T3069 and T3166 - 13 August 1991
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Confederation of Industries PRIVATE SECTOR AWARDS AND AGREEMENTS and Tasmanian Trades and Labor Council PUBLIC AND PRIVATE SECTOR AWARDS AND AGREEMENTS
State Wage Case REASONS FOR DECISION [Previous Decision] On 9 May 1991 the Tasmanian Confederation of Industries (TCI) made application to the Commission to -
The hearing commenced on Wednesday, 29 May 1991; at the conclusion of the employers' submissions, which will be dealt with later, but which can be summarised as being submissions for the adoption of the national wage decision of 16 April 1991, the Minister intervening pursuant to Section 27 of the Act, sought an adjournment on the grounds that the public sector unions were not in attendance and more importantly, to allow time for the Government, with the agreement of the major employer and employee parties, to explore the possibility of developing a "tripartite approach" to wage fixation for this State. A document was tendered as an exhibit setting out the proposed headings for discussion between the parties if they wished to take part in the tripartite negotiations. It was submitted that an agreement, if reached, would be brought before the Commission "to scrutinise, to test and to ratify, hopefully, in the public interest". It was further submitted that the agreement would also require ratification by the Australian Industrial Relations Commission (AIRC) when that tribunal was dealing with the Tasmanian component of federal awards. The Tasmanian Trades and Labor Council (TTLC), in response, indicated its opposition to the TCI's application, but supported the application for an adjournment. The TCI did not oppose the application for an adjournment and indicated it was prepared to enter the proposed tripartite discussions, provided other employer organisations were involved and provided the TTLC would give an undertaking that there would be no industrial action in support of Accord Mark VI during the period of the adjournment. The TTLC replied that a strong recommendation would be made to its affiliates that no industrial action should be entered into in relation to Accord Mark VI while discussions on the Tasmanian solution (later known as Tasaccord) were taking place. As a result we issued a decision granting an adjournment until 24 June 1991. We made it clear that in coming to this decision the most influential factor had been the response from the Secretary of the TTLC that his organisation, to the extent that it was able, would recommend to all unions that no industrial action would be undertaken in support of the document known as Accord Mark VI. We indicated that any organisation wishing to put its point of view on the wage fixing principles should make an appearance in these proceedings for that purpose. When the hearing reconvened, the TCI and TTLC sought a further adjournment to allow the negotiations on Tasaccord to be finalised. As a consequence the hearing was further adjourned to 8 July 1991. On 3 July 1991 the TTLC made an application to vary all private and public sector awards to review the wage fixing principles in a manner which reflected the main components of Accord Mark VI being an agreement between the Australian Government and the Australian Council of Trade Unions dated 21 February 1990, marginally varied by the two parties on 20 November 1990. When the parties returned to the Commission on 8 July 1991, the Commission was advised that negotiations for a Tasaccord, despite the best endeavours of all involved, had failed. The competing application was joined. EMPLOYERS' SUBMISSIONS Mr. Abey submitted that the employers application to flow the National Wage Decision of April 1991 (Print J7400) to State private sector awards was "unremarkable" other than for the fact that the application was being made by the employers rather than the employees. He said the employers were anxious to ensure order was put into the industrial relations process as distinct from the law of the jungle approach or what the ACTU euphemistically described as `a vigorous campaign to secure a satisfactory outcome'. He explained the application was lodged to maintain an element of order and equity in the ongoing process of structural efficiency. The National Wage Decision, Mr. Abey asserted, had been handed down after the Australian Commission had carried out a most comprehensive examination of the state of the national economy, and it had set out in graphic terms many of the indicators establishing the fact that the economy was in severe recession. Mr. Abey submitted that Tasmania had not escaped the recession and that the Australian Commission's conclusions applied equally in Tasmania as they did for the economy as a whole. The Australian Commission, Mr. Abey contended, had heard the arguments, it had weighed up the economic circumstances, it had an appreciation of the industrial relations implications, it had recognised the need to continue the process of structural reform. Having done that it reached the