P0197 Dec 1462/00 D Print T3896
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Review of awards pursuant to Item 51 of Part 2 of Schedule 5 of the
Workplace Relations and Other Legislation Amendment Act 1996
(C No. 00028 of 1998)
PITJANTJATJARA COUNCIL INC. AND ASSOCIATED
ORGANISATIONS AWARD 1991
(ODN C No. 30771 of 1989)
[Print J8996 [P0197]]
Various employees |
Northern Territory |
COMMISSIONER EAMES |
DARWIN, 30 NOVEMBER 2000 |
Award simplification.
DECISION
[1] This matter first came before the Commission as an application under Item 49(2) of the Transitional Provisions of the Workplace Relations Act 1996 (the Act), to vary the Pitjantjatjara Council Inc and Associated Organisations Award 1991 (the Award), to include provisions of that Award as exceptional matters, in addition to those prescribed in s.89A of the Act. The application was made by consent of all the parties to the Award.
[2] It was not possible, due to time constraints to have the application determined, prior to the expiry of the Item 49 interim period (as described in the transitional provisions).
[3] The Award is now before the Commission pursuant to Item 51 of the Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act), and I have chaired many conferences involving all the parties, and received written submissions regarding the variations to the Award, subject to this decision.
[4] The parties have now presented me with an agreed position, which gives rise to changes in the content and/or structure of the Award clauses, which I have now, reviewed, and have satisfied myself that the proposed simplified Award meets all the necessary criteria, having regard to Item 51(3), and should now be adopted.
[5] Principle 9 of the Award Simplification Principles [Print P7500] states as follows:
"The new Hospitality Award which we propose, subject to settlement of the draft order, provides guidance to the parties to other awards in the award simplification process. In each award, account will need to be taken of any special circumstances which might be relevant."
[6] It was a common ground in this matter that the Commission should weigh heavily, the special circumstances of persons involved with Aboriginal Organisations and Communities, covered by the Award. These organisations are based in and around Alice Springs and provide support to the communities situated in the Anangu Pitjantjatjara Lands.
[7] There are a number of factors which impact on employees under this Award, that would not apply in a standard workplace, including cultural factors, geographical environment, organisational structures and the relationship with funding bodies such as the Aboriginal and Torres Strait Islander Commission (ATSIC) and the Community Development Employment Project (CDEP).
[8] I have endeavoured to take account of these factors, and balance that with the statutory responsibility the Commission has in reviewing awards so as to provide a genuine safety net of wages and conditions, catering for a productive and efficient workplace having regard to fairness to both employers and employees.
[9] The Award will be varied so as to remove provisions which ceased to have effect under Item 50 of Part 2 of Schedule 5 of the WROLA Act, other than clauses which are administrative in nature or are both incidental to allowable award matters and necessary for the effective operation of the Award.
[10] In my view the Award will then be varied, consistent with the Award Simplification Principles and the requirements of Item 51(7)(d) of the WROLA Act, save and except for the comments I make later in this decision.
[11] As varied, the Award will in my view satisfy the criteria set out in sub-items (6) and (7) of Item 51 of Part 2 of Schedule 5 of the WROLA Act.
[12] A teleconference was conducted on 29 November 2000, to finalise the terms of the final award, and written submissions were presented to the Commission on behalf of all parties. The following comments are made on a number of clauses, as there has been some departure from earlier test case decisions of the Commission.
[13] The agreed wording of this clause, is in my view more "user friendly" and in plainer English than that used in the Award Simplification decision, and there is no departure in substance from the contents in the clause determined in the Hospitality Award decision [Print P7500].
[14] The parties have slightly revised the wording of the standard provisions contained in these clauses, without altering any right or duty arising from the standard clauses. The amendments are plain English amendments designed to make the clauses more "user friendly".
[15] The allowance is provided for in clause 23.2.2 and this clause is an explanation of how the allowance is calculated. The plain English format is permitted by Item 51(7)(c) and is supported by s.89A(6) of the Act.
[16] The parties acknowledge that these clauses represent a departure from the "framework" personal leave clause developed by the Full Bench in the Award Simplification Case. The parties have concentrated on clarity, rather than form, in reviewing these aspects of the Award, and particularly having regard to the nature and location of this industry, and have sought to prescribe duties and obligations in plain English. I accept and adopt the approach taken in the circumstances of the application of this Award.
