T96 and T99
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
The Commission as constituted had before it two matters for hearing. The first was an application lodged by the Tasmanian Trades and Labor Council (the T.T.L.C.), designated T99 of 1985, and the second an application lodged by the Tasmanian Public Service Association (the T.P.S.A.), designated T96 of 1985. Both applications were lodged immediately following the handing down of the Full Bench Decision in the National Wage Case (Print F8100) on 3 April, 1985, and sought the variation of public and private sector awards of this Commission in a like manner to that of Federal awards, and the applications were conveniently joined for hearing together. Each application relied upon the fact that this Commission earlier this year adopted, mutatis mutandis, the Wage Fixing Principles of the Conciliation and Arbitration Commission announced on 23 September, 1983, and the fact that Principle 1(a) provides as follows:-
Both applications also sought to vary Principle 9, Allowances, by altering the preamble to read as follows:-
Each application then sought that appropriate allowances should be adjusted by 2.6% in accordance with Principle 9. AWARD VARIATIONS In specific terms the claims, as amended, were to vary awards of this Commission in the following manner:- A. PRIVATE SECTOR AWARDS (a) Increase the Basic Wage by 2.6%. (b) Increase all margins by 2.6%. (c) Increase the Minimum Wage by 2.6%. (d) Increase leading hand rates by 2.6%. (e) Increase tool allowances by 2.6%. (f) Increase shift allowances where expressed in money terms by 2.6%. (g) Increase meal allowances (or however else expressed) by 2.6%. (h) Wage rates expressed as a total wage be increased by 2.6%. (i) As a consequence of increasing the basic wage and margins (or total wage) by 2.6%, an adjustment to be made to wage rates for juniors, apprentices and piece-work rates. (j) The operative date of effect be the first pay period to commence on or after 6th April, 1985. The awards specified for increases to wage rates are contained in Exhibit L2, which is appended hereto. Mr. Lennon sought that the following awards be exempted at this time because of alleged nexus situations i.e.
The awards specified for increases to tool allowances are contained in Exhibit L3, appended. Exemptions from any decision resulting from this case as to tool allowance were sought in respect of - 1) The Award of the Building Trades Industrial Board. 2) The Award of the Monumental Masons Industrial Board. 3) The Award of the Plumbers Industrial Board. The awards specified for increases to meal allowances (or however otherwise expressed) are contained in Exhibit L4, appended. Exemptions were sought from any decision resulting from this case as to meal allowance in respect of the following awards:- 1) The Award of the Building Trades Industrial Board (as to Sections 1, 2, 3 and 6 only). 2) The Award of the Plumbers Industrial Board. Mr Lennon also sought that all other appropriate allowances be increased by 2.6% and requested the convening of a conference under the aegis of the Commission to identify all of such allowances, having regard for the peculiarity of some awards. He also acknowledged that rounding off of wage rates and allowances take place in the historical manner. B. PUBLIC SECTOR AWARDS The claim in respect of public sector awards was expressed by the T.T.L.C. as:- (a) Increase all wage rates by 2.6%. (b) Increase all appropriate allowances by 2.6%. The T.P.S.A. claim was identical as to intent but was expressed as:- "An increase in all salary rates and allowances of 2.6% to take account of the September and December C.P.I. movements." In each instance, the date of effect sought was the first pay period to commence on or after 6th April, 1985. The T.T.L.C. and the T.P.S.A. nominated the public sector awards to which the claims relate, as appended. During the course of the hearing, Mr. Westwood, appearing for Controlling Authorities under the Public Service Act, pointed out that the Racing Directorate Staff Award is of no further relevance as no persons are now employed under it. The Attitude of Parties to the Hearing (a) The Tasmanian Trades and Labor Council Mr. Lennon advised the Commission that the claims being prosecuted on behalf of trade unions affiliated and non-affiliated had the support of the total union movement within Tasmania. He also indicated that pre-hearing discussions had taken place with the Tasmanian Chamber of Industries and Government representatives whom he understood would not be opposing a flow-on of the National Wage Case decision. Since the National Wage Full Bench examined the Australian economy in depth before consenting to an increase, and were encouraged by the signs, it was not necessary to go over the same ground, other than to point out that Tasmania's economy is holding pace with those of other States. Latest unemployment figures show that Tasmania's unemployment is the second lowest in the Commonwealth with 8.9% unemployed now compared to 9.8% one year ago. Given that there is no opposition to the claim the provisions of Principle 1 clearly should be applied. It was submitted that it would be consistent with public interest requirements for the Principles as a whole to remain in force for the full two years and to be applied in this instance by granting the claim. Mr Lennon stressed that the trade union movement had given a commitment for 2 years, and was adhering to that commitment, and as a consequence, employees had a proper expectation that the C.P.I. increase for the past 6 months