T6941 T6928 T6929 T6930 T6931 T6932 T6933 T5934 T6947 T6956 T6971 T6979 T6987 T6991 T6993
TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
Tasmanian Trades and Labor Council
Automotive, Food, Metals, Engineering,
(T6929 of 1997)
(T6930 of 1997)
(T6931 of 1997)
(T6932 of 1997)
(T6933 of 1997)
(T6934 of 1997)
The Australian Workers' Union, Tasmania Branch
Transport Workers' Union of Australia, Tasmanian Branch
National Union of Workers, Tasmanian Branch
Australasian Meat Industry Employees Union,
Textile, Clothing and Footwear Union of Australia,
Australian Municipal, Administrative, Clerical and Services Union
Health Services Union of Australia, Tasmania No. 1 Branch
Wage Rates - State Wage Case July 1997 - application to flow on Australian Industrial Relations Commission Safety Net Review decision April 1997 (Print P1997) agreed tripartite position - Wage Fixing Principles varied - $10.00 per week arbitrated safety net adjustment approved - all private sector awards to be varied on application no earlier than ffpp on or after 14 July 1997 - State Minimum Wage to be subject to separate application
REASONS FOR DECISION
When a number of these applications was first before us on 20 May 1997, Ms Fitzgerald for the Tasmanian Trades and Labor Council sought an adjournment of the proceedings to allow pre-hearing discussions to continue between employer representatives, the Government, the Tasmanian Trades and Labor Council on behalf of its affiliates and The Australian Workers' Union, Tasmania Branch. Ms Fitzgerald said a meeting had occurred on 12 May and another was scheduled for 26 May. She said that after overcoming a number of disagreements on the detail of the applications she thought it was now possible to reach agreement on a package which would flow-on the Australian Industrial Relations Commission decision in the Living Wage Case (Print P1997 - Safety Net Review) in the State jurisdiction.
Representatives of The Australian Workers' Union, Tasmania Branch and the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch supported the application for an adjournment.
Mr Watson for a number of employer organisations also indicated support for the adjournment application as did Mr Pearce appearing for the Minister for Industrial Relations.
The hearing was adjourned until 5 June 1997 at 10.30 am. In the interim applications to flow-on the Australian Industrial Relations Commission decision were lodged by the National Union of Workers, Tasmanian Branch, The Australasian Meat Industry Employees Union, Tasmanian Branch, the Textile, Clothing and Footwear Union of Australia, Tasmanian Branch, the Australian Municipal, Administrative, Clerical and Service Union and the Health Services Union of Australia, Tasmania No 1 Branch.
On the resumption Ms Fitzgerald alerted the Commission to some difficulties which had curtailed the discussions between the parties during the adjournment and requested that the parties be referred into conference. Mr Edwards submitted that notwithstanding an alleged breach of confidence of the conference process by some unnamed union representatives he had put a further proposition to the Tasmanian Trades and Labor Council in an attempt to break the impasse.
He requested that the conferences be chaired by a member of the Bench "to ensure the discussions are carried out in a proper way". (Transcript p.10). All other union representatives expressed a desire to be included in the conference process and indicated commitment to the need to observe appropriate protocols in the conduct of the conference.
After a lengthy period in conference, without the direct involvement of the Commission, we directed representatives of the Tasmanian Trades and Labor Council, the Tasmanian Chamber of Commerce and Industry, the Minister, The Australian Workers' Union, Tasmania Branch and Mr Lyons for the National Union of Workers, Tasmanian Branch, the Textile, Clothing and Footwear Union of Australia, Tasmanian Branch and The Australasian Meat Industry Employees Union, Tasmanian Branch to confer and report to the Bench at 9.30am the following day. When the hearing resumed at 12.25 pm that day (Friday 6 June) the parties had reached a position where they were able to indicate that agreement had been reached on a set of wage fixing principles to accommodate the federal decision.
The Tasmanian Trades and Labor Council was granted leave to amend its application to enable the Commission to:
Ms Fitzgerald said that it was intended to make a separate application to the Commission for the determination of a minimum adult wage for Tasmanian awards.
