AW782182CRN  PR942520

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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.113 application to vary award

Australian Municipal, Administrative, Clerical and Services Union

(C No. 80011 of 1997)

GENERAL CLERKS (NORTHERN TERRITORY) AWARD 2000

[ODN C No. 01286 of 1980]

[AW782182CRN  Print G0198]

Northern Territory

   

COMMISSIONER EAMES

MELBOURNE, 7 JANUARY 2004

Addition of a further 3 levels to the classification structure.

DECISION

[1] This matter arises from an application made pursuant to s.113 of the Workplace Relations Act 1996 (the Act) by the Australian Municipal, Administrative, Clerical and Services Union (ASU), where it sought to vary the General Clerks (Northern Territory) Award 2000 (the NT Award) to add a further three (3) levels to the NT Award's classification structure.

[2] The application was filed in the Northern Territory Registry on 5 March 1997 and several conferences and hearings conducted by the Commission were held in an attempt to secure an agreement, involving all the relevant industrial parties over the terms of an appropriate variation.

[3] Unfortunately, a consensus was not reached and, by agreement the matter was listed for arbitration through the vehicle of a video hearing, conducted in Melbourne and Darwin on 15 December 2003.

[4] The Commission had earlier issued directions which resulted in the development of written submissions from the ASU, the Chamber of Commerce Northern Territory (CCNT) and the Australian Mines and Metals Association Inc. (AMMA).

[5] At the hearing on 15 December 2003. Mr Nucifora and Mr Matarazzo represented the ASU, Mr Blandy the CCNT and Mr Gifford (AMMA), and each in turn supplemented their written submissions with additional oral submissions.

The ASU Case

[6] The application by the ASU seeks to vary the General Clerks (Northern Territory) Award 2000 by inserting in the classification structure in Clause 16 three additional Grades with appropriate wage rates above the current grade 3, which is the top Grade in the award at present.

[7] The three additional grades and rates of pay are identical to Grades 4, 5 and 6 of the Victorian Clerical & Administrative Employees Award 1999, an Award of the Commission.

[8] Since the early 1990s, nearly all of the Awards of the AIRC and State industrial tribunals have been restructured with regard to classification structures. This work has been undertaken in accordance with the Wage Fixing principles of the AIRC, and in particular the structural efficiency and minimum rates adjustment principles. This task had been commenced with regard to the NT Award but not completed. It was put by the ASU that variations to awards in accordance with earlier Principles remain available, in accordance with Principle 3 of the current Wage Fixing Principles. Prior to May 1994, this award had a classification structure which had effectively two levels, and years of service increments within those levels. Those levels were:

[9] On 18th May 1994, Commissioner Hoffman varied the Award by Consent, by deleting the pre-existing classification structure and by inserting in lieu, a three level classification structure [see Print L3035].

[10] That classification structure is a skills - based structure, not years of service based, and reflected the first three levels of the Victorian Clerical & Administrative Award at the time. The classification structure was supported by various skill descriptors identifying the skills required to be utilised at each level. Grade 3 had the same rate of pay as grade 3 in the Victorian award.

[11] Although by consent, the variation was in response to an application by the ASU for the insertion into the Award of the full Victorian classification structure, but agreement could not be reached on the higher levels. In the Order of Commissioner Hoffman, leave was reserved to the Union to pursue classification grades and relativities higher than the relativities in Grade 3 - see clause 6(f) [see Print L3035].

[12] Mr Nucifora argued the application seeks to fully introduce a full safety net award incorporating a classification structure with properly fixed minimum rates of pay, such as is provided to clerical/administrative employees under nearly all other clerical awards of the AIRC and of State tribunals with the single exception of those in WA, where a similar application is on foot.

[13] It was put that the NT Award is a common rule award applying to clerical employees in the NT not covered by any other Award. It is therefore similar in character and application to State Common Rule Awards which apply in other States and to the Clerks (ACT) Award which applies as a common rule in the ACT and to the Clerical & Administrative (Victoria) Award which applies to a large number of employers in Victoria (but which is not common rule).

