Industrial Relations Commission of New South Wales CITATION : Newcastle University Union Food and Beverage Staff (State) Award 1997. Application by Australian Liquor, Hospitality & Miscellaneous Workers Union, NSW Branch for variation of an award [2001] NSWIRComm 201 PARTIES : Australian Liquor, Hospitality & Miscellaneous Workers Union, Liquor & Hospitality Division, NSW Branch Newcastle University Union FILE NUMBER: IRC 6825 of 1999 CORAM: Harrison DP CATCHWORDS : Application for variation of award to include 1998 State Wage Case decision - application refused - absorption allowed - consent award precluding application of State Wage Case decisions during term upheld. LEGISLATION CITED : Industrial Relations Act 1996 State Wage Case 1994 (1994) 57 IR 1 CASES CITED : State Wage Case 1997 (1997) 73 IR 200 State Wage Case 1998 (1998) 79 IR 416 State Wage Case 1999 (1999) 88 IR 363 HEARING DATES: 04/27/2001 DATE OF JUDGMENT: 09/04/2001 APPLICANT Mr J Barry Australian Liquor, Hospitality & Miscellaneous Workers Union, Liquor & Hospitality Division, NSW Branch LEGAL REPRESENTATIVES: RESPONDENT Mr T McDonald Employers First JUDGMENT: - 21 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 4 September 2001 Matter No IRC 6825 of 1999 NEWCASTLE UNIVERSITY UNION FOOD AND BEVERAGE STAFF (STATE) AWARD 1997 Application by Australian Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, New South Wales Branch for variation of an award DECISION [NSWIRComm 201] 1 The application in this matter was filed on 15 December 1999 by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, New South Wales Branch (ALHMWU). 2 The matter was first heard before His Honour Justice Marks on 11 February 2000 and subsequently reallocated to the Commission as presently constituted on the mutual application of the parties. 3 The matter was initially listed for conciliation on 25 February 2001. Those proceedings were vacated on receipt of correspondence dated 17 February 2000 from Mr G Moses of Employers First (formerly Employers Federation of New South Wales) requesting the matter be rescheduled to accommodate the availability of the University of Newcastle Union's Human Resource Manager who was on annual leave. With the concurrence of the ALHMWU the proceedings were rescheduled to 8 March 2000. 4 In the proceedings of 8 March 2000 Mr J Barry appeared on behalf of the ALHMWU with Ms E Gibson and Ms C Rolfe. Mr G Moses of Employers First appeared on behalf of the University of Newcastle Union ('the University Union') with Mr D Doherty and Mr J Broughton. 5 The matter was stood over generally to allow the parties time to continue discussions with a view to resolving the issues by agreement between them. 6 By request of the parties the matter was listed for report back and conference proceedings on 12 October 2000, subsequently rescheduled to 7 December 2000 on application of the parties. On request from Employers First the proceedings were again rescheduled due to the unavailability of the parties to 8 March 2001. 7 These proceedings established that the matter could not be resolved by agreement between the parties, resulting in directions being issued for the conduct of arbitration proceedings on 27 April 2001. 8 At arbitration Mr J Barry appeared on behalf of the ALHMWU. Mr T McDonald of Employers First appeared on behalf of the University Union. 9 Mr Barry did not bring evidence in the matter. 10 Mr McDonald brought evidence from Mr Darrell Doherty, Human Resources and Administration Manager of the University Union in affidavit form (exhibit 1), and orally. 11 The application seeks variation of the Newcastle University Union Food and Beverage Staff (State) Award 1997 (308 IG 149) ('the Award') to increase rates of pay, put by the ALHMWU necessary to give effect to the provisions of the State Wage Case 1998 (79 IR 416). The application seeks an operative date from the first full pay period to commence on or after 15 December 1999. 12 The Award was made by the Commission as presently constituted in Matter No. IRC 6046 of 1997 on 9 December 1997. 13 The Award was varied by the Commission as presently constituted in Matter No. IRC 2847 of 1999 on 16 June 1999 with effect from the first full pay period to commence on or after 16 June 1999 to give effect to the State Wage Case Decision 1999 (88 IR 363); and by His Honour Justice Marks in Matter No. IRC 2903 of 2000 on 20 July 2000 with effect from the first full pay period to commence on or after 20 July 2000 to give effect to the State Wage Case 2000 (97 IR 93). 