Perisher Blue v The Australian Workers Union

RESPONDENTS Ms K Barratt with Mr A Katic Employers First and Aged and Community Services Association of NSW and ACT

LEGAL REPRESENTATIVES: Ms D Dawson Catholic Commission for Employment Relations

Mr K Godfrey Members of Jobs Australia

Mr G Jervis Australian Business Industrial and Australian Nursing Homes and Extended Care Association, NSW

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: Wright J, President Grayson DP McLeay C

Matter No IRC 2844 of 2003 SOCIAL AND COMMUNITY SERVICES EMPLOYEES (STATE) AWARD Application by the Australian Services Union of New South Wales for variation re State Wage Case 2003

DECISION OF THE COMMISSION Extempore [2003] NSWIRComm 332

1 This matter becomes before the Full Bench by way of an application by the Australian Services Union of New South Wales (the ASU). The application, as pressed today, seeks a variation of the Social and Community Services Employees (State) Award with effect from 6 December 2003 such that rates of pay and allowances therein prescribed will be increased in line with the decision of the Commission in the State Wage Case 2003 [2003] NSWIRComm 174.

2 In advancing its claim the union relies on a number of different bases, in the alternative. The first basis, in short, relies on the recent history of the award, including the new award made under the Special Case principle in 2001 and the variation to the award on 6 December 2002, when the Full Bench said: We have come to the conclusion that the award made, now considered in the perspective of the events which have occurred since it was made, particularly the decision of the Australian Industrial Relations Commission in the Safety Net May 2002 case as applied in the State Wage Case 2002 and the level of increase which emanated from those decisions, can no longer be said to provide an adequate safety net for those employed under it, particularly those at the lower level of the salary structure in the award, and that there is a special case basis thereby made out to further increase the rates paid under the award.

3 As it did in 2002 the ASU denies that principle 8(g) of the State Wage Case principles prohibits the granting of the increase sought and relies on the decision of Walton J, Vice-President, in Perisher Blue v The Australian Workers Union (1999) 91 IR 274, submitting that it was clear the Full Bench in 2001 was intending to establish a safety net of wages and conditions for employees in this award and in this industry.

4 However, the union also seeks (see Exhibit 10) to advance the claim it makes on an alternative basis. That is, it seeks an increase equivalent to, or consistent with, that granted by the State Wage Case decision of 2003 in terms of the Special Case principle, which is principle 10 of the Commission's Wage Fixing Principles.

5 The union has given a number of undertakings in pursuing its claim. For example, in transcript on 8 September 2002 this undertaking was given: REITANO: The union is committed to that process in a positive way, for its part it supports the position that they do not see a wholesale overhaul of the award as necessary, rather a review is desirable or necessary. Nonetheless it participates in and will participate in and tells the Commission it will participate in a review of the award and has no difficulty with that because I think that was what the Full Bench contemplated in la decision two years ago.

Further, on 26 September 2003, the following elaborated undertaking was given by the ASU: SHARP: The union concedes that an increase under this application could only be awarded on and from 6 December 2003. We are pleased to report that we have been able to reach a consent position in relation to a wage increase with the major employer groups, namely, Jobs Australia, and the Catholic Commission for Employment Relations.

We have held lengthy discussions with the other employers - Employers' First and Australian Business Industrial and the Australian Nursing Homes and Extended Care Association of New South Wales. We are disappointed that we have been unable to report today that we have reached a consent position with those employers on a package of variations to specific clauses which those employers have stated is a precondition required for us to receive a consent position in relation to any wage increase.

We want it noted that the union is committed to a thorough and ongoing review of the award and that that will be achieved by meaningful negotiations with all employers.

We make this commitment today - and we particularly want to ensure that our award is relevant, that it is modern and to ensure that the rates and conditions contained in this award do not continually lag behind general standards.

In relation to the other matters before the Commission, that being matters IRC 4308 and 4769 of 2003, we see that they should be brought together under a review of the award and be consolidated over a period of six months in some respects, but at least twelve months, and we recommend that all parties set aside regular time to diarise conciliation meetings in relation to those matters.

6 The increases sought are consented to (as noted earlier) by the Catholic Commission for Employment Relations and by Jobs Australia. There is an issue between the employers as to the extent of employer interests represented by Jobs Australia. We do not consider that it is either necessary or appropriate to determine that issue specifically in the present phase of the proceedings. We consider it sufficient to find, which we do, that a proportion of the employers, which is of substance, has consented to the union's application, and that is a material consideration in determining the matter.

