Social and Community Services Employees (State) Award, Re [2001] NSWIRComm 274

Social and Community Services Employees (State) Award, Re [2001] NSWIRComm 274 | Case summary | Zoe

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RESPONDENTS PARTIES : Employers First Australian Business Industrial Catholic Commission for Employment Relations Australian Nursing Homes and Extended Care Association Jobs Australia FILE NUMBER: IRC 5544 of 1998 CORAM: Wright J President; Grayson DP; McLeay C CATCHWORDS : Award - Special case proceedings - Social welfare industry - Salaries - Conditions of employment - Hours of Work - Overtime - On call - Casual employees - Excursions - Incremental advancement - Time in lieu - Shift work - Annual leave loading - Conference, training and study leave - Motor vehicle allowance - Live in workers - Employee counselling and disciplinary procedures - First aid allowance - Classification structure - Grading committee - Special Case found - History of award - Unique circumstances of special case found - Award made - Operative dates LEGISLATION CITED : Industrial Relations Act 1996 s 3 s 10 s 14 s 209 Re Foreman and Supervisors Tobacco Industry (State) Award [1987] AR (NSW) 16 State Wages Case May 1991 (1991) 36 IR 362 Re Crown Employees (Administrative and Clerical Officers State) Award and Other Awards (No 2) (1993) 52 IR 243 Re Transport Industry (State) Award (1996) 95 IR 126 Re Clerks (SA) Award [2000] SAIRComm 41 Re Metal, Engineering and Associated Industries Award, 1988 - Part 1 (Print T4991, 29 December 2000) CASES CITED : State Personal/Carer's Leave Case 1998 (1998) 84 IR 416 Re NSW Department of Community Services Living and Residential (Interim) (State) Award (2000) 100 IR 447 Re Shift Workers Case [1972] AR (NSW) 633 Re Annual Holidays Loading Case [1974] AR (NSW) 130 Re Annual Holidays Case [1974] AR (NSW) 336 Rich River Golf Club v Power [1995] NSW IRComm 75 Re Corrections Health Services Nurses' (State) Award (No 2) [2001] NSW IRComm 58 HEARING DATES: 04/27/2000; 04/28/2000; 05/30/2000; 06/29/2000; 06/30/2000; 07/10/2000; 07/11/2000; 07/18/2000; 08/17/2000; 08/18/2000; 08/23/2000; 10/31/2000; 11/01/2000; 11/21/2000; 12/05/2000; 03/13/2001; 04/26/2001 DATE OF JUDGMENT: 11/16/2001

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1 In these proceedings the Full Bench of the Commission has found that the applicant union has established a special case within the State Wage Case principles and has determined that it is appropriate to make a new award incorporating the matters agreed between the parties and those changes in salaries and conditions of employment which have been found to be appropriate by the Full Bench's determination as to the existence of a special case. 2 The decision which we will deliver sets out in detail the considerations which have led to the finding of the special case. We are persuaded that this is a special case which warrants the granting if not in whole then in significant part, of the Union's claim. The appropriate course is to take further steps aimed at bringing this award into line with general standards but not to complete that process in these proceedings. This will involve the fixing of just and reasonable rates consistently with the requirements of s 10 of the Industrial Relations Act 1996 and will ensure that the parties are well placed to go forward and actively pursue negotiated, or if necessary, arbitrated outcomes in respect of completing the process of bringing the award into line with general standards. 3 Turning to the individual components of the application we consider that the claim in respect of casual employees has been made out. The 8 level classification structure claimed by the Union is to be considered with related aspects of the claim as to rates of pay, translation and implementation provisions and the incremental advancement provisions. 4 On the evidence before us, we are satisfied that the existing classification structure is limited and does not afford sufficient scope for recognition of changes in breadth of the skills base of employees within this industry in the past decade nor does it afford sufficient scope for increases in the range and diversity of services provided within the industry and hence, the range and diversity of work now required to be performed by employees.

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17 As indicated, we consider the case for reduction of hours and the establishment of a prescribed span of hours has been made out. We also consider the claim for an improved overtime prescription consistent with general standards should be granted with the proviso that the improved overtime prescription, as the employer parties submit, be phased in over a reasonable period in the interests of minimising the cost impact and secondly, that it be at the standard most commonly applying in the industry in other States and territories, namely time and a half for the first three hours and double time thereafter. The phasing in arrangements are specified and will occur over a period of 12 months. 18 As to the time in lieu claim we adopt the employers' position and will include a clause in the new award in the model terms prescribed in the State Personal/Carer's leave Case 1998 which will have the effect of affording time in lieu by agreement and on an hour off for each hour worked basis. 19 We will grant the Union's shift work claim and in respect of the on-call allowance we note the employer acquiescence in the inclusion of such a provision albeit in the form of a flat amount per 24 hour on call period. In the circumstances, we consider that the new award should include a clause prescribing a flat amount of $15 per 24 hour on call period or part thereof. 20 As to the Union claim for an award prescription in respect of excursions, we award a detailed provision which represents a reasonable balance of the competing positions of the parties. 21 In respect of the annual leave loading claim or the particular shift work aspect of it which is in dispute, the employer argument is supported by the settled authorities and is therefore granted. 22 The claim for a conference, training and study leave provision is not granted. It is noted that employers in this industry are alive to the wisdom of encouraging and assisting their employees in being and remaining appropriately skilled and qualified in order to more effectively carry out their work functions. Employer witnesses gave evidence of well developed administrative practices in this regard that are already in place and working well. Conversely, the Union called no evidence to demonstrate that employees were being dealt with inappropriately. We do not consider this to be an area in which the Commission should intervene at this stage without more persuasive evidence. The decision also deals with a number of other issues in the proceedings where we decline to grant the claims: motor vehicle allowance; counselling and disciplinary procedures; and an increased First Aid Allowance.

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23 As to the operative date of the award and of particular sections or parts of it, important considerations are that the implementation of the award as a whole will be likely to require significant administrative arrangements for employers and translation of employees to the new Grades 5 and 6 will require additional arrangements that are likely to require further time. The new salary levels for Grades 1 to 4 should, however, be paid from the commencement of the award which will operate from the beginning of the first pay period to commence on or after 28 November 2001. 24 Accordingly, the award shall include a provision incorporating the following dates for operation of the award and particular sections of it: (a) The award shall commence from the beginning of the first pay period to commence on or after 28 November 2001 and expire on 28 February 2003. (b) The rates of pay awarded for Grades 1 to 4 shall be paid from the commencement of the award. (c) Except for: (i) the implementation of Grades 5 and 6; (ii) payment of the increases referred to in (e); and (iii) payment of overtime at its full quantum all other alterations to pay and conditions shall apply from the first pay period to commence on or after 12 December 2001. (d) Grades 5 and 6 shall be implemented and payments shall be made to relevantly affected employees from the first pay period to commence on or after 28 May 2002. (e) The second salary instalment referred to in this decision should be paid from the beginning of the first pay period to commence on or after 28 November 2002. 25 The Full Bench accordingly makes a new Social and Community Services Employees (State) Award in terms of the matters agreed between the parties and incorporating the decisions made by the Full Bench as to salaries and conditions. The award shall be operative from the dates earlier specified. 26 The applicant is directed to file and serve within 14 days of today a document setting out the terms of the draft award it submits should be made to incorporate the terms of this decision. The application is listed before the Commission at 9.30am on Friday 7 December 2001 for the purpose of the formal making of the award. The parties are to confer upon service of the draft award and the applicant shall advise the Industrial Registrar by 4 p.m. on Tuesday 4 December 2001 of any issues of a drafting nature or the like which the Commission will be requested to consider on Friday 7 December 2001. Subject to the matters to be dealt with at that time and the matters in respect of which the Commission requires report in approximately 12 months time, for which we fix 14 November 2002 at 10am, these proceedings are concluded.

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1 By application filed on 19 October 1998, the Australian Services Union of NSW (the Union) seeks a new award in place of the existing Social and Community Services Employees (State) Award made as a first award a decade ago. 2 The grounds and reasons set forth in the Union application are as follows: a) The Social and Community Services (State) Award ("the award") was made in 1991 and was at that time the first Award in New South Wales which regulated the terms and conditions of employment of persons employed in or in connection with the industry of social and/or welfare work in New South Wales. b) Since the making of the Award there have been significant changes to the industry of social and/or welfare work and to the work performed by social and/or welfare workers. c) Since the making of the Award there have been significant changes to the role, duties and responsibilities of social and/or welfare workers such that justify changes to the classification structure and wages paid to social and/or welfare workers. d) Since the making of the Award the work of social and/or welfare workers has developed such that the Award no longer operates reasonably, fairly and appropriately in regulating the terms and conditions of employment of employees engaged in work regulated by the Award. e) It is fair, just and reasonable that social and/or welfare workers receive the benefit of a 38 hour working week and appropriate fair and reasonable rates of pay for hours worked in excess of 38 in any week and overtime hours of work generally. f) It is fair and reasonable that social and/or welfare workers receive the benefit of test case standards. g) The Award has led to disputation and litigation in respect of its operation and application and it is desirable that it be varied so as to avoid further disputation and litigation. h) It is appropriate that the Award be updated and modernised to ensure its continued relevance in regulating terms and conditions of employees to whom it applies and to avoid disputation. i) The making of a new Award is in the public interest. j) The making of a new Award is consistent with the State Wage Case Principles. k) Upon such other grounds and reasons that this Honourable Commission may consider just and appropriate. 3 Particulars relied upon in support of the application are: (A) The significant changes to the industry of social and/or welfare work and to the work performed by social and/or welfare workers has included. a) a far greater number of services operating in the social and/or welfare work industry; and b) the provision of different, improved and more extensive programs throughout the industry which has expanded; and c) the significant growth in the number of specialised or specialist services; and d) the fact that workers in the industry are increasingly required to undertake more responsible and wide ranging duties in the course of their employment; and e) the fact that workers in the industry are increasingly required to have high levels of tertiary, technical and other qualifications in order to fulfil their duties. (B) The present classification structure in the Award does not reflect the range of classification, the work undertaken and the appropriate skill levels relevant to work throughout the social and/or welfare industry. (C) The present classification structure in the Award does not or does not adequately provide a career path for employees employed in the industry. (D) The Award does not contain any real, substantial or fair provision in relation to overtime hours of work and remuneration for working overtime. (E) The Award currently prescribes a 40 hour week which does not reflect the industry's standard of a 38 hour week. (F) The Award in its present form does not contain test case provisions relating to family leave, special leave, trade union training leave, termination, change and redundancy and bereavement leave. (G) When the Award was first made the Commission rejected the claim for a 38 hour week due to a lack of jurisdiction and indicated that appropriate application could be made and it is now appropriate to make that application. (H) When the Award was originally made leave was reserved for the parties to apply to the Commission to deal with issues related to on-call, excursions, remote locations, collectives, live-in workers and redundancy. (I) The disputation and litigation in respect of the Award has in particular concerned the classification structure and the provisions of the Award relating to live-in workers. 4 The application proceeded by way of directions and conciliation in the course of which substantial ground was made in terms of narrowing the issues between the parties such that when the application first came on for hearing the Commission was provided with a schedule setting out those matters which had been agreed for inclusion in any new award which may be made and those which remained outstanding. With the continuing nature of discussion between the parties as the matter progressed, the schedule (Exhibit A) required ongoing revision to the extent that towards the end of the hearing, a document was admitted into evidence (Exhibit S) setting out the remaining matters requiring the Commission's decision. 5 The industrial parties represented throughout the hearing, in addition to the applicant Union, were as follows: · Employers First (formerly Employers Federation of New South Wales) · Australian Business Industrial · Catholic Commission for Employment Relations · Australian Nursing Homes and Extended Care Association · Jobs Australia 6 Appearances throughout the hearing were as follows: · Mr R Reitano of counsel for the Union · Mr N Chadwick for Employers First · Ms L Dean for Australian Business Industrial · Mr D Cudmore for the Catholic Commission for Employment Relations · Mr G Boyce for the Australian Nursing Homes and Extended Care Association · Mr K Godfrey for Jobs Australia 7 The submissions and some of the evidence in the proceedings in the matter were taken before the Full Bench although the majority of the evidence occurred before Grayson DP on delegation. At the request of all parties the proceedings were adjourned to enable ongoing negotiations in respect of a number of issues namely, Live In Workers and First Aid Allowance, to conclude and the Full Bench was informed that resolution of the issues had been achieved. Further advice was later received to the effect that whilst there was consent between the parties as to the terms of the agreed clauses, there was not consent to the "quantum of the First Aid Allowance set out in Table 1 of the ASU Application". Rather, Employers First contended, the status quo in that regard should be maintained in any award determined by the Commission. 8 Additionally, the Union indicated that it would not, for the time being, press its claims in respect of Trade Union Training Leave and Blood Donors Leave seeking instead for those matters to be the subject of leave reserved in any award the Commission may make. The employers opposed such a course seeking instead to have the claims determined forthwith. 9 Witnesses called in the Union's case were as follows:

