T5540
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Health Services Union of Australia WELFARE AND VOLUNTARY AGENCIES AWARD
Wage rates - State Wage Case December 1994 - Second $8 Arbitrated Safety Net Adjustment - application granted - award varied - operative ffpp 20 June 1995 REASONS FOR DECISION This concerns an application by the Health Services Union of Australia, Tasmania No 1 Branch (the HSUA) to vary the Welfare and Voluntary Agencies Award to add the Second Arbitrated Safety Net Adjustment, consistent with Principle 7.2.2 as determined by the Full Bench decision of 20 December 19941 . Mr Brown of the HSUA produced Exhibit HSUA.2, being a copy of the Welfare and Voluntary Agencies Award (No 2 of 1994) (the WAVA Award) to demonstrate that the first arbitrated safety net adjustment had been granted; and that because the operative date of that increase was the first full pay period on or after 18 January 1994, then more than six months had elapsed since then to the present time. The HSUA also acknowledged that, in accordance with the relevant principle, the second arbitrated safety net adjustment was not available before 20 June 1995, which coincided with the operative date sought. Similarly the HSUA drew attention to 7.2.2.3 of the principles and accepted that an employee who has received the second arbitrated safety net adjustment at an enterprise level will not be entitled to receive a second increase arising from the incorporation of the increase at an award level. Accordingly the present application was to cover all award employees other than those employees of Summit Industries who were granted the second $8 pursuant to this principle at the enterprise level in decision T No 5471 of 1995. Finally Mr Brown quoted and acknowledged that principle 7.2.2.4 provided that the amount of the arbitrated safety net adjustment may be reduced to the extent of any wage increase gained as a result of agreements reached at an enterprise level since 1 November 1991. A draft order was provided by the HSUA which, it believed, had full regard for the comments of the Full Bench decision relating to the question of observation of certain payments and in particular Principle 8 - Form of Orders. Mrs Dowd of the Australian Municipal, Administrative, Clerical and Services Union spoke in support of the HSUA application and the arguments advanced by it as justifying the variation sought. Mr Fitzgerald on half of the Tasmanian Chamber of Commerce and Industry Ltd (TCCI) indicated that not only was the present application opposed but that it was the position of his organisation that it would oppose any similar applications where it was considered that a "proper and meaningful" structural efficiency exercise had not been completed. Mr Fitzgerald said it was recognised that Principle 7.2 - Second Arbitrated Safety Net Adjustment - contained no real pre-condition to the granting of the second $8.00 safety net adjustment other than that related to the six month interval, however he felt it appropriate to refer to the decision of the Australian Industrial Relations Commission of 21 September 1994 - Safety Net Adjustment and Review Case2 - which he said took somewhat of a different view in that it required the meeting of a further test in relation to the need to include facilitative and majority clauses in awards. Mr Fitzgerald also referred to the position taken by TCCI in matter T No.5214 of 1994 which was in fact to mirror the Federal decision. This was to be found at page 25 of the Commission's Decision3, together with the Full Bench's findings in this regard, inter alia:
Mr Fitzgerald's submission in respect of this award was that there had been very little, if any, meaningful structural efficiency measures applied. He also said that whilst the comments of the Full Bench at page 25 (quoted above) show that it rejected the TCCI submissions to include further conditions as were imposed by the Federal decision, it did in rejecting it, say that to ensure the integrity of the process there must continue to be proper regard for the structural efficiency process. Mr Fitzgerald said that, in his view, the WAVA award contains little, if any, facilitative provisions. He submitted that the Australian Industrial Commission flexibility clauses provide that in non-union workplaces employers and their employees may reach their own agreements. Regrettably no such provision is made in what are fairly standard flexibility clauses such as that contained in the WAVA award. In particular reference was made to Clause 54 of this award which provides as follows:
Particular attention was drawn to subclause (b)(iv) which says that the relevant union or unions must be a party to the agreement. Mr Fitzgerald said that certainly this is a facilitative provision which allows agreement to be made but it is too restrictive and in contradiction to what was referred to as the "Federal test case" provision relating to Enterprise flexibility agreements because it provides only one mechanism requiring the approval of both the union and the Tasmanian Industrial Commission. He also said that it is debatable as to whether that would be a Section 55 (industrial) agreement or a (Part IV A), Section 61, (enterprise) agreement. It was emphasised by TCCI that whilst (Part IV A), Section 61 agreements may be between an employer and a trade union, they may also be made between an employer and his or her employees. The current award provision was therefore said to be inadequate in not recognising that fact. The view was that whilst it may be appropriate to have union involvement in some cases, employers should also have the ability and flexibility to be able to conclude an agreement with their employees without necessarily involving the union. Mr Fitzgerald said that at this stage the "Federal test case" flexibility provision had not been flowed through to the Tasmanian jurisdiction, however, to maintain the integrity of the processes endorsed by the State Wage Case Decision of 20 December 1994 it will be necessary for a similar provision to be mirrored in awards of this Commission. However at the moment there exists, in TCCI's view, a significant bar to continued structural efficiency improvement through this and most other awards of the Commission in that employers can only conclude an agreement with a union. It was argued that in the result, and in the absence of a proper facilitative provision, this award has received little benefit through the implementation of structural efficiency measures and for these reasons the present application was opposed. Decision I have decided to grant the HSUA application and to vary the award in a manner consistent with the Second Arbitrated Safety Net Adjustment Principle. My reasons are as follows:
Operative Date The foregoing amendment shall take place from the beginning of the first pay period to commence on or after 20 June 1995. Order to follow.
A Robinson Appearances: Date and Place of Hearing: 1 State Wage Case December 1994 - Review of Wage Fixing Principles - T No 5214 of 1994 |