[17] The parties submitted that this clause is allowable as it meets the description of allowable forms of leave contained at paragraph 22 of the Full Bench decision in the Forms of Leave Test Case [Print Q9399].
[18] Because it is available only in exceptional circumstances, it is said to be leave relating to:
"an unplanned absence from work resulting from a personal obligation rather than one directly related to work. In that sense it may be considered to be a like form of leave to compassionate and sick leave."
[19] I am prepared to accept this submission as I believe the point is supported by s.89A(2)(g) of the Act.
[20] The parties have reviewed Schedule B and remodelled it on the basis of the following principles, which are contained in the written submission tendered to the Commission on 27 November 2000.
(a) The base level trade rate has been used as the benchmark classification. This is located at point B.2.6 of the new Schedule. That rate is currently (consequent upon the application of the Safety Net Review - May 2000 - Decision [Print S5000] set at $26,525 per annum.
(b) The current base level trade rate is $849 per annum [approximately 3.3 per cent] above the annualised minimum trade rate ($492.20 x 313÷6=$26,525). The parties believe this differential should be retained as it is justified on work value grounds having regard to the nature of the "industry" - that is, having regard to the conditions under which the work covered by the award is performed.
(c) The Paid Rates Review principles require a three-step process. This process was conveniently summarised by Vice President Ross in relation to the Masters and Deckhands Award 1992 [Print S9495] in the following terms:
(i) The key classification rate in the award is to be fixed by reference to the minimum rate for a fitter in the Metal Industrial Award 1998.
(ii) Once the key classification rate has been properly fixed the other rates in the award are adjusted by applying the internal award relativities which have been established, agreed or maintained; and
(iii) Any residual component above the identified minimum rate is to be separately identified and not subject to future increases.
(d) In his decision concerning the Masters and Deckhands Award, Vice President Ross accepted evidence and submissions of the parties that a "nature of the industry" component should apply to the minimum rates in the award. The "nature of the industry" was described earlier in a decision of Commissioner Wilks (in relation to the Tugboat Industry (Consolidated) Award) in the following passages:
In assessing work value it is appropriate to take into account not only skills and competency, although these are central to the task. It is also appropriate to take into account elements such as responsibility, knowledge and the environment under which the work is performed, ie the "nature of the industry". [Print R1723, page 7]
(e) Ross VP accepted evidence supporting a differential rate as between Port Hedland and that applying in the industry generally. The evidence was that environmental factors such as exposure to the seas state in an open port; extreme heat in excess of 45 degrees C on board vessels during the dry season; Port Hedland's location within the cyclone belt, and substantial tidal fluctuations, supported the proposed "industry allowance".
(f) The parties believe that while important environmental factors operate on the work performed by employees under this award, the work value principles of the Commission are satisfied in relation to the responsibility and "knowledge" factors that are also present. These factors are such as to justify a "nature of the industry" salary premium being retained in the award.
(g) I.R. 2000 who appeared on behalf of the Respondents in this matter has previously lodged with the Commission a witness statement from Joseph Daniel Alton dealing with the factors mentioned in paragraph 6. The parties rely on that statement to support their agreed position in relation to rates of pay.
(h) Schedule B of the draft Award builds in the 3.3 per cent "industry allowance" factor and applies it across all rates, based on the internal relativities which have been established, agreed or maintained by the parties over the life of the award.
(i) As the parties understand the Paid Rates Review Principles, they are required to separately identify increments which are not directly accessible on work value grounds and to locate these in a "residual" payments column, against which future living wage increases must be absorbed. They have prepared the draft replacement Schedule B on this basis, as it seems apparent that incremental progression under the current award is expressed to be based on service and diligence rather than on increased "work value".
[21] I have read the witness statements of Mr Alton, and together with my knowledge of the communities and persons affected by these Award provisions, have come to the view that the submissions made by the parties regarding wage rates should be adopted in full, as the Paid Rates Review principles have been satisfied. The reviewed Schedule B will be incorporated into the Award, including the "industry allowance".
[22] Accordingly an order will issue giving effect to a variation to the above Award which will come into effect from 30 November 2000 and will remain in force for a period of six months.
BY THE COMMISSION:
Appearances:
N. Swancott and A. Beer for the Australian Liquor, Hospitality and Miscellaneous Workers Union.
L. Matarazzo for the Australian Municipal, Administrative, Clerical and Services Union.
R. Somes and C. Raimondo for I.R. 2000.
Conference details:
2000.
Darwin:
November 29.
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