Ms Fitzgerald said that the application to vary was limited to private sector awards as some public sector awards already had been varied to reflect the State Service Wages Arrangement Agreement and as such should not be varied by a further safety net adjustment. Accordingly she sought to set aside public sector awards.
Ms Fitzgerald reminded the Commission that the ACTU's Living Wage claim contained two elements, each of three stages. The first element was a three stage process of adjusting minimum award rates of pay to $12 per hour at the C 14 rate in the federal Metal Industry Award. The second element was for three safety net adjustments of $20 per week.
In summarising the federal Commission's decision Ms Fitzgerald said the Commission had awarded an arbitrated safety net adjustment of $10 per week and a federal minimum wage of $359.40 per week which was inclusive of the new arbitrated safety net adjustment and/or any previous safety net adjustments and national wage increases. All increases were fully absorbable against all over award payments. Minimum rates awards and paid rates awards were similarly adjusted.
She said the federal decision provided that any outstanding $8 per week safety net adjustments from the 1994 and 1995 decisions would be available at the same time as the $10 arbitrated safety net adjustment. It further provided for the commencement of the award variations to give effect to the decision to occur no earlier than the date on which the award is varied, except that provision is to be made for the phasing-in of increases where circumstances justify it. The decision also permitted the expression of award rates, where the minimum rates adjustment process has been completed, and the parties give consent, as hourly as well as weekly rates. Allowances which related to work or conditions which have not changed and service increments were to be adjusted as a result of the $10 per arbitrated safety net adjustment. Ms Fitzgerald said the federal Commission determined that the adjustment should be a flat money amount rather than a percentage increase in order to limit the addition to average weekly ordinary time earnings and to give a proportionately higher benefit to low paid workers.
Ms Fitzgerald submitted that the parties in the current proceedings supported the application of a flat money amount increase. She tendered a copy of the agreement reached between the parties (Exhibit TTLC 3) which is replicated below:
As to the operative date Ms Fitzgerald said:
Ms Fitzgerald submitted that given the tripartite agreement reached between the parties the agreement was not against the public interest. She said the "truly collective approach appear(ed) rather unusual in contemporary industrial relations" but the commitment of affiliates of the Tasmanian Trades and Labor Council to seek the best outcome for all union members and particularly the low paid was to be applauded.
As to the matter of a State Minimum Wage Ms Fitzgerald said it had been agreed that a separate application would be made by the Tasmanian Trades and Labor Council in due course to which considerable energy and resources would be devoted. A draft outline of submissions to be presented was tendered and marked Exhibit TTLC 2.
The Australian Workers' Union, Tasmania Branch through Mr Cooper informed the Bench that the proposed principles (Exhibit TTLC 4) were agreed. He particularly commended new Principle 16 Awards Review Process as providing a mechanism for facilitating a genuine review of awards Mr Cooper submitted that there was no impediment to the flow on of the wage increase to State Awards given the state of the economy.
Mr Cooper said the parties had identified "several provisions" in the draft document that they would attempt to simplify well before the next wage case.
The involvement of The Australian Workers' Union, Tasmania Branch in the negotiation process was characterised in the following manner by Mr Cooper:
Mr Cooper said that if the Bench accepts the agreed position of the parties the applications lodged by The Australian Workers' Union, Tasmania Branch could be dismissed.
Mr Lyons endorsed the positions put by the Tasmanian Trades and Labor Council and The Australian Workers' Union, Tasmania Branch. He said:
My Lyons also indicated that if the Commission was minded to accept the submissions of the parties in respect of the Tasmanian Trades and Labor Council's application, the applications of the organisations he represented could be dismissed.
Messrs Baker for The Australian Workers' Union, Brown for the Health Services Union of Australia, Tasmania No 1 Branch and Paterson for Australian Municipal, Administrative, Clerical and Services Union indicated that their respective applications could be dismissed if the agreed position was adopted by the Commission.
