[2009] AIRCFB 971 [2009] AIRCFB 971 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION DECISION Workplace Relations Act 1996 s.576H—Commission may vary modern awards Australian Municipal, Administrative, Clerical and Services Union (AM2009/169) SOCIAL, COMMUNITY, HOME CARE AND DISABILITY SERVICES AWARD 2010 [MA000100] JUSTICE GIUDICE, PRESIDENT VICE PRESIDENT LAWLER VICE PRESIDENT WATSON SENIOR DEPUTY PRESIDENT WATSON SENIOR DEPUTY PRESIDENT HARRISON SENIOR DEPUTY PRESIDENT ACTON COMMISSIONER SMITH MELBOURNE, 22 DECEMBER 2009 [1] This decision concerns an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU) to vary the Social, Community, Home Care and Disability Services Award 2010 (the award or the modern award). The award was published on 4 December 2009 1 and will come into force on 1 January 2010. [2] The application seeks to vary the transitional provisions at cll. A.5.4, A.6.4 and A.7.4 by deleting “1 July 2010” and “80%” wherever appearing in those clauses. If the application is granted the transitional provisions relating to loadings and penalty rates would be the same as the transitional provisions applying to wages. The transitional arrangements for loadings and penalty rates would commence on the same date as those for wages, namely, 1 July 2011 rather than what is presently provided for - 1 July 2010. [3] The ASU stated that the purpose of the application was to provide a consistent operative date for the transitional arrangments applying to loadings and penalty rates and minimum wages. It was argued that the ASU was not revisiting the matter raised during the public consultations and that the decision of the Full Bench on 4 December 2009 was accepted. [4] Further, it was submitted that the application was consistent with submissions made by the Federal Government, a number of State Governments, other industry unions and employer peak organisations in respect of the ASU’s primary submission to preserve pay-related matters, in addition to wages pending the determination of a foreshadowed application to review minimum wages. [5] The ASU also represented the Health Services Union (HSU), the Liquor, Hospitality and Miscellaneous Union (LHMU) and the Community and Public Sector Union (CPSU). The Australian Council of Trade Unions supported the unions’ submissions. [6] Australian Business Industrial (ABI) made submissions in support of the ASU’s application. It indicated that it had supported deferral of the phasing-in of pay rates and pay-related matters during the public consultations. [7] Jobs Australia also supported the union’s application on the basis of minimising the disruption and confusion that will arise with the introduction of the modern award. [8] The application was opposed by the Australian Federation of Employers and Industries (AFEI). AFEI submitted that the application was a second attempt to vary transitional provisions which the Full Bench, in its decision of 4 December 2009, had decided not to do. In making this decision, it was said that the Full Bench had fully considered the Heads of Agreement and determined that it primarily concerned wage rates. Further, it was argued that the small cost savings for employers should not be delayed. Conclusion [9] The issue of whether the transitional provisions should be delayed for both pay rates and pay related matters, in light of the Heads of Agreement, was extensively canvassed in the public consultations which preceded the making of the modern award. In our decision of 4 December 2009 we indicated that we would not depart from the model transitional provisions in relation to loadings and penalty rates. 2 Nothing has been put in this application which would lead us to a different view. [10] A question was raised about what allowances were covered by the term “industry allowance” in cl.A.2.2 of the award and whether it included the allowances set out in cl.20 of the award. [11] In its decision of 2 September 2009, in dealing with the question of transitional provisions for wages, the Full Bench said: “[37] We have made specific reference to industry allowances. In some industries there are established industry allowances at the Federal and State award level. In most cases the modern award for that industry will also contain an industry allowance. Industry allowances will generally need to be taken into account when calculating differences in minimum wages for the purposes of phasing. It is our intention that, where relevant, industry allowances should be included for the purpose of calculating differences between pre-modern award and modern award minimum wages.” 3 [12] After dealing with transitional provisions for loadings and penalties the Full Bench said: “[46] We deal now with the question of allowances. We have decided not to make model transitional provisions relating to allowances. The differences in the nature and application of allowances across the award system make it difficult to develop general rules. As we have already indicated, where industry allowances exist they will normally need to be taken into account in the phasing arrangements relating to minimum wages. We deal later with some issues related to allowances when considering whether special provisions are needed in particular awards. Where significant issues related to allowances remain unresolved, or unforseen problems arise, the review mechanism is available.” [13] Our reference to industry allowances was intended to be a reference to allowances which apply to every employee in an industry to compensate for particular disabilities applying to work in that industry. The allowances in cl.20 of the award are not industry allowances. Therefore, the transitional provisions relating to wage rates do not apply to them. [14] The application to vary the transitional provisions relating to loadings and penalties is refused. BY THE COMMISSION: PRESIDENT 1 MA000100. 2 [2009] AIRCFB 945 at para 79 to 81. 3 [2009] AIRCFB 800 . Printed by authority of the Commonwealth Government Printer <Price code A,  PR991980>