Australian Sugar Milling Association, Queensland, Union of Employers v Federated Clerks' Union of Australia (Central and Southern Queensland Branch) Union of Employees and Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees [1990] ICQ 8 (1990) 134 QGIG 141

. • • ., •••••••• • •. :• • ••• r •·• •• ; • • ~ <· • ~. ·; •,• .·, ! • ···•· .£.•~£: .• ;•-·•••!••·•·:;;;L; [ 141] The Queensland Government Industrial GazettePUBLISHED BY AUTHORITY Annual Subscription $245 ISSN 0155-9362 Vol. CXXXIV] SATURDAY, 2 JUNE, 1990 [No. 5 QUEENSLAND INDUSTRIAL COURT Industrial Conciliation and Arhitration Act 1961-1989 s. 34 - appeal from decision of Industrial Commission Australian Sugar Milling Association, Queensland, Union of Employers AND Federated Clerks' Union of Australia (Central and Southern Queensland Branch) Union of Employees and Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees (1\"o C2 of 1990) CLERKS EMPLOYED IN SUGAR MILLS AWARD - STATE .JCSTICE MOYNIHAN. PRESIDENT 17 May 1990 Appeol •- Error of Law - Wages - Structural Efficiency - Job Description/Design - Wage Differentials - Skills - Wage Com- parabilities - Classification - Tradesman's Rate - Wage Fixation Principles - Judgment - Wage Fixation Principle Requires Con- sideration of Whether Employees are of "Tradesman or Equivalent Level'" -- Absence from Commission's Decision of Assessment of Work Performed and Skills Exercised by Employees - Appeal l :pheld, $12.50 granted in lieu of $15.00 - Respondent may Apply for Commission to Grant $15.00 Using "Tradesman or Equivalent'' Approach. JUDGMENT On l 9 December 1989, the Industrial Commission dealt with a number of applications for a first increase in accordance with the Structural Efficiency Principle laid down in the State Wage Case of 16 October 1989 (I 32 QGIG 1199-1208). It. will be recalled that Appendix A to the Commission's deter- mmation provided that the Principles developed by the Comm1s- swn were aimed at providing:- . " ... a clear framework under which all concerned - employers, workers and their unions, governments and tri- bunals - can cooperate to ensure that labour costs are monitored; that measures to meet the competitive require- ments of industry and to provide workers with access to more varied, fulfilling and better paid jobs are positively examined; and that lower paid workers are protected.". The Principles were expressed to provide that movements in wages and salaries and improvements in conditions were to fall within levels allowable in accordance with the State Wage Decision of October 1989 which endorsed the detailed reasons of the National Wage Case decision of 7 August of that year. In the expression of the Principles it was stated that the Commission would guard against "contrived arrangements which would circumvent"_ the Principles and their aims. It will also be recalled that the Pnnc1ples required that the union concerned in an award was to give various commitments including that it would not pursue any extra claims except in compliance with the Principles. Although none of those matters are in issue in this appeal, it turns on a fairly narrow issue, the appeal falls for consideration in the context of the matters I have mentioned . Structural efficiency adjustments expressed to be allowable under the Principle included the following:- '•(i) a first increase of $10.00 per week for workers at the basic skills/trainee level;$ 12.50 per week at the semi-skilled worker level; and $15.00 per week or 3% whichever is the higher, at the tradesman or equivalent level and above;". It is to be borne in mind that the first increase and its associated commitments are but the first step in an ongoing process and that, for example, subsequent stages of the process provide opportunities to address issues such as the relationship between skill levels and work classifications. The issue in these proceedings is whether it has been demonstrated that the Commission erred in holding that clerks employed under the Award were entitled to a $15.00 per week increase. This entitlement involved the Commission being appropriately satisfied that, on a skills related basis, those employed under the Award were to be treated as being at a tradesman or equivalent level. This must depend on the circumstances of each particular case. For this reason decisions in respect of other workers under other Awards are of limited application, at least until it is established that the two situations are comparable. Thus the decision of the Industrial Relations Commission of Victoria m Full Session, in the Commercial Clerks Award (Decision D89/1014, 26 September -- 1 of 2 -- 142 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [2 June, 1990 1989) was relied on by the respondents in this appeal. There the Tribunal expressed itself as satisfied that the work perfom1ed and the skills exercised by clerical workers under the award it was considering were appropriately compatible so as to found a first increase. Such increases cannot without more be simply translated to the Award under consideration in this appeal. Against this back~ound. as I have said on I 9 December I 989 the Industrial Commissi on dealt with a pplication for increases by way of a first progress payment in respect of a number of awards including the Clerks Employed in Sugar Mills Award - State ("the Award"). The Industrial Commission's decision proceeded on the basis of specifically setting to one side a consideration of the Award. It then undertook a consideration of the various other awards in respect of which a first increase was sought in the proceedings before it. In respect of those Awards the Commission detennined to gram a first payment by increasing the rate of pay in each award or agreement "strictly in accordance with section (i) of Part ! of the Structural Efficiency Adjustment". It then went on to determine that employees wh o were currently in receip1 of a weekly award or agreement rate of pav below $355. 