Mr Edwards, representing a substantial number of employer organisations, told the Commission that the Tasmanian Chamber of Commerce and Industry had consulted widely with those organisations including, also, the Tasmanian Automobile Chamber of Commerce. He said the employers believed that the circumstances "within which that particular decision (the Safety New Review Print P1997) was taken were not identical to those circumstances in which the parties find themselves before the tribunal". (Transcript p.29)
He said the employers "had an initial belief that the $10 increase is beyond the capacity of Tasmanian industries, to accommodate without some adverse reaction and it's that view that we took to the negotiations process with the Tasmanian Trades and Labor Council and others." (Transcript p.29)
Mr Edwards said:
Further he said:
Mr Edwards submitted that the package of arrangements that had been reached between the parties provided "a range of benefits to employers and to employees which when taken in combination is an appropriate resolution of the claim...before the commission and would not ... bring about adverse reaction pursuant to section 36." (Transcript p.30)
Mr Edwards then took the Commission to Exhibit TTLC4, the proposed new wage fixing principles, and identified the major changes to the existing wage fixing principles.
In closing Mr Edwards said:
Mr Pearce for the Minister for Industrial Relations informed the Commission that although the Tasmanian Government, in the proceedings before the Australian Industrial Relations Commission, had joined with other Governments advocating an $8 per week increase the Minister supported the flow-on of the $10 per week determined by the federal Commission. He said the Minister supported the adoption of the principles as developed by the parties and presented to the Commission as Exhibit TTLC 4.
Mr Pearce said:
The agreed set of Wage Fixing Principles differs from the 1996 Principles in a number of ways which accommodate the changes occurring at a federal level and introduce special provisions which reflect the need for a Tasmanian solution.
A new Principle 7, Previous State Wage Increases, has been inserted to allow for increases available by virtue of previous State Wage Case decisions to be applied for, particularly previous structural efficiency increases, minimum rates adjustments and the three previous $8 per week arbitrated safety net adjustments. However, such increases may not occur between the granting of the current $10 per week arbitrated safety net adjustment and the first pay period to occur on or after 14 September 1997. Otherwise the spacing of increases is to be by agreement or failing agreement by decision of the Commission.
The Minimum Rates Adjustment Principle has been varied to reflect the requirements of Principle 7.
Principle 8, Arbitrated Safety Net Adjustment, has been rewritten to provide that all wage rates in private sector awards (minimum and paid rates) will be varied to include a $10 per week arbitrated safety net adjustment from the beginning of the first full pay period to commence on or after 14 July 1997, subject to the presentation to the Commission of completed and agreed draft orders on or prior to that date. Junior apprentice and trainee rates will be adjusted on a proportionate basis. Public Sector awards which have not been varied to incorporate increases from enterprise bargaining may also be varied on application to include the $10 per week arbitrated safety net adjustment. Parties to public sector awards will be able to access the earlier State Wage Increases by virtue of Principle 7 if enterprise bargaining increases have not been included.
Principle 9, Form of Orders, has been varied to allow weekly award rates of pay to be expressed as hourly rates as well as weekly rates, once the minimum rates adjustment process has been completed.
Principle 10, Allowances, has been varied to allow existing allowances, relating to work or conditions which have not changed and service increments to be adjusted to take account of a monetary safety net increase. The method of calculation of such increases is derived from the federal decision and, for the purposes of awards of this Commission, is performed by dividing the monetary safety net increase by the weekly wage rate for Level 7 - Metal and Engineering Industry Award, immediately prior to the application of the safety net increase to the award, and multiplying the outcome by 100.
Principle 13, Making and Varying an Award Above or Below the Safety Net, has been varied to require the President to decide whether an application to vary above or below the safety constitutes a Special Case.
New Principle 16, Award Review Process, requires the parties to pursue the commitments given to the 1996 Principles to review awards in the context of:
To facilitate the review process the new Principle provides that the Commission will hold a conference of registered organisations. The Commission will convene conferences of parties to each award to receive reports on the award review process and where necessary assist in the development of timetables to finalise such reviews by conciliation and/or arbitration. The parties are agreed that at the time of an application for any future arbitrated safety net adjustment the Commission must take account of the extent to which the parties have actively pursued the award review process.
We adopt the revised Wage Fixing Principles as set out in the Appendix to this decision. They provide, as many of the parties submitted, an appropriate method of adapting the Federal decision to Tasmanian conditions and legislative requirements. These principles will continue to operate until revised or replaced by the Commission.
