act. Consequently, it is important to ensure that any wage fixing principles established pursuant to the Industrial Relations Act 1984 do not prescribe procedures that limit the Commission's statutory obligations. All applications must be dealt with by the Commission according to the provisions of that Act.

The proposed Introduction and the suggested draft Principles as a whole aim to remove provisions that have been applied to thwart good industrial relations by inhibiting realisation of provisions of the Act itself.

TCCI's proposed Introduction is too narrow an expression of the objective of the Wage Fixing Principles. The purpose of the Principles is not simply to provide a secure, relevant and consistent award framework or to encourage workplace bargaining relationships.

TCCI's proposal to delete from the current Principle the word "observe" and to insert, instead, the word "guide" is a significant change that the Commission should reject. The differences in meaning between the two words are very significant and no cogent reasons have been advanced in support of the change. Clearly, if the Principles are there to "guide" as distinct from being "observed", the chaos referred to by Gibbs CJ in R v Moore; Ex parte Australian Telephone and Phonogram Officers Association (1982) would or could arise. Nowhere in that decision is there any support for the view that a Commissioner should be able to move away from the Principles. In fact, the High Court held that the Principles would need to be followed "to avoid chaos".

The phrase "enterprise bargaining", in terms of the Industrial Relations Act 1984, can only apply to Part IVA agreements. TCCI's use of the phrase "workplace bargaining" is also wrong. For reasons already advanced, the proposed Principle cannot be applied to Section 55 agreements. Acceptance by the Commission of TCCI's proposal would compound the existing error and downgrade the status of any new principles.

The last paragraph of TCCI's proposed Introduction seeks to assign to the Commission a role for which there is no statutory underpinning. In that regard the proposed Principle would prevent or fetter the Commission's exercise of its statutory jurisdiction.

No reliance can be placed on Section 61 of the Act, as suggested by TCCI elsewhere in these proceedings, because the provision does not refer to the making of either industrial agreements or Part IVA agreements but specifically to private arbitration.

On the matter of pattern or enterprise bargaining Section 55 of the Act plainly creates a capacity for there to be a form of industry wide bargaining and that "industry wide" could in fact have application across particular industries.

In all the circumstances, the Commission should not agree to TCCI's proposed Principle.

Minister for Justice and Industrial Relations

The new introductory Principle should take the following form:

"1.     INTRODUCTION

    These Principles are intended to provide criteria and guidance in relation to claims for changes to wages and conditions of employment."

Decision

TCCI placed considerable emphasis on what it calls "the dual aims" of the Wage Fixing Principles, i.e. in brief, a safety net award system that maintains an incentive for workplace bargaining. In our opinion, that proposal puts too narrow a focus on the scope of the Principles that, taken as a whole, extend to cover a number of matters that appear to us to be outside the so-called "dual aims".

On the other hand TTLC's proposal, as we view it, tends to be unnecessarily lengthy in that it contains references to matters that, as a matter of relevance, are either self evident statements that do not require further emphasis or explanatory statements that are arguably not to the point of the Wage Fixing Principles.

We believe the introduction to the Principles should be brief and to the point. For that reason, we are of the opinion that the Minister's proposal has much to offer, although as to one aspect we believe it is, indeed, too brief. In that regard we accept what was effectively TTLC's contention: that the Principles should be expressed in terms that reflect the Commission's duty to take them into account in accordance with Section 36 of the Act - an issue we have already discussed.6

Taking the above considerations into account we accept the Minister's suggested principle, but amend it to include a statement to the effect that the Principles are to be "observed" rather than be seen merely as a "guide". New Principle 1 will take the following form:

"1.     INTRODUCTION

    These Principles, to be observed in the jurisdiction of the Tasmanian Industrial Commission, are intended to provide criteria and guidance to the parties in relation to claims for changes to wages and conditions of employment."

2.  Structural Efficiency

Tasmanian Chamber of Commerce and Industry Limited

A new Principle in the following form should replace the existing Structural Efficiency Principle:

"2.     PREVIOUS STATE WAGE CASES

    Increases available under previous State Wage Case decisions such as structural efficiency adjustments, minimum rates adjustments and previous arbitrated safety net adjustments will, on application and subject to any conditions previously applying thereto continue to be accessible.

    The spacing of increases to awards by previous State Wage Case increases shall be determined by agreement between the parties to any particular award or failing agreement by decision of the Commission."

The suggested principle simplifies the existing Structural Efficiency Principle, in which measures required to satisfy the Principle are set out in detail. Because it is unnecessary, that amount of detail should be reduced in favour of a more concise set of principles.

The present Structural Efficiency Principle is not included as such, but is referred to generically in the suggested principle, which provides a far more concise reference to all increases available under previous State Wage Case decisions. Parties can refer to those earlier decisions for all necessary details.

The proposed principle incorporates, with minor amendments, the substantive effect of existing Principle 7-Previous State Wage Case Increases and Principle 5-Minimum Rates Adjustment.

There is general agreement between TCCI, TTLC and the Minister in relation to structural efficiency. However, TCCI believes that the current principle should be referred to in a generic sense along with similar references to minimum rates adjustments and safety net adjustments.

Tasmanian Trades and Labor Council

The Commission should delete the existing principle and replace it with the following principle:

"2.     PREVIOUS STATE WAGE CASES

    Increases available under previous State Wage Case decisions relating to minimum rates adjustments and safety net adjustments will, on application, continue to be accessible. Such applications will be determined using the relevant principles contained in those decisions, notwithstanding that all earlier statements of principle are otherwise set aside."

There is no need for a Structural Efficiency Principle. The existing Principle, which is superfluous, also contains the potential to constrain application of the Industrial Relations Act 1984. Consequently, it should be deleted.

Removal of the Principle in its entirety will not prevent parties from applying to the Commission, pursuant to Section 23 of the Act, to deal with any of the matters for which the existing Structural Efficiency Principle makes provision. Section 36 of the Act ensures that the Commission must test any proposed award variation for compliance with relevant public interest requirements.

The proposed principle also incorporates the substantive effects of existing Principle 5-Minimum Rates Adjustment and Principle 7-Previous State Wage Case Increases.

Minister for Justice and Industrial Relations

This Principle should be deleted.

Decision

We accept the parties' contentions that there is no longer need for a specific and detailed Structural Efficiency Principle. We also agree with the submissions of TCCI and TTLC that, in place of the existing principle, there should be a new principle that simply consolidates and brings forward references to structural efficiency, minimum rates adjustments and safety net adjustments, and associated arrangements and conditions. The new Principle 2 will take the following form:

"2.     PREVIOUS STATE WAGE CASES

    Increases available under previous State Wage Case decisions relating to structural efficiency adjustments, minimum rates adjustments and safety net adjustments will, on application, continue to be accessible. Such applications will be determined using the relevant principles contained in those decisions, notwithstanding that all earlier statements of principle are otherwise set aside.

    The spacing of increases to awards determined by previous State Wage Case decisions may be determined by agreement between the parties to any particular award or failing agreement by decision of the Commission."

3.  Enterprise Bargaining

Tasmanian Chamber of Commerce and Industry Limited

The existing Principle should be renamed and renumbered as follows:

"5.  WORKPLACE BARGAINING

5.1  When approving workplace 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.

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

5.2.1 the proposed award or agreement does not result in a reduction in ordinary time earnings, or departure from parental leave standards in test case proceedings and Commission standards of hours of work and annual leave with pay.

5.2.2 where parties to an agreement reached through negotiations by 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."

The proposed principle should be inserted into the Wage Fixing Principles as Principle 5 to provide a more logical sequence and to give effect to the dual role of the Principles. The name of the Principle has also been changed to reflect the Commission's role, as set out in the long title to the Act, to "encourage workplace bargaining".

It is an imperative of the present wage fixing system that Section 55 agreements should remain the primary vehicle for agreement making, with the award safety net underpinning such agreements. At present, however, the Commission is unable to approve a number of agreements because of a strict application of the current Principle.

Consequently, to facilitate agreement making and to allow the Commission greater flexibility when approving agreements pursuant to Section 55 of the Act, the proposed principle does not contain existing paragraphs 3.2.1 (continuing implementation of structural efficiency), 3.2.2 (wage rate increases to be based on actual implementation of agreed efficiency measures), 3.2.3 (negotiation of agreements through a single bargaining unit), 3.2.4 (detailing wage increases involved for each classification where another award or agreement is involved) and 3.2.5 (specification of the relevant minimum rates award classification on which the key classification in the new agreement is calculated). Existing paragraph 3.2.6 (agreement must not result in a reduction of ordinary time earnings) has also been amended to remove the reference to limitation of the rights of employers and employees regarding termination, change and redundancy-rights for which the Industrial Relations Act 1984 now makes specific provision.

Because Section 36 of the Act requires all agreements to be considered having regard to the public interest, that provision would enable the Commission to refuse to approve any agreement that it found did not accord with the public interest.

The Commission should retain the bargaining principle in the abbreviated form proposed by TCCI because it will provide continued focus on workplace bargaining as a process for permitting wages growth and improved business performance in an environment free from over-burdensome controls.

The Commission does have a role in workplace bargaining. Consequently, it should not delete the Principle but, instead, focus the parties on the use of Section 55 agreements as the method of formalising agreements in accordance with the long title to the Act.

The TTLC's submission clearly aims at taking bargaining away from the individual workplaces or employers for the purpose of developing pattern or industry-wide bargaining. Such an objective is not in the public interest.

The TTLC submission also continues the organisation's obsession with Part IVA agreements. In that regard, TCCI has never and will not in the future regard the current Enterprise Bargaining Principle as having any relevance whatsoever to those agreements for which Part IVA of the Act makes provision. Paragraph 3.2.3 of the current Principle, for example, flowed word for word from the relevant federal Principle long before Part IVA agreements became law in Tasmania.

Contrary to TTLC's submissions, the Act does give the Commission a role during the negotiation process of an agreement. That occurs either through Section 29 (Hearings for settling disputes) or Section 61 (Private Arbitration). In that context referring to Statutory Interpretation in Australia, 3rd Edition, TTLC's submission is that the long title to the Act is no more than a parliamentary traffic control device. However, the 4th Edition of the same publication suggests that the long title to an Act certainly has relevance as to how, in this case, the Commission and the parties will read the Industrial Relations Act 1984. In that context the role of the Commission to "encourage workplace bargaining", as it appears in the long title to the Act, certainly has relevance to the way the Commission should frame the Wage Fixing Principles.

TCCI agrees with TTLC that the Commission must consider the public interest tests of Section 36 of the Act when considering an industrial agreement. However, the Commission must also give consideration to the Wage Fixing Principles because they are an expression in part of the Commission's view of public interest - falling, as they do, within the scope of Section 36(2)(c) of the Act, i.e. "any other matter considered by the Commission to be relevant in the public interest".

The Minister's proposed new Principle includes a number of paragraphs of the existing principle (3.2.2, 3.2.3, 3.2.4, 3.2.5 and 3.2.6) that TCCI believes should be deleted for reasons already advanced. In addition, the proposed principle also includes the "no disadvantage test" that TCCI believes should remain part of Principle 4, amended as suggested.

The glaring omission from the Minister's suggested new Principle is the reference in the current principle "that the Commission will have regard for the primary consideration that such agreements should formalised as Section 55 registered industrial agreements". TCCI believes, for reasons already advanced in relation to workplace bargaining and the long title of the Act, that the statement should continue to be the primary focus of the principle.

Tasmanian Trades and Labor Council

The current Principle should be deleted because parties are neither assisted nor guided by the retention of a Principle that concerns matters that the Commission has no power to regulate.

Principle 3, in its present form, fails to differentiate between "enterprise agreements" and "industrial agreements" - the former can be made as a result of enterprise bargaining but the latter, for which Section 55 of the Act makes provision, need not result from enterprise bargaining. The only reference to "enterprise bargaining" in the Industrial Relations Act 1984 is found in Part IVA, which is outside the control of the Industrial Commission. Part IV of the Act, on the other hand, addresses agreements between a union and an employer, or employers, about an industrial matter or matters. There is no requirement for such an agreement to be negotiated in or about an enterprise. The whole thrust of Part IV is about agreements between unions and employers.

The statutory framework that deals with industrial agreements is properly characterised as providing the machinery whereby the Commission may process applications lodged by parties after they have reached agreement. That framework does not give the Commission a role during the negotiating process. The conclusion to be drawn from this fact is that Parliament did not intend the Commission to have such a role.

While the long title of the Act states that, among other things, the Commission has jurisdiction "to encourage workplace bargaining", the legislation fails to provide any statutory provisions that would enable the Commission to achieve that objective - neither Section 61 nor Section 29 appear to aim at matters arising out of Section 55. In any event, the long title cannot be used to paper over a decision of Parliament. The importance of the long title "...really lies in Parliamentary procedure. It is the long title that forms the basis of the resolution whether the Bill for an Act should be given a first, second etc. reading ... More importantly, debate is confined by the title ...".7 Consequently, the long title is no more than a parliamentary traffic control device.

The extract from the 4th Edition of Statutory Interpretation in Australia, upon which TCCI relies, is unchanged from the 3rd Edition. In any event the observations do not assist TCCI. The "ambiguity in the language" approach of Birch v Allen (1942) 65 CLR 621 cannot apply because there are no provisions in Section 55 of the Act that go to matters dealt with by the long title - there is no language and, consequently, there is no ambiguity.

In the Estate of Groos [1904] P 269 the Court refused to allow the long title to override the words of the Act upholding the principle of statutory interpretation that a specific provision will always override a general provision. In general terms, the long title of the Act in question contradicted a specific provision in relation to domicile.

R v White (1899) 20 LR(NSW) 12 illustrates the use of the long title to an Act as an aid to interpretation. The current circumstances do not constitute a case of interpretation any more than they reflect facts applicable to R v Bracknell Justices; Ex parte Griffiths [1976] AC 314, which concerned a consolidating Act to which the rules of interpretation do not apply.

In Lambe v Director-General of Social Services (1981) 4 ALD 362 the argument was that according to the long title the purpose of the Social Security Act 1947 (Cwlth) was to pay benefits to particular categories of persons and not with alleviating need generally. The Court held that the argument could not prevail simply because the legislation sought to limit the benefits payable.