14 Wage rates provided by the Award, subsequent variation, and those claimed are set out hereunder in tabular form. It is appropriate to note that the award and subsequent variations were made by consent of the parties. Classification The Award SWC 1999 Claim SWC Clause No. Level 308 IG 179 16.06.99 2000 09.12.97 15.12.99 20.07.00 3.2 Trainee Assistant 359.99 385.40 385.99 383.52 3.2 Level 1 380.07 392.07 406.07 407.07 3.2 Level 2 397.58 409.58 423.58 424.58 3.2 Level 3 423.33 435.33 449.33 450.33 3.2 Level 4 451.14 463.14 477.14 478.14 3.2 Level 5 479.98 491.98 505.98 506.98 3.2 Level 6 528.39 538.39 552.39 553.39 3.2 Level 7 552.08 562.08 574.08 577.08 15 Increases made available pursuant to the 1998 and 1999 State Wage Case decisions are set out below. 1998 SWC increase (1) a $14 per week increase in award rates up to and including $550 per week; 79 IR at 445 (2) a $12 increase per week increase in award rates above $550 per week and up to and including $700 per week; (3) a $10 per week increase in award rates above $700 per week; 1999 SWC increase (1) a $12 per week increase in award rates up to and including $510 per week; and 88 IR at 401 (2) a $10 per week increase in award rates above $510 per week; 16 The Award Review Classification Rate determined by the 1998 and 1999 State Wage Cases is found at 79 IR 446 and 88 IR 402 respectively in the following terms: 9. Award review classification rate The Award Review Classification Rate of $373.40 ((1998) 79 IR 446) [$385.40 ((1999) 88 IR 402)] shall be the rate below which no full-time adult employee (excluding trainees, apprentices and employees on a supported wage or a probationary rate) should be paid under the relevant award. Where a classification in an award is below the Award Review Classification Rate the following process will apply on application: (a) The award will be listed for a mention at which the parties will report as to: how the Award Review Classification Rate will be achieved, or whether the award is obsolete. The Commission may direct the parties to confer in order to set a program for an updating of the award to reflect the Award Review Classification Rate. (b) If the parties to the award do not appear at this mention, the Commission shall request the parties to the award to show cause why the award should not be considered obsolete, and rescinded s17(3) of the Act. (c) Where no agreement is reached with respect to (a) above, the Commission shall relist the matter in order to conciliate the issues in dispute. (d) If the attempt at conciliation is unsuccessful the Commission shall arbitrate any outstanding issue. THE DISPUTE 17 The essence of this matter is the operation of Clause 29, No Extra Claims found in the Award at 308 IG 173 in the following terms. 29. No Extra Claims It is a term of this award that the union undertakes not to pursue any extra claims, award or overaward, and excludes State Wage Case decisions for the duration of this award. Provided that, in the event of marked economic change, the employer will consider a further approach by the union for a wage variation. 18 The term of the Award is prescribed in Clause 41 (308 IG 179) in the following terms. 41. Area, Incidence and Duration 41.3. The parties shall conduct a review of wages commencing on or after 9 September 1998 with a view to variation of the wages component of this award with effect no earlier than 9 December 1998. 19 The University Union argues that the application of the 1998 State Wage Case increase is precluded by Clause 29, No Extra Claims. 20 Mr Barry contended that Clause 29 of the Award cannot preclude operation of a State Wage Case decision. THE EVIDENCE 21 Mr Doherty's evidence is that he has been employed by the University Union for some 23 years. 22 The evidence of Mr Doherty is that following an industrial dispute between the ALHMWU and the University Union in the latter part of 1996, a Heads of Agreement document was signed by both parties (attach 1 to ex 1). Mr Doherty noted that at the time of the dispute the Restaurant &c Employees (State) Interim Award (1997) 301 IG 405 ('the Restaurant Award') was the applicable industrial instrument. In cross examination Mr Doherty acknowledged that the dispute between the parties was a claim by the ALHMWU that the Club Employees (State) Award (1996) 292 IG 582 ('the Club Award') be applied. 23 Exhibit 2 is a statement dated 30 October 1997 by the General Manager of the University Union, Mr John Broughton, put during the Award making proceedings. 24 It is appropriate to reproduce parts of that statement here. 1. The University of Newcastle Union (the Union) is an unincorporated non-profit association of some 16,000 students who pay a compulsory General service Charge fee for the provision of facilities and services provided by the Union. 