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T2622 - 23 August

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

T.2622 of 1990

IN THE MATTER OF AN APPLICATION BY THE FEDERATED LIQUOR AND ALLIED INDUSTRIES EMPLOYEES' UNION OF AUSTRALIA, TASMANIAN BRANCH TO VARY THE HOTELS, RESORTS, HOSPITALITY AND MOTELS AWARD

   
 

RE: STRUCTURAL EFFICIENCY

   

DEPUTY PRESIDENT

HOBART, 23 August 1990

   

REASONS FOR DECISION

   

APPEARANCES:

 
   

For the Federated Liquor and Allied Industries Employees' Union of Australia
Tasmanian Branch

- Mr N J Sherry with
  Miss R Davey

   

For the Tasmanian Confederation
of Industries

- Mr K Brotherson

   

DATE AND PLACE OF HEARING:

 

16 August 1990   Hobart

 

This matter concerns an application to vary the Hotels, Resorts, Hospitality and Motels Award in respect of the second "structural efficiency" adjustment in accordance with the requirements of the Wage Fixation Principles of the Commission.

The matter is one of consent and follows the handing down of a decision1 by the Australian Industrial Commission in a like matter affecting the Federal Hotels, Resorts and Hospitality Industry Award by Smith, C. in Melbourne on 21 June 1990.

The Tasmanian award is a mirror award in every sense and covers a small minority of establishments which for one reason or another, escape the broad respondency net of the Federal counterpart award.

However, the parties very properly acknowledged that it is a requirement that this Commission must have sufficient detailed evidence before it before it can be satisfied that all relevant criteria have been met to enable the variations proposed to be approved. Accordingly the changes proposed were dealt with clause by clause, and where appropriate exhibits were tendered.

It needs to be said that the industry concerned has been subject to an exhaustive examination with a view to enhancing flexibility and efficiency of work and also providing clearly defined career paths which may be enhanced by increasing the range of skills acquired.

An important component in this exercise has been close liaison with established training authorities to set up and extend relevant courses of training based upon an appropriate curriculum. And accreditation of those who have been trained will be recognised Australia wide.

Where in-house training occurs it too will be recognised as bona fide and receive the same accreditation by virtue of the close co-operation which has accompanied all negotiations.

Such a revolutionary change deserves to be recognised as a model of what can be achieved by employers and union to their mutual benefit and the benefit of the industry as a, whole. And it is an example which fulfils the objectives of the structural efficiency principle.

Other matters which formed part of the agreed package are as follows:

    1. the classification structure;

    2. the second structural efficiency increase (including allowances);

    3. the first minimum rates adjustment ;

    4. an alteration to hours of work allowing for persons to work between six and eleven and a half hours a day together with alternatives as to the number of hours per month;

    5. flexibility in meal breaks allowing for six hours of work to elapse before a requirement exists to take a meal break;

    6. additional part time employment provisions without any loading in circumstances where a minimum number of hours is worked;

    7. an exemption rate for the payment of penalties provided that a person does not earn less than they would have, had penalties been paid;

    8. anew system for recording time worked;

    9. a new level of adult minimum wage, although this may be removed when the new structure is inserted into the award;

    10. a limitation of a ten hours shift for persons under the age of eighteen;

    11. an alteration to the definition of "continuous service";

    12. a simplified bereavement leave clause;

    13. the introduction of a first aid allowance; and

    14. trainee wages.

There are a number of matters which have formed part of the package but are not sought to be resolved at this stage. They include the following:

- Higher and lower grade work;

- Part time loading;

- Board and lodging;

- Meal money;

- Penalty rates;

- Training arid training leave.

One further item "Enterprise Agreements" was deferred pro tem and will be re-listed at an early date for further hearing and determination.

Details of that proposal are as follows:

ENTERPRISE AGREEMENTS

(a) Notwithstanding anything contained in this award an agreement may be entered into (an "Enterprise Agreement") between an employer and all or some of the employees engaged by that employer.

(b) Such an agreement shall be implemented subject to the following requirements:

    (i) The changes sought shall not seek to alter provisions reflecting national standards.

    (ii) The majority of employees affected by the change must genuinely agree to the change.

    (iii) The agreement taken as a whole does not confer a lesser benefit to any employee than is available under the Award.

    (iv) The relevant Union will be advised by the employer of his intention to commence discussions for an agreement.

    (v) The relevant union or unions must be a party to the agreement.

    (vi) The relevant union or unions shall not unreasonably oppose any agreement.

(c) An enterprise agreement shall be written and signed by the parties and contain the following:

    · The term of the agreement.

    · The parties covered by the agreement.

    · The classes of employees covered by the agreement. The means by which a party may retire from the agreement.

    · The means by which the agreement may be varied.

(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:

    (a) That the agreement is not contrary to the public interest, and

    (b) The agreement 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 and that member shall henceforth notify in writing the parties forwarding the agreement of such acceptance.

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

The parties were put "on notice" that the proposal being advocated raised a number of fundamental questions which would need to be addressed in more detail.

Those questions went both to conformity with the provisions of the Industrial Relations Act as a whole as well as to merit.

Following the putting of preliminary submissions it was agreed that this particular item could be put aside pro tem and that the rest of the award could be viewed as separable and sufficient to justify granting the second structural efficiency wage increase.

Given that:

1. This award is a mirror award only and that the vast majority of establishments are covered by the Federal Motels, Resorts and Hospitality Industry Award, 1988.

2. The Australian Industrial Relations Commission has already endorsed the same package of changes advanced before this Commission.

3. The nature and extent of the changes themselves meet the requirements of the Principles and public interest.

I agree that the rest of the package is not dependant upon inclusion of this particular item, which can be further addressed in more detail at a later hearing.

Consistent with that objective and undertakings which I gave on transcript I now set forth a number of points for discussion, upon which the parties are invited to comment as a precursor to the final determination of this particular proposal. The list of matters is not meant to be exhaustive, or restrict any party, or the Commission in the reasons which may be relied upon to either support or appose the introduction of an "Enterprise Agreements" clause into the award.

    1. Is the proposed new clause consistent with the provisions of the Industrial Relations Act as a whole?

    2. How could such a provisions be enforced?

    3. Why would parties to enterprise agreements not utilise Section 55 in the normal way and have a registered agreement?

    4. Would not the simplified procedure for "ratification" by the Commission be likely to be procedurally deficient?

    5. How could disputes be settled?

    6. What is the relevance of "National" standards in the State jurisdiction?

    7. What is meant by the expression "the agreement taken as a whole does not confer a lesser benefit to any employee than is available under the award"?

    8. Given that the "Hotels, Resorts, Hospitality and Motels Award" has now been significantly modernised and scope extended for very flexible working arrangements by agreement, what is the demonstrated need for further enterprise arrangements.

    9. Since the State award is a minor, mirror award and the clause sought is not in the Federal award, is it intended that the past nexus be now broken?

It is my decision that on the material and evidence put before me there already is sufficient to satisfy the requirements of the Wage Fixing Principles and Section 36 of the Act to grant the application to vary the award, apart from those matters still to be determined.

OPERATIVE DATE

As from the first pay period to commence on or after 23 August 1990.

Order will follow.

 

A Robinson
DEPUTY PRESIDENT

1 C No 00389 of 1979, Print J3179