7 The balance of the employers, that is, Employers First, Aged and Community Services of NSW and ACT (ACSA), Australian Nursing Homes and Extended Care Association, New South Wales (ANHECA) and Australian Business Industrial (ABI), who also represent a significant proportion of the employers, oppose the application.

8 It is sufficient to refer to the specific bases upon which Employers' First opposes the ASU application being granted; the specific bases are as follows: (a) The 2003 State Wage Case increase is not available for the Award because of the operation of Principle 8(g) of the decision. (b) The ASU has not sought a Special Case increase under Principle 10 of the 2003 State Wage Case Principles. (c) Even if the ASU is seeking a State Wage Case increase as a Special Case increase, the ASU has not advanced any grounds in support of a Special Case increase. (d) If the Commission is minded to grant a Special Case increase in accordance with Principle 10 of the 2003 State Wage Fixing Principles it ought to be given on the basis of structural efficiency changes to the award. (e) Employers First has proposed a number of changes to the award characteristic of structural efficiency changes. (f) Employers First's application for a new award ought to be listed for hearing expeditiously and granted in full in conjunction with any Special Case increase. (g) Any Special Case increase should not exceed $17 per week, and should not apply until at least the first full pay period to commence on or after 6 December 2003 (12 months since the last increase). (h) Allowances should not move in excess of 3.2%, with the exception of the First Aid Allowance has been subject to increases beyond those minimum percentage increases arising from the State Wage Case 2002 (2002) 114 IR 81. 9 Employers First also makes an alternative submission which has been referred to earlier, namely that consideration should be given to structural efficiency changes to the award to give the matter the attributes necessary for the grant of a Special Case increase. Employers First therefore submits that certain changes would give the Commission the appropriate basis for granting a special wage increase; that is: (a) amendments to clause 6.1, fixed term employees, (b) casual employees in clause 7.1, (c) revision of clauses 15.1 and 15.2, roster of hours, and the insertion of a new subclause 59.9 in the award which, in summary, would require the union to commit itself to meaningful negotiations in areas particularised by Employers First's application and which are set out in more detail in the documents filed by Employers First.

10 We determine that the application might be considered, at least in the alternative, to be brought in reliance upon the Special Case principle and having regard, among other things, to the Full Bench decision of 6 December 2002 in Re Social and Community Services Employees (State) Award (unreported, Matter No IRC 4927 of 2002).

11 Although we consider that there is an arguable case that the increase sought is available under principle 8 of the State Wage Case principles because the prohibition in principle 8(g) may not apply, we are of the firm view that, at least at present, the appropriate method of dealing with the present application is pursuant to the terms of principle 10, Special Cases.

12 We note that in the decision of 6 December 2002 the Full Bench considered and found that "the unique history of award coverage and wage and salary fixation" in this area, as well as "the very particular way in which the Full Bench in its 16 November 2001 decision (see the decision reported as Re Social and Community Services Employees (State) Award in (2001) 113 IR 119) dealt with the significant range of issues raised there for decision", created a different basis for determination than that argued by any party to the proceedings in the matter in 2002.

13 The Full Bench reached the conclusion at that time that the award made in November 2001, when viewed in the perspective of the events which subsequently occurred (that is, subsequent to the making of the award), it could no longer be said to provide an adequate safety net for those employed under the award and that there was a Special Case thereby made out to further increase the rates paid under the award.

14 In reaching that conclusion, and in determining to increase rates at the lower end of the pay scale prescribed by the award, the Full Bench made express reference to the need to continue to adopt a measured or moderate approach to the fixing of just and reasonable rates consistent with the requirements of s 10 of the Industrial Relations Act 1996 which would, among other things, assist in ensuring that the parties were well placed going forward in the pursuit of negotiated and, if necessary, arbitrated outcomes in respect of completing the process referred to, of bringing the industry award into line with general standards.

15 The Full Bench noted in the 2002 decision that, inevitably, the issue of further wage adjustments must feature significantly in that regard in the process of a thorough going review of the award upon its expiry in February 2003.

16 In our view, many if not all the considerations referred to in 2002 equally apply at present in such a way as to again lead to the existence of a Special Case basis upon which to increase the rates and allowances paid under the award. The task of award review generally is, as we have observed, an ongoing one and the matters raised in the cross-application filed by Employers First (IRC 4679 of 2003) and in the related application filed by the ASU (IRC 4380 of 2003) amply demonstrate this.

17 We are concerned, however, that the process of review as contemplated by the Full Bench in the major award decision and reaffirmed in December 2002 should not, consequentially or of itself, cause delay in the affording of just and reasonable rates of pay consistently with the requirements of section 10 of the statute.

