T265 and T266
IN THE TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
The applications lodged by the Tasmanian Trades and Labor Council (TTLC) in respect of public and private awards and the Tasmanian Public Service Association (TPSA) in respect of nominated public sector awards, sought to increase wage rates and allowances by 3.8% from the first pay period to commence on or after 4th November 1985.
Mr Lennon for the TTLC pointed out that the claim was consistent with the decision of the Full Bench of the Conciliation and Arbitration Commission handed down on 4th November last (Print G0700) and was being properly pursued in accordance with the Wage Fixation Principles of this Commission (T No 96 and T No 99 of 1985).
In particular the TTLC relied upon Principle 1(a), which provides:
Whilst he emphasized that the onus was upon those who might seek to persuade the Commission not to grant the full CPI increase for the March and September quarters of 1985, Mr Lennon dealt with economic indicators and quoted extensively from the Federal Full Bench decision.
Mr Lennon also quoted from the Tasmanian Treasurer's most recent Budget Speech; referred to the fall in the value of the Australian dollar; the trade union movement's acceptance of the devaluation being taken into account in subsequent wage claim hearings next year, and Tasmanian unemployment figures. He said that the economy is sufficiently strong to support the granting of the claim. This would be consistent with public interest requirements of the Act.
Additionally there are strong industrial relations reasons why the 3.8% should be applied, not the least of which was the fact that trade unions have kept to their side of the bargain and not pursued claims, except within the terms of the Principles during the relevant period.
Mr Evans of the TPSA supported that which was put by the TTLC.
He submitted that there are no good reasons why the claim should not be granted in the public interest and pointed to the fact that since Tasmania adopted the same Principles of Wage Fixation as the Conciliation and Arbitration Commission some 2 years ago, this State has enjoyed a high level of industrial stability.
Mr Evans said there bad been substantial compliance with the Principles of Wage Fixation by public sector unions and it followed that it was incumbent upon this Commission to have regard for this factor.
He too referred to aspects of the Tasmanian 1985/86 Budget Speech, such as amounts set aside for wages and salaries on the obvious assumption that Wage Fixing Principles will continue beyond the initial life of 2 years.
The Commission was urged to make a quick decision so that employees concerned might receive their increases promptly.
Supporting comments were made by the Hospital Employees Federation of Australia, Tasmanian Branch No 1; the Transport Workers Union; the Federated Liquor and Allied Industries Employees Union; the Association of Tasmanian Further Education Staff; the Association of Draughting, Supervisory and Technical Employees; the Royal Australian Nursing Federation, Tasmanian Branch; the Amalgamated Metal Workers Union, and the Federated Ironworkers Association.
The Australian Workers Union, represented by Mr Hanlon, also supported the case for granting the claims for a flow on of 3.8%. Mr Hanlon anticipated an application by the rural sector for some exemption on the grounds of incapacity to pay.
Somewhat extensive argument was put by him in relation to his contention that when the Commission was considering matters pursuant to Section 35 of the Act (Full Bench matters) Section 36 (Commission to be satisfied as to public interest) did not apply as it was only open for an intervener to either support or argue against the application as a whole.
Mr Jarman, representing the Minister for Industrial Relations as statutory intervener, quoted extensively from the National Wage Case transcript concerning extension of the life of the Wage Fixation Principles and reaffirmation of trade union commitment.
Mr Jarman said that it was considered to be appropriate for this Commission to make a decision on whether or not the Principles, established in 1983, are to continue and a further commitment required from all employee organisations if they seek to have the 3.8% wage and salary and allowances claims granted.
After hearing the various parties and interveners concerning this threshold question, the Commission adjourned and returned later in the day with the following announcement:-
The Commission's statement and invitation met with no response from any organisation wishing to register disagreement with the accuracy of the Commission's observations.
Subsequently Mr Jarman continued with a number of observations concerning unemployment levels in this State, progressive cuts in the Government's deficit, delays in the current case being heard, union disputation, and the ACTU/Federal Government accord on proposed future wage cases.
In summary, the Minister did not now oppose the 3.8% claim, or the same operative date as applied to Federal award workers.
Mr Abey, for the Tasmanian Chamber of Industries (TCI), submitted that in terms of economic sensibility the National Wage Full Bench decision is totally devoid of any redeeming features. He said the decision locks Australia into a high inflation rate compared to that of our major trading partners and we cannot continue on this path with impunity. The international community has in no uncertain terms shown us exactly what they think of the National Wage Case decision by the dramatic fall in the value of the Australian dollar recently.
Nevertheless the TCI considered it unrealistic that awards of this Commission be treated differently to those of the Federal Commission at this time and as a consequence the claim as presented was not opposed.
At the same time this Commission was urged to guard against following ACTU/Federal Government agreements in industrial matters without the strictest application and assessment of the merits of each case.
Mr Abey then directed the Commission's attention to what was described as a most serious dispute in the area covered by the State Aerated Waters Award.
