STATE WAGE CASE 2010 (No. 2)
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
FULL BENCH
Summons to Show Cause - Commission on its own Initiative
pursuant to Part 3 of Chapter 2 of the Industrial Relations Act 1996
(No. IRC 471 of 2010)
Before The Honourable Justice Boland, President
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25 March 2011
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The Honourable Justice Walton, Vice-President
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The Honourable Mr Deputy President Harrison
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Mr Deputy President Grayson
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Commissioner Tabbaa
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ORDERS
The Full Bench makes the following orders:
(1) Pursuant to s
51(1) of the Industrial Relations Act, the Commission orders that the
Commission's Wage Fixing Principles shall be as set out in Appendix A to this
decision and shall operate on and from 4 April 2011.
(2) The Principles
in Order (1) supersede the Principles that are Appendix A to the State Wage
Case 2010 (2010) NSWIRComm 183.
(3) The new
Principles shall be reviewed in the 2012 State Wage Case.
APPENDIX A
INDUSTRIAL
RELATIONS COMMISSION OF NEW SOUTH WALES
STATE WAGE CASE
MARCH 2011
WAGE FIXING
PRINCIPLES
1. Preamble
1.1 These
principles have been developed to accommodate the changing nature of the
jurisdiction of the Industrial Relations Commission of New South Wales under
the Industrial Relations Act 1996 ("the Act") in light of the
creation of a national system of private sector employment regulation,
relevantly established by the Industrial Relations (Commonwealth Powers) Act
2009, the Industrial Relations Amendment (Consequential Provisions) Act
2010, the Fair Work Act 2009 (Cth) and the Fair Work (State Referral and
Consequential and Other Amendments) Act 2009 (Cth).
1.2 The four
primary aims of these principles are:
1.2.1 to provide
a framework under which wages and employment conditions in the government and
local government sectors of New South Wales remain fair and reasonable in
accordance with the requirements of the Act, and economically sustainable
having regard to the obligation of the Commission to take into account the
public interest and, in doing so, have regard to the objects of the Act and to
the state of the economy of New South Wales and the likely effect of the
Commission's decisions on that economy;
1.2.2 to provide
a framework that accommodates the interests of employers and employees and
their representatives and ensures consistency of approach and certainty and
predictability as to the principles that are to operate in respect of the
fixation of wages and the setting of employment conditions;
1.2.3 to provide
a framework in which all operative and non-operative awards within the
Commission's jurisdiction are maintained up to date in respect of rates of pay
and allowances; and
1.2.4 to protect
the low paid.
1.3 Movements
in wages and conditions must fall within the following principles.
2. When an
Award may be Varied or Another Award Made Without the Claim Requiring
Consideration as an Arbitrated Case
2.1 In the
following circumstances an award may, on application, be varied or another
award made without the application requiring consideration as an Arbitrated
Case under Principle 8:
(a) to include
previous State Wage Case increases in accordance with Principle 2.2;
(b) to incorporate
test case standards in accordance with Principle 3;
(c) to adjust wages
for the State Wage Case 2010 in accordance with Principle 4;
(d) to adjust
allowances and service increments in accordance with Principle 5;
(e) where the
application is consented to by the parties it will be dealt with in terms of
the Act;
(f) to approve an
enterprise arrangement reached in accordance with Principle 10; and
(g) to adjust wages
pursuant to an application claiming that work has been undervalued on a gender
basis in accordance with Principle 12.
2.2 Applications
for increases available under previous State Wage Case decisions will be
determined in accordance with the relevant principles contained in those
decisions.
3. Test Case
Standards
Test case standards established and/or revised by a
Full Bench of the Commission may be incorporated into an award in accordance with
the Act. Where disagreement exists as to whether a claim involves a test case
standard, those asserting that it does must make an application for a special
case.
4. State Wage
Case Adjustments
4.1 Following
the completion of an Annual Wage Review by Fair Work Australia, the Commission
shall issue a notice to show cause why that decision should not be flowed on to
relevant New South Wales awards (as per 4.3(c) of this Principle) in the New
South Wales industrial jurisdiction.
4.2 Subject to
s 50(1) of the Act, if there are no written objections from any of the parties
to the flow on of the Fair Work Australia decision then the Commission may
issue a general order "on the papers" for that decision to apply to
all relevant New South Wales awards.