2. The Union provides a wide range of services and facilities including food and beverages, retail shops, and commercial tenancies. 3. The Union also provides a diverse range of social, education and recreational programmes for students, educational, intellectual and cultural development. Funding for faculty clubs and societies as well as off campus student organisations is also part of the Union's obligations. … … 12. There has been talk for some time for a Federal Award covering all employees employed in University Unions, several logs of claims have been received but with the advent of Federal Legislation these claims seem to have dissipated. 13. The NSW University Unions have been trying for some time to establish a state award for all employees working in University Unions with a fair degree of frustration by some of the trade unions involved who do not seem to agree on the rights of coverage. 14. Some 12 months ago the ALH&MWU sought to have all employees covered by the Club Employees (State) Award which we argued was simply inappropriate for the Union. 15. Further we argued that the University Unions throughout NSW were seeking to have a State Award made to cover all employees working in University Unions and perhaps we should wait to see what eventuated from that process. 16. After several meetings we agreed that the best way forward was to develop a Consent Award and to that end we agreed to a Heads of Agreement which from our perspective was a substantial show of good faith in that negotiations would continue to "tidy up" some of the outstanding conditions of employment. 25 The evidence of Mr Doherty is that the Heads of Agreement document formed the basis of negotiations between the parties with a goal to establish an award to cover the wages and conditions of the food and beverage staff, having regard to the unique trading patterns experienced by the University Union. 26 The evidence of Mr Doherty is that in consideration of substantial wage increases agreed to in the award, the University Union sought and obtained an undertaking that no further claims would be made during the nominal term of the award. Mr Doherty's evidence is that the substantial increases given were on the basis that no more wage increases would be given for at least two years. 27 The increase in rates of pay arising from the negotiation process were 22.5% to 31.2% for the major portion of the food and beverage staff. Mr Doherty deposed that in dollar terms this represented a $71.00 per week increase at level 2 and $97.80 per week at level 3. The agreement between the parties allowed for a further 3% increase from 1 July 1997. 28 The evidence of Mr Doherty details the negotiation process going to various drafts of cl 29 prior to agreement upon the provision ultimately placed in the Award. 29 Mr Doherty deposed that both parties negotiated in good faith, each had a clear understanding of the intent and function of cl 29 of the Award, which he deposed describes the agreement between the parties in clear and unambiguous terms. 30 Mr Doherty's evidence concludes with the following depositions: 16. I do acknowledge that the employer consented to the 1999 State Wage Case (IRC No.2847 of 1999 - "Attachment 3"). This was not required and clause 29, No Extra Claims confirms this. I note that there was a further Application by the ALHMWU (IRC No. 2835 of 1999 - "Attachment 4") at the time to seek an exemption to Clause 29, No Extra Claims. This application was discontinued by the ALHMWU after the employer decided to grant the wage increase referred to in IRC No. 2847 of 1999. 17. The employer has also subsequently passed on the 2000 State Wage Case increase (IRC No. 2903 of 2000 - "Attachment Y) as the award was then outside its nominal term. 18. The 1998 State Wage Case was not applied for at the time of the State Wage Case decision coming down in June 1998, because it was agreed between the parties that no State Wage Case increase would be given. The 1999 State Wage Case was passed on in consideration of there being no increase for a year. In any case, if the 1998 State Wage Case was something that the ALHMWU were seeking on behalf of their members, why did they wait until December 1999 to apply for it and then let the matter drag on for a year? 19. I believe that defending the application for the 1998 State Wage Case alone has been a strain on our limited resources. If the application were to be successful it would seriously erode any confidence that we might have that future agreements with the ALHMWU would be honoured. Submissions 31 Mr Barry submitted that the Industrial Relations Act 1996 ('the Act') and State Wage Case principles do not allow a restraint upon application of State Wage Case decisions of the type found in cl 29 of the Award, and accordingly it is ineffective. Mr Barry submitted that the legislative framework does not allow an exclusion of State Wage Case decisions and that it would be unreasonable that an award be made setting what were at the fair and reasonable conditions then preclude further State Wage Case adjustments meant to maintain minimum conditions of employment. 