Australian Workers’ Union of Employees, Queensland v Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers & Ors; Queensland Council of Unions v Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers & Ors [2001] QIRC 115 (2001) 167 QGIG 350

350 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 August, 2001 ########################################################################################################################## # QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 287 – application for declaration of general ruling s. 288 – application for declaration of policy Australian Workers’ Union of Employees, Queensland AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No. B797 of 2001) And Queensland Council of Unions AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others (No. B904 of 2001) PRESIDENT HALL VICE PRESIDENT LINNANE COMMISSIONER BECHLY 1 August 2001 Application for Declaration of General Ruling – Submission for flow on of wage increase decided by AIRC – State of economy – Application granted. Application for modification of statement of principles granted in part. DECISION On 2 May 2001 a Full Bench of the Australian Industrial Relations Commission published it’s decision in what is colloquially known as the 2001 Living Wage Case Claim by the Australian Council of Trade Unions. The claim was for: • a $28.00 per week increase in award rates of pay up to and including the equivalent of Skill Level Classification C10 in the Metal, Engineering and Associated Industries Award 1998 – Part 1 and a 5.7% increase in award rates of pay above that level: and • an appropriate increase in allowances.”. The claim was partially successful. By a decision of 2 May 2001, print PR002001, the Full Bench allowed: • a $13.00 per week increase in Award rates up to including $490.00 per week; • a $15.00 per week increase in award rates above $490.00 per week up to and including $590 per week; and • a $17.00 per week increase in award rates above $590.00 per week; and • the federal minimum wage was increased by $13.00 per week to $413.40 per week. On 2 May 2001 The Australian Workers' Union of Employees, Queensland, filed an application by which it sought a Declaration of a General Ruling pursuant to s. 287 of the Industrial Relations Act 1999 flowing wage increases allowed by the decision into the Queensland industrial relations system. Additionally, pursuant to s. 88 the organisation sought a Statement of Policy adjusting the Queensland Minimum Wage for workers regulated by industrial instruments from $400.40 per week to an amount of $413.40 per week for full-time adult employees and for junior, part-time and casual employees, proportionate amounts. (In its original form the application also sought a Statement of Policy modifying clause (2)(c) of the draft superannuation clause of the Declaration of Policy at 132 QGIG 1105 at 1109. That claim was withdrawn (by leave) on the last day of hearing. It is, as we understand it, common ground that the clause should be revisited in the course of the award review process). On 23 May 2001 the Queensland Council of Unions (QCU) filed an application in similar terms. [The Queensland Council of Unions’ application also sought a Declaration of Policy pursuant to s. 288 varying the Commission’s “Statements of Principles” (about wages). We shall deal with that matter later.] By consent of the parties the two applications were joined on the papers. The Restaurant and Caterers Employers Association of Queensland, Industrial Organisation of Employers opposed the application. The case made in opposition to the application was based on material which went to the sector of industry within which that employer organisation has an interest. No attempt was made to press an application for exemption pursuant s. 287(4). Granted the legislative opportunity to seek exemption, we are unable to accept that it is consistent with s. (3)(a) and (f) or indeed, fair and equitable, to deny the benefit of a Declaration of a General Ruling to all employees in order to protect the interest of some employers within a particular industry sector. We reject the submission of The Restaurant and Caterers Employers Association of Queensland, Industrial Organisation of Employers. -- 1 of 3 -- 10 August, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 351 As a matter of formality the Queensland Mechanical Cane Harvesters Association Union of Employers and the Queensland Cane Growers’ Association of Employers opposed the applications. Having articulated that position the Queensland Mechanical Cane Harvesters Association Union of Employers sought to develop submissions about exemption of Division 2 of the Sugar Industry Award – State (i.e. the field sector) until at least 1 January 2002. In the interests of expeditious determination of the core issues we have deferred the hearing of those submissions until 22 and 23 August in Proserpine. The Queensland Cane Growers Association, Union of Employers does not seek exemption of the field sector of the sugar industry. It seeks to press a claim for any individual cane grower