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· Mr Robert Foster, general manager, Finance and Administration, Challenge Disability Services, Tamworth, NSW · Mr Roger Lipscomb, human resource manager, Anglicare NSW · Mr Graham Harris, human resource manager, Wesley Mission · Ms Rebecca Loundar, manager, Wesley Streetsmart Youth Services · Ms Catherine Dickson, divisional manager, Disability Services Australia Ltd. · Mr Phillip Anthony Morath, general manager, The Crowle Foundation Limited · Brother Brendan Quinn SDB, deputy director, of the Trustees of Boys' Town, Engadine, NSW · Ms Patricia Wetton, chief executive officer of the Forsight Foundation. 11 The existing award was made on 15 May 1991 and was the product of two judgments of Glynn J, the first (6 August 1990) dealing with conditions of employment and the second (15 May 1991) with wages, classifications and superannuation. 12 In approaching the determination of this application, we bear clearly in mind that Glynn J in making the existing award, expressly adopted the approach of Macken J in Re Foreman and Supervisors Tobacco Industry (State) Award [1987] AR (NSW) 16 at 18 as follows: "It is acknowledged that in making a first award the Commission will proceed with caution so as not to unreasonably disrupt established common law regulation of an industry. This however will usually involve a careful examination of the content of an award at the time of its making…" 13 Further, we bear in mind the observations of Glynn J at 99 of her judgment of 15 May 1991 (the second judgment) as follows: "There have been previous examples in the Commission of sectors of industry being brought, over periods of many years, within standards generally accepted in industry. I believe that the employees in this industry should eventually have the benefit of standard conditions. I further believe that those benefits should be phased in over the foreseeable future. It has taken the Union a great deal of effort to reach the present stage of award coverage, and if the momentum faltered the period over which the standard conditions were to be introduced might be extended even further." 14 Clearly, it was then envisaged by the Commission that a process of ongoing or progressive revision of the award standards was appropriate for the industrial parties to undertake in the interests of achieving general improvement over time. 15 We observe, with no intended criticism of the parties, that a faltering of the momentum to which Glynn J then referred, is evident to the extent that the present application represents the first and only significant attempt since the award was made to seek the general improvements envisaged at the time it was made. 16 The purpose in making such an observation is to highlight the difficulty now confronting the Commission in curing or being asked to cure in one fell swoop, as it were, the shortcomings in the existing regulatory scheme which have emerged or have been identified by the parties in the course of the last decade or so. 17 In a sense, any award which may now be made will of necessity assume some of the character and prerequisite cautious approach to the making of a first award if the consequence of unreasonable disruption of the existing regulatory scheme is to be avoided. 18 It may further be useful at this point to deal with what may be broadly described as a differing approach by the parties to the question of the proper application of the wage fixing principles to the Commission's deliberations in this matter. 19 For its part the Union seeks to bring the matter within the Special Case principle which provides: "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 allocated by the President." 20 The employer parties, as we understand them, raise concerns as to what is perceived to be the Union's wish to press its application on the basis that it seeks increases in wages and changes in conditions as a special case to the exclusion of considerations of structural efficiency and work value changes and of the cost impact minimisation requirements of the reduction of the standard hours principle. 21 The employer parties submit in effect, that the Special Case principle necessarily involves satisfaction of structural efficiency and work value and standard hours principles which in the case of one or other of them or perhaps all, are in a strict way relevant to the determination of a special case. In our view, this cannot be so when the settled authorities are properly applied.

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Special Case 22 As Mr Reitano for the Union argues, the present Special Case principle 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 and Other Awards (No 2) (1993) 52 IR 243. In the latter decision the Full Commission held at 376 - 377: "In our view, the special cases 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 cases provision 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 of a structural efficiency kind, in which employees have participated or to which they have contributed, have been such as to justify wage 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 other 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 cases 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 increase 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, if 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 increase 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." 23 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." 24 Thus it can be seen, as in our view Mr Reitano correctly submits, that strict compliance with the wage fixing principles generally or with the work value principle and structural efficiency considerations in particular is not required where as here a case is advanced as a special case. 25 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, again as Mr Reitano submits, 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. 26 A further essential basis upon which this matter should proceed is in our view, the proper acknowledgment and recognition of this industry as being motivated, perhaps like few others, by notions of altruism and an abiding wish on the part of all of its participants, employers, employees and the many who freely offer themselves as volunteers, to lighten the burden which would otherwise rest on the less fortunate members of the community and it is not unreasonable to observe, we think, that the value placed on the services provided by this industry, in many ways, defines us as a civilised and enlightened society.

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OR attained through previous appointments, service and/or study with a combination of experience, expertise and competence sufficient to perform the duties required at this level. 6.6.4 Organisational Relationships (a) works under limited direction from senior management or the employer; (b) has significant delegated authority; (c) may manage a work area of a medium to large or multi work site organisation; (d) may supervise staff classified at a lower level. 6.7 Community Services Worker Level 7 6.7.1 Characteristics of the Level (a) A person employed as a Community Services Worker Level 7 shall exercise a high level of responsibility for organisational management and decision making, exercise considerable independent judgement and delegated authority, and provide high level expert advice. (b) General features at this level require an employee's involvement in establishing operational procedures which impact on activities undertaken and outcomes achieved by the organisation and/or activities undertaken by sections of the community served by the organisation. (c) An employee is involved in the formation/establishment of programs, procedures and work practices within the organisation. (d) An employee is expected to undertake the control and co-ordination of key aspects of the work of the organisation. A strong understanding of the long-term goals of the organisation is required. (e) The management of staff is normally a feature. An employee is required to set outcomes in relation to the organisation and may be required to negotiate matters on behalf of the organisation. 6.7.2 Responsibilities A position at this level may include some of the following responsibilities or others of a similar value: (a) undertake managerial or specialised functions under a wide range of conditions to achieve results in line with organisational goals; (b) exercise managerial control, involving planning, direction, control and evaluation of operations for either a major single discipline or multi discipline operation; (c) administer complex policy, organisational and program matters; (d) preparation of budgets for the organisation; (e) undertake lobbying and advocacy work involving liaison at a high level; 6.7.3 Skills, Knowledge, Experience, Qualifications and/or Training Some or all of the following are needed to perform work at this level. (a) comprehensive knowledge of policies and procedures; (b) application of a high level of discipline knowledge; (c) strong managerial, supervisory and strategic planning skills; (d) ability to exercise sound judgement in relation to complex issues; (e) strong policy analysis, research and advocacy skills; (f) a high level of interpersonal skills in dealing with clients, the public and other organisations; (g) a high level of verbal and written communication skills, including the capacity to discuss and explain complex issues and ideas; (h) the prerequisites for entry to this level would be;

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6.8 Community Services Worker Level 8 6.8.1 Characteristics of the Level (a) A person employed as a Community Services Worker Level 8 is subject to broad direction from senior officers and shall exercise managerial responsibility for the organisation's relevant activity. In addition, employees may operate as a senior specialist providing multi-functional advice to either various departments or directly to the organisation. (b) General features require the employee's involvement in the initiation and formulation of extensive projects or programs which impact on the organisation's goals and objectives. An employee is involved in the identification of current and future options and the development of strategies to achieve desired outcomes. (c) Other features include providing financial, specialised, technical, professional and/or administrative advice on policy matters within the organisation and/or about external organisations such as government. (d) In addition, an employee will be required to develop and implement techniques, work practices and procedures in all facets of the work area. (e) Work at this level will demand responsibility for decision making within the constraints of the policy and constitution of the organisation and require the employee to provide advice and support to all facets of the organisation. (f) Work at this level may be identified by the significant independence of action within the constraints of the policy and constitution of the organisation. 6.8.2 Responsibilities A position at this level may include the following responsibilities or others of a similar value: (a) undertake work of substantial scope and complexity. A major portion of the work requires initiative; (b) undertake duties a critical nature with little or no professional direction; (c) undertake functions across a range of administrative, specialist or operational areas which include specific programs or activities, management of service delivery and the provision of high level advice; (d) manage extensive work programs or projects in accordance with the goals of the organisation. This may require planning, budgeting and the evaluation of outcomes; (e) apply high level analytical skills in the attainment of the objectives of the organisation. 6.8.3 Skills, Knowledge, Experience, Qualifications and/or Training Some or all of the following are needed to perform work at this level: (a) comprehensive knowledge of policies and procedures; (b) application of a high level of discipline knowledge; (c) a high level of verbal and written communication skills, including the capacity to discuss and explain complex issues and ideas; (d) strong managerial, supervisory and strategic planning skills; (e) ability to exercise sound judgement in relation to complex issues; (f) strong policy analysis, research and advocacy skills, where relevant; (g) a high level of interpersonal skills in dealing with clients, the public and other organisations; (h) the prerequisites for entry to this level would be: qualifications are generally beyond those normally acquired through a degree course and experience in the field of specialist expertise; OR substantial post graduate experience; OR lesser formal qualifications and the acquisition of considerable skills and diverse experience relative to an equivalent standard; OR attained through previous appointments, service and/or study with a combination of experience, expertise and competence sufficient to perform the duties of the position.

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The Evidence 29 Ms Peters, secretary, Australian Services Union of NSW, by her affidavits (Exhibit D and Exhibit E) deposed to the size of the workforce in the non-government community welfare industry potentially covered by the Social and Community Services Employees (State) Award as being in the order of eight thousand. She set out in summary form, a history of variation and disputation in relation to the existing award since its making in 1991. 30 Ms Peters gave examples of aspects of the existing award giving rise to industrial disputation which it may be observed is not unique to this particular award but which on Ms Peters' evidence, demonstrates a justifiable basis for revision of those aspects by the Commission. 31 In fact, a number of matters to do with the approach taken by individual employers to the classification or non-classification of "Live-In" workers, as the case may be, prompted a Full Bench of the Commission in dealing with an appeal from the Chief Industrial Magistrate, to observe: "However, we note that when the relevant award, the Social and Community Services Employees (State) Award, was made, the member of the Commission who made the award, granted leave to apply in relation to a provision which is central to the present proceedings. It would be open to the Union of which the appellant is a member, to make an application pursuant to the leave reserved provisions." (IRC 97/6559, 22 July 1998) 32 Ms Peters suggested that the better course is that which is urged by the Union application namely, that the industry move away from the concept of live in workers and instead, make use of shift work and sleepovers as more effective methods of service provision such arrangements, it is said, also being more conducive to the provision of adequate rest and respite from the workplace for affected employees. We note at this point, that since Ms Peters' evidence was taken, the parties have resolved their differences in respect of this issue and that, accordingly, the matter can be safely left aside for the purpose of this decision. 33 Another example of difficulty in interpretation to be found in the existing award is that related to the overtime provisions generally and in particular those provisions dealing with Breaks between Shifts and Overtime (Cl 21) and Meal Breaks (Cl 13). 34 In the case of breaks between shifts and overtime, the proposition that an employee who is not afforded the pre-requisite ten hour break is entitled by the operation of the present Cl 21 to payment of overtime in addition to ordinary time worked, was the subject of argument in the Chief Industrial Magistrate's Court in Matter No 98/1036, when the decision of the Magistrate of 4 March 1999 favoured the above construction. 35 Further examples of difficulties arising from differing approaches as between the industrial parties to the interpretation of various provisions of the existing award were given in evidence by Ms Peters and were said, in addition to problems generally to do with lack of clarity and the absence of industrially useful provisions regarding on-call requirements, time-in-lieu of overtime payment, excursions, conferences, study leave and organisational change, redundancies and the like, to be a sound platform on which to base the Union application for rescission and replacement of the existing award. 36 Ms Peters referred to the grant of leave reserved by Glynn J in 1990 for the purpose of allowing or enabling the parties to reach agreement, which never eventuated, as to appropriate wording of a time in lieu of overtime provision. 37 As to the Union proposal to expand the existing four level classification structure to an eight level structure, Ms Peters said that the existing categories and the number of them are limited, providing little distinction between workers with relatively limited responsibilities and those with more significant responsibilities in for example areas such as case management, financial management and staff management. 38 She said that more recent awards in other Australian states with the exception of Victoria each have more clearly defined classification structures based on experience, qualifications, knowledge and responsibilities. Those awards or other awards, as the case may be, recognise the diversity of work throughout the industry and therefore recognise a broader skill basis for movement within the classification structure as well as providing greater scope for placement within the structure for a vast range of different services. 39 She said social welfare work could now be described as a career, a description that arguably did not apply or was not accepted as being applicable a decade ago. Workers are thereby increasingly difficult to retain in the lower paid non-government sector. 40 Reference was made by Ms Peters, in support of the proposal for conference and study leave, to the increasing requirement within the industry for workers to attend conferences and industry training sessions as part of their employment (such requirement often being a condition of funding) and in the interests of keeping abreast of significant legislative and regulatory change, an example being the recent Child Protection legislation. She said there is an increasing number of TAFE and university courses being offered in the social welfare field and that such study better equips workers, improves skills and allows for career development. 41 With that increasing number of courses on offer, there is added pressure on workers to up-grade and develop qualifications by means of formal tertiary qualifications or short professional development courses most of which, Ms Peters said, have to be done in the workers own time. 42 To demonstrate the prevalence of the minimum award conditions of employment and rates of pay throughout the social welfare industry, Ms Peters pointed to the limited application of enterprise agreements, citing only 15 such agreements to which the Union is a party with the following industry employers:

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· Community Employment, Training and Support Services Consolidated Award 1996 covering employees in labour market assistance programmes (AIRC) · Family Day Care Services Award 1999 covering employees employed in the provision of family day care and related support services (AIRC) · Crisis Assistance, Supported Housing Award 1991 covering employees engaged in a service the predominant function of which is the provision of supported accommodation and/or related support services (AIRC) · Charitable Institutions (Professional Staff Social Workers) (State) Award covering qualified social workers employed as such by an agency within the jurisdiction of the Charitable Institutions (State) Conciliation Committee. This New South Wales award is said by Ms Peters to cover only a few employees at a very limited number of workplaces. 45 Mr Jim Piotrowski, an organiser with the Union, gave short affidavit (Exhibit F) and oral evidence to the effect that he conducted a survey among members covered by the existing Social and Community Services Employees (State) Award in August 1998. 46 The survey was intended, he said, to elicit information from members as to current working conditions and rates of pay in order to assist the Union in progressing its application for a new award. 47 It may suffice to say, with no intended disrespect to the surveyor, that the weight to be given to this evidence is necessarily limited by among other things, the relatively small and in the case of some of the questions, the unknown or at least unstated number of respondents. 48 We take note nonetheless and give appropriate weight to the survey results but would perhaps leave them with the observation that they may have been of greater value to the Union in preparing and drafting the application presently before the Commission, than to the Commission in terms of evidence which would support or be relevant to the merits of the application. 49 Ms Helen Twohill, consultant, was called by the Union and gave evidence of her close and extensive involvement with community sector organisations in Queensland following the making of the Social and Community Services (Queensland) Award 1996. 50 Notably, that award provides for an eight level classification structure similar to that proposed in the application presently before the Commission. 51 Ms Twohill deposed (Exhibit G) to having been retained with a number of other consultants by the Queensland Council of Social Services to assist in implementing what was, at the time, a first award covering community sector employees in that state. 52 Her evidence was that she conducted seminars jointly with the Union and worked with individual organisations in Queensland evaluating each position within each organisation in terms of where it should fit within the new eight level structure, providing award interpretation and policy development advice, assisting in the resolution of disputes within individual organisations as to the interpretation and grading of positions under the new award and providing independent assessments of newly created positions. 53 She said that initial concerns among management committee members as to their ability or lack of ability, as the case may be, in approaching the task of implementing the new Queensland award related largely to a lack of experience in such matters and that the same concerns dissipated with the engagement of specialist expertise and advice. 54 Ms Narelle Clay, chief executive officer of the Wollongong Youth Accommodation and Support Service Association Incorporated, gave evidence based on 15 years experience in the industry the last ten of which have been spent in her present position. 55 She said by her written statement (Exhibit H) that as part of her responsibilities as chief executive officer she was required to advise the management of her organisation on personnel and industrial matters affecting the organisation, and that she had on occasions been asked to assist other organisations in that regard. 56 She described her own organisation as comprising twelve agencies ranging from crisis youth refuge services through adolescent and family counselling services to employment, education and training services variously funded from State and federal government sources. 57 She pointed out at some considerable length how the industry had changed in the last decade or so since the existing award was made citing, for example, the substantial shift in the provision of social welfare services from the public to the community sector, and an increasing emphasis on case management and accountability, which in turn has required a higher degree of professionalism both organisationally and individually. 58 She said that not only had the range of welfare services offered by the community sector increased significantly in the last decade but so also had the complexity of those services and the social environment in which they are delivered. In this regard, she referred by way of example to research into youth homelessness. 59 Her evidence revealed changes in the clientele using community based organisations moving, she thought increasingly to people with mental health problems, those with dual diagnoses of mental and physical disability and those with high level behavioural problems. 60 Ms Clay said that such changes in clientele and the type of care provided has changed the industry way of operating with much greater emphasis now than before on long-term outcomes rather than short-term management and care. She said that with increased professionalism there is now a much greater emphasis on documentation and casework. Social and community welfare workers now administer and monitor medication, identify psychiatric symptoms and manage behaviour problems as well as what she described as an associated increase in critical incidences and violence in the workplace. 61 She cited by way of example the reform agenda for the Supported Accommodation Assistance Program which demanded increases in skills needed by workers within the industry in early intervention, case management and in the handling of violent and potentially violent situations. 62 Further, Ms Clay said some of the types of complex work issues now required to be performed by social welfare workers include case management and planning, referral, advocacy, court support, crisis intervention, conflict resolution, early intervention, teaching living and social skills, complaint handling and child abuse notification. There has been an increased emphasis on duty of care and associated legislative prescription which itself entails greater responsibility. Some of this legislation gives to social welfare workers the same responsibility as is vested in the Department of Community Services with respect to the care of children. 63 Ms Clay explained in her cross-examination that whilst some of the work being undertaken in the industry remained the same today as it did in 1990 the emphasis, responsibilities and complexity of that work had changed in many cases dramatically. 64 Ms Clay also dealt in her evidence with the need to move to the classification structure in the Award proposed by the Union and why she considered such a classification structure desirable. In particular Ms. Clay said:

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· the existing Award when made brought considerable stability and served the industry well - fitting the industry as it existed then and recognising the qualifications available at that time. · there has been an exodus of workers to the public sector where pay and conditions are better. · the Award today fails to recognise the diversity of positions in the industry and new areas of speciality that have emerged. · the failure of the Award to recognise positions such as Senior Case Workers, Team Leaders, Project Workers, Research Workers and those working in large community based multi-service providing organisations requires rectification. · the Award does not provide a career path for social welfare workers in the industry. 65 Ms Michelle Robertson, senior industrial officer with the Queensland branch of the Australian Services Union, provided a statement (Exhibit J) and gave oral evidence as to the implementation and operation of the Social and Community Services (Queensland) Award 1996, an award of the Australian Industrial Relations Commission which contains, among other things, an eight level classification structure similar to that which is sought by the Union in the present application. 66 Ms Robertson described the Queensland classification structure as working well and as being dispute-free in that the Union had not taken a classification dispute to the Australian Industrial Relations Commission since the award was made. She considered that the strength of the Queensland structure lies in its ability to determine classification levels based on degrees of responsibility/skill rather than job title or qualification only. 67 Notably the Queensland award like all other awards pertaining to this industry throughout Australia, with the exception of New South Wales, was made by consent. 68 Ms Meg Smith, co-author of a comprehensive research document dealing with trends in casual employment was called in the Union case. 69 The document entitled 'Choice and Coercion - Women's Experience of Casual Employment' - was admitted into evidence and marked Exhibit K. 70 Ms Smith emphasised as one of the research outcomes that what on the face of it may appear to be widespread choice of casual employment, in particular by women, was in fact an only alternative for those who would otherwise properly be regarded and prefer to be employed as permanent part-time workers. 71 She described what is referred to as disamenities attaching to casual employment, or in other words, those aspects of casual employment that may disadvantage employees relative to permanent employment including (despite the casual loading) low earnings, employment insecurity and less regular employment, lower access to training, a high propensity to engage in multiple job holding for income purposes and lack of access to entitlements and benefits that accrue to permanent employees such as sick leave, parental leave, carer's leave and the like. 72 Ms Smith indicated as another outcome of the research project, a range of recommendations going to the desirability of more or better prescription in awards and agreements to ensure that employment which more closely resembles or is actually permanent part-time employment is named and offered as such by employers. 73 In the employer's case, Mr Robert Martin Foster provided written statements (Exhibit 2 & 3) and attended for cross-examination thereon. 74 Mr Foster said he was employed as the general manager, finance and administration at Challenge Disability Serves (Challenge) an organisation based at Tamworth in northern NSW for which he had worked for 11 years. He described Challenge as a non-profit organisation established by parents and providing services to people whose primary disability is intellectual. 75 The services offered by Challenge cover vocational, residential, open employment, respite and day care programs. 76 The vocational operations were said to comprise 8 business units including a recycling operation, a garment manufacturer and retailer, workcrew and a contracts section. 77 Challenge provides so called residential services for 47 people in 19 residences and as an organisation, provides services for over 200 people for the purposes of which, it employs 95 under the Social and Community Services Employees (State) Award. 78 In addition, there are another 35 persons employed some described as managers who are award-free and the remainder who are covered by awards regulating employees in the clothing trades, storemen and packing, administrative and clerical and so on. 79 Of those employed under the Social and Community Services Employees (State) Award and doing the best he could in cross-examination, Mr Foster thought about 30 were full-time employees, 40 were part-time and the rest were casual (T 173.35). 80 His evidence disclosed concerns to which by and large, he adhered in respect of various elements of the Union claim. 81 As to the claim for a new definition of 'casual employee' which introduces and limits itself to the notion of employment of a "short-term irregular nature" (Cl 5), he referred to the ongoing need for the organisation to employ casuals to replace staff whilst on leave in order to maintain appropriate support levels, to meet the variable or fluctuating needs of clients who from time to time may require additional support and to generally enable the organisation the flexibility which would not be available to them in the deployment of permanent staff if the Union claim were granted. 82 He expressed the view that concepts of "short term" and "irregular" had a subjective character to them which allowed differing interpretations and which may create rather than avoid disputation. 83 He felt that the requirement inherent in the provision sought by the Union that any employee deemed to be working on other than a short-term irregular basis be made permanent would seriously restrict his organisation's ability to meet client needs in a flexible and responsible manner. 84 He did not consider when it was put to him in cross examination that the provision sought by the Union and agreed to by the employer parties as to fixed-term employees (Exhibit P, Cl 4) would overcome these difficulties. 85 Conversely, he felt that the existing definition of casual employee namely, one who is employed and paid as such provided the necessary flexibility and served his organisation well. 86 His initial objection to the Union claim in respect of the payment of overtime to part-time employees was diminished by the agreement reached between the industrial parties between the time his statement of evidence (Exhibit 2) was prepared and the time he was called to give evidence (T 165.15). 87 In that regard it is to be noted by reference to Cl 17 Overtime of the last amended Union application (Exhibit P) that entitlement to overtime payment would accrue to only those part-time employees (if the claim were granted) who worked in excess of full-time equivalent hours rather than, as was initially claimed to those who worked in excess of their contracted hours. 88 As to the Union claim for an On-call Allowance (see Cl 22 Exhibit P) Mr Foster described his organisation's existing practice in respect of on-call arrangements whereby employees are issued with a mobile telephone to which calls received outside office hours (8.30am - 5.00pm Monday to Friday) are diverted. 89 The on-call employee may resolve the matter on the telephone, if necessary may attend to the matter in person (in which case an entitlement to a minimum of two hours pay accrues pursuant to the call-back provisions of the existing award) or may refer the matter to the relevant manager. 90 Although there is no existing award provision in this regard, Mr Foster's organisation pays employees who are on-call, a flat amount of $15 per on-call period or $105 as is more the case, to each employee who is rostered on-call for a full week. 91 He estimated that the granting of the Union claim for an on-call allowance (which may be broadly described as 2 hours pay for weeknights and 4 hours for weekends) would represent a significant increase over his organisation's current on-call costs. 92 As to Excursions, Mr Foster said that additional costs associated with granting the Union claim in this regard (Exhibit P, Cl 27) would leave his organisation with no alternative but to cease conducting them. 93 He described the present arrangements whereby employees are paid for hours worked on excursions up to 8 hours per day with one of those employees being on sleepover duty and it is assumed, paid according to the sleepover provisions of the existing award (that is, nominally 3 hours pay plus additional pay for necessary work in excess of 2 hours during the night). 94 Employees who attend excursions are also given time in lieu for half the number of hours for which they receive pay during the excursion. 95 Mr Foster explained that the costs of excursions are met from within the Challenge organisation and no specific funding is received to conduct them. 96 In respect of the Union claim for Conferences, Training and Study Leave (Exhibit P, Cl 36), he said that paid leave is provided by Challenge where training and/or attendance at conferences is required of an employee and further, that course attendance at the initiative of the employee is dealt with on a case by case basis where requests are made by an employee for leave or other forms of assistance. 97 It may be that, for example, an arrangement is entered into whereby an employee who chooses to undertake a course will be asked to cover their own travel time and meals whereas Challenge will agree to pay for the course fee and accommodation. 98 He said this flexibility of approach, which involved a joint contribution by the employer and the employee to the cost of training and study, maximises the opportunities for employees to undertake such training and study. 99 Mr Foster said that Challenge as a larger employer in the community welfare sector, is able to offer these arrangements to employees whereas the majority of employers in the industry operate with such severe budgetary and resource constraints that an award provision such as that contemplated by the Union would be unsustainable. 100 He said and maintained in cross-examination that the award provision sought by the Union would alter the existing circumstances within his organisation whereby few if any employees receive assistance by way of paid study leave, to a position where it would be regarded as a right and claimed accordingly and to a further position whereby refusal would lead to disputation. 101 In respect of the Union claim for an Employee Counselling and Disciplinary Procedures provision (Exhibit P, Cl 49), Mr Foster's primary position was that Challenge would prefer the flexibility of the existing unregulated regime in such matters notwithstanding that his organisation presently has in place procedures similar to those sought by the Union. 102 He said it was presently open to his organisation to modify its disciplinary procedures as thought necessary or desirable in particular circumstances although it had not done so in five or six years and he accepted when it was put to him, that the Union claim was designed to ensure industry-wide compliance with principles of procedural fairness. 103 Mr Foster's evidence then canvassed the federal and State funding arrangements that applied to his organisation in the course of which he provided an estimate of the likely increase in employment costs in the event of the Union claim being granted by the Commission. 104 He was critical of the eight-level classification structure proposed by the Union expressing the view that, by comparison with the structure proposed by employers, it was ill-defined and likely to lead to disputes as to the appropriate classification of individual employees. 105 He indicated a preference for a flatter organisational structure not including ranges of yearly increments within each level as the Union proposal does and he further thought that the translation process would be lengthy and involved. 106 Mr Foster resisted the proposition put to him in cross-examination that the classification structure put forward by the employers did little to change the existing arrangements in that regard. 107 He agreed, however when it was put to him that the provision of adequate career paths for people working within the social welfare industry is a laudable objective. 108 Mr Roger Lipscomb, human resources manager of Anglicare NSW since 1993, provided a written statement of evidence (Exhibit 4) on which he was cross-examined. 109 He described his organisation as the welfare arm of the Anglican Church. He said the organisation consists of six divisions:

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· Aged Services · Welfare Services · Diocesan Services · Op Shops · Corporate Services · Communication 110 He said Anglicare currently employs 1100 people over 200 of which are covered by the Social and Community Services Employees (State) Award. 111 Mr Lipscomb described his organisation's use of casual staff generally as child care workers within the Welfare Services Division providing for specific clients (children) on an as required basis usually over periods of a few weeks or months as the clients are referred to the organisation. 112 He agreed that casual staff are engaged or employed by Anglicare by and large on a temporary and irregular basis. 113 The import of his evidence, as with other employer witnesses was that the definition of casual employee sought by the Union would, if implemented, create considerable difficulty for Anglicare particularly in respect of the requirement that casuals must be "short term" employees. 114 Mr Lipscomb pointed to casuals engaged by Anglicare for what he considered to be longer terms of six months or more but actually employed within that time for irregular periods of say, six weeks or so. 115 His concern was not so much with the concept of irregularity to be found in the definition proposed by the Union but more so with the concept of short-term and what it might be taken to mean if the Union claim was granted by the Commission. 116 He described his organisation's on-call arrangements within the Welfare Services Division as requiring employees to take mobile telephones and to take whatever action is necessary in response to calls received. 117 Whilst he did not resile from but nor did he strictly adhere in cross-examination to his initial statement that employees who are on-call have no limitations on their movements, he did concede that such employees would be expected to be available if necessary, to be called back to work on rare occasions. 118 He said his organisation pays employees 45 minutes for each 24 hour period or part thereof, they are rostered on-call. 119 As to excursions his evidence indicated an arrangement whereby employees are paid for the hours worked throughout the day and additionally, a sleepover allowance if the excursion extends overnight. 120 On the question of study leave, Mr Lipscomb said that Anglicare encourages employees as part of its personal development program to apply for study leave and whilst the organisation would reserve the right to treat each application according to its merits, it would not unreasonably withhold such leave. 121 He expressed reservations about the study leave provision sought by the Union in that it would create a prima facie entitlement to four hours of paid leave each week whereas no such entitlement presently exists and further, it would limit the capacity of the organisation to deal flexibly with differing circumstances in which applications for study leave are made. 122 He accepted when it was put to him in cross-examination that the award provision sought by the Union would, if granted, apply on an industry wide basis both to employers such as Anglicare who presently provide study leave and to those who do not. 123 Similarly, he accepted that the Union claim for a counselling and disciplinary procedures provision would if granted impose no or no significantly different regime on his organisation than that which is presently in place. 124 Mr Graham Harris, human resources manager for 7 years with the organisation known as Wesley Mission, provided a statement of evidence (Exhibit 7) on which he was cross-examined. 125 He described the origins of his organisation and briefly traced its history through to its present name and structure. It is a large Sydney based organisation offering services in 15 broad categories as follows:

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126 The total number of employees exceeds 2000 of which 364 are covered by the Social and Community Services Employees (State) Award. 127 Of these 364 employees 84 were full-time, 126 part-time and 154 casual. 128 He said, as would be readily apparent, that casual employees are regarded as an essential part of his organisation and are used in what he described as emergency situations after part-time employees are offered additional hours of work. 129 He described those situations as including the absence of permanent staff on sick leave, annual leave or employee training days and he thought the definition of casual employee sought by the Union to be overly restrictive and inconsistent with the preference of his organisation's employees whose personal circumstances are well served by casual employment. 130 He said casuals who are used on a regular basis for say, 6 months are as a matter of organisational policy, reclassified as part-time employees with prior service credited for long service leave purposes but not for annual or sick leave purposes components of which are contemplated within the casual loading already paid. 131 He said that if the Union claim in respect of overtime is granted and if overtime is then payable at time and a half and double time compared with the present single time rate, it would add to the cost of service delivery with no guarantee that the funding bodies will meet such additional costs. 132 Mr Harris described his organisation's approach to the payment of employees engaged on overnight excursions that he said were very few in number because costs were prohibitive. 133 It is notable, however, that arrangements presently in place at Wesley by which employees engaged on overnight excursions are paid for 16 hours per day plus hourly loadings ranging between 15 per cent and 75 per cent depending on whether the work is performed on weekdays or weekends plus a day off for every 3 consecutive days of excursions work, substantially exceeds the Union claim and it is to be assumed, would be an arrangement unlikely to be found elsewhere in the industry. 134 As to the Union claims for training and study leave, and for employee counselling and disciplinary procedures, Mr Harris' evidence indicated that his organisation had, as may be imagined in the case of a larger organisation, fairly well-developed arrangements already in place which are not markedly dissimilar to those sought by the Union as an industry-wide prescription. 135 In that regard, he pointed to the enormous diversity of size of employers across the social welfare industry and to the consequent disparity of capacity to offer common employment standards within budgetary limitations. 136 As to the existing classification structure, Mr Harris said he spoke for the combined industry employer's working party (set up in May 1999 to consider the Union claim) when he described it as problematic. 137 He said the existing classification structure:

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· the structure has 4 categories - described as Community Services Workers Levels 1, 2, 3 and 4; · Community Services Worker Level 1 is divided into 2 "grades" - Level 1 - New Entrant and Level 1. It was considered and determined by the Working Party that an employee in the industry could at this level fall into either; a) an employee new to the industry, in which case 500 hours would need to be worked before that employee could progress to Level 1; or b) an employee not new to the industry, but whose duties satisfied the description contained in Level 1. · the 4 levels are divided into firstly, a broad definition of the skills and competencies required of the work to be performed at that level and secondly, a list of indicative tasks which are performed at the level. · the proposed employer structure provides the opportunity for employees to pursue a career path into either a generalist (co-ordinator) or specialist role. It is contemplated that beyond the proposed Community Services Worker Level 2, Level 3 and 4 will provide employees with the opportunity to utilise their skills in either of these roles. · the structure shows some resemblance to components within the existing structure within the Social and Community Services Employees (State) Award. It was strong belief of the Working Party that, given the nature of the social welfare industry, it was fundamental to demonstrate a nexus between a structure, which for 9 years the industry had been used to, and there were elements in it which were important to retain. 139 Mr Harris conceded in cross-examination that in expressing an adverse opinion about the eight-level classification structure proposed by the Union, he had not looked at the so-called competency based classification structures contained in the kindred industry awards in Queensland or South Australia. 140 In respect of the translation process proposed by the Union, Mr. Harris adhered to his evidence that the task of revising existing job descriptions, classifying or reclassifying existing employees within the new structure and educating people in its meaning and intention would be time consuming and costly and had the potential to create disputation. 141 Ms Rebecca Loundar, manager of Wesley Streetsmart Youth Services for 41/2 years, provided a statement of evidence (Exhibit 8) on which she was cross-examined. 142 She is a registered psychologist with undergraduate and post graduate qualifications in the field and she described Streetsmart as an activity of the Wesley Mission employing 14 people, 12 of whom are covered under the Social and Community Services Employees (State) Award. 143 She further described the range of services offered by Streetsmart to young people who are "at risk" and their families including referral to legal, drug and alcohol, Centrelink, education and employment services and the provision of safe emergency accommodation, transportation and practical assistance for people who have recently become homeless. 144 Ms Loundar's evidence went to the staffing structure of Streetsmart in terms of the classification levels and brief job descriptions, and also to the various funding arrangements and tendering processes that apply to the organisation. 145 In respect of the Union classification structure which she had read Ms Loundar offered the following comments:

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· It provides for definitions within the categories of work which are a lot clearer and more concise than the Union's; · I found it easier to place my employees in the employer proposal; · I like the approach of having an entry level within level 1 because it gives an immediate picture of the experience of an employee; · Having fewer levels of worker in the structure will mean less disputation at Streetsmart and a much less complicated translation exercise. 148 Ms Loundar was taken at some length in cross-examination to the detail of the employer proposal and by comparison, to the Union classification structure and whilst not resiling from the opinions expressed above, she agreed for example that the glossary of terms contained within the Union proposal was helpful in terms of understanding qualitative terms such as "complex" where they may be used to create distinctions within the various levels within the classification structure. 149 Conversely, she adhered to her view that the structure proposed by the employers commended itself because of what she perceived as its inherent simplicity and ease of understanding when compared with the Union structure. 150 Ms Catherine Dickson, was next called in the employer case and gave evidence in clarification and support of the statement she provided (Exhibit 9) and upon which she was cross-examined by counsel for the Union. 151 Ms Dickson is the divisional manager of support services provided by Disability Services Australia Ltd (DSA), a position she has occupied for 5 years. 152 She described DSA as a not for profit organisation offering employment, training and lifestyle support and day programs to people with intellectual disabilities. 153 She said DSA as an organisation presently employs 800 people, 115 of whom are support workers in the above programs and covered by the Social and Community Services Employees (State) Award. 154 Of those, approximately 45 are casual employees and it was Ms Dickson's view, as with other employer witnesses, that the definition of "casual employee" to be found in the existing award was satisfactory and should not be changed. 155 Conversely, the definition sought by the Union was in Ms Dickson's opinion, unclear in its terms and therefore capable of giving rise to disputation. 156 She further said that many of DSA's current casual employees have family and study commitments and have expressed the view that casual employment serves them well. 157 She gave as examples of such employees the following:

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· employees who are in casual or part time positions with another organisation where the rosters change constantly. 158 Ms Dickson's evidence was that only a very small percentage of DSA casual employees have applied for part-time or full-time positions that have been advertised within the organisation in the previous 5 months or so notwithstanding that they are given priority where they meet the criteria for the position. 159 The incorporation of notions of "short-term" and "irregular" employment into the definition of casual employee would in Ms Dickson's view restrict the existing flexibility available to DSA in the movement of casuals between different programs and locations. 160 She thought, further, that if the Union claim for additional payment for overtime was granted, it would among other things, be necessary to reduce the amount of direct service delivery and to increase the pool of casual employees who would then if appropriately skilled, be called upon as a less expensive option to payment of overtime at time and a half and double time. 161 As to the Union claim for a reduction in ordinary hours of work from 160 to 152 per 4 week period and more particularly, to require those hours to be worked between 6.00am and 8.00pm each day, Ms Dickson felt that an extension of the span of hours to 10.00pm and a limitation of 12 ordinary hours of work per day would be more conducive to the needs of her organisation. 162 As to counselling and disciplinary procedures for dealing with poor work performance, Ms Dickson agreed in cross-examination that implementation of an appropriate regime in this regard would not create a difficulty for her organisation. 163 In the case of the Union claim for study leave Ms Dickson's concerns were primarily centred around the notion that the provision of 4 hours of paid leave would, as the claim is worded, be regarded by employees as a universal right and would remove from the employer, the existing discretion to withhold approval as needs (both organisational and personal) dictate placing employers instead in a position of having to defend what is reasonable and unreasonable in an environment of heightened employee expectation. 164 Ms Dickson accepted when it was shown to her in cross-examination that the Union application contains (at Cl 57.6 of Exhibit P) an express exclusion in the case of persons engaged in any clerical capacity which appeared to resolve one of her concerns but she otherwise maintained her view that the classification structure proposed by the Union had significantly less to commend it than that developed and put forward by the employers working party of which she was a member. 165 Mr Philip Morath provided a statement of evidence (Exhibit 10) on which he was cross-examined. He is the general manager and company secretary of the organisation known as The Crowle Foundation Limited (the Foundation) a position he has held since 15 March 1991. 166 He described the Foundation as an organisation providing services to people with intellectual disabilities including accommodation services, supported employment services and day programs during business hours. 167 He set out in some detail particulars of the funding and expenditure of his organisation in each of those operational areas and also provided a breakdown of staff employed in each of the areas. 168 He said the Foundation presently employs 239 staff, a number that varies according to available funds and of those, 150 are employed under the Social and Community Services Employee (State) Award. 169 Mr Morath said that casual employees are employed by the Foundation to work on temporary contracts and/or to replace permanent staff who are on leave. 170 He referred, as did others in the employer case, to an environment of strict legislative regulation and chronic funding shortage in which his organisation operates and to the fact that funding and other income for existing services offered by the Foundation has been increasing at a lower rate than the increases in wages and other expenses. 171 To overcome the gap between operating expenses and grant funding, Mr Morath said his organisation relies on interest income and fundraising, the respective values of which have either declined or remained static in recent years. 172 He agreed when it was put to him in cross-examination that a reduction in standard hours from 40 to 38 as sought by the Union would of itself have no impact on his organisation, as it would reflect the status quo for the Foundation. 173 He also thought, although he was unable to extract specific information in this regard from the business records of his organisation, that the working of overtime by staff would be very much the exception rather than the rule. 174 Conversely, the affording of time in lieu creates or would create, as the case may be, more administrative difficulty for the organisation in terms of record keeping than paying people for overtime hours worked. 175 In the case of excursions, he described the Foundation's practice of providing a number each year for clients in both accommodation services and day program areas. He said the duration of excursions varies between 2 and 4 days and that the excursions are both enjoyable for the service users and of use to them in providing activities for training and personal development. 176 Staff who agree to participate are paid by the organisation for what he described as their normal working hours and whilst in his organisation's case unlike some others, the additional costs of the excursion are passed on to or recovered from the service users, he thought the increase in the cost of conducting excursions which would flow from the granting of the Union claim would threaten their ongoing viability. 177 Mr Morath said in his cross-examination that his organisation encouraged staff to study and to develop their skills and he could not recall refusing any study leave applications in the preceding two years. 178 Brother Brendan Quinn, Salesians of Don Bosco (SDB), was called and provided a statement of evidence (Exhibit 11) on which he was cross-examined. He is presently designated as deputy director of the trustees of Boys Town in the southern Sydney suburb of Engadine. 179 He described his duties as, among other things, managing and oversighting human resources, finances, policies and procedures, occupational health and safety and workers compensation matters within the organisation. 180 He said there are a range of services provided by his organisation including substitute care programs in residential units, family services programs offering case management, family counselling, family education and support and a special eduction program offering, as a registered special school, secondary education from Year 7 to the Year 10 School Certificate level. 181 Brother Quinn referred in his evidence to his organisation's present practice of affording staff time off in lieu of payment for overtime where by mutual agreement, time off is taken during school breaks when programmes are scaled back and boys are not in residence. 182 He expressed the view that the combined effect of the overtime and the time in lieu provisions claimed by the Union would, if granted, limit and disrupt the existing arrangements of Boys Town whereby, for example, staff now accrue time in lieu over significantly longer periods (10 or 12 weeks) than those primarily contemplated by the Union application. 183 His evidence as to the employee counselling and disciplinary procedures sought by the Union was to the effect that his organisation adopts what it regards as best practice in such matters and although he initially thought there may be, he was unable in cross-examination to point to any specific part or parts of the Union application which came into conflict with best practice principles. 184 Brother Quinn expressed the view that his organisation could cope with only the most minimal cost increases flowing from the Union application without a decrease in staffing and as a consequence, levels of service offered. 185 He further indicated that his religious order, the Salesians of Don Bosco (SDB) as owners and operators of Boys Town could not look to the Roman Catholic Archdiocese of Sydney for assistance of a financial nature and was ultimately responsible for its own affairs in that regard. 186 The final witness in the employer case was Patricia Wetton who provided a statement (Exhibit 12) on which she was cross-examined. Ms Wetton is the chief executive officer of the Foundation, an organisation for the Deaf Blind. She was previously the chief executive officer of Inala, a residential facility for persons with physical and intellectual disabilities and has worked in the disability industry, as it was called, since 1976. 187 Her evidence referred to a total staff number of 35 at Forsight, 9 of whom were casuals who were employed as replacements from time to time for permanent staff on annual leave, sick leave, workers compensation and so on. 188 Ms Wetton felt that the definition of "casual employee" proposed by the Union would result in valuable employees who prefer being employed on a casual basis being lost to the organisation. 189 As to the Union claim for an award provision regarding employee counselling and disciplinary procedures, she expressed the view that principles of procedural fairness are well enough settled and that any award provision would be overly prescriptive and unnecessary.

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Submissions and consideration 190 The Union, whilst accepting that the granting of its application in whole or in part would involve the social and community welfare industry in higher employment costs of a greater or lesser order of magnitude, directed the Commission's attention to concerns in that regard which, as with the present case, were raised by employers in the course of proceedings before Glynn J a decade ago. 191 It was submitted that an evidentiary theme emerged in those proceedings and was repeated here to the effect that if government funding upon which the industry was heavily reliant was not forthcoming to cover such higher employment costs then the services would be jeopardised, reduced or closed down. This theme ought not distract the Commission from the task of establishing or stand in the way of the establishment of fair and reasonable rates of pay and conditions for social welfare industry employees in New South Wales. Nor, it was submitted, should it prevent the process of progressive improvement in the award as envisaged by Glynn J. 192 There was no dispute, nor we observe could there be on the evidence before us, that the industry is characterised by great diversity in the scope of its operations and the size of its individual employers (from small community based activities employing less than five employees to conglomerates involved in multi-faceted State-wide activities) but also by its extremely high levels of dependency on external funding mainly from federal and State and to a lesser extent from local government bodies. 193 Whilst the Union accepts this, it points to the evidence that notwithstanding similar concerns expressed in 1991, ultimately funding was provided to cover the additional employment costs created by the making of the first Social and Community Welfare Employees (State) Award. The Union relied among other things, upon Ms Clay's evidence to the effect that one government department had already committed itself to meeting the additional costs of a new award and another has indicated that additional costs will need to be negotiated should a new award be made. 194 It is submitted that funding constraints have not precluded the 15 employers referred to in Ms Peters' evidence from entering into enterprise agreements which deliver over award rates and conditions to employees they affect and further that it is not the responsibility of employees within the industry to subsidise its operations by accepting lower pay and conditions any more than it is the responsibility of individual employers to internally fund or wind back services to meet fair and reasonable employment costs. Rather, the Union submits, it is a matter for government to provide sufficient funding within its own constraints to enable the levels of services which it considers appropriate, to be offered by the social and community welfare industry. 195 The employers, on the other hand, make the point that the issue of funding loomed large in the Commission's thinking when the initial award was made and this was clearly illustrated by the following passage from the decision of Glynn J of 6 August 1990 at 63-66: "It would be unrealistic of the Commission to ignore the realities of funding in this sector. However, if cost was the sole criterion as to when the industry would be able to afford basic conditions for employees in this industry the time would never be right to improve or ameliorate conditions.

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Ultimately, if any additional funding is not received, and other solutions are not found, it is the employers who, in deciding whether to expand services to answer perceived welfare needs will have to come to an equitable balance between the interests of their clients and those of their employees." 196 Turning then to the more specific issues raised for determination and dealing with them in the sequence in which they appear in the Union application, there is firstly the claim for a redefinition of "casual employees". 197 The Union submits that the existing definition of casual employee as being "an employee engaged and paid as such" which is by no means an unusual prescription across industry and which appears to have been incorporated into the existing award by consent, allows employers to effectively "buy out" award conditions by engaging employees as casuals. 198 It is argued that the provision sought which limits casual employment to the performance of work of a short-term irregular nature would act to prevent such employment practices and when read and applied in conjunction with the agreed "part-time employees" (Cl 3) and "fixed-term employees" (Cl 4) provisions of the award proposed to be made, would regularise and make fairer the existing employment practices in the community services sector whilst at the same time, retaining the ability of employers within the sector to engage casuals for emergency or relief work on a short-term irregular basis. 199 The evidence of Ms Smith as the undesirability and adverse impact of casual employment and the relatively high incidence of casualisation in the social welfare industry is relied upon by the Union as is the evidence of Ms Peters in that regard. The Union further points to the body of employer evidence which on the one hand seeks to resist the definition sought but on the other hand, describes the circumstances in which casuals are engaged namely, to replace permanent employees who are sick or on other forms of authorised leave or to provide additional resources of an unanticipated or unexpected nature, which on any reasonable view would bring such circumstances comfortably within the definition proposed by the Union. 200 The Union takes comfort, although set aside on appeal, in the decision of Stevens DP in Re Clerks (SA) Award [2000] SAIRComm 41, in which a right to elect to convert to a permanent part-time or full-time contract of employment was conferred by way of award variation upon casual employees after a period of 12 months ongoing and regular casual employment. Reference should also be made to the significant decision of a Full Bench of the Australian Industrial Relations Commission in respect of casual employees in Re Metal, Engineering and Associated Industries Award, 1988 - Part 1 (Print T4991, 29 December 2000). 201 As the employers in these proceedings are quick to point out, however, Stevens DP in the Clerks case rejected the claimant Union's proposed definition which imported notions of casual employment being employment of a "spasmodic" and "irregular" nature with "no expectation of ongoing employment" as being unlikely to be clearly understood with the result that they would be improperly applied in some instances and as fraught with difficulty as demonstrated by the case law. 202 The essential objections or resistance of the employer parties to the definition of casual employment here proposed by the Union are bound up firstly, in the dual notions of loss of flexibility and the general preference of certain employees for employment of a casual nature, and secondly, in the perceived difficulties of interpreting the terms "short-term" and "irregular". 203 The loss of flexibility argument relates to the existing unfettered discretion to employ persons as casuals virtually as and when an employer chooses although it is noted by the Union by reference to Mr Harris' evidence in the employers case that at least one employer adopts a routine practice of converting casuals who have been used on a regular basis for 6 months into part-time employees. 204 The general preference of certain employees for employment of a casual nature relates to the employer evidence that casuals employed in the welfare services industry include parents with pre-school or school aged children, persons who might be re-entering the workforce, students with unpredictable or fluctuating academic workloads, persons who may have chosen to semi-retire and want freedom to decline work and persons whose casual or part-time rostered hours with other employers may change constantly. 205 It is said that the capacity to share skilled employees between organisations is particularly important in regional centres where there is an imbalance in that regard between supply and demand. 206 The employers further point to the evidence of Ms Dickson, for example, who said that, notwithstanding their likelihood of success due to skills and experience they possess, only 3.2 per cent of the organisation's casual workforce applied for part-time or full-time positions advertised internally within the organisation in the previous 3 months. 207 The employer parties further argue that the Union proposition that some employers use casual employment to "buy out" award provisions by payment of a 15 per cent loading has no basis in evidence and if treated by the Commission as merely a Union assertion, should not be taken into account as warranting a change in the existing definition. 208 With respect to the Union claim for an 8 level classification structure and a similarly increased or extended pay scale, (Cl 6 and Cl 7), the Union points by way of a useful starting point to the agreement between the industrial parties to the effect that revision of the existing structure is warranted and the fact that a comparison of classification structures and rates of pay applying in the social welfare industry across Australia (Exhibit D, attachment 5) demonstrates the relatively limited position in which those employed under the existing Social and Community Services Employees (State) Award find themselves. 209 It is submitted that, among other things, the failure of the existing structure to properly recognise either the existence or the desirability of tertiary and other increasingly prevalent training based qualifications warrants correction as does its failure to properly recognise the need for and to provide career paths which reflect the contemporary standing of social welfare work as a career unlike when the existing award was made. 210 The structure proposed is said by the Union to accommodate such changes and to remove the ambiguity in the existing structure that has in the past led to disagreement and disputation of which there is ample evidence. 211 As to rates of pay, the Union relies on evidence which identified some of the obvious disparities between rates payable to employees under the existing award and both their public sector and their interstate counterparts. It is submitted by the Union that the rates proposed were developed as being considered fair and reasonable for the industry and as being broadly consistent with the rates achieved by consent in a range of awards throughout Australia. 212 The Union relies particularly on Ms Clay's evidence having regard to the emphasis placed by the Commission in establishing the existing classifications and rates, on the duties, qualifications and experience of the workers in the industry a decade ago. Ms Clay's evidence is said by the Union to demonstrate significant change in that regard and as a corollary to such change, the justification for a classification structure and rates of pay more reflective of contemporary circumstances in that regard. 213 The classification structure and system of implementation proposed here by the Union most closely resembles that which is found in the Social and Community Services (Queensland) Award and it is submitted by reference to the evidence of Ms Robertson, for example, that clear benefits have accrued from having competency standards in that award including an increase in the general levels of qualification and professionalism of workers in the social and community welfare sector. 214 The resemblance to the Queensland award structure, however, should be viewed against the background of classification structures to be found elsewhere throughout Australia that with the exception of New South Wales and Victoria contain between 7 and 9 levels. 215 The Union submits that whilst the number of classifications or levels within those classification structures is not of itself determinative, and notwithstanding that all award structures other than New South Wales were arrived at by consent, it is nonetheless instructive as to what has been considered and shown to be appropriate in terms of award regulation of work undertaken in the social welfare industry generally. 216 It is said by the Union to be significant that there is overwhelming support elsewhere in Australia for classification structures that recognise employee skills, qualifications, competencies and levels of responsibilities rather than the classification structure in New South Wales that is essentially task-based or workplace specific. 217 The employer parties join issue with the 8 level classification structure proposed by the Union contending instead for a modified version that had been developed by an employer working party during 1999 after having been served with the Union claim. 218 It is submitted by the employer parties that the 8 level structure and fine distinction between the levels would make it problematic to implement although it is conceded or acknowledged, that the existing structure is also problematic in its operation in that it:

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· The structure does not seek to include increments within levels which remunerate employees for the time served within a job. 223 The employers argue for the retention of existing rates of pay within their proposed structure but arranged differently in incremental groups in order to permit the creation of an additional grade or category of employee at the entry level. In that regard the employers submit that the Union case for increased rates of pay lacks certain essential ingredients concerning the actual value of work carried out on a day to day basis and having regard for skills, competencies and experience. 224 The employers submit that the Union reliance on rates of pay which it regards as fair and reasonable does not without further evidence as to their origin or method of calculation, advance its case. Furthermore, the employers contend, there is no arbitral determination of pay rates in this industry (other than by the Commission a decade ago) by which to measure standards of fairness and reasonableness in New South Wales and if, as the employers submit, the Commission is to have no regard to pay rates achieved by consent, then the Union case palpably fails. 225 For its part, the Union submits that the real issue emerging in these proceedings absent other arbitral determinations (which lends credence to the special case advanced) is the relevance of overwhelming consent between the industrial parties throughout the industry elsewhere in Australia. In the context of that overwhelming consent, the classification structures and rates of pay elsewhere in Australia are clearly relevant to what may be found to be "fair and reasonable" for the industry in New South Wales. 226 Further, the Union submits, there is the essentially unchallenged evidence of Ms Peters, Ms Robertson and Ms Clay as to changes that have occurred in the work undertaken in the social welfare industry in the decade since the existing award was made and that this evidence was confirmed by some of the employer evidence for example, that of Mr Morath who spoke about legislative changes which have given rise to many more services being provided in community settings and in turn to workers working without direct supervision, an expectation of initiative and decision making by all employees and the development of work practices based on the so-called "chain of support". The consequences of this has again in turn, according to Mr Morath's evidence, led to a change in the nature of work. 227 In that sense, the Union argues, the evidence in support of their claim based the actual value of work carried out on a day to day basis having regard to skills, competencies and experience is compelling. Moreover, the evidence as to rates prescribed and classification structures existing throughout Australia and in the enterprise agreements that are in evidence before the Commission are relied upon as representing a true basis for assessing the actual value of work carried out on a day to day basis having regard to skills, competencies and experience. 228 The Union points to the evidence in respect of the Queensland award, for example, to the effect that the industry generally operates in that State in a not dissimilar fashion to New South Wales. In the interests of conveniently disposing of a matter that emerged in the course of lengthy submissions, we refer here to the Union reliance on a document that was admitted into evidence (Exhibit Q) following the grant of leave to re-open its case. The document, having been admitted over the strenuous objection of the employer parties was filed purportedly on behalf of Australian Business Industrial in proceedings in the Australian Industrial Relations Commission regarding the Social and Community Services (ACT) Award. 229 On its face and without canvassing the detail of it, the document may appear to lend support to the Union case for adjustment of rates of pay by reference to the Social and Community Services (Queensland) Award, a position in contrast to the position adopted by the employer parties (including Australian Business Industrial) in these proceedings. 230 Australian Business Industrial then tendered an affidavit of its Director Industrial Relations, Mr D Grozier sworn on 20 November 2000 that was admitted without objection (Exhibit 16). 231 Mr Grozier's affidavit indicated in concise terms that the document relied upon by the Union had been filed in the federal Commission without authorisation, that it did not represent the position of Australian Business Industrial and that it had been formally withdrawn from proceedings in the federal Commission on 15 November 2000. There being no challenge to Mr Grozier's evidence, it should be accepted and no weight given to the document relied upon. 232 As to the proposed 'Translation' provisions to be found at Cl 10 of the Union application and also the 'Classifications - User Guide and Glossary of Terms' (Cl 11), it is the Union submission that they are designed and intended to operate in conjunction with the proposed new classification structure or any variant of it which the Commission may award, in a way which enables the process of moving from the old to the new, as it were, to be managed openly and with transparency and where changes in rates of pay may ensue, to provide for those to be phased in over time in the interests of minimising the cost impact. 233 The employer parties, whilst not resiling from their primary position that the breadth and complexity of the proposed provisions will of themselves impose a considerable administrative burden on the welfare services industry, do not reject the proposition, broadly stated, that guidance and consistency of approach in the implementation of any new structure would be useful and desirable. Certainly, there was no attack on the Union evidence that "translation" arrangements similar to those proposed operate successfully in Queensland and are also prescribed in relevant awards in South Australia and the ACT. 234 There was, however, a submission by two of the employer parties namely, Employers First and Jobs Australia to the effect that those aspects of the proposed "translation" provisions going to the inclusion of Union representatives in the joint project teams, consultative committees and so-called dispute panels in some way offended freedom of association legislation. 235 We are bound to observe that the submission appeared to us to be cast in the most obscure and unsupported terms that received no further support from close inquiry by the Commission as to any evidentiary or statutory basis that might be called in aid of the submission. 236 This is particularly so when, as was observed during the proceedings, an essential object of the framework provided for by the Industrial Relations Act is to encourage participation in industrial relations by representative bodies of employees and employers and further, the requirement to incorporate into all awards made by the Commission dispute resolution procedures which include procedures for consultation in the workplace, and the involvement of relevant industrial organisations: see s 3(d) and s 14(3) of the Industrial Relations Act. 237 The contention that an award prescription, which is on its face consistent with those statutory provisions might in some way be contrary to the freedom of association provisions of s 209 and therefore unlawful was not substantiated and is rejected. It must be acknowledged as was also ultimately and properly conceded by Mr Chadwick, there was no evidence on which such a submission could be based and the matter is therefore to be put aside for the purpose of these proceedings. 238 In respect of the proposed Cl 12, Incremental Advancement, the Union relies on the fact that movement from level to level within individual grades on completion of 12 months service is a feature of the existing Social and Community Services Employees (State) Award and is also a feature of welfare services industry awards operating in Queensland, South Australia, Victoria, Western Australia, Tasmania, Northern Territory and the Australian Capital Territory. 239 It is further the case, argues the Union, that nothing is put by the employer parties which suggests that maintaining a system of incremental advancement is inappropriate. As to the proposed Cl 16, Hours of Work, the Union points again to the Special Case principle as the vehicle for bringing this claim without the necessity of strict satisfaction of the Reduction of Hours principle. It is submitted that the proposed reduction in standard hours from the existing 160 to 152 in any 4 week period, is consistent with the standard established by award regulation throughout Australia in the welfare services industry and is consistent with standard hours generally prescribed by award regulation in New South Wales.

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240 Further, it is consistent with and generally higher than the standard hours prescribed for employees under the various enterprise agreements applying to the social welfare industry in New South Wales and to the extent that some industry employers now have employees engaged under different state awards working different standard hours, that inconsistency would be removed. The existing award makes no provision for a span of hours during which ordinary hours shall be worked, a circumstance that is explainable, it is submitted, by the payment of overtime at ordinary rates. 241 The second limb to the Union claim for reduced standard hours is the prescription of a span between 6.00am and 8.00pm Monday to Friday during which such standard hours may be worked and as a matter of relevance and importance to the hours claim, in the Union submission the retention of the existing paid rest break provisions is not pressed thus providing a tangible saving for employers in the interests of cost minimisation. 242 The Union submits that in the further interests of cost minimisation although not strictly necessary to satisfy, its proposal in respect of time off in lieu of payment for overtime will if granted afford employers relief in that regard and that the width of the spread of hours together with the discretion which continues to be reserved to employers in rostering hours within that spread of hours will assist in the efficient introduction and hence minimised cost of the 38 hour week (152 hours per four week period). 243 The Union argues that it does not seek to introduce any more elaborate prescription in respect of hours of work or the reduction of standard hours than exists elsewhere. It does not advance a proposal, for example, as to how the 38 hour week (152 hours per four week period) should be implemented. It does not seek to prescribe for rostered days off or a 9 day fortnight or a limit on the number of days that can be worked consecutively although such prescriptions are a feature of many of the interstate awards and enterprise agreements applying in the industry and as earlier observed, it reserves to employers in the interests of cost minimisation a wide discretion in rostering hours of work. 244 The employers submit that no or no sufficient cost minimisation measures have been demonstrated by the Union and maintain the argument that absent such demonstrated measures, prerequisite tests of the wage fixing principles have not been met. The employers press for a Monday to Friday spread of hours from 6.00am to 10.00pm relying on evidence called for example from Ms Dickson and Mr Morath, to the effect that within the welfare industry lifestyle support provision is at its peak in the morning and evening and most adults in care environments are awake and active and in need of support at 8.00pm, whereas extending the span of hours to 10.00pm would allow the rostering of ordinary hours of work without the obligation which presently exists to meet those needs with more costly shift work or overtime. 245 As to Cl 17 Overtime, the Union points to the context in which Glynn J when prescribing in the existing award for overtime to be paid at single rates expressed the clear view regarding the desirability of standard conditions being introduced into the award over time. It points further to the fact that the New South Wales award is the only social and community services award in Australia and possibly the only award per se which does not prescribe penalty rates for the working of overtime. All other social and community services awards prescribe time and a half for either the first 2 hours in the case of Victoria and Tasmania or the first 3 hours in other states and territories and then double time thereafter. 246 The Union argues that the current prescription of overtime at single rates of pay is unfair and unreasonable because it is in reality not an overtime provision at all - it merely extends ordinary hours of work beyond the notional 160 hours per four week period otherwise prescribed. 247 In the Union submission, the evidence makes it clear that practices with respect to the working of overtime vary across the industry with some employers making little or no use of it and others making extensive use of it. In the former case, the cost implications of granting the Union claim would be of little or no consequence and in the latter case, employers faced with significant cost increases would be encouraged to search for more appropriate alternatives to extensive use of overtime. 248 The employers adopt the primary position of opposing the claim for a variation or increase in rates for overtime and argue, in the event that the claim is viewed favourably by the Commission, firstly, that changes be phased in over a reasonable period in the interests of minimising the cost impact and secondly, that overtime rates be set in the light of an appropriate time in lieu prescription and at the standard most commonly applying in other States and territories namely, time and a half for the first 3 hours of work and double time thereafter. 249 As to Cl 18 Time in Lieu, the Union presses for a provision at the election of the employee which affords the employee an amount of time off in lieu of payment for overtime equivalent to the number of hours that would otherwise be paid for at overtime rates. 250 The employers point to the widespread practice which has existed in the industry for many years (evidence of which was also before Glynn J in 1990) whereby time in lieu is provided by agreement on a hour off for each hour worked basis. The employers also point to the fact revealed by an analysis of the welfare services industry awards to which the parties consented in other states and in the territories and that is, without exception, that time in lieu of overtime payment is available by agreement rather that by election of the employee and that most commonly, it is available on an hour off for each hour worked basis. 251 The Union without resiling from its primary position, acknowledged that this is an area where the Commission may well take the conservative approach of concluding that, for the present, it is appropriate to do what is prescribed elsewhere. 252 The employers urge the Commission to award a time in lieu provision in the so-called "model" terms prescribed in the State Personal/Carer's Leave Case 1998 (1998) 84 IR 416 which are as follows:

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I. "An employee may elect, with the consent of the employer, to take time off in lieu of payment for overtime at a time or times agreed with the employer within twelve (12) months of the said election. II. Overtime taken as time off during the ordinary time hours shall be taken at the ordinary time rate, that is an hour for each hour worked. III. If, having elected to take time as leave in accordance with paragraph (1) above, the leave is not taken for whatever reason, payment for time accrued at overtime rates shall be made at the expiry of the twelve (12) month period or on termination. IV. Where no election is made in accordance with paragraph (1), the employee shall be paid overtime rates in accordance with the award." 253 In respect of Cl 20 Shift Work, it is submitted by the Union that the proposed provision is in substance, the same as the provision which operates under the existing award with changes made to the wording in the interests of simplification and with the omission of a transitional provision which was inserted at the time of making the first award which had the effect of phasing in shift allowances therein prescribed over a period of two years. 254 Other than those changes the Union submits that, and there is little if anything in the employers' case to contradict this, nothing has been done to alter the substance of the shift work provision and what it delivers by way of protection and entitlements to employees who work shift work. 255 As to Cl 22 On Call Allowance, the Union points initially to the absence of prescription in this regard within the existing award notwithstanding that leave was reserved to the parties by Glynn J in 1990 to apply as may be advised for the inclusion of such provisions. The Union submits, on the evidence on both sides of the record, that on call is a feature of the welfare services industry which is dealt which by award prescription in various terms in all other states and territories with the exception of South Australia where like New South Wales, it is the subject of leave reserved. 256 Employers in New South Wales compensate those employees who are rostered on call in a variety of ways ranging from, in the case of Anglicare, the payment of 45 minutes ordinary pay for each 24 period or part thereof to, in the case of Challenge Foundation, the payment of $15 per on call period or as is the established practice in that organisation, $105 (7 multiplied by $15) for being on a rotating 7 day on call roster. 257 Other organisations such as the Forsight Foundation do not compensate employees for being on call but offer time in lieu to employees who are actually called back to work. 258 The Union contends that its claim for 2 hours of ordinary pay for each period of 24 hours (or part thereof) from Monday to Friday and 4 hours of ordinary pay for Saturdays, Sundays and public holidays is fair and reasonable given the various provisions to be found in other welfare service industry awards. 259 The employers do not oppose the inclusion of an on-call allowance provision within any new award the Commission may be disposed to make. They argue, in the alternative to the Union claim, for a flat amount in the order of $15 per on call period rather than the hourly rate or multiples of it, for the employees concerned. 260 In that regard, the employers ask that a number of the Commission's awards prescribing on call payments by way of flat amounts be taken into consideration in the determination of this issue. 261 A useful summary of the relevant provisions of those awards prepared by Employers First was admitted into evidence (Exhibit 20) and is as follows:

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262 The employers further submit that a flat amount has the virtue of treating all employees in a like manner for like disabilities regardless of differing substantive rates of salary as between such employees and further, avoiding when considering the most appropriate employees to be on call in given circumstances, the necessity to make such choices in consideration of differing rates of on call allowances which would be payable under the Union proposal. 263 The employers submit further that the flat amount approach would enable the Commission to move on a cautious basis given the hitherto unregulated nature of the issue and the escalated costs associated with the remainder of the Union application. 264 As to Cl 27 Excursions, the Union again points to the absence of a standard or minimum prescription in this regard within the existing award notwithstanding the common if not universal use made throughout the welfare services industry in New South Wales of this kind of beneficial activity. 265 The Union relies on relevant provisions to be found in the federal Community Employment, Training and Support Services Award (to which some New South Wales welfare service industry employers are parties), as well as those provisions to be found in the Australian Capital Territory and Northern Territory welfare services industry awards. 266 In the federal award (Cl 18.9) employees required to supervise clients on excursions involving overnight stays away from home are paid up to a maximum of 8 hours per day for time so worked between 8.00am and 6.00pm Monday to Sunday and in addition, are able to accrue time in lieu of overtime payment for work performed between 6.00am and 8.00am and between 6.00pm and 10.00pm and in excess of 8 hours between 8.00am and 6.00pm. There are a number of qualifying provisions going to time in lieu accrued on public holidays and excursion work performed on weekends which are not necessary to recite here for the present purposes. 267 In the ACT and Northern Territory awards such employees are paid at ordinary rates for time worked between 8.00am and 8.00pm Monday to Friday up to a maximum of 10 hours per day, are able to accrue time off in lieu of overtime for all other hours worked and are paid an overnight allowance as prescribed by each award. 268 The Union points to the evidence as to the wide variety of practices in respect of excursions throughout New South Wales ranging from employers such as Boys Town whose employees undertake such activities (albeit infrequently conducted) on a voluntary basis for no additional remuneration but with time in lieu, to others such as Crowle Foundation who pay their employees for all hours worked on excursions but recover from service users, the cost of those hours in excess of ordinary hours. 269 Other employers such as Wesley Mission would appear to remunerate their employees for excursions on a basis potentially more generous than the Union claim and another, Challenge Foundation, pays up to 8 hours ordinary pay per day and affords time in lieu for half the hours for which payment is received. These two employers also pay a sleepover allowance. 270 The Union presses its claim on the basis that employees on excursions should receive ordinary pay up to 8 hours per day for work undertaken between 6.00am and 8.00pm (the ordinary hours) on any day plus a sleepover allowance if applicable plus overtime rates for all other hours worked. 271 The end result, argue the employers, would be 26 hours pay for each 24 hours of excursion work if the claim is granted, which in some if not all organisations would bring to an end a service which is generally regarded as of significant inherent benefit to clients. 272 Conversely and as with the on call allowance, employers by and large do not oppose the inclusion of a less costly provision for excursions in any new award which may be made, the suggestion of Employers First being payment of 8 hours at ordinary time plus a sleepover allowance plus an excursion allowance the quantum of which was not specified. 273 The Union submits and the employers, it may be inferred from the above, accept that employees undertaking excursions involving one or more nights away from home are placed in positions similar to those engaged in sleepovers in that they are available and may be called upon to work should the need arise, they are not sleeping at home, they have their personal lives and families disrupted and so on. 274 The Union relies on the recent Full Bench decision in Re NSW Department of Community Services Community Living and Residential (Interim) (State) Award (2000) 100 IR 447 for its submission as to the inappropriateness of utilising overtime rates or call back provisions as the basis for calculation of a sleepover allowance in that case or by analogy an excursion allowance in this case. 275 As to Cl 29 Annual Leave Loading, the Union proposal is consented to by employers with the exception of sub-clause (2) which is expressed as follows: "Before an employee takes their annual leave they shall be paid a loading of 17 1/2 per cent of their normal pay (including penalty rates) for the annual leave taken." 276 The difficulty raised by the employers in respect of the above provision is that it clearly entitles, or would entitle if the Union claim were granted, shift workers to be paid both their normal shift penalty rates and an annual leave loading whilst on holidays rather than one or the other whichever is the greater. 277 Employers First with whom the other employers concur, argues that the latter formulation avoids double dipping and is the standard set by the authorities. It should therefore be adopted by the Commission instead of the Union proposal. 278 The authorities relied upon were firstly Re Shift Workers Case [1972] AR (NSW) 633 where the Industrial Commission of New South Wales in Court Session, after examining what had earlier been decided by the Commonwealth Conciliation and Arbitration Commission in the Annual Leave Case 1971, determined that shift workers proceeding on annual holidays should not be disadvantaged by the loss of shift allowances and weekend penalties upon which they had come to rely but that conversely, it was not intended that payment of such allowances and penalties be cumulative on an annual leave loading (or bonus as it was then known) where an award so provides. Rather if they are "equal to or less than the bonus, the bonus only should be paid" (p.666) 279 The authority next relied upon by the employers was Re Annual Holidays Loading Case [1974] AR (NSW) 130 in which Beattie J, President granted an application reflecting agreement reached between major Union and employer parties of the day to vary numerous awards by the inclusion of a standard "annual holidays loading" clause. 280 That clause relevantly provided as follows: "(x) This clause extends to an employee who is given and takes an annual holiday and who would have worked as a shift worker if he had not been on holiday; provided that, if the amount to which the employee would have been entitled by way of shift work allowances and weekend penalty rates for the ordinary time (not including time on a public or special holiday) which the employee would have worked during the period of the holiday exceeds the loading calculated in accordance with this clause, then that amount shall be paid to the employee in lieu of the loading."

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281 Finally in respect of this issue, the employers rely on the decision of the Industrial Commission in Court Session Re Annual Holidays Case [1974] AR (NSW) 336, a case which was essentially concerned with Union applications to vary numerous awards to provide an entitlement to four weeks annual holiday and to, in the process, extend the payment of the new standard 17 1/2 per cent loading to that four week period. 282 In granting the applications before it the Commission said at 360: "We therefore decide, in determining this section of the case, that those awards which will be affected by our general ruling on the subject of an additional week's annual holiday, and which now contain provision for a 17 1/2 per cent annual holiday loading, should also be varied as from the same date we have indicated, 1st December, 1974, to provide that the loading will apply in respect of the full period of annual holiday, with the provisio, in the case of shift workers, that if the amount to which the employee would have been entitled by way of shift work allowances and weekend penalty rates for the ordinary time (not including time on public or special holiday) he would have worked during the period of the holiday, had he not been on holiday, exceeds the loading, then that amount should be paid in lieu of the loading . It is our intention that, as far as practicable, provisions of the standard annual holiday loading clause agreed upon between the Labour Council of New South Wales and the four major employer organisations, and which forms an annexure to the judgement of the Annual Holidays Loading Case should be continued to apply except as necessarily altered by the decision which we have now announced. We make it clear, too, that our decision has no direct effect on those awards which contain annual holiday loadings of greater amounts than 17 1/2 percent; the matter of whether those awards should be varied is one fort the parties and ultimately, the relevant industrial tribunal, to consider and determine." (emphasis added)

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283 For its part, the Union submits that the Annual Holidays Case in no way precludes the making of an award provision prescribing benefits in excess of the test case standard and further, that the existing award provision to which the employers consented in 1991 is in fact more favourable than the test case standard when properly construed and in that regard is merely preserved and clarified by the proposed Cl 29(2) to which the employers object. 284 The employers strenuously resist the notion that there was consent in 1991 or since to a provision that conferred upon shift workers an entitlement in excess of the test case standard although, it is submitted, there is a certain ambiguity to the existing provision which renders it capable of such an interpretation. Mr Chadwick informed us of his understanding that some members of his organisation pay both the annual leave loading and the shift penalties to shift workers and others pay only the higher of the two. 285 As to Cl 36 Conferences, Training and Study Leave, the Union notes that whilst Glynn J refused such a claim when making the first award (see judgment 6 August 1990 at p123), her Honour recognised then that on the evidence before her, employers were in fact providing such leave on a discretionary basis. 286 It is submitted by the Union that its application seeking a provision in respect of study and conference leave has regard to the requirement which on Ms Peters evidence, for example, has increased significantly since the existing award was made, for employees to attend industry training sessions as part of their employment which is often a condition of funding. The evidence also revealed the need to encourage training and the obtaining of formal qualifications as a feature of the welfare services industry today. 287 It is further submitted by the Union that the Commission in considering whether to prescribe an industry wide award standard in respect of education leave, should have regard to the fact that such provisions are to be found in counterpart awards in all other states except Tasmania and South Australia and are a feature of the various enterprise agreements in evidence before us. 288 In addition, the Union contends that such a provision would have little or no adverse effect on the industry in New South Wales given the evidence of almost all of the employer witnesses to the effect that well developed administrative policies in respect of education leave were already in place and working well. It is not as though the provisions sought creates an entitlement to education leave, argues the Union. It is rather that it creates a facilitative provision based on employer approval for such matters to be recognised. 289 The employers do not accept this arguing instead that the provision sought would if granted be interpreted in such a way as to unfairly compel organisations, large and small, to provide paid education leave within and outside normal working hours virtually at the election of the employee. In this way, employers would be denied the discretion which now exists to decide on a case by case basis whether the mutual interests of the employee and the employer would be served by the provision of the study assistance and if so, to decide what form of assistance can and should be provided in individual cases. 290 Mr Godfrey for Jobs Australia further submits that the Commission should give no weight to the Union argument regarding the existence of study leave provisions in interstate awards because each of those containing such provisions are awards of the Australian Industrial Relations Commission which has found study leave and conference leave to be non-allowable matters for then purpose of s 89A of the Workplace Relations Act 1996. 291 Mr Godfrey submits that whilst the awards in question or most of them, have yet to complete the simplification process, item 50(1) of schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996 deems them to have ceased to have effect in mid 1998 to the extent that they provide for matters other than allowable award matters. 292 We note in this regard that while we were not taken to a particular decision of the federal Commission, no real issue was taken by any party to the thrust of Mr Godfrey's submission. The Union presses its claim for a study and conference leave provision as an integral part of the award laying down a framework for career development and employment. It submits that the employer perception of being universally compelled to approve applications for study leave should be viewed in the light of the proposed sub-clause (8) that seeks to prevent unreasonable refusal. 293 The Union argues that this provision and the clause generally, clearly reserves to employers the right of refusal in reasonable circumstances consideration of which may include for example, the size of the employer and/or the purpose for which the leave is sought. For example, a social welfare assistant working in residential care who seeks leave to embark upon a Law degree course, would not be unreasonably refused such an application. 294 The proposed Cl 45 Motor Vehicle Allowance seeks to vary the current rate of 46 cents per kilometre by prescribing a range of rates from 42.1 cents per kilometre for vehicles under 1600cc engine capacity, 58.8 cents between 1600cc-2700cc to 63.2 cents per kilometre for vehicles over 2700cc engine capacity. The claim is put by the Union on the basis of updating the existing award to reflect more appropriate rates prescribed by other awards presently before us. 295 The relevant provisions of those awards were not referred to in oral evidence nor reduced to summary or tabular form and are somewhat difficult for us to discover without further evidence given, for example, that the Victorian Social and Community Services (Interim) Award makes reference to "mileage rates prescribed from time to time by the Public Service Board of Victoria" (Cl 25(a) of that award). The employers, noting the paucity of evidence and submissions in justification of this claim, argue that the existing provision is unambiguous, simple to administer, has not been shown to be unreasonable and should be preserved. 296 As to the proposed Cl 49 Employee Counselling & Disciplinary Procedures, the Union submits that such a clause is neither unusual nor out of the ordinary and is properly to be seen as an adjunct to the dispute settling procedures carried over in substance from the existing award. The prescription sought contains what the Union submits are minimum fundamental obligations in respect of managing unsatisfactory work performance. These include:

[319]

297 The employers argue that evidence called in their case establishes the widespread awareness of such obligations and the existence of administrative policies and practices in respect of managing unsatisfactory work performance which meet those obligations and which make award prescription in that regard unnecessary. There was no evidence to demonstrate that disputation or the number of unfair dismissal applications in the social welfare industry is abnormally high and in that regard the rights of employees who are wrongly treated by employers are adequately protected by industrial legislation and the case law. 298 The employers further contend in reliance upon a Full Bench decision in Rich River Golf Club Ltd v Power [1995] NSWIRComm 75 that they would be prejudiced by the inclusion of the clause proposed by the Union. In that case the Commission confirmed a finding at first instance that failure on the part of an employer to observe the award requirement of ensuring an opportunity of representation for an employee being disciplined introduced an element of procedural unfairness into the subsequent dismissal that rendered it unjust and deserving of remedy. 299 As we understood the employers argument, the Commission's observation in that decision to the effect that but for the employer's clear breach of the award requirement or more precisely, but for the existence of the award requirement, the failure on the part of the employer to ensure an opportunity to be represented may not have been fatal to the decision to dismiss, demonstrates that the existence of such an award provision is prejudicial to employers. 300 It is further submitted by the employers that the terms in which proposed Cl 49 is expressed made it unclear as to whether an employer that has an existing and more detailed procedure already in place would be obliged to put it aside in favour of the award prescription. 301 Finally in respect of this issue, the Union points to the desirability of removing disciplinary matters from their place in the existing award (viz. Cl 34 Grievance and Dispute Settling Procedure) and dealing with them specifically and separately from other kinds of disputes in a way which establishes clear and consistent standards of procedural fairness for employees the subject of disciplinary action.

