The attached document replaces page 1of the document previously issued with the above code on 15 January 2004. The matter number has now been corrected.
Amanda Dowling
Associate to Deputy President McCarthy
22 January 2004
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.111(1)(b) application for an award
Australian Municipal, Administrative, Clerical and Services Union
and
HPA Incorporated
(C2003/1717)
COMMUNITY EMPLOYMENT, TRAINING AND SUPPORT SERVICES AWARD 1999
Health and welfare services | |
DEPUTY PRESIDENT MCCARTHY |
PERTH, 15 JANUARY 2004 |
Application for an award, not by consent, roping-in the respondent to the Community Employment, Training and Support Services Award 1999.
DECISION
Background
[1] This matter arises from a finding of dispute by the Commission on 30 October 2002 between the Australian Municipal, Administrative, Clerical and Services Union ("the ASU") and HPA Incorporated ("HPA").
[2] HPA is an association that on 14 September 1992 was certified as an incorporated association that had previously been incorporated under the Associations Incorporation Act of Northern Territory as The Mentally Handicapped Persons Association, subsequently the Slow Learners Group and successively the Slow Learners' Association and the Handicapped Persons Association of the Northern Territory.
[3] This matter concerns an application by the ASU for an award to be issued roping in HPA to the Community Employment, Training and Support Services Award 19991 ("the CETSS Award"). The effect of an award issuing would be for one employee of HPA to be covered by that award.
Applicant's submissions
[4] The ASU claims that it is appropriate that an award issue as the employee concerned, Ms Helen Lorman, is award free. The ASU claims that the employee concerned is engaged in a service "the dominant function of which is the provision of a labour market assistance programme" consistent with the coverage of the CETSS Award.2 The ASU asserts that there is no award that is binding on HPA which also applies to Ms Lorman.
[5] HPA is a respondent to the Disability Services (Northern Territory) Award 20023 ("the Disability Services Award") and was a respondent to the predecessor 1992 award.4 The ASU argues that the Disability Services Award does not have coverage of the work in which Ms Lorman is engaged.
[6] The Union party to the Disability Services Award is the Australian Liquor, Hospitality and Miscellaneous Workers' Union ("the ALHMWU"). The ALHMWU did not seek intervention in this matter.
[7] The ASU at the hearing agreed that the General Clerks (Northern Territory) Award 20005 ("the Clerks Award"), which has been declared a common rule award in the Northern Territory, was an enforceable award with respect to Ms Lorman, but was not a suitable award. The ASU is party to the Clerks Award. In later written submissions the ASU argued that the Clerks Award does not apply to Ms Lorman as she is not engaged principally in clerical and administrative work.
[8] The ASU claims that the CETSS Award is a more appropriate award for Ms Lorman. HPA is not a respondent to that award and the ASU asserts that the common rule declaration precludes that award from applying to Ms Lorman's position of Employment Services Manager. By creating an award that ropes-in HPA to the CETSS Award the appropriate award regulation would be established for her position.
[9] The ASU suggests that by roping in HPA to the CETSS Award, it would create an "effective award safety net ... for all employees of HPA" [original emphasis] consistent with the Act's objects and that would be in the public interest. The ASU suggests it would then seek further improvements in pay and conditions for employees of HPA by means of enterprise bargaining.
Respondent's submissions
[10] The application by the ASU is opposed by HPA. HPA argued that the Disability Services Award applies to Ms Lorman's position and implied that if they were wrong in that then the Clerks Award may apply.
[11] HPA argues that it is not in the public interest for HPA to be roped into the CETSS Award for one employee. HPA argues further that the CETSS Award provides substantially higher benefits to employees than the award that applies to the vast majority of employees at HPA, the Disability Services Award. HPA argues that if an award were to issue it would lead to disputation as a result of the differential created with other staff.
[12] HPA gave evidence that Ms Lorman is employed as the Manager of JobLink Employment Service and has been for six years. Her job description provides:
"Function: To co-ordinate the day to day management of Job-Link CETP and Shadow Prints.
Client Group: People with a psychiatric disability, who are in receipt of/or are eligible for the Disability Support Pension, and want to work.
RESPONSIBILITIES:
1. Have a sound knowledge of the Disability Service Standards, Privacy Legislation, Disability Services Act, Occupational Health and Safety Legislation and National Information Management System.
2. Co-ordinate and support work trainers.
3. Liaise with and report to the funding bodies:- Dept Health & Family Services, including Nims system.
4. Interview and assess client applications for the service.
5. Establish and maintain effective procedures to assist people with a psychiatric disability to obtain and keep stable employment.
