T6481
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Construction, Forestry, Mining and Energy Union, FURNISHING TRADES AWARD
Award variation - final wage increase for unapprenticed junior workers - application approved - operative date ffpp 17 September 1996 REASONS FOR DECISION In my Reasons for Decision of 19 September 1996, in which I approved the Third $8 Safety Net Adjustment component of this application, I had the following to say about the issue now before me:
I subsequently adjourned this part of the proceedings and directed the parties to confer on the matter. When the hearing resumed before me today, Mrs W McMullan appeared for the applicant Construction, Forestry, Mining and Energy Union, Tasmanian Branch (CFMEU) and Mr M Watson appeared for the Tasmanian Chamber of Industry and Commerce Ltd (TCCI). The parties told me that they had conferred but could not resolve the issue. Accordingly, I proceeded to determine the question by arbitration. Both parties relied on submissions made at first instance, adding only some further oral explanation by CFMEU and case precedent by TCCI. In essence, if not in so many words CFMEU, in seeking an operative date of 10 April 1996, relied on the existence of a wage rate nexus between the federal Furnishing Trades Award 1981 and its State counterpart, the Furnishing Trades Award. The Union also relied on the historical acceptance of that date for the movement of a wide range of relevant wage rates following conclusion of proceedings in the Australian Commission. A different, later, operative date for the unapprenticed juniors covered by the current application, CFMEU submitted, would be unfair and contrary to the public interest. These grounds, CFMEU contended, satisfy the requirements of Section 37(5) of the Act as to "special circumstances that make it fair and right" for the Commission to give retrospective effect to the proposed award variation. TCCI submitted, in effect, that the circumstances outlined by CFMEU do not constitute special circumstances of the kind envisaged by Section 37(5) of the Act. TCCI argued that had the Union lodged its application in a timely manner, following conclusion of proceedings in the Australian Commission in May 1996, there would now be no contest regarding operative date. However, TCCI submitted, CFMEU did not make the necessary application until 17 September 1996, the first hearing date of this matter. In this context, TCCI said, the previous award clause expressly stated that the third increase for unapprenticed juniors "will be subject to further application and hearing in March 1996". In those circumstances, TCCI contended, CFMEU alone must accept responsibility for the outcome. In further support of the contention that the facts relied on by CFMEU do not constitute "special circumstances", TCCI referred to the following extract from a 5 November 1986 decision of a Full Bench of the Australian Commission concerning the Glass Merchants and Glazing Contractors (Tasmania) Award 1976:1
For the above reasons, TCCI submitted, there are no grounds in the present case for awarding any retrospectivity: however, if the Commission holds a contrary view, then retrospectivity should not extend back beyond the date upon which CFMEU made its application. Having had the benefit of time in which to consider the parties' earlier submissions, in addition to those put to me today, I rejected the CFMEU's application for retrospectivity on the grounds that responsibility for lodgment of timely applications rests with the Union itself and that a wage rate nexus with another award does not of itself connote a nexus as to operative date. These Reasons for Decision confirm the oral decision that I gave at the conclusion of today's proceedings awarding an operative date of the first full pay period to commence on or after 17 September 1996. Order
B R Johnson Appearances: Date and Place of Hearing: |