would be reflected in award increases. He said a failure to pass the increase on to State awards would place the Principles in serious jeopardy. Some concern was expressed at the decision not to grant 2.7% nationally and it was said that any future attempt to discount the C.P.I. figures will inevitably place pressure on the Principles and the system generally. The view was also expressed that registered agreements ought to receive the benefit of any decision made. Mr Lennon indicated that the hearing could conveniently be used as the vehicle for altering the title of all private sector awards as a consequence of the abolition of industrial boards and the creation of the Tasmanian Industrial Commission. (b) The Tasmanian Public Service Association Mr Huxtable supported the submissions made by the Secretary of the T.T.L.C. and adverted to the fact that this Commission formally adopted the Principles in January of this year when the new Industrial Relations Act was proclaimed and reminded the Commission that the T.P.S.A., along with others, gave the requisite commitment to those Principles. He said it followed that, in accordance with Principles 1 and 6 the 2.6% adjustment to salaries and allowances be granted. (c) The Tasmanian Salaried Medical Practitioners Society Mr. Paterson supported the submissions of the T.T.L.C. and the T.P.S.A. insofar as they affect the Medical Practitioners Principal Award, the Public Service General Conditions of Service Award and the Award of the Hospitals Industrial Board for a flow-on of the recent National Wage Full Bench decision in Print F8100. Attention was drawn to the comments of the earlier Full Bench which said at page 22 of Print F5000 that:- "We have reached our conclusions both as to amount and as to Principles in the hope and expectation that State tribunals will find themselves able to accept the substance in what we have done for the period for which we have done it." Accordingly it was submitted that that principle should continue to apply at this time. (d) The Hospital Employees Federation of Australia (Tasmanian Branch No. 2) In addition to supporting the submissions put by other employee organisations, Mr. Simmonds detailed the allowances contained in the Award of the Hospitals Industrial Board Parts 1 and 2, for which an increase is sought. He also detailed charges (i.e. salary deductions) which should be similarly treated. Support was given to the concept of a conference to clarify any other allowances requiring amendment. (e) The Federated Miscellaneous Workers Union Mr. O'Brien supported the submissions of other participating unions. (f) The Minister, on Behalf of the Crown Mr. Pearce indicated that the Government does not oppose the flow-on of the National Wage Case decision of 2.6% to salaries and relevant allowance contained in awards of this Commission. Such an attitude of the Government on this occasion is consistent with the views expressed before the National Wage Full Bench in relation to the 2.6% total C.P.I. increase over the last two quarters. On the question of changing the preamble to Principle 9 to enable anomalous and iniquitous matters relating to allowances to be dealt with under Principle 6, it is acknowledged that this is now part of the National Wage Decision of 3 April 1985. Whereas the Government opposed a change in the Principles at this time before the National Wage Full Bench for a number of reasons, it somewhat reluctantly now accepted such decision and sees it as appropriate that this Commission vary its Principles so as to reflect the Federal decision. (g) Tasmanian Chamber of Industries In the view of the Tasmanian Chamber of Industries, the application, if granted, will increase the wages bill of all employers subject to awards of this Commission by an estimated $43m per annum. As a consequence, the T.C.I. does not lightly consent to the current claims being granted. Mr. Abey said his organisation opposed any increase through the Confederation of Australian Industry when heard before the National Wage Full Bench and this opposition was based upon what was seen as sound economic reasons, in that whilst it is recognised that an economic recovery has occurred to some extent, there has been a marked slow down in that economic recovery, and it is in grave danger of petering out altogether. It was contended therefore that the recovery had been partial and uneven and its continuance is far from assured. Nevertheless, consent was given to the granting of the application at this time because it would be industrially unrealistic to create a situation where approximately half the workforce would enjoy a 2.6% increase and the other half not. A different approach may be adopted on other occasions, as each case will be considered on individual merit. Similarly, whereas the Confederation of Australian Industry argued against an increase in junior rates of pay, that application was unsuccessful, and therefore a flow-on is not opposed in this jurisdiction, although the Commission is invited to make a similar observation to that of the National Wage Full Bench when it indicated it would be appropriate for individual awards to be examined as to junior rates if such application is made. Mr. Abey expressed opposition to a blanket exemption of the Award of the Plumbers Industrial Board, but not to that Section of the award which has a Federal counterpart. He also expressed opposition to the exemption of the Award of Monumental Masons Industrial Board in any form. Mr. Abey said the application before the Commission related only to certain nominated allowances being