4.3 Unless the
Commission determines otherwise, all relevant New South Wales awards (excluding
those that are caught by Principles 4.3(c) and 14) will be varied to include a
State Wage Case adjustment by the making of a general order of the Commission
pursuant to s 52 of the Act, subject to the following:
(a) At the time when
the award is to be varied to insert the State Wage Case adjustment (or a
proportionate amount in the cases of part-time and casual employees, juniors,
trainees, apprentices, employees on a probationary rate, employees on a
supported wage or with permits under s 125 of the Act), the following clause
will be inserted in the award:
"The rates of pay in this award include the
adjustments payable under the State Wage Case 2010. These adjustments may be
offset against:
(i) any equivalent
overaward payments, and/or
(ii) award wage
increases other than State Wage Case adjustments."
The above clause will replace the offsetting clause
inserted into awards pursuant to the Principles determined in the State Wage
Case 2009 decision.
(b) By consent of
all parties to an award, where the minimum rates adjustment has been completed,
award rates may be expressed as hourly rates as well as weekly rates. In the
absence of consent, a claim that award rates be so expressed may be determined
by arbitration.
(c) The State Wage
Case adjustment will only be made in respect of rates in awards which have not
been increased, other than by State Wage Case adjustments.
(d) The State Wage
Case adjustment may apply where the rates in an award have increased under the
Arbitrated Case and/or Equal Remuneration Principles in accordance with the
Commission's Decision as set out in Principles 8.2(l) and 12.16 respectively.
5. Adjustment
of Allowances and Service Increments
5.1 Existing
allowances which constitute a reimbursement of expenses incurred may be
adjusted from time to time where appropriate to reflect relevant changes in the
level of such expenses.
5.2 Existing
allowances which relate to work or conditions which have not changed other than
by State Wage Case adjustments, including shift allowances expressed as
monetary amounts and service increments, will be increased by 4.25 per cent for
the State Wage Case 2010 adjustment by general order of the Commission pursuant
to s 52 of the Act.
5.3 Existing
allowances for which an increase is claimed because of changes in the work or
conditions will be determined in accordance with the relevant provisions of the
Arbitrated Case Principle if there is no consent.
5.4 New
allowances to compensate for the reimbursement of expenses incurred may be
awarded where appropriate having regard to such expenses.
5.5 Where
changes in the work have occurred or new work and conditions have arisen, the
question of a new allowance, if any, will be determined in accordance with the
Arbitrated Case Principle.
5.6 New
service increments may only be awarded to compensate for changes in the work
and/or conditions and will be determined in accordance with the relevant
provisions of the Arbitrated Case Principle.
6. Award Review
Classification Rate
6.1 The Award
Review Classification Rate of $592.30 shall be the rate below which no
full-time adult employee (excluding trainees, apprentices and employees on a
supported wage or on a probationary rate) should be paid under the relevant
award.
6.2 Where a
classification in an award is below the Award Review Classification Rate the
following process will apply on application:
(a) The award will
be listed for a mention at which the parties will report as to:
(i) how the Award
Review Classification Rate will be achieved, or
(ii) whether the
award is obsolete.
The Commission may direct the parties to confer in
order to set a program for an updating of the award to reflect the Award Review
Classification Rate.
(b) If the parties
to the award do not appear at this mention, the Commission shall request the
parties to the award to show cause why the award should not be considered
obsolete and rescinded under s 17(3) of the Act.
(c) Where no
agreement is reached with respect to (a) above, the Commission shall re-list
the matter in order to conciliate the issues in dispute.
(d) If the attempt
at conciliation is unsuccessful the Commission shall arbitrate any outstanding
issue(s).
7. Minimum Wage
for Award/Agreement Free Employees
7.1 Subject to
the provisions set down in Principle 4, State Wage Case Adjustments and
following the completion of an Annual Wage Review by Fair Work Australia:
7.1.1 The
Minimum Wage shall apply to those adult employees, junior employees, employees
to whom training arrangements apply and employees with a disability who are
employed in the jurisdiction of the Commission and whose employment is not
subject to the terms of an industrial instrument.
7.1.2 The minimum
weekly rate of pay payable to an adult employee (as defined in s 5 of the Act)
engaged on a full-time basis whose employment is not subject to the terms of an
industrial instrument (as defined in s 8 of the Act) shall be the rate of pay
equal to the National Minimum Wage, as varied from time to time by the
Commission.
