In saying that we should not be taken to mean that such considerations will necessarily be excluded from the special case. As much is clear from the Crown Employees case. It is however appropriate to observe ... that the present Special Case principle unlike its 1990 predecessor does not require that cases be considered "in accordance with the structural efficiency and other relevant principles". It requires, as was said in the Transport Industry case, that special attributes exist which warrant approval by the Commission despite the restrictive considerations imposed generally by the principles of wage fixation and that is the essential basis upon which the Commission will approach the determination of the present application.
38 In Re Operational Ambulance Officers (State) Award (2001) 113 IR 384 the Full Bench extensively dealt with the special case principle and its application in the following passages which we adopt:
[167] The special case principle in its present form (see State Wage Case 2001 (2001) 104 IR 438) is not relevantly different from that found in the State Wage Case - May 1991 (1991) 36 IR 362 which was considered in Re Crown Employees (Administrative and Clerical Officers State) Award (No 2) (1993) 52 IR 243. In the latter decision the Full Commission held (at 376 - 377):
In our view, the special case section of the principles provides a mechanism whereby a claim for enhanced wages or conditions beyond those normally allowed under the principles may be brought before the Commission. The hearing of such a claim is to be conducted by the Full Commission (formerly the Commission in Court Session) thus emphasising the special nature of the case. It will be a matter for the Full Commission, after hearing the evidence and submissions, particularly relating to the matters relied on to take the case "out of the ordinary" and thus to make it "special", to decide whether the claim, in part or in whole, should succeed.
Some of the cases brought under the special case provisions have relied, it is true, on the Work Value Changes principle, a principle which is not relied on here. But other cases, some of which have earlier been identified, have substantially been brought on the basis that developments in workplace reform or a structural efficiency kind, in which employees have participated or to which they have contributed, have been such as to justify wages increases beyond those normally allowable under the principles. On a number of occasions, such applications have been approved by the Commission. In some of them the amounts of wage increase have been agreed by the parties but in others they have not, and the Commission has made an arbitrated decision in the matter.
In our view the present application can fit comfortably into the class of case to which we have just referred, certainly so far as it seeks wage increases by way of award prescription...
....
We therefore find that the applicants are entitled to bring their case under the special case provisions of the principles.
That, of course, is not the end of the matter. The Full Commission must decide whether, on the whole of the material before it, and bearing well in mind the respondent's opposition, the claim should in whole or in part succeed and if so what increases should be awarded and what conditions, if any, should be prescribed. But we repeat our view that, in accordance with the principles, it is entirely appropriate for this claim to be heard and for the Commission to grant the claim in whole or in part if considered justified on the merits.
It is also entirely appropriate, it is concluded that, in general, the claim should succeed, the Commission have regard to economic considerations, including the changing value of money over time, when deciding the amount of increase which should be awarded. Matters which may be considered in that regard are the date on which the last wage increases for employees in question took effect, and changes in money values which have occurred since that time or are forecast during the prescribed life of the award to be made.
Further, in Re Transport Industry (State) Award (1996) 95 IR 126, a Full Bench of the Commission observed (at 130 - 131):
Mr. Warren submitted the Carpenters case principle is irrelevant to the determination of a special case; but the principles of wage fixation operate, in effect, as a code which provides all the principles of application. We are unable to accept this view. The approach adopted by the Full Commission in the Crown Employees case was that a case, if made out to be "special", may be determined according to its circumstances. That approach requires, in effect, that the Commission be satisfied that the case is not an ordinary one, but has special attributes which warrant its approval despite the restrictive considerations imposed generally by the principles of wage fixation. That does not mean that the Commission is precluded in an appropriate case, from deciding that an award should be made over the objection of a particular employer or group thereof. Indeed, a special case does not require consent at all.