conclusion that a 2.5% wage increase, to be available on an award-by-award basis, was appropriate. The employers, he said, given the state of the economy, considered the 2.5% increase to be "probably excessive", but they nevertheless recognised the Commission's responsibility to weigh up factors other than economic considerations. It was suggested that many of the awards of this Commission would be eligible for the 2.5% adjustment with little further amendment other than the insertion of the provision enabling an employer to direct an employee to carry out such duties as are within the limits of an employee's skill, competence and training. Mr. Abey was unconcerned as to whether the provision was inserted into all awards by this Full Bench, or on an award-by-award basis as a prerequisite for the wage increase. It was submitted that the structural reform process was of an ongoing nature and that the parties must commit themselves to the long haul. Thirty three or approximately one-half of the State's private sector awards had been varied for the second instalment of 3% available under the Structural Efficiency Principle. Only 10 awards had been varied for the first Minimum Rates Adjustment, and only 15 awards had been varied to insert new classifications and career structures. Mr. Abey concluded from this that although there was a lot still to be done, the process was working and that there were benefits for all in the minimum rates adjustments, classification structures, career paths and enhanced training available under the 1989 Principles. Mr. Abey's submissions were fully supported by Mr. Rice on behalf of the Retail Traders Association and the Tasmanian Farmers and Graziers Industrial Association. Mr. Abey considered that enterprise bargaining was one of the three essential elements of the National Wage Decision, the other two being the wage increase and superannuation. So far as enterprise bargaining was concerned, Mr. Abey submitted that the AIRC had not rejected the concept of enterprise bargaining. He said that the Commission was faced with an enormous dilemma given the immense range of views on the subject that it had received in submissions. These ranged from expressions of outright opposition to enterprise bargaining in any form, to the other extreme of the Commission keeping right out of enterprise bargaining as it would occur whatever the outcome. In between the extremes the parties to the National Wage Case had expressed varying degrees of acceptance for the concept, but there was no common thread of opinion as to the method of implementing an enterprise bargaining system. Given the divergence of views, Mr. Abey submitted that it was not unreasonable that the AIRC reached the conclusion it did at page 39 of its decision (Print J7400), which is repeated below:
On the question of superannuation, Mr. Abey contended that the AIRC had not rejected the claims but, understandably, had identified a number of major issues which needed to be addressed before a decision was made. He mentioned issues such a non compliance, application to casual, part-time and short-term employees, and the application of an increase to those already benefitting from non-award superannuation as being matters which needed consideration. On the resumption on 8 July, Mr. Abey informed the Commission that the Western Australian Commission had handed down a decision adopting the National Decision without modification, and that the New South Wales Commission had endorsed the national decision in large measure by granting the 2.5% wage increase or $10 per week, whichever is the greater, and had allowed for a form of enterprise bargaining which was available under specific New South Wales legislation. He also referred the Commission to a decision dated 20 June 1991, by Deputy President McBean, in the Bank Officials Federal Award (Print J8241) granting the 2.5% salary increase, subject to the required commitment being given by the Bank Employees' Union. A Full Bench of the AIRC, on 28 June 1991, had awarded Northern Territory public servants a 2.5% salary increase and inserted a no extra claims commitment on its own motion. Other federal decisions were referred to which provided for a 2.5% increase and a no extra claims commitment acceptable to the AIRC. The Australian Mines and Metals Association (AMMA) added its support for the adoption of the National Decision. In summary, the employers opposed the Accord Mark VI claims and supported the National Wage Decision for the reasons set out in that decision. TTLC SUBMISSIONS Mr. Bacon addressed ten major headings in support of the Accord Mark VI application and in doing so made submissions in rebuttal of the employer's application for the National Wage Decision flow-on. The headings were:
He said the TTLC viewed the structural efficiency principle and subsequent micro economic reform as crucial to Tasmania's future, and to modernise the Tasmanian economy to make it survive in the current competitive circumstances. Notwithstanding the economic indicators of unemployment in Tasmania at over 11%, he asserted that it was an unacceptably high price to ask workers to again tighten their belts. He claimed that the solution to Tasmania's problems would not be achieved by way of a low wage economy; the Tasmanian industry infrastructure was not set up for low skill mass production, a fact which had been recognised by the Tasmanian Development Authority and in State Government policy. The TTLC believed that the solution to Tasmania's economic difficulties was to pursue high value-added and quality market niches. The TTLC further submitted that increases proposed were sustainable because:
Mr. Bacon concluded that a wage increase at this time would not have a negative impact on the economy. It was submitted that a move towards enterprise bargaining would hasten a change in attitude by employers and employees to the issues affecting productivity in industry and commerce. In summary, Mr. Bacon asserted that restraint on wages growth would not provide a solution to Tasmania's economic difficulties and in periods of low inflation may, in fact, increase employment. He further asserted that the real gains would be made through a clear economic development strategy which linked investment and labour productivity. The latter would be encouraged through enterprise bargaining; the issue of an active investment strategy was to be taken up in other forums. From the equity point of view, Mr. Bacon claimed that in comparison with Consumer Price Index movements, wage movements in other States, and particularly movement in Federal awards, Tasmanian workers had not fared well. On that basis, in the interests of equity, the Commission should grant an across-the-board increase effective from a common operative date of 16 May 1991. The TTLC argued that the current circumstances were extraordinary and that there was precedent for this Commission, in extraordinary circumstances, to settle on objectives which were inconsistent with the National Wage Decision. The TTLC's version of Accord Mark VI was explained by Mr. Bacon and much of the ACTU's submission's to the AIRC, particularly pages 169 and 170, and 188 to 194 of the written submission in that matter was read into transcript to clarify the TTLC's position. Exhibit TTLC.5, dealt with the ACTU's approach to Accord Mark VI and the quantum of the increase. It was submitted that an across-the-board increase of $12 per week from a common date was of real importance in looking to protect lower paid workers, and to encourage them to participate in the continuing structural efficiency processes and in enterprise bargaining. In support of the claim for a flat amount of $12, Mr. Bacon argued that whilst relativities would be compressed, the trade union movement was prepared for such a compression in the interests of lower paid workers. The change would be minimal and the outcome more equitable. The pressure for corrective action on changed relativities would not occur because the trade union movement was prepared to see its higher paid members lose their relative position in the interests of the lower paid. The conditions imposed on accessing the 2.5% increase under the National Wage Decision were totally unacceptable to the union movement, Mr. Bacon said. These conditions were an "open-ended invitation to employers ... to pursue trade-offs in exchange for a wage increase", (transcript, p.118) and the union movement was not comforted by the National Wage Decision which, at page 46 of Print J7400, states:
Mr. Bacon claimed the new test which referred only to ordinary hours of work, might allow employers to reduce penalty rates. Another issue of concern was in relation to the National Wage decision requirement that the Scope and Incidence clauses of awards be examined. Such an exercise would impact on union coverage which was an area in which the trade union movement did not want employers to become involved. The TTLC was concerned also that facilitative provisions would be required in all awards, without the protection of the criteria contained in an award modernization clause (Print J7400, p.44). Further, the requirements for enterprises to establish an employer/employee consultative mechanism, whilst supported by the union movement in principle, was not acceptable as a pre-condition for a general wage increase. The TTLC strongly opposed the requirement that each award should contain a provision enabling the employer to direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training. It was argued that if those precise words were to be used, an employee with certain skills could be employed on a low classification and directed to perform work of a higher classification for which he or she had the appropriate skill, competence and training, without receiving appropriate remuneration. Such a situation would be contrary to the structural efficiency principle which sought to encourage employees to acquire and use new skills. Another concern was the possibility that an employee would be directed to perform duties completely unrelated to that employee's career path and/or award. For example a clerical employee could be directed to perform full-time courier duties if that employee held a driver's licence. The next condition required was that no award would be varied to give effect to the 2.5% increase until it had been varied to provide the second structural efficiency adjustment allowable in accordance with the August 1989 decision. The TTLC was unable to support this requirement because of -
