On 15 June 2022, following the publication of the decision of the Minimum Wage Panel of the Fair Work Commission ("FWC") in Annual Wage Review 2021-22 [2022] FWCFB 3500 ("AWR 2022"), the Commission directed the Industrial Registrar, Ms Elizabeth Robinson, to issue a Summons to Show Cause to various industrial parties.
Consistent with State Wage Case 2020 [2021] NSWIRComm 1015 ("SWC 2020") at [24] and earlier decisions, the Commission considers the AWR 2022 to be a "National Decision" as provided under s 50 of the Act.
The Summons called upon the parties to show cause why the Commission should not take such action as it thought proper under Pt 3 of Ch 2 of the Industrial Relations Act 1996 (NSW) ("Act") and cl 4 of the Wage Fixing Principles as determined in the State Wage Case 2021 [2022] NSWIRComm 1014 ("SWC 2021").
The Summons also called upon the parties to show cause why the Commission should not take such action as it thought proper under Pt 3 of Ch 2 of the Act in respect of the FWC's decision Family and domestic violence leave review 2021 [2022] FWCFB 2001 ("FWC's FDVL Review").
The SWC 2021:
1. varied the Wage Fixing Principles ("WFP") and set out the revised WFPs at Annexure A to that decision.
2. set out at sub-cl 4.2 of the WFP, the 10 awards relevant to the Commission's consideration as to the making of one or more orders of the Commission pursuant to s 52 of the Act at that time.
On 6 April 2022, Commissioner Sloan made an order rescinding the Miscellaneous Workers' Home Care Industry (State) Award pursuant to subs 20(2) of the Act. The Full Bench has amended cl 4.2 of the WFPs to reflect this.
At a Directions Hearing before the Chief Commissioner on 22 June 2022, the Commission was informed:
1. by Mr Adam Dansie that the parties for whom he was appearing, Local Government and Shires Association of New South Wales ("LGNSW") and Aged and Community Services Australia ("ACSA"), had an interest in the following five awards:
1. Miscellaneous Workers' Home Care Industry (State) Award; [1]
2. Local Government (Electricians) (State) Award;
3. Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award;
4. Local Government Aged Disability and Home Care (State) Award; and
5. Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021
(excluding the Miscellaneous Workers' Home Care Industry (State) Award, collectively "Non-PSWP Awards"); and
1. by Ms Christina Ray that there were employees in the service of the Crown were covered by the following awards and subject to the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 ("Regulation") the Public Sector Wages Policy ("PSWP"):
1. Security Industry (State) Award;
2. Miscellaneous Workers' - Kindergartens and Child Care Centres, &c. (State) Award;
3. Health, Fitness and Indoor Sports Centres (State) Award;
4. Transport Industry (State) Award; and
5. Clerical and Administrative Employees (State) Award
(collectively "PSWP Awards"); and
1. the parties would confer about the matters in the Summons and report back to the Commission about the proposed programming of these matters.
At a Directions Hearing before the Chief Commissioner on 28 July 2022, the Chief Commissioner:
1. bifurcated the Commission's consideration of the AWR 2022 ("State Wage Case 2022") from the Commission's consideration of the FWC's FDVL Review. A new file was opened for the consideration of the FWC's FDVL Review (matter no. 2022/225309) which is consequentially not considered in this decision;
2. set down for consent hearing on 17 August 2022, the Non-PSWP Awards to ensure that the consideration of these awards took place prior to 1 September 2022;
3. set down for hearing on 8 September 2022, the five PSWP Awards; and
4. made various other directions.
Pursuant to s 50(3) of the Act and consistent SWC 2020 [2] , the Commission may make separate decisions in relation to the adoption of the National decision for different awards.
On 16 August 2022, prior to the hearing before the Full Bench on 17 August 2022, Mr Ed Yap of Unions NSW provided to the Commission an email:
1. notifying the Commission that the parties who had filed notices of appearances in relation to the four Non-PSWP Awards agreed that the Commission should adopt the AWR 2022 as a National decision;
2. attaching proposed short minutes of order in relation to variations to the Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award and the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021. All of the union parties to these awards, together with LGNSW and ACSA, signed the proposed short minutes of order. The Australian Federation of Employers and Industries, NSW Business Chamber Limited, and the Australian Industry Group New South Wales Branch did not file appearances in these proceedings. The Registrar has taken steps to remove these three parties from the relevant party cards.