In Amatek Ltd v Googoorewon Pty Ltd (1993) the Court held that, being part of an Act which is to be read as a whole, the long title can give meaning to other provisions. In the present case, the other provisions simply do not exist.

The final two cases relied on by TCCI - No 20 Cannon St v Singer & Friedlander Pty Ltd [1974] 1 Ch 229 and Cole v Director-General of Department of Youth and Community Services 91987) 7 NSWLR 541 - are both distinguishable from the circumstances of the present case because they deal with the purported exercise of some additional statutory power.

None of the cases relied on by TCCI support its submissions regarding the long title to the Act.

In approving or refusing to approve an industrial agreement, Section 55(4) of the Act does not require the Commission to have regard to wage fixing principles. In the exercise of its powers under Section 55(4), the Commission is bound only by Sections 20 (Commission to act according to equity and good conscience) and 36 (Commission to be satisfied of public interest). Accordingly, if existing Principle 3 seeks to regulate the exercise of power under Section 55 then it seeks to improperly fetter the Commission's powers under Section 55(4) of the Act. For example, if the Commission should refuse to approve an agreement because it failed to meet a requirement of existing Principle 3, when it otherwise met the requirements of Section 36 of the Act, the decision would be appealable.

The forms of agreement regulated by Part IV and Part IVA of the Industrial Relations Act 1984 each have separate and distinctly different statutory requirements. However, the current Principle seeks to have the two schemes meet, which is directly contrary to the clear meaning and intention of the Act. Removal of Principle 3 cannot impact on the operation of Part IV of the Act and will serve to replace confusion with clarity.

For reasons already advanced, TTLC does not support the proposed principle submitted by TCCI.

As to the Minister's proposal it, too, fails to understand the terms of Section 55. If the Minister has a genuine concern in relation to the issue of workplace bargaining or bargaining at an enterprise level, he has the ability to seek to amend the law to put the matter beyond doubt.

Minister for Justice and Industrial Relations

This Principle should be deleted and the following new principle inserted where appropriate:

"X.  ENTERPRISE AGREEMENTS AND ENTERPRISE AWARDS

X.1 An enterprise agreement (approved and registered under s.55) or an enterprise award should fulfil the following requirements:

X.1.1 any wage rates arising from enterprise bargaining outcomes (apart from rates that may be approved on the basis of other principles) which exceed the rates prescribed in the relevant award must be based on the actual implementation of agreed efficiency measures designed to promote productivity and efficiency;

X.1.2 the agreement or award has been negotiated through a single bargaining unit in an enterprise or section of an enterprise;

X.1.3 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 in each classification;

X.1.4 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 award on which the actual rate prescribed for the key classification in the new agreement or new award is calculated;

X.1.5 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, and that the agreement or award, taken as a whole, will not disadvantage the employees concerned unless the Commission is satisfied that circumstances justify otherwise;

X.1.6 for purposes of X.1.5 above, 'disadvantage the employees concerned' means by reference to the safety net of wages and conditions of employment as detailed in Principle 6-The Award Safety Net."

Decision

Concerning TCCI's submission, we are of the opinion that, having regard to the submissions of TTLC and the Minister, it is not appropriate for this Commission to emphasise the primacy of one method of dealing with outcomes of the parties' industrial negotiations to the exclusion of other methods available to them as a matter of statutory right. We believe it is for the parties to decide for themselves the nature of any application that they might wish to make pursuant to the Act and for the Commission to deal with such applications in the manner directed by the Act.

Given the above observations we are of the view that paragraph 5.1 of TCCI's proposal is arguably beyond the Commission's power in that it attempts to fetter the statutory rights of the parties regarding the making of applications pursuant to the Act. Paragraph 5.2, in our opinion, merely specifies matters that we would expect the Commission to take into account in any event in relation to the public interest. Accordingly, we have formed the view that there is nothing in the form of principle proposed by TCCI that, as a matter of substance, supports its retention.

Turning to the submissions of TTLC, we are not persuaded that the Commission has no statutory power in relation to bargaining. The Commission has clear jurisdiction in relation to industrial disputes that are "likely to arise or [are] threatened or impending"¾Section 3 and, in relation to such disputes by reason of Section 20, to:

"... do such things as appear to it to be right and proper for affecting conciliation between parties, for preventing and settling industrial disputes, and for settling claims by agreement between parties."

In the same context we also note that the long title to the Act mentions, among other things, the jurisdiction of the Commission to settle industrial disputes. In our opinion, any party to an industrial dispute may invoke the Commission's jurisdiction, as outlined above, by simply lodging an application pursuant to Section 29 of the Act - regardless of whether they intend to formalise the outcome of that process by means of a Section 55 or some other kind of application, if any at all.

For the same reasons we also reject TTLC's contention that there are no provisions in the Industrial Relations Act 1984 upon which the Commission might rely in asserting that, looking at the long title to the Act, it has power "to encourage workplace bargaining". Given the Commission's jurisdiction, as discussed above, we believe that TTLC's assertion is an argument without substance. Similarly without substance, we think, is TTLC's assertion that the current principle confuses the provisions of Part IV and Part IVA of the Act. We would have thought it clear beyond doubt that Part IVA is not within the jurisdiction of the Tasmanian Industrial Commission, but a matter for the Enterprise Commissioner. In our opinion it is within power and appropriate for the Commission to assert jurisdiction to encourage "workplace bargaining" - which phrase we adopt in preference to "enterprise bargaining" so as to better distinguish between the Commission's jurisdiction and that of the Enterprise Commissioner pursuant to Part IVA of the Act.

The Minister's proposal, removes the objectionable "primacy" direction favoured by TCCI. However, in our opinion the proposal is too prescriptive in that it seeks to retain parts of the existing principle that TCCI submitted should be removed to improve the Commission's flexibility in approving agreements. As well, the proposed principle includes paragraphs that we believe are no more than issues that the Commission will in any event consider in the public interest context.

Having considered the parties' submissions we have decided to delete current Principle 3-Enterprise Bargaining.

4.  Role of the Commission in Enterprise Bargaining

Tasmanian Chamber of Commerce and Industry Limited

The existing Principle should be renamed and renumbered as follows:

"6.  ROLE OF THE COMMISSION IN WORKPLACE 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.

6.1 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.

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

6.3 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.

6.4 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.

    If:

    (a) the only reason why the Commission must not approve an agreement is that the agreement does not pass the no-disadvantage test; and

    (b) the Commission is satisfied that approving the agreement is not contrary to the public interest;

    the agreement is taken to pass the no-disadvantage test."

Where there is consent between the parties, the Commission should be able to approve an agreement that does not pass the no-disadvantage test if the Commission believes it is in the public interest to do so. In the present vulnerable economic climate there may be situations in which a union might genuinely consent to a Section 55 agreement that is less than the applicable award in circumstances where such an agreement may be appropriate. That action might only be a short term measure to help save a business and jobs - however, the Commission could not approve such an agreement under the existing Wage Fixing Principles. A facility of this nature would be consistent with the provisions of Section 170LT(3) and (4) of the federal Workplace Relations Act 1996.

The proposed principle changes the title of the existing principle - "Workplace" instead of "Enterprise" and paragraph 6.4 now reflects provisions of the Workplace Relations Act 1996. The proposed principle is otherwise identical to Principle 4 of the existing Wage Fixing Principles.

TTLC's position on this Principle reinforces the view of TCCI that the organisation's motivation is to facilitate pattern or industry-wide bargaining. The proposed change in the Commission's focus, from encouragement and facilitation of enterprise specific outcomes to the encouragement and facilitation of the making of agreements that may include bargaining at an enterprise level is designed to facilitate pattern or industry-wide bargaining - an outcome that would be at odds with the long title to the Act. The Commission should not allow such an outcome to occur.

TTLC also seeks, inconsistently, to retain the "no disadvantage test" - for which there is no statutory backing - even though it submitted strongly in relation to Principle 3 that the Commission cannot fetter the exercise of its discretion in such circumstances. In that regard the Commission should consider TCCI's proposal, which gives the Commission an all-encompassing capacity to approve any sort of agreement between an employer and a union.

TCCI believes, contrary to the Minister's submission, that Principle 4 should be retained, including reference to the Commission's role in workplace bargaining in accordance with the long title to the Act.

Tasmanian Trades and Labor Council

Existing Principle 4 should be consequentially amended to reflect the arguments advanced in support of deleting existing Principle 3 - Enterprise Bargaining. The Principle, as amended, should take the following form:

"ROLE OF THE COMMISSION IN AGREEMENT MAKING

The Commission will continue to play an active role in encouraging and facilitating the making of agreements that may include bargaining at an enterprise level.

When approving an 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."

TCCI's proposed principle, particularly paragraphs 6.4(a) and (b), seeks to import a "no disadvantage test" that, while it may have meaning in relation to the federal Workplace Relations Act 1996, has no statutory basis in the Industrial Relations Act 1984. The current expression of the public interest test in approving or not approving an agreement is that the agreement or award, taken as a whole, will not disadvantage the employees concerned. In applying that test the Commission may determine that it should approve an agreement on a temporary basis or for a short term to ensure that employees retain their jobs. Consequently, taken as a whole, the agreement would not disadvantage the employees concerned.

The use of relevant awards to determine whether employees will be disadvantaged is based on sound public policy. The Industrial Relations Act 1984, in Part III, provides a scheme for the making and enforcement of awards - a legislative manifestation of the long title to the Act dealing with "the making of awards".

Nowhere in the Act is there any provision that empowers the Commission to read down the status or primacy of awards in circumstances that involve Section 55 agreements.

In exercising the power contained in Section 55, the Commission must consider each case on its merits. Such a process cannot be fettered by the introduction of a "no disadvantage" test of the kind proposed by TCCI.

For reasons already advanced, TTLC does not support the proposed principle submitted by TCCI, which the Commission should reject.

Minister for Justice and Industrial Relations

This Principle should be deleted.8

Decision

For reasons discussed above in relation to former Principle 3¾Enterprise Bargaining, we believe the Commission is acting within power in asserting jurisdiction to encourage workplace bargaining. We have also said that we prefer the phrase "workplace bargaining" to that of "enterprise bargaining". Consequently we believe that, even though we have decided to delete the former Enterprise Bargaining Principle, there should continue to be a principle that sets out the role of the Commission in workplace bargaining. That view appears to reflect the views of TCCI and TTLC, although it is inconsistent with the Minister's approach, i.e. that the current Principle should be deleted; however, we note that the Minister favoured retention of the "disadvantage" provisions of the current principle, since clauses to that effect were included in the proposed "Enterprise Agreements and Enterprise Awards" principle.

While we agree with all parties, including the Minister, that the principle should contain a reference to protecting employees from disadvantage, we do not accept the specific proposal to that effect put to us by TCCI. In our view it would be unwise for us to adopt a set of words that, for effect, relies upon a federal statutory expression that has no counterpart in the Industrial Relations Act 1984.

In the circumstances, we have decided to retain Principle 4 in the following amended form:

"4.     ROLE OF THE COMMISSION IN WORKPLACE BARGAINING

    The Commission will continue to play an active role in encouraging and facilitating workplace bargaining. In that regard, in the exercise of its statutory responsibilities pursuant to Section 36 of the Industrial Relations Act 1984, the Commission will act to ensure that the proposed award or agreement does not result in a reduction in ordinary time earnings, or departure from parental leave standards or hours of work or annual leave with pay, and the agreement or award, taken as a whole, will not disadvantage the employees concerned unless the Commission is satisfied that circumstances justify otherwise.

    For the above purpose, 'disadvantage the employees concerned' means by reference to the safety net of wages and conditions of employment as detailed in Principle 4-The Award Safety Net."

5.  Minimum Rates Adjustment

Tasmanian Chamber of Commerce and Industry Limited

Existing Principle 5 is not included as such in the suggested Wage Fixing Principles because its substantive effect is incorporated in proposed new Principle 2¾Previous State Wage Cases.9 In effect, there is no disagreement between TCCI, TTLC and the Minister regarding this Principle.

Tasmanian Trades and Labor Council

Principle 5 should be retained, but significantly shortened so that it states, simply, that the Minimum Rates Adjustment principle will continue in operation and, where appropriate, apply. The substantive effect of existing Principle 5 is incorporated in proposed new Principle 2 - Previous State Wage Cases.10

Minister for Justice and Industrial Relations

This Principle should be deleted.

Decision

We accept the submissions of all parties that the effect of existing Principle 5 - Minimum Rates Adjustment should be briefly restated, as we have done, in proposed new Principle 2 - Previous State Wage Cases. Accordingly, we have decided to delete existing Principle 5.

6.  The Award Safety Net

Tasmanian Chamber of Commerce and Industry Limited

This Principle, amended only to replace the word "enterprise" with "workplace", should be retained and renumbered as Principle 3:

"3.   THE AWARD SAFETY NET

    Existing wages and conditions in the relevant award or awards of the Commission shall constitute the safety net underpinning workplace 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."

The renumbering of this principle continues the more logical sequencing of the Wage Fixing Principles to reflect their dual purpose, i.e. the provision of a secure, relevant and consistent award framework and to encourage development of equitable and workable workplace bargaining relationships.

Except for TTLC's reference to "agreement making", there is agreement between TCCI and TTLC regarding this principle. There is also agreement with the Minister. For reasons already advanced, the appropriate reference should be "workplace bargaining".

Tasmanian Trades and Labor Council

Existing Principle 6 should be consequentially amended to reflect the arguments advanced in support of deleting existing Principle 3 - Enterprise Bargaining and amending existing Principle 4 - Role of the Commission in Enterprise Bargaining. The proposed new Principle, as amended, should take the following form:

    "6. THE AWARD SAFETY NET

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

      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."

      Minister for Justice and Industrial Relations

      The Commission should retain Principle 6 in its existing form, that is:

      "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."

      Decision

      We note that, except for TTLC's preference for the phrase "agreement making" instead of "workplace bargaining" or "enterprise bargaining", there is substantial accord between all parties as to the form of Principle 6 - The Award Safety Net. Given the views we have already expressed regarding the Commission's jurisdiction to encourage workplace bargaining and the appropriateness of the phrase "workplace bargaining" we have decided to accept the form of principle proposed by TCCI, i.e.:

        "6 THE AWARD SAFETY NET

        Existing wages and conditions in the relevant award or awards of the Commission shall constitute the safety net underpinning workplace 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

      Tasmanian Chamber of Commerce and Industry Limited

      Existing Principle 7 is not included as such in the suggested Wage Fixing Principles because its substantive effect is incorporated in proposed new Principle 2 - Previous State Wage Cases.11 There is no difference of substance between TCCI and TTLC regarding this Principle. TCCI`s preference, however, is that the Commission should adopt its proposed form of Principle rather than that of TTLC.