We consider that the tripartite agreement that all wages and minimum wage rates in private sector awards may be varied by $10 per week is justified and sustainable in the Tasmanian context and that the tests required of the Commission contained in s.36 of the Act show that the proposal is consistent with the public interest.
It is appropriate in our view that the allowances referred to in the new principles be adjusted proportionately and that no award variations take effect prior to the first full pay period commencing on or after 14 July 1997. We endorse that component of the agreed package which requires the agreed draft orders to be presented to the Commission prior to the 14 July 1997 in order to access that operative date.
As in the past, we would again expect the increase arising out of this decision, in respect of private sector awards, to be identified separately in the provision dealing with either Supplementary Payments B or the Safety Net Adjustment - whichever is applicable.
In the case of private sector enterprise awards and awards where the weekly wage rate or salaries appear in a single column we are of the view that the parties to those awards, at the time the orders are processed, should address how this and other safety net adjustments should be identified.
The orders giving effect to this decision will be issued by the appropriate member of the Commission.
The proposition that other award wage increases, available under previous principles may be accessed by application is approved as is the potential for phasing in such additional increases where they are sought but not agreed prior to 14 September 1997.
We note the agreement not to proceed with the minimum wage component of the federal decision and we await a separate application dealing with this issue.
So far as the new Principle 16 is concerned, we are prepared to facilitate the award review process. To that end each registered organisation is invited to provide to the Commission by 01 September 1997 a written submission outlining its desired objectives consistent with the award review components outlined in the principle.
In accordance with Principle 16.2 a conference, chaired by the President, will be held at Lyndhurst, on Monday 15 September 1997 at 10.30 am for the purpose of advancing the process.
The President will report to this Full Bench on the material arising out of the conference and the Bench will reconvene to hear the parties prior to making a final decision which will result in concluding this application.
Subsequently Commission members will also convene conferences of the parties to awards to assist in the development of timetables to bring the review to finality.
To enable the orders to be processed and the award review process to be facilitated, application T6941 of 1997 by the Tasmanian Trades and Labor Council will be adjourned to a date to be fixed.
During the course of proceedings in this matter, it has been very obvious to the Commission that the parties need clear directions as to processes for organisations to adopt when entering into pre-hearing discussions and negotiations on State Wage type matters.
Accordingly we feel it is appropriate that we should inform registered organisations that we look to the Tasmanian Trades and Labor Council and the Tasmanian Chamber of Commerce and Industry Limited, as the statutorily recognised peak organisations to liaise with and involve other employee and employer organisations in such negotiations. They, preferably, should take the lead in making applications to the Commission which have the capacity to flow on the results of major federal decisions or to create State wide precedents. This view does not remove the statutory rights of registered organisations to make applications pursuant to the provisions of the Act but it will help to concentrate in an efficient manner the negotiating and bargaining activities of the parties.
As we have adopted the agreed position of the parties, all other applications before us are dismissed.
F D Westwood
Date and place of hearing:
TASMANIAN INDUSTRIAL COMMISSION
REVIEW OF WAGE FIXING PRINCIPLES 1997
This statement of principles to be observed in the jurisdiction of the Tasmanian Industrial Commission has been developed to encourage enterprise bargaining, and the development of equitable and workable enterprise bargaining relationships between employers, employees and their unions.
The process of enterprise bargaining is conducted within the framework of an award system which provides a safety net of secure, relevant and consistent wages and conditions of employment.
The award system provides a safety net of wages and conditions which underpins enterprise bargaining and protects employees who may be unable to reach an enterprise agreement while maintaining an incentive to bargain for such an agreement.
The principles are also designed to ensure that the structural efficiency process continues to apply to awards of the Tasmanian Industrial Commission and that the award review process is effectively implemented.
