Makita (Australia) Pty Ltd v Sprowles

CORAM: Wright J President; Walton J Vice-President; Tabbaa C

CATCHWORDS: Award - Application for a new award - Consent application by major respondents - Objection by other respondents - Uncertainty as to effect of agreement on future State Wage Case increases - Special Case - Expert Witnesses - Makita Principles - Reasons for decision for award earlier made.

LEGISLATION CITED: Industrial Relations Act 1996

Crown Employees (Administrative and Clerical Officers) Award and Other Awards (No 2), Re (1993) 52 IR 243 Electrical, Electronic and Communications Contracting Industry (State) Award, Re [2005] NSWIRComm 225 Equal Remuneration Principle, Re (2000) 97 IR 177 Health Employees Pharmacists (State) Award (2003) 132 IR 244 Local Courts Anomalies Case [1989] AR (NSW) 638 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 CASES CITED: Operational Ambulance Officers (State) Award, Re (2001) 113 IR 384 Pay Equity Inquiry (unreported, Glynn J, IRC 97/6320, 14 December 1998) Public Hospital Nurses (State) Award (2002) 115 IR 183 Rothmans Consent Award, Re (1995) 85 IR 149 Social and Community Services Employees (State) Award, Re (2001) 113 IR 119 Transport Industry (State) Award, Re (1996) 95 IR 126

HEARING DATES: 06/07/2005; 06/08/2005; 06/22/2005

APPLICANTS: Mr R Marshall The Electrical Contractors' Association of New South Wales

Mr A Searle of counsel Electrical Trades Union of Australia, New South Wales Branch (Ms N Kastoun)

LEGAL REPRESENTATIVES: RESPONDENTS: Mr P Ryan Employers First

Mr J Corlette Australian Business Industrial

Mr V Paul The Australian Industry Group New South Wales Branch

CORAM: WRIGHT J, President WALTON J, Vice-President TABBAA C

Matter No IRC 3778 of 2002 ELECTRICAL, ELECTRONIC AND COMMUNICATIONS CONTRACTING INDUSTRY (STATE) AWARD 2002

Application by the Electrical Contractors' Association of New South Wales for a new award

Matter No IRC 652 of 2004 ELECTRICAL, ELECTRONIC AND COMMUNICATIONS CONTRACTING INDUSTRY (STATE) AWARD

Application by the Electrical Trades Union of Australia, New South Wales Branch, for a new award

REASONS FOR DECISION OF THE COMMISSION [2005] NSWIRComm 405

1 At the conclusion of proceedings on 22 June 2005, the Full Bench gave the following extempore decision in these matters (see Re Electrical, Electronic and Communications Contracting Industry (State) Award [2005] NSWIRComm 225): 1 The hearing of this matter commenced on 7 June, 2005, continued on 8 June and concluded today. Because of the nature of the proceedings, we have decided to give a short extempore decision now and make the award sought with modifications, with reasons for the decision to be published in due course.

2 On 27 June, 2002 the Electrical Contractors Association ("ECA") applied in Matter Number IRC 3778 of 2002 for a new Electrical, Electronic and Communications Contracting Industry (State) Award 2002. On 9 February, 2004, the Electrical Trades Union of Australia ("ETU") filed its own application for an award in Matter Number IRC 652 of 2004.

3 Following lengthy negotiations and conciliation, the ECA and ETU filed a consent application for a new award (to be called the Electrical, Electronic and Communications Contracting Industry (State) Award) on 15 February 2005. Matter Nos IRC 3778 of 2002 and 652 of 2004 were joined. Three respondents did not consent to the proposed award: Employers' First ("EF"), Australian Business Industrial ("ABI") and Australian Industry Group ("AIG").

4 In addition to benefits for employers (which we discuss below), the proposed award contains the following primary benefit for workers, described in clause 3.1.1: three minimum wages increases of 5 percent over three years, to take effect from February 2005 (the date is unspecified in the application but the consenting parties made an oral application that the first wage increase take effect from 15 February 2005); 1 February 2006; and 1 February 2007.