seeking exemption because of incapacity to pay in that grower’s particular circumstances. We shall hear any such applications whilst at Proserpine on 22 and 23 August 2001. We reserve 24 August 2001 for any additional applications. The Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers (QCCI) developed a counter proposal. The counter proposal was that the applications should be rejected and that the Declaration of a General Ruling grant a flat increase of $10.00 per week. That counter proposal attracted significant support. In particular, it was supported by the Australian Sugar Milling Association, Queensland, Union of Employers; Australian Mines and Metals Association (Inc.) Queensland Branch; Queensland Hotels Association, Union of Employers; The Baking Industry Association of Queensland – Union of Employers and Local Government Association of Queensland (Incorporated). For fullness, we add that the Australian Industry Group, Industrial Organisation of Employers (Queensland) and Retailers’ Association of Queensland Limited, Union of Employers did not oppose the applications. The State of Queensland supported the applications as they related to the flow on of the decision of the Australian Industrial Relations Commission. At the core of QCCI’s submission is the proposition that the Queensland economy is not performing as well as the Australian economy. The materials relied upon by QCCI seem to us to establish that in the immediate past that proposition was entirely correct. However, there is room for disputation as to the future. Queensland Treasury, for example, is of the view that Queensland will out-perform the Australian economy in terms of economic growth during the period 2001-2002. That forecast derives some support from the materials gathered together in QCCI’s publication “Queensland Pulse” of June 2001. There is also room for academic debate about the impact on employment of wage increases at the lower end of the wage scale. Certainly there is a body of reputable opinion that such increases do not fuel wage inflation. We also add that we consider that QCCI’s expert witness thought that the wage increases which are sought are to be general wage increases. Because they are to be absorbed in accordance with the Statement of Principles the increases will actually impact upon a small percentage (estimated by the Crown to be 25 %) of the State workforce. In dealing with a comparable application and counter proposal on 8 August 2000 the Full Bench then constituted by President Hall, Vice President Linnane and Commissioner Edwards observed:– “It is the submission of the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers that the wage increase should be $8 per week, not $15 per week and the allowances should be increased by 1.7% not 3.1%. The submission is based on the circumstance that the Queensland economy is not performing as well as the Australian economy overall. No materials were put in support of the submission. We have considered detailed materials relied upon by the Queensland Government, which supports the applications. The material suggests that the Queensland economy can support the increase. (We note that in the proceedings before the Australian Commission the Queensland Government, amongst others, supported a $20 per week increase). It cannot reasonably be expected that all state economies will at times perform in the same way. The Australian Industrial Relations Commission takes account of circumstances in all states and is aware of a likelihood that its decision will flow into particular state industrial systems. It is obviously aware also that its awards may marginally impact differently in different states. There will be times when the Queensland economy outperforms other states and vice versa. As long as the discrepancies are not large and consistent, we consider that the proper course is to take the broad view and flow the Federal increases into the Queensland system.”. We share that view. The discrepancy between the performance of the Queensland economy and of the Australian economy is not large. Low paid Queensland workers under federal awards have benefited from the decision of the Australian Industrial Relations Commission. The state tribunal in each of New South Wales, South Australia and Western Australia has imported the federal decision into the (relevant) state system. Given that only those employees who have not secured increases under other arrangements will benefit, the straightened circumstances of those at the lower end of the proposed scale and the need to maintain some measure of nexus between actual award rates and established relativities, we consider it proper to grant the increases sought. The date of operation will be 1 September 2001. We shall also make a Statement of Policy to give effect to the application about the minimum wage. Once again the date of operation is 1 September 2001. We turn then to the alterations to the Statement of Principles which is sought by QCU. One. It is sought to amend clause 2 by the insertion of a new paragraph. The effect of the amendment would be to expressly