32 Mr Barry submitted that the provision of the type found in the Award could be appropriately put in an enterprise agreement but not in an award. 33 Mr Barry noted that agreements are generally ahead of State Wage Case determinations and as such an absorption factor is permissible. 34 Mr Barry pursued his argument by reference to the State Wage Case 1997 Decision (1997) (73 IR 200) wherein the principle for first awards and extensions to existing awards is found at 236 in the following terms: First awards and extensions to existing awards (a) In the making of a first award, the long established principles shall apply, ie prima facie the main consideration is the existing rates and conditions. (b) In the extension of an existing award to new work or to award-free work the rates applicable to such work will be assessed by reference to the value of work already covered by the award. (c) Where a first award (other than a paid rates award) is made it may contain a minimum rate for each classification of employees covered by it. The total minimum rate determined for each classification may be expressed as a minimum classification rate and a supplementary payment which bear a proper relationship to the rates for relevant classifications in other minimum rates awards. 35 Mr Barry put that that the Commission's power to make awards is found in Chapter 2 of the Act, in particular s10 which states: 10 The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees. 36 Mr Barry submitted that the Award made in accordance with First Award principles and s10 of the Act prescribed rates of pay appropriate at the time, which in is submission do not preclude over-award amounts capable of absorbing future State Wage Case increases. Mr Barry submitted that the Award when made was, and could only have been, a minimum rates award. 37 Mr Barry put that the power of the Commission to vary awards is found at Part 1 of Ch 2 of the Act, in particular s 17(3) which states: (3) An award may be varied or rescinded in any of the following circumstances only: (a) at any time with the mutual consent of all the parties to the making of the original award, (b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions), (c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so, (d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so. 38 Mr Barry put that the legislative requirement of the Commission was determined at Part 3 of Ch 2 of the Act which gave power to the Commission to follow the principles of State decisions. The relevant section of part 3 is set out below. 51(3) [General or particular application] A State decision may apply generally to all awards or other matters under this Act or only to particular awards or other matters under this Act. 39 In responding to the proposition of delay put by Mr Doherty in evidence, Mr Barry submitted that the application for the 1998 State Wage Case was delayed as the ALHMWU in fact honoured cl 29 and did not expect nor seek application of the 1998 State Wage Case during the term of the Award. Mr Barry submitted that this was also consistent with the requirements of State Wage Case decisions that application not be retrospective. 40 Mr Barry submitted that the compliance with cl 29 of the Award did not preclude employees from the benefit of the 1998 State Wage Case decision subsequent to the expiry of the term of the Award. 41 Mr Barry put that there was agreement between the ALHMWU and the University Union that an application made seeking the 1998 State Wage Case increase be withdrawn on consent to the 1999 State Wage Case increases being awarded. 42 Mr Barry put that this application is made post the implementation of the 1999 State Wage Case adjustment to await the mandatory 12 month period between successive State Wage Case increases. Mr Barry conceded that had an application for the 1998 State Wage Case been put and successful in 1999, the effect would have been to delay the 1999 State Wage Case 12 months and subsequently the implementation of the 2000 State Wage Case a further 12 months. 