7.1.3 The
minimum hourly rate of pay payable to an adult employee (as defined in s 5 of
the Act) engaged on a part-time basis whose employment is not subject to the
terms of an industrial instrument (as defined in s 8 of the Act) shall be the
rate of pay equal to the National Minimum Wage, as varied from time to time by
the Commission divided by 38.
7.1.4 The
minimum hourly rate of pay payable to an adult employee (as defined in s 5 of
the Act) engaged on a casual basis whose employment is not subject to the terms
of an industrial instrument (as defined in s 8 of the Act) shall be the rate of
pay equal to the National Minimum Wage, as varied from time to time by the
Commission divided by 38 plus any casual loading calculated in accordance with
7.1.8 hereof.
7.1.5 Unless the
Commission otherwise determines, the minimum weekly rate of pay for junior
employees, employees to whom training arrangements apply and employees with a
disability (as defined by s 12 of the Fair Work Act 2009 (Cth)) engaged
on a full-time basis whose employment is not subject to the terms of an
industrial instrument (as defined in s 8 of the Act) shall be the rate of pay
equal to the special National Minimum Wage as per s 294(1)(b) of the Fair
Work Act 2009 (Cth), as varied from time to time by the Commission.
7.1.6 Unless the
Commission otherwise determines, the minimum hourly rate of pay for junior
employees, employees to whom training arrangements apply and employees with a
disability (as defined by s 12 of the Fair Work Act 2009 (Cth)) engaged
on a part-time basis whose employment is not subject to the terms of an
industrial instrument (as defined in s 8 of the Act) shall be the rate of pay
equal to the special National Minimum Wage as per s 294(1)(b) of the Fair
Work Act 2009 (Cth), as varied from time to time by the Commission divided
by 38.
7.1.7 The
minimum hourly rate of pay for a junior employee, employees to whom training
arrangements apply and employees with a disability (as defined by s 12 of the Fair
Work Act 2009 (Cth)) engaged on a casual basis whose employment is not
subject to the terms of an industrial instrument (as defined in s 8 of the Act)
shall be the rate of pay equal to the special National Minimum Wage as per s
294(1)(b) of the Fair Work Act 2009 (Cth), as varied from time to time
by the Commission divided by 38 plus any casual loading calculated in
accordance with 7.1.8 hereof.
7.1.8 Casual
loadings (if applicable) for adult employees, junior employees, employees to
whom training arrangements apply and employees with a disability who are award
or agreement free will be adjusted in line with s 294(1)(c) of the Fair Work
Act 2009 (Cth), as varied from time to time by the Commission.
8. Arbitrated
Case
8.1 General
Any claim for increases in wages and salaries, or
changes in conditions in awards, other than those allowed elsewhere in the
Principles, will be processed as an Arbitrated Case by a Full Bench of the
Commission unless otherwise allocated by the President. In determining such an
application, the Commission shall, subject to the relevant provisions of the
Act, do so in accordance with the following criteria:
8.2 Work Value
Considerations
(a) Changes in work
value may arise from changes in the nature of the work, skill and
responsibility required or the conditions under which work is performed.
Changes in work by themselves may not lead to a change in wage rates. The
strict test for an alteration in wage rates is that the change in the nature of
the work should constitute such a significant net addition to work requirements
as to warrant the creation of a new classification or upgrading to a higher
classification.
(b) In addition to
meeting the test in (a), a party making a work value application will need to
justify any change to wage relativities that might result not only within the
relevant internal award structure but also against any external classification
to which that structure is related. There must be no likelihood of wage
leapfrogging arising out of changes in relative position.
(c) The foregoing
circumstances are the only ones in which rates may be altered on the ground of
work value and the altered rates may be applied only to employees whose work
has changed in accordance with this Principle.
(d) In applying the
Work Value Changes Principle, the Commission will have regard to the need for
any alterations to wage relativities between awards to be based on skill,
responsibility and the conditions under which work is performed.
(e) Where new or
changed work justifying a higher rate is performed only from time to time by
persons covered by a particular classification, or where it is performed only
by some of the persons covered by the classification, such new or changed work
should be compensated by a special allowance which is payable only when the new
or changed work is performed by a particular employee and not by increasing the
rate for the classification as a whole.