At the hearing on 17 August 2022:
1. Ms Nasser on behalf of Unions NSW informed the Full Bench that the parties had not finalised proposed short minutes of order for the Local Government (Electricians) (State) Award but anticipated so doing "by the end of the week"; and
2. Mr Lopez and Mr Dansie of LGNSW informed the Full Bench that parties had not finalised proposed short minutes of order for the Local Government Aged Disability and Home Care (State) Award as matters regarding the traineeship wage rates were being considered by the parties;
3. the Full Bench was satisfied that the proposed short minutes of order in relation to variations to the Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award and the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 complied with the requirements of the Act. Accordingly, the Full Bench made orders consistent with the proposed short minutes of order:
1. adopting the Annual Wage Review 2021-22 [2022] FWCFB 3500 as a National decision in relation to these awards;
2. in respect of the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 increasing the rates of pay and pay-related allowances by 4.6% from 1 September 2022; and
3. in respect of the Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award by determining that:
1. the rate of pay for the 'Theatrical Employee Level 1' classification as described in clause 4(i)(a) of the award be increased to the National Minimum Wage, being $812.60;
2. the rate of pay for the 'Theatrical Employee Level 2' classification as described in clause 4(i)(a) of the award be increased by $40; and
3. all other rates of pay and pay-related allowances prescribed in the award be increased by 4.6%.
On 25 August 2022, Mr Yap, on behalf of Unions NSW, provided to the Commission an email attaching proposed short minutes of order for the Local Government (Electricians) (State) Award 2021 signed by, or on behalf of all of the relevant parties.
On 26 August 2022, Ms Nasser, on behalf of Unions NSW, provided to the Commission an email attaching proposed short minutes of order for the Local Government Aged Disability and Home Care (State) Award signed by all of the relevant parties.
The Full Bench was satisfied that the proposed short minutes of order in relation to variations to the Local Government (Electricians) (State) Award 2021 and the Local Government Aged Disability and Home Care (State) Award complied with the requirements of the Act. On 30 August 2022, the Full Bench made orders consistent with the proposed short minutes of order for the Local Government (Electricians) (State) Award 2021 and the Local Government, Aged, Disability and Home Care (State) Award provided by the parties including:
1. adopting the Annual Wage Review 2021-22 [2022] FWCFB 3500 as a National decision in relation to these awards;
2. in respect of the Local Government (Electricians) (State) Award 2021 increasing the rates of pay and pay-related allowances by 4.6% from 1 September 2022; and
3. in respect of the Local Government, Aged, Disability and Home Care (State) Award determining that:
1. the rate of pay for the "New Entrant" classification as described in clause 4(i)(a) of the award be increased to the National Minimum Wage, being $812.60; and
2. all other rates of pay and pay-related allowances prescribed in the award be increased by 4.6%,
from the first full pay period on or after 1 September 2022
At a Directions Hearing on 1 September 2022, in response to a request from Mr Yap for the hearing about the PSWP Awards set down on 8 September 2022 to be vacated and the PSWP Awards be listed for directions in the week of 19 September 2022, the Commission vacated the hearing date of 8 September 2022 and relisted the PSWP Awards for hearing on 14 September 2022.
Prior to the hearing in relation to the PSWP Awards listed on 14 September 2022, Ms Kira Kless provided to the Commission by email:
1. on 12 September 2022 proposed short minutes of order signed by the relevant parties for the Transport Industry (State) Award and Miscellaneous Workers' Kindergartens and Child Care Centres (State) Award; and
2. on 13 September 2022 proposed short minutes of order signed by the relevant parties for the Security Industry (State) Award and the Clerical and Administrative Employees (State) Award; and
3. On 14 September 2022 proposed short minutes of order signed by the relevant parties for the Health Fitness and Indoor Sports Centres (State) Award.
At the hearing on 14 September 2022 the Full Bench was satisfied that the proposed short minutes of order in relation to variations to the Transport Industry (State) Award, Miscellaneous Workers' Kindergartens and Child Care Centres (State) Award, the Security Industry (State) Award, the Health Fitness and Indoor Sports Centres (State) Award and the Clerical and Administrative Employees (State) Award complied with the requirements of the Act. The Full Bench made orders consistent with the proposed short minutes of order referred to in [16]:
1. adopting the Annual Wage Review 2021-22 [2022] FWCFB 3500 as a National decision in relation to the PSWP Awards; and
2. pursuant to s 52 of the Industrial Relations Act 1996 (NSW), increasing the rates of pay and pay-related allowances by 2.53% (or 3% inclusive of superannuation) from various dates as follows:
1. the Miscellaneous Workers' Kindergartens and Child Care Centres (State) Award and the Clerical and Administrative Employees (State) Award taking effect from the first full pay period on our after 16 December 2022;
2. the Transport Industry (State) Award taking effect from the first full pay period on our after 1 April 2023; and
3. the Security Industry (State) Award taking effect from the first full pay period on our after 16 April 2023 .
The parties were asked at the hearing on 14 September 2022 if they considered there should be any changes to the WFPs other than to cl 4.2. The parties noted the rescission of the Miscellaneous Workers' Home Care Industry (State) Award and that the date of effect of varied WFPs would require updating but submitted that the WFPs did not require any substantial changes. We agree and we have made the consequential amendments.
[2]
ORDERS
On 17 August 2022, the Full Bench made the following orders in respect of the Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award:
1. The Commission adopts the Annual Wage Review 2021-22 [2022] FWCFB 3500 as a National decision in relation to the Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award.
