AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170LW Application for settlement of dispute
Australian Municipal, Administrative, Clerical and Services Union
and
Darwin Aboriginal & Islander Womens Shelter (DAIWS)
(C2003/4948)
Northern Territory |
|
DEPUTY PRESIDENT LEARY |
HOBART, 23 NOVEMBER 2004 |
DECISION
[1] The Australian, Municipal, Administrative, Clerical and Services Union (the ASU) has notified of a dispute with the Darwin Aboriginal & Islander Womens Shelter (DAIWS) in respect to "the decision by DAIWS not to flow on the year 2003 safety net adjustment to ASU members employed at DAIWS."
[2] The parties are respondent to the Darwin Aboriginal & Islander Womens Shelter (DAIWS) Certified Agreement 2000 (the CA).
[3] Clause 1.4.2 of the CA provides:
"This agreement will be read in conjunction with the Social and Community Services Industry - Community Services Workers Northern Territory Award 1996, as varied from time to time. To the extent of any inconsistency between the agreement and the Social and Community Services Industry - Community Services Workers Northern Territory Award 1996, the contents in the agreement will prevail."
[4] The CA provides at clause 5.1:
"The annual salary rates in this agreement will be increased on the 1st July, each year by the weekly increased amounts as varied in the Social and Community Services Industry - Community Services Workers Northern Territory Award 1996 with effect from January 1, 2001."
[5] The matter is brought to the Commission by reference to clause 3.2.1.6 which states:
"Should a matter remain unresolved, the grievance or dispute may be referred to the Australian Industrial Relations Commission for conciliation or arbitration by either of the parties."
[6] By decision of Senior Deputy President Cartwright [Print PR920526] the Social and Community Services Industry - Community Services Workers Northern Territory Award 1996 (the award) was varied as part of the award simplification exercise. The variations were made with the consent of both the ASU and the Northern Territory Chamber of Commerce and Industry (NTCCI). The NTCCI represented DAIWS in respect to this dispute notification.
[7] The variation leading to the dispute at hand was the removal from the award of Pay Level 5 from the classification of Community Services Worker Grade 3, effective July, 2002. The disagreement between the parties centres on that Pay Level and DAIWS argued that as there is now no award Pay Level 5 for the Community Services Worker Grade 3 classification there is no entitlement to any increase determined by subsequent Safety Net Adjustment (SNA) decisions.
[8] The ASU argued that the provision in the CA over-rides the rates found in the award and that the employees classified at Level 5 Community Services Worker Grade 3 should receive any subsequent SNA increases.
[9] It is necessary to refer to the history of the award to establish the reason why the Pay level was removed from the award.
[10] The decision of the Commission in Print PR920526 states "The Conversion Principles in the Paid Rates Review Decision provide that awards require review under item 51(4) if they have not been adjusted in accordance with the minimum rates adjustment principle (MRA principle) or have been adjusted since that time other than by safety net adjustment or work value change. There was no suggestion in conference that the rates in the award had been through the minimum rates adjustment process and no other available evidence indicates that this is the case."
[11] The order implementing the decision in PR920526 provides the weekly minimum rates applicable for the classifications in the award, the order also states:
" * this paypoint has been deleted and the total rate specified will
apply only to employees who were classified as Level 3
Paypoint 5 prior to 24 July, 2002."
[12] The parties provided no detailed history as to why the paypoint had been deleted, likewise orders since that time indicate variations to the award for SNA's have been by consent, or at least not challenged, and the rate specified for paypoint 5 at the time of the decision in PR920526 has remained unchanged, that is, the subsequent SNA's have not been applied. By correction order in PR947655 the reference to Community Services Worker Grade 3, Paypoint 5 was removed. There is now no reference to the paypoint or an applicable rate of pay.
[13] The ASU argued that the words in the CA should be read in a `global context' and refer to increases generally and not to specific classification levels. If the rates in the award are increased by a SNA decision then the rates in the CA should be increased by the same amount whether or not the classifications in the CA are identical to the classifications in the award.
[14] DAIWS argued that it was the intent of the parties to the CA that the rates would remain consistent with those in the award, further it was evident that at the time of negotiation the rates in the CA were identical to those in the award. Accordingly DAIWS said ".....no other conclusion about the current and future wage rates of the Agreement can be interpreted other than they are to be consistent with the award."
[15] I have some difficulty with that argument as the award has been varied to include an additional paypoint for Community Services Worker Grade 2 yet the CA has not been varied to reflect that variation. Likewise the CA has not been varied to reflect the change to the classification Community Services Worker Grade 3, Paypoint 5 following the award simplification exercise.