5 Clause 3.1.1 is somewhat awkwardly drafted, and raises uncertainty about the manner in which the proposed award will operate in conjunction with State Wage Case increases. On one interpretation (which forms the basis for the only objection raised by ABI and AIG to the making of the consent award), the proposed award purports to grant workers the three minimum wage increases of 5 percent in addition to State Wage Case increases.

6 ABI and AIG's objection has been simply overcome by the consenting parties. Both the ECA and the ETU have confirmed that the interpretation adopted by ABI and AIG does not reflect the parties' intention: the proposed award does not grant any automatic right to State Wage Case increases, but merely signals that, in due course the ETU, with the agreement of the ECA, will seek the benefit of State Wage Case increases, through a formal application to vary the proposed award. Needless to say, such application will be considered on its merits having regard to the terms of the agreement between the parties evidenced by the proposed award and the terms of the wage fixing principles in force at the relevant time.

7 The ETU and ECA sought to remedy the problem by deleting the words "in addition to State Wage increases". This does not seem sufficiently clear for relevant purposes, given the concluding sentence of 3.1.1. In our view, to accurately reflect the parties' intentions (described above), 3.1.1 should be replaced with the following clauses 3.1.1 and 3.1.2: 3.1 The Weekly Minimum Wage is as set out in Table 1 - Wages, of Part B, Monetary Rates. 3.1.1 Weekly Minimum Wage Rate Increases (Three increases of 5 percent) 3.1.1.1 The first increase of 5 percent is incorporated in Table 1 - Wages, of Part B, Monetary Rates; 3.1.1.2 The second increase of 5 percent shall take effect from 1 February 2006; and 3.1.1.3 The third increase of 5 percent shall take effect from 1 February 2007. 3.1.2 The ETU, with the agreement of the ECA, reserves the right to apply for State Wage Case increases during the period of operation of the award.

A corresponding change to that in cl 3.1.2 will be required to cl 34.2; that is, the addition of the words " by the ECA" at the end of cl 34.2.

8 EF had a broader objection. In its view, the proposed award did not represent a "good deal": according to EF, the proposed changes to conditions of employment were not worth the three annual increases of 5 percent to the minimum wage. Consequently, the applicants had failed to establish a special case to warrant any increase in wages.

9 When pressed, EF conceded that there were some benefits to employers in the proposed changes to conditions of employment and that, in reality, it did not oppose some (perhaps most) of the changes to award conditions proposed in the application. Nonetheless, EF failed to suggest any alternative bargain or outcome to that put forward by the ETU and ECA.

10 We accept the submissions of both the ETU and the ECA that the proposed award effects improvements in award provisions for both employers and employees. We have no doubt that these two bodies represent the vast majority of employees and employers in this industry and we note that other employers represented by ABI and AIG raised no further objection once the State Wage Case issue was clarified. We are satisfied that the ETU and ECA have established a special case.

11 We will therefore make the proposed award in terms of Exhibit 3 to be known as the Electrical, Electronic and Communications Contracting Industry (State) Award, with the following four amendments:

(a) Subject to (b) below, clause 3.1.1 should be replaced with clauses 3.1.1 and 3.1.2 as described above;

(b) Clause 34.2 will be amended by adding the words "by the ECA" at the end of the clause;

(c) The first increase to minimum wages of 5 percent shall take effect from 22 June 2005, rather than from February 2005; and

(d) The award shall commence from 22 June 2005 and remain in force until 31 January 2008.

We note that there may be some consequential changes to the proposed award to reflect these amendments. We direct the ETU and ECA to file a further draft award document to reflect this decision in both hard copy and electronic form within 21 days.