2. STRUCTURAL EFFICIENCY
Consistent with the September 1988 [T.1524 and T.1525 of 1988]; October 1989 [T.2146 of 1989]; August 1991 [T.3069 of 1991]; February 1992 [T.3584 of 1991]; December 1993 [T.4692 of 1993], December 1994 [T.5214 of 1994] and July 1996 [T.6284, T.6305, T.6263, T.6264, T.6268, T.6269, T.6270 T.6271 and T6291 of 1996] State Wage Case decisions, the structural efficiency principle provides a framework through which it is intended that the parties to an award should co-operate positively in a continuing review of that award with a view to implementing measures to improve the efficiency of industry and enterprises and provide employees with access to more varied, fulfilling and better paid jobs. The measures should include but not be limited to:
· establishing skill-related career paths which provide an incentive for workers to continue to participate in skill formation;
· eliminating impediments to multi-skilling and broadening the range of tasks which a worker may be required to perform;
· creating appropriate relativities between different categories of workers within the award and at enterprise level;
· ensuring that working patterns and arrangements enhance flexibility and the efficiency of industry and enterprises;
· including properly fixed minimum rates for classifications in awards, consistent with the Form of Orders Principle, related appropriately to one another, with any amounts in excess of these properly fixed minimum rates being expressed as supplementary payments;
· updating and/or rationalising the list of parties to awards;
· addressing any cases where award provisions discriminate against sections of the workforce;
· examining both award and non-award matters to test whether work classifications and basic work patterns and arrangements are appropriate - the examination to include specific consideration of:
(i) the contract of employment including the employment of casual, part-time, temporary, fixed term and seasonal employees;
(ii) the arrangement of working hours;
(iii) the scope and incidence of the award;
· inserting facilitative provisions in relevant clauses of the award;
· establishing a consultative mechanism and procedures appropriate to their size, structure and needs for consultation and negotiation on matters affecting their efficiency and productivity;
· providing in awards, in order to ensure increased efficiency and productivity at the enterprise level, while not limiting the rights of either an employer or union to arbitration, a process whereby consideration can be given to changes in award provisions; any agreement reached under this process would have to be formally ratified by the Commission and any disputed areas should be subject to conciliation and/or arbitration; and
· providing in an award a provision to the effect that an employer may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training.
Structural efficiency exercises should incorporate all past work value considerations.
3. ENTERPRISE BARGAINING
3.1 When approving enterprise bargaining agreements, the Commission will have regard for the primary consideration that such agreements should be formalised as Section 55 registered industrial agreements. Parties who wish to pursue a different approach in a particular circumstance will be required to satisfy the Commission to that effect on the basis of the circumstances of the particular enterprise or enterprises involved.
3.2 A section 55 agreement or enterprise award may be made or adjusted to reflect an enterprise bargaining agreement between parties, subject to the following:
3.2.1 the proposed enterprise bargaining agreement is consistent with the continuing implementation at enterprise level of the structural efficiency principle (ie ensuring existing structures are relevant to modern competitive requirements of industry and are in the best interests of both employers and employees), including the consideration of a broad agenda.
3.2.2 any wage rates contained in the proposed enterprise bargaining agreement [apart from rates that may be approved on the basis of other principles] which exceed the appropriate rates set in accordance with the minimum rates adjustment principle or prescribed in an existing paid rates award, must be based on the actual implementation of agreed efficiency measures designed to promote productivity and efficiency.
3.2.3 the enterprise bargaining 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: the fact that it is 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;
3.2.4 where the proposed award or agreement will operate in conjunction with another award or agreement or other awards or agreements, it details the wage increases involved for each classification;
3.2.5 where the proposed award or agreement is not to operate in conjunction with another award or agreement, then the award or agreement should specify the classification in the relevant minimum rates award on which the actual rate prescribed for the key classification in the new agreement or new award is calculated. It should also contain a procedure for re-negotiation of the award or agreement at the expiry of its term;
3.2.6 the proposed award or agreement does not result in a reduction in ordinary time earnings, or departure from parental leave standards determined in test case proceedings and Commission standards of hours of work and annual leave with pay. A proposed award or agreement shall not in any way limit or forego the rights of employers and employees to make application and have determined by the Commission any matter in respect to termination, change and redundancy.
3.2.7 where parties to an enterprise bargaining agreement reached through negotiations with a single bargaining unit include employees within the jurisdiction of the Australian Industrial Relations Commission, an agreement covering those employees is submitted for approval through the processes provided under that jurisdiction.
4. ROLE OF THE COMMISSION IN ENTERPRISE BARGAINING
The Commission will continue to play an active role in encouraging and facilitating the parties in the pursuit of enterprise specific outcomes through enterprise bargaining.