During the previous ten days members of the Federated Liquor and Allied Industries Employees Union and the Transport Workers Union were engaged in strike action against Cadbury/Schweppes Drinks Division and Cascade Fruit Juice Co, in pursuit of a claim for a 36-hour week, contrary to the Wage Fixation Principles.
The dispute had been referred to the Commission and was before Commissioner Watling.
Commissioner Watling had recommended a return to work but this had been ignored by the unions concerned.
The submission of the TCI was that because the dispute is clearly outside the Wage Fixation Principles any favourable decision on the 3.8% claim should be withheld from the Aerated Waters Award, apart from that section affecting clerks. Mr Abey said his organisation had in fact come within an ace of asking this Commission to adjourn the hearing.
The Tasmanian Chamber of Industries also urged the Commission to follow that aspect of the Federal decision which required all unions with an interest in awards of this Commission to recommit themselves to the requirements of Principle 3 for a period of six months. This should be a prerequisite to the granting of the present claim. It was recognised that differences between the two Commissions could also make the methodology different in this regard.
The TCI also suggested that whereas currently some of our awards contain a basic wage and margin and others have a total wage, it would now be an appropriate time for all awards to have with a total wage for the sake of consistency.
Application was made by the TCI for Sections I, II and III of the Building Trades Award and Section I of the Plumbers Award to be exempted from any common rule award on the basis of a direct nexus with Federal award counterparts. Moreover there was a desire by both employer and employee interests on this occasion to rearrange the format of those awards after Federal award Orders have been settled.
Additionally an exemption was sought in relation to the day shift allowance appearing in sub-clause (a) of Clause 4, Part I of the Electrolytic Zinc Award. It has been agreed since 1976 that this amount is not to be subject to future adjustment.
Australian Mines and Metals Association (AMMA) expressed its disappointment with the National Wage decision but did not oppose a flow on at this time provided the Principles are extended for six months and union commitments are given for the same period.
AMMA addressed the concept of basic wage and margins and said whilst not opposing the submission of the TCI, nevertheless they did not necessarily believe a total wage concept was the best method.
The Tasmanian Institute of Technology (TSIT) did not oppose the application provided allowances to be moved were only those customarily given indexation increases in the past.
The Tasmanian State Institute of Technology supported the Tasmanian Chamber of Industries' submission concerning unions again giving a commitment to the Principles.
It also undertook to do its best not to delay the payment of any increase granted by this Commission.
Mr Durkin of the Tasmanian Farmers and Graziers' Association (TFGA) made a special plea for exclusion of the dairy industry in Tasmania frOm any increase in wage rates. And in this regard he sought an assurance that if the Commission was to flow on the National decision, one dual classification, (farm and/or general dairy shed hand) be separated in the Agriculturists Award to exclude a dairy shed hand.
The ground advanced was incapacity to pay.
TFGA did not intend delaying proceedings before the Commission but sought instead deferment of any increase to dairy shed hands pending a further hearing by this Full Bench, or a Commissioner sitting alone, to examine the capacity of the dairy industry to absorb the 3.8% increase in wages claimed.
Mr Durkin said the Commission should consider the repercussive effects of its decision pursuant to the requirements of Section 36 and indicated that approximately 70 per cent of dairy farmers had not received an increase themselves for three years. If given the opportunity he would be prepared to put a detailed case later.
The present proposal, he submitted, paralleled what occurred in the State Wage Case - April 1985 - handed down by the Industrial Relations Commission in Victoria in full session, decision No 26/1985, on 18th April 1985.
The Retail Traders Association added its support to the TCI submission, as did the Master Builders Association.
The TTLC and the TPSA and other organisations seeking the 3.8% increase were afforded the opportunity of responding to the various questions raised by employer organisations and the Minister during the course of the hearing, with particular emphasis upon the extension of the Principles for six months, recommitment to the no extra claims provision and award exemptions.
In their responses the FLAIEU and the TWU were asked by the Bench to explain the apparent inconsistency between their earlier commitment to no extra claims and the present industrial action in support of a 36-hour week.
The Commission also allowed other parties and interveners the opportunity of participating in a full debate on each of the various issues we are required to decide.
In its decision of 24 April 1985 (T96 and T99 of 1985) dealing with a 2.6% claim, the Commission went into much detail as that was the first of such cases before the newly constituted Tasmanian Industrial Commission.
On this occasion we have been requested by all concerned to issue an early decision to accommodate the present situation. It follows that we will be as brief as we can, consistent with dealing properly with all of the essential matters raised.
1. THE PRINCIPLES
The Wage Fixing Principles arose out of the 23 September 1983 National Wage Case decision (F2900) and with minor exceptions they came into being on 6 October 1983 and applied to all of those who met the no extra claims commitment for a period of two years from that date.
In Tasmania the Public Service Board and Industrial Boards adopted (mutatis mutandis) the same Principles on the same conditions.
With the advent of the Tasmanian Industrial Commission on 1 January 1985, the Principles were formally embraced by the Commission and all organisations for the balance of the unexpired term of two years.
