WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1979. Industrial Relations Act 1979. Section 40 — Variation of an Award. Section 40.—Variation of an Award. Federated Clerks' Union of Australia, Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch Industrial Union of Workers, WA Branch and and Western Australian Coastal Shipping Commission Western Australian Coastal Shipping Commission and Others. and Others. No. PI of 1989. No. P44 of 1988. Clerks State Government Administration. Clerks State Government Administration COMMISSIONER G.L. FIELDING. 16th day of March 1989. Order. HAVING heard Miss J.G. Barnesby on behalf of the Applicant and Mr J.A. Lange on behalf of the Respondents, the Commission, constituted by the Public Service Arbitrator, pursuant to the powers conferred on it under the Industrial Relations Act 1979, having satisfied itself that the terms of the General Order of the Commission No. 730 of 1988, dated 9 September 1988 have been complied with, and by consent, hereby orders: That the Clerks' (Public Authorities) Award No. A7 of 1987 as amended be further amended in accordance with the following Schedule with effect on and from the 1st day of July 1988. Public Service Arbitrator. Schedule. 1. Schedule C — Motor Vehicle Allowances: Delete this Schedule and insert in lieu the following: Schedule C — Motor Vehicle Allowances. Part A — Motor Car: Area and Deiails Engine Displacement (in cubic centimetres) Over Over 1600cc i600cc 26(X)cc -2600cc & under Metropolitan Area First 4.000 kilometres 86.7 75.2 64.2 Over 4.000-8.000 kilometres 36.9 32.2 28.2 Over 8.000-16.000 kilometres 20.3 17.9 16.2 Over 16.000 kilometres 21.9 21.2 18.6 South West Land Division First 4.000 kilometres 88.7 76.6 65.5 Over 4.000-8.000 kilometres 38.3 33.0 28.9 Over 8.000-16.000 kilometres 21.5 18.4 16.7 Over 16.000 kilometres 23.0 19.6 19.0 North of 23.5° South Latitude First 4.000 kilometres 99.2 87.1 75.0 Over 4.000-8.000 kilometres 41.7 36.7 32.3 Over 8.000-16.000 kilometres 22.5 19.9 18.0 Over 16.000 kilometres 22.8 19.9 19.3 Rest of the Slate First 4.000 kilometres 92.2 80.1 68.5 Over 4.000-8.000 kilometres 39.4 34.4 30.1 Over 8.000-16.000 kilometres 21.8 19.1 17.3 Over 16,000 kilometres 22.9 20.0 19.3 Part B — Motor Car: Metropolitan Area 41.0 35.8 31.2 South West Land Division 42.0 36.6 31.9 North of 23.5° South Latitude 46.5 40.9 35.8 Rest of the State 43.8 38.2 33.3 Part C — Motor Cycle: Distance Travelled during a Year on Official Business Rate c/km Rate per kilometre 14.3 COMMISSIONER G.L. FIELDING. 30th day of March 1989. Allowance — on-call allowance — amended to reflect standard for government officers — Conditions of Employment Principle — costs not great — no flow-on potential — by consent — Award varied. Reasons for Decision. (Given extemporaneously at the conclusion of the submissions, taken from the transcript as edited by the Commissioner) THE COMMISSIONER: I want to say something about this matter because whilst it might seem on the face of it to be a matter of minor import that, upon reflection, is perhaps an oversimplification of the matter. The claim before the Commission is an application to amend the Clerks' (Public Authorities) Award 1987. In particular the application is to amend the on-call allowance as provided in Clause 19.— Overtime of the Award. In general terms the Award currently provides that officers whose employment is giverned by the Award are to receive an on-call allowance of a flat daily payment. Only one Respondent to the Award, namely the Lotteries Commission, is in any way affected by that particular provision since it is the only authority governed by the Award which has any need to use the on-call provision. The application thus seeks to change that provision by providing for an hourly payment based on what can fairly be said to be the standard on- call allowance for government officers. What the Federated Clerks' Union, as the Applicant, seeks to do therefore is to bring the on-call allowance provision in the Award into line with that which obtains in the Public Service of this State and which is also prescribed under the Public Authorities Salaries Award. The application is consented to by the various authorities bound by this Award. The Applicant seeks to justify the claim on the basis that it has the support of the public purse, in particular the Lotteries Commission; an agreement which it says is authorised under the Conditions of Employment Principle of the State Wage Fixing Principles since it simply seeks to effect a flow-on of a "recognised standard" provision. As well, the Applicant says that the change is long overdue because it was an oversight in 1987, when the Award was made, not to include the current: government officer on-call provision in the Award. Instead, the old on-call condition was inserted in the Award. That was a condition which for government officers changed as long ago as 1981. Thus the Applicant says that the claim should be granted substantially in its terms. The Applicant also draws attention to the fact that the Lotteries Commission claims that there is in effect an injustice or anomaly because some of its employees are receiving the on-call allowance on the basis of the current standard and the Applicant's members who work alongside those others receive the old-fashioned condition. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE Mr Lange. as agent for the statutory authorities, consents to the claim. As I have indicated he argues that the claim can be dealt with under the Conditions of Employment Principle, it simply being a claim to flow on a recognised standard provision. My view of the matter is simply, as follows. It is a claim which can be processed without offending the Principles. The Conditions of Employment Principle provides that except for a flow-on of "recognised standard provisions" of the Commission applications for changes in conditions other than those provided elsewhere in the Principles will be considered in light of the cost implications both directly and through flow-on and must be processed before the Commission in Court Session. I agree with Mr Lange that the Principle ought to be interpreted as authorising claims for a flow-on of recognised standard Commission provisions notwithstanding that there is specific mention in the Principles for claims relating to the subject matter of the application, as in the case of allowances. It is not necessary that such a claim should be dealt with by the Commission in Court Session in accordance with the Principles. So far as the constituent authorities of the Commission are concerned, as explained in the Industrial Appeal Court in State School Teachers Union of Western Australia (Inc) and Minister for Education (1987) 67 WAIG 1523 it is not open to the constituent authorities to refer a matter to the Commission in Court Session. The exclusive jurisdiction given to the constituent authorities by the Act is something that cannot be assigned by them to the Commission differently constituted. On the basis that the application is clearly one to flow on a standard government officer provision recognised by the Commission it is one which in my view can be dealt with without offending the Principles. I have been referred to. and properly so, the decision of the Commission in Court Session in Electrical Trades Union of Workers of Australia (Western Australian Branch) Perth v. Otraco (International) Pty Ltd and Others (1989) 69 WAIG 528 concerning a variation to the Metal and Electrical Trades (Argyle) Diamond Mine Order, a matter heard by the Commission in Court Session in January this year. The Commission pointed out that any claim to increase benefits prior to 1 July 1989 must be accompanied by initiatives which would provide scope for establishing skill related career paths and incentives for participation in skill formation if they were to succeed. That was a claim to vary the existing conditions of employment so far as they related to rest and recreation for the employees governed by that Order. In my view this case is very much different primarily because that was not a claim for the flow on of a recognised Commission standard but something which was not a standard. This case does no more than seek to achieve a Commission standard government provision and thus nothing said in the Otraco case has any relevance to this case. In any event, even if the Principles did act so as to preclude this matter being dealt with in accordance therewith still I would be minded to accede to the claim. The law is abundantly clear that the State Wage Principles are not binding on individual Commissioners in an absolute sense. That is not to say that they are to be in any sense disregarded but the obligation is and remains on individual Commissioners to exercise their commission in accordance with the statute and in particular the statutory discretion which is embodied clearly in the Industrial Relations Act. In my opinion since it was clearly an oversight not to include the modern on-call provision which is now being sought in the 1987 Award it would be sheer folly not to accede to the request to do so on this occasion, particularly as it affects only one of the number of 69 W.A.I.G. employing authorities bound by that Award, and that authority not only consents to the application but does so for a reason which has much to commend it. As well the costs of the resultant change are not by any measure great. On an annual basis they represent approximately $8 000 for the Lotteries Commission. I suspect in the totality of the labour costs that is infinitesimal. Finally, given that this claim does nothing more than achieve a government standard for officers employed in statutory authorities there can be no potential for flow-on. The essence of the Applicant's argument and indeed the Respondent's consent is that every other government officer in the employ of the State is in receipt of an on-call allowance of the kind now sought on this occasion. That being so it would logically follow that there is no potential for flow-on. The Order will be that Clause 19(3) will be deleted and substituted by the subclause annexed to Schedule II of the application save that the words "such allowances as are contained in Schedule G to this award" in the proposed subclause (3)(a) will be deleted as will Schedule G of the Award. By consent the amendments will take effect from 4 April next. Appearances: Miss J.G. Barnesby on behalf of the Applicant. Mr J.A. Lange on behalf of the Respondents. CLERKS' (PUBLIC AUTHORITIES) AWARD No. A7 of 1987