(f) The time from
which work value changes in an award should be measured is the date of
operation of the second structural efficiency adjustment allowable under the
State Wage Case 1989 (1989) 30 IR 107 or the last work value inquiry or the
date of a consent award where the parties have agreed pursuant to a consent
award the wage increases reflect increases in work value, whichever is the
later.
(g) Care should be
exercised to ensure that changes that were, or should have been, taken into
account in any previous work value adjustments or in a structural efficiency
exercise are not included in any work evaluation under this Principle.
(h) Where the tests
specified in (a) are met, an assessment will have to be made as to how that
alteration should be measured in money terms. Such assessment will normally be
based on the previous work requirements, the wage previously fixed for the work
and the nature and extent of the change in work or the date of a consent award
where the parties have agreed pursuant to a consent award the wage increases
reflect increases in work value.
(i) The expression
"the conditions under which the work is performed" relates to the
environment in which the work is done.
(j) The Commission
will guard against contrived classifications and over-classification of jobs.
(k) Any changes in
the nature of the work, skill and responsibility required or the conditions
under which the work is performed, taken into account in assessing an increase
under any other Principle of these Principles, will not be taken into account
under this Principle.
(l) In arbitrating
an application made under this Principle, the Commission is required to
determine whether or not future State Wage Case general increases will apply to
the award.
8.3 Productivity
and Efficiency Considerations
Productivity and efficiency measures that have
delivered substantial costs savings and/or productivity or efficiency
improvements or which have made a substantial contribution towards the
attainment of the objectives of the employer (including departments and agencies
of the Crown) in seeking to become more competitive and/or efficient, to which
employees have made a significant contribution, may constitute the basis for
increases to wages and salaries or improvements in employment conditions
without the requirement to make out a special case, provided that such
measures, savings or improvements have not already been taken into account in
previous wage adjustments.
8.4 Special
Case Considerations
8.4.1 A claim
for increases in wages and salaries, or changes in conditions in awards, other
than those allowed elsewhere in the Principles, and which is not based on work
value and/or productivity and efficiency pursuant to this Principle, will be
processed as a special case in accordance with the principles laid down in Re Operational
Ambulance Officers (State) Award (2001) NSWIRComm 331; (2001) 113 IR 384 and
the cases referred to therein at (165)-(168).
8.4.2 All
special cases shall be tested against the public interest.
8.5 Exclusions
8.5.1 Claims
that are based substantially on comparative wage justice, attraction and
retention or community standards will not be countenanced except as provided in
Re Public Hospital Nurses (State) Award (No 3) (2002) NSWIRComm 325; (2002) 121
IR 28 and Re Health Employees Pharmacists (State) Award (2003) NSWIRComm 453;
(2003) 132 IR 244.
8.5.2 There
shall be no double counting, provided, however, that an Arbitrated Case claim
may rely upon a cumulation of the factors referred to in this Principle.
9. Negotiating
Principles
9.1 In order
to encourage participation in industrial relations by representative bodies of
employees and employers, avoid industrial disputes, provide a prompt and fair
manner for their resolution with a minimum of legal technicality, and to
encourage and facilitate co-operative workplace reform, the following processes
shall be followed with respect to claims under Principles 8 and 12.
9.2 In respect
of the commencement of negotiations for a new award:
(a) At least one
month before the nominal expiry date of an award a party to the award must
notify the Commission (where a major industrial case is contemplated pursuant
to Practice Direction 8A) and the other parties to the award that it is their
intention to enter into negotiations for a new award in respect of claims
pursuant to Principles 8 and/or 12.
(b) The parties to
the award shall begin negotiations as soon as is practicable after the
notification has been given. In this regard, once a written claim has been made
by one party on another party, negotiations should begin within a reasonable
period of time unless it is agreed by the parties to postpone the commencement
of negotiations to a later time.
(c) Disputes about
these procedures shall be dealt with in accordance with the relevant dispute
resolution procedure.
9.3 Subject to
the provisions of the Act, and unless the Commission otherwise determines, a
party is not entitled to prosecute an arbitration unless the party has
bargained beforehand in good faith and, in particular, the party has:
(a) attended meetings
they have agreed to attend and had been represented at the negotiations by
persons capable of giving genuine consideration to the proposals of other
parties and giving reasoned responses to those proposals; and
(b) complied with
agreed or reasonable negotiating or meeting procedures; and
(c) disclosed
relevant information for the purposes of negotiation; and
(d) responded to
each other's claims and/or counter claims in a reasonable and timely manner.