increased and said they are the only allowances which should be varied at this time. He would be prepared to participate in a distinct and separate conference if it was called to examine other allowances. The suggestion that the consequential deletion of the redundant words "Industrial Boards" from all private sector awards was wholeheartedly supported by the T.C.I. (h) Controlling Authorities Mr. Westwood, representing Controlling Authorities, raised no objection to the granting of the claims in both matters. He did, however, comment that only those allowances which have customarily been varied in the past should be varied on this occasion. Deductions provided for in awards should be processed in a like manner. One particular allowance which should not be varied on this occasion in public sector awards is recreation leave allowance. (h) Australian Mines & Metals Association (Inc.) Tasmanian Branch The Australian Mines and Metals Association neither opposed nor supported the application. (i) Master Builders Association of Tasmania On behalf of the Master Builders Association, Mr. Smith supported the T.C.I. position generally and particularly in relation to the opposition to any exemption of the Award of the Building Trades Industrial Board, other than Sections 1, 2 and 3 of the Award of the Plumbers Industrial Board other than Section 1, as it is only those Sections which have traditionally followed counterpart Federal awards. (j) Retail Traders Association of Tasmania The position expressed by the Retail Traders Association was that whilst it accepts the decision of the National Wage Full Bench, it regrets it. Support was expressed for the notion of an examination of junior worker rates on an award by award basis. Mr. McDougall indicated that any extra costs incurred by the retail industry would have to be passed on as increased prices. Concern was expressed over the fact that the retail industry relies upon a good many imported goods and the fall in value of the Australian dollar will create an added burden. DECISION This is the first occasion since the formation of this Commission that we have heard claims relating to the flow-on of a National Wage Case decision of the Australian Conciliation and Arbitration Commission. The Industrial Relations Act, 1984, created the Tasmanian Industrial Commission as from 1 January 1985. Sub-Sections (7) and (8) of Section 35 of the Act vests in a Full Bench of this Commission the right to make an order under present circumstances varying wages generally, subject to such conditions as the Full Bench considers appropriate. Section 35 provides inter alia:- "(7) Subject to this section, where a Full Bench is satisfied that, having regard to a decision of the Australian Commission that is applicable to the wages payable generally to employees who are subject to awards of the Australian Commission in Tasmania, a variation should be made to the wages payable generally to employees under awards of the Commission, the Full Bench may order, that any such variation be made. (8) An order under subsection (7) by a Full Bench may be subject to such conditions as the Full Bench considers appropriate and as are specified in the order". We have had regard for the decision of the Australian Commission issued on 3 April 1985 (Print F8100) in the National Wage Case that is applicable to wages payable generally to employees who are subject to awards of the Australian Commission in Tasmania. We have also had regard for all the submissions and evidence placed before us by each of the parties and intervenors. Trade union representatives argued strongly that employees in both the public and private sectors, now subject to awards of the Commission, are entitled to the benefits of Principle 1 of the Wage Fixing Principles, which, it was acknowledge, were formally adopted by this Commission in January this year, and to which each and every trade union within the State system have given a commitment for a period of 2 years, pursuant to Principle 3. Principle 1 provides:- "(a) Subject to Principle 3, the Commission will adjust its award wages and salaries every six months in relation to the last two quarterly movements of the eight-capitals CPI unless it is persuaded to the contrary by those seeking to oppose the adjustment. (b) For this purpose the Commission will sit as soon as practicable following a relevant National Wage decision of the Conciliation and Arbitration Commission. (c) The form of indexation will be uniform percentage adjustment unless the Commission decides otherwise in the light of exceptional circumstances. It is to be understood that any compression of relativities which may have occurred in recent times does not provide grounds for special wage increases to correct the compression. (d) It would be appropriate for the Commission, after hearing the parties to an award and being satisfied that a proper case has been made out, to recommend the indexation of overaward payments when award payments are indexed." Since no party has sought to oppose the granting of an increase in award wages and salaries relating to the last two quarterly movements of the eight-capitals C.P.I., the Commission has no difficulty in deciding to grant a 2.6% increase, as sought, pursuant to Principle 1(a) of the Principles. We are also required to consider the criteria of public interest as expressed in Section 36 of the Act, quote:- "36. (1) Before the Commission makes an award under this Act or before the Commission approves an industrial agreement under section 55, the Commission shall be satisfied that that award or