      TCCI believes there is also agreement between the organisation and the Minister regarding this principle, provided that the reference to "wage fixing principles" includes previous Wage Fixing Principles arising out of earlier State Wage Case decisions.

      Tasmanian Trades and Labor Council

      This Principle should be amended to simply state that increases available under previous State Wage Cases will continue to be available on application. The substantive effect of existing Principle 7, amended in that manner, is incorporated in proposed new Principle 2 - Previous State Wage Cases.12

      Minister for Justice and Industrial Relations

      Existing Principle 7 should be amended. The proposed new principle should take the following form:

        "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 State Wage Case safety net adjustments (or similar, however described) will on application continue to be accessible in accordance with the criteria specified in the wage fixing Principles relevant to those increases."

          Decision

          We accept the submissions of TCCI and TTLC that the effect of existing Principle 7 - Previous State Wage Case Increases should be briefly restated, as we have done, in proposed new Principle 2 - Previous State Wage Cases. In that regard we do not ignore the Minister's alternative proposal but simply say, in respect of it, that a separate principle appears to us to be unnecessary in all the circumstances. Accordingly, we have decided to delete existing Principle 7.

          8.  Arbitrated Safety Net Adjustments

          Tasmanian Chamber of Commerce and Industry Limited

          The existing Principle, amended to delete the words "minimum and paid rates" from paragraph 8.1 and to replace the word "enterprise" with "workplace" in paragraph 8.3, should be retained and renumbered as Principle 7:

          "7. ARBITRATED SAFETY NET ADJUSTMENT

            7.1 All wage rates in private sector awards, junior, apprentice and trainee rates (on a proportionate basis) will be varied to include arbitrated safety net adjustments in accordance with the following schedule, on and from beginning of the first full pay period to commence on or after 1 August 1999:

             

              Weekly Award Wage Rate

                Safety Net Adjustment

            Up Up to and including $510 per week

                $12.00 p.w.

              $ Above $510 per week

                $10.00 p.w.

                  This operative date, however, will only be available in circumstances where:

                      · Existing wage rates in awards have been varied to include the arbitrated safety net adjustment arising out of the July 1998 State Wage Case; and

                      · A period of at least twelve months has elapsed since the wage rates in the award were increased to reflect the first instalment of the safety net adjustment arising out of the July 1998 State Wage Case.

                      In circumstances where an award does not meet the above requirements it may be varied, subject to a separate application to that effect, to incorporate the arbitrated safety net adjustment. However, the operative date of any such adjustment will be determined by the Commission on the basis of the parties' submissions.

                    7.2 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.

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

                    7.4 The safety net adjustment will only be available where the rates in the award have not been increased, other than by safety net adjustments, or as a result of the application of the Minimum Rates Adjustment or Work Value Changes Principles, since November 1991."

                  TTLC's proposed Principle continues to refer to paid rates awards which, the organisation argues, the Commission does not have the jurisdiction to make. The suggested principle also refers to "agreement making" which, for reasons already advanced, TCCI believes should be a reference to "workplace bargaining".

                  Furthermore, the new paragraph 8.5 proposed by TTLC refers to "all awards" which, because it includes public sector awards, is inconsistent with paragraph 8.1, where the reference is to "private sector minimum rates and paid rates awards".

                  In respect of the Minister's suggested principle TCCI notes that it, like that of TTLC, differs from TCCI's proposal by proposing that safety net adjustments should now be included in public sector awards.

                  Tasmanian Trades and Labor Council

                  Principle 8 should be retained in its present form, subject to deleting the words "private sector minimum rates and paid rates" and by replacing the words "enterprise bargaining" in paragraph 8.3 with the words "agreement making". In addition, the following new paragraph 8.5 should be added to deal with the form of orders:

                  "8.5 The Commission shall issue orders varying all awards to give effect to its decision."

                  The addition of the above paragraph adds completeness to both the particular Principle and the Wage Fixing Principles in general.

                  Minister for Justice and Industrial Relations

                  Existing Principle 8 should be retained subject to the following amendments: (a) by deleting from paragraph 8.1 the words "private sector minimum rates and paid rates" and (b) by deleting paragraph 8.3.

                  Decision

                  All the parties were substantially agreed that current Principle 8 should be retained in its present form except for amendments regarding paid rates awards and public sector awards. In particular, however, concerning the latter issue, the Minister proposed that existing paragraph 8.3¾"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" - should be deleted. While TCCI noted the Minister's position in that regard TTLC did not put any submissions to us on the point even though, like TCCI, the organisation's proposed principle sought to retain existing paragraph 8.3. In the circumstances, taking our lead from the fact that all parties agreed that we should delete the words "private sector minimum rates and paid rates" from the first paragraph of the existing Principle, it seems to us to be consistent that existing paragraph 8.3 should also be deleted.

                  Once again, for reasons already advanced, we do not accept TTLC's contentions regarding usage of the phrase "agreement making" instead of "workplace bargaining". We also do not accept TTLC's proposal that there should be a new paragraph 8.5 - Commission to issue orders, etc. We believe it would be inappropriate to include such a provision in the Wage Fixing Principles since it is really an issue for the Commission and the parties to consider having regard to the surrounding facts and circumstances at the particular time.

                  We have decided to retain Principle 8 in the following form, amended as suggested by the parties regarding paid rates and public sector awards:

                  "8.  ARBITRATED SAFETY NET ADJUSTMENT

                  8.1 All wage rates in awards, including junior, apprentice and trainee rates (on a proportionate basis) may be varied from time to time to include arbitrated safety net adjustments in accordance with determinations of this Commission.

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

                  8.3 The safety net adjustment will only be available where the rates in the award have not been increased, other than by safety net adjustments, or as a result of the Minimum Rates Adjustment or Work Value Changes Principles, since November 1991."

                  9.  Form of Orders

                  Tasmanian Chamber of Commerce and Industry Limited

                  TCCI does not seek to retain existing Principle 9 nor does it propose that there should be a new such principle - it simply believes the Principle is unnecessary. The form of orders issued in respect of the last three State Wage Case decisions clearly establishes a form of order that is acceptable to the Commission. In the circumstances, the matter is one that can be adequately dealt with in any further State Wage Case decisions.

                  Tasmanian Trades and Labor Council

                  Existing Principle 9 should be replaced with a simple statement that reflects the requirement for the Commission to determine the form of orders issuing from Safety Net Adjustments or Minimum Rates Adjustments. The proposed new principle should take the following form:

                  "9.     FORM OF ORDERS

                  At the time of issuing orders relating to safety net adjustments or minimum rates adjustments, the Commission will determine the form of orders after hearing submissions from the parties."

                  Minister for Justice and Industrial Relations

                  Existing Principle 9 should be retained subject to the following amendments: (a) by deleting from paragraph 9.2 the words "a minimum rates award or in a paid rates award" and inserting the words "an award" and (b) by deleting paragraph 9.5.

                  Decision

                  Having regard to the parties' submissions we believe we should retain Principle 9 substantially in its current form. We take that view because we are convinced that it is desirable to continue to express arbitrated safety net adjustments as separate amounts in each award. Accordingly, we accept the Minister's form of principle. That proposal reflects the current Principle amended only to remove references to minimum rates and paid rates awards (in existing paragraph 9.2) and to delete paragraph 9.5 entirely (now obsolete). The new principle will take the following form:

                  "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 an award the Commission may on application determine to combine the base rate and the supplementary payment into an award rate. The arbitrated safety net adjustment 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 the Commission."

                    10.  Allowances

                    Tasmanian Chamber of Commerce and Industry Limited

                    Existing Principle 10, renumbered as Principle 8, should be retained in substance but reworded to simplify the provision and to provide a clearer description of the processes involved. The proposed new principle should take the following form:

                    "8 ALLOWANCES

                    8.1 Existing Allowances

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

                    8.1.2 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.

                    8.1.3 Existing allowances of the type referred to in 8.1.2 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.

                    8.2 New Allowances

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

                    8.2.2 No other allowances may be created unless justified by changes in work, new work or conditions and only if justified under the relevant principle. The relevant principle may be either the work value changes or first awards and extensions to existing awards principles.

                    8.2.3 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."

                    The TTLC proposals go further than clarifying the existing Principle. For example, paragraph 10.6 (new service increments) changes existing paragraph 10.2.3 by removal of the word "only" and proposed paragraph 10.5, in a major amendment, does not contain the words "No other new allowances shall be created" that are part of existing paragraph 10.2.2. Because TTLC put no submissions in support of the proposed changes to Principle 10, the Commission should accept TCCI's proposals or, in the alternative, those suggested by the Minister.

                    TCCI believes there is agreement between the organisation and the Minister regarding this principle.

                    Tasmanian Trades and Labor Council

                    Existing Principle 10.1.2 should be expressed more concisely to provide that the adjustment will be equal to the percentage increase that each State Wage adjustment bears to Level 7 of the Metal and Engineering Industry Award. In addition, the Principle should be redrafted to more clearly and specifically state how the Commission will deal with new allowances.

                    "10.  ALLOWANCES

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

                    10.2 Existing allowances which relate to work or conditions which have not changed, including shift allowances expressed as monetary amounts and service increments, may be adjusted by the percentage that each State Wage adjustment bears to the Level 7 - Metal and Engineering Award weekly wage rate at the time that State Wage Case adjustment is made available.

                    10.3 Existing allowances for which an increase is claimed because of changes in work or conditions will be determined in accordance with the relevant provisions of the Work Value Changes Principle of these Principles.

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

                    10.5 New allowances arising out of new work and conditions will be determined in accordance with the Work Value Changes or First Award and Extension to First Award Principles.

                    10.6 New service increments may be awarded to compensate for changes in the work and or conditions and will be determined using the Work Value Changes Principle of these Principles."

                    Minister for Justice and Industrial Relations

                    Principle 10 should be retained in its existing form.

                    Decision

                    After taking into account the parties' submissions, we are satisfied that we should retain the existing Principle, substantially in its present form. In that regard we agree with the submission of TCCI that the TTLC proposal, in some instances, goes further than mere clarification. In any event, we are of the opinion that it is desirable to retain the existing clear distinction between "existing allowance" and "new allowance". In the circumstances, we are prepared to accept TCCI's proposed form of principle, which retains the substance of the existing Principle while removing obsolete provisions and improving clarity of expression. Principle 10 will take the following form:

                    "10.  ALLOWANCES

                    10.1 Existing Allowances

                    10.1.1 Existing allowances which constitute a reimbursement of expenses may be adjusted from time to time where appropriate to reflect the relevant change 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 Existing allowances of the type referred to in 10.1.2 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 allowances may be created unless justified by changes in work, new work or conditions and only if justified under the relevant principle. The relevant principle may be either the work value changes or first awards and extensions to existing awards principles.

                    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 these Principles."

                    11.  Superannuation

                    Tasmanian Chamber of Commerce and Industry Limited

                    Existing Principle 11 should be retained, renumbered Principle 12 and reworded. The proposed new principle will provide a clearer statement of the requirements to be satisfied in approving agreements or consent awards that make provision for employer contributions to approved superannuation schemes. The following new principle is proposed:

                    "12.   SUPERANNUATION

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

                    12.2 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.

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

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

                    TCCI believes it will not be in the public interest to delete the existing Principle, as proposed by TTLC and the Minister - thereby allowing awards to be varied outside or in excess of the federal Superannuation Guarantee Act - until it can be replaced with an alternative form of principle.

                    Tasmanian Trades and Labor Council

                    The Commission should delete existing Principle 11 in its entirety. The matter of occupational superannuation and the powers of the Commission in that regard are adequately expressed in Section 32(1) of the Industrial Relations Act 1984. Consequently, TTLC opposes TCCI's proposal.

                    Minister for Justice and Industrial Relations

                    The Principle should be deleted.

                    Decision

                    We are prepared to accept the submissions of the TTLC and the Minister that existing Principle 11 should be deleted. We are satisfied that Section 32(1) of the Industrial Relations Act 1984 adequately expresses the Commission's powers regarding superannuation. Any public interest issues of the kind referred to by TCCI can be considered by the Commission pursuant to the provisions of Section 36 of the Act. Consequently, since there is no apparent need for a wage fixing principle concerning superannuation, we have decided to delete existing Principle 11.

                    12. Work Value Changes

                    Tasmanian Chamber of Commerce and Industry Limited

                    Existing Principle 12, renumbered as Principle 10, should be retained unchanged. In respect of TTLC's proposal to delete references to "special cases" TCCI opposes such a change for reasons outlined in regard to Principle 13¾Making and Varying an Award Above or Below the Safety Net.

                    TCCI believes there is agreement between the organisation and the Minister regarding this principle other than in relation to omission of the reference to "special cases".

                    Tasmanian Trades and Labor Council

                    Existing Principle 12.3 should be amended by deleting the words "in special case proceedings". Otherwise, the existing Principle should be retained.

                    Minister for Justice and Industrial Relations

                    Principle 12 should be retained, amended only by deleting from paragraph 12.3 the words "in special case proceedings".

                    Decision

                    Having regard to the views we express below in relation to existing Principle 13 - Making and Varying an Award Above or Below the Safety Net and the notion of "special cases" we have decided to retain existing Principle 12 in its present form, save and except for those references to "special cases" which we delete. The question of "special cases" aside all the parties were in agreement with the form the principle should take. Accordingly, Principle 12 will take the following form:

                    "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, 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

                    Tasmanian Chamber of Commerce and Industry Limited

                    Existing Principle 13 should be renumbered Principle 4 and substantially amended to more closely reflect Principle 10 of the federal Safety Net Review decision of May 2000 (Print S5000). The proposed new principle should take the following form:

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

                    4.1 An application to make or vary an award for wages or conditions above or below the safety net will be referred to the President for consideration as a special case.

                    4.2 Applications involving claims to incorporate agreements (expired or not) into awards ordinarily will not be considered to constitute a special case.