2. Pursuant to s 52 of the Industrial Relations Act 1996 (NSW), the rates of pay and pay-related allowances prescribed in the Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award be increased as follows:
1. the rate of pay for the "Theatrical Employee Level 1" classification as described in clause 4(i)(a) of the award be increased to the National Minimum Wage, being $812.60;
2. the rate of pay for the "Theatrical Employee Level 2" classification as described in clause 4(i)(a) of the award be increased by $40; and
3. all other rates of pay and pay-related allowances prescribed in the award be increased by 4.6%.
1. Provided that any increases resulting from Order 2 may be offset against any or both of:
1. any equivalent over award payment; and
2. award wage increases other than State Wage Case adjustments.
1. Order 2 takes effect on and from the first full pay period commencing on or after 1 September 2022.
2. To give effect to Orders 1-4, the Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award shall be varied in the terms stated in the annexures to the short minutes of orders filed by the parties.
On 17 August 2022, the Full Bench made the following orders in respect of the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021;
1. The Commission adopts the Annual Wage Review 2021-22 [2022] FWCFB 3500 as a National decision in relation to the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021.
2. Pursuant to s 52 of the Industrial Relations Act 1996 (NSW), the rates of pay and pay-related allowances prescribed in the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 be increased by 4.6% provided that any increases resulting from Order 2 may be offset against any or both of:
1. any equivalent over award payment; and
2. award wage increases other than State Wage Case adjustments
1. Order 2 takes effect on and from the first full pay period commencing on or after 1 September 2022.
2. To give effect to Orders 1-3, the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 shall be varied in the terms stated in the annexures to the short minutes of orders filed by the parties.
On 30 August 2022, the Full Bench made the following orders in respect of the Local Government (Electricians) (State) Award:
1. The Commission adopts the Annual Wage Review 2021-22 [2022] FWCFB 3500 as a National decision in relation to the Local Government (Electricians) (State) Award.
2. Pursuant to s 52 of the Industrial Relations Act 1996 (NSW), the rates of pay and pay-related allowances prescribed in the Local Government (Electricians) (State) Award be increased by 4.6% provided that any increases resulting from orders 2 and 3 may be offset against any or both of:
1. any equivalent over award payment; and
2. award wage increases other than State Wage Case adjustments
1. Order 2 takes effect on and from the first full pay period commencing on or after 1 September 2022.
2. To give effect to Orders 1-3, the awards listed shall be varied in the terms stated in the annexures to the short minutes of orders filed by the parties.
On 30 August 2022, the Full Bench made the following orders in respect of the Local Government Aged Disability and Home Care (State) Award:
1. The Commission adopts the Annual Wage Review 2021-22 [2022] FWCFB 3500 as a National decision in relation to the Local Government Aged Disability and Home Care (State) Award.
2. Pursuant to s 52 of the Industrial Relations Act 1996 (NSW), the rates of pay and pay-related allowances prescribed in the Local Government Aged Disability and Home Care (State) Award be increased as follows:
1. The rate of pay for the 'New Entrant' classification as described in clause 4(i)(a) of the award be increased to the National Minimum Wage, being $812.60.
2. All other rates of pay and pay-related allowances prescribed in the Local Government, Aged, Disability and Home Care (State) Award be increased by 4.6%.
1. Provided that any increases resulting from Order 2 may be offset against any or both of:
1. any equivalent over award payment; and
2. award wage increases other than State Wage Case adjustments
1. Order 2 takes effect on and from the first full pay period commencing on or after 1 September 2022.
2. To give effect to Order 2, the awards listed shall be varied in the terms stated in the annexures to the short minutes of orders filed by the parties.
On 14 September 2022, the Full Bench made orders consistent with the short minutes of order proposed by the parties in respect of the following awards (which are subject to the NSW Public Sector Wages Policy 2021):
1. Security Industry (State) Award;
2. Miscellaneous Workers - Kindergartens and Child Care Centres, &c. (State) Award;
3. Health, Fitness and Indoor Sports Centres (State) Award;
4. Transport Industry (State) Award; and
5. Clerical and Administrative Employees (State) Award
("PSWP Awards")
The Orders in respect of the PSWP Awards had the following effect:
1. the Commission adopted the Annual Wage Review 2021-22 [2022] FWCFB 3500 as a National decision in relation to the PSWP Awards;
2. pursuant to s 52 of the Industrial Relations Act 1996 (NSW), the rates of pay and pay-related allowances prescribed in the PSWP Awards set out in [20] be increased by 2.53% (or 3% inclusive of superannuation) provided that any increases resulting from the Orders referred to in (2) may be offset against any or both of:
1. any equivalent over award payment; and
2. award wage increases other than State Wage Case adjustments
1. the Orders referred to in (2) take effect:
1. for the Miscellaneous Workers' Kindergartens and Child Care Centres (State) Award, the Health Fitness and Indoor Sports Centres (State) Award, and the Clerical and Administrative Employees (State) Award from the first full pay period on our after 16 December 2022;
2. for the Transport Industry (State) Award from the first full pay period on our after 1 April 2023; and
3. for the Security Industry (State) Award from the first full pay period on our after 16 April 2023.
