T6284 T6305 T6263 T6264 T6268 T6269 T6270 T6271 T6291
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Chamber of Commerce and Industry Limited Tasmanian Trades and Labor Council See end of Decision for Orders Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union Health Services Union of Australia, Tasmania No. 1 Branch Health Services Union of Australia, Tasmania No. 1 Branch Health Services Union of Australia, Tasmania No. 1 Branch Health Services Union of Australia, Tasmania No. 1 Branch Health Services Union of Australia, Tasmania No. 1 Branch Shop, Distributive and Allied Employees Association, Tasmanian Branch
Review of Wage Fixing Principles arising from the decision of the Australian Industrial Relations Commission in the Third Safety Net Adjustment and Section 150A Review on 9 October 1995 (Print M5600) REASONS FOR DECISION The Tasmanian Chamber of Commerce and Industry Limited (the TCCI) on 26 June 1996 applied to vary all private sector awards of the Commission by -
and requested that current applications to access the Third Safety Net Adjustment be listed to be heard "in tandem" with its application. The Tasmanian Trades and Labor Council (the TTLC) subsequently (4 July 1996) applied -
These applications, together with other applications in the Commission at 26 June 1996 which sought the third safety net adjustment, were listed for hearing on 10 July 1996. They related to the:
The two applications from the peak organisations were heard jointly and the individual award applications were set aside until the issues raised in the former applications were determined. In his primary submission for the TTLC, Mr Warwick took the Commission through those aspects of the Australian Industrial Relations Commission (AIRC) decision which required consideration in the Tasmanian context. Those aspects were:
In addressing these issues, Mr Warwick submitted that the segments dealing with "enterprise testing" and the making of "new and first awards" were not required as separate and special principles. The Commission's attention was drawn also to the federal commission's intention to conduct quarterly reviews of awards to identify those which had not been varied in the preceding 5 years. The TTLC submitted that such a review was not necessary in the State system, given the operational differences between the two jurisdictions. We were also alerted to the federal commission's intention to award the third arbitrated safety net adjustment without requiring cost offsets. An exhibit, Exhibit TTLC.1, headed "Commitment to Award Review", was tendered setting out those aspects of the federal decision, adjusted to meet the circumstances of this jurisdiction which the TTLC considered should be incorporated in the State Principles. Mr Warwick said substantial agreement had been reached with the TCCI and employer organisations about the way in which the Tasmanian Wage Fixing Principles should be amended to recognise and to reflect where possible the changes in the federal system. To assist proceedings, the TCCI tendered Exhibit TCCI.1, entitled "Review of the Wage Fixing Principles 1996" which Mr Fitzgerald, for the TCCI, said included those changes to the State Principles which his organisation considered were required to reflect appropriate aspects of the federal decision. He also indicated that a large degree of consensus had been reached in discussions with employee organisations. Both parties suggested that a brief adjournment might give the parties an opportunity to finalise a consent document. Mr Cooper, for the Australian Workers' Union, Tasmania Branch (the AWU), expressed concern about proposed changes:
Mr Strickland for the National Union of Workers, Tasmanian Branch and the Australasian Meat Industry Employees Union, Tasmanian Branch, supported Mr Cooper's submissions. Representatives of the Community and Public Sector Union (State Public Services Federation Tasmania), the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union, the Health Services Union of Australia, Tasmania No. 1 Branch, and the Shop, Distributive and Allied Employees Association, Tasmanian Branch supported the TTLC. Mr Fitzgerald sought a commitment from the unions that they would observe the requirement to examine awards in accordance with the proposed new principle. He was supported by the Tasmanian Farmers and Graziers Employers Association. Mr Rice added that the Association did not oppose the arbitrated safety net adjustment going into awards and said that negotiations on this and related matters were being conducted with the AWU. When the matter resumed on 15 July, Mr Fitzgerald for the TCCI sought to amend the TCCI's application to mirror the proposed new principle as contained in Exhibit TTLC.1. The change to the Allowances Principle, at 9.1.2, was said to conform with the federal decision at page 78 of Print M5600, which provided that allowances, service increments and weekend penalties expressed as flat dollar amounts should be varied to reflect the safety net adjustments. Mr Fitzgerald submitted that the economic indicators, whilst not indicating growth, were not sufficiently depressed to cause the Commission to refrain from awarding the third arbitrated safety net adjustment. He said the inclusion of the enterprise flexibility provision in the principles would be of benefit to employers and employees alike and accordingly it was in the public interest that the adjustment be awarded. After a further adjournment it was agreed by the two applicants that it would no longer be a precondition of awarding the third arbitrated safety net adjustment that awards include the review clause as originally proposed in subparagraph 7.3.2.3. It was considered that the wording of the new Principle was sufficient to alert parties to the requirement to engage in the review. Mr McDougall for the Tasmanian Chamber of