When 6 October came and passed the outcome of the last National Wage case was being awaited and quite sensibly the status quo concerning the Principles remained without any suggestion that this was not entirely proper in the circumstances.
No party, intervener, employer, trade union or Government before us proposed that the time had come to abandon the Principles. Indeed the expressions of all concerned could lead to no other conclusion than that there is a strong desire that the Principles continue for at least a further six months. We also believe it is logical to keep firmly in place the package of principles for a further period because there needs to be a stable set of well understood and accepted wage fixing rules in our present society for reasons of both public interest and industrial relations considerations.
We have also decided that rather than run the risk of having a further situation arise where in six months time the Principles have again technically "expired" without being amended or replaced, they shall be extended by six months from 6 October 1985, or until varied or replaced.
We warn, however, that there is no automatic right by an organisation to assume entitlement to the benefits contained in the Principles without an unequivocal, strict adherence to the no extra claims commitment.
Principle 3 states:
We believe it is appropriate therefore to require all organisations of employees with an interest in awards of this Commission to give a further firm undertaking not to pursue claims except in accordance with the Principles. This should be given prior to award variation Orders being issued.
To facilitate this happening, we will reconvene a special hearing of this Full Bench at 10.00am on Tuesday, 26 November 1985 to receive such undertakings.
At that special hearing we would expect all unions to read into transcript their commitment for all the awards in which they have an interest.
The form of commitment required by the Commission is appended hereto. (Attachment "A")
We will also expect the commitment to be accompanied by a signed letter indicating:-
It is our decision also that once the commitment is given by all unions concerned, relevant awards will be varied to contain the following provision:
It is opportune, we believe, to underline to the industrial community as a whole, not just unions, but employers, both public and private, that whilst the Commission has continued to guard against any contrived arrangements which would otherwise circumvent the Principles, it cannot trespass upon areas not within its jurisdiction or carry the torch alone.
We point out that for the Principles to fulfil their aims and objectives, the public interest requires a commitment from all. No one group, unions, government or employers, can act in isolation from other groups if the present system is to work equitably and fairly.
There are some indications of a wages drift occurring through various mechanisms and an attitude apparent in some quarters that if parties agree to a deal this Commission will act as a rubber stamp.
We wish to firmly state that that which is illegitimate is the property of its parents and will not be adopted by us if it does not conform to the spirit, as well as the letter, of the Principles.
2. APPLICATIONS FOR EXEMPTION OR DEFERMENT
(a) The Aerated Waters Award
On the evidence before us we are not prepared to include the Aerated Waters Award in any common rule decision, apart from that part of the award which deals with clerks. We refer to Commissioner Watling, who has been dealing with the dispute raised before us, the question of whether or not the 3.8% claim should be applied, and if so, from what date.
(b) The Dairy Industry
The TFGA properly drew to our attention its concern as to capacity to pay any increase to dairy shed hands.
We are required to consider public interest considerations and be satisfied that any award or agreement is consistent with public interest before making such an award.
We do not agree with the AWU that Section 36 does not apply in common rule cases.
Specifically we are required by s36(a) to consider the economic position of any industry likely to be affected by a proposed award or agreement.
(c) Building Trades Award
3. THE CLAIMS
Principle 1(a) clearly provides that the Commission will adjust its award wages and salaries every six months in relation to the last two quarterly movements in the eight-capitals CPI unless it is persuaded to the contrary by those seeking to oppose the adjustment.
So far as the general claim is concerned no organisation opposed it.
Subject only to the exemptions granted and what we have said in relation to the no extra claims undertaking pursuant to Principle 3, and public interest requirements of Section 36, we have decided to grant the general claim for a 3.8% increase in wages, salaries and appropriate allowances as from the beginning of the first pay period to commence on or after 4 November 1985.
The awards to be varied are specified in Attachment "B".
Our decision also extends to orders and Registered Agreements of the Commission.
4. FORM OF AWARDS
(a) Parties again addressed themselves to the question of converting a residue of private sector awards from the basic wage and margin concept to that of total wage.
There was no consensus and we now indicate that a hearing will be convened to separately address this matter within the first six months of 1986.
(b) Public sector awards currently described as "Principal Awards" shall, from the date of this decision, cease to include the word "Principal" because it is now an outdated mode of description and does not conform with the new format.
5. FORM OF VARIATION
(a) The awards, orders and agreements to be varied as to wages, salaries and allowances are those nominated or requested by the applicants and appended to this decision, apart from the exemptions already stipulated.
(b) All appropriate allowances to be varied including:
(c) We do not believe it is appropriate to alter annual leave loadings where expressed as money amounts at this time.
The formula to be adopted for rounding off generally is as follows:
The increases shall operate from the beginning of the first pay period to commence on or after 4 November 1985.
The ............................................................................................. reaffirms
the commitment given in 1983 that it will not pursue any extra claims, award or overaward, except where consistent with the Principles of Wage Fixation of the Tasmanian Industrial Commission, and accepts the continuation of the commitment for a period of six months, or until the Principles are varied or replaced.