Australian Council of Trade Unions, Queensland Branch and Another v Queensland Confederation of Industry Limited, Union of Employers [1994] QIRC 603 (2994) 147 QGIG 1092

1092 QUEENSL AND GOVERN ME NT INDUSTRIAL GAZETTE [l 1 November, 1994 ##### # ###################### # ##### ##### ############# ### Q UEENS LAND IND USTRIAL RELAT IONS COMM ISSION Industrial Re /eaions Acr I 990 s.37 - appl ica ti on for variation of min i mum wage s. 38 - appl ication for declaration of a st atemen t of policy re safety net wage adju~tment Austral ian Cou ncil o f Trade Unions. Queensland Branch AND Queens land Confederation of Indu stry Limited. Union of Employe rs (No 11625 o(/9941 The Au stralian Workers' Union of Employees. Queens land AND Queensland Co nfedera ti on of Industry Lim ited, Union of Employers (Ao 8 782 ol 19941 CHIEF IND USTR IAL COMMISSIONER IIALL COMMISSIONERS EDWA RDS AND FISHER. I November I 994 State Wage Dec is ion february 1994 - Six Month Review - Impact on Pa id Rates - Interim Decis ion - Fconomy - Wage Principles - First $8 Arbi trated Safety Net Adju s tmen t - Second $8 Arbitrated Safety Net Adj ustmen t --Enterprise Increases - Operative Date - Separate App li ca tio ns - Declaration of Po licy -- Absorp ti on - Al RC Decision Sep tember J 994 - Jurisd iction - Matters Stood Over - Guaranteed Minimum Wage Deferred - Pre vious Stale Wage Case Decis ions. STATE WAGE CASE INTERIM DECISION We have before us an app li cation from The Austra li an Cou ncil of Trade Unions. Queensland Branch {ACTUQ ) and another from the Australian Workers· Union of E mp loyees. Queens land (A WU). Each seeks:-- S ta t em e nt of Poli cy I. T he iss uin g o f a St;1teme nt of Policy in re gard to wag e s afety net adju st me nt s s ubstantially in ac co rd with the S afet y Net Adj us tm e nts a nd Rev iew Decisi on relea sed by th e A us tralia n I ndu st r ial Relati o ns Co mmi ss ion ( AIR C) : Refer Print N o. L5300. S tatement of Pol icy 2. The iss uing of a s et of Wage Fix ing Princi11les s ubs tantiall y in a ccord with th e Re view of Wa ge Fix in g Prin c iples s ubs tantially in ac c ord with th e Revi ew of W age Fi xin g Pri nciples Decis ion iss ued b)' the Au s tralia n Indu s trial Rela tion s C omm iss ion : Print ~ o. lA700. Decl aration of Gen er al Ru lin g 3. Th e appli cati on of a De claration of Ge nera l Rulin g in regard to the Guarante ed Minimum Wa ge fo r adult emp loyees to be 11 November, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1093 adjus ted to S250 .00 p er wee k in the So uth Ea s te rn di vision of t he State fro m th e (a date to be determ ined }: and s ubsequ ently adjus ted to $258.00 p er wee k from the (a d a te to be d etermined ). The hearing of these appl ications was triggered by the dec ision of the State Wage Bench of I February 1994. The Bench dete.nnined to relist those applications in s ix months time 10 revi ew the impact of the de ci s ion particularly in the paid rates a rea. On the re listing and at the request of the parties, we decided that the. present "new·· ap plications were a more satisfactor) rev iew vehicle. The areumcn ts presented in respect of t he current c laims were many an d co;nplex. Were we to wait unt il ahle to respond to each of the issues raised during the course of the hear ing, a decision may have been dck1 ycd . As we ha ve a sett led view on ~certa in ma tters we have decided to proceed to issue an interi m d ecis ion d ea ling with them. All other matters sha ll be considered in a later dec ision. No inference should be dra,v11 from our decision not lo d ctc nnin e;; particu lar mallers now. ECO "iO ,YI Y A wide array of economic data was put to the Commission . Our consideration of th is material leads us to co nclude that the Queensland economy can support modest wage increases. We reject the Metal Trades Industry Associat ion of Australia. Q ueensland Branch, Union of Emp loyers (MTI:'\) submission that it is necessary a nd desi rab le to refer the matters of quan tum and timing of wage increases to a Com mittee of Experts for report to the Commission. In reaching this deci si on part icular attention was give n to businesses operating in droughi affected areas of the State. The primary s ubm issions concerning the impact or wage increases on rural b us inesses were m ade by Mr Mu ir of the Queens land Confederat ion of Industry Limi ted, Un ion of Employers (QCJ). He urged the Commission to amend the Incapacity to Pay Principle. s0 that Un ions would have an onus to estab lish beyo nd doubt that the increases wou ld have only min imal impact on businesses in areas which arc drought declared . Mr Turner for the United Graz. iers' Association of Queens land, Union or Employers (UGA) . although supporting the QC l's s ub missions. did nu t advance any proposa ls lo alleviate the impact of 1\'age incrc a~es on drought a ffected m ral commun it ies despite being twice asked by the Commission . We note th at Mr Mu ir 's concerns largely went to common rule awards. Our records indicate t hat most of these awa rds have been va ri ed as a resul t of the I February 1994 decision. The limited nature of th is decision rni:ans that overwhel mingly. fimher award hased increases if approved by thi s Comm iss ion will no t bt: co nsidered until mi d I 995. It is not necess ary