These good faith bargaining requirements do not
require:
(a) a party to make
concessions during bargaining; or
(b) to reach
agreement on the terms that are to be included in the agreement.
9.4 The
Commission may assist the parties in reaching agreement. The Commission may
provide such assistance in respect of a dispute when a request is made by any
party or on its own motion.
9.5 The
Commission may exercise conciliation powers under the Act, and in that
connection may, at the request of all the parties to a dispute, engage in a
"Bluescope" process: see Construction, Forestry, Mining and Energy
Union (New South Wales Branch) and Macquarie Generation (2009) NSWIRComm 160;
Re Operational Ambulance Officers (State) Award (2008) NSWIRComm 168; Minister
for Industrial Relations (Notification under s 167 of a dispute between BHP
Billiton) and The Australian Workers Union (2002) NSWIRComm 378; Crown
Employees (NSW Fire Brigades Permanent Firefighting Staff) Award 2008 (2008)
NSWIRComm 174; and Re Crown Employees (Public Sector - Salaries 2008) Award (2008)
NSWIRComm 193.
9.6 If
conciliation fails, and the parties do not elect for the "Bluescope"
process, the Commission may arbitrate consistent with the powers under the Act
and these Principles.
10. Enterprise
Arrangements
10.1 The
Commission may approve of enterprise arrangements reached in accordance with
this Principle and the provisions of the Act.
10.2 Industrial
unions of employees and industrial unions of employers, or industrial unions of
employees and employers, or employees and employers may negotiate enterprise
arrangements which, subject to the following provisions, shall prevail over the
provisions of any award or order of the Commission that deals with the same
matters insofar as they purport to apply to parties bound by the arrangements,
provided that, where the arrangement is between employees and an employer, a
majority of employees affected by the arrangement genuinely agree.
10.3 An
enterprise arrangement shall be an agreed arrangement for an enterprise, or
discrete section of an enterprise, being a business, undertaking or project,
involving parties set out in Principle 10.2.
10.4 Enterprise
arrangements shall be for a fixed term and there shall be no further
adjustments of wages or other conditions of employment during this term other
than where contained in the arrangement itself. Subject to the terms of the
arrangement, however, such arrangement shall continue in force until varied or
rescinded in accordance with the Act.
10.5 For the
purposes of seeking the approval of the Commission, and in accordance with the
provisions of the Act, a party shall file with the Industrial Registrar an
application to the Commission to either:
(a) vary an award in
accordance with the Act; or
(b) make a new award
in accordance with the Act.
10.6 On a
hearing for the approval of an enterprise arrangement, the Commission will
consider, in addition to the industrial merits of the case under the State Wage
Case Principles:
(a) ensuring the
arrangement does not involve a reduction in ordinary time earnings and does not
depart from the Commission's standards of hours of work, annual leave with pay
or long service leave with pay; and
(b) whether the
proposed award or variation is consistent with the continuing implementation at
enterprise level of structural efficiency considerations.
10.7 The
Commission is available to assist the parties to negotiations for an enterprise
arrangement by means of conciliation and, in accordance with these Principles
and the Act, by means of arbitration. If any party to such negotiations seeks
arbitration of a matter relating to an enterprise arrangement, such arbitration
shall be as a last resort.
10.8 Enterprise
arrangements entered into directly between employees and employers shall be
processed as follows, subject to the Commission being satisfied in a particular
case that departure from these requirements is justified:
(a) All employees
will be provided with the current prescriptions (e.g. award, industrial
agreement or enterprise agreement) that apply at the place of work.
(b) The arrangement
shall be committed to writing and signed by the employer, or the employer's
duly authorised representative, with whom agreement was reached.
(c) Before any
arrangement is signed and processed in accordance with this Principle, details
of such arrangement shall be forwarded in writing to the union or unions with
members or persons eligible for membership in that enterprise who are affected
by the changes and the employer association, if any, of which the employer is a
member.
(d) A union or
employer association may, within 14 days thereof, notify the employer in
writing of any objection to the proposed arrangements, including the reasons
for such objection and in such circumstances the parties are to confer in an
effort to resolve the issue.