On the issue of enterprise bargaining, Mr. Bacon proposed that the concept provided the impetus to convert award restructuring from the "paper work stage" to "real change at the workplace". The TTLC suggested that in addition to the requirements put forward in the ACTU-Government Agreement (Exhibit TTLC3, page 5), this Commission should deal with any enterprise arrangements containing provisions which were inconsistent with an award. Three options would be available to process enterprise agreements: First, an industry agreement could be negotiated which may be brought to the Commission for agreement. This could be implemented at the enterprise level and the agreement listed in a schedule attached to the relevant award. Second, an enterprise could negotiate its own agreement which would be referred to the Commission for ratification. Third, the parties could use Section 55 of the Act, which is currently available. In response to questions from the Bench, Mr. Bacon conceded that the TTLC claim did not contain a restriction or an aggregate wage outcome, although he expected it would be of the order of 6% in the twelve months to 30 June 1992. The Commission, he said, would have the opportunity to review the system if it feared excessive or unsustainable wage outcomes. It was argued that the minimum base for company enterprise arrangements should be the relevant award standard for conditions of employment including, for example, wages, penalty rates, leave entitlements, standard hours, leave loadings, sick leave, maternity leave, and occupational superannuation. The Commission was asked to endorse a set of enterprise bargaining guidelines which -
Mr. Bacon submitted that regardless of the outcome in this particular case, the Minimum Rates Adjustment (MRA) process should continue. He argued that MRA's provided a "one-off opportunity to properly set relativities between awards" and in this matter the TTLC supported the National Wage Decision. However the TTLC did not support the National Wage Decision in relation to the requirement that supplementary payments would be contained in a separate clause. Mr. Bacon contended that supplementary payments should be contained in the wages clause and he tendered an exhibit which demonstrated the reductions which would occur if supplementary payments were removed from certain awards. The TTLC disagreed with the AIRC's insistence that supplementary payments be defined as payments in lieu of over-awards. With respect to superannuation, Mr. Bacon submitted that Tasmania should "set everyone else a very good example" and award an additional 3% over time with a 1% increase applying from 1 July 1991. This claim was predicated on the need for a retirement incomes policy to meet the needs of employees; the need to increase national savings, and general support for increasing superannuation. Enterprise agreements would be attached to the award as a list or schedule to enable them to be accessed or identified. Such agreements, if they were inconsistent with an award, would have to be registered in accordance with the provisions of Section 55. Bargaining would have to take into account the profitability and productivity of an enterprise and its workforce, and the method of assessing profitability and productivity would have to be agreed. With respect to the Work Value principle, the TTLC argued that the change in the datum point from 1 January 1978 to the date of the second structural efficiency adjustment allowable under the previous National Wage Decision discriminated against those who had received the second adjustment, but were unaware that they would be precluded from accessing past work value options. Mr. Bacon submitted that the true intention of the principle was "that unions should not be able to double dip". A provision proposed by the TTLC would ensure that changes taken into account in any previous work value adjustments or a structural efficiency exercise would not be included in any evaluation under the work value principle. The TTLC submitted that contrary to the National Wage Decision, a paid rates awards principle should be inserted to permit the making of, and the adjustment of, paid rates awards. The new principle, together with a test to avoid untenable results, was consistent with the agreed position reached in the paid rates review conducted by the AIRC which is reproduced as Appendix C in the National Wage Decision (Print J7400). A statement by the Australian Nursing Federation was read into transcript indicating the Federation's desire to be free, under any new principles of wage fixing, to pursue newly established national standards. Mr. Heapy acknowledged, in response to a question from the Bench, that the Federation was "in unison with the rest of the union movement" in support of the TTLC's application. GOVERNMENT SUBMISSION In its submission to the National Wage Full Bench, the Government:
Following receipt of those written submissions the AIRC sought elaboration and/or clarification in respect of the issues raised by the parties and interveners. The Tasmanian Government responded to the AIRC questions which, from the Government's perspective, centred largely on the concept of enterprise bargaining and the structural efficiency process. The Government indicated that in its view the AIRC should provide the criteria and ground rules for enterprise bargaining and that it should ensure the proposed system operated under a set of easily understood principles. The Government submitted that any new system should be underpinned by the SEP, "particularly in the transition phase if the Australian Commission determined that it would include provisions for enterprise bargaining in the decision". Furthermore, it submitted the structural efficiency process must be completed before enterprise bargaining could be successfully introduced. Mr. Willingham, in referring to Tasaccord, stated that it was the Government's idea to initiate tripartite discussions in "a uniquely Tasmanian approach" to what he described as a volatile and uncertain industrial relations climate. He said:
Ultimately the parties were unable to put together a package capable of satisfying the objectives of those concerned. He said:
It was the Government's view, consistent with its approach since 1983, that the State Commission should adopt the decision of the National Wage Full Bench. There would need to be "powerful and compelling reasons advanced" to warrant a departure from the National Decision. No such reasons, Mr. Willingham said, were in evidence. Despite the confusion and the hiatus immediately following the handing down of the National Decision, the Government was confident "that increasingly the National Wage Decision will be adopted and accepted by most, if not all, parties". In commenting upon issues relevant to the application before the Commission, Mr. Willingham referred to: (a) The quantum of and the access to a general wage increase. Despite the Government's preferred position as the State's largest employer for an across the board increase of $12.00 per week, it was the Government's view that the Commission should adopt the National Wage Decision which provides under certain circumstances access to a 2.5% increase. The Government was also of the view that the Commission should adopt in tandem the conditions for access outlined in the National Wage Decision. (b) Enterprise bargaining. Mr. Willingham submitted that few if any of the major parties in industrial relations oppose the concept of moving in the direction of an enterprise based wage fixation system which has, as the basis for its wage movements, achieved gains in productivity and efficiency. Mr. Willingham reiterated the Government's view that before enterprise bargaining can be implemented detailed guidelines must be established including a crucial role for the Commission of scrutiny and ratification in accordance with whatever principles are in place. What is required, he stated, is for all parties to devote their time and energy to formulate agreed criteria for enterprise bargaining with unagreed matters being determined by the appropriate tribunal. The National Wage review of the wage fixing principles to be finalised after 1 November provides an opportunity for such criteria to be determined and the Government will submit accordingly when the review commences. (c) Superannuation. Further to earlier comments in relation to increased employer- funded superannuation, Mr. Willingham indicated that the Government supported the National Wage Full Bench's suggestion that the Australian Government should convene a national superannuation conference at which the Government looked forward to being a participant. In relation to the possibility of the Australian Government introducing legislation in respect of superannuation, the Government will formulate its views when that occurs. Mr. Willingham said that regardless of whether or not increased superannuation comes about by award prescription or by legislation, it should not be done in a vacuum. More appropriately, a national incomes retirement conference should develop policies and strategies both in the short and long term to deal with the important question of superannuation. (d) Principles The Government's position was that the national wage principles contained in Appendix A of Print J.7400, suitably amended to fit the State jurisdiction, should be adopted by the Commission, excepting the principle relating to paid rates awards which should be excised as being inappropriate given the awards of this jurisdiction. Mr. Willingham, in referring to the work value principle, drew the Bench's attention to the