1. to give effect to Orders referred to in (2) and (3), the awards listed shall be varied in the terms stated in the annexures to the short minutes of orders filed by the parties.
The Full Bench makes the following orders effective today:
1. Pursuant to sub-s 51(1) of the Industrial Relations Act 1996, the Commission's Wage Fixing Principles are as set out in Annexure A to this decision which operate on and from today; and
2. The Principles set out in Annexure A to this decision supersede the Wage Fixing Principles set out in Annexure A to the State Wage Case 2021 [2022] NSWIRComm 1014.
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
Annexure A
The Full Bench makes the following Principles:
Preamble
1.1. These Principles have been established by the Industrial Relations Commission of New South Wales ("Commission") under the Industrial Relations Act 1996 ("Act"). These Principles recognise that most employees within the jurisdiction of the Commission are employed by the Crown in the right of New South Wales, a local government entity, or a statutory body representing the Crown. The Commission further recognises that the awards which will be made or varied by the Commission which will require consideration of these Principles by the Commission are primarily public sector awards.
1.2. The four primary aims of these Principles are:
1.2.1. to provide a framework under which wages and employment conditions in the government and local government sectors of New South Wales remain fair and reasonable in accordance with the requirements of the Act, and economically sustainable reflecting the obligation of the Commission to take into account the public interest and, in doing so, to have regard to the objects of the Act and to the state of the economy of New South Wales and the likely effect of the Commission's decisions on that economy;
1.2.2. to provide a framework that accommodates the interests of employers and employees and their representatives and ensures consistency of approach, certainty and predictability as to the principles that are to operate in respect of the fixation of wages and the setting of employment conditions;
1.2.3. to provide a framework in which all awards within the Commission's jurisdiction are maintained up to date in respect of rates of pay and pay-related allowances; and
1.2.4. to protect the low paid.
1.3. Movements in wages and conditions must fall within the following Principles.
When an Award may be Varied or Another Award Made without the Claim Requiring Consideration as an Arbitrated Case
2.1. In the following circumstances an award may, on application, be varied or another award made without the application requiring consideration as an Arbitrated Case under Principle 8:
a) to incorporate test case standards in accordance with Principle 3;
b) to adjust wages consistent with any relevant State Wage Case in accordance with Principle 4;
c) to adjust allowances and service increments in accordance with Principle 5;
d) where the application is consented to by the parties, in which case, it will be dealt with in accordance with the Act; and
e) to adjust wages pursuant to an application claiming that work has been undervalued on a gender basis in accordance with Principle 11.
Test Case Standards
Test case standards established and/or revised by a Full Bench of the Commission may be incorporated into an award in accordance with the Act. Where disagreement exists as to whether a claim involves a test case standard, those asserting that it does must make an application for a special case.
State Wage Case Adjustments
4.1. Following the completion of an Annual Wage Review by the Fair Work Commission, the Commission will issue a notice to show cause why that decision should not be flowed on to relevant New South Wales awards (as per 4.2 of this Principle) in the New South Wales industrial jurisdiction.
4.2. Unless the Commission determines otherwise, the following New South Wales awards:
(1) Security Industry (State) Award ("Security Industry Award");
(2) Miscellaneous Workers - Kindergartens and Child Care Centres, &c. (State) Award;
(3) Health, Fitness and Indoor Sports Centres (State) Award;
(4) Transport Industry (State) Award;
(5) Clerical and Administrative Employees (State) Award;
(6) Local Government (Electricians) (State) Award;
(7) Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award;
(8) Local Government Aged Disability and Home Care (State) Award; and
(9) Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021
(collectively "Relevant Awards") will be varied to include a State Wage Case adjustment by the making of one or more orders of the Commission pursuant to s 52, and where relevant, s 146C of the Act, subject to the following:
a) At the time when the award is to be varied to insert the State Wage Case adjustment (or a proportionate amount in the cases of part time and casual employees, juniors, trainees, apprentices, employees on a probationary rate, employees on a supported wage or with permits under s 125 of the Act), the following clause will be inserted in the award:
"The rates of pay in this award include the adjustments payable under the State Wage Case for the relevant year. These adjustments may be offset against:
(i) any equivalent over award payments, and/or
(ii) award wage increases other than State Wage Case adjustments."
b) By consent of all parties to an award, where the minimum rates adjustment has been completed, award rates may be expressed as hourly rates as well as weekly rates. In the absence of consent, a claim that award rates be so expressed may be determined by arbitration.
c) A party may seek a State Wage Case adjustment to an award other than the Relevant Awards. An applicant for such an adjustment will be required to provide evidence about the history of adjustments to the rates of pay in the subject award since 1991.
d) Unless the Commission determines otherwise, the State Wage Case adjustment will only be made in respect of rates in awards which have not been increased, other than by State Wage Case adjustments.
e) The State Wage Case adjustment may apply where the rates in an award have increased in accordance with the Work Value Considerations at 8.2(a) of the Arbitrated Case Principle and/or 11.16 of the Equal Remuneration Principle.