                    4.3 A party seeking a special case must make an application pursuant to S.23 supported by material justifying the matter being dealt with as a special case. It will then be a matter for the President to decide whether it is to be dealt with by a Full Bench or a Commissioner sitting alone, and whether or not it constitutes a special case.

                    4.4 The President in deciding whether or not application constitutes a special case will, amongst other tests, have regard to whether or not the matter or matters are "highly unusual, unique or pressing" [T7638 and T7685 of 1998].

                    4.5 In the following circumstances an award may, on application, be varied without the application being regarded as a claim for wages and/or conditions above or below the safety net:

                    4.5.1 to include previous State Wage Case increases in accordance with Principle 2;

                    4.5.2 to incorporate test case standards determined by the Commission;

                    4.5.3 to adjust allowances and service increments in accordance with these Principles;

                    4.5.4 to adjust wages pursuant to work value changes in accordance with Principle 10."

                    In addition to removing references to paid rates awards, the proposed new principle contains a number of modifications:

                      · Paragraph 4.1 reflects the opening paragraph of Principle 10 of the federal decision.

                      · Paragraph 4.2 seeks to ensure that applications to incorporate agreements into awards will not ordinarily be considered to constitute a special case.

                      · Paragraph 4.3 requires applications for special cases to be made pursuant to Section 23 of the Industrial Relations Act 1984. In addition, the provision enables the President to refer a special case application to a Commissioner sitting alone.

                      · Paragraph 4.4 provides for consistency and an element of transparency in dealing with matters that seek special case status to vary an award above or below the safety net. In that regard, in determining what constitutes a special case, the Commission must have regard to factors that are "highly unusual, unique or pressing (the Emu Bay Railway Case)".13

                      · Paragraph 4.5 permits the Commission to deal with previous State Wage Case increases, test case standards, adjustment of allowances and service increments, and work value changes without them being considered as claims above or below the safety net.

                    Special Cases: The Commission's retention of the special case provisions of existing Principle 13 is critical to maintaining a well-balanced set of Wage Fixing Principles that will encourage a stable industrial environment and not create a "free-for-all". If awards are effectively "at large" in a system of secure, relevant and consistent award frameworks underpinning workplace bargaining, chaos will be the outcome. The Commission would find itself dealing with any number of applications to vary awards in a manner determined simply by the party who lodges the application.

                    The Joint Governments proposed to the federal Commission, during its 1998 Safety Net Review decision, that the Statement of Principles should be amended to make it clear that difficulties in achieving a result through enterprise bargaining are not a valid reason for increasing award wages or conditions. The Commission decided not to make the relevant changes, citing the following four grounds: 14

                      (1)  The number of award level claims has been limited and, to date, unsuccessful.

                      (2)  The special case mechanism provides an appropriate means of dealing with applications to make or vary awards for wages or conditions above the safety net.

                      (3)  The federal Act does not automatically proscribe claims above the safety net.

                      (4)  The proposed variation (to paragraph 3.3 of the federal Principles) is inequitable because it would effectively prohibit employees from putting a case for an award wage increase on that basis (i.e. difficulties in achieving a result through enterprise bargaining) in circumstances where there is no reciprocal prohibition on employers.

                    The federal Commission's point was that, although applications to vary awards above or below the safety net are not proscribed, they are dealt with by the Commission in a consistent, logical manner as special cases. In other words, rather than parties making such applications as they see fit they must justify why their application should get past first base. That system is fair to all parties and is a "stabiliser" of the industrial relations environment in Tasmania.

                    In the same 1998 decision the federal Commission also discussed the role of arbitration and the award safety net. The Commission, observing that the safety net concept is now well understood, decided to delete that part (among others) of Principle 3.1 (of the 1997 Principles) which said "The Commission will generally not arbitrate in favour of claims above or below the safety net of award wages and conditions, except in certain circumstances." What the Commission was there saying is that it would not make a habit of dealing with and arbitrating in favour of claims above or below the safety net. In other words, such claims would need to be dealt with as special cases so as to eliminate frivolous or vexatious claims or claims without any merit and to allow applicants to make out a case as to why a claim should be regarded as "special" before the Commission proceeded to arbitration.

                    That position was further reinforced by the federal Commission in its Paid Rates Review decision where it observed, regarding whether the market is an appropriate consideration in the adjustment of awards which do not contain properly fixed minimum rates, that:15

                    "Wage rates in minimum rates awards, including those which have been through a conversion process as a result of this decision, ordinarily will only be adjusted for safety net adjustments or changes in work value. because of the terms of s.170MW(7) access to arbitration under that provision is not dependent on the maintenance of the paid rates status of an award and therefore the conversion of a paid rates award as a result of principles established in this decision will not affect its paid rates character for the purposes of s.170MW(7)."

                    The federal Commission makes two points in its statement. First, minimum rates awards will only be adjusted for safety nets or changes in work value and, second, the word "ordinarily" suggests that awards may be varied outside those two vehicles through special case proceedings. Nowhere in Section 107 of the Workplace Relations Act 1996 is there any reference to special cases. The thrust of the provision is that the President may refer matters to Full Benches if he is of the opinion that it is in the public interest to do so.

                    The same test is open to the President of the Tasmanian Industrial Commission under the general powers of Section 15 of the Industrial Relations Act 1984 and in accordance with the public interest requirements of Section 36. Those provisions-particularly Section 15(3)(b)-give the President an all encompassing power to determine how matters may be dealt with under the Act-a power that includes power to make determinations concerning special cases. Consequently, it is appropriate for this general power to be expanded in Wage Fixing Principles for the guidance of parties. In that regard, the exercise of discretion is not arbitrary, as claimed by TTLC, because the Wage Fixing Principles give guidance to the parties as to how that discretion will be exercised - R V Moore; Ex parte Australian Telephone and Phonogram Officers Association (1982).

                    "Special case" provisions have stabilised industrial relations in Tasmania, ensured wage restraint outside safety net adjustments and kept wages "blow-outs" under control. All those public interest matters will be jeopardised by the absence of "special case" provisions. "Special cases" are the continuation of a safeguard during the existence of a system of centralised wage fixation, a safeguard that serves no more than the former "no extra claims" commitment. There should not exist regular safety net adjustments to awards on the one hand when, on the other, there is an unlimited ability to make further claims.

                    Contrary to TTLC's submissions, the August 1989 National Wage Case was not the first occasion on which the federal Commission referred to "special cases" since the reference in that decision was to "Claims based on anomalies and/or inequities will continue to be treated as special cases". Clearly, the views of the Full Bench were that "special cases", however described, were not new¾as far back as 1987 the federal Anomalies and Inequities principle referred to claims being special or isolated.

                    The notion of structural efficiency is as relevant now as it was in 1989¾nothing has changed. The present day equivalent is called a safety net adjustment and any claims in excess of such an adjustment is a "special case" that must be processed as such. TCCI refutes TTLC's contention that the Commission should delete the "special case" provision merely because structural efficiency and minimum rates adjustments have been substantially completed.

                    Incorporating Agreements into Awards: It is the very strong view of TCCI that the federal Commission dealt with this matter in previous national wage case proceedings and, in particular, in the April 1998 Safety Net Review decision and in the Paid Rates Review decision.

                    The 1998 Safety Net Review made a specific determination in relation to inclusion of agreements into awards in response to a submission from the Joint Governments that agreement outcomes should not be incorporated into any award, including a paid rates award. The Commission accepted the submission and included in Principle 3.3 (Making and Varying an Award Above or Below the Safety Net) the statement that "Applications involving claims to incorporate agreements (expired or otherwise) into awards (paid or minimum rates) will not be considered to constitute a special case under this principle". The Commission included the same statement, without amendment, in Principle 10 of its 1999 Statement of Principles16 and, again without amendment, in the Statement of Principles that emanated from the 2000 Safety Net Review decision.17

                    The statement that agreements should not be incorporated into awards was further reinforced by the federal Commission in its Paid Rates Review decision where the Commission observed:18

                    "No cogent reasons have been advanced to change the decision the Commission made on an interim basis in the April 1998 Safety Net Review decision [at 52]. Variation of awards to reflect the terms of an expired agreement is inconsistent with the safety net character of the award system."

                    Given the decisions of the federal Commission this matter is effectively "closed". If the Tasmanian Commission were to "open up" the subject it would be acting against the whole purpose of the Wage Fixing Principles¾the result would be a "free-for-all". Awards would not retain their safety net character and there would arise potential for wage relativities and other conditions of employment to rise way above the safety net without proper determination by the Commission. Consequently, the Commission should formally recognise the federal Commission's determination so as to give clear guidance to the parties regarding its meaning and application. In any event, it is ludicrous to suggest that the Tasmanian Commission should vary any of its awards to reflect an agreement to which the majority of employers and employees covered by the particular award were not a party.

                    TTLC's proposal¾that the Commission may consider applications to incorporate expired agreements into awards, whether or not there is consent by all parties¾effectively means that the only way an award could be varied above or below the safety net would be by incorporating agreements. Such a proposal directly contravenes the federal Wage Fixing Principles and determinations of the Australian Industrial Relations Commission that agreements will not be incorporated into awards.

                    The proper method for varying awards above or below the safety net should be the "special case" mechanism. To illustrate the point, suppose that a business has employees engaged under both State and federal awards¾a quite common situation. If the business made the same registered agreement with both groups of employees then, upon its expiry and according to TTLC's submissions, the agreement could be incorporated into the State award but not into the federal award. Such an action would create an inequitable outcome. Based on the high level of federal award coverage in Tasmania, as submitted by the Minister in the Safety Net Wage Review part of these proceedings, that possibility is very real.

                    Paid Rates Awards: Although the federal Workplace Relations Act 1996 defines a paid rates award,19 there is no such definition in the Industrial Relations Act 1984. The notion of a paid rates award suggests that the rates and conditions it contains are both the minimum and maximum benefits that can apply and that an employer party to such an award could not provide benefits that are either more or less than those standards.

                    Traditionally, it is common ground that parties in Tasmania have generally referred to public sector awards as paid rates awards. However, on a closer examination that view appears to be without foundation. There is no legislative support for such a view and the existence of agreements such as the State Service Wages Arrangements suggest in themselves that public sector awards are not paid rates awards.

                    Because there is no provision in the Industrial Relations Act 1984 that confers jurisdiction on the Industrial Commission to make paid rates awards, it follows that continued inclusion in the Wage Fixing Principles, at least for the present, of a paid rates award principle or references to paid rates awards is unnecessary¾indeed the issue becomes a nullity. Consequently, all references to paid rates awards should be removed from the Wage Fixing Principles.

                    For reasons already advanced TCCI opposes the Minister's proposal to delete this Principle entirely.

                      Tasmanian Trades and Labor Council

                    Special Cases: Use of the term "special case" in the Tasmanian Wage Fixing Principles arises only because those principles have tended to reflect similar principles of the federal Commission, where it was introduced for the first time in August 1989 in relation to the Structural Efficiency Principle and minimum rates adjustments. The notion was introduced in response to submissions of the ACTU and the Commonwealth, who both argued that applications for increases beyond those available for structural efficiency should be dealt with through a "special case" mechanism.

                    Compared with the former Anomalies and Inequities Principle, no procedures were set down for dealing with such special case matters. While application of the special case principle evolved over a couple of years it related only to the Structural Efficiency Principle and applications were dealt with by the President sitting alone or by Full Benches. However, with the substantial completion of structural efficiency matters and minimum rates adjustments the need for a special case process passed¾other than for outstanding applications that relate to such matters. The special case principle is a remnant of the past.

                    While existing Principle 13 still refers to the possible use of special cases, there are no guidelines or body of decisions from which parties might obtain guidance regarding the making of applications under that Principle. In addition, there are no legislative provisions in the Industrial Relations Act 1984 that deal with special cases. In brief, there is no evidence to show that the special case notion has any relevance to the wage fixing system that operates within the jurisdiction of the Tasmanian Industrial Commission.

                    Consequently, it is unjust for the Commission¾when it reserves to itself the power to determine whether a special case application is just and equitable¾to require a party making such an application to provide proof of special circumstances when there is a failure to provide guidance or authorities that can assist an applicant in that course. Sections 13 and 15 of the Industrial Relations Act 1984 give the President a discretion in dealing with applications that come before the Commission. In those circumstances, it is not possible for the Wage Fixing Principles to fetter that discretion by creating some form of additional test that is devoid of substance as to its meaning and application¾the exercise of discretion "must not be of an arbitrary kind and must be governed or bounded by some ascertainable tests or standards": R V Spicer; Ex parte Waterside Workers' Federation of Australia (1957).20 The current Principle fails the application of that test.

                    If the Commission is to retain the notion of a "special case" then the parties must know what it is. Without a policy to guide the exercise of discretion, the exercise of that discretion would be unworkable. At the present time the actual operation of dealing with "special cases" is unexpressed and difficult to extract. The absence of clear guidelines and policies can lead to a piecemeal approach and inconsistencies and uncertainty. Consequently, users of the system cannot be confident of following a common approach in each case.

                    The interests of Tasmania as a whole cannot be served by the Commission retaining wage fixing provisions that do no more than perpetuate matters now considered to be ancient history and of no ongoing relevance. In fact, the existing prescription seeks to fetter the current powers of the President by creating some additional undefined and unexplained test that could result in preventing proper consideration of legitimate matters.

                    Existing Principle 13 should be rewritten to comply with the provisions of the Industrial Relations Act 1984.

                    Incorporating Agreements into Awards: The Emu Bay Railway case is clearly distinguishable and of no benefit to TCCI in the current proceedings. That case concerned applications to incorporate existing enterprise bargaining agreements into an award because a new employer successor was seeking to introduce Australian Workplace Agreements. The employer's submissions characterised the applications as an attempt by the applicant unions to interfere in the bargaining process for the purpose of increasing rates in the relevant award so that they might form the basis for assessment of the proposed Australian Workplace Agreements. That situation clearly does not apply in the present circumstances.

                    The employers' proposal invites the Commission to add to TCCI's proposed "special case" provision a test that reflects nothing more than, as the Full Bench decision itself shows (at p. 10), a comment made by counsel for Emu Bay Railway.