Retailers supported the applications. Ms Lawrence for the Minister for Public Sector Administration and the Minister for Industrial Relations also supported what by now were largely consent arrangements. Mr Cooper, for the AWU, continued to express concern about the proposed change to the Allowances Principle, but accepted the remainder of the revised principles. By correspondence addressed to the Commission the Tasmanian Automobile Chamber of Commerce supported the submissions of the TCCI. Following an adjournment we announced to the parties that the revised principles as supported by the majority of the parties present would be endorsed by the Commission, and we confirm that decision. The objection by the AWU to the proposed new Allowances Principle could not be sustained, given the agreement expressed by all others present and our view that the new wording of the Allowances Principle would allow for adjustment of allowances as previously determined. Given the submissions of all parties and particularly those of the employers, we are satisfied that it is appropriate that we vary the State Wage Fixing Principles to provide that the $8 per week third arbitrated safety net adjustment be inserted in awards of this Commission. Such variation is to be conditional upon the parties giving a commitment to undertake a review of each of the awards to be varied for the purpose of examining the following issues:
Any further arbitrated safety net adjustments, however described, will be contingent upon the Commission being satisfied that the parties have conducted the review referred to above or have established a timetable for the completion of the review which might include conciliation and/or arbitration to settle any outstanding issues. The revised Principles, attached, will operate from today's date. Turning to the remaining applications, notwithstanding submissions from the TCCI, and our prima facie position that the awards set aside should be referred to individual Commissioners, we were persuaded by Mr Baker for the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union, Mr Noonan for the Shop, Distributive and Allied Employees Association, Tasmanian Branch, and Mr Brown for the Health Services Union of Australia, Tasmania No. 1 Branch (the HSUA) that their applications should be heard by the Full Bench without further delay. Mr Baker informed the Bench that his organisation was supportive of the tests contained in the proposed new Principles, and he confirmed the union's commitment to them. He said the union's draft order for the insertion of the third arbitrated safety net adjustment in the Metal and Engineering Industry Award had been agreed to by the TCCI. He requested the order be operative from a date consistent with the Full Bench decision in relation to the new Principles. Mr Noonan gave his union's commitment to the endorsed Principles and also sought an operative date of the day of hearing for the Retail Trades Award order which, he said, had been checked by the TCCI and found to be correct. The earliest operative date for the adjustment in accordance with the Principles would have been 11 July 1996. Mr Brown made similar submissions in respect to the remaining awards. He claimed that officers of the TCCI had confirmed that the draft orders in respect of the Disability Service Providers Award, the Medical Diagnostic Services (Private Sector) Award, the Dentists Award, the Medical Practitioners (Private Sector) Award, and the Hospitals Award were in order. The Disability Service Providers Award was available for adjustment with effect from 20 June 1996 and the others from 11 July 1996. He, too, confirmed his organisation's commitment to the proposed new Principles. Mr Fitzgerald conceded the argument submitted by the unions in respect of all awards except the Disability Service Providers Award. He said difficulty with government funding of Disability Service Provider organisations had placed them in financial stress and he submitted that the award should not be varied at this stage. He considered that the award should be referred to an individual Commissioner to allow argument to be put as to the capacity of those organisations to pay. As to the other awards, he submitted that the earliest operative date of the $8 increase should be the operative date of the new Principles. The HSUA argued that the Disability Service Providers Award should be varied along with the others and that affected organisations could subsequently make applications based on Principal 15, Economic Capacity, if they felt it to be necessary. Having considered these submissions of the parties we are satisfied that the awards, the subject of applications T6263, T6268, T6269, T6270, T6271 and T6291, should be varied to include the third arbitrated safety net adjustment with effect from the first full pay period commencing on or after today's date. The employer organisations had been given adequate notice of the applications; the applicants had given a commitment to the new Principles, which had been established with the consent of the employers, and the draft orders had been checked and endorsed by the employer organisations. Accordingly we consider that it is in the public interest to vary the awards in the manner sought. As to the Disability Service Providers Award, Application T6264, we have decided that further argument and in-depth submissions are necessary to enable a proper assessment of that application. Accordingly it will be referred to the appropriate member of the Commission for hearing and determination. Orders affecting this decision in respect of applications -
will be issued by the appropriate Commission member. The operative date of the increases in these orders will be 24 July 1996.
Appearances: Date and place of hearing: Awards Varied:
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