that agreement is consistent with the public interest. (2) In deciding whether a proposed award or a proposed industrial agreement would be consistent with the public interest, the Commission shall - (a) consider the economic position of any industry likely to be affected by the proposed award or proposed agreement; (b) consider the economy of Tasmania and the likely effect of the proposed award or proposed agreement on the economy of Tasmania with particular reference to the level of employment; and (c) take into account any other matter considered by the Commission to be relevant to the public interest." The Tasmanian Chamber of Industries' view was that whilst an economic recovery has occurred to some extent, there has been a marked slow down and that recovery is in danger of petering out altogether. This was, however, based upon an overview of the national economic scene and not confined to Tasmania. Additionally, the Retail Traders Association expressed concern at the cost implications of any wage increase, coupled with likely effects of devaluation of the Australian dollar. No party, however, presented any evidence of Tasmania's situation being worse than that of Australia as a whole, or that the level of employment was likely to be seriously affected if the monetary claims were granted. On the other hand, the Tasmanian Trades and Labor Council did provide evidence that Tasmania's overall level of unemployment is currently the second lowest of the States and has improved compared to one year ago. This was not contested by any party or intervenor. The T.T.L.C. also argued that it is very much in the public interest for the Principles to continue to operate for their full term of two years, and that too was uncontested. We believe therefore there is sufficient evidence for us to be satisfied that to grant the claims is consistent with public interest as defined by Section 36. We must say we were heartened by the fact that no organisation or intervenor suggested, or requested, any departure from the September 1983 Principles, apart from a consequential alteration to ensure that the Principles applying in Tasmania remain essentially the same as those of the Australian Commission. Rather the emphasis was very much on the fact that the commitment of the unions to the Principles is still strong, and there is a continued realisation of the fact that the Principles contain both benefits and obligations, and that all of the elements are very much integrated and inseparable. We would expect of course that in seeking the present 2.6% increase in wages and allowances, the trade union movement would argue that it has fully met its obligation not to pursue any claims, except in compliance with the Principles. Our observation is that overall, considerable responsibility has been shown in this regard by the vast majority of Tasmania's unionists. There have, however, been a number of disputes this year in which claims made were either accompanied or preceded by strike action. We agree with the comments of his Honour Mr Justice Williams in his statement of 3 April, at page 10, when he said:- "It is implicit in the undertakings given by the unions that decisions of the Commission in connection with the application of the Principles will be processed and accepted without recourse to industrial action". Whilst we do conclude that the no extra claims commitment has been generally observed, it is nevertheless timely to remind all parties that there can be no relaxation in this regard and the Commission, for its part, will continue to insist upon the scrupulous observation of the Principles. In now moving to the unanimous view expressed to us that the Principles be amended to take aboard the alteration to the preamble to Principle 9, Allowances, so that same may become part of the anomalies or inequities procedure. We believe it is proper and appropriate to accede to this request. In coming to this conclusion, we have had regard for the quote from the National Wage Case decision of 23 September 1983 (Print F2900) drawn to our attention, on this occasion, by the Tasmanian Salaried Medical Practitioners Society. The quote is to be found at page 22 of the print:- "We have reached our conclusions both as to amount and as to principle in the hope and expectation that State tribunals will find themselves able to accept the substance in what we have done for the period for which we have done it." This Commission has already adopted mutatis mutandis the Principles of the Australian Commission, and the modification to those Principles and this time is seen as being appropriate. We believe that, for the time being at least, it is in the public interest for the Principles to operate on a uniform basis throughout the various areas of jurisdiction, and do not see the adoption of such a uniform and co-operative approach, which is justifiable upon evidence and allowable by the Industrial Relations Act, as impinging upon the statutory independence of this Commission. There are a number of extraneous matters which were addressed by the parties which require decision, i.e.: Exemptions The awards to be varied will be those contained in Exhibit L2 and the attachment accompanying the T.P.S.A. application, but shall exclude:- (a) Public Sector Award - (i) Racing Directorate Staff Award This award is now redundant because no one is covered by it. (b) Private Sector Awards - (i) Award of the Building Trades Industrial Board as to Parts I, II and III only as to wage rates. All of the award shall be exempted so far as meal allowance and tool allowance is concerned.
