WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. No. 171 of 1986. Between Federated Clerks' Union of Australia Industrial Union of Workers, WA Branch, Applicant and the Bailiffs Office, Perth and Others, Respondents. Before Mr Commissioner J.A. Negus. The 8th day of May 1986. Mr C.D. Panizz'a on behalf of the Applicant. Mr R.H. Gifford on behalf of the Respondents. Reasons for Decision. THE COMMISSIONER: This is an application by the Federated Clerks' Union to vary Clause 13.—Motor Vehicle Hire, of the Clerks' (Bailiffs' Employees) Award 1978, No. 19 of 1976. Mr Panizza, for the applicant union outlined the history of the clause in question and submitted evidence of the last occasion on which the rates in this clause had been amended by Martin C. on 18 August 1983 (Vol 63 WAIG p. 1836). It is clear from the evidence and conceded by the respondents that the rates in Clause 13 (1) are tied to those in Clause 10 of the Commercial Travellers and Sales Representatives' Award No. 43 of 1978. That award was most recently varied on 24 December 1985 by Kelly C.C. (66 WAIG p. 166). The rates in Clause 13 (2) of the instant application are tied to the Public Service Motor Vehicle Allowances Award No. 13 of 1976 and those were last varied by Fielding C. on 21 June 1985 (65 WAIG p. 1130). Mr Panizza drew the Commission's attention to a number of references apposite to the "capacity to pay" argument because the respondents had indicated their intention to oppose the application on that ground. A vital principle was succinctly stated by a Full Bench of the Australian Commission in the Musicians' Hotels Award case (Print F2436). "An argument based on industry or establishment incapacity to pay a wage increase, which is otherwise warranted, or an argument based on industry or establishment disemployment if the increase is awarded, requires oral and/or documentary evidence capable of analysis and evaluation." Mr Panizza also argued that the variation being sought by the Union was a payment in reimbursement of expenses incurred by the employee on the employer's behalf. It would be unfair, he submitted, for the individual employee to carry the burden of his employer's increasing overhead expenses. Mr Gifford adduced evidence from Mr Steer, who was considered to be typically representative of the respondent group because he is the employer of the largest group of assistant bailiffs. Mr Steer indicated that the claimed rates would provide an increase in his expenses of about $5 000 per annum, a figure which he claims threatens the viability and efficiency of his business. Evidence was submitted in the form of a December 1985 letter from the Crown Law Department (Transcript Exhibit B) which indicated that adjustments of bailiff's fee scales would in future be made annually in February or March. The Government Gazette of 14 March 1986 (Transcript Exhibit A) indicates that this indeed occurred, with the new rates taking effect from 14 April 1986. The respondents complain that this adjustment of rates did not allow for any increase in kilometreage fees so that to approve the instant application would place them in dire straits financially until March or April 1987 when the next adjustment might be expected. Presumably, the respondents were able to make submissions to the Attorney-General prior to his fixing the most recent scale of fees for bailiffs. The decisions in the matters 614 of 1985 and PSA 86 of 1985, which varied the award on which the nexus is based, were available by the end of December 1985 and their likely effect on the instant application must surely have been obvious to all parties. It may be significant that the letter from Crown Law reminds the respondents of their obligation to present financial statements to the Attorney-General and remarks that only one such statement for 30 June 1985 had been supplied by the respondents up to December 1985. Mr Steer told the Commission that he produced half- yearly reports for the Attorney-General, but he did not choose to favour the Commission with any such detailed information. Beyond his calculation of approximately $5 000 expected extra outlay there is no "evidence capable of analysis and evaluation". The application for award variation fits squarely within the wage fixing principles. The argument based on incapacity to pay fails for want of sufficient evidence to allow for evaluation. The variation claimed will be approved from the first pay period on or after the 8th day of May 1986, being the date of the hearing. Decision accordingly. BEFORE THE