T3584
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Trades and Labor Council PUBLIC AND PRIVATE SECTOR AWARDS AND AGREEMENTS
State Wage Case REASONS FOR DECISION This was an application by the Tasmanian Trades and Labor Council (the TTLC) to review the Wage Fixation Principles and establish a new Principle in relation to enterprise bargaining. It followed a decision of the Australian Industrial Relations Commission (the AIRC) of October 19911 which added a new enterprise bargaining principle to the Principles of that Commission. The TTLC supported the draft enterprise bargaining principle set out in its application which, except for the necessary jurisdictional changes, replicates the AIRC's new principle by submitting that:
A number of unions supported the application and, in particular, the Tasmanian Public Service Association (the TPSA) submitted that in the State Service area there was scope for productivity improvement and, as a result, the TPSA would be making appropriate claims in due course. The TPSA also submitted that the State Service should be considered as one enterprise. The teacher unions supported the TTLC application, but contended that the State Service should not be taken as one entity. The Minister for Employment, Industrial Relations and Training (the Minister) supported the application and said that the Commission's role in the implementation of enterprise bargaining was pivotal especially in the private sector which was the key to the State's economy. The Minister stressed that any productivity improvements relied upon for wage increases would need to be clearly demonstrable and implemented before such increases were granted. Any gains claimed should be strictly assessed and all enterprise agreements should contain provisions for monitoring the effectiveness of the improvements introduced. The Minister also submitted that, for completeness sake, the reference in the draft principle to Section 55 of the Act should be expanded to include the other sections of the Act dealing with Registered Agreements. The Minister referred to other changes to the Wage Fixing Principles made by the AIRC in its October 1991 decision which were not addressed in the TTLC's application. Those changes were in the preamble and in sections covering:
On the basis that all these other changes were minor improvements which did not change the substance of the Principles the Minister requested that they be adopted. The Minister Administering the State Service Act 1984 supported the submissions of the Minister for Employment, Industrial Relations and Training and submitted that prima facie the State Service was one industry, but that such questions should be determined between the parties when negotiating enterprise agreements. The Tasmanian Confederation of Industries (the Confederation) supported the general thrust of the submissions in favour of the application, but sought some expansion of those provisions. It was submitted that:
The Australian Mines and Metals Association (Incorporated) supported the application and referred to its experience with enterprise bargaining. In response the TTLC submitted that the problems raised were in the main matters to be settled between the parties. The use of Section 55 was needed, the TTLC said, to ensure that only registered organisations were able to make agreements. The TTLC requested that the Enterprise Bargaining Principle be confirmed in the terms originally proposed in the application. We have considered the views put to us and despite some reservations have decided that it is proper and appropriate for a system of enterprise bargaining to be introduced in this jurisdiction. We take comfort from the fact that all parties endorsed the application in principle and it would be contrary to past practice for the Commission to deviate dramatically from National Wage Decisions of the AIRC. We accept that Section 55 is the most appropriate mechanism for dealing with enterprise agreements and agree with the Minister's submission that the other sections complementary to Section 55, come into play in this process. We do not accept the Confederation's submission that the restrictions of Section 55 (and the complementary sections) can be ignored. It is quite clear that the legislation as it stands allows only registered organisations to access the Commission on behalf of employees. As to the minor changes requested by the Minister, supported by the Confederation and not opposed by the TTLC, we have decided that they will be included in the new Principles adopted by this decision on the basis that they are improvements not altering the substance of the Principles, and consistent as far as possible with the AIRC's Principles. The one exception will be sub-principle (c) of the Minimum Rates Adjustment Principle relating to supplementary payments which will remain as previously determined by this Commission. We agree with the TTLC and the Minister Administering the State Service Act that, prima facie, it is a matter for the parties as to who or what is a single bargaining unit. We also agree with employer and government submissions that efficiency improvements under enterprise bargaining should be identifiable and capable of being implemented as from the date from which any wage increases apply. The Commission will test all enterprise agreements against the requirements of these principles and those found not to meet those requirements will be rejected as being inconsistent with the public interest. We adopt the general thrust of the decision of the AIRC. The revised Principles determined by this Commission are attached and will operate from 13 February 1992.