(ii) Award of the Plumbers Industrial Board as to wage rates contained in Section 1 only. All of the award shall be exempted from any variation to meal allowance and tool allowance for the same reasons as in (i) above.
(iii) Award of the Monumental Masons Industrial Board - exempted as to tool allowance only because of historical factors.
Form of Variation (a) The awards to be varied as to wages, salaries and allowances are those nominated by the applicants and appended to this decision, apart from the exemptions already stipulated. (i) The Basic wage, where applying, shall be increased by 2.6% to $104.20. (ii) All margins, where applying, to be increased by 2.6%, rounded off to the nearest 10c, with 5c going to the next 10c. (iii) The minimum wage where applying to be increased by 2.6% to $187.10. (iv) Wages and salaries expressed as total wage to be increased by 2.6% with rounding off to the nearest 10c, with 5c going to 10c except where expressed as annual figures, in which case rounding off will be to the nearest $1.00, with 50c being taken to the next highest dollar. (v) As a consequence of increasing the basic wage, margins and total wages by 2.6% adjustments to be made to wage rates for juniors, apprentices, and piece work rates. (b) Specific allowances to be varied are:- (i) Leading hand rates to be increased by 2.6%. (ii) Tool allowances to be increased by 2.6%. (iii) Shift allowances expressed in money terms to be increased by 2.6%. (iv) Meal allowances to be increased by 2.6%. Where appropriate, other allowances will also be increased by 2.6% in both the public and private sector. We do not believe it is appropriate however to alter annual leave loadings where expressed as money amounts at this time. Other exceptions to the rule may also exist and we believe it is appropriate for parties to confer in the first instant and then submit agreed draft orders to the Commissioner in charge of that award for final ratification as a consequential procedure being part of our decision. We believe this procedure is preferable to the suggested further conference put forward by the T.T.L.C.. The draft orders submitted to the Commission must cover all variations arising from our decision and not just allowances. All such draft orders should reach the Commission not later than 10 May 1985. In the event parties to awards differ in view over any aspect of a draft variation, recourse should be made to the Commission member with responsibility for the award without delay. Industrial Orders and Formal Agreements All draft variations to Orders and Agreements which are current as at 1 January 1985, or subsequently, which require alteration consequent upon this decision should be submitted to the Deputy President for scrutiny and approval at an early date. The formula to be adopted for rounding off generally is as follows:- Award rates expressed in whole dollars - rounded off to the nearest dollar; Allowances or rates expressed as amounts, already rounded off to the nearest 5 cents or 10 cents, rounded off to the nearest 5 or 10 cents as the case may be; Allowances or rates already rounded off to the nearest cent to be again rounded off in that manner, except where the award contains rates expressed as fractional parts of a cent, when rounding to the nearest decimal point will be in order. The Request for Review of Junior Rates Parties to the hearing expressed opposite views as to what, if anything, should be done in the future as to wage rates applicable to juniors in the context of the disproportionately high rate of unemployment amongst juniors. On the limited amount of material before us, we are not prepared to offer any comment other than point out that it is always open to organisations to submit any application it feels is capable of being supported by argument and evidence. The form of such application whether it be for one award or more is entirely a matter for the applicant to decide. Revised Title to Private Sector Awards In view of the total agreement of all parties, it is our decision that the title of private sector awards will reflect the fact that these are now awards of this Commission. Use of Basic Wage and Margins The hearing was used as an opportunity to raise the question of continued use of the concept of a basic wage and margin in some awards. We raised the matter not so much to invite serious debate at this time, but to give notice of the desirability of all organisations formulating a policy by consulting constituent members. Changes to the Principles Having acceded to the request to vary the preamble to Principle 9 to now read:- "Allowances may be adjusted or awarded only in accordance with this Principle and Principle 6. Service increments may be adjusted or awarded only in accordance with paragraph (c) of this Principle." we now append the Principles as an attachment. Operative Date:- The increases shall operate from the beginning of the first pay period to commence on or after 6 April 1985.
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