permit a single Commissioner to deal with an application to include in an award provisions which are based on a certified agreement. The amendment sought is consistent with the decision of the Full Bench of 19 November 1999 which settled the principles after drawn out and difficult argument. That Full Bench had expressly rejected an employer submission that all applications to include in an award, provisions that are based on a certified agreement should go to a Full Bench, see 162 QGIG 359-362. The principles are about what a single Commissioner may do. With the benefit of hindsight we consider it prudent to amend clause 2 in order to avoid any suggestion that the rejected submission is somewhere to be found in the principles. That said, we share the view of the Full Bench of November 1999 that, early on the history of granting award amendments based on certified agreements, in the overwhelming preponderance of cases the matter will be referred to a Full Bench. Since clause 2 is to be amended in any event we shall take the opportunity to delete the reference to “subclause 1”. (There is no other subclause). Two. It is sought to amend the standard clause inserted into all amended awards to give effect to the Declaration of a General Ruling which will follow from this decision so that the clause refers to “arbitrated wage adjustments” rather than “safety net adjustments”. The Industrial Relations Act 1999 is certainly about arbitrated wage adjustments rather than safety net adjustments. However, some of the adjustments to which the clause refers occurred under the Workplace Relations Act 1997 and were properly referred to as safety net adjustments. We consider it prudent to revise the clause so that it refers to both earlier “safety net adjustments” and earlier “arbitrated wage adjustments”. Three. It is sought to alter the clause at Two above so that in the absence of express provision to the contrary, arbitrated wage increases flowing from a Declaration of a General Ruling will not be absorbed into award increases which have resulted from applications to amend awards under Principle 10. We are not disposed to grant that application. Principle 10 currently requires that at the time an award is amended to insert clauses based on a certified agreement the matter of absorption must be addressed and resolved. We can see no utility in establishing what has been described as a “default” provision to operate when there is not compliance with Principle 10. Such a provision may well create an expectation that it is the “norm” and found arguments that a party confronting the issue of absorption pursuant to Principle 10 is required to discharge an onus in order to successfully contend for any other clause. -- 2 of 3 -- 352 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 August, 2001 Four. In clause 5 it is sought to achieve conformity between the heading and the substantive provision by substituting the words “like decision” for the words “ a test case standard”. That seems to us to be an eminently sensible suggestion. The remaining changes are consequential upon the success of the application of the Declaration of a General Ruling and a Statement of Policy about the Queensland Minimum Wage. We propose to make those changes. Dated this first day of August, 2001. D.R. HALL, President. D.M. LINNANE, Vice President. R.E. BECHLY, Commissioner. Appearances:– Mr B. Swan, for The Australian Workers Union of Employees, Queensland. Mr J. Barrett and later Ms D. Ralston for Queensland Council of Unions. Ms S. McAuliffe and later Mr M. Guymer for the Retailers’ Association of Queensland Limited, Union of Employers. Mr. M.B. Smith for Queensland Chamber of Commerce and Industry Limited Industrial Organisation of Employers and for Queensland Fruit and Vegetable Growers Association. Mr C. Lentini for the Queensland Hotels Association, Union of Employers. Mr G. Trost for Queensland Cane Growers' Association Union of Employers. Mr T. Shipstone and later Mr E. Porter for the Crown. Mr K.J. Law for The Restaurant and Caterers Employers Association of Queensland Industrial Organisation of Employers. Mr B. Cox for the Hairdressing Federation of Queensland – Union of Employers. Mr S. Duane for the Queensland Master Hairdressers’ Industrial Union of Employers. Mr M. Cuthbertson for Australian Mines and Metals Association (Inc.) Queensland Branch. Ms H. Meggiorin for Minter Ellison on behalf of Grainco Australia Limited. Mr J. Powell for Queensland Mechanical Cane Harvesters Association, Union of Employers. Mr R. Beer for Local Government Association of Queensland (Incorporated). Mr R.J. McPherson and later Mr D. Pratt for Australian Industry Group, Industrial Organisation of Employers (Queensland). Mr S. Wiseman and later Mr G. Roberts for Baking Industry Association of Queensland – Union of Employers. Mr R. Cullen and later Mr M. Proctor for Australian Sugar Milling Association, Queensland, Union of Employers. Released: 1 August 2001 ########################################################################################################################## -- 3 of 3 --