                    Paid Rates Awards: The Tasmanian Industrial Commission has explicit power to make awards in regard to private and public sector employment. However, neither private sector nor public sector awards are further qualified in terms of "minimum rates" or "paid rates". Indeed, it is clear that, on examination, the Commission has no legislative power to make paid rates awards.

                    The reference to paid rates awards was included in the principles adopted by the Commission in the first State Wage Case of 1985. A paid rates award can be characterised in the way it differs from a minimum rates award. Whilst "minimum rates" prescribe minimum wages and conditions and thus allow negotiation of further and more favourable benefits, the rates of pay in a "paid rates award", by contrast, are the actual rates of pay and thus are both the minima and the maxima.

                    While the parties in general and, in particular public sector unions, have considered public sector awards to be paid rates awards, that conclusion reflects an attempt to explain the difference between public sector and most private sector minimum rates awards rather than an assertion that public sector awards would meet the criteria of paid rates awards. It is apparent, in Tasmania, that many public sector awards do not cover all important aspects of the employment relationship considered appropriate for regulation. Consequently, State public sector awards do not meet the criteria of paid rates awards.

                    In the circumstances, taking into account also the fact that the Commission can only make awards in accordance with Sections 33 and 34 of the Industrial Relations Act 1984 all references to paid rates awards should be deleted from the Wage Fixing Principles.

                      The way in which the current principle has been interpreted has led to confusion, a problem that TTLC addresses in the form of its proposed simplified principle.

                    Having regard to the above discussions, proposed new Principle 13 should take the following form:

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

                    Subject to Section 36 of the Act, the Commission may consider an application to incorporate in an award an expired industrial agreement whether or not there is consent by all parties to the award."

                      Minister for Justice and Industrial Relations

                    Existing Principle 13 should be deleted.

                    Decision:

                    We commence our consideration of the issues put to us by the parties with the question of paid rates awards. We acknowledge and accept the submissions of all parties that the Industrial Relations Act 1984 does not confer jurisdiction on the Tasmanian Industrial Commission to make paid rates awards. Consequently, we have decided to remove all references to paid rates awards from the Wage Fixing Principles.

                    Concerning the issue of "special cases" we accept the submissions of TTLC and the Minister; in the case of the latter, to the extent that the proposal to delete the principle entirely arises from considerations suggesting that the Wage Fixing Principles cannot purport to limit or prohibit any statutory right that a party might derive from the Industrial Relations Act 1984.21

                    We are satisfied that, in the absence of any specific statutory underpinning for the concept of "special cases", it is not open to the President under Section 15 of the Act (or any other provision, including a wage fixing principle) to decide whether an application constitutes a "special case" and, as a consequence, determine how the Commission will deal with the matter. All applications, whether "special" or not, must be dealt with by the Commission pursuant to the provisions of Sections 23, 24 and 25 of the Act. Those are statutory rights that, in our opinion, the Commission cannot purport to abridge by means of a wage fixing principle that seeks to vest the President with a power he or she does not have, whether or not expressed in terms of the public interest.

                    In our view the Act itself expressly provides for cases that a party or parties for one reason or another might regard as "special". In that context the provisions of Section 24(4), for example, are significant. We would assume that, in the case of a proceeding before a Commissioner sitting alone, if a party should conclude that the case is "special", it would be open to the particular party to exercise its statutory rights pursuant to Section 24(4A) of the Act, i.e. "... request the Commissioner to refer the matter to the President". Thereafter, the President will determine the issue on the basis of the parties' submissions, as he must. In effect, the President will decide whether or not the case is "special" by reference to the parties' submissions, as he or she must, and not by reference to the content of any particular Wage Fixing Principle. In our opinion that course of events properly reflects the scheme of the Act in relation to applications that, for purposes of this discussion, we have referred to as "special".

                    For the above reasons we reject TCCI's submissions to the contrary.

                    We turn now to TTLC's submission that the Wage Fixing Principles should make provision for the Commission to consider applications to incorporate expired agreements into awards whether or not there is consent. As a matter of general principle we believe it would be inappropriate to vary the Commission's awards to incorporate agreements, whether expired or not. However, we cannot say that there could never be any circumstances that might constitute an exception to that general statement¾such a determination could only be made after hearing the parties. In any event, for reasons already discussed, it is not open to the Commission, by means of wage fixing principles, to purport to prevent parties making such applications pursuant to the provisions of Sections 23, 24 and 25 of the Industrial Relations Act 1984. The Commission will deal with those applications in accordance with the provisions of the Act, including the public interest requirements of Section 36.

                    Having regard to the above discussions we have decided to delete existing Principle 13.

                    14.  First Award and Extension to an Existing Award

                    Tasmanian Chamber of Commerce and Industry Limited

                    Existing Principle 14 should be amended by deleting references to paid rates awards and renumbered Principle 11. The amended principle should take the following form:

                    "11. FIRST AWARD AND EXTENSION TO EXISTING AWARD

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

                    11.1 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.

                    11.2 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.

                    11.3 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."

                    TCCI agrees that the Commission does not have jurisdiction to make paid rates awards. However, the organisation opposes TTLC's proposal to include market considerations, i.e. "... and where appropriate, relevant wage rates applying to persons performing the same or similar work throughout Australia." In that sense, TTLC's proposal goes beyond being concise in that it attempts to include, in relation to minimum rates awards, material previously only relevant to paid rates awards. The Commission should adopt the form of Principle proposed by both TCCI and the Minister.

                    Tasmanian Trades and Labor Council

                    Existing Principle 14 should be rewritten to make it more concise and to remove references to paid rates awards and all unnecessary detail that adds nothing to the application of the principle. The proposed new principle should be worded as follows:

                    "14. FIRST AWARD AND EXTENSION TO EXISTING AWARD

                    14.1 In determining the content of a first award the Commission will have particular regard to:

                    14.1.1 the existing wage rates and conditions of employment applicable to employees to be covered by the award;

                    14.1.2 relevant wage rates applying to persons performing the same or similar work throughout Australia.

                    14.2 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 the work already covered by the award and where appropriate, relevant wage rates applying to persons performing the same or similar work throughout Australia."

                    While TTLC agrees that references to paid rates awards should be removed from the Principle, the organisation does not agree with TCCI's suggestion that references to market rates should also be removed. There are many circumstances in which market rates are relevant, e.g. local teaching or the State teaching market and the national call centre market. The reference to market rates is useful to the parties and assists by informing them what must be addressed when making applications for a first award or to extend an existing award.

                    Minister for Justice and Industrial Relations

                    Existing Principle 14 should be retained except for provisions that relate to paid rates awards, which should be deleted.

                    Decision:

                    We accept the parties' submissions that, subject to removing references to paid rates awards, we should retain Principle 14. However, we do not accept TTLC's proposal that Principle 14 should be amended to include reference to market rates. In our opinion, the concept of market rates in relation to wage fixation is a consideration that relates specifically to paid rates awards. We have re-written the existing Principle, which we have decided should take the following form:

                    "14. FIRST AWARD AND EXTENSION TO EXISTING AWARD

                    The following criteria shall apply to the making of a first award and/or 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. Other considerations will be that the award meets the needs of the particular industry or enterprise and ensures that employees' interests are also taken into account.

                    14.2 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 the work already covered by the award."

                    15. Standard Hours

                    Tasmanian Chamber of Commerce and Industry Limited

                    Existing Principle 15 should be retained and renumbered Principle 9. The Commission should accept the submissions of both TCCI and the Minister.

                    Tasmanian Trades and Labor Council

                    The existing Principle should be deleted because, by allowing the Commission to only approve changes in standard hours in circumstances where there is consent, the Principle purports to constrain the Commission's statutory powers. Consequently, TTLC rejects TCCI's proposal.

                    Minister for Justice and Industrial Relations

                    The existing principle should be retained unchanged.

                    Decision:

                    We do not accept TTLC's contention that existing Principle 15 somehow acts to constrain the Commission in the proper exercise of its statutory powers, i.e. in this case, to hear and determine a relevant application pursuant to Section 35 of the Industrial Relations Act 1984. All the Commission has done, and continues to do in Principle 15 is make it clear that, in the public interest, the Commission will not approve "... a reduction in standard hours below 38, or an increase in standard hours up to 38 ... [unless] the parties demonstrate their consent." The principle does not say the Commission will not hear such applications pursuant to its statutory duty to do so. Accordingly, we accept the submissions of TCCI and the Minister that we should retain the Principle unchanged. Principle 15 will take the following form:

                    "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

                    Tasmanian Chamber of Commerce and Industry Limited

                    Existing Principle 16 should be renumbered Principle 13 and reworded as follows:

                    "13.  AWARD REVIEW PROCESS

                    13.1 Consistent with the decisions of the Tasmanian Industrial Commission in previous 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.

                    13.2 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 each award have actively pursued the Award review process in that award.

                    In order to carry out this function the Commission will convene a hearing for the purposes of examining each award before any further safety net adjustment can be approved for individual awards."

                    Apart from minor amendments of a technical nature, existing paragraph 16.2 (Commission will convene conferences of parties to each award to hear reports) has been deleted because such conferences are no longer necessary. Where the parties have reviewed an award, as required, they may make an application pursuant to Section 23 of the Industrial Relations Act 1984 to vary the award appropriately.

                    The proposed principle also includes a requirement that the Commission must convene a hearing for the purpose of examining each award to determine the extent to which parties have actively pursued the award review process. Such an amendment is consistent with the original intent of Principle 16: to ensure that the award review process is given proper consideration at an award level before any future Safety Net Adjustments are approved.

                    To the extent that TTLC suggests retention of the principle even though it has no statutory underpinning, the organisation is again acting inconsistently with its earlier submissions.

                    For reasons already advanced the Commission should adopt TCCI's proposed principle in preference to the proposals of TCCI and the Minister.

                    Tasmanian Trades and Labor Council

                    It is sensible and necessary for the Commission to determine a consistent award format because there is no specific statutory provision that relates to such matters. Consequently, to that extent, the existing Principle should be maintained.

                    However, other matters addressed by the current Principle, i.e. "removal of obsolete or amendment of inaccurate award provisions" and "updating of Clause 6- Parties and Persons Bound" can all be remedied through existing statutory provisions relating to awards.

                    Consequently, Principle 16 as amended should take the following form:

                      "16.   AWARD REVIEW PROCESS

                    The Commission will ensure awards are consistently formatted, do not contain discriminatory provisions and are expressed in plain English."

                    TCCI's proposal that there should be a requirement for the Commission to convene a hearing to examine progress of the award review process in each award is a crude attempt to circumvent workers getting a wage increase. There will be significant delay if the Commission agrees to such a process. There is nothing in the Industrial Relations Act 1984 that grounds such a provision. Consequently, the Commission should reject the proposal.

                    Minister for Justice and Industrial Relations

                    Existing Principle 16 should be replaced with the following amended Principle 16:

                      "16.   AWARD REVIEW PROCESS

                        16.1  The Commission requires that each award is to be reviewed to ensure:

                      (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 (Award Interest);

                      (v) the award is written in plain English;

                      (vi) inclusion of appropriate 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."

                    Decision:

                    In general terms we accept the submissions of TTLC that TCCI's proposed principle contains at least the potential to delay application of future State Wage Case Safety Net increases in one, some or possibly all awards. We believe the Commission would not be acting according to equity and good conscience if it were to approve such a principle. For that reason - and we respond to TTLC's proposal with the same reason - we have decided to accept the Minister's proposed principle since it simplifies the existing Principle and continues to provide that the Commission, if necessary, may bring the review process to a conclusion by arbitration. Principle 16 will take the following form:

                    "16.  AWARD REVIEW PROCESS

                    16.1 The Commission requires that each award is to be reviewed to ensure:

                      (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 (Award Interest);

                      (v) the award is written in plain English;

                      (vi) inclusion of appropriate 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."

                    17.  Economic Incapacity

                    Tasmanian Chamber of Commerce and Industry Limited

                    Existing Principle 17 should be retained, but renumbered Principle 14.

                    The amendments proposed by TTLC are hardly minor. In the first place the organisation seeks to fetter the Commission's discretion by inserting the word "temporarily" in front of the words "reduce or postpone" in the existing principle. Second, the proposed principle removes the reference to impact on employment, which TCCI believes is very important. For those reasons, the Commission should adopt TCCI's approach or, in the alternative, the Minister's proposal - especially since both retain the President's discretion to decide if a matter should be referred to a Full Bench.

                    Tasmanian Trades and Labor Council

                    Subject to minor amendments Principle 17 should be retained in the following form:

                      "17.   ECONOMIC INCAPACITY

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

                    Any decision to temporarily reduce or postpone an increase will be subject to further review, the date of which will be determined by the Commission at the time it decides any application under this Principle."

                    Addition of the word "temporarily" logically clarifies operation of the principle - economic incapacity is not something that goes on forever. TTLC opposes retention of the principle in an unamended form.

                    Minister for Justice and Industrial Relations

                    The existing Principle should be retained, but in the following amended form:

                      "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. The impact on employment at the enterprise level of the increase in labour costs is a significant factor to be taken into account in assessing the merit of any application."

                    Decision

                    We entertain no objection to use of the word "temporary" since, by any definition, economic incapacity must be temporary in nature - it is a passing event, to be ultimately resolved by either ascent to profitability or descent into bankruptcy. We also believe that, given our earlier observations about the inappropriateness of wage fixing principles purporting to supplant the parties' statutory rights, it would be inappropriate to continue the current prescription that "It will be a matter for the President to decide whether any such application should be dealt with by a Full Bench". Clearly, all such applications will be dealt with by the Commission pursuant to the provisions of Sections 23, 24 and 25 of the Industrial Relations Act 1984. We have decided to adopt, with amendments, the form of principle suggested by the Minister, that is:

                      "17.   ECONOMIC INCAPACITY

                    Any registered organisation with an interest in an award may apply on behalf of an employer or group of employers to temporarily reduce or postpone or phase in the application of any increase in labour costs under the Principles on the grounds of very serious or extreme economic adversity. The merit of such application will be determined in the light of the particular circumstances of each case and any material relating thereto shall be rigorously tested. The impact on employment at the enterprise level of the increase in labour costs is a significant factor to be taken into account in assessing the merit of any application."