6. Monitor achievements of Job-Link goals and participate in review and ongoing service delivery planning.
7. Manage a caseload and oversee caseloads of support workers.
8. Assist clients in on the job training in open employment and business services.
9. In consultation with the Executive Director monitor the budget and pricing structure on an on-going basis.
10. Assist in preparation of task analysis if required.
11. Liaise with other service providers.
12. Other duties as directed within your capabilities as directed by the Employment Service Manager."
[13] Evidence was given by Mr Paul Goggin the Executive Director of HPA. He outlined the structure and functions of HPA as follows:
"8. HPA Incorporated is a non-profit organisation, duly incorporated pursuant to the Northern Territory Associations Incorporation Act and receives the majority of its income from government funding [Commonwealth Department of Family and Community Services and NT Department of Health and Community Services]. HPA Incorporated also receives some income from the sale of manufactured goods, community donations and fundraising activities.
9. HPA Incorporated employs thirty-five (35) "staff" and a further eighty (80) or so clients in a supported employment environment.
10. The objective of HPA Incorporated is to promote a positive image of people with disabilities by:
(a) operating employment and accommodation services that are structured in such a way that they promote maximum participation of consumers;
(b) providing services that promote the inclusion and participation of people with a disability as valued service members within the community;
(c) supporting consumers to access generic or specialist services which meet their individual needs;
(d) providing opportunities and appropriate levels of support to people with a disability to live the lifestyle of their choice.
11. HPA Incorporated consists of the following divisions:
· Kokoda Industries - which manufactures and wholesales a variety of woodwork and metalwork products, including parkland furniture, lattice work, pallets, survey pegs and sprinkler stands. Client focus is on people with mental and physical disabilities;
· Supertube Outdoor furniture - which manufactures, wholesales and retails a variety of outdoor furniture constructed from PVC piping and jarrah, including innovative products such as pet beds, bike stands and drink trolleys. Client focus is on people with mental and physical disabilities;
· Calico Connection - which manufactures and wholesales calico products, including tourist and conference bags, bank bags, mineral sample bags, aprons and fly nets. Client focus is on people with mental and physical disabilities;
· Shadow Prints/Joblink Employment Service - which provides screen printing services for products from Calico Connection, as well as independently produced clothing and cloth products such as t-shirts and towels. Client focus is on people with psychiatric disorders;
· Palmerton Business Service - which provides a retail shopfront located in Palmerston for Supertube products, as well as the manufacture of jarrah and metalwork furniture. Also manufactures and wholesales calico products similar to Calico Connection. Client focus is on people with mental and physical disabilities;
· Darwin Accommodation Services - provides accommodation for clients in the Darwin, Palmerston and surrounding areas. Client focus is on people with mental and physical disabilities."
Consideration
The Act
[14] The capacity for the Commission to issue awards is prescribed in Part VI of the Workplace Relations Act 1996 ("the Act"). Section 111(1A) of Division 3 of that Part provides that:
"Subject to this Act, the Commission may do any of the things mentioned in subsection (1) in relation to an industrial dispute arising under this Act."
[15] In subsection (1) of s.111 the Act provides that:
"The Commission may:
...
(b) make an award or order, including one by consent of the parties, in relation to all or any of the matters in dispute, including:
(i) a provisional award or order; or
(ii) an interim award or order;"
[16] In the performance of its functions s.88B requires:
"(1) The Commission must perform its functions under this Part in a way that furthers the objects of the Act and, in particular, the objects of this Part."
[17] The objects of the Part are that:
"The objects of this Part are to ensure that:
(a) wages and conditions of employment are protected by a system of enforceable awards established and maintained by the Commission; and
(b) awards act as a safety net of fair minimum wages and conditions of employment; and
(c) awards are simplified and suited to the efficient performance of work according to the needs of particular workplaces or enterprises; and
(d) the Commission's functions and powers in relation to making and varying awards are performed and exercised in a way that:
(i) encourages the making of agreements between employers and employees at the workplace or enterprise level; and
(ii) uses a case-by-case approach to protect the competitive position of young people in the labour market, to promote youth employment, youth skills and community standards and to assist in reducing youth unemployment."
(my underlining)
[18] It follows that whether an award should issue or not is a matter of discretion but in exercising that discretion I must further the objects of Part VI which in turn involves ensuring that the elements of s.88B are met.
[19] The principal objects of the Act must also be sought to be furthered. Relevantly, the principal objects are:
"The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by
...