Appearances: Date and place of hearing:
STATE WAGE CASE FEBRUARY 1992 APPENDIX A THE PRINCIPLES These principles have been developed with the aim of providing, for their period of operation, a framework under which all concerned - employers, workers and their unions, governments and tribunals - can co-operate to ensure that measures to meet the competitive requirements of enterprises are positively examined and implemented in the interests of management, workers and, ultimately, Australian society. Movements in wages and conditions must fall within the principles which, inter alia, provide for such movements through:
In relation to (a) above, the Commission is available to assist the parties by means of conciliation and arbitration in accordance with the relevant provisions of the Act. In relation to (b), and consistent with the registered agreements provisions of the Act, the Commission is available to assist the parties through conciliation, but not arbitration. In considering whether wages and/or conditions should be awarded or changed for any reason, either by agreement or arbitration, the Commission will guard against contrived arrangements which would circumvent these principles and their aims. WAGE ADJUSTMENTS 1. Structural efficiency adjustment (a) There will be allowable under these principles an increase to a maximum of 2.5 per cent in both minimum rates and paid rates awards accessible, on application, from 13 August 1991 but the actual date of operation will be the date on which that award is varied in accordance with the August 1991 State Wage Case decision. (b) The 2.5 per cent increase shall apply to award wage rates including supplementary payments. (c) The Commission, after hearing the parties to an award and being satisfied that a proper case has been made, may recommend that overaward payments be increased by the same percentage adjustment. (d) No award will be varied to give effect to the State Wage Case decision of 13 August 1991 unless and until it has been varied to give effect to the second structural efficiency adjustment allowable under the 30 October 1989 State Wage Case decision. 2. Minimum rates adjustment Minimum rates adjustments for minimum rates awards in accordance with the October 1989 and August 1991 State Wage Case decisions shall continue to be allowable and shall be in accordance with the following: (a) the appropriate adjustments in any award will be applied in no less than four instalments which will become payable at six monthly intervals provided in appropriate cases longer or shorter phasing-in arrangements may be approved or awarded and/or parties may agree that part of a supplementary payment should be based on service; (b) the second and subsequent instalments of these adjustments will not be automatic and an application to vary the relevant award will be necessary; (c) supplementary payments will be prescribed in a separate column in the wages clauses of awards; (d) the award must contain a definition making it clear that a supplementary payment represents, in effect, a payment in lieu of equivalent overaward payments; (e) where the existing minimum classification rate in an award exceeds the minimum rate for that classification assessed in accordance with this decision, the excess amount is to be prescribed in a separate clause: that amount will not be subject to adjustment; (f) acceptance of absorption of these adjustments to the extent of equivalent overaward payments is a prerequisite to their being applied in any award. SPECIAL CASES Any claim for increases in wages and salaries or improvements in conditions in minimum rates awards or paid rates awards which exceed those allowable under the 30 October 1989 and the 13 August 1991 State Wage Case decisions will be processed as a special case before a Full Bench of the Tasmanian Industrial Commission unless the President otherwise decides. ENTERPRISE BARGAINING The Commission is prepared to approve, pursuant to section 55 of the Act, enterprise bargaining agreements made between parties bound by minimum rates or paid rates awards, subject to the following requirements: (a) the parties satisfy the Commission that they have met the structural efficiency principle requirements prescribed in the August 1991 State Wage Case decision; (b) the agreement is consistent with the continuing implementation at enterprise-level of the structural efficiency principle and any wage increases contained therein are based on the actual implementation of efficiency measures designed to effect real gains in productivity; (c) the parties demonstrate that they have considered a broad agenda in the development of their enterprise agreement; (d) the agreement has been negotiated through a single bargaining unit in an enterprise or section of an enterprise. In the case of a single bargaining unit in a section of an enterprise, the parties must demonstrate that the section is discrete: its being treated separately from other sections of the enterprise must not restrict the implementation of the structural efficiency principle and enterprise bargaining in that establishment, or other sections of the enterprise; (e) where the agreement operates in conjunction with an award or awards, it details the wage increases involved for each classification and all efficiency measures agreed. Alternatively, where an agreement replaces an existing award or awards, it must express the enterprise bargain wage increase as a separate amount from the standard rates of pay and state all efficiency measures agreed; (f) the agreement provides no further wage or salary increase for its life, except when consistent with a State Wage Case decision; (g) the agreement does not involve a reduction in ordinary time earnings or departures from Commission standards of hours of work or annual leave with pay. (h) the agreement: (i) is for a fixed term; and (ii) will not continue in force after its expiry date, unless renewed; (i) the operative date of any wage increase for which an agreement provides is no earlier than the date of approval or certification of the agreement; and (j) where parties to an enterprise agreement reached through negotiations with a single bargaining unit include employees covered by a Federal award, an agreement covering those employees is submitted to the AIRC for approval. At the time of expiration of an agreement it is the responsibility of the parties to seek its renewal or replacement. ALLOWANCES 1. Existing allowances (a) Existing allowances which constitute a reimbursement of expenses incurred may be adjusted from time to time where appropriate to reflect the relevant change in the level of such expenses. (b) Existing allowances which relate to work or conditions which have not changed may be adjusted from time to time to reflect State wage increases, except where a flat money amount has been awarded, provided that shift allowances expressed in awards as money amounts may be adjusted for flat money amount national wage increases. (c) Existing allowances for which an increase is claimed because of changes in the work or conditions will be determined in accordance with the relevant provisions of the work value changes principle. 2. New allowances (a) New allowances to compensate for the reimbursement of expenses incurred may be awarded where appropriate having regard to such expenses. (b) No other new allowances shall be created unless changes in work have occurred or new work or conditions have arisen: where changes have occurred or new work and conditions have arisen, the question of a new allowance, if any, shall be determined in accordance with the relevant principle.