                    D. NEW PRINCIPLE

                    Tasmanian Trades and Labor Council

                    The Tasmanian Industrial Commission should establish a new principle to provide a mechanism for making equal remuneration claims. That principle should take the following form:

                    "EQUAL REMUNERATION PRINCIPLE

                    Definitions:

                    In this principle, `remuneration' includes the ordinary, basic or minimum wage or salary and any additional emoluments whatsoever payable directly or indirectly, whether in cash or kind, by the employer to the worker and arising out of the worker's employment. (ILO Convention 100)

                    `Pay equity' is defined as meaning `equal remuneration for men and women doing work of equal or comparable value'.

                    Application of the Principle:

                    The Commission will apply the principle of equal remuneration when it makes or varies an award.

                    Parties may apply for the making or variation of awards in order to achieve pay equity. Such applications are to be dealt with according to this principle. It is expected that such applications will be made in respect of occupations and industries that have a high concentration of female workers and/or which have historically been characterised as female. However, access to the principle will ultimately be determined by the Commission on a case-by-case basis. Applications may be made with respect to both adult and junior employees.

                    The principle may be applied by agreement or by arbitration.

                    Equal remuneration applications will essentially involve an assessment of the value of the work performed in the industry or occupation the subject of the application irrespective of the sex of the relevant workers. It is not necessary to find gender causation or discrimination based on sex in order to apply this principle. The requirement is to ascertain the value of the work rather than whether there have been changes in the value of the work. The Commission may in doing so take into account the skill, responsibility and qualifications required by the work and the conditions under which the work is performed, and may also have regard to the issues of labour market supply and demand, productivity and profitability, provided that these factors are to be assessed without being affected by the sex of the workers.

                    A prior assessment by the Commission (or its predecessors) of the value of the work the subject of the application, and/or the prior setting of rates for such work, does not mean that it shall be presumed that the rates of pay applying to the work are unaffected by the sex of the relevant workers. This history of the establishment of rates in the award the subject of the application will be a consideration. The Commission shall broadly assess whether the past valuation of the work has been affected by the sex of the workers.

                    The required work value assessment may be assisted by a comparison of the value of work and the remuneration paid for such work. Comparisons of the value of work and the remuneration paid for such work can provide a guide to establishing rates of remuneration, which provide for pay equity.

                    Where such a comparison is used, it may be undertaken across and within industries and occupations, between different classifications in the award the subject of the application, and/or between classifications in different industrial instruments. More than one comparison may be used if required.

                    The operation of this principle is not restricted by the operation of other wage fixing principles.

                    Remedies:

                    Remedies to provide for pay equity include, but are not limited to:

                    (i) reclassification of work

                    (ii) the establishment of new career paths

                    (iii) change in incremental scales

                    (iv) reassessment of the broadbanding of classifications or skills

                    (v) reassessments of definitions and position descriptions

                    (vi) amendments to generic descriptions of work which do not properly describe the value of work

                    (vii) changes to rates of remuneration, and

                    (viii) changes to work conditions and practices to require equal employment opportunities

                    Pay equity shall not be implemented by reducing current pay rates."

                    The concept of "pay equity" or equal remuneration is that men and women should be paid equally for work that is of either equal or comparable value. Generally, pay equity issues have been addressed by wage fixing tribunals within the industrial relations systems rather than by direct legislation. In Tasmania, as in other States, changes in women's wages have occurred as the result of changes in the federal industrial relations system.

                    The federal Commission introduced the principle of equal pay for equal work in 1969 and subsequent equal pay cases during the 1970s and 1980s continued the development of equal pay principles. In addition, National Wage Cases also established appropriate relativities within awards, endorsed minimum rates adjustments and introduced a system of arbitrated safety net adjustments. All of those decisions, which have flowed to Tasmania, have resulted in benefits for women's pay and a recognition of their skills.

                    Wage fixing principles, however, have restricted examination of the historic undervaluation of women's work which has meant that women have continued to be disadvantaged in the framework of relative work value. For example, the limitation on the consideration of work value to changes in work value from a specific date has resulted in undervaluation not being addressed. Similarly, requirements that claims have an isolated and limited effect have reduced the scope of possible cases.

                    Justice Glynn, in her report of the New South Wales Pay Equity Inquiry, stated that:22

                    "... the primary objective of examining the present state of occupations and industries is not simply to determine whether, in any of them, work has been undervalued on the basis of gender. The main objective, in the event that positive findings are made, and they are made, is to examine the adequacy of the tests and mechanisms for ascertaining work value and the extent to which, if at all, those tests and mechanisms are inequitable on the basis of gender and to develop recommendations as to remedial measures to eliminate those deficiencies".

                    The New South Wales Commission found that in a number of female dominated industries and occupations there existed undervaluation of the work of female employees, but it was not possible in all cases to identify a nexus between levels of remuneration and the gender of the work. Generally it was found that if valuation is to be properly undertaken and adequate remedies found, the Commission must have regard to the history of wage and condition setting in the industry or occupation being examined and the impact of those historical factors.

                    Having found the existence of undervaluation, the New South Wales Inquiry recommended development of a new equal remuneration principle of wage fixation containing the following elements:

                      · The assessment of work value should be objective, transparent and non-discriminatory. The assessment should only be to assess the true value of work, not whether there has been changes in the work;

                      · It is not necessary to find gender causation or sex discrimination in order to make findings;

                      · Comparisons of work value may be taken across and within industries and occupations, between different awards and with more than one comparison if required;

                      · The use of comparisons is useful only because it gives a guide to the reliability of the rate of remuneration;

                      · The essential ingredient in this principle is equal or comparable value: therefore the proper basis for comparison is not restricted to the similarity of work;

                      · The principle will provide for the assessment of undervaluation in itself and will not require a comparison between male and female rates of pay; and

                      · It will no longer be presumed that rates of remuneration have been properly assessed in female dominated industries and occupations, either with regard to equal pay principles or work value. This includes assessments made under previous industrial processes, such as the Structural Efficiency Principle or the Minimum Rates Adjustment process.

                    A Pay Equity Task Force established by the Tasmanian Government has accepted the findings of the New South Wales Pay Equity Inquiry that the existing industrial system in that State, modified to allow the identification and rectification of undervaluation, would provide the most effective means of rectifying pay inequity. The Task Force agreed that, in the case of Tasmania, the Industrial Commission should issue an Equal Remuneration Principle to provide a mechanism in this State for working women to find adequate remedy for the undervaluation of their work.

                    Although the State Industrial Relations Act 1984, unlike the federal Workplace Relations Act 1996, does not contain specific provisions dealing with pay equity issues, it nevertheless requires the Commission to act according to equity, good conscience and the merits of the case (Section 20) and to apply certain public interest tests (Section 36). In addition, Section 42 of the Act provides that "An award has effect subject to the provisions of any Act dealing with the same subject-matter". In that regard the Anti-Discrimination Act 1998 provides that a person cannot be discriminated against, either directly or indirectly (Sections 14 and 15) or because of certain attributes, including gender, marital status, parental status and family responsibilities (Section 16).

                    In the circumstances, the Industrial Commission cannot make or continue in operation an award that is at variance with the relevant provisions of the Anti-Discrimination Act 1998. That view finds support from the fact that Section 4 of the Industrial Relations Act 1984 binds the Crown in right of the State of Tasmania.

                    The proposed principle would require the Commission to consider pay equity issues on the basis that it would be an indication of how the public interest would ordinarily dictate the exercise of discretion in such matters.

                    Nothing put to the Commission by TCCI suggests that the Commission does not have the power to establish an equal remuneration principle. As to issues concerning evidence of wage inequity, the appropriate time for putting such material forward would be when an application is made in accordance with the proposed principle.

                    TCCI's response to the proposal reflects the approach taken by the Employers Federation of New South Wales (which was not a common position among employers) in relation to that State's Pay Equity Inquiry. The Inquiry rejected both the "lack of evidence" and the "over-award" arguments. The reality is that the employers do not want any principles that deal with pay equity.

                    The Minister's submission concerning a proposed pay equity principle fails to deal with the issue of comparability, an important matter clearly addressed by TTLC's suggested principle. In the circumstances, the Commission should adopt TTLC's proposal.

                    Minister for Justice and Industrial Relations

                    The Commission should establish a pay equity principle in the following form:

                    "X.  PAY EQUITY

                    X.1 In this Principle 'pay equity' means equal remuneration for work of equal value.

                    X.2 Applications may be made for making or varying an award in order to implement pay equity. Such applications are to be dealt with according to this principle.

                    X.3 Pay equity applications will essentially involve an assessment of the value of work performed in the industry or occupation the subject of the application. The requirement is to ascertain the value of the work rather than whether there have been changes in the value of the work. The Commission may take into account the skill, responsibility and qualifications required by the work and the conditions under which the work is performed, and may also have regard to the issues of labour market supply and demand, productivity and profitability.

                    X.4 A prior assessment by the Commission (or its predecessors) of the value of the work the subject of the application, and/or the prior setting of rates for such work, does not mean that it shall be presumed that the rates of pay applying to the work are unaffected by the gender of the relevant employees. The history of the establishment of rates in the award the subject of the application will be a consideration. The Commission shall broadly assess whether the past valuation of the work has been affected by the gender of the workers.

                    X.5 The operation of this principle is not restricted by the operation of other wage fixing principles."

                    The proposed principle concerns the creation of non-prescriptive criteria that may serve as guidelines for the parties and the Commission in dealing with applications regarding pay equity. The proposed principle is not to be read and is not intended to be read as conceding the existence or recognition of pay inequity in any occupation or industry sector of the workforce.

                    There is no doubt that the issue is one capable of falling within the scope of the definition of "industrial matter" in the Act. Consequently, it is an issue in respect of which applications may be made pursuant to Section 23 of the Industrial Relations Act 1984. It would seem to follow that there is no statutory impediment to the Commission hearing and determining pay equity applications - indeed, it is reasonable to think that the parties and the Commission are already on notice that such applications may well be made.

                    In the circumstances, the Government considers that the important issue of pay equity and applications in relation to that issue should be afforded similar basic criteria to that which now comprises the Wage Fixing Principles regarding other matters. It is open to any party to explore the existence or otherwise of pay inequity and the introduction of a guiding principle is a sensitive way to focus on the issue. Nevertheless, the proposed principle is simply a guide - the Government does not advocate an exhaustive and codified set of procedures and conditions that parties must observe.

                    Despite the existence of oft-made claims of pay inequity, the Commission will ultimately determine their substance on the basis of evidence adduced and the substantial merits of the claim. To that extent, it might be expected that a claim alleging pay inequity would be treated similarly to a rigorously conducted work value claim.

                    Anti-Discrimination Commissioner

                    Principles: The principle of "equal pay for equal work" or "equal pay for work of equal value" has been adopted by courts, commissions, tribunals and legislatures around Australia. However, the principle has never been achieved in practice and unequal pay or unequal remuneration is a fact of life for women in paid work.

                    It is inappropriate for commissions, etc. to continue to reiterate the principle of equal pay without recognising that mere repetition of the notion, without taking steps to ensure that it becomes reality, brings the industrial system and courts, tribunals, commissions and the legislature into disrepute.

                    Equal pay or remuneration will not be achieved by:

                      (a) looking at "equal pay" or the "equal pay principle" in isolation from the realities of the distribution of paid work in the community and the way in which women are "segregated" into a small range of occupations compared with the far greater range of occupations to which men have access;

                      (b) failing to acknowledge that gender is not the only issue that affects the equal pay or remuneration question when marital and parental status, family responsibilities, pregnancy and breastfeeding are issues of equal relevance; and

                      (c) being unable to acknowledge that both conscious and unconscious bias influence the assessment of women's work, whether paid or unpaid, and that both are entrenched in society generally and present in the wage fixing system to an extent that results in women receiving unequal remuneration and a failure to achieve the "equal pay" principle.

                    If equal pay is to be achieved or even to become achievable, principal bodies involved in wage fixing must take active steps to put the principle into effect. In doing so, those bodies must recognise that:

                      (a) equal remuneration will not be achieved without a systematic review of women's wages-a work skills value inquiry;

                      (b) the body responsible for such an inquiry must take active steps to familiarise itself with the issues that lie at the base of unequal pay, i.e. conscious and unconscious bias; and

                      (c) equal pay will not be achieved through a "one off" inquiry-the issue requires on-going attention.

                    Anti-Discrimination Act 1998: The Anti-Discrimination Act 1998 is relevant to the Commission's role in ending unequal pay. The legislation covers discrimination in all aspects of paid work, not merely remuneration, and applies to discrimination and prohibited conduct against any persons engaged in or undertaking any activity in connection with:

                      · employment (paid and unpaid);

                      · education and training;

                      · administration of any law of the State and any State program on the grounds of sex/gender, marital status, pregnancy, breastfeeding, parental status or family responsibilities; and

                      · awards, enterprise agreements and industrial agreements on grounds of sex/gender, marital status, pregnancy, breastfeeding, parental status or family responsibilities.

                    Discrimination that the legislation seeks to end includes (a) less favourable treatment discrimination (direct discrimination) and (b) differential impact discrimination (indirect discrimination).

                    "Less favourable treatment discrimination" occurs where a person is treated less favourably than another person on the basis of attributes - including gender, marital status, pregnancy, breastfeeding, parental status or family responsibilities or by any characteristic imputed to any of those attributes - when the other person does not have that same attribute, imputed attribute or characteristic.

                    The law emphasises that for "less favourable treatment discrimination" to occur the attribute does not need to be the sole or dominant ground for unfavorable treatment and the person discriminating does not have to regard the treatment as unfavourable or have any particular motive in discriminating.

                    Cases of unequal pay through "less favourable treatment discrimination" arise not only in the simple case of a woman being paid less than a man for equal work or work of equal value. They also arise in circumstances where women are treated less favourably in other aspects of work that impact on remuneration, e.g. lack of provision for child care, failure to provide breastfeeding facilities, non-availability of pregnancy leave (paid or unpaid), requiring women to take sick leave as pregnancy or maternity leave, and less favourable treatment of women because of marital status or other family responsibilities.

                    "Differential impact discrimination" occurs if a condition, requirement or practice is imposed upon workers or prospective workers that has the effect of disadvantaging an employee or prospective employee - who is a member of a group that shares or is believed to share attributes, including gender, marital status, pregnancy, breastfeeding, parental status or family responsibilities or by any characteristic imputed to any of those attributes - more than someone who is not a member of that group.