4.1 The Commission, on application by a party which could be by way of Section 29, will undertake a conciliation and/or facilitation role to assist the parties in reaching agreement.
4.2 Section 61 of the Act [Private Arbitration] may be utilised by the parties where needed, to conclude an agreement.
4.3 Failing agreement to private arbitration in accordance with Section 61, or should a party wish to pursue an enterprise award or variation to an existing award, the relevant provisions of the Act may be pursued.
4.4 When approving an enterprise bargaining agreement which is to be reflected in a Section 55 agreement or enterprise award, the Commission will ensure that the Section 55 agreement or enterprise award, taken as a whole, will not disadvantage the employees concerned.
5. MINIMUM RATES ADJUSTMENT
Minimum rates adjustment 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:
5.1 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;
5.2 the second and subsequent instalments of these adjustments will not be automatic and an application to vary the relevant award will be necessary; and shall take into account those matters referred to in Principle 7 - Previous State Wage Increases.
5.3 supplementary payments may be prescribed in the wages clause of awards.
6. THE AWARD SAFETY NET
Existing wages and conditions in the relevant award or awards of the Commission shall be the safety net underpinning enterprise bargaining.
The award safety net may, on application be reviewed and adjusted from time to time to ensure its relevance. Generally the detailed nature and timing of any adjustments will be determined in the context of specific applications and in the light of prevailing economic, social and industrial circumstances.
7. PREVIOUS STATE WAGE CASE INCREASES
7.1 Increases available under previous State Wage Case decisions such as structural efficiency increases, minimum rates adjustments and the three previous $8 arbitrated safety net adjustments will on application continue to be accessible.
7.2 Subject to Principle 7.3 the spacing of increases to awards in accordance with principle 7.1 shall be determined by agreement between the parties to any particular Award or failing agreement by decision of the Commission.
7.3 Increases applied to Awards in accordance with this principle must be applied in such a manner as to ensure that there is no other increase in award wages between the $10 arbitrated safety net adjustment and the first pay period to commence on or after 14 September 1997. This provision may be varied by consent between the parties to any particular Award.
8. ARBITRATED SAFETY NET ADJUSTMENTS
8.1 Subject to Principle 8.3 all wage rates in private sector minimum rates and paid rates awards will be varied to include a $10 per week arbitrated safety net adjustment from the beginning of the first full pay period to commence on or after 14 July 1997 subject to the presentation of completed and agreed draft orders on or prior to this date. Junior, apprentice and trainee rates will be adjusted on a proportionate basis.
Where draft orders are not completed and agreed by 14 July 1997, the operative date will be the date that the Commission approves the draft orders.
8.2 The amount of the arbitrated safety net adjustment is to be reduced to the extent of any over award payment currently being paid by an employer.
8.3 In the event of a public sector award not having been varied to incorporate increases from enterprise bargaining, application may be made to incorporate the $10 safety net adjustment.
9. FORM OF ORDERS
9.1 Arbitrated safety net adjustments shall be shown as a separate amount against each classification in the award.
9.2 Where the minimum rates adjustment process has been completed in a minimum rates award or in a paid rates award the Commission may on application determine to combine the base rate and supplementary payment into an award rate. The arbitrated safety net shall continue to be expressed as a separate amount to protect the integrity of the relativities established in the structural efficiency process.
9.3 Where the minimum rates adjustment process has not been completed, the safety net adjustment may be taken into account in determining the size and phasing in of a minimum rates adjustment.
9.4 By consent of all parties to an award, where the minimum rates adjustment process has been completed, the weekly award rates may be expressed as hourly rates as well as weekly rates. In the absence of consent, a claim that award rates be so expressed may be determined by arbitration.
10.1 Existing Allowances
10.1.1 Existing allowances which constitute a reimbursement of expenses incurred may be adjusted from time to time where appropriate to reflect the relevant changes in the level of such expenses.
10.1.2 In circumstances where the Commission has determined that it is appropriate to adjust existing allowances relating to work or conditions which have not changed and service increments for a monetary safety net increase, such allowances and service increments shall be increased by a percentage derived as follows: divide the monetary safety net increase by the weekly wage rate for Level 7 - Metal and Engineering Industry Award immediately prior to the application of the safety net increase to the award and multiply by 100.