[14] With the sole exception of WA, employees in all State jurisdictions and in the ACT and in Victoria where Federal awards apply, are protected by a safety net of wages which extends above the level of Grade 3 in the NT award.

[15] The structures and rates of the Victorian C&A Award have also been found appropriate and applied in numerous C&A Awards of the Federal Commission by decisions of this Commission, commencing with the Victorian C&A Award itself but in a variety of particular awards as well.

[16] Mr Nucifora called Mr K Harvey, an Industrial Officer from the ASU National Office, to give evidence in the proceedings. He had been involved for over 10 years in the development of training policy reform and implementation, in addition to skills formation, representing the ASU.

[17] The history of the flow of the classification structure is contained in Mr Harvey's witness statement [Exhibit N4].

[18] While there are variations to the outcomes around the States and Territories, the skills described in the structures in the various State awards are either identical or very similar and are consistently aligned and remunerated (with some variations). An extensive exhibit prepared by the ASU and attached to the Witness Statement of Mr Harvey demonstrates this point.

[19] Mr Nucifora also submitted that the same pattern of variation is true with respect to the adoption of the structure in Awards of the AIRC applying to clerks. With the exception of the vehicle industry where paid rates awards applied, minimum rates clerical awards have generally adopted the Victorian structure with variations appropriate to the needs of the industry.

[20] It was put that the evidence shows that in all cases of re-structured awards in the clerical industry, classifications and rates of pay above grade in the NT Award, have been found to be appropriate in other decisions of the Commission.

[21] While there is some variation in these awards and the numbers of levels they contain, there is an underlying consistency of approach and all reflect the need for classification levels above Grade 3 in the NT award. Mr Nucifora submitted that it is appropriate to include higher levels in the NT award, as part of a safety net award with properly fixed minimum wages, and that grades 4, 5 and 6 of the Victorian Award are the appropriate levels that should apply in the NT award.

[22] The skills described in the 3 additional grades appropriately reflect the generic skills applied in all, or nearly all office employment in Australia, which can be seen in the attachment to Exhibit N4, the comparison chart of skills.

[23] Mr Nucifora submitted that the skills included in the Victorian Award above level 3 have been extensively tested by the parties through the auspices of the former Victorian IR Commission. They are the work of extensive refinement over a long period and subject to several appeals and reviews before they were settled. They have stood the test of time and have been found to have on-going relevance and this structure continues to be inserted into Federal awards, for example as part of the s89A/Item 51 review process where old awards have been found to have outdated structures and/or inappropriately fixed minimum rates of pay, e.g. International Freight Forwarding and Customs Clearing Industry Award, and Business Equipment (Clerical Officers) Award.

[24] A fair safety net award for clerical employees in the NT should therefore include classifications and rates of pay above Grade 3.

[25] With regard to the potential economic impact of granting the application Mr Nucifora submitted that the economic impact of the decision will be limited. Employees in the NT under this award have been without the protection of these levels for many years. The ASU believes that actual rates of pay currently being paid by employers utilising the NT Award exceed the Award rates of pay by a substantial margin in many cases and that a rise in the minimum rates will not unduly impact on employers.

[26] The ASU obtained unpublished data from ABS earnings surveys to support this assertion and this is attached to the witness statement of Mr Keith Harvey. This shows the earnings of clerks in the NT in a number of occupational groups. The ABS data also shows the number of employees (as a percentage of all NT employees) in various clerical occupations in the NT many of whom will be covered by this Award.

[27] Unfortunately, the ABS's current standard Classification of Occupations (ASCO) does not exactly match the way jobs are classified under awards.

[28] With regard to the ABS data Mr Nucifora submitted advanced clerical workers would be classified above Grade 3 in the Victorian Award and therefore be beyond the current NT award structure. These would include Secretaries and personal assistants and those clerks classified by ASCO as Advanced numerical clerks, including bookkeepers. Secretaries and PAs would be classified at least at Grade 4 but may be as high as Grade 6 depending on the duties/skills exercised. Bookkeepers would also be at least Grade 4 or 5 depending on duties.

[29] The ABS data shows that Secretaries/PAs in the NT are paid on average in excess of $630 per week for ordinary time work. Bookkeepers are classified as Advanced numerical clerks (with credit and loans officers) and paid on average $725 per week.