                    If the condition, requirement or practice is not unreasonable in the circumstances, there is no unlawful discrimination. However, for unlawful discrimination to exist it is not necessary that the discriminator be aware that the condition, requirement or practice disadvantages the group.

                    Every worker shares the attribute "gender". However, the principle in "differential impact discrimination" is that the condition, requirement or practice complained of impacts differentially against persons who share one gender rather than the other and the condition, requirement or practice is unreasonable in the circumstances.

                    Equal remuneration can result from "differential impact discrimination" when, for example, a rule (a) requires workers to be "on the job" at a time of day that clashes with family or parental status responsibilities or (b) requires that "permanent" workers will be promoted over casual or temporary workers.

                    Because the Anti-Discrimination Act 1998 makes discrimination unlawful and -

                      (a) awards, enterprise agreements and industrial agreements are open to challenge because they contain discriminatory provisions or have discriminatory operation;

                      (b) the Industrial Commission is required to set aside or vary terms of an award, enterprise agreement or industrial agreement when a claim of discrimination is substantiated by the Anti-Discrimination Tribunal; and

                      (c) the Anti-Discrimination Act 1998 binds the crown in right of the State of Tasmania

                    - the Industrial Commission is precluded from making an award, enterprise agreement or industrial agreement that breaches the provisions of the Anti-Discrimination Act 1998.

                    The Industrial Commission is also under an obligation to take positive steps to end discrimination in paid work, including that existing in or arising out of unequal remuneration. Consequently, the implication that arises from the Anti-Discrimination Act 1998 is that the Industrial Commission is bound to take active steps to end discrimination in its jurisdiction, i.e. paid employment.

                    International Covenants and Conventions: The Anti-Discrimination Act 1998 is founded upon, among other things, principles contained in international human rights covenants, conventions and treaties. Those having particular relevance to equal remuneration are:

                      · Convention on the Elimination of All Forms of Discrimination Against Women - Schedule to the Sex Discrimination Act 1984 (Cwlth.).

                      · Convention Concerning Discrimination in Respect of Employment and Occupation - Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986 (Cwlth.).

                      · International Covenant on Civil and Political Rights - Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986 (Cwlth.).

                    Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women provides, among other matters, that "State Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights". In particular, inter alia, the Convention refers to:

                    "(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;

                    (c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining; including apprenticeships, advance vocational training and recurrent training; and

                    (d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work."

                    In the Convention Concerning Discrimination in Respect of Employment and Occupation Article 1 states that, among other matters, the term "discrimination" includes:

                    "(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and

                    (b) such other distinction, conclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employer's and worker's organisations, where such exist, and with other appropriate bodies."

                    The terms "employment" and "occupation", as used in the Convention, include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment. However, any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.

                    The International Covenant on Civil and Political Rights contains several provisions that go to the question of equal rights and entitlements relevant to paid work, remuneration and equal pay, including effective legal remedies, determination of rights by competent judicial, administrative or legislative authorities, and a fair and public hearing by a competent, independent and impartial tribunal established by law.

                    Unequal Pay - More than a "Principle" Required: Since 1912 tribunals, commissions and legislatures - both State and federal - have restated the equal pay principle. However, women remain without equal pay or equal remuneration. Those circumstances indicate that a statement of principle, however necessary, is insufficient to bring the principle into effect and that active steps need to be taken by those who state the principle to ensure that the authority of the statement and their own authority is not undermined by failure to implement the principle.

                    Ending unequal pay or remuneration requires several active steps:

                      1. The development of an equal pay or remuneration principle along the lines of that recommended by the New South Wales Industrial Commission and set out in the submissions of the TTLC in these proceedings.

                      2. The holding of a work skills value inquiry by the Commission to develop a working knowledge of the way in which women's paid work has been systematically undervalued and to reassess the value of women's work in various trades and occupations.

                      3. Before conducting a work skills value inquiry, or as a necessary part of such an inquiry, Commission members must undergo familiarisation with the principles underlying discrimination law and concepts and undertake training in anti-discrimination.

                      4. The holding of regular work skills value inquiries - say, every five years - in recognition of the impossibility of redressing systemic discrimination in paid work and remuneration by means of a single inquiry.

                    Furthermore, the Commission should systematically review all awards and agreements to ensure the application of an equal remuneration principle systematically throughout industry, trades and occupations on a regular and recurring basis. Such reviews should build on findings of work skills value inquiries for the purpose of ensuring that award and agreement reviews do not fall back on entrenched notions of work value and "what women's work is worth".

                    All awards and agreements should contain standard clauses requiring (a) management, employers and employees to undergo regular programmes of education and training in anti-discrimination; and (b) provision of paid work time for management and employees to participate in education and training in anti-discrimination conducted outside the workplace. In addition, workplaces should be required to provide conditions of work that enable male and female employees with family or similar responsibilities to participate in the workplace without discrimination.

                    Legislative Change/Facilitation of "Cross-Vesting": It is apparent that there are "cross-overs" in claims coming before the Anti-Discrimination Tribunal and claims coming before the Industrial Commission. A method or mechanism should be developed to provide a "one stop shop" for dealing with such claims. That objective could be achieved by members of the Tribunal and the Commission holding dual appointments so that members of both could hold joint sittings in respect of claims involving industrial and discrimination aspects. To facilitate such an outcome an Office of the Industrial Discrimination Registrar (or Employment Discrimination Registrar) should be established to determine which claims before either the Tribunal or the Commission involve both industrial and discrimination issues and to facilitate the convening of joint sittings and other tasks in relation to joint hearings of the Anti-Discrimination Tribunal and the Industrial Commission.

                    General Remarks: While TCCI initially states that it does not object to the principle of equal remuneration or the concept of equal pay for work of equal value it nevertheless submits that the Commission should not adopt such a principle because (a) there is no evidence before the Commission of unequal remuneration, and (b) the Women in Paid Work Task Force has neither adopted the recommendations of the New South Wales inquiry nor reported to the Premier.

                    TCCI also appears to suggest that minimum rates awards are the appropriate avenue for claims of unequal remuneration. That submission simply begs the question. The question is whether the proper setting of minimum rates awards incorporates issues of unequal pay and whether those who set the minimum rates in question actually do so in relation to unequal pay, unequal remuneration, sex or gender.

                    Furthermore, any principle that the Commission might introduce to deal with equal pay or equal remuneration cannot rely on unions to lodge the necessary applications. The Commission itself must be serious about ensuring that the principles it adopts are effectively put into operation. If that should require legislative change then that need, too, should be addressed. However, there is another way and that is by the Commission conducting a work skills value inquiry. By undertaking such an inquiry the Commission will find out what is going on in Tasmania concerning women's wages and identify inequities that already exist in the setting of pay rates for women, particularly in the industries traditionally occupied by women.

                    If the Commission should decline to take that approach it will bring itself into disrepute because there is no doubt that, concerning the 1969 and 1972 equal pay cases, the federal Commission is effectively in disrepute. There is no point in introducing principles if the Commission has no means of ensuring that they are effectively implemented.

                    There is actual discrimination against women built into the industrial system in terms of pay rates. All the evidence in Australia, including Tasmania, is that enterprise bargaining has led to greater pay differentials between women and men.23 It cannot be argued that these matters are outside the scope of this hearing because, for instance, the Victorian Supreme Court has twice acknowledged that judicial notice must be taken of the fact that discrimination exists within society.24

                    Notwithstanding TCCI's submission to the contrary, there is a need for an equal remuneration principle.

                    Proposed Principle: The Anti-Discrimination Commissioner tendered a proposed Equal Remuneration Principle for our consideration. While the suggested Principle differs in small ways regarding construction, wording and form nevertheless, as to its substantive effects, it is no different from that proposed by TTLC. In the circumstances, for purposes of avoiding unnecessary repetition, we have not included details of the Commissioner's proposed Principle in this recital of her submissions.

                    Chair - Women in Paid Work Task Force

                    In December 1999 the State Government convened a Women in Paid Work Task Force to examine issues for women working in both public and private sectors of employment. The Task Force's terms of reference included the following:

                    "Consider the findings and recommendations of the NSW Pay Equity Inquiry and identify their relevance and applicability (if any) to the Tasmanian context."

                    The New South Wales Inquiry utilised a case study approach for the purpose of comparing remuneration in female dominated industries and occupations with remuneration in male dominated industries and occupation. The Inquiry found that:

                    "... despite the introduction of the principle of equal pay for equal value over 30 years ago, under-valuation and wage discrimination remain. All of the areas and occupations examined in the Inquiry raised significant issues about the under-valuation of female occupations and industries."

                    The Inquiry concluded that the New South Wales industrial system, modified to allow the identification and rectification of undervaluation by means of an equal remuneration principle, would provide the most effective means of rectifying systemic pay inequities.

                    The Tasmanian Task Force, after considering the findings and recommendations of the New South Wales Pay Equity Inquiry, formed the opinion that they are relevant to Tasmania. In support of that view, the Task Force noted that Tasmanian women continue to earn less than men. In November 1999, women's average full-time ordinary weekly earnings were 84% of that of men - a gap that is widening and which is already greater than the national average.

                    Women's under-representation in management and senior management positions may be partially responsible for such a gap. However, pay inequity can also be attributed to the gendered horizontal segregation that continues to be a feature of the Tasmania workforce. 1996 census data indicates that women comprise approximately 79 percent of those employees working in the health and community services sector; 64 percent of those working in cultural, recreational and other personal services; and 64 percent of those employed in education. In contrast, women continue to be under-represented in the comparatively well paid mining (9.7 percent); construction (11 percent); communications (2 percent); and utilities (14 percent).

                    The Task Force believes that, taking into account the persistent gender wage gap and the findings of the New South Wales Pay Equity Inquiry, there would be great value in expanding the Tasmanian Wage Fixing Principles to include an equal remuneration principle. Such a principle would provide a much needed mechanism for raising, investigating and arbitrating pay equity issues without committing the Commission to a particular position on any particular pay equity question.

                    The terms of reference of the Task Force require it to report to the Government; however, they contain no instructions or time line as to when that report should be made. TCCI's assumption that there is to be one large report at the end of the working life of the Task Force is inconsistent with both the discussions and operation of the Task Force. In that context the Task Force, having considered the recommendations of the New South Wales Pay Equity Inquiry, has written to the Minister for Industrial Relations and to the Premier setting out its views. In the circumstances, it is arguable that the Task Force has already reported on those matters as required by its terms of reference.

                    In relation to the Government's proposed fairly simple principle the issue is whether the definition of "equal remuneration" should simply be, as the Minister proposes, straightforward pay equity for work of equal value or the more definitive description provided in ILO Convention 100 - a definition subsequently adopted by the New South Wales Pay Equity Inquiry. The ILO Convention 100 is a better and more appropriate definition.

                    The New South Wales inquiry also concluded that enterprise agreements and over-award payments are valid considerations in a pay equity context.

                    In the context of public interest and reasons why this Commission should adopt a pay equity principle, the New South Wales inquiry found that much of the economic evidence put to it predicted adverse economic impact, lacked foundation and generally overstated the impact. However, the evidence of the New South Wales Treasury, which the Inquiry basically adopted, suggested that pay equity adjustments would improve economic welfare where they resulted in a better allocation of resources which would lead to a higher level of productivity. Such an outcome is in everyone's interests, including those of employers.

                      Tasmanian Chamber of Commerce and Industry Limited

                      TCCI does not object in principle to the concept of equal remuneration for work of equal value. However, the organisation opposes all the proposals that support inclusion of an equal remuneration principle into the Wage Fixing Principles for a number of reasons.

                      First, there is no evidence before the Commission that demonstrates the existence of any pay inequities in an award system in which the Commission's jurisdiction is to make minimum rates awards only.

                    Second, the Pay Equity Task Force, to which the submissions of the Anti-Discrimination Commissioner and the Chair - Women in Paid Work Task Force refer, is required to report to the Premier. The Task Force has not yet reported to the Premier. Consequently, any proposal to create an equal remuneration principle at this time would preempt the outcome of the Task Force report.

                    Third, the New South Wales Industrial Commission has not at this time adopted a pay equity principle.

                    Fourth, the Commission's jurisdiction is to make properly structured minimum rates awards that, by law, prescribe the rates of pay that an employer must pay an employee. There cannot be inequities in such a system and no evidence has been put to the Commission to the contrary.

                    Fifth, given its minimum rates awards jurisdiction, the Commission has no power to intrude into the over-award area, which is the area of operation of the equal remuneration principle proposed by TTLC, the Minister, the Anti-Discrimination Commissioner and the Chair - Women in Paid Work Task Force.

                    Sixth, the Anti-Discrimination Commissioner's submission goes to many issues that are outside the scope of the current proceedings and, in addition, touch upon legislative issues that are not capable of being dealt with by the Commission.

                    More generally TCCI states that, as a member of the Women in Paid Work Task Force, the organisation has not agreed to accept the findings of the New South Wales Pay Equity Inquiry. Furthermore, TCCI has not agreed to establish an equal remuneration wage fixing principle.

                    TCCI does not necessarily disagree with statements made by TTLC concerning pay equity and, in particular, the Industrial Relations Act 1984 and the Anti-Discrimination Act 1998. However, the proposal for an equal remuneration principle is completely new ground for the Industrial Commission. In that regard the TTLC, the Minister, the Anti-Discrimination Commissioner and the Chair - Women in Paid Work Task Force have not made out a case for inclusion of such a principle in the Wage Fixing Principles now under review. The Task Force should be allowed to complete its review and report to the Premier in accordance with its terms of reference. Consequently, TCCI does not support the proposed principle at this time.

                    In the alternative, but only as a secondary position, if the Commission should decide to adopt a pay equity principle then it should prefer that proposed by the Minister stating, in addition, that the principle will only have operation in relation to the Commission's jurisdiction, i.e. minimum rates in awards.

                    Decision:

                    We begin our consideration of the issues with a number of the observations of the Anti-Discrimination Commissioner (the Commissioner). From the outset the Commissioner's submissions urged us to accept, as did TTLC, without any supporting evidence other than the recommendations of a New South Wales Inquiry and a single statistic taken from the 1991 National Wage Case decision, that "there is actual discrimination against women built into the industrial system in terms of pay rates".