10.1.3 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.
10.2 New Allowances
10.2.1 New allowances to compensate for the reimbursement of expenses incurred may be awarded where appropriate having regard to such expenses.
10.2.2 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 or conditions have arisen, the question of a new allowance, if any, shall be determined in accordance with the relevant principle.
The relevant principle in this context may be work value changes or first awards and extensions to existing awards principle.
10.2.3 New service increments may only be awarded to compensate for changes in the work and/or conditions and will be determined in accordance with the relevant parts of the work value changes provisions of this statement of principles.
11.1 Agreements may be approved 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:
11.1.1 operate from a date determined or approved by the Commission; and
11.1.2 are consistent with the provisions of the Industrial Relations Act 1984 and the September 1994 AIRC Superannuation Test Case decision [Print L5100].
11.2 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 Industrial Relations Act 1984, arbitrate on that claim.
11.3 The Commission will not grant retrospective operation for any matters determined in accordance with this principle.
11.4 For the purpose of this principle, approved superannuation scheme means a scheme approved in accordance with the Commonwealth Operational Standards for Occupational Superannuation Funds.
12. WORK VALUE CHANGES
12.1 Changes in work value may arise 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.
12.2 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.
12.3 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, or the date of any increase awarded in accordance with this principle since that date.
12.4 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.
12.5 Where a significant net alteration to work value has been established in accordance with the 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.
12.6 The expression "the conditions under which work is performed" relates to the environment in which the work is done.
12.7 The Commission should guard against contrived classifications and overclassification of jobs.
12.8 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.
13. MAKING AND VARYING AN AWARD ABOVE OR BELOW THE SAFETY NET
An application to make or vary a minimum or paid rates award for wages and/or conditions above or below the award safety net shall be referred to the President for consideration as a special case. A party seeking a special case must make an application supported by material justifying the matter being dealt with as a special case. It will then be for the President to decide whether it is to be dealt with by a Full Bench and whether or not it constitutes a special case. Exceptions to this process are applications which fall within the provisions in the Enterprise Bargaining and First Award and Extension to an Existing Award Principles.
In considering an application to make or vary a paid rates award for wages and/or conditions above or below the award safety net, the Commission will ensure that any such paid rates award sets fair and enforceable wages and conditions of employment that are maintained at a relevant level.
13.1 Considerations which may be relevant in determining such wages and/or conditions in a paid rates award are:
13.1.1 ensuring it is suited to the efficient performance of work according to the needs of the particular industries and enterprises, while employees' interests are also properly taken into account;
13.1.2 the market and the extent of restructuring and associated efficiency improvements;
13.1.3 that a range of rates may be introduced for classifications in the award;
13.1.4 skill and responsibility;
13.1.5 recruitment and retention;
13.1.6 the commitment of the parties at both state and corporate level;
13.1.7 that the rates fixed do not lead to wage adjustments elsewhere;
13.1.8 that in a review of a paid rates award applying to a single enterprise/employer or a number of enterprises/employers, consideration should be given to internal relativities, if necessary, by a process of collective review of all the paid rates awards applying only to the particular enterprise/employer or enterprises/employers. Relevant factors in such a review are the particular circumstances of the enterprise/employer or enterprises/employers, including the particular market; and
13.1.9 that reliance on nexus itself provides no justification for a paid rates adjustment.
13.2 Where the market is a consideration the following should apply:
13.2.1 in the first instance, before any steps are taken to obtain information about the market, appropriate classifications and internal relativities should exist or be set for the workplace or sector concerned on the basis of skill and responsibility;
13.2.2 market information should not be used to alter the internal relativities already set without good and sufficient reason and the onus must lie on any party seeking to alter those relativities to demonstrate good and sufficient grounds for alteration;
13.2.3 in some cases the relevant market will be the local geographical market, although in other cases national market considerations will be relevant and the market may include the public sector;
13.2.4 when using information about market rates of pay, care must be taken to ensure that the rates examined have been set for classifications which are comparable and that conditions of employment have been objectively taken into account; and
13.2.5 in obtaining information about market rates, the relevant consideration is the level of actual rates paid not the amounts of any increases in rates.
