(Commission's Own Motion) V Trades and Labor Council of Western Australia , Australian

2002 WAIRC 05595

100211068

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES(COMMISSION'S OWN MOTION)

APPLICANT

-v-

TRADES AND LABOR COUNCIL OF WESTERN AUSTRALIA, AUSTRALIAN MINES & METALS ASSOCIATION WA BRANCH, CHAMBER OF COMMERCE & INDUSTRY OF WESTERN AUSTRALIA AND THE MINISTER FOR LABOUR RELATIONS

RESPONDENTS

CORAMCOMMISSION IN COURT SESSION

CHIEF COMMISSIONER W S COLEMAN

SENIOR COMMISSIONER G L FIELDING

COMMISSIONER J F GREGOR

DATE DELIVEREDFRIDAY, 1 JUNE 2001

FILE NO/SAPPLICATION 752 OF 2001

CITATION NO.2002 WAIRC 05595

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STATE WAGE CASE

The Commission, constituted for the purpose of section 51 of the Industrial Relations Act 1979 (“the Act"), has concluded that there are no good reasons not to give effect to the National Wage Decision issued as the ‘Safety Net Review - Wages May 2001’ [Print PR 002001]. This position has been reached after hearing from parties pursuant to section 50(10) of the Act and after offering any other person with an interest the opportunity to be heard.

As was the case for the last State Wage Case, we propose to implement the Safety Net wage adjustments stipulated in the National Wage Decision, and to adjust the adult minimum award wage by way of General Order. We do so essentially for the same reasons as advanced by the Commission in Court Session in the last State Wage Case (see: (2000) 80 WAIG 3380 at 3381.) We note too that all of the persons and bodies who made submissions to the Commission on this occasion, other than the Chamber of Commerce and Industry of Western Australia, advocated that these adjustments be implemented by way of General Order, in the same way as occurred last year.

For the reasons advanced by the Commission in Court Session in the last State Wage Case we do not consider this process as being inconsistent with the National Wage Decision now under review, despite the valiant efforts of the agent for the Chamber to persuade us otherwise. The interstate comparisons to which he drew attention are of little assistance. Not only do they reveal a difference of approach amongst themselves, the relevant legislative provisions are materially different from the legislation in this State. It may well be that the General Order will result in amendments to some awards with little or no practical consequence as he suggests. However, it is not the case, as the agent for the Chamber suggested, that amendments to awards should be the sole province of the parties to those awards. Awards, unlike industrial agreements, are a creature of the Commission and, at least in the case of awards with common rule application, bind persons other than the parties to those awards. They contain minimum conditions of employment dictated by the Commission, rather than conditions of employment, in effect, selected by the parties as is the case for industrial agreements. If an award is no longer relevant the proper course is for it to be cancelled rather than held in suspense to be amended at the whim of the parties.

In giving effect to the National Wage Decision by General Order to operate from a common date the Commission considers that the objectives have been achieved of addressing the needs of lower paid employees unable to secure proper wage adjustments by enterprise bargaining, of maintaining an orderly regime of adjustments with minimal economic impact and of providing ample notice and certainty of wage outcomes for employers. This has been done without distraction from the focus on enterprise bargaining.

Under conditions appropriate to the implementation of Safety Net Wage Adjustments in this jurisdiction, we consider that it is unnecessary to provide for any modification to enable award variations prior to the expiry of at least twelve months since the last adjustment. There is no disadvantage in this regard to employees covered by state awards. Indeed the terms of the General Order giving effect t o the National Wage Case Decision from the first pay period commencing on or after 1st August 2001 assists in overcoming differences in the treatment of employees under state and federal jurisdictions when wage adjustments under the Australian Industrial Relation Commission’s decision has been available from 2nd May 2001.

We do not intend that the final paragraph of the Preliminary Statement issued by the Commission as a vehicle for these proceedings should be taken as an invitation for parties or others bound by common rule awards to seek to have the award amended in a way which leads to a variety of enterprise specific provisions within the award. Amendments of that nature are more appropriately dealt with by way of an enterprise specific industrial agreement or by an enterprise award. Ideally common rule awards should set minimum standards for the particular industry or industries to which they relate leaving detailed workplace arrangements for particular enterprises to be contained in other industrial instruments for example, in an industrial agreement.

The Australian Mines and Metals Association sought amendment to Principle 2(h) to permit not only a consent variation to an existing enterprise award but to allow for the parties to such an award to substitute the existing award by consent. We consider this to be in the spirit of the existing provision as it currently stands. However to make this clear the principle will be amended to provide:

“(h)a consent variation to a single enterprise specific award or a consent replacement award to a single enterprise specific award under Principle 10 giving effect to structural efficiency initiatives or productivity based arrangements.”

Nothing in this amendment circumvents the operation of Principle 11.

Finally two matters were raised by way of comment at the public hearing. These involve the application of the Test Case Standards Principle and amendments to allowances. Although recourse to Test Case Standards has been infrequent over the period of the operation of the Statement of Principles nevertheless it continues to be an integral part of the Wage Fixing System. In the absence of terms set out in statute, unlike the federal system, the scope of such matters will almost exclusively be limited to movements in community standards which have general application to awards of this Commission. In our view there is nothing to warrant an amendment to the Test Case Standard Principle as it presently stands.

As to the amendment of allowances pursuant to the application of the National Wage Case the observations made on behalf of the Trades and Labour Council are apposite. Where relevant the Commission will ensure that the bases upon which particular allowances are adjusted will be recorded to assist in programming future amendments and limiting the potential for disagreement.

In summary the Commission has decided that:

Awards, but not industrial agreements should be varied to provide for arbitrated safety net adjustments on the following basis:

(a)a $13.00 per week increase in award rates up to and including $490.00 per week;

(b)a $15.00 per week increase in award rates above $490.00 per week up to and including $590.00 per week; and

(c)a $17.00 per week increase in award rates above $590.00 per week.

The arbitrated safety net adjustments are to operate from the beginning of the first pay period commencing in or after 1st August 2001.

The adult minimum award wage is to be increased to $413.40 per week with effect from the beginning of the first pay period commencing on or after 1st August 2001.

The arbitrated safety net adjustments are to be absorbed under the same terms as was the case for the previous arbitrated safety nest increases.

The Statement of Principles – July 2000 should be varied to provide:

(a)Principle 2

delete subclause (h) and in lieu thereof insert:

(b)Principle 8 and Principle 9

to be varied to give effect to the arbitrated safety net adjustment and the Minimum Adult Award Wage respectively pursuant to the National Wage Decision.

(c)Principle 10

to be varied by deleting the final paragraph and inserting in lieu thereof the following:

“Provided that where parties to a single enterprise specific award apply to vary the award by consent or consent to a replacement award to give effect to structural efficiency initiatives or productivity based arrangements the Chief Commissioner may allocate the matter to a single Commissioner.”

The Minutes of a Proposed Order together with schedules amending awards in terms of the arbitrated safety net adjustment, increasing the adult minimum wage and the replacing of the Statement of Principles – July 2000 with a Statement of Principles - June 2001 will issue.

Speaking to the Minutes of Proposed Order will take place on Thursday 14th June 2001.

COMMISSION IN COURT SESSSION