[30] The top rates sought in each of the three additional grades are:

30.1

Grade 4:

$570

30.2

Grade 5:

$603

30.3

Grade 6:

$643

[31] The ABS data tends to show that the minimum rates sought are within the ranges of average pay already paid by NT employers to more highly skilled staff, although individual classifications will still depend on the actual skills exercised by particular employees.

[32] However, many employers still advertise and pay only award rates of pay. If these workers could be and should be graded above Grade 3 they are being denied access to a proper safety net of appropriate wages and conditions, submitted Mr Nucifora.

[33] A number of decisions and orders of the Commission were tendered as relevant to the application, by Mr Nucifora, including:

The Chamber of Commerce Northern Territory Case

[34] Mr Blandy relied essentially on his outline of submissions, tendered in the proceedings as Exhibit B1, which set out the CCNT opposition to the application.

[35] He contended that it is unnecessary to vary the Award to include an additional three (3) levels in the classification structure as the Award provides an adequate safety net [s.88A(b)].

[36] There is no evidence of a history of disputes in the industry over wages rates. If anything, the evidence supports the proposition that the industry self-regulates itself by providing for wages in excess of award minimums.

[37] It is neither necessary nor desirable for the Commission to prescriptively regulate the industry by varying the Award to include the proposed new six (6) level classification structure.

[38] The Act recognises Common Law contracts of service as a means of regulating terms and conditions of employment [s.3(c)].

[39] Mr Blandy also contended that under the law of contract, there is an obligation on an employer to pay a "reasonable amount". Given that the evidence discloses that the industry has a practise of paying wages higher than award minimums, a Court would be perfectly entitled to find in such circumstances that a "reasonable amount" was the market rates prevailing in the industry. It is, therefore, neither necessary or desirable to enshrine higher wage rates in the Award.

[40] In relation to an Australian Workplace Agreement ("AWA") and/or a Certified Agreement, it is unnecessary for an award of the Commission to directly relate to the employment to be covered by the AWA and/or a Certified Agreement as scope exists within the Act for an award to be designated for the purposes of the "no disadvantage test" or an AWA [s.170XE] and a Certified Agreement [s.170XF].

[41] If the Award were to be varied as sought by the ASU, the impact of the variation may discourage agreement making at the workplace or enterprise level [s.88A(d)(i)] as the increases sought by the ASU would increase the wage rates to levels approaching market rates, leaving little incentive for agreement making.

The Australian Mines and Metals Association Inc. Case

[42] Mr Gifford submitted, in addition to his written submissions [Exhibit G1] in opposition to the application that the ASU was seeking the application of the "full safety net", with properly fixed minimum rates, as prescribed by s.88B(2) of the Act, which requires that the safety net be both "established and maintained".

[43] It was put that this application does not seek to deal with "maintaining" a safety net. Rather, it is an application directed to re-structuring a safety net, which itself was established with the 1994 variation. Whilst that variation was effected with leave reserved concerning the extended classification structure, the extent of the delay in exercising that leave, causes it to be at least arguable that this application actually represents an attempt to re-establish a safety net. This is not a facility available under the legislation.

[44] It was also put by Mr Gifford that the application may also be viewed as one dealing with the extension of the Minimum Rate Adjustment process, from that which was originally established with the 1994 variation.

[45] Mr Gifford also submitted that there is nothing laid down by the MRA process or by the Statement of Principles which allows or enables a comparative wage analysis, or comparative wage justice to be called upon.

[46] The MRA process is concerned with the establishment of appropriate classification relativities, in the context of a skills based classification structure, rather than with the adoption of particular classification structures.

[47] Accordingly, the manner by which the justification for the "flow" of the relevant Victorian Award classifications, into the General Clerks (NT) Award, as argued by the ASU, is inconsistent with the Statement of Principles, and therefore cannot be sustained, put Mr Gifford.