[16] It was also argued by DAIWS that the only interpretation that could be placed on clause 5.1 was that the rates in the CA would only be varied in the same way as the rates in the award.
[17] The ASU argued that clause 5.1 in fact means that the rates in the CA, which are specifically prescribed and do not refer to the award rates, would be increased in accord with any increase determined by a SNA decision during the life of the CA. As such the Community Services Worker Grade 3, Paypoint 5 classification is still found in the CA and should be subject to the same increase as all other classifications in the CA.
[18] Further it was submitted that at the time of negotiation the parties had not contemplated "a paring back of rates of pay" in the award and no allowance was made for such change.
[19] In the absence of any submissions as to why the relevant award classification paypoint was deleted and what effect that would have on the CA, if any, it would seem that it is the interpretation and application of clause 5.1 which must be considered.
[20] Mr Matarazzo for the ASU, who was involved in the negotiation of the CA, was adamant that the intent of the parties was for SNA increases to be applied to the classifications in the CA, which at the time reflected the classifications in the award.
[21] DAIWS argued that the intent was that the CA rates would at all time reflect the rates and classifications in the award. That argument fails however as there have been variations to the award which have not been applied to the CA and that is not what clause 5.1 states.
[22] It would seem that in the process of negotiation it was agreed that increases in the CA would relate to SNA increases although the process described in clause 5.1 does not satisfy the format of the present award. There are no annual salary rates as the award was converted to a weekly rate scale following award simplification, clause 5.1 refers to the `weekly increased amounts' as varied etc. but does not provide, as submitted by DAIWS, that each classification and paypoint will remain identical with the comparable classification and paypoint in the award. It is inferred that all of the rates found in the CA will reflect the `increased amounts' as varied in the award. The `increased amounts' in the award are common to all classifications and represent the SNA determination.
[23] Clause 5.1 makes no reference to, or allowance for, any variation to the award classifications or any other of the award provisions, it does no more than refer to the increases available each year in a general way rather than with any specificity. Clause 5.1 does not say that the CA will be varied, or applied, in the same terms as the award nor does it say that the CA will adopt any changes made to the award, only that the rates will be increased by the `weekly increased amounts' as varied in the award.
[24] The CA takes precedence in the event of any inconsistency between its provisions and those found in the award.
[25] DAIWS has increased all other classification paypoints by the relevant SNA amount but has not increased the rate of pay for those employees classified Community Services Worker Grade 3, Paypoint 5, which classification and paypoint level remains in the CA albeit having been removed from the award.
[26] It seems to me that the clear intent of those negotiating the CA was to apply the outcome of SNA decisions to the classifications in the CA during its period of operation. The changes implemented, by consent, following award simplification were not anticipated and could not have been contemplated by the parties at the time of the negotiations. It seems unfair and unjust to deny employees at the Community Services Worker Grade 3, Paypoint 5 classification, which is still prescribed in the CA, increases which have been applied to all other employees and which would have applied had the award structure not been changed to remove the classification.
[27] Having considered the submissions of the parties I am of the view that the intent of the parties was that SNA decisions would be applied to the classifications in the CA. Accordingly I am of the view that clause 5.1 prescribes that intent although poorly expressed. Clause 5.1 was drafted in the absence of any foresight as to future changes to the award and does not prescribe that the rates and classifications would remain consistent with those in the award.
[28] It was also claimed by DAIWS that "when they assessed what they [the employees] were getting under the base rates they were actually getting a higher amount and therefore that is why the increase wasn't applied." That submission is inconsistent with the submission that clause 5.1 required that the CA maintain award rates.
[29] DAIWS raised costing concerns and submitted that it paid the employees in excess of the rates found in the CA, that being the case any increases awarded can be absorbed against payments in excess of the CA prescribed rates.
[30] Further, any retrospective entitlement to an increase as a result of this decision can be adjusted by instalments if DAIWS is unable to meet the entitlement immediately.
[31] The rate of pay prescribed for Community Services Worker Grade 3, Paypoint 5 found in the CA should be increased in the same way and by the same amount as all other classification rates have been increased in the CA.
[32] I so decide.
BY THE COMMISSION:
DEPUTY PRESIDENT
Appearances:
L. Matarazzo, for the Australian Municipal, Administrative, Clerical and Services Union.
M. Humphreys for the Darwin Aboriginal & Islander Womens Shelter (DAIWS).
Hearing details:
Darwin
Conferences
2003
August, 26
2004
January, 21
Hearing
2004.
June, 16
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