[168] A number of principles may be distilled from these authorities bearing upon the contention advanced by the HAC. In order to make out a special case the applicant is required to make out that the variation is necessary to establish fair and reasonable conditions of employment and that the matter has special attributes. In doing so, the applicant is not required to meet a higher onus or standard of proof. The evidentiary requirements of a special case are no more strict than would apply in an ordinary matter, although the applicant to a special case will need to establish an adequate evidentiary foundation for those factors which are relied upon as showing the special case attributes of the case. Whilst respect will be afforded earlier decisions of the Commission or its predecessors, the conditions of employment earlier established need to be ultimately tested against the requirements of s 10 of the Act and that which we have discussed as being applicable to making out a special case. Where, as here, the former decision involved a test case, particular care should be taken to ensure that the factors relied upon by an applicant in support of its claim do not replicate factors which were taken into account by the Commission or its predecessors in establishing the general standard emerging from such case. In any event, the basis for and circumstances under which the conditions in the award were established will be significant considerations in the Commission's deliberations in order to assess whether the factors relied upon by the applicant in support of a special case have already been accommodated by the earlier made award (in which case the present prescription may adequately compensate for those factors).
39 In evidence given on behalf of the ETU, concern was expressed as to the continuing skill shortage and a drop in apprenticeship intakes. It was submitted that the proposed award makes the variations which are necessary to safeguard the trade and to ensure the award maintains its relevance as an up to date common rule award within the New South Wales industrial system.
40 The ECA referred to a report prepared by the Federal Department of Employment and Workplace Relations titled "National and State Skill Shortage Lists - Australia 2004". That report identified the Electrical and Electronic Trades as being in the category of those industries suffering skills shortages as at December 2004.
41 The Group Scheme Manager of ECA Training Pty Limited trading as NECA Group Training, gave evidence that in his experience, most contractors in the non-construction sector of the industry paid the award rate to apprentices. In his view, therefore, it was vital that the award rates of pay be maintained at a level sufficient enough to attract young people to the trade.
42 The Electrical, Electronic and Communications Contracting Industry (State) Award has an extremely wide coverage spanning from the distribution industry to general maintenance to the building and construction industry. The evidence put before the Commission was to the effect that the award had not kept pace with reality in that the rates of pay and conditions of employment of persons engaged in all "core" work associated with Electricians, Communication and Data work, Power Line Workers, Pole and Vegetation clearing were not reflected in the current award.
43 Shortage of labour has been held to be a significant factor in finding that a special case exists where that shortage has impact upon the manner in which employees perform their work or their productivity in order to manage the shortage (Health Employees Pharmacists (State) Award (2003) 132 IR 244 at [54] - [55]) and that approach is pertinent in the current circumstances.
44 There is little practical or actual objection to the agreement as amended. It is not disputed that both the ECA and the ETU represent the vast majority, respectively, of employers and employees engaged in the industry. The objections of both ABI and AIG were satisfied once the issue as to the flow on of State Wage Case increases was clarified. EF conceded during the proceedings that it did not oppose the totality of the conditions contained in the agreement in that there were some benefits for employers. EF did not propose any alternatives to those conditions in respect of which they raised objection. We accept that the evidence adduced by the consenting parties in support of the agreement shows that the concessions obtained by the consenting employers have real value (albeit in varying degrees) to the employers in that industry. When added to the fact that the agreement has the consent of the major parties in the industry, there is ample grounds for holding that a special case has been made out.
45 The ETU raised a number of pertinent objections to the economic evidence given by Mr Bennett on behalf of EF. The Bench accepted Mr Bennett as an expert witness in the field of economics, particularly in relation to New South Wales. However, the Bench as a result of the ETU's objections did not receive all of Mr Bennett's affidavit evidence. The Commission should not have to speculate as to the evidence put forward by expert witnesses. Such evidence, if produced in accordance with the requirements of Schedule K - Expert Witness Code of Conduct of the Supreme Court Rules and in line with the Makita principles, may have been helpful to the Bench as Mr Bennett was the only provider of expert economic evidence in the proceedings. Unfortunately, the failure of Mr Bennett's evidence to satisfy the Makita approach greatly affected the weight given to it by the Bench.
46 We accept that the consenting parties have established a Special Case in terms of the relevant principle.
47 As to the issue of the operative date, the consenting parties submitted that only a very small number of employers would be affected by back-pay if retrospectivity was granted.
48 If the Bench accepts that retrospectivity to February 2005 may not have any practical effect on the majority of employers in the industry, there is still the real risk that it will have an effect on contractors who have completed contracted work and may not be able to re-quote on that work. Retrospectivity may also have a practical effect on contractors with marginal businesses. It is likely to also have an effect on clients who have received quotations on work not yet undertaken. It was because of these considerations that retrospective operation of the award was declined when the award was made.
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