[48] So far as the mining and oil and gas sectors are concerned, Mr Gifford asserted that clerical and administrative employees do not require the protection of the Award, as their wage rates and conditions significantly exceed the Award. With respect to the local government Community Councils, since it is generally the case that the Remote Communities Local Government (Northern Territory) Award is utilised as a basis for determining appropriate salary rates and conditions of employment, there is a strong likelihood that the vast majority of employees potentially effected, are already adequately protected.

[49] Should the Commission agree to the ASU application, Mr Gifford put the following. AMMA consider that one aspect of the skill descriptors requires modification, namely that part dealing with supervision. As it is presently worded, there is a capacity for a clerical or administrative officer, whose supervisory responsibilities, where they exist, actually constitute a predominant element of their role, to be covered by the classification. Such an officer, ought to be excluded from the application of the Award. This arises from the terms of the ASU's Eligibility rule, wherein, at Part II, it refers to coverage of persons "...engaged in any clerical capacity", (together with certain nominated occupations). Eligibility does not thereby extend to any officer engaged in a supervisory capacity, or whose predominant activities or responsibilities relate to such a capacity. It accordingly follows that a Proviso excluding such officers ought to be included in the descriptor.

[50] A further consideration, in the alternative, relates to the need for account to be taken of the actual impact of the Award applying for the first time to an employee. In particular, in the case of an employee who under his/her existing common law contract of employment, may not have provisions within it which provide benefits relating to such matters at district allowance, overtime, shift or weekend penalties. Such matters may be an inherent part of an all-up salary payment. Where the Award would apply to them for the first time, it would not be appropriate for award provisions of the kind identified, to apply to such employees.

[51] Accordingly, such employees, in a generic sense, ought to be expressly excluded from the operation of such clauses.

Conclusion

[52] This application was filed in March 1997, almost seven years ago, and in many respects is well overdue for determination, unfortunately the parties could not reach an agreed position with regard to the outcome sought by the ASU.

[53] I am satisfied, based on the material before the Commission, and in particular the evidence for the ASU presented by Mr Harvey, that there is a national clerical industry that has been recognised by the Commission, and in that regard, as awards of the Commission involving the clerical industry, have been simplified pursuant to Item 51, a comparative analysis approach has been deemed to be an appropriate approach, under the Paid Rates Principles and the Wage Fixing Principles.

[54] In my view it is appropriate that minimum wage rates must be regulated to adequately underpin over award wages that exist among employees covered by the NT Award, and it is appropriate to maintain the integrity of the safety net not only in the Northern Territory, but throughout Australia, as much as possible.

[55] One must also note as per the Paid Rates decision, the Minimum Rates Adjustment (MRA) was designed to establish a "constant pattern of minimum rates in awards covering similar work, thereby removing inequities and providing a stable foundation for enterprise bargaining." [see Print Q7661]

[56] I am also satisfied that the ASU application is completing the application of an outstanding National Wage Principle, ie the 1989 Structural Efficiency Principle, in the context of the way this same principle has been applied to the greater majority of clerical awards over the last decade.

[57] Paid Rates Principle 2 reads as follows:

[58] I am prepared to vary the Award to include an additional three (3) levels in the classification structure, as the NT Award, when so varied to include the 3 levels, will then adequately and appropriately compare, with the greater majority of Federal Clerical Awards, and State and Territory Common Rule Awards.

[59] In addition, I accept the evidence of Mr Harvey, that there is no evidence to suggest any significant economic impact on the Northern Territory employers, as the empirical evidence suggests most employees classified at the proposed classification levels are paid in excess of the applicable minimum rates.

[60] An order will issue in the terms of Exhibit N1 tendered in the proceedings save for the operative date, which will commence from the first full pay period following the date of this decision.

[61] I am satisfied the variation should operate as soon as practicable bearing in mind the long process towards this decision, and the expected nil economic impact of the variation.

BY THE COMMISSION:

COMMISSIONER

Appearances:

J. Nucifora, K. Harvey and L. Matarazzo for the Australian Municipal, Administrative, Clerical and Services Union.

R. Gifford for the Australian Mines and Metals Association Inc.

M. Blandy for the Chamber of Commerce Northern Territory.

Hearing details:

2003.

Darwin/Melbourne via video link;

December 15.

Printed by authority of the Commonwealth Government Printer

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