IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This matter is an application by the Shop Distributive and Allied Employees Association, Tasmanian Branch, for the second structural efficiency adjustment available under the State Wage Fixing Principles.

The first increase was awarded with effect from the first full pay period commencing on or after 23 November 1989.

After a number of meetings between the parties, Mr. Targett for the Association, was able to tender to the Commission an exhibit entitled Retail Trades Award - Agreed Document on Award Restructuring. All the parties involved expressed support for the document and urged the Commission to accept the agreement, including the proposed operative date of the first full pay period commencing on or after 1 July 1990.

The Document which was altered during proceedings to meet certain needs of the Commission, is summarised as follows:-

1.      Operative Date:

2.      All Embracing Award:

3.      Floristry Apprenticeships:

4.     Annual Leave:

5.     Redundant Provisions:

6.     Managerial Classifications:

7.     Mixed Functions:

Amend the Mixed Functions clause to ensure that junior assistants receive the appropriate junior percentage of the higher rate.

8.      Minimum Period of Engagement:

That the minimum period of engagement is a matter which can be addressed in negotiations on enterprise agreements.

9.     Enterprise Agreements:

That a provision for enterprise agreements be inserted in the award.

10.    Trading Hours:

That if trading hours are extended beyond the current span, the parties to co-operatively re-examine the award to ascertain what changes may be necessary. The parties acknowledge that the "Special Cases" aspect of the Wage Fixing Principles may need to be invoked.

The parties specifically agree, without limiting the range of issues to be considered as part of this on-going review, to examine the following key matters:

penalty payments
span of ordinary hours
classification structure
minimum rates adjustment

Provided that if trading hours are not extended the unions are not precluded from pursuing their minimum rates applications.

Mr. Targett said that the document was "quite an historical agreement within the retail industry".1

He went on to say that "to be able to come to this Commission ... with an agreed position on an ongoing process, is of great significance"2; and further, "the mere fact that the ongoing process will involve the Commission, by the very nature of the type of processes that we have to go through, is one which will ensure that the Commission is well informed and, in control of, as time goes by".3

Mr. Targett submitted that the agreement was within the Wage Fixing Principles and that an agreement between the parties in such a large industry was in the public interest, having regard again to the ongoing processes the agreement envisaged.

In supporting the agreed document, Mr. Abey reiterated the view that it was an historical agreement and submitted that it was reflective of the commitment of the parties, both employer organisations and unions, to what he described as the "big picture down the road".4

Mr. Abey said the agreement had been reached "without rancour and without disputation". Mr. McDougall added that this was an "opportunity to go ahead and achieve something worthwhile in this award (which) should be grasped with both hands"5, and he believed the agreement did do that.

Both Mr. Abey and Mr. McDougall expressed the view that regardless of the question of trading hours there was a commitment to ensure that the award was made more relative to modern-day retail trading.

During the proceedings points 9 and 10 of the document, enterprise agreements and trading hours respectively, were the subjects of much debate resulting in substantial changes to the original proposals. These two matters are addressed in the following manner:

Enterprise Agreements:

This is the first application for the inclusion of a special provision in an award of this Commission to enable individual employers and employees, and their respective unions, to enter into non-registered agreements having as their primary objective the introduction of more flexible and efficient work practices which might otherwise be prevented by existing award conditions. The terms under which these agreements may be negotiated and regulated are set out in the new provision (see attachment). It will be noted that the Commission must be satisfied that the agreement is not contrary to the public interest and that it is consistent with the wage fixing principles before it can be accepted as taking precedence over the award.

Mr. Abey tendered a number of examples of such provisions in awards of the Australian Industrial Relations Commission in support of his contention that enterprise agreements are assuming a significant role in structural efficiency negotiations. He suggested that the proposed clause would provide employers with the opportunity to enter into workplace arrangements peculiar to their operations, which would enhance their productivity and competitiveness. The provision was regarded by his organisation as "a linchpin item" in the structural efficiency exercise. This view was not disputed by any party.