[320]

Conclusions 302 We would observe, in considering the Union application, the totality of the evidence and the countervailing arguments on either side of the record, that there are some important differences between these proceedings and the earlier proceedings before Glynn J. 303 Firstly and self evidently, these are not first award proceedings although as was observed at the outset our approach will of necessity, be a restrained and cautious one in much the same way as is the generally accepted and conventional approach to the making of a first award. This is so because of the faltering of momentum (against which Glynn J warned) in bringing conditions of employment regulated by the existing award progressively within standards generally accepted in industry. 304 There could be no clearer evidence of that faltering of momentum than the fact that this application is the first and only significant attempt in the decade since the award was made to seek the general improvements that were then envisaged. Conversely, when the first award was made, it was made on the clear and unambiguous basis that employees in this industry should eventually have the benefit of standard conditions and that such benefits should be phased in over the foreseeable future. In our view, that and other considerations make this a special case. 305 Further, although the issue of funding has loomed large in these proceedings as in the earlier proceedings, there was no appearance before the Commission by those who represent the various sources of funding and related to that aspect of difference, is the evidence of numerous interstate social welfare industry awards being made - usually in the federal jurisdiction - with wages and conditions in advance of those prescribed by the current award here in respect of which the only available inference is that the general public interest concerns would have been equally applicable. 306 Further yet, the Industrial Relations Act of this State, in providing a framework for the conduct of industrial relations which is fair and just, places increased emphasis on reform taking place at the enterprise level, a feature which recognises that tribunals will be reticent at overly regulating but at the same time, which recognises the role of awards in operating as a safety net. Taken together with the situation which is demonstrated on the material before the Commission, that this award in many of its existing provisions does not provide usual standards, we are thereby led to the conclusion that this award does not operate as an adequate safety net. 307 In the light of those considerations and having due regard to the countervailing considerations going to possible funding shortfalls, potential for service level reduction and the like, we consider the appropriate course is to take further steps aimed at bringing this award into line with general standards but not to complete that process in these proceedings. 308 We also consider that there is scope for a limited but measured development of the existing classification structure but recognising that the granting of the hours claim, which we will do, is in effect to grant a prima facie 5 per cent increase in hourly rates, this will have of necessity, a moderating influence on our approach to the classification structure and pay rates claims. 309 In that regard, we would observe that the Union has chosen to conduct its case without a particular or close evidentiary examination of the work of individual employees or groups of employees and with a somewhat unclear explanation of the origin of the rates of pay claimed. 310 We nonetheless consider the evidence sufficiently persuasive to warrant an appropriate albeit modest extension to the classification structure and a similarly appropriate increase in rates of pay. 311 In that way, we consider that what we have decided will involve the fixing of just and reasonable rates consistently with the requirements of s 10 of the Industrial Relations Act and will ensure that the parties are well placed going forward to actively pursue negotiated, or if necessary, arbitrated outcomes in respect of completing the process as and where appropriate, of bringing the award into line with general standards. 312 We are persuaded that this is a special case that warrants the granting if not in whole then in significant part, of the Union's claim. In that regard we note in addition to what has been observed earlier that a Full Bench of the Australian Industrial Relations Commission recently expressed a view as to what constitutes a special case within the meaning of the wage fixing principles. In Metal, Engineering and Associated Industries Award, 1998 - Part 1 (Print T4991, 29 December 2000) the Full Bench said: "In our view, "special case", as used in Principle 10, is not a self defining term. The identification of a special case is reserved to a Full Bench level of determination. It is not necessary or desirable to attempt to paraphrase that requirement into a set of principles, or a code of considerations for general application. A case by case approach is necessary. The circumstances of the Award and the industry in which it operates are of fundamental importance in determining whether the requirement is satisfied. In this matter, the special case requirement entails that the AMWU has the task of satisfying the Commission that there are sufficiently compelling reasons for awarding, as minimum rate conditions to apply across the industries covered by the Award, the substantive changes that it seeks. Should the AMWU satisfy that requirement, it will, in our view, have made out a special case in the circumstances applying to the Award."

[346]

336 Returning then to other aspects of the claim, we consider the case for reduction of hours and the establishment of a prescribed span of hours between 6.00am and 8.00pm has been made out and will grant the Union claim accordingly recognising again that in this and other respects, our decision will have the effect of affording, or more closely affording, employees in the industry the benefit of standards generally applicable. 337 In the same or in a similar way, we consider the claim for an improved overtime prescription consistent with general standards should be granted and we do so accordingly with the provisio that the improved overtime prescription be, as the employer parties submit, phased in over a reasonable period in the interests of minimising the cost impact and secondly, that it be at the standard most commonly applying in the industry in other States and territories, namely time and a half for the first three hours and double time thereafter. As to the phasing in arrangements, we consider there ought be a period of 12 months following the making of the new award within which employers will be liable to pay for overtime at the rate of time and a quarter for the first three hours and time and half thereafter. Beyond that time, employers will be liable to pay the full quantum of the improved prescription to which we have referred above. 338 As to the time in lieu claim we adopt the employers' position in the interests of minimising the cost impact of improvements generally and will include a clause in the new award in the model terms prescribed in the State Personal/Carer's leave Case 1998. This will have the effect of affording time in lieu by agreement and on an hour off for each hour worked basis. 339 In the case of the shift work claim we accept the Union submission absent any contradiction from the employer parties, that the provision sought is merely a modernised version of the status quo omitting, for example, the phasing in arrangements which applied from the time of making the first award in 1991. We will grant the claim accordingly. 340 In respect of the on-call allowance we note the employer acquiescence in the inclusion of such a provision albeit in the form of a flat amount per 24 hour on call period rather than the payment of an allowance by reference to the employee's hourly rate of pay as claimed by the Union. We note further the employer reliance in that regard on various awards of this Commission (Exhibit 20) and further that the flat amount approach would enable the Commission to move on a limited basis given the previously unregulated nature of this particular issue and more generally increased costs associated with the remainder of the Union application. In such circumstances, we consider that the new award should include a clause prescribing a flat amount of $15 per 24 hour on call period or part thereof. 341 As to the Union claim for an award prescription in respect of excursions, we note as with other aspects of the Union application, that employers by and large do not oppose the inclusion of such prescription but in the interests of minimising the cost impact, seek a moderate approach to the formulation of such a prescription. We consider there is merit in that approach and further that such an approach is adequately reflected by the broad thrust of the employer submission in this regard (see Exhibit 13 and associated submissions). In this regard, we will require the Union to formulate a prescription for inclusion in the new award which will entitle employees engaged on excursions to the payment of a maximum of 8 hours at ordinary time rates for the time worked between 8am and 6pm each day plus a sleepover allowance where applicable plus overtime or, by agreement, time in lieu thereof, for time worked between 6am and 8am and between 6pm and 10pm Monday to Sunday inclusive. We consider this to be an appropriate approach and one that for the present at least, represents a reasonable balance between the competing positions of the parties before us. 342 In respect of the annual leave loading claim or rather the particular shift work aspect of it which is in dispute, we consider the employer argument is supported by the settled authorities and should therefore succeed. To the extent that the authorities establish the standard by which shift workers are paid whilst on annual holidays, we consider that standard should apply and be applied to workers in this industry. We find it unlikely on the material before us in these proceedings that there would have been, at least on the part of the employers, an intended departure from that standard when the award was made in 1991 and to the extent that there may be some ambiguity about the existing provisions, it should be removed in the new provisions in favour of a prescription which is unambiguous and which reflects the standard. In this regard, we will again require the parties to confer with a view to formulating a prescription for inclusion in the award that adequately reflects that standard. 343 As to the claim for a conference, training and study leave provision there is, as we are disposed, little which would lead us to conclude that employers in this industry are not alive to the wisdom of encouraging and assisting their employees in being and remaining appropriately skilled and qualified in order to more effectively carry out their work functions. On the contrary, the employer witnesses almost without exception spoke of well developed administrative practices in this regard that are already in place and working well. Conversely, the Union called no evidence to demonstrate that employees were suffering undue hardship as a result of being compelled to attend conferences, training courses and seminars nor was there evidence of unreasonable refusal by employers of requests be employees for assistance with course costs, time away from work and the like. We are cognisant of the very real concern expressed by employers that the education leave provision, if granted, would be capable of being interpreted or at least perceived in such a way as to almost compel organisations, large and small, to provide study assistance and in that way would disturb the existing discretionary arrangements which have been developed over time and which, on the evidence before us, are working well. We do not consider this to be an area into which the Commission should intervene at this stage without persuasive evidence. The claim for conference, training and study leave is accordingly refused. 344 In respect of the claim for an improved motor vehicle allowance provisions, we note that the claim is pressed on the basis of updating the existing award to reflect what are said by the Union to be more appropriate rates prescribed by other awards presently before us. Apart from the difficulty to which we have earlier alluded in discovering from the material before us precisely what is prescribed elsewhere, there is no evidence upon which we could safely conclude that the existing rate of 46 cents per kilometre is not an appropriate rate. This is particularly so when it is considered that the parties initially agreed to a single rate per kilometre when the award was made and that the rate has been progressively adjusted in line with State Wage Case decisions since then. We are sympathetic to the employer argument in respect of this claim to the effect that the existing provision is unambiguous, simple to administer and not demonstrably unreasonable. The claim for variation of the motor vehicle allowance is refused accordingly. 345 As to the proposed counselling and disciplinary procedures clause we again observe that there is little in the evidence that would lead us to conclude that employers in this industry or a significant portion of them conduct themselves in such a way as to warrant award regulation in this regard. There was no evidence, for example, of disputation or of an abnormally high number of unfair dismissal applications or decisions of the Commission that might point to unsatisfactory industry practices in this regard. Conversely, there was evidence from the employer witnesses of widespread awareness of obligations to afford procedural fairness and to otherwise observe the principles of natural justice in respect of managing unsatisfactory work performance. Further we consider that there is merit in the employers' argument that the rights of employees who are wrongly treated by employers are adequately protected by industrial legislation and the case law. We do not consider the proposed award prescription in this regard is warranted and the claim is refused accordingly. 346 Finally, in respect of the claim for an increased First Aid Allowance, we again observe that it is unexplained as to its calculation, is unsupported by evidence or submissions, is expressly opposed by one of the employer parties and unanswered by others. There is nothing in the material before us upon which to conclude that the existing allowance, which has been progressively adjusted in line with State Wage Case decisions, operates in such a way as to be unfair or unreasonable. The claim for increase in the First Aid Allowance is refused accordingly.

[348]

348 We now turn to the operative date of the award and, to the extent appropriate, particular sections or parts of it. Important considerations are that the implementation of the award as a whole will be likely to require significant administrative arrangements for employers and that translation of employees to the new Grades 5 and 6 will require additional arrangements that are likely to require further time. There is, however, no reason why the new salary levels for Grades 1 to 4 should not be paid from the commencement of the award which will operate from the beginning of the first pay period to commence on or after 28 November 2001. 349 Accordingly, the award shall include a provision incorporating the following dates for operation of the award and particular sections of it: (a) The award shall commence from the beginning of the first pay period to commence on or after 28 November 2001 and expire on 28 February 2003. (b) The rates of pay awarded for Grades 1 to 4 shall be paid from the commencement of the award. (c) Except for: (i) the implementation of Grades 5 and 6; (ii) payment of the increases referred to in (e); and (iii) payment of overtime at its full quantum all other alterations to pay and conditions shall apply from the first pay period to commence on or after 12 December 2001. (d) Grades 5 and 6 shall be implemented and payments shall be made to relevantly affected employees from the first pay period to commence on or after 28 May 2002. (e) The second salary instalment referred to in this decision should be paid from the beginning of the first pay period to commence on or after 28 November 2002. 350 The Full Bench accordingly makes a new Social and Community Services Employees (State) Award in terms of the matters agreed between the parties and incorporating the decisions made by the Full Bench as to salaries and conditions. The award shall be operative from the dates earlier specified. 351 The Union is directed to file and serve within 14 days of today a document setting out the terms of the draft award it submits should be made to incorporate the terms of this decision. The application is listed before the Commission at 9.30am on Friday 7 December 2001 for the purpose of the formal making of the award. The parties are to confer upon service of the draft award and the applicant shall advise the Industrial Registrar by 4 p.m. on Tuesday 4 December 2001 of any issues of a drafting nature or the like which the Commission will be requested to consider on Friday 7 December 2001. Subject to the matters to be dealt with at that time and the matters in respect of which the Commission requires report in approximately 12 months time, for which we fix 14 November 2002 at 10am, these proceedings are concluded.

At a glance

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Before

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Judgment (349 paragraphs)

Cases Cited (7)

Cited By (10)