Adjustment of Allowances and Service Increments
5.1. Existing allowances which constitute a reimbursement of expenses incurred may be adjusted from time to time where appropriate to reflect relevant changes in the level of such expenses.
5.2. If an order is made pursuant to s 52 of the Act and pursuant to Principle 4.2. for a State Wage Case adjustment to be made to the applicable award, existing allowances which relate to work or conditions which have not changed other than by State Wage Case adjustments, including shift allowances expressed as monetary amounts and service increments, will be increased by the amount of the applicable State Wage Case adjustment.
5.3. Existing allowances for which an increase is claimed because of changes in the work or conditions will be determined in accordance with the relevant provisions of the Arbitrated Case Principle if there is no consent.
5.4. New allowances to compensate for the reimbursement of expenses incurred may be awarded where appropriate having regard to such expenses.
5.5. Where changes in the work have occurred or new work and conditions have arisen, the question of a new allowance, if any, will be determined in accordance with the Arbitrated Case Principle.
5.6. New service increments may only be awarded to compensate for changes in the work and/or conditions and will be determined in accordance with the relevant provisions of the Arbitrated Case Principle.
Award Review Classification Rate
6.1. The Award Review Classification Rate is the rate below which no full-time adult employee (excluding trainees, apprentices and employees on a supported wage or on a probationary rate) may be paid under the relevant award.
6.2. Unless the Commission determines otherwise, the Award Review Classification Rate is the rate of pay equal to the National Minimum Wage, as varied from time to time by the Fair Work Commission.
6.3. Where a classification in an award is below the Award Review Classification Rate the following process will apply on application:
a) The award will be listed for a mention at which the parties will report as to:
(i) how the Award Review Classification Rate will be achieved,
or
(ii) whether the award is obsolete.
b) The Commission may direct the parties to confer in order to set a program for an updating of the award to reflect the Award Review Classification Rate.
c) If the parties to the award do not appear at this mention referred to in (a) above, the Commission will request the parties to the award to show cause why the award should not be considered obsolete and rescinded under s 17(3) of the Act.
d) Where no agreement is reached with respect to the matters in (a) above, the Commission will re-list the matter in order to conciliate the issues in dispute.
e) If the attempt at conciliation is unsuccessful the Commission will arbitrate any outstanding issue(s).
Minimum Wage for Award/Agreement Free Employees
7.1 Subject to the provisions set down in Principle 4, State Wage Case Adjustments, and following the completion of an Annual Wage Review by the Fair Work Commission:
7.1.1 The Minimum Wage will apply to those adult employees, junior employees, employees to whom training arrangements apply and employees with a disability who are employed in the jurisdiction of the Commission and whose employment is not subject to the terms of an industrial instrument.
7.1.2 The minimum weekly rate of pay payable to an adult employee (as defined in s 5 of the Act) engaged on a full-time basis whose employment is not subject to the terms of an industrial instrument (as defined in s 8 of the Act) is the rate of pay equal to the National Minimum Wage, as varied from time to time by the Fair Work Commission.
7.1.3 The minimum hourly rate of pay payable to an adult employee (as defined in s 5 of the Act) engaged on a part-time basis whose employment is not subject to the terms of an industrial instrument (as defined in s 8 of the Act) is the rate of pay equal to the National Minimum Wage, as varied from time to time by the Fair Work Commission divided by 38.
7.1.4 The minimum hourly rate of pay payable to an adult employee (as defined in s 5 of the Act) engaged on a casual basis whose employment is not subject to the terms of an industrial instrument (as defined in s 8 of the Act) is the rate of pay equal to the National Minimum Wage, as varied from time to time by the Fair Work Commission divided by 38 plus any casual loading calculated in accordance with 7.1.8 hereof.
7.1.5 Unless the Commission otherwise determines, the minimum weekly rate of pay for junior employees, employees to whom training arrangements apply and employees with a disability (as defined by s 12 of the Fair Work Act 2009 (Cth)) engaged on a full time basis whose employment is not subject to the terms of an industrial instrument (as defined in s 8 of the Act) will be the rate of pay equal to the special National Minimum Wage as per s 294(1)(b) of the Fair Work Act 2009 (Cth), as varied from time to time by the Fair Work Commission.