Trading Hours:

The parties indicated that if the position on shops' trading hours legislation had been settled, the process for total award restructuring would have been in place and possibly finalised to the extent that major award variations could have been effected. However, given their reliance on decisions of Government and Parliament on this issue, the parties claimed it would be inappropriate to make alterations to the award at this stage. Issues which the parties were waiting to negotiate included such major items as penalty rates, span of ordinary hours, and classification structure. Whilst the employee organisations claim such a review would be

warranted only if Parliament extends trading hours, the employers considered the review should take place as soon as a decision is made to extend or not to extend trading hours. It was claimed that these special circumstances have placed extraordinary pressures on the parties; even so they have been able to reach an agreement on a second structural efficiency adjustment package.

Consideration of the Issues:

The first nine points of the agreed document deal with matters which are contemplated within the structural efficiency principle. Of themselves, they represent substantial changes to the award and provide the opportunity for employees to negotiate greatly improved work patterns and practices.

However, the tenth point which deals with the parties' undertaking to cooperatively re-examine the award to ascertain what changes may be necessary for the new trading hours, presents the Commission with a dilemma.

The special external circumstances applying to the retail industry in Tasmania clearly have prevented the parties from embarking on a fundamental review of the award. So much so that they have only been able to commit themselves to engage in such a review when the trading hours question is settled.

From the Commission's point of view this qualified undertaking is unacceptable. The Wage Fixing Principles envisage the completion of these reviews before the second adjustment is to be made available, although it is noted that there have been some departures from this requirement. In particular, programmes and timetables for the implementation of structural efficiency measures have become acceptable in certain circumstances.

Accordingly, the parties are directed immediately to enter into negotiations for the purpose of conducting a fundamental review of the award, notwithstanding the legislative position in relation to shops' trading hours.

To ensure that this review and implementation progresses satisfactorily, I intend to relist the matter for Monday, 3 September 1990, at 10.30 am, or earlier, at the request of any party. At this hearing the parties will be required to report progress on their review and to present any proposed award changes. Without limiting the range of issues to be dealt with on that day, matters such as classification structure, penalty payments and span of ordinary hours, and a programme for ongoing review, should be addressed.

Given the nine previously mentioned efficiency proposals and the control measures determined by me, I am satisfied the package does not offend the public interest and I consider that with continued close monitoring by the Commission, the wage fixing principles will be observed.

In the circumstances the award will be varied in the manner sought with effect from the beginning of the first pay period commencing on or after 1 July 1990. The appropriate order to vary the award, incorporating the Attachment, should be prepared by the Association and submitted to me for consideration within fourteen days.

F.D. Westwood
PRESIDENT

1 Transcript, p.67
2 Ibid.
3 Ibid.
4 Transcript, p.72
5 Transcript, p.85

ATTACHMENT

ENTERPRISE AGREEMENTS

(a)    Notwithstanding anything contained in this Award, but subject to the provisions of this Clause, an enterprise agreement may be entered into between an employer and all or some of the employees engaged by that employer.

(b)    An enterprise agreement shall be subject to the following requirements:

(c)    An enterprise agreement shall be signed by the parties, being the employer and the union or unions, and contain the following:

(i) The terms of the agreement.

(iv) The means by which a party may retire from the agreement.

(v) The means by which the agreement may be varied.

(vi) The means by which any dispute arising in respect to the agreement may be resolved.

(d)    (i)    A properly completed agreement shall be forwarded to the Industrial Commission.

Provided that the member of the Commission responsible for the Award is satisfied that the agreement is not contrary to the public interest, and that it is consistent with the wage fixation principles, the agreement shall be accepted by the member of the Commission as an agreement arising out of an Award as contemplated in Section 55(4) of the Act. If the member responsible is not so satisfied the member shall convene a conference of the parties for the purpose of clarifying and/or substantiating the agreement.

(ii)    If the agreement is accepted the parties shall be notified in writing and provided with a copy of the agreement and the agreement shall be forwarded to the Registrar to be filed.

(iii)    An agreement having been accepted by a member of the Commission shall, from the date of notification referred to in d(ii), to the extent of any inconsistency, take precedence over the Award.

(e)    The employer, upon being notified by the Commission of the acceptance of the agreement, shall provide a copy of the agreement to each affected employee.