43 Mr Barry submitted at page 27 of transcript that: There is nothing hideous about what we do in relation to this and I object to the provision of trustworthiness as put by Mr Doherty's affidavit at clause 19. It is the intent of my organisation to indeed, honour every agreement that it does indeed make. However, those agreements are indeed based in my view, upon the ability of meeting the requirements of not only the legislative framework, but the principles that apply at the time. It is my submission, that when this award was made, neither of those two arrangements were indeed, met - in error, or for whatever reason, I don't know, but I do know that when the second decision was made to insert clause 42, that I did make the submissions to this Commission as currently constituted, that the award that we intended to make in finality of the arbitrated decision in those matters in consent that would have applied from 9 December 1997, met the requirements of the legislation and indeed, the State Wage Case. 44 Mr McDonald submitted that cl 29 of the Award was a valid term of the Award made by consent of the parties within jurisdiction of the Commission. Mr McDonald put that such arrangements negotiated between the parties, with or without the assistance of the Commission in conciliation, were a not unusual feature of industrial awards and agreements. 45 Mr McDonald put at page 27 of transcript that: The way that the Commission has traditionally dealt with such matters is not to look at them in the context of a first award and put them through the rigours of that principle, but to deal with them as a consent award which is an exception to the special case principle. In such cases, that's proved to be a very effective way and a fairly simple way for enterprise negotiations and agreements to be ratified by the Commission. 46 Mr McDonald submitted that the Restaurant Award (now the Restaurant &c Employees (State) Award 321 IG 759) continued to be the relevant industrial instrument supplemented by the consent enterprise award. 47 Mr McDonald canvassed the evidence of Mr Doherty leading to the Award, exploring the overriding element of agreement therein. 48 Mr McDonald submitted that cl 29 of the award had three distinctive features, which he put were: 1. It applied to all award and over-award movements 2. It expressly excluded State Wage Case decisions 3. Provided opportunity for wage movement in the event of marked economic change 49 Mr McDonald submitted that the action of the ALHMWU in not seeking the 1998 State Wage Case adjustment in the terms of the Award is testimony to acceptance by the ALHMWU that there were to be no wage increases other than in response to marked economic change, during the two year term of the Award. 50 Mr McDonald submitted that this is re-inforced by the action of the ALHMWU seeking exemption from cl 29 (ultimately consented to by the employer) in seeking application of the 1999 State Wage Case adjustments. 51 Mr McDonald referred to Principle 8 of the 1998 State Wage Case principles (at 79 IR 445 and 446) which states: 8. State Wage Case adjustments In accordance with the State Wage Case June 1998 judgment awards may, on application, be varied to include a State Wage Case adjustment of the following amounts: (1) a $14 per week increase in award rates up to and including $550 per week; (2) a $12 per week increase in award rates above $550 per week and up to and including $700 per week; and (3) a $10 per week increase in award rates above $700 per week; subject to the following: (a) The operative date will be no earlier than the date of the variation to the award. (b) At the time when the award is to be varied to insert the State Wage Case adjustment (or a proportionate amount in the cases of part-time and casual employees, juniors, trainees. apprentices, employees on a probationary rate, employees on a supported wage or with permits under s 125 of the Act), each union party to the award will be required to give a specific commitment as to the absorption of the increase. In particular, the union commitments will involve the acceptance of absorption of the adjustment of the extent of: (i) any equivalent overaward payments, and/or (ii) award wage increases since 29 May 1991 other than safety net, State Wage Case, and minimum rates adjustments, (c) The following clause must be inserted in the award: "The rates of pay in this award include the adjustments payable under the State Wage Cases of August 1997 and June 1998. These adjustments may be offset against: (a) any equivalent overaward payments, and/or (b) award wage increases since 29 May 1991 other than safety net, State Wage Case, and minimum rates adjustments." The above clause will replace the offsetting