7.1.6 Unless the Commission otherwise determines, the minimum hourly rate of pay for junior employees, employees to whom training arrangements apply and employees with a disability (as defined by s 12 of the Fair Work Act 2009 (Cth)) engaged on a part-time basis whose employment is not subject to the terms of an industrial instrument (as defined in s 8 of the Act) will be the rate of pay equal to the special National Minimum Wage as per s 294(1)(b) of the Fair Work Act 2009 (Cth), as varied from time to time by the Fair Work Commission divided by 38.
7.1.7 The minimum hourly rate of pay for a junior employee, employees to whom training arrangements apply and employees with a disability (as defined by s 12 of the Fair Work Act 2009 (Cth)) engaged on a casual basis whose employment is not subject to the terms of an industrial instrument (as defined in s 8 of the Act) will be the rate of pay equal to the special National Minimum Wage as per s 294(1)(b) of the Fair Work Act 2009 (Cth), as varied from time to time by the Fair Work Commission divided by 38 plus any casual loading calculated in accordance with 7.1.8 hereof.
7.1.8 Casual loadings (if applicable) for adult employees, junior employees, employees to whom training arrangements apply and employees with a disability who are award or agreement free will be adjusted in line with s 294(1)(c) of the Fair Work Act 2009 (Cth), as varied from time to time by the Fair Work Commission.
Arbitrated Case
8.1 General
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 an Arbitrated Case by a Full Bench of the Commission unless otherwise allocated by the Chief Commissioner. In determining such an application, the Commission will, subject to the relevant provisions of the Act, do so in accordance with the following criteria:
8.2 Work Value Considerations
a) Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification.
b) In addition to meeting the test in 8.2a), a party making a work value application will need to justify any change to wage relativities that might result not only within the relevant internal award structure but also against any external classification to which that structure is related. There must be no likelihood of wage leapfrogging arising out of changes in relative position.
c) The foregoing circumstances are the only ones in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this Principle.
d) In applying the Work Value Changes Principle, the Commission will have regard to the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed.
e) Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification, or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole.
f) The time from which work value changes in an award should be measured is the date of operation of the second structural efficiency adjustment allowable under the State Wage Case 1989 (1989) 30 IR 107 or the last work value inquiry or the date of a consent award where the parties have agreed pursuant to a consent award the wage increases reflect increases in work value, whichever is the later.
g) Care should be exercised to ensure that changes that were taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this Principle.
h) Where the tests specified in 8.2 a) are met, an assessment will have to be made as to how that alteration should be measured in monetary terms. Such assessment will normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work or the date of a consent award where the parties have agreed pursuant to a consent award that the wage increases reflect increases in work value.
i) The expression "the conditions under which the work is performed' relates to the environment in which the work is done.
j) The Commission will guard against contrived classifications and over-classification of jobs.
k) Any changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed, taken into account in assessing an increase under any other Principle of these Principles, will not be taken into account under this Principle.
l) In arbitrating an application made under this Principle, the Commission is required to determine whether or not future State Wage Case general increases will apply to the award.
8.3 Productivity and Efficiency Considerations
Productivity and efficiency measures that have delivered substantial costs savings and/or productivity or efficiency improvements or which have made a substantial contribution towards the attainment of the objectives of the employer (including departments and agencies of the Crown) in seeking to become more competitive and/or efficient, to which employees have made a significant contribution, may constitute the basis for increases to wages and salaries or improvements in employment conditions without the requirement to make out a special case, provided that the time from which such measures, savings or improvements are measured is the later of:
a) the date of the last adjustment awarded on account of productivity and efficiency; or
b) the date of a consent award where parties have agreed pursuant to a consent award that the wage increases incorporate an adjustment made under this Principle.
8.4 Special Case Considerations
A claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the Principles, and which is not based on work value and/or productivity and efficiency pursuant to this Principle, will be processed as a special case in accordance with the principles laid down in Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384 and the cases referred to in that case at [165]-[168].
8.5 Exclusions
8.5.1 Claims that are based substantially on comparative wage justice, attraction and retention or community standards will not be countenanced except as provided in Re Public Hospital Nurses (State) Award (No 3) [2002] NSWIRComm 325; (2002) 121 IR 28 and Re Health Employees Pharmacists (State) Award [2003] NSWIRComm 453; (2003) 132 IR 244.
8.5.2 There will be no double counting, provided however, that an Arbitrated Case claim may rely upon a cumulation of the factors referred to in these Principles.
Negotiating Principles
9.1 In order to encourage participation in industrial relations by representative bodies of employees and employers, avoid industrial disputes, provide a prompt and fair manner for their resolution with a minimum of legal technicality, and to encourage and facilitate co-operative workplace reform, the following processes will be followed with respect to claims under Principles 8 and 11.