now to reach a final l'i Cw. FIRST S8 AR BIT RA, TED S AFET Y i'IIET ADJ USTM ENT Like the AIRC we have decided to extend access to the $8 per week arbitrated safety net adjustment awarded in the I February 1994 deci sion to at le as t those em ployees who have not achieved a forma l enterprise barga in since I february 1992 ur lhc I Feb rua ry 1994 sa fety net adjustment of $8. for reaso ns wh ich arc expla in ed la ter. the question of absorption is no t no\\' resolve d. To accommoda te th is uncertain gap, the clause which accompanies the insertion of the lir s1 arbitrated safety net adJustment into awards requires amendment. We have considered th e ACT uo · s proposal in this regard bt1 t have varied it so tha t it reads as follows:-- "The ralcs o f pay in this Award or In dustrial Agreemen t include the fi rst $8 per week arbitrated safe ty net adj u su11 en1 payable under the November 1994 State Wage Case dec ision . Increases made under previou s State Wage Case principles or under the current Statement o f Princ iples are not to be used to offset arb itrated safety net adjustments. This first $8 per week arbitrated safety ne t adj ustment may be offset to the ex tent of any o the r wage increase, whether an awa rd increase. an overaward payment or an increase by way of en te rp rise arrangemen t. received s ince I Februar)' 1992. Pre February 1992 ovcraward arrangements are to be app lied according to their tenns.". Because of the potentia l for departure from the A IRC decis ion and Principles. we cannot conclude that the $8 per week a rb itrated safety ne t adjust ment is in substitution of the safe ty net adjustment made availab le in the Febmary 1994 decision. Al thi s stage it shou ld be considered as an extension of the applica ti on of the earlie r adjustment. The Commission adopts in the same tenns paragraph (a){ii) of the Al RCs First Arbitrated Safety Net Adj ustment regard ing the pursuit of award restructuring. We accept that such action is not a precondition to lhc granting of the Safety Net Adju s tmen t but it mu st be pursued. In the ord inary (A) case the increase will be worked into the awa rd as tollows:-- I. Where the min imum rates adj ustmen t process is comp leted in the award or industrial agreement Classification Relat iv ity Total (Minimum) (B) Rate of Pay (If appropriate) 2. Where the minimum rates adjustment process is 1101. yet co mpleted in the award or industrial agreement CJassification Bctse .Supp lementary Ra te Pa)mcnt NOTES: Arbitrated Safety Net Adjustm en t (F.xcess (C) Payme nt) Total Minimum ( 0) Rate (1\) . In other cases, eg piecework awards, the draft ing will be developed on a case by case bas is. (B). The word ·'mini mum"' to be inserted in minimum rates awards/ ag reements and omitted for paid rates awards/agreements. (C). The Commission has dec ided, upon review and consistent with practice, to part icularise excess payments in a si::parate co lumn rather than in a separ,Hc c.lause of the award. (0 ). l11c word .. minimum" to be insctted in minimum rates awards/agreements and omitted for pa id rates award s/agreements. The Wage Princip les provision for the First Arbitrated Safety Net Adjustment is set out be low. Fi rst Arbitrated Safe11 , Net Adiusrmem (a) (i) As from no ea r l ier than 7 No ve mber 1994 awards and indu s t r ial agr eements may be varied , on appl ication, to p,·o vide a firs t $8 per wee k a r bitrat ed s afet y net ad ju s tm e nt for emp lo ye es wh o ha ve n ot received a wa ge in c rease as a r esu lt of enterp rise bargainin g s ince l februar )' 1992; for thos e award s or indu s trial a gree ment s whic h ha ve not be en ,· ari ed as a r esu lt of th e Feb r uary 1994 Ra·iew deci sion. -- 1 of 3 -- 1094 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [11 November, 1994 (ii) At the time such an application is heard the Commission will raise with the parties the continued implementation of the award restructuring program commenced in 1989 and measures taken and/or proposed to further encourage enterprise bargaining. While such action is not a precondition to the granting of the safety net adjustment it must be pursued. (iii) Where the supplementary payment in an award or industrial agreement was varied for the $8 per week arbitrated safety net adjustment pursuant to the February 1994 Review Decision, the level of supplementary payment shall remain unchanged as a consequence of this interim decision. The following clause must be inserted into the award or industrial agreement:-- "The rates of pay in this Award or Industrial Agreement include the first $8 per week arbitrated safety net adjustment payable under the l\ovember 1994 State Wage Case decision. Increases made under previous State Wage Case principles or under the current Statement of Principles are not to be used to offset arbitrated safety net adjustments. This first $8 per week arbitrated safety net adjustment may be offset to the extent of any other wage increase, whether an award increase, an onraward payment or an increase by way of enterprise arrangement, received since 1 February 1992. Pre February 1992 overaward arrangements are to be applied according to their terms.". SECOND $8 ARBITR-\TED SAFETY NET ADJUSTMENT We have decided to make available through this decision a second $8 per week arbitrated