Health, Fitness and Indoor Sports Centres (State) Award [2004] NSWIRComm 241

RESPONDENTS: LEGAL REPRESENTATIVES: Mr S Loehr ABI Mr M Cooper Employers First Ms D Cann LeisureCo

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Re Health, Fitness and Indoor Sports Centres (State) Award Application by Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch for variation re State Wage Case 2004 DECISION [2004] NSWIRComm 241

1 This matter concerns an application by the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch ("ALHMWU") to vary the Health, Fitness and Indoor Sports Centres (State) Award by increasing rates of pay and allowances in accordance with the decision in the State Wage Case 2004 reported at [2004] NSWIRComm 148.

2 The application to increase rates of pay is uncontroversial and having been satisfied the application in this respect is in accordance with the requirements of the Wage Fixing Principles determined in the State Wage Case 2004 I propose to vary the Award in accordance with Schedule A to the application.

3 What is in dispute, however, is the increase to apply to three expense related allowances, namely, the stocking allowance, laundry allowance and excess fares allowance. The ALHMWU sought to increase the allowances using the Australian Bureau of Statistics' Consumer Price Index figure for Sydney rather than the "Weighted Average of 8 Capital Cities" (Cat. No. 6455.0.40.001) as follows: Table 1 Item Existing Rate Proposed new rate Sydney Index for: Stocking Allowance $2.60 / week $2.70 / week Clothing & Footwear - $0.52 / day $0.54 / day Women's underwear, nightwear & hosiery Laundry Allowance $6.80 / week $7.00 / week Clothing & Footwear - $0.52 / week $1.40 / day Clothing Services and Shoe Repair Broken Shift $7.30 / week $7.75 / week Transportation - Excess Fares Allowance $1.46 / day $1.55 / day Urban Transport Fares

4 The position of Employers First™ (summarised in table 2 below) was that the stocking and laundry allowances should be increased by reference to the relevant increase in the CPI for "Clothing Services and Shoe Repair - Weighted Average of 8 Capital Cities" and the excess fares allowance by reference to the increase in "Holiday, Travel and Accommodation - Weighted Average of 8 Capital Cities". It was contended that these were the appropriate benchmarks because historically they had been used to adjust the allowances.

Allowance Index Proposed new rate $ Stocking Allowance Clothing Services - Weighted Average of Eight Capital Cities 2.65 per week 0.53 per day Laundry Allowance Clothing Services - Weighted Average of Eight Capital Cities 6.95 per week 1.39 per day Broken Shift - Excess Fares Allowance Holiday Travel and Accommodation - Weighted Average of Eight Capital Cities 7.30 per week 1.46 per day

5 The position of Australian Business Industrial ("ABI") was the same as Employers First™ except in relation to the basis for adjusting the excess fares allowance. ABI contended that the appropriate basis for adjusting this allowance was the Eight Capital Cities - Urban Transport Fares Index. ABI submitted that the Holiday, Travel and Accommodation Index had been wrongly applied in the past and consequently the excess fares allowance should be frozen until such time as the excessive past increases in the allowance have been absorbed. LeisureCo appears to have adopted the same position as ABI.

6 The parties have all provided helpful submissions on the issue and the history of the allowances. The history may be summarised from ABI's submission as follows:

· The Award was made on 12 August 1998 (309 IG 561) by Peterson J. It replaced and rescinded the Miscellaneous Workers Health Physical Culture and Weight Loss Centres (State) Award. At that time, the Award did not contain an excess fares allowance.

· The Award was varied on 12 August 1999 (315 IG 32) to give effect to the 1998 and 1999 State Wage Cases. There was no provision for an excess fares allowance.

· The excess fares allowance was inserted into the Award as part of the variation to give effect to the 2000 State Wage Case (321 IG 437). The excess fares allowance was set at the same amount as the laundry allowance that applied at that time.

· On 6 August 2001, the Award was varied in accordance with an application filed by the Australian Workers Union ("AWU"), to give effect to the 2001 State Wage Case (337 IG 126). The 2001 application did not specify the CPI that was applied to each of the expense-related allowances. However, the increase to the stocking allowance and laundry allowance was consistent with movement in the Weighted Average of Eight Capital Cities - Clothing Services and Shoe Repair Index. The increase to the excess fares allowance was consistent with movement in the Consumer Price Index Standard Data Report Capital City Index Numbers by Expenditure Class - Sydney - Urban Transport Fares Index. The ALHMWU consented to the variation.

· On 19 July 2002 (337 IG 130) and 10 July 2003 (serial C2145) the Award was varied, in accordance with applications filed by the AWU, to give effect to the 2002 and 2003 State Wage Cases, respectively. The ALHMWU did not appear in either the 2003 or 2003 proceedings. In each year, the stocking allowance and the laundry allowance were varied, in accordance with movement in the Weighted Average of Eight Capital Cities - Clothing Services and Shoe Repair Index. The excess fares allowance was varied, in accordance with movement in the Weighted Average of Eight Capital Cities - Holiday Travel and Accommodation Index.

7 Principle 5(a) of the Commission's Wage Fixing Principles provides that: (a) Existing allowances which constitute a reimbursement of expenses incurred may be adjusted from time to time where appropriate to reflect relevant changes in the level of such expenses.

8 In order for expense related allowances to be adjusted the onus is on the applicant to demonstrate, objectively, that there has been a change in the level of expense to which the allowance relates. I note, however, that in many cases, the parties find it convenient to rely on relevant price indexes published by the Australian Bureau of Statistics and adjustments are made to expense related allowances from time to time on that basis, by consent.

9 It seems to me that if the parties have, in the past, agreed on a particular index by which to adjust allowances any party wishing to depart from that agreement would need to demonstrate that what they propose is appropriate and consistent with the requirements of the relevant wage fixing principle. It is not, however, open to a party to pick and choose from price indexes depending on which will achieve the highest increase in the allowance under consideration.

10 In the present case, it would appear from the history of the movement of the allowances that the stocking and laundry allowances have been adjusted by consent according to movements in the Weighted Average of eight Capital Cities - Clothing Services and Shoe Repair Index. The excess fares allowance in 2001 was adjusted in accordance with the Sydney - Urban Transport Fares Index but in 2002 and 2003 it was adjusted in accordance with movements in the Weighted Average of eight Capital Cities - Holiday Travel and Accommodation Index.

11 I consider it is appropriate in this case to adopt the position proposed by Employers First™, namely, that the laundry and stocking allowances will be adjusted according to movements in the Weighted Average of eight Capital Cities - Clothing Services and Shoe Repair Index and the excess fares allowance according to movements in the Weighted Average of eight Capital Cities - Holiday Travel and Accommodation Index. For any change to be made to the basis for adjusting the allowances I would need to be satisfied that the foregoing indexes were not appropriate for the purpose of determining whether there had been a change in the level of the relevant expense and that the index sought to be substituted properly reflected that change in expense. I am not satisfied that the ALHMWU has discharged that onus in this case, although it remains open for the Union in the future to satisfy the Commission, on a proper evidentiary foundation, that the allowance should be adjusted on some other basis.

12 I do not propose to accept ABI's proposal to freeze the excess fares allowance for a period so that past increases regarded by ABI as excessive are absorbed.

13 The Award is varied in accordance with Schedule A to the ALHMWU's application subject to the amendments that are set out in Table 2 above. The variation to the Award shall take effect from the first full pay period to commence on or after 12 August 2004. The ALHMWU is to provide my Associate with a revised schedule of the Award variation within 48 hours of the publication of this decision in hard copy and electronic form.

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