9.2 In respect of the commencement of negotiations for a new award:
a) At least three months before the nominal expiry date of an award a party to the award must notify the Commission (where a major industrial case is contemplated pursuant to Practice Direction 8A) and the other parties to the award that it is their intention to enter into negotiations for a new award in respect of claims pursuant to Principles 8 and/or 11.
b) The parties to the award must begin negotiations as soon as is practicable after the notification has been given. In this regard, once a written claim has been made by one party on another party, negotiations must begin within 28 days unless it is agreed by the parties to commence negotiations at a later time.
c) Disputes about these procedures will be dealt with in accordance with the dispute resolution procedures in the relevant award applying to the parties to the dispute.
9.3 Subject to the provisions of the Act, and unless the Commission otherwise determines, a party is not entitled to prosecute arbitration unless the party has bargained beforehand in good faith.
9.3.1 In particular, parties are expected to have :
a) attended meetings they have agreed to attend and had been represented at the negotiations by persons capable of giving genuine consideration to the proposals of other parties and giving reasoned responses to those proposals; and
b) complied with agreed or reasonable negotiating or meeting procedures; and
c) disclosed relevant information for the purposes of negotiation; and
d) responded to each other's claims and/or counter claims in a reasonable and timely manner.
9.3.2 These good faith bargaining requirements do not require:
a) a party to make concessions during bargaining; or
b) to reach agreement on the terms that are to be included in the agreement.
9.4 The Commission may assist the parties in reaching agreement. The Commission may provide such assistance in respect of a dispute when a request is made by any party or on its own motion.
9.5 The Commission may exercise conciliation powers under the Act, and in that connection may, at the request of all the parties to a dispute, engage in a "Bluescope" process: see Construction, Forestry, Mining and Energy Union (New South Wales Branch) and Macquarie Generation [2009] NSWIRComm 160; Re Operational Ambulance Officers (State) Award [2008] NSWIRComm 168; Minister for Industrial Relations (Notification under s 167 of a dispute between BHP Billiton) and The Australian Workers Union [2002] NSWIRComm 378; Crown Employees (NSW Fire Brigades Permanent Firefighting Staff) Award 2008 [2008] NSWIRComm 174; and Re Crown Employees (Public Sector -Salaries 2008) Award [2008] NSWIRComm 193.
9.6 If conciliation fails, and the parties do not elect for the "Bluescope" process, the Commission may arbitrate consistent with the powers under the Act and these Principles.
Superannuation
10.1 An application to make or to vary an award which:
a) seeks a greater quantum of employer contributions than required by the Superannuation Guarantee (Administration) Act 1992 (Cth) ("the SGA Act"); or
b) seeks employer contributions to be paid in respect of a category of employee in respect of which the SGA Act does not require contributions to be paid;
will be referred to a Full Bench for consideration as a special case, unless otherwise allocated by the Chief Commissioner.
10.2 If an application is made that does not fall within Principle 10.1, the Commission will, subject to Principle 10.3:
a) make or vary an award by inserting a clause stating:
"Superannuation Legislation - The subject of superannuation is dealt with extensively by federal legislation including the Superannuation Guarantee (Administration) Act 1992 (Cth) ("SGA Act"), the Superannuation Industry (Supervision) Act 1993 (Cth); the Superannuation (Resolution of Complaints) Act 1993 (Cth) and s 124 of the Industrial Relations Act 1996. This legislation, as varied from time to time, governs the superannuation rights and obligations of the parties".
b) if appropriate, ensure that the award contains specification of an employee's earnings (e.g. "ordinary time earnings") which, for the purposes of the SGA Act, will operate to provide a "notional earnings base", and
c) if the award is to continue to prescribe a "flat dollar" amount of employer contribution, ensure that appropriate amounts are inserted so as to give effect to the levels of contribution required from time to time under the SGA Act.
10.3 The Commission may award provisions which differ from those in Principle 10.2:
(a) by consent; or
(b) in the absence of consent, by arbitration, provided the Commission is satisfied that there are particular factors warranting the awarding of different provisions. Such factors may include:
(i) the wishes of the parties;
(ii) the nature of the particular industry or enterprise;
(iii) the history of the existing award provisions;
(iv) relevant decisions of the Commission establishing superannuation principles;
and
(v) relevant statutory provisions.
10.4 Before any different provisions are awarded under Principle 10.3, either by consent or arbitration, the Commission must be satisfied, on expert evidence, that the award to be made will not contain requirements that would result in an employer not meeting the requirements imposed by the SGA Act.
10.5 Subject to s 124 of the Act, any specification of a fund will carry with it the obligation for an employer to pay contributions at such intervals as are required by the fund.
10.6 In determining applications as to specification of a fund, the Commission will, as appropriate:
a) ensure that any fund specified by it is one into which payment will meet the employer's obligations under the SGA Act;
b) have regard to the Superannuation Industry (Supervision) Act 1993 (Cth) ("the Supervision Act") which provides for the prudent management of certain superannuation funds and for their supervision by the Insurance and Superannuation Commissioner. In particular, the requirement with respect to equal representation of employers and members on what are called "standard employer sponsored funds" (Pt 9 of the Supervision Act) should be noted;
c) have regard to previous decisions of the Commission with respect to the specification of a fund or funds; and
d) have regard to relevant statutory provisions.