14. FIRST AWARD AND EXTENSION TO AN EXISTING AWARD
The following shall apply to the making of a first award and an extension to an existing award:
14.1 In making a first award the long established principles shall apply. That is, prima facie the main consideration shall be the existing rates and conditions.
14.2 In the making of a first award, the other main consideration shall be that the award meets the needs of the particular industry or enterprise while ensuring that employees' interests are also properly taken into account. Structural efficiency considerations shall apply in the making of such an award.
14.3 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, providing structural efficiency considerations, including the minimum rates adjustment provisions where relevant, have been applied to the award.
14.4 Additional matters which are to be considered when making a first paid rates award would include:
14.4.1 whether the wages and conditions of employment of the employees concerned have customarily been determined by a paid rates award;
14.4.2 whether the parties to the award are appropriate, bearing in mind that a paid rates award is most appropriately framed on the basis of limited coverage;
14.4.3 that such an award should generally cover all important aspects of the employment relationship considered appropriate for award regulation;
14.4.4 that wages and conditions of employment in a paid rates award are to be fair and enforceable and maintained at a relevant level. Considerations which may be relevant to the determination of such wages and conditions are:
22.214.171.124 ensuring it is suited to the efficient performance of work according to the needs of the particular industries and enterprises, while employees' interests are also properly taken into account.
126.96.36.199 the market and extent of restructuring and associated efficiency improvements;
188.8.131.52 that a range of rates may be introduced for classifications in the award;
184.108.40.206 skill and responsibility;
220.127.116.11 recruitment and retention;
18.104.22.168 the commitment of the parties at both state and corporate level; and
22.214.171.124 that the rates fixed do not lead to wage adjustments elsewhere.
14.4.5 that the award should specify the classification prescribed in the relevant minimum rates award on which the paid rate prescribed for the key classification in the award is calculated; and
14.4.6 the need for the parties to give a commitment that they will maintain the integrity of the paid rates award. [The Commission may convert into a minimum rates award a paid rates award which ceases to be maintained as a true paid rates award. The conversion of a lapsed paid rates award into a minimum rates award will involve the evaluation of classifications in it by comparison with similar classifications in other minimum rates awards].
14.5 Where the market is a consideration the following should apply:
14.5.1 in the first instance, before any steps are taken to obtain information about the market, appropriate classifications and internal relativities should exist or be set for the workplace or sector concerned on the basis of skill and responsibility;
14.5.2 market information should not be used to alter the internal relativities already set without good and sufficient reason and the onus must lie on any party seeking to alter those relativities to demonstrate good and sufficient grounds for alteration;
14.5.3 in some cases the relevant market will be the local geographical market, although in other cases national market considerations will be relevant and the market may include the public sector.
14.5.4 when using information about market rates of pay, care must be taken to ensure that the rates examined have been set for classifications which are comparable and that conditions of employment have been objectively taken into account; and
14.5.5 in obtaining information about market rates, the relevant consideration is the level of actual rates paid not the amounts of any increases in rates.
15. 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. A reduction in standard hours below 38, or an increase in standard hours up to 38, will be approved only in circumstances where the parties demonstrate their consent.
16. AWARD REVIEW PROCESS
16.1 Consistent with the decision of the Tasmanian Industrial Commission in matters T6284 ,T6305 of 1996 and T.Nos 6284, 6305, 6263, 6264, 6268, 6269, 6270, 6271 and 6291 of 1996 the parties are to continue to pursue their commitment to review Awards in the context of:
16.2 To facilitate the review process the Commission will hold a conference of registered organisations.
16.3 The Commission will convene conferences of parties to each award to receive reports on the award review process and to assist in the development of timetables including where relevant a timetable to finalise the review by conciliation and/or arbitration.
16.4 At the time of an application for any future arbitrated safety net adjustment (however described) the Commission must take account of the extent to which the parties to the Award have actively pursued the Award review process.
17. ECONOMIC INCAPACITY
Any registered organisation subject to an award may apply on behalf of an employer or group of employers to reduce and/or postpone the application of any increase in labour costs determined under the principles on the grounds 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.
It will be a matter for the President to decide whether any such application should be dealt with by a Full Bench.