Safety Net Adjustment at enterprise level on a similar basis to the AIRC. The provision has been amended at paragraph (E) to reflect our current views on absorption. The Wage Principles provision for the second $8 safety net adjustment available at enterprise level is set out below:-- (b) (i) Enterprise Level: a second $8 per week arbitrated safety net adjustment will be available, at enterprise level, from no earlier than 7 November subject to the following tests: (A) that the award or industrial agreement has been varied for the first $8 per week safety net adjustment; (B) that the union applicant has genuinely sought to reach an agreement with the employer but has been unsuccessful; (C) that there is no likelihood that, within a reasonable period, further conciliation or negotiation will result in an agreement covering the employees concerned; (D) that the employees concerned haYe not received the benefit of an arbitrated safety net adjustment in the previous 6 months; and (E) that the second SS per week arbitrated safety net adjustment may he offset to the extent of any other wage increase, whether an award increase, an overaward payment or an increase by way of enterprise arrangement received since l February 1992. For awards or industrial agreements which apply to multiple enterprises. an enterprise level increase will be reflected in an order attached as a schedule in the same wav second tier orders ,,en.: attached. In such orders. the name of th~ enterprise, the date of the increase and the date of the order shall be shown. The wages clause is to be formatted in the manner shovm above under the heading of the first $8 arbitrated safety net adjustment. DATES OF 11\CREASES Both the first $8 per week arbitrated safety net adjustment and the second $8 per week arbitrated safety net adjustment available at the enterprise level are accessible from Monday 7 November 1994. The increases are available to employees covered by either a minimum rates or paid rates award. Each increase is to be sought by separate application; we do not anticipate that "'clustering" of applications is appropriate or desirable. The application is to clearly identify which arbitrated safety net adjustment is being sought. PRll\CIPLES Pending release of a final decision, this Commission's wage principles (145 QGIG 314) shall continue in force save that section I in '"Arbitrated Safety Net Adjustment'" of the Wage Adjustments Principle ceases to have force and effect and the Declaration of Policy now made operates in substitution therefore. We issue a Declaration of Policy to reflect our interim decision. ABSORPTIOI\ The question of whether the AIRC's September l 994 Safety Net Adjustments and Review permitted absorption of safety net adjustments into overaward payments was vigorously debated. Competing interpretations were offered by union and employer parties. Additionally. the parties were required to address the Commission on its jurisdiction under the Industrial Relations Act I 990 to deal with and make orders in respect of absorption. Another dimension to the debate was added by Mr Belfield of the MTIA who informed the Commission of a decision by the President of the AlRC to refer issues of absorption arising from the September 1994 decision to a Full Bench. In light of the uncertainty, Mr Muir submitted the application to the Metals Industry case before the Queensland Wage Bench should be deferred pending the renewed proceedings in the AlRC. The Commission declined to proceed in this way. What may conveniently be described as the absorption issue raises quite difficult questions of power and of policy. Hiding behind that issue is the further question whether the issue is truly absorption or one of identifying the characteristics of the class of employee which is to benefit from the decision. Alleged ambiguities in the decision of the AIRC exacerbate the difficulties. If there be power it will, of course, be necessary to consider what weight should be given to the goal of comparable outcomes. All of those matters may now be put aside. The increases to be made available by this interim decision are fully absorbable. If, ultimately we take a different view we shall of course need to consider the date of operation to be adopted in flowing the increases to the expanded group of beneficiaries. We do not do that now. When the AIRC decision on "absorption'' is available. we shall relist this matter for further consideration. As mentioned earlier. the temporary setting aside of the issues requires the reworking of the clause accompanying the insertion of the first $8 per week arbitrated safety net adjustment. lt has been provided earlier and is repeated in the Declaration of Policy released with this decision. 