T6553
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TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
Tasmanian Chamber of Commerce and Industry Limited
SECURITY INDUSTRY AWARD
Award variation - hourly wage rates - consent matter - application approved - operative date 8 June 1989
REASONS FOR DECISION
The applicant in these proceedings is the Tasmanian Chamber of Commerce and Industry Limited (TCCI). The organisation seeks to vary the Security Industry Award in a wide ranging way for the purpose of facilitating operation of the award by better expressing wage rate entitlements.
The sole respondent employee organisation, the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (ALHMWU) consents to the application as amended by me at the hearing of 12 December 1996.
An interesting history accompanies the application. On 8 June 1989 the then President of the Commission, responding to an application by the Secretary for Labour,[1] published an Interpretation regarding the predecessor of the current award, the Security and Watching Services Award. The subject-matter of that Interpretation concerned Clause 14 - Ordinary Hours and "the method by which the ordinary time rate should be calculated for a casual working regular night shift".
President Koerbin dealt with the matter in a comprehensive and detailed manner. However, he suggested to the award parties that "they may consider it desirable to clarify these issues by seeking a variation to put beyond doubt what is intended regarding multiple penalties and the casual loading". For this reason the then President did not make a declaration to give effect to his interpretation, but left it to the parties to request such an instrument should they so desire.
In the end no party requested President Koerbin to issue the relevant declaration. However, the evidence shows that both employer organisation and union nevertheless acted positively on the Interpretation. They did this by instructing their members to apply the methodology - with the sole exception of work performed on a public holiday - suggested by the President. That practice continues through to the present day, although unsupported by any complementary award variations.
The present application seeks to rectify that shortcoming by expressing hourly wage rates, including overtime penalties and casual loading, as a percentage of the appropriate award weekly wage rate. In this context the methodology adopted by the parties, which ensures that penalties are not cumulative, follows a similar approach used in the Cleaning and Property Services Award.
TCCI and ALHMWU both submitted that, for reasons outlined above, the application is entirely consistent with Wage Fixing Principles. In that context the evidence is that the application contains no wage rate increases; is consistent with continuing implementation at enterprise level of the structural efficiency principle; reflects the parties’ commitment to review the award; and contains no flow-on consequences because it is industry specific and based on historically sustainable actual industry practice.
Concerning date of operation, the parties jointly submitted pursuant to s.37(5) of the Act that the Commission should apply the proposed variations retrospectively. That is, from the first full pay period that commenced on or after 8 June 1989, the date of President Koerbin’s Interpretation.
In support of their submissions on this point, the parties invited me to note their agreement regarding retrospectivity and the extent of its effect. They also contended that I should form the opinion that there are special circumstances present that make it fair and right to award the degree of retrospectivity to which the award parties give their consent.
The parties' submissions and evidence satisfy me that their application is wholly consistent with and gives effect to the Wage Fixing Principles. Regarding the general public interest requirements of s.36 of the Act, the evidence convinces me that the application contains no detrimental economic effect for either the industry or the level of employment in Tasmania.
I turn now to the more specific public interest issue of retrospectivity. The parties’ submissions on this point, together with their responses to my questions, satisfy me that their claim for retrospectivity is not a contrivance but rests on demonstrably sound historical and factual grounds.
Having regard to all circumstances I will vary the award in the manner set out in the amended application. Furthermore, noting the parties’ consent and being also of the opinion that there exist special circumstances that make it right and fair to do so, I will vary the award retrospectively to the extent agreed by them. The relevant Order accompanies these Reasons for Decision.
B R Johnson
Appearances:
Date and Place of Hearing: |