T10504
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Transport Workers' Union of Australia (Victorian/Tasmanian Branch) Transport Workers General Award
Award variation - insertion of new minimum wage clause - consideration of whether clause can be inserted where lowest adult rate is less than the rate specified in the model minimum wage clause - application dismissed REASONS FOR DECISION [1] On 25 October 2002, an application was lodged by the Transport Workers' Union of Australia (Victorian/Tasmanian Branch), pursuant to s.23 of the Industrial Relations Act 1984 ("the Act"), to vary the Transport Workers General Award, by inserting a new minimum wage clause. [2] A hearing was convened to commence at 11.30 am, Thursday 16 January 2003 at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania. At the hearing Mr H Smith appeared for the applicant union, with Mr M Cook, and Ms J Thomas appeared on behalf of the Tasmanian Chamber of Commerce and Industry Ltd ("the TCCI"). Background [3] This application seeks to insert the minimum wage clause, as set out in clause 7 of the Wage Fixing Principles, which was established as a result of the decision of the Full Bench in the 2002 State Wage Case decision of 11 July 2002 (T10230, T10288 and T10289 of 2002). The amount of the minimum wage specified in the clause is $431.40 per week. [4] The Transport Workers General Award has not been varied to include safety net adjustments for a number of years. One reason being that registration of the Transport Workers Union of Australia, Tasmanian Branch was cancelled, effective from 19 January 2000 (T8800 of 2000). Subsequently, the Transport Workers Union of Australia (Victorian/Tasmanian Branch) ("the union") applied for an interest, pursuant to s.65A of the Act, in a number of awards, of which the Transport Workers General Award ("the award") is one. Award interest was granted effective from 22 July 2002, (T8846 of 2000). [5] On 21 October 2002, in matter T10296 of 2002, the union and the TCCI agreed to a process and timetable, whereby the 1997, 1998, 1999, 2000 and 2001 safety net adjustments would be phased into the award, commencing the first full pay period on or after 12 September 2002. This process will continue until February 2005. [6] Currently, there are weekly wages rates at three levels in the award that are less than the minimum wage sought. As from 6 February 2003 the only rate below that of the minimum wage will be at Grade 1 - $425.10. As at 1 February 2004 all adult rates in the award will exceed the amount currently expressed in the model minimum wage clause. Submissions For the applicant: [7] Mr Smith said that, once the new rates of pay effective from 1 February 2003 are in the award, only one classification will be less than the minimum wage, and that is Grade 1, which will be $6.30 per week short of the minimum wage. [8] In his submission, if the current application is not granted, then the matter of the minimum wage is unlikely to be visited again before the next round of staged increases becomes operative on 1 February 2004. He said that the application should not be held up on the basis of a grade that has application to very few, if any, employees. What is the point, he said, of a minimum wage if it cannot be inserted until all award rates are in excess of it? [9] Mr Smith said that the TCCI's opposition to this application was disappointing, when the union had accepted the TCCI's schedule of phased in payments to bring the award up to date. [10] He said that there had been no discussion about the minimum wage clause during the negotiations regarding the phasing in of the safety net adjustments and that the current application was the result of some comments in relation to the minimum wage made by the Commission at the hearing on 12 September 2002 [T10296]. For the respondent: [11] Ms Thomas said that the TCCI opposed the application at this point in time. She said that the Full Bench had made it quite clear that the minimum wage and the standard model clause contained in the Principles can only be inserted into an award where the minimum wage specified in that award is at least equal to the minimum wage of $431.40. As at the next increase in the Transport Workers General Award in February 2003 there is still one grade that is less than the minimum wage. That grade will not exceed the minimum wage until February 2004. [12] In the TCCI's submission, the application has been made 12 months too early. [13] In the Full Bench's State Wage Case Decision 2002, at paragraph 16, the Bench indicated a process where it would insert the Federal minimum wage into awards where the award rate is presently at the rate of the Federal minimum wage or in excess thereof. It then allowed the parties to awards to review various issues. [14] The principle of the TCCI has been that the minimum wage should not go into awards until it has relevance. Where a wage rate is less that the minimum wage, the effect [of the clause] would be to override the award rate. [15] Ms Thomas said that the parties have an agreed process for phasing in the minimum wage and the outstanding safety net adjustments and if the minimum wage clause were to be inserted at this point in time it would be contrary to the agreed process the parties have in place. FINDINGS [16] Firstly, it is necessary to examine exactly what the Full Bench said in the 2002 State Wage Case regarding the insertion of a minimum wage clause in awards where the lowest adult weekly wage rate is less than the minimum wage determined in that decision. The second step is to consider that decision in relation to the award the subject of this application. [17] Beginning at paragraph 16, the Full Bench said:
[18] As can be seen, Ms Thomas is not strictly correct when she asserts that the minimum wage clause can only be inserted into awards where the lowest wage rate specified in the award is at least equal to the minimum wage of $431.40 [19] What the Full Bench determined is that an application may not be made to the Commission to insert the minimum wage clause until after there has been a conference of the parties to the award and a number of issues have been considered, but, in any event, all awards of the Tasmanian Industrial Commission will have a minimum wage the same amount as the federal minimum wage within three years. [20] There is an apparent discrepancy between what each of the parties had to say regarding discussions or agreements in relation to the minimum wage. Mr Smith said that the insertion of the minimum wage clause had not been the subject of the discussions held to date in relation to the phasing in of increases to the award. Ms Thomas said that the parties had an agreed process for phasing in the minimum wage. It is likely that the reason for the seeming discrepancy is that Ms Thomas meant there was an agreed time at which the rate of $431.40 would intersect with the lowest rate in the award. However, what is clear is that there has not yet been a conference of the parties, as determined by the Full Bench. [21] The Full Bench decision requires the Commissioner who has an award as part of their "portfolio" to convene the conference, and I must accept responsibility for the fact that that has not yet happened. I note, however, that the Full Bench determined that the Commission should "convene a conference of the parties who have a statutory or registered interest in each of the awards." At the time of the Full Bench decision the Transport Workers Union (Victoria/Tasmanian Branch) was not a party to any awards of the Tasmanian Industrial Commission. There are no other unions who are party to the Transport Workers General Award. As indicated earlier, for various reasons, the award has not been maintained, including to the extent that safety net adjustments were not reflected in that award for many years. It is noted that that situation is now being rectified. [22] Mr Smith said that the current application had been made at the prompting of the Commission as currently constituted. For the record, what was said on the occasion of the hearing in Matter T No 10296 of 2002 (the phasing in of the safety net increases) was:
[23] It is now appropriate that the conference should take place. [24] I am not prepared to grant the application at the present time, but not for the reason that the award does not yet have all adult rates at or in excess of the minimum rate. The Full Bench did not say that was a prerequisite nor did the Full Bench say that all applications would have to be by consent. It may well be that at some future time that particular question will be arbitrated and determined in relation to this or some other award. What was determined was that a process needed to be gone through before an application could be made. That has not happened in the case of the Transport Workers General Award. [25] Now that the award is in the process of being brought up to date, I indicate to the parties that a conference will be convened by the Commission to consider the issues specified in the Full Bench decision in T10230, T10299 and T10289 of 2002, and I request that the parties notify the Commission with an agreed suitable date for the conference, such notification to be made within 14 days of this decision. [26] The application is dismissed pursuant to s.21(2)(c) of the Act, and I so Order.
P C Shelley Appearances: Date and place of hearing: |