                    In relation to pay equity in Tasmania there is no substantive evidence before us of any relevant kind that tends to support the assumption the Anti-Discrimination Commissioner urged us to accept concerning the question of discrimination and the awards of the Tasmanian Industrial Commission. In the circumstances, since we do not know what the factual position is, one way or another, we decline to make finding requested of us by the Commissioner.

                    Concerning training, we acknowledge that the Commissioner's reference in part went to events that might happen before a work skills value inquiry. However, part of the Commissioner's submission also envisaged that relevant training might be "a necessary part of such an inquiry."25 In our view the only way in which "training" could occur during the course of disputed or arbitrated proceedings would be by way of submissions and evidence presented during the course of proceedings, to which opposing parties could respond as they thought fit. The Commission's task then would be to weigh the submissions and evidence and determine the issue in accordance with equity, good conscience and the merits of the case.

                    The Commissioner, in her submissions, stressed the necessity for the Commission to actively take positive steps to end discrimination in paid work, including that existing in or arising out of unequal remuneration. Principal among those active steps was that the Commission, of its own motion, should hold a work skills value inquiry "to develop a working knowledge of the way in which women's paid work has been systematically undervalued and to reassess the value of women's work in various trades and occupations".26

                    We believe the Commissioner's assertion as to what the Industrial Commission might do of its own motion demonstrates a misunderstanding of the limitations of the Industrial Relations Act 1984. In our opinion, the provisions of Division 2 of Part II of the Act, taken in their totality, make it clear that the legislation does not confer on the Commission any right to instigate action. The Commission's role is purely a responsive one, its functions being limited to hearing and determining any "matter arising from or in relation to an industrial matter" that may come to it by means of Sections 23, 29 or 55 of the Act.

                    Of course, as the Commissioner quite properly conceded, Parliament could amend the Industrial Relations Act 1984 to confer upon the Commission such additional powers as the Parliament believed appropriate. If such were to be the case, rather than a narrow amendment of the kind just discussed, we would suggest a more broadly-based amendment going to the whole question of pay equity - perhaps of the kind now in place in New South Wales.

                    Turning now to the submissions in general, the issue is whether, in response to the submissions of TTLC, the Minister, the Commissioner and the Chair-Women in Paid Work Task Force, we should create an equal remuneration principle to guide members of the Commission and the parties when dealing with applications, including applications to vary awards, regarding pay equity. As the Minister pointed out, it is most likely the case that there is no statutory impediment to parties making such applications at the present time.

                    TCCI clearly opposes the creation of a pay equity principle at the present time. In support of that position, the organisation relies in particular on the absence of evidence of discrimination and the incomplete nature of the work of the Women in Paid Work Task Force. As to the question of evidence, we believe that is a matter which goes to the merit of any particular application or applications and, as such, is an issue for consideration by the Commission at the relevant time. As for the work of the Task Force, we accept the submissions of the Chair that relevant reports have already been made to the Premier and the Minister regarding pay equity.27

                    Consequently, it seems to us that the Minister is correct (reflecting also, in part, the submissions of TTLC, the Commissioner and the Chair - Women in Paid Work Task Force) in suggesting that pay equity applications should be afforded the same basic criteria as now exists in the Wage Fixing Principles regarding other matters. We agree. Accordingly, we have decided to create an equal remuneration principle.

                    The TTLC and the Commissioner differ from the Minister, however, as to what constitutes basic criteria. In that regard, the draft principle proposed by both TTLC and the Anti-Discrimination Commissioner is, in our view, too prescriptive. We believe that this principle, like others that have comprised Wage Fixing Principles in the past, should be developed by the Commission over time in consultation with the parties having regard to experience derived from actual application of the principle. Consequently, concerning content, we are not prepared to go as far as urged by the submissions of TTLC and the Anti-Discrimination Commissioner.

                    By introducing an equal remuneration principle our purpose is to create a procedural mechanism by which applications, including applications to vary awards, concerning pay equity claims may be made and tested. In creating that mechanism we do not imply or make any findings about the existence or otherwise of in-built discrimination in the industrial system in Tasmania.

                    The new principle will take the following form:

                    "18.   PAY EQUITY

                    18.1 In this Principle 'pay equity' means equal remuneration for men and women doing work of equal value.

                    18.2 Applications may be made for making or varying an award in order to implement pay equity. Such applications will be dealt with according to this principle.

                    18.3 Pay equity applications will require an assessment of the value of work performed in the industry or occupation the subject of the application, irrespective of the gender of the relevant worker. The requirement is to ascertain the value of the work rather than whether there have been changes in the value of the work. The Commission may take into account the nature of the work, the skill, responsibility and qualifications required by the work and the conditions under which the work is performed (which has the same meaning as it does for Principle 8 - Work Value Changes).

                    18.4 A prior assessment by the Commission (or its predecessors) of the value of the work the subject of the application, and/or the prior setting of rates for such work, does not mean that it shall be presumed that the rates of pay applying to the work are unaffected by the gender of the relevant employees. The history of the establishment of rates in the award the subject of the application will be a consideration. The Commission shall broadly assess whether the past valuation of the work has been affected by the gender of the workers.

                    18.5 The operation of this principle is not restricted by the operation of other wage fixing principles. However, in approaching its task, the Commission will have regard to the public interest requirements of Section 36 of the Act."

                    E. THE NEW PRINCIPLES

                    The new Wage Fixing Principles appear in Attachment "A". In our opinion, the next review of the Wage Fixing Principles should not occur until the time of the first State Wage Case Safety Net Adjustment Review that commences on or after 1 July 2001.

                     

                    F D Westwood
                    PRESIDENT

                    Appearances
                    Ms L Fitzgerald for the Tasmanian Trades and Labor Council.
                    Mr I Paterson for the Tasmanian Trades and Labor Council and the Australian Municipal, Administrative, Clerical and Services Union.
                    Mr P Tullgren for the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch.
                    Mr P Baker for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.
                    Mr C Brown for the Health Services Union of Australia, Tasmania No 1 Branch.
                    Mr P Noonan for the Shop, Distributive and Allied Employees Association, Tasmanian Branch.
                    Mr R Miller for the Community and Public Sector Union (State Public Services Federation Tasmania).
                    Mr R Flanagan for The Australian Workers' Union, Tasmania Branch.
                    Mr M Watson with Mr T Edwards and Mr R Brown for the Tasmanian Chamber of Commerce and Industry Limited, the Metal Industries Association Tasmania, The Hop Producers' Association of Tasmania, the National Meat Association of Australia (Tasmanian Division), The Registered Clubs of Tasmania Cooperative Society Limited, Tasmanian Chamber of Retailers, Tasmanian Newsagents Association.
                    Mr C Willingham and Mr T Pearce for the Minister for Justice and Industrial Relations.
                    Mr W J Fitzgerald for the Australian Mines and Metals Association (Incorporated).
                    Dr J Scutt intervening for the Anti-Discrimination Commission.

                    Ms E Little with Ms J Pearson intervening for the Women in Paid Work Task Force.

                    Date and Place of Hearing
                    2000
                    April 7
                    May 9, 31
                    June 21
                    Hobart

                      TASMANIAN INDUSTRIAL COMMISSION

                      REVIEW OF WAGE FIXING PRINCIPLES JULY 1999

                      THE PRINCIPLES

                    1.        INTRODUCTION

                      These Principles, to be observed in the jurisdiction of the Tasmanian Industrial Commission, are intended to provide criteria and guidance to the parties in relation to claims for changes to wages and conditions of employment.

                    2.        PREVIOUS STATE WAGE CASES

                      Increases available under previous State Wage Case decisions relating to structural efficiency adjustments, minimum rates adjustments and safety net adjustments will, on application, continue to be accessible. Such applications will be determined using the relevant principles contained in those decisions, notwithstanding that all earlier statements of principle are otherwise set aside.

                      The spacing of increases to awards determined by previous State Wage Case decisions may be determined by agreement between the parties to any particular award or failing agreement by decision of the Commission.

                    3.        ROLE OF THE COMMISSION IN WORKPLACE BARGAINING

                      The Commission will continue to play an active role in encouraging and facilitating workplace bargaining. In that regard, in the exercise of its statutory responsibilities pursuant to Section 36 of the Industrial Relations Act 1984, the Commission will act to ensure that the proposed award or agreement does not result in a reduction in ordinary time earnings, or departure from parental leave standards or hours of work or annual leave with pay, and the agreement or award, taken as a whole, will not disadvantage the employees concerned unless the Commission is satisfied that circumstances justify otherwise.

                      For the above purpose, "disadvantage the employees concerned" means by reference to the safety net of wages and conditions of employment as detailed in Principle 4-The Award Safety Net.

                    4.       THE AWARD SAFETY NET

                      Existing wages and conditions in the relevant award or awards of the Commission shall constitute the safety net underpinning workplace 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.

                    5.       ARBITRATED SAFETY NET ADJUSTMENT

                    5.1 All wage rates in awards, including junior, apprentice and trainee rates (on a proportionate basis) may be varied from time to time to include arbitrated safety net adjustments in accordance with determinations of this Commission.

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

                    5.3 The safety net adjustment will only be available where the rates in the award have not been increased, other than by safety net adjustments, or as a result of the Minimum Rates Adjustment or Work Value Changes Principles, since November 1991.

                    6.    FORM OF ORDERS

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

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

                    6.3 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.

                    6.4 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 the Commission.

                    7.     ALLOWANCES

                    7.1 Existing Allowances

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

                    7.1.2 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.

                    7.1.3 Existing allowances of the type referred to in 7.1.2 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.

                    7.2 New Allowances

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

                    7.2.2 No other allowances may be created unless justified by changes in work, new work or conditions and only if justified under the relevant principle. The relevant principle may be either the work value changes or first awards and extensions to existing awards principles.

                    7.2.3 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 these Principles.

                    8.    WORK VALUE CHANGES

                    8.1 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.

                    8.2 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.

                    8.3 The time from which work value changes in an award should be measured is, unless extraordinary circumstances can be demonstrated, 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.

                    8.4 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.

                    8.5 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.

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

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

                    8.8 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.

                    9.   PAY EQUITY

                    9.1 In this Principle 'pay equity' means equal remuneration for men and women doing work of equal value.

                    9.2 Applications may be made for making or varying an award in order to implement pay equity. Such applications will be dealt with according to this principle.

                    9.3 Pay equity applications will require an assessment of the value of work performed in the industry or occupation the subject of the application, irrespective of the gender of the relevant worker. The requirement is to ascertain the value of the work rather than whether there have been changes in the value of the work. The Commission may take into account the nature of the work, the skill, responsibility and qualifications required by the work and the conditions under which the work is performed (which has the same meaning as it does for Principle 8 - Work Value Changes).

                    9.4 A prior assessment by the Commission (or its predecessors) of the value of the work the subject of the application, and/or the prior setting of rates for such work, does not mean that it shall be presumed that the rates of pay applying to the work are unaffected by the gender of the relevant employees. The history of the establishment of rates in the award the subject of the application will be a consideration. The Commission shall broadly assess whether the past valuation of the work has been affected by the gender of the workers.

                    9.5 The operation of this principle is not restricted by the operation of other wage fixing principles. However, in approaching its task, the Commission will have regard to the public interest requirements of Section 36 of the Act.

                    10.   FIRST AWARD AND EXTENSION TO EXISTING AWARD

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

                    10.1 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. Other considerations will be that the award meets the needs of the particular industry or enterprise and ensures that employees' interests are also taken into account.

                    10.2 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 the work already covered by the award.

                    11.   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.

                    12.   AWARD REVIEW PROCESS

                    12.1 The Commission requires that each award is to be reviewed to ensure:

                      (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 (Award Interest);

                      (v) the award is written in plain English;

                      (vi) inclusion of appropriate facilitative provisions;

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

                    12.2 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.

                    13.   ECONOMIC INCAPACITY

                      Any registered organisation with an interest in an award may apply on behalf of an employer or group of employers to temporarily reduce or postpone or phase in the application of any increase in labour costs under the Principles on the grounds of very serious or extreme economic adversity. The merit of such application will be determined in the light of the particular circumstances of each case and any material relating thereto shall be rigorously tested. The impact on employment at the enterprise level of the increase in labour costs is a significant factor to be taken into account in assessing the merit of any application.

                    1 7 April 2000.
                    2 Transcript 31/5/00, p. 236.
                    3 (1936) 55 CLR 499.
                    4 (1976) 11 ALR 449.
                    5 Above, p. 3.
                    6 Above, p. 7.
                    7 Statutory Interpretation in Australia, Third Edition, p. 12.
                    8 But see above, Principle 3 - Enterprise Bargaining.
                    9 Above, p. 8.
                    10 Above, p. 9.
                    11 Above, pp. 12-14.
                    12 Above, pp. 12-14.
                    13 T7638 and T7685 of 1998 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and the Construction, Forestry, Mining and Energy Union, Tasmanian Branch v Emu Bay Railway, Reasons for Decision 9 June 1998, p. 19.
                    14 Print Q1998, pp. 56-57.
                    15 Print Q7661.
                    16 Print R1999.
                    17 Print S5000.
                    18 Print Q7661.
                    19 Section 170LG.
                    20 100 CLR 312.
                    21 Above, p. 5.
                    22 Term of Reference 2: Introduction, p. 1.
                    23 1991 National Wage Case decision re Pay Discrimination.
                    24 Department of Health v Arumubam (1988) per Fullagar J and Victoria Police and Others v McKenna (1998) per Smith J.
                    25 Above, p. 65.
                    26 Above, p. 52.
                    27 Above, p. 55.

                    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)
                    Clothing Industry
                    Community Services
                    Concrete Products
                    Dairy Processing
                    Dentists
                    Disability Service Providers
                    Draughting and Technical Officers (Private Industry)
                    Entertainment
                    Estate Agents and Correction Order
                    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)
                    Independent Schools (Teachers) Tasmania
                    Insurance
                    Laundry and Dry Cleaning
                    Licensed Clubs
                    Meat Processing Industry
                    Meat Retailing
                    Medical Diagnostic Services (Private Sector)
                    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)
                    Textile
                    Timber Merchants
                    Totalizator Agency
                    Veterinary Services
                    Wholesale Pharmaceutical
                    Wholesale Plant Bakeries
                    Wholesale Trades
                    Wireworking