11 November, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1095 :VIATTERS STOOD OVER This decision does not consider the following issues:-- The second $8 safety net adjustments which the AIRC made available at the award level The availability of a third $8 safety net adjustment Review of Awards Construction Industry Award nexus Site allowances For the purposes of this interim decision, we have found it unnecessary to deal with these matters at this time. They will be considered in our full decision to be published later. We repeat, no inference should be dra\\11 from our decision not to include them in this interim decision. GUARANTEED MINIMUM WAGE The applications seek increases by General Ruling to the Guaranteed Minimum Wage in concert with the second and third arbitrated safety net adjustments namely, six months and twelve months respectively from the date of this decision. No serious opposition was mounted against varying the Guaranteed Minimum Wage in the manner proposed. We are of the view that the movement of the Guaranteed Minimum Wage is best considered in the context of award level safety net adjustments. As such adjustments do not form part of matters considered in this decision, we defer determination to our full decision. Previous State Wage Case Decisions We note that some awards and industrial agreements have not yet been varied in accordance with past Wage Case Decisions. The provision in the Principles relating to access to increases available under State Wage Case decisions remains. We order accordingly D.R HALL Chief Industrial Commissioner. K.L. EDWARDS. Commissioner. G.K. FISHER, Commissioner. Appearances - Ms D. Ralston for the Australian Council of Trade Unions, Queensland Branch Ms_ Y D'Ath and with her Mr J. Ludwig for The Australian Workers' Union of Employees, Queensland. Mr J. Johnston and with him Ms J Reid and Mr T Shipstone for the Cro\~11. ~r- G. Muir for the Queensland Confederation of Industry Limited, Union of Employers. Mr M. Belfield for the Metal Trades Industrv Association of Australia. Queensland Branch. Union of Employer;. Mr W Turne c Th U • d G • ' • • U . • r ,or e mte raz1ers Association of Queensland, nion of Employers. \fr I Turner for the Australian Mines and Metals Association. Mr S. Nance for the Australian Sugar Milling Association, Queensland, Union of Employers. Ms C. Rice for the Retailers' Association of Queensland Limited, Union of Employers. Mr C. Casey for the Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees. Operative Date: 7 November 1994 Decision - State Wage Case Released: I November 1994 DECLARATION OF POLICY In accordance with the I November 1994 State Wage Case decision minimum rates and paid rates awards may be varied to include arbitrated safety net adjustments subject to the following:-- First Arbitrated Safety Net Adjustment (a) (i) As from no earlier than 7 November 1994 awards and industrial agreements may be varied, on application, to provide a first $8 per week arbitrated safety net adjustment * * for employees who have not received a wage increase as a result of enterprise bargaining since 1 February 1992; for those awards or industrial agreements which have not been varied as a result of the February 1994 Review decision. (ii) At the time such an application is heard the Commission will raise with the parties the continued implementation of the award restructuring program commenced in 1989 and measures taken and/or proposed to further encourage enterprise bargaining. While such action is not a precondition to the granting of the safety net adjustment it must be pursued. (iii) Where the supplementary payment in an award or industrial agreement was varied for the $8 per week arbitrated safety net adjustment pursuant to the February 1994 Review Decision, the level of supplementary payment shall remain unchanged as a consequence of this interim decision. The following clause must be inserted into the award or industrial agreement:-- "The rates of pay in this Award or Industrial Agreement include the first $8 per week arbitrated safety net adjustment payable under the November 1994 State Wage Case decision. Increases made under previous State Wage Case principles or under the current Statement of Principles are not to be used to offset arbitrated safety net adjustments. This first $8 per week arbitrated safety net adjustment may be offset to the extent of any other wage increase, whether an award increase, an overaward payment or an increase by way of enterprise arrangement, received since l February 1992. Pre February 1992 overaward arrangements are to be applied according to their terms." SECOND $8 ARBITRATED SAFETY NET ADJUSTMENT (b) (i) Enterprise Level: a second $8 per week arbitrated safety net adjustment will be available, at enterprise level, from no earlier than 7 November subject to the following tests: (A) that the award or industrial agreement has been varied for the first $8 per week safety net adjustment; -- 2 of 3 -- 1096 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [I I November. 1994 (B) that the union applicant has genuinely so ught to reach an agreement wi th th e emplo yer but ha s been unsuccessful ; (C) that th e re is no likelihood that, within a reasonable period, further co nciliation o r negotiation will re sult in a n agreement covering th e employees conce rned ; (D) tha t the employees co nc e rn ed ban not received the benefit of an arbitrated safety net adjustment in the pre vio us 6 mo nth s; a nd (f,) that th e second SS pe r week a rb i trated safety net adjustment may be offs et t.o th e exte nt of any oth er wage increase, whether an award i ncrease, a n ove raward pa yment or an inc rea se by way of enterprise a r ra ngeme nt received since I February 1992. ############################### ############ ############ 11 November, 1994] QUEENSLAND GOVERNME NT INDUSTRIAL GAZETTE 1097 -- 3 of 3 --