3. Service increments (a) Existing service increments may be adjusted to reflect a percentage State Wage Case increase. (b) New service increments may only be allowed to compensate for changes in the work and/or conditions and will be determined in accordance with the relevant provisions of the work value changes principle. SUPERANNUATION (a) Agreements may be certified or consent awards made providing for employer contributions to approved superannuation schemes for employees covered by such agreements or consent awards provided those agreements or consent awards: (i) operate from a date determined or approved by the Commission; and (ii) do not involve the equivalent of a wage increase in excess of three per cent of ordinary time earnings of employees. (b) Where, following a claim for employer contributions to approved superannuation schemes for employees, the parties are unable to negotiate an agreement consistent with this principle, and conciliation proceedings before the Commission have also failed to achieve such an agreement, the Commission shall, subject to the provisions of the Act, arbitrate on that claim. (c) The Commission will not grant retrospective operation for any matters determined in accordance with this principle. (d) For the purposes of this principle, approved superannuation scheme means a scheme approved in accordance with the Commonwealth Operational Standards for Occupational Superannuation Funds. WORK VALUE CHANGES (a) Changes in work value may rise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this principle. (b) Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole. (c) The time from which work value changes in an award should be measured is, unless extraordinary circumstances can be demonstrated in special case proceedings, the date of operation of the second structural efficiency adjustment allowable under the 30 October 1989 State Wage Case decision. (d) Care should be exercised to ensure that changes which were or should have been taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this principle. (e) Where a significant net alteration to work value has been established in accordance with this principle, an assessment will have to be made as to how that alteration should be measured in money terms. Such assessment should normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work. However, the Commission will also take account of the relativities and the integrity of the internal award classification structures and the external classifications to which that structure is related. (f) The expression "the conditions under which the work is performed" relates to the environment in which the work is done. (g) The Commission should guard against contrived classifications and over classification of jobs. (h) Any changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed, taken into account in assessing an increase under any other principle, shall not be taken into account in any claim under this principle. PAID RATES AWARDS (a) Subject to special cases, the Commission will not make a new paid rates award. (b) Where a new paid rates award is made, that award shall specify the classification prescribed in the relevant minimum rates award on which the actual rate prescribed for the key classification in the paid rates award is calculated. (c) Commitments will be required from all parties to paid rates awards to the effect that the integrity of those awards will be preserved. (d) The Commission on each occasion an application is before it for the variation of a paid rates award, will inquire whether the integrity of the award has been preserved. (e) The Commission may convert into a minimum rates award a paid rates award which fails to maintain itself as a true paid rates award. The conversion of such a lapsed paid rates award into a minimum rates award will involve the valuation of the classifications in it by comparison with similar classifications in other minimum rates awards. FIRST AWARDS AND EXTENSIONS TO EXISTING AWARDS (a) In the making of a first award, the long established principles shall apply, ie prima facie the main consideration is the existing rates and conditions. (b) In the extension of an existing award to new work or to award-free work the rates applicable to such work will be assessed by reference to the value of work already covered by the award. (c) In awards regulating the employment of workers previously covered by a State award or determination, existing Federal award rates and conditions prima facie will be the proper award rates and conditions. (d) Where a first award is made it shall contain a minimum rate for each classification of employee covered by it. The total minimum rate determined for each classification will be expressed as a minimum classification rate and a supplementary payment which bear a proper relationship to the rates for relevant classifications in other minimum rates awards. Where an existing Federal award rate exceeds the amount appropriate to a proper relationship, the excess is to be prescribed in a separate clause. That excess amount will not be subject to adjustment. CONDITIONS OF EMPLOYMENT Except for the flow-on of test case provisions, applications for changes in conditions other than those provided elsewhere in the principles will be considered in the light of their cost implication both directly and through flow-on. In respect of any application where the cost impact either directly or through flow-on is, prima facie, not negligible, that application must be processed in accordance with the Special Case principle. STANDARD HOURS In approving any application to reduce standard hours to 38 per week, the Commission should satisfy itself that the cost impact is minimised. Claims for reduction in standard weekly hours below 38 will not be allowed. ECONOMIC INCAPACITY Any respondent or group of respondents to an award may apply to reduce and/or postpone the application of any increase in labour costs determined under the principles on the ground of very serious or extreme economic adversity. The merit of such application shall be determined in the light of the particular circumstances of each case and any material relating thereto shall be rigorously tested. 1 Print K0300 |