requirement that structural efficiency exercises should incorporate all past work value considerations. In respect of part-heard matters no submission would be put by the Government that any new Principles should act retrospectively to inhibit any of the special cases currently before this Commission. CONCLUSIONS The 16 April 1991 National Wage Case decision of the AIRC has been summarised most effectively in a decision of the Full Bench of the Commission (Print J8180, 18 June 1991) when dealing with the waterfront industry. That summary at pages 6 and 7 of the decision states: "In its decision of 16 April 1991, the Commission: (i) decided that, notwithstanding the economic difficulties outlined in the decision, a modest increase in wages was justified by the implication for real wages of continuing inflation and, more importantly, the necessity for continuing the steps directed toward the achievement of greater efficiency and productivity; (ii) continued a strategy designed, inter alia, to lift the wage rates for the low paid by rejecting an employer application to freeze the minimum rates adjustment process; (iii) decided that a percentage increase should be granted because: (a) the approach to restructuring adopted in the February 1989 Review and National Wage Case decision of August 1989 involved establishing specific relativities, defined in percentage terms, between classifications within awards and aligning classifications across awards - an exercise yet to be completed, (b) the resultant pressure for correction of relativities which would follow from the compression of relativities caused by flat rate increases, (c) of the need for specific relativities in assessing proper minimum rates adjustments, (d) the minimum rates adjustment process (which is delivering to low paid wage and salary earners substantial wage increases) is preferable to flat increases as a method of assisting those low paid wage earners; (iv) continued to encourage enterprise bargaining as the Commission has done since 1986/87; but decided that, because of the state of the economy and the fundamental disagreement between the parties and interveners as to the nature of the system to be introduced, that enterprise bargaining should be confined, at this point, to implementation of the structural efficiency principle; (v) decided that mechanisms to enable enterprise bargaining of a more substantial nature to be properly introduced were required to be put in place as part of the implementation of the 2.5 per cent increase; (vi) decided that further discussion was required on the principles for the extension of enterprise bargaining; (vii) agreed that the parties to paid rates awards should have greater flexibility and more responsibility but raised a number of reservations about the approach to be adopted to paid rates awards and in particular the approach to market considerations; (viii) decided that access to wage and salary increases under paid rates awards should be subject to the same conditions as those specified in the decision for minimum rates awards; (ix) recognised the need for special cases during the period of operation of the principles provided such applications were dealt with by a Full Bench and provided the applications were consistent with the general thrust of the National Wage Case decision; (x) provided for applications for adjustments available under previous National Wage Case decisions to be processed in accordance with the principles determined in those cases; (xi) recognised that superannuation contributions of three per cent do not provide an adequate retirement benefit but adjourned the claim for increased contributions requesting that the Commonwealth convene conferences to review and clarify a number of vital issues about superannuation generally and, in particular, award-based superannuation; and (xii) provided that the principles determined in the decision would continue in operation until reviewed; that review to commence on application and be finalised as soon as practicable after 1 November 1991." This Commission has stated in the past and it is appropriate that we repeat it now that only in extraordinary circumstances would it be desirable to settle upon objectives manifestly inconsistent with those of the Federal Commission in a National Wage Case. Nothing has been put to us during this case that would persuade us to depart from the thrust of the National Decision on this occasion. Despite the limited number of indicators that the Tasmanian economy is not as bad as in other States, other key economic factors such as the unemployment level, the participation rate, the labour force, job vacancies, levels of fixed private capital expenditure, retail turnover, and building approvals indicate the opposite and clearly show that the economy is still depressed. A package such as that proposed by the TTLC, involving a $12 per week flat rate increase and containing a commitment to further unspecified increases resulting from enterprise bargaining and an adjustment of employer contributions