(b) ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and
(c) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act; and
(d) providing the means:
(i) for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees at the workplace or enterprise level, upon a foundation of minimum standards; and
(ii) to ensure the maintenance of an effective award safety net of fair and enforceable minimum wages and conditions of employment; and
(e) providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them; and ..."
[20] It seems to me then that in the circumstances of this matter I must balance objects which include (i) ensuring Ms Lorman has an enforceable award which applies to her employment, (ii) ensuring that if I issued an award that it was suited to the performance of work in accordance with the needs of HPA, (iii) encouraging the making of agreements between HPA and its employees, and (iv) supporting agreement making which is both fair and effective.
[21] There may be circumstances where not all of the elements of these objects are compatible with each other and some may indeed be in conflict.
Is there an enforceable award?
[22] The parties are at odds over whether there is an enforceable award already in existence. The ASU claims that neither the Disability Services Award nor the Clerks Award applies to Ms Lorman's employment, although initially it was conceded that the Clerks Award did apply. HPA claims that the Disability Services Award does apply and in the event that it does not then the Clerks award may apply.
[23] It is not clear whether any award does apply and it is not my intention to attempt to make any definitive finding in that regard. I would however make the observation that in my view it is likely that the Disability Services Award does apply and in the event that it does not I consider the Clerks Award would be likely to apply.
[24] In any event it is clear that HPA considers that the Disability Services Award does apply and from that I infer that HPA currently and into the future will apply that award on the assumption that it is enforceable. In those circumstances I consider that the meeting of this object should not take primacy over the other objects in deciding whether to issue an award or not.
Would the award sought be suited?
[25] The award that is sought to apply would apply to only one employee out of the 35 that are employed by HPA. The remaining employees, or at least a substantial number of those employees, are covered by the Disability Services Award. That award is obviously an award that is designed for and applies to organisations such as HPA.
[26] Although some of the work performed at HPA, notably that of Ms Lorman, is similar to the award being sought by the ASU, that award is designed for and applies to a quite different type of organisation. It is my view that the Disability Services Award, even if it is not an enforceable award, is a more appropriate award for the work concerned and is more suited to the needs of the enterprise.
[27] There are six operating Divisions at HPA and there is no dispute that the Disability Services Award applies to five of those Divisions. HPA says it also applies to the sixth Division which the ASU disputes and seeks this award to cover Ms Lorman.
[28] If an award were to issue as sought by the ASU, I do not consider that the award sought would suit the efficient performance of work according to HPA's needs. It would create a significant differential between employees according to which award applied and would apply to only one of the six operating Divisions. That in my view is likely to have a restrictive, and potentially disruptive effect on the performance of work.
Would an award encourage agreement-making?
[29] The ASU argued that the issuance of an award in the terms sought would assist in agreement making. I fail to see how this could be the case. If an award issued there would be one employee with substantially better conditions covered by an award where the union party was a different organisation to the award that applied to the majority if not all other employees.
[30] That situation is unlikely to lead to there being any incentive for HPA to want an agreement of any sort and is more likely to lead to attempts to have the CETSS Award cover more than one employee. Even should that eventuate, given the differential I do not see how that could result in anything other than a disincentive to agreement making, conversely it would more likely be an incentive for award making and extending.
Would agreement making be fair and effective?
[31] Agreement making should still be able to be fair without the award sought being issued. An award is said to already apply to the majority of employees and even if it did not, it would appear to be highly probable that it would be designated as a relevant award should there be any doubt in that regard. Should an agreement be reached and Ms Lorman contend that there was no relevant award then the CETSS Award could be designated for her. I do not consider that the failure to issue an award for Ms Lorman would have any effect on the fairness for agreement making.
[32] The issuance of an award however would more likely lead to less effective agreement making. For the reasons identified above, HPA would be much less inclined to agreement making should an award issue.
Conclusion
[33] I therefore consider that it is not appropriate that the award issue as sought by the ASU.
BY THE COMMISSION:
DEPUTY PRESIDENT
Appearances:
L. Matarazzo for the Australian Municipal, Administrative, Clerical and Services Union
M. Blandy of the Northern Territory Chamber of Commerce and Industry for HPA Incorporated
Hearing details:
2003.
Darwin:
August 29.
Printed by authority of the Commonwealth Government Printer
<Price code {C}>
2 CETSS Award, cl.3.2 - "Who does the award apply to?".
4 Disability Services (Northern Territory) Award 1992 AW778716CRN.