10.7 Due to the variety of existing award superannuation provisions and the impact and complexity of the SGA Act, all applications to the Commission may not be capable of being dealt with in accordance with the approach set out above. In any such case it may be appropriate for the application to be dealt with as a special case.
Equal Remuneration and Other Conditions
11.1 Claims may be made in accordance with the requirements of this Principle for an alteration in wage rates or other conditions of employment on the basis that the work, skill and responsibility required, or the conditions under which the work is performed, have been undervalued on a gender basis.
11.2 The assessment of the work, skill and responsibility required under this Principle is to be approached on a gender neutral basis and in the absence of assumptions based on gender.
11.3 Where the under-valuation is sought to be demonstrated by reference to any comparator awards or classifications, the assessment is not to have regard to factors incorporated in the rates of such other awards which do not reflect the value of work, such as labour market attraction or retention rates or productivity factors.
11.4 The application of any formula, which is inconsistent with proper consideration of the value of the work performed, is inappropriate to the implementation of this Principle.
11.5 The assessment of wage rates and other conditions of employment under this Principle is to have regard to the history of the award concerned.
11.6 Any change in wage relativities which may result from any adjustments under this Principle, not only within the award in question but also against external classifications to which the award structure is related, must occur in such a way as to ensure there is no likelihood of wage leapfrogging arising out of changes in relative positions.
11.7 In applying this Principle, the Commission will ensure that any alternative to wage relativities is based upon the work, skill and responsibility required, including the conditions under which the work is performed.
11.8 Where the requirements of this Principle have been satisfied, an assessment will be made as to how the undervaluation should be addressed in money terms or by other changes in conditions of employment, such as reclassification of the work, establishment of new career paths or changes in incremental scales. Such assessments will reflect the wages and conditions of employment previously fixed for the work and the nature and extent of the undervaluation established.
11.9 Any changes made to the award as a result of this assessment may be phased in and any increase in wages may be absorbed in individual employees' over-award payments.
11.10 Care should be taken to ensure that work, skill and responsibility which have been taken into account in any previous work value adjustments or structural efficiency exercises are not again considered under this Principle, except to the extent of any undervaluation established.
11.11 Where undervaluation is established only in respect of some persons covered by a particular classification, the undervaluation may be addressed by the creation of a new classification and not by increasing the rates for the classification as a whole.
11.12 The expression "the conditions under which the work is performed" has the same meaning as in Principle 8.2, Work Value Considerations.
11.13 The Commission will guard against contrived classifications and over-classification of jobs.
11.14 Claims under this Principle will be processed before a Full Bench of the Commission, unless otherwise allocated by the Chief Commissioner.
11.15 Equal remuneration will not be achieved by reducing any current wage rates or other conditions of employment.
11.16 In arbitrating an application made under this Principle, the Commission is required to determine whether or not future State Wage Case general increases will apply to the award.
Economic Incapacity
12.1 Any employer or group of employers bound by an award may apply to, temporarily or otherwise, reduce, postpone and/or phase in the application of any increase in labour costs determined under the Principles on the ground of very serious or extreme economic adversity. The merit of such an application will be determined in the light of the particular circumstances of each case and any material relating thereto shall be vigorously tested. Significant unemployment or other serious consequences for the employees and employers concerned are significant factors to be taken into account in assessing the merit of any application.
12.2 Such an application will be processed according to the Special Case Principle.
12.3 Any decision to temporarily reduce or postpone an increase will be subject to a further review, the date of which will be determined by the Commission at the time it decides any application under this Principle.
Transitional provisions
13.1 These Principles will apply to:
(a) any application to make or vary an award that is made on or after the date of commencement of these Principles; and
(b) any such application filed prior to that time where the hearing of the matter has not commenced as at the date of the commencement of these Principles (directions hearings will not count for this purpose).
13.2 These Principles will not operate in respect of awards that are still within their nominal term on the date these Principles commence to operate. In such cases the Principles which are Annexure A the State Wage Case 2020 (No 2) [2020] NSWIRComm 1079 ("the former Principles"), will apply. Subject to 13.1(b) the former Principles will apply to any application made in respect of such awards as well as any part-heard proceedings.
Duration
These Principles will operate on and from 26 September 2022 until further order of the Commission.
[3]
Endnotes
As set out in [5] this award has been rescinded.
At [25]
[4]
Amendments
27 September 2022 - Minor correction to cover page.
28 November 2022 - Inclusion of the Health, Fitness and Indoor Sports Centres (State) Award in paragraphs 16, [17] and 24(a) pursuant to cl 2.5 of the Industrial Relations Commission Rules 2009 and cl 36.17 of the Uniform Civil Procedure Rules 2005.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 November 2022
Legislation Cited (6)
("SGA Act"), the Superannuation Industry (Supervision) Act 1993(Cth)