12 The Commission orders accordingly. As noted, the award shall operate on and from 22 June 2005 and remain in force until 31 January 2008. 2 The following is the balance of our reasons for that decision. THE APPLICATION 3 The nominal term of the Electrical, Electronic and Communications Contracting Industry (State) Award 2000 (318 IG 645) expired on 3 February 2001.

4 The application sought to vary Clause 3 Wages, of the Award in the following manner: 3. WAGES 3.1 The Weekly Minimum Wage Rate is as set out in Table 1 - Wages, of Part B, Monetary Rates 3.1.1 Weekly Minimum Wage Rate Increases: In addition to State Wage Case increases, there will also be increases to Table 1 - Wages, of Part B, Monetary Rates as follows:- 3.1.1.1 Five percent from 1 February 2006; 3.1.1.2 Five percent from 1 February 2007.

The increases in subclauses 3.1.1.1 and 3.1.1.2 shall not be offset or absorbed by State Wage Case increases... 5 We dealt with the issue of the leave reserved clause in our extempore decision. We shall focus in this decision upon the contest as to the proposed increases in rates of pay: in that respect a contest between the EF and the ECA and ETU. SPECIAL CASE 6 EF objected to the approval of the totality of the proposed award on the basis that it did not represent a "good deal", and that the proposed wage increase would truly represent an increase in wages of 26.5 per cent to 28.5 per cent (although this is plainly a figure based upon the erroneous assumption that the leave reserved clause would act so as to automatically adjust wages in line with State Wage Case adjustments). 7 EF submitted that the Special Case principles were discussed in a number of recent matters before the Commission. It was contended that what may be distilled from those authorities is that, to make it special, the Commission is required to be satisfied that the case is "out of the ordinary" (Re Crown Employees (Administrative and Clerical Officers) Award and Other Awards (No 2) (1993) 52 IR 243), "that the case is not an ordinary one, but has special attributes which warrant its approval" (Re Transport Industry (State) Award (1996) 95 IR 126), and "that there are sufficiently compelling reasons for awarding … the substantive changes that [the applicant] seeks" (Re Social and Community Services Employees (State) Award (2001) 113 IR 119). 8 EF contended that factors such as a sustained period of high demand for electrical contracting services, particularly in the area of building and construction, and the above-award rates attracted by electrical tradespersons were insufficient to classify the application as having special attributes. 9 Reference was made to the Full Bench decision in Re Transport Industry (State) Award wherein it was held that the onus was on the parties to make out a special case before approval would be given to an agreement between the majority of employer interests and the relevant union over an in-principle objection by the then Employers Federation. 10 EF submitted that the agreement was contrary to the structural efficiency principle in that the increases sought were not offset sufficiently by the proposed changes to the award. A comparison with the previous award would reveal that there were only three proposed changes that were true offsets to the proposed wage increases: - the distant work fares allowance change; - the overpayments clause; and - the training clause. 11 EF further submitted that, currently, it is an electricians' market with demand far exceeding supply. Premium rates were being paid to attract and retain skilled electricians - rates that were higher than the minimum rates in the current award and possibly higher than the rates contained in the proposed award. The current market fosters three sets of circumstances. Firstly, premium rates will rise because of the high demand for labour at the expense of a drop in productivity and efficiency. Secondly, employers will be under pressure not to absorb any increases and, thirdly, the rates in the proposed award are reflective of attraction and retention rates rather than the true value of the work. It was pointed out that the Commission has repeatedly held that such rates should not be incorporated into award rates: Local Courts Anomalies Case [1989] AR (NSW) 638, the Pay Equity Inquiry (unreported, Glynn J, IRC 97/6320, 14 December 1998) and Re Equal Remuneration Principle (2000) 97 IR 177. 12 EF cautioned that the wage relativities, previously on par with, or a few percentage points higher than, other mechanical and building trades experiencing a similar period of high demand, would be thrown out of kilter by as much as 15 per cent. Obviously, approval of such an agreement would lead to maintenance of relativity claims on both a micro and macro level from other trades. 13 EF further warned about the consequences to the New South Wales economy if employers passed on the increase in labour costs to consumers. The decision of the Commission in Re Rothmans Consent Award (1995) 85 IR 149 supported the proposition that the potential for flow-on is an economic consideration to which the Commission should turn its attention. Conversely, if the increases are absorbed, the resultant effect would be a decrease in efficiency and productivity. 14 EF relied on the evidence of an economist, Ray Bennett, as to the detrimental effects of the claim on the economy. We do not repeat his evidence here or the submissions relating to it, but we have taken it into account (subject to some reservations we have regarding the evidence) in making our decision. 15 The ECA extrapolated data from the Office of Fair Trading in relation to the licences issued in New South Wales and, based on that data, estimated that there were approximately 4500 full-time electrical contractors currently operating in New South Wales. The ECA further estimated that its members accounted for approximately 70 per cent of the work undertaken by electrical contractors in New South Wales and employed approximately 80-85 per cent of the labour working in electrical contracting in New South Wales. 16 The ECA and the ETU detailed the benefits provided by the proposed variations:

(a) Increased options for flexibility in the method of payment of wages. The potential to pay wages by electronic funds transfer ("EFT"), in line with contemporary trends.

(b) The proposed on-call provision represents a huge saving for employers in terms of the cost incurred in having employees "on-call" by providing a flat-rate allowance, rather than an hourly payment. At the current award minimum rate, a Grade 5 licensed electrician required to stand-by for 24 hours would cost an employer $375.60. With the proposed on-call provision, the cost for the same employee remaining "on-call" would be the allowance of $40.00.

(c) The proposed overtime clause allows for employees to enjoy the option of taking time off in lieu of overtime in respect of any overtime hours worked.

(d) Agreement may be reached between an employer and an employee to take rostered days off in part amounts and for the banking of up to 5 Rostered Days Off.

(e) The proposed sick leave clause provides certainty for employers and employees in establishing obligations for reporting absences. Whenever practicable, 2 hours' notice from the start of the first shift must be given by an employee if unable to attend work due to illness.

(f) Employers may deduct overpayments made to employees on termination of their employment.

(g) Ordinary hours may, by agreement between an employer and employee, be worked in 12-hour shifts;

(h) To accommodate daylight saving, variation of the ordinary spread of hours to be worked within the period 5 am to 7 pm; and

(i) Consent arrangements may be negotiated for the absence of payment where an employee is residing on the site of a distant job, or is residing within 10 minutes walking distance from a site. 17 Other benefits to the parties have been achieved by the removal of ambiguities which have been the source of disputation in the past in relation to their interpretation. The clarification in the following conditions, the parties contended, will enhance the efficient operation of the provisions and reduce such disputation:

(a) Consent arrangements in relation to the transport and payment of excess travel and fares for employees who argue that the employer provides the transport, free of charge, to and from work on a construction site.

(b) An award standard three-month probationary period for weekly hire employees to assist smaller employers who may not have in-house sophisticated recruitment procedures.

(c) Provision of a definition of "ordinary time earnings", consistent with the Superannuation Guarantee (Administration) Act 1992 to assist employers in making superannuation contributions.

(d) Training provisions to meet the requirements of a continually advancing profession and the payment thereof.

(e) Regulation for the care and maintenance of work vehicles. 18 The ECA pointed out that the only extra benefit for employees was the proposed increase in the award minimum wage but that, in itself, did not represent a trade off in real terms as they are well below actual rates paid in the electrical contracting industry in New South Wales. 19 Apprentices engaged under the award would gain the real benefit. Such benefit, the ECA pointed out, would be of mutual advantage as it would assist in both attracting much needed new entrants and retaining apprentices in the industry. 20 It was suggested by the ECA that the affidavit evidence of EF may have been influenced by the "highly speculative and misleading" reference by that organisation to a 28 per cent increase. 21 It was pointed out that the proposed award provided for the ability to absorb over-award payments. 22 The ECA contended that the Commission was not constrained by the Wage Fixing Principles but, rather, had a wide ambit to consider evidence put before it by an applicant or consenting parties. The Full Bench held in Public Hospital Nurses (State) Award (2002) 115 IR 183 at [16]:

It is a matter for the Full Bench to judge on the evidence considered as a whole whether the evidence relied on by the applicant is sufficiently representative to support the granting of a claim that will have general application. 23 Basically, the developed jurisprudence surrounding Special Case applications placed greater emphasis on the evidence and the submissions of the applicant party or parties relating to the special attributes of the matter seeking approval.

24 The ETU submitted that the confluence of three special features made the application out of the ordinary. Firstly, there was evidence before the Commission of the acute skills shortage in the industry including the difficulty being experienced in attracting and retaining both apprentices and skilled tradespersons. Secondly, there was a significant gap between award rates of pay and actual market rates. Thirdly, a significant public interest lay in the need to ensure proper levels of training in order that employees are able to work safely with electricity.

25 Mr Riordan's affidavit tendered on behalf of the ETU, expanded on the complexity of the difficulty being experienced in regard to labour shortages and identified what, in his view, were the contributing factors.

26 The evidence before the Commission was to the effect that almost no-one was engaged on award rates. The ETU submitted that such evidence, combined with the gap in the market rates, made the application sufficiently remarkable to warrant it being described as a special case. The evidence of the dissenting employers was merely supposition of what the likely impact may be: no "hard facts" had been put before the Commission.

27 The ETU stated that it was significant that EF had not made a counter application containing terms and conditions that it considered to be more appropriate.

28 In relation to the economic evidence given by Mr Bennett, the ETU's primary submission was that the evidence should not be received as expert or at all. In the alternative, it should be received as lay evidence only.

29 The following criticisms were made of the economic evidence. Firstly, it was pointed out that the evidence did not adhere to the Expert Witness Code of Conduct set out in Schedule K to the Supreme Court Rules nor did it comply with the "Makita" principles relating to expert evidence (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305).

30 Secondly, Mr Bennett was a Director of Employers First. It was pointed out that the traditional role of an expert witness was that they must be independent of all parties and impartial.

31 Thirdly, the probative value of the affidavit evidence of Mr Bennett was so small as to be of no, or little, assistance to the Commission as it did not provide a basis for testing the many opinions contained therein.

32 Fourthly, the affidavit of Mr Bennett, contained assertions, drawn from 35 or 40 years of experience, which were not supported by source material.

33 Fifthly, Mr Bennett had quoted parts of source material and had not provided the full picture.

34 Sixthly, an examination of the qualifications of Mr Bennett revealed that there was no indication of any particular expertise in the field of the impact of award wage rises on the construction industry and the New South Wales economy as a whole.

35 In conclusion, in relation to the operative date, the ETU submitted that the first increase should take effect from February 2005 for a number of reasons. Firstly, the consenting parties' representation was very significant, particularly when compared with those of the dissenting parties. Secondly, it was a special case, and, thirdly, back pay was not a practical consideration in the present circumstances as the employer evidence before the Commission was to the effect that none were paying the award minimum wage to their staff.

CONSIDERATION 36 Principle 10 of the State Wage Case 2005 is expressed in the following terms: 10. Special Case Except for the flow on of test case provisions, any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the principles, will be processed as a special case before a Full Bench of the Commission, unless otherwise allocated by the President.

This principle does not apply to applications for awards consented to by the parties, which will be dealt with in the terms of the Act, or to enterprise arrangements, which will be dealt with in accordance with the Enterprise Arrangements principle. 37 In Re Social and Community Services Employees (State) Award, the Full Bench stated at [24] - [25]: Thus it can be seen, … that strict compliance with the wage fixing principles generally or with the work value principle and the structural efficiency considerations in particular is not required where as here a case is advanced as a special case.

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. ________________

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.