(e) Where an
arrangement is objected to by a union or employer association and the objection
is not resolved, an employer may make application to the Commission to vary an
award or create a new award to give effect to the arrangement.
(f) A union and/or
employer association shall not unreasonably withhold consent to the
arrangements agreed upon by the parties.
(g) If no party
objects to the arrangement, then a consent application shall be made to the
Commission to have the matter approved in accordance with paragraph (e) of this
Principle.
(h) Such arrangement
once approved shall be displayed on a notice board at each enterprise affected.
11. Superannuation
11.1 An
application to make or to vary a minimum rates or paid rates award which:
(a) seeks a greater
quantum of employer contributions than required by the Superannuation
Guarantee (Administration) Act 1992 (Cth) ("the SGA Act"); or
(b) seeks employer
contributions to be paid in respect of a category of employee in respect of
which the SGA Act does not require contributions to be paid;
shall be referred to a Full Bench for consideration as
a special case, unless otherwise allocated by the President. Exceptions to this
process are applications which fall within the Enterprise Arrangements
Principle.
11.2 If an
application is made that does not fall within Principle 11.1, the Commission
will, subject to Principle 11.3:
(a) make or vary an
award by inserting a clause stating:
"Superannuation Legislation - The subject of
superannuation is dealt with extensively by federal legislation including the Superannuation
Guarantee (Administration) Act 1992 (Cth), the Superannuation Industry
(Supervision) Act 1993 (Cth); the Superannuation (Resolution of
Complaints) Act 1993 (Cth) and s 124 of the Industrial Relations Act
1996. This legislation, as varied from time to time, governs the superannuation
rights and obligations of the parties".
(b) if appropriate,
ensure that the award contains specification of an employee's earnings (e.g.
"ordinary time earnings") which, for the purposes of the SGA Act,
will operate to provide a "notional earnings base", and
(c) if the award is
to continue to prescribe a "flat dollar" amount of employer
contribution, ensure that appropriate amounts are inserted so as to give effect
to the levels of contribution required from time to time under the SGA Act.
11.3 The
Commission may award provisions which differ from those in Principle 11.2:
(a) by consent; or
(b) in the absence
of consent, by arbitration, provided the Commission is satisfied that there are
particular factors warranting the awarding of different provisions. Such
factors may include:
(i) the wishes of
the parties;
(ii) the nature of
the particular industry or enterprise;
(iii) the history of
the existing award provisions;
(iv) relevant
decisions of the Commission establishing superannuation principles; and
(v) relevant
statutory provisions.
11.4 Before any
different provisions are awarded under Principle 11.3, either by consent or
arbitration, the Commission must be satisfied, on expert evidence, that the
award to be made will not contain requirements that would result in an employer
not meeting the requirements imposed by the SGA Act.
11.5 Subject to
s 124 of the Act, any specification of a fund will carry with it the obligation
for an employer to pay contributions at such intervals as are required by the
fund.
11.6 In
determining applications as to specification of a fund, the Commission will, as
appropriate:
(a) ensure that any
fund specified by it is one into which payment will meet the employer's
obligations under the SGA Act;
(b) have regard to
the Superannuation Industry (Supervision) Act 1993 (Cth) ("the
Supervision Act") which provides for the prudent management of certain
superannuation funds and for their supervision by the Insurance and
Superannuation Commissioner. In particular, the requirement with respect to
equal representation of employers and members on what are called "standard
employer-sponsored funds" (Pt 9 of the Supervision Act) should be noted;
(c) have regard to
previous decisions of the Commission with respect to the specification of a
fund or funds; and
(d) have regard to
relevant statutory provisions.
11.7 Due to the
variety of existing award superannuation provisions and the impact and
complexity of the SGA Act, all applications to the Commission may not be
capable of being dealt with in accordance with the approach set out above. In
any such case it may be appropriate for the application to be dealt with as a
special case.
12. Equal
Remuneration and Other Conditions
12.1 Claims may
be made in accordance with the requirements of this Principle for an alteration
in wage rates or other conditions of employment on the basis that the work,
skill and responsibility required, or the conditions under which the work is
performed, have been undervalued on a gender basis.
12.2 The
assessment of the work, skill and responsibility required under this Principle
is to be approached on a gender neutral basis and in the absence of assumptions
based on gender.