clause inserted into awards pursuant to the Principles determined in the State Wage Case August 1997 judgment. (d) By consent of all parties to an award. where the minimum rates adjustment has been completed, award rates may be expressed as hourly rates as well as weekly rates. In the absence of consent, a claim that award rates be so expressed may be determined by arbitration. (e) The State Wage Case adjustment will only be available where the rates in the award have not been increased. other than by safety net or State Wage Case adjustments, or as a result of the application of the Minimum Rates Adjustment principle, since 29 May 1991. (f) Increases arising from the State Wage Case June 1998 and from previous State Wage Cases may be phased-in upon application and where circumstances justify it. (g) In the absence of consent in respect of phasing-in, an application will be determined by the Commission. 52 Mr McDonald noted the requirements pursuant to Principle 8(3)(b), (c), (d), (e), (f) and (g) submitting that the effect and emphasis of this principle is that absorption should be as wide as possible. 53 Mr McDonald submitted that the exclusion of State Wage Case increases during the term of the Award in the manner of cl 29 is consistent and proper. 54 Mr McDonald submitted that this is consistent with the line of authority held by this Commission, supported by the refusal of the Commission to limit absorption to enterprise agreements as contended for by the Labor Council of New South Wales in the 1994 State Wage Case (1994) 57 IR 1, referring me to the following passage at 57 IR 33: However, we view the AIRC decision as providing safety net adjustments, as that term might more readily be understood, in its application to lower paid workers, namely, those who have not or do not achieve the minimum increases through the bargaining stream at the enterprise level. We therefore do not accept the possibly restricted submission of the Labor Council that absorption of the increases relevant to those adjustments should be restricted to "an enterprise arrangement made pursuant to these principles". We propose to adopt the words of the Federation/Chamber with respect to the question of absorption and have not attempted to draft a more elaborate or detailed prescription since we are of the view that the provision of such a draft form of award clause would be unlikely to be exhaustive of the wide range of possibilities available. 55 Mr McDonald submitted that the Commission recognised the desirability of consent matters as to enterprise based increases or industry settlements coming before the Commission and did not seek to hinder those by making it difficult when State Wage Case increases came about. 56 Mr McDonald put that the Commission was at pains to avoid double counting. Mr McDonald put that this approach was confirmed in the 1997 State Wage Case, where it was held (TR p33): The Labor Council urged the departure from the AIRC decision on absorption. That decision permitted all over award and enterprise based increases to absorb the $10 increase. The Labor Council accepted that in New South Wales, it was appropriate that a safety net adjustment awarded to be absorbed by industry wide award increases, or enterprise based increases and your Honour, I would emphasise the reference to enterprise based increases, which is picked up in the Commission's decision at page 50 on absorption: "The AIRC adopted the approach that the $10 increase it awarded, could be absorbed into any over award payment or enterprise based increases, which exceeded the three $8 safety net adjustments. The parties were agreed that in New South Wales, the increase awarded should also be able to be absorbed into industry wide award based increases which exceed the three $8 safety net adjustments. " 57 Mr McDonald put that the question of absorption and the issue of a no extra claims commitment is one that has not occurred within the New South Wales jurisdiction so far as his research has revealed. 58 Mr McDonald referred to the decision issued in matter No IRC 6046 of 1997 by the Commission as presently constituted on 12 January 1998 in which the award subject to consideration in these proceedings was made by consent of the parties. 59 That decision records a final difficulty between the parties as to duration, the ALHMWU seeking 12 months, the University Union seeking 2 years; and the resolution of that issue by agreement between the parties in the following terms: "The parties expressed their agreement to all terms of the revised application, exhibit 31, with the exception of the duration of the Award expressed in exhibit 31 to