[2007] AIRCFB 42 [2007] AIRCFB 42 PR975850 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.553(1) application for variation Liquor, Hospitality and Miscellaneous Union (C2006/3722) SECURITY INDUSTRY (NEW SOUTH WALES) AWARD 1999 (ODN C No. 21023 of 1993) [AP796356] Clause 29 of Schedule 6 application for variation (C2006/209) SECURITY INDUSTRY (NEW SOUTH WALES) AWARD 1999 [TRANSITIONAL] (ODN C No. 21023 of 1993) [AT796356] Security industry JUSTICE GIUDICE, PRESIDENT VICE PRESIDENT LAWLER SENIOR DEPUTY PRESIDENT MARSH SENIOR DEPUTY PRESIDENT KAUFMAN COMMISSIONER GRAINGER MELBOURNE 18 JANUARY 2007 Wages and Allowances Review 2006 DECISION [1] There are two applications before us. The first is an application by the Liquor Hospitality and Miscellaneous Union (LHMU) to vary wages and allowances in the Security Industry (New South Wales) Award 1999 [Transitional] . 1 The second is an application by the LHMU to vary wage-related allowances in the Security Industry (New South Wales) Award 1999 , 2 a pre-reform award. These two applications were dealt with along with a large number of other applications in the Wages and Allowances Review 2006 Decision 3 (the main decision) . In the main decision we decided to increase wage rates up to $700 per week in transitional awards by $27.40 per week and wage rates above $700 per week by $22 per week with a commensurate increase in wage-related allowances. We also decided that wage-related allowances in pre-reform awards should be adjusted commensurately. [2] An issue has arisen concerning the application of that decision in the unique circumstances of the two awards with which this decision deals. The circumstances are as follows. [3] In October 2003 the parties to Security Industry (New South Wales) Award 1999 agreed that the rates in the award should be adjusted for the 2003 Safety Net Adjustment in four equal annual instalments. Each instalment was to be of $4.25 and to operate from 1 July each year, commencing on 1 July 2004 and concluding on 1 July 2007, in conjunction with the annual safety net adjustment. The Commission gave its consent to that agreement. [4] Rates of pay in the transitional award were not varied on 1 July 2006 because there was no safety net adjustment in that year. [5] As explained in the main decision, 4 so far as pre-reform awards are concerned, on 27�March 2006 award classifications and rates became preserved Australian Pay and Classification Scales (APCS) within the wage-setting jurisdiction of the Australian Fair Pay Commission (AFPC). By that date only two instalments of $4.25 had been included in the award rates pursuant to the 2003 agreement. The resulting award rates were adjusted by the AFPC in its wage-setting decision of October 2006. It is accepted that the AFPC has not published pay and classifications scales resulting from its October decision. Despite the lack of certainty resulting from this situation, there is nothing in the decision to suggest that the AFPC varied the APCS derived from the Security Industry (New South Wales) Award 1999 by more than the amounts set out in the decision. It follows that the relevant APCS does not contain the last two instalments of the 2003 safety net adjustment. [6] The LHMU seeks to vary the transitional award by $27.40 in accordance with the main decision plus a further $4.25 per week and that the aggregate figure of $31.65 should be the basis for the adjustment of allowances in the transitional award and the pre-reform award. The LHMU contends that we should implement the parties’ agreement, as originally approved by the Commission, by incorporating the amount of $4.25 which the parties intended should apply from 1 July 2006. It submitted that the award rates are anomalous because they have been adjusted for the 2004 and 2005 safety net adjustments but only half of the 2003 adjustment. [7] The LHMU also pointed out that the rates in the Security Industry (State) Award (NSW) (the state award) include the whole of the 2003 safety net adjustment. On 27 March 2006 a preserved APCS, so far as federal system employers are concerned, was derived from the state award. It follows that the rates in the APCS derived from the state award include the whole of the 2003 safety net adjustment. It appears that the rates in that APCS were adjusted by the AFPC’s recent wage-setting decision. 5 [8] In our view it is desirable that, as a general rule, the rates and wage-related allowances in awards should be consistent with the relevant APCSs set by the AFPC. The APCS derived from the relevant federal award does not include the instalment of $4.25 due under the parties’ agreement on 1 July 2006. We do not think there is sufficient justification for adjusting the rates in the transitional award by that amount. While it is unfortunate that the parties’ intention has been frustrated by the legislative changes, it is undesirable that we set rates at a different level in the transitional award because of that fact. Issues of this kind, as well as any inconsistencies between rates in APCSs derived from federal awards and rates in APCSs derived from state awards, are matters for the AFPC in the first instance. For these reasons we reject the LHMU proposal. [9] Wage rates in the transitional award should be varied by the amounts in the main decision, with a commensurate increase in wage-related allowances. 6 [10] Allowances in the pre-reform award should also be adjusted on the basis of the increases provided for in the main decision. 7 BY THE COMMISSION: PRESIDENT Appearances: N Swancott with M Vance for the Liquor, Hospitality and Miscellaneous Union. D Makins for Employers First. M McDonald for Australian Business Industrial. Hearing details: 2006. Sydney. December, 19. 1 AT796356. 2 AP796356. 3 PR002006 , 8 December 2006. 4 See in particular paras [4] to [7]. 5 See Division 2 of Part 7 of the Workplace Relations Act 1996 . 6 Paras [19] and [22]. 7 Para [32]. Printed by authority of the Commonwealth Government Printer <Price code A>