WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED WORKERS UNION OF AUSTRALIA, ENGINEERING AND ELECTRICAL DIVISION, WESTERN AUSTRALIAN BRANCH, APPLICANT v. WESTERN MINING CORPORATION RESOURCES LIMITED, RESPONDENT VARIATION TO ENGINEERING AND ENGINE DRIVERS’ (NICKEL SMELTING) AWARD 1973 PARTIES THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED WORKERS UNION OF AUSTRALIA, ENGINEERING AND ELECTRICAL DIVISION, WESTERN AUSTRALIAN BRANCH, APPLICANT v. WESTERN MINING CORPORATION RESOURCES LIMITED, RESPONDENT VARIATION TO ENGINEERING TRADES AND ENGINE DRIVERS (NICKEL REFINING) AWARD 1971 PARTIES THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED WORKERS UNION OF AUSTRALIA, ENGINEERING AND ELECTRICAL DIVISION, WESTERN AUSTRALIAN BRANCH, APPLICANT v. WESTERN MINING CORPORATION RESOURCES LIMITED, RESPONDENT VARIATION TO BUILDING AND ENGINEERING TRADES (NICKEL MINING AND PROCESSING) AWARD 1968 CORAM COMMISSIONER J F GREGOR DATE TUESDAY, 14 OCTOBER 2003 FILE NOS APPLICATIONS 718 OF 2003, 719 OF 2003, 720 OF 2003 CITATION NO. 2003 WAIRC 09647 _________________________________________________________________________________________________________ Result Dismissed Representation Applicant Mr C. Young appeared on behalf of the Applicant Respondent Mr A. Caccamo appeared on behalf of the Respondent _________________________________________________________________________________________________________ Reasons for Decision 1 These applications were all filed on 19th May 2003. They all seek variations to the relevant award on the grounds that the wages contained in the wage clauses ‘should be brought into line with the Minimum Conditions of Employment (sic)’. It is clear from the Answer and Counterproposal that Western Mining Corporation Resources Limited (the Respondent) took the applications to mean that The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division, Western Australian Branch (the CEPU) sought to vary the awards to reflect the minimum weekly rates of pay set pursuant to Part 3 of the Minimum Conditions of Employment Act 1993 (WA) (the MCE Act). 2 By consent of the parties the applications were heard concurrently on 5th September 2003 at which time Mr C. Young appeared for the Applicant and Mr A. Caccamo appeared for the Respondent. 3 According to Mr Young the applications can be succinctly described in the following way. Each of the awards in the Rates of Pay and Classification Definitions clause sets out a rate of pay per week, an industry allowance and an arbitrated safety net adjustment to produce a total rate per week. It is argued that the industry allowance should be disaggrated from the total and when the disaggration takes place the total rate per week is less than the Minimum Wage which has been declared under Part 3 of the MCE Act. 4 The raison d’etre for Mr Young’s argument is that the MCE Act does not define anywhere what the minimum weekly rate of wage is, so the question becomes what is that wage? Mr Young says the answer is to be found in Principle 9 of Statement of Principles declared in the 2003 State Wage Case (2003 83 WAIG 2960) which reads “A minimum adult wage clause will be required to be inserted into any new award and it shall be as follows” then Principle 9(3) provides that the minimum weekly wage $448.40 is deemed to include all arbitrated net safety adjustments from the preceding State Wage Case decisions.” It is argued by Mr Young that if there is a definition of minimum wage it effectively is the minimum wage is a base rate plus arbitrated safety net adjustment, but does not include allowances. 5 Mr Young placed some reliance on the decision of Kenner C when examining adjustments to the Industry Allowance clause in the Australian Workers Union Gold Award where the learned Commissioner held generally that allowances are traditionally attached to the individual job and not the individual employee and recognise the degree of skill and other factors associated with the particular classification. The recognition of conditions under which the work is performed is historically accommodated by the prescription of an allowance separate to rates of pay for particular classifications. It is upon this concept that Mr Young relies to underpin his contentions. 3642 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 6 The Respondent’s argument is that if the Commission determines that there are wages in the awards which are lower than the minimum adult award wage then the applications might have substance. In reaching that conclusion it should look at the meaning of the term wages in s.40B(1)(a) of the Industrial Relations Act, 1979 (the Act) whether, as the awards currently stand any adult employee would receive less than the minimum adult weekly wage, or whether as the awards currently stand an adult employee would receive for each hour worked at least a minimum rate of pay applicable under s.12 of the MCE Act divided by 38. 7 In view of comments the Commission made during the proceedings and recorded on the transcript I have no need to canvass the arguments led concerning s.40B of the Act. The argument proceeds upon the contention that the term ‘wages’ is not defined in the Act even though it is mentioned in a number of sections. Therefore it is appropriate to apply the ordinary meaning of the dictionary. The Concise Oxford Dictionary defines ‘wage’ as ‘an amount paid periodically especially by the day, week or month for time during which a workman served in his act the employer’s disposal’. 8 Mr Caccamo argues that the term should be given its common well understood meaning which supports a broad definition. The term cannot be said to only include the classification rate of pay in the wages clause of an award it must include what an employee would normally get paid for working for the employer. When this is applied to any of the Awards none of them contain wages which are less than the minimum adult award wage as ordered by the Commission under s.51 which currently stands at $448.00. No employee under any of the Awards is paid less than $448.00 they receive a total rate per week specified in the Wages clause which includes an industry allowance. 9 It is argued that the industry allowance should be included because in the calculation of wages to determine whether the Award meets the minimum adult weekly wage cut off because it is an all purpose payment and it is part of an employee’s normal wage. It was originally an over award payment that existed in the gold mining industry and was inserted into the gold industry award in 1987 (67 WAIG 2051) and the nickel industry awards in 1991. The allowance is specified in the Awards which state the allowance recognises and is payment for aspects of the nickel industry including the location and nature of individual operations within it. 10 Mr Caccamo went on to detail the history of the various awards starting with the insertion of industry allowance for the first time in the gold mining awards and tracing its history through flow into the nickel awards. There is no need for the Commission to summarise that information. 11 The Commission also heard evidence from Mr Christopher Mitchell who was able to tell the Commission from his long involvement in the mining industry the source of the allowance and how and why it had been inserted into the Awards. 12 I have considered the arguments and have reached the conclusion that the answer to the questions posed by each of the applications is simple because the allowance that has found its way into the wages clauses of the three awards can be distinguished from the normal run of allowances that were, with respect, properly categorised by Kenner C in his decision in the gold mining award. 13 The amount of money which is contained in the Wages clause of each of the awards and which is labelled ‘industry allowance’ is in reality not an industry allowance of the nature normally contemplated by that title. As Mr Mitchell attested and in accordance with the discussion that the Commission had with the parties during the proceedings the origin of the sum of money is an over award payment. The nomenclature of industry allowance was given to the sum of money as a convenient identifier when it was incorporated in the Wages clause of the Awards, as it had to be, to maintain its previous nature as an all purpose over award payment. 14 It would be ignoring the historical antecedence of this payment to not include it in the calculation of the usual weekly payment of employees who are covered by these awards. In my view, and I so find, that in calculating the amount of wage per week of employees under these Awards for purposes of ascertaining whether they receive at least the minimum weekly rate of pay applicable under s.12 of the MCE Act that the amount must be taken into account. On that basis the applications must be dismissed and orders to that end will issue. _________ 2003 WAIRC 09650