12.3 Where the
under-valuation is sought to be demonstrated by reference to any comparator
awards or classifications, the assessment is not to have regard to factors
incorporated in the rates of such other awards which do not reflect the value
of work, such as labour market attraction or retention rates or productivity
factors.
12.4 The
application of any formula, which is inconsistent with proper consideration of
the value of the work performed, is inappropriate to the implementation of this
Principle.
12.5 The
assessment of wage rates and other conditions of employment under this
Principle is to have regard to the history of the award concerned.
12.6 Any change
in wage relativities which may result from any adjustments under this
Principle, not only within the award in question but also against external
classifications to which the award structure is related, must occur in such a
way as to ensure there is no likelihood of wage leapfrogging arising out of
changes in relative positions.
12.7 In applying
this Principle, the Commission will ensure that any alternative to wage
relativities is based upon the work, skill and responsibility required,
including the conditions under which the work is performed.
12.8 Where the
requirements of this principle have been satisfied, an assessment shall be made
as to how the undervaluation should be addressed in money terms or by other
changes in conditions of employment, such as reclassification of the work,
establishment of new career paths or changes in incremental scales. Such
assessments will reflect the wages and conditions of employment previously
fixed for the work and the nature and extent of the undervaluation established.
12.9 Any changes
made to the award as a result of this assessment may be phased in and any
increase in wages may be absorbed in individual employees' overaward payments.
12.10 Care should
be taken to ensure that work, skill and responsibility which have been taken
into account in any previous work value adjustments or structural efficiency
exercises are not again considered under this Principle, except to the extent
of any undervaluation established.
12.11 Where
undervaluation is established only in respect of some persons covered by a
particular classification, the undervaluation may be addressed by the creation
of a new classification and not by increasing the rates for the classification
as a whole.
12.12 The
expression "the conditions under which the work is performed" has the
same meaning as in Principle 8.2, Work Value Considerations.
12.13 The
Commission will guard against contrived classification and over-classification
of jobs. It will also consider:
(a) the state of the
economy of New South Wales and the likely effect of its decision on the
economy;
(b) the likely
effect of its decision on the industry and/or the employers affected by the
decision; and
(c) the likely
effect of its decision on employment.
12.14 Claims under
this Principle will be processed before a Full Bench of the Commission, unless
otherwise allocated by the President.
12.15 Equal
remuneration shall not be achieved by reducing any current wage rates or other
conditions of employment.
12.16 In
arbitrating an application made under this Principle, the Commission is
required to determine whether or not future State Wage Case general increases
will apply to the award.
13. Economic
Incapacity
13.1 Any
employer or group of employers bound by an award may apply to, temporarily or otherwise,
reduce, postpone and/or phase in the application of any increase in labour
costs determined under the Principles on the ground of very serious or extreme
economic adversity. The merit of such an application shall be determined in the
light of the particular circumstances of each case and any material relating
thereto shall be vigorously tested. Significant unemployment or other serious
consequences for the employees and employers concerned are significant factors
to be taken into account in assessing the merit of any application.
13.2 Such an
application shall be processed according to the Special Case Principle.
13.3 Any
decision to temporarily reduce or postpone an increase will be subject to a
further review, the date of which will be determined by the Commission at the
time it decides any application under this principle.
14. Transitional
provisions
14.1 These new
Principles shall apply to:
(a) any application
to make or vary an award that is made on or after the date of commencement of the
new Principles; and
(b) any such
application filed prior to that time where the hearing of the matter has not
commenced as at the date of the commencement of the new Principles (directions
hearings shall not count for this purpose).
14.2 The new
Principles shall not operate in respect of awards that are still within their
nominal term on the date the Principles commence to operate. In such cases the
Principles, which are Appendix A to the State Wage Case 2010 (2010) NSWIRComm
183 ("the former Principles"), will apply. Subject to 14.1(b) the
former Principles shall apply to any application made in respect of such awards
as well as any part heard proceedings.
15. Duration
These Principles will operate on and from 4 April 2011
until further order of the Commission.
R.
P. BOLAND J, President.
M.
J. WALTON J, Vice-President.
R.
W. HARRISON D.P.
J.
P. GRAYSON D.P.
I.
TABBAA, Commissioner.
____________________
Printed by
the authority of the Industrial Registrar.