to occupational superannuation, in our opinion, would be counter productive to an improvement in the general state of the economy. As already stated, we would not depart from the generality of a National Wage Decision unless there were special or extraordinary circumstances in existence. Further, we are satisfied that the circumstances outlined by the TTLC and supporting unions, seeking to justify such a departure, are not in the special or extraordinary category. Indeed, the circumstances are such that an open-ended Accord Mark VI package of the type proposed by the TTLC would be counter productive to the state of the economy, to the level of unemployment and contrary to the public interest in this State. We are satisfied also that the package which followed faithfully the ACTU claim was tested thoroughly by the AIRC during the lengthy proceedings leading up to its decision of 16 April 1991, and its qualified rejection of that package was in our opinion well reasoned and appropriate. In addition we disagree with the TTLC'S submission that the equity benefits of granting a $12 flat increase to all workers far outweigh any perceived difficulty in the compression of relativities. The equity benefits to lower paid employees have been addressed, substantially, in recent decisions dealing with the minimum rates adjustments (MRA) which have been designed to provide a consistent, comparative and equitable rate of pay for lower classifications in particular. That so few State awards have been varied to take account of these adjustments does not persuade us that a flat rate increase is justified. It is worth noting that in those awards where MRA's have been applied the amounts awarded are proving to be quite significant in relation to lower paid classifications. We therefore propose to adopt, with minor variations to suit the Tasmanian system, the general thrust of the Principles and the Decision handed down by the AIRC on 16 April 1991 (J7400). This Commission has been increasingly conscious of the need to ensure that the fundamental aims and objectives of the Principles of Wage Fixation are properly achieved and successfully implemented within acceptable time frames. Such outcomes are of course designed to be of mutual benefit to employers, employees and the economy. We refer in particular to that part of the 1989 Principles which provide in the preamble that:
During the current case both the TTLC and the TCI provided us with statistics illustrative of the slow movement of various elements of successive State Wage Case decisions incorporated in the Commission's Principles of Wage Fixation. It was illustrated to us at the time of the hearing that in respect of a total of 71 private sector awards:
The situation illustrated by these statistics exists notwithstanding repeated efforts by the Commission to facilitate the means by which variation of awards in accordance with the strict requirements of the Principles may be achieved. Such processes as were initiated as far back as 9 November 1989, when in granting the first structural efficiency increase the State Wage Case Full Bench said in its Supplementary Decision1 at pages 15 and 16:
However, because of the Commission's concern at the tardiness of the parties in lodging appropriate applications the reconstituted State Wage Case Full Bench2 was moved to issue a Statement dated 27 March 1990, and said at page 1:
and later at page 2:
The collective finding of individual Commissioners was disappointing. At that time the responses of both employers and unions demonstrated little real progress towards finalising structural efficiency improvement. Almost without exception the parties requested an adjournment sine die. We draw upon this background material and the recent figures relating to the significant number of awards which are still to reflect the completion of structural efficiency measures in particular, not as a criticism of award parties collectively or individually, but rather as a recognition of the factual situation existing in Tasmania and as an expression of our concern in relation to this position. We believe the benefits available to employers, employees and the community as a whole should be accessed as soon as possible through meeting the requirements of the Principles. Our concern is now exacerbated by the fact that the further mutual benefits by way of a 2.5% wage and allowances increase and enhanced productivity and flexibility are denied to those who have yet to receive the second structural efficiency adjustment. To alleviate this situation where:
an organisation may seek to have their case processed by way of the special case proceedings. The Commission will determine each case on merit. Enterprise bargaining: We consider that it would be inappropriate for this Commission to adopt or develop a set of enterprise bargaining guidelines for Tasmania alone without agreement, in principle, by the major parties that enterprise bargaining should be commenced. The concerns expressed by the AIRC about such guidelines are mirrored in this State. We are satisfied from the answers to our questions in this matter that there is a substantial divergence of opinion on the philosophy and fundamentals of any enterprise bargaining system. We are not opposed to the concept of enterprise bargaining but given the current disparity of views we are not prepared to accept at this stage the proposition put forward by the TTLC. Superannuation: We are not prepared to increase the quantum of employer contributions to occupational superannuation until the important issues referred to in the National Wage Decision have been adequately addressed. In particular these are:
We turn now to discuss the new Principles adopted by this Commission as set out in Attachment A. 1. COMMITMENT The TTLC's claim involved the giving of a commitment not to pursue any extra claims, award or over-award, except in accordance with the Principles, until 30 November 1991, whilst the employer's application required the period of the undertaking to be for the life of the Principles. Given the announced intention of the AIRC to finalise its next review of the Principles as soon as practicable after 1 November 1991, we are of the opinion that the wording contained in the TTLC's application is appropriate. Registered employee organisations will be required to give a written commitment to the new Principles in the terms set out in Attachment A when accessing the increase granted under these Principles. The commitment will be required from all registered employee organisations having an interest in an award before that award is varied. 2. STRUCTURAL EFFICIENCY This AIRC Principle is dealt with in the following manner: Paragraph (a) is adopted without amendment. With respect to paragraph (b) we note the references in the AIRC decision at page 44 to the type of facilitative provision envisaged under the principle and we adopt those views. We fully support the views expressed at page 13 of the State Wage Case Decision of the Industrial Commission of South Australia (Print I.59/1991) which are repeated below.
Since it will be necessary to define clearly the extent to which facilitative provisions may affect particular clauses, a process which will take time, we are attracted to the revised paragraph (b) which has been adopted by the South Australian Commission. Our principles will be varied in the same manner.
Paragraphs (c) and (d) are adopted without amendment. Paragraph (e) is adopted on the understanding that any award provision enabling an employer to direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training should not deny such employee any award entitlement which might be applicable for performing work of a higher classification; nor should the provision enable the employer to pay an employee at a rate lower than the employee's substantive classification for performing work of a lower classification. Paragraph (f) is adopted with appropriate amendments relating to the State jurisdiction. Paragraph (g) is adopted without amendment. 3. WAGE ADJUSTMENTS This AIRC Principle is dealt with in the following manner: Subclause 1. Structural efficiency adjustment is adopted using terminology appropriate to the State jurisdiction. The increases allowable under the Principles shall be accessible on application from 13 August 1991. However, the actual date of operation shall be the date the award is varied. Subclause 2. Minimum Rates Adjustment is adopted with an amendment to paragraph (c) which will require supplementary payments to be prescribed in wages clauses provided they are separately expressed and that a separate clause is inserted defining supplementary payments as being minimum rates in lieu of equivalent overaward payments. Subclause 3. Special Cases is adopted with appropriate amendments relating to the State jurisdiction to enable Special Cases to be dealt with by a Full Bench of the Commission. It should be noted that the reference of Special Case matters by way of the Anomalies Conference process will be discontinued. The Anomalies Conference procedures are now defunct. However, "arguable" Special Case references given such status under the previous principles will proceed, before either a single Commissioner or a Full Bench. 4. ALLOWANCES This AIRC Principle is adopted using terminology appropriate to the State jurisdiction. 5. SUPERANNUATION This AIRC Principle is adopted using terminology appropriate to the State jurisdiction. 6. WORK VALUE CHANGES This AIRC Principle is adopted with appropriate amendment to reflect the date of the last State Wage Case decision. 7. PAID RATES AWARDS This AIRC Principle is adopted without amendment. 8. FIRST AWARDS AND EXTENSIONS TO EXISTING AWARDS This AIRC Principle is adopted using terminology appropriate to the State jurisdiction. 9. CONDITIONS OF EMPLOYMENT This AIRC Principle is adopted using terminology appropriate to the State jurisdiction. 10. STANDARD HOURS This AIRC Principle is adopted without amendment. 11. ECONOMIC INCAPACITY This AIRC Principle is adopted without amendment.
Appearances: Dates and Place of Hearing: |