20 would receive an increase of$12.50 per week and 'those employees in receipt of$355.20 and above were to receive an increase of S15 .00 or three percent whichever was the higher. I should mention that in determining as I have just mentioned the Commission enumerated a number of other factors relevant 10 its determinati on to grant the increase but it is unnecessary to consider them here. In the course of granting the i.ncreases just referred to but in the context of the Award having been spec1fically excepted from that consideration the Commission was of the opinion that the trades- man or equivalent level was $355.20, the weekly rate for a fitter prior to the recent first payment increase in the Southern Queens- land Division. The Commission then went on to go through the various awards specifying the increases in respect of the various categories. Th ose increases are not in issue in this appeal. It will be recalled, as I have already said, that the Award was put aside from the process to which I have thus far been describing. I should mention that the Commission did not offer any reasons for this but implicitly at least it would seem to constitute an acknowledgement that there may have been considerations peculiar to the Award wh ich required it to be given a separate consideration. Havi ng dealt with the applications in respect of other awards as I have outlined above the Industrial Commission went on:- "ln relation to ... Clerks employed in Sugar Mills Award - State, the Commission has taken into consideration all submissions presented by the parties. The Commission has decided to grant an increase in wages for first payment, on the basis previously announced in this Decision, and to increase those allowances contained in the Application or that part of the Application by 3 percent. Such increases result from:- . The $eneral acceptance of the Agenda for future discussions proposed by the Commission and the fact that the Commission will monitor such future dis- cussions. . The inclusion in the Award of a no extra claims commitment clause. . The inclusion in the Award of an Incidental or Peripheral Tasks Clause. . The inclusion in the Award of an Award Moder- nisation Clause in terms agreed upon by the partie.s and handed to the Commission (the Commission then set out the clause).". The Commission does not expressly find in respect of the other factor, comparability of skill levels, contem{'lated by the Principle. Moreover having separated the Award from !IS earlier considerallon of other awards it does not express a basis for then treating it in the same way as it treats the other awards. The Australian Sugar Mi lling Association, Queensland, Un ion of Employers (the appellant) appeals against the decision in respect of the Award on the grounds that the Commission erred in law in the application of the Structural Efficiency Principle. It was submitted that, on the evidence and in view of the Principle, it was not reasonably open to grant a wage increase of as much as $15.00 per week as distinct from the lesser amount provided by the Principl e. In essence this was said to be because the wage rates in the Award demonstrab ly bore no relationship to skill leve ls and thus could not, without more, be regarded as of tradesman or equival en t leve l. This it was submitted was demonstrated by Exhibit 16 before the Commission. wh ich exemplified wage differences between comrarable classifications in different awards (including that under consideration where the rates we re higher). Neither the State Wage Case nor the Nationai Wage De,-cision of August 198 9 offered any speci fic gu idance in the dete.rmtnation of skill levels of a .. lradcsman or equivalent level" for the purpose of the application of ,he Principle founding a fust increa~e. As 1 have alread y indicated however 1.t seems clear enough that the Principle itself and the decision of which it fonns pare contcmpl at:;d that en title mer.. 1 to the first increase attributaNe t0 "!.radesman or equivalent ie vel and above" involved having regard to the work performed and the skills c.~ercised by, in this case, clerical workers employed under the Award for t he purpose of the Commission be ing satisfied that th ey were equivalent to !hose of a ft tter. I should mention that although the Commission was engaged in varying an /\ ward it acted on the basis that its ju1isdiction to do so in the particular case depended on the application of the P1inciples declared in the October l 989 State Wage Case. In that circumstance the exe rcise of the jurisdiction when a co ndi tion contemplated as founding its exercise had not b~'\C n made out could c.onstitute an error of law. This is not to gainsay, as for example the decision in Mi sc ella11eo11s Workers Award - State Government and Another (I 966) 62 QGJG 666, reco¥,nises, that Award variations generally gi ve ri se to considerations diffe rent from other decisions and militating against an appeal on a question of law. Before the lndustrial Co mmission it had been submi11ed generaliy that, irrespective of the consideration that there were a number of Awards, there should be an "across the board" first pr<>sress payment in respect of all clerks 21 years of age or over. This was based on the proposition that, beanng in mind decisions in other jurisdictions, 21 years of age ought to be taken as reflecting a skill levei equivalent to a tradesperson level in tenns of the third of the category set out in (i) of the Structural Efficiency Principle. As I indicated earlier however it by no means necessarily follows that such a consideration can be directlv translated to the Award under consideration. Exhibit 16 before ·the Commission demon- strated a clerk working under the Award would receive a $15.00 per week increase while a clerk working under a different Award in, for example, an engineering works at what seems to have been established as comparable work would receive the$ I 2.50 increase. The disparity arose not b~cause of a disparity in skills or as a consequence as having regard to the work performed and skills exercised b)' those employed under one award as distinct from those employed under another but because of differences apparently unrelated to those considerations in the various awa rd rates to which the increase was to apply. The considerations being those to which l have adverted in these reasons the application of Lhe Principle in the context of the Award required that a basis be established for treating those under the Award as being of a "tradesman or equivalent level" by reference to an assessment of the work performed and skills exercised by workers under the Award. In the absence of that being reflected in the decision to grant the first increase under the Award at the rate of $15.00 per week the appeal should be upheld. ln the event that the respondent seeks to establish an entitlement to a firs t increase on the "tradesman or equivalent" approach on the basis to which I have referred I will remit the matter to the Commission to enable that to be done . M.P. MOYNIHAN, President . Appearances:- Mr A.K. Herbert (Instructed by Messrs Morris, Fletcher & Cross}, for the Appellant, The Austral ian Sugar Milling Association, Queensland, Union of Employers. Mr S. Reid y, Solicitor of Messrs Callaghan & Reidy, for the Federated Clerks' Union of Australia (Central and Southern Queensland Branch) Union of Employees and the Federated Clerks' Union of Australia, North Queensland Branch. Unio.n of Employees. Operative Date: N/A !udgment - Appeal - Restructuring First Payment 2 June, 1990] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 143 -- 2 of 2 --