93 In Nurses at [11] and [12] the Commission said:
We have taken the view that in considering each of the claims by the Association we should test it against what we consider to be the relevant principle. In that respect we note that the most recent authoritative discussion on the nature of a special case was that by the Full Bench in Re Social and Community Services Employees (State) Award (2001) 113 IR 119 and by a subsequent Full Bench in Re Operational Ambulance Officers (State) Award (2001) 113 IR 384. In Re Social and Community Services Employees (State) Award the Full Bench said:
[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 case section of the principles provides a mechanism whereby a claim for enhanced wages or conditions beyond those normally allowed under the principles may be brought before the Commission. The hearing of such a claim is to be conducted by the Full Commission (formerly the Commission in Court Session) thus emphasising the special nature of the case. It will be a matter for the Full Commission, after hearing the evidence and the submissions, particularly relating to the matters relied on to take the case "out of the ordinary" and thus to make it "special", to decide whether the claim, in part or in whole, should succeed.
Some of the cases brought under the special case 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 the 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 others they have not, and the Commission has made an arbitrated decision in the matter.
In our view the present application can fit comfortably into the class of case to which we have just referred, certainly so far as it seeks wage increases by way of award prescription…
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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 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 that the Carpenters case ( Re Carpenters and Joiners and Bricklayers, Construction (State) Award [1968] AR (NSW) 32) 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 ( Re Crown Employees (Administrative and Clerical Officers) (State) Award (No 2) (1993) 52 IR 243) 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 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.
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[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 (2002) 110 IR 247 at 266-267 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 the Award".
[313] At least for the purpose of these proceedings we do not consider the approach set out in that decision is materially different to the approaches laid down in the 1993 Crown Employees case and the 1996 Transport Industry case. Particular reference has, however, been made to the unique history of this award and we note in the recent Full Bench decision in Re Corrections Health Service Nurses' (State) Award (No 2) (2002) 112 IR 402 at par 31, that one of the factors which led to the Full Bench determining a special case had been established was the history of industrial regulation of the relevant employees.
After referring to the decision in the Social and Community Services Employees case and other decided cases, the Full Bench in R e Operational Ambulance Officers (State) Award stated:
[168] A number of principles may be distilled from these authorities bearing upon the contention advanced by the HAC. In order to make out a special case the applicant is required to make out that the variation is necessary to establish fair and reasonable conditions of employment and that the matter has special attributes. In doing so, the applicant is not required to meet a higher onus or standard of proof. The evidentiary requirements of a special case are no more strict than would apply in an ordinary matter, although the applicant to a special case will need to establish an adequate evidentiary foundation for those factors which are relied upon as showing the special case attributes of the case. Whilst respect will be afforded earlier decisions of the Commission or its predecessors, the conditions of employment earlier established need to be ultimately tested against the requirements of s 10 of the Act and that which we have discussed as being applicable to making out a special case. Where, as here, the former decision involved a test case, particular care should be taken to ensure that the factors relied upon by an applicant in support of its claim do not replicate factors which were taken into account by the Commission or its predecessors in establishing the general standard emerging from such case. In any event, the basis for and circumstances under which the conditions in the award were established will be significant considerations in the Commission's deliberations in order to assess whether the factors relied upon by the applicant in support of the case have already been accommodated by the earlier made award (in which case the present prescription may adequately compensate for those factors).