18 It is not considered appropriate to refuse to grant the increase now sought to await a structural efficiency review of the award as contended by certain employer parties. Any such review would be more likely to be most effective if preceded by intensive negotiations with, if the parties desire it, the assistance of the Commission. The appropriate course is to require the parties to approach such issues in terms of a strict programme or timetable but one which, nevertheless, allows sufficient scope for the necessary processes to occur.

19 We consider that a Special Case exists in this matter for the following reasons: (a) the particular history of wage and condition fixing in this award and in this industry, details of which are sufficiently set out in the 2001 and 2002 decisions referred to earlier;

(b) we consider that the award cannot be said to have yet been adjusted to general industry standards;

(c) the fact that it cannot be said that the present award provides an effective safety net particularly as to wages or salaries;

(d) the tangible risk that, absent increases broadly consistent with the recent State Wage Case increases, the award may become, in substance, a "lagging award";

(e) the consideration that employers of some significance in the industry have expressed their consent to the ASU application;

(f) the fact that increases broadly in line with the 2003 State Wage Case increases will not be granted or available to persons employed under this award until December 2003, well after most employees under New South Wales awards who are granted the 2003 State Wage Case increase, will actually have received the increase;

(g) the employers will thereby have a period of two months before the present increase applies;

(h) the broad commitment given by the union in relation to negotiating the employers' claims as to the award which should ensure the proper and timely review of the award;

(i) the above conjunction of circumstances is properly to be described as unique in this jurisdiction such that the conclusion we have reached that a Special Case exists provides no basis for any other decision in another award or in non-award areas. Certainly, it provides no basis for any other claim or for any so-called "flow-on". 20 We propose to direct the parties to confer with a view to identifying a graduated programme for negotiating the matters in issue which shall occur in conjunction with the conference between the parties being chaired by McLeay C on 20 October 2003. In addition and subject to the matters directed by McLeay C arising from the conference(s), the parties shall establish a "short list" of their respective priority claims which should be the subject of initial efforts to reach agreement and which, if agreement is not reached, might be the subject of arbitration in March/April 2004 on the basis of evidence of not more than five days in total to be taken before a single member of the Full Bench, with two hearing days then available for speaking to or addressing the parties' written submissions before the Full Bench.

21 A similar programme could then, if necessary, be established for the balance of any claims to be dealt with in the period October to December 2004.

22 For those reasons, we intend to grant the ASU application in Matter No IRC 2844 of 2003 and thereby adjust rates of pay prescribed by the subject award by $17 per week in the case of rates of pay up to and including $731.80 per week and $15 per week in the case of rates above $731.80 per week. In the case of allowances, there will be an adjustment of 3.2 per cent, and each of the adjustments to which we refer will have effect from the first pay period to commence on or after 6 December 2003.

23 As to the first aid allowances and motor vehicle award such adjustments are without prejudice to the right of the employers to argue that previous adjustments in such allowances have occurred on an incorrect basis.

24 Finally, we commend to the parties the utility of Practice Direction No 8A entitled "Major Industrial Cases" and which, if utilised, as it should be, in conjunction with these proceedings, the notification under that Practice Direction will be dovetailed with the conciliation processes which are to occur before McLeay C.

25 We note also that the parties have agreed to a small number of other matters, either totally or at least in principle, and that these matters include the insertion of a reasonable hours provision in the award in terms of the recent test case decision, the alteration of fixed term contract provisions in relation to filling of positions while persons are on parental leave and, thirdly, the clarification of the first aid provisions so that the relevant allowance is only paid once for each shift. Such matters and any other matters for which consent is achieved, may be dealt with before McLeay C on 20 October or such other date the matter continues before the Commissioner.

26 We note that listed for directions today is Employers First's application in Matter No IRC 4679 of 2003. We are minded, rather than to give directions in that matter, to remit the matter to McLeay C, and also to remit this matter to the Commissioner so that, in conjunction with the ASU's application in matter 4380 of 2003, all relevant matters are before the Commissioner for the processes that have been earlier referred to. [no objection raised] We so direct.

27 We direct the applicant ASU within 14 days to file and serve, including filing in both hard copy and disk form, a copy of the variation we have made to the award today to facilitate the early publication of the relevant award variation.

28 We make clear that the other proceedings, Matter No IRC 4679 of 2003, are to be remitted to McLeay C and Matter No IRC 4380 of 2003 and these proceedings, Matter No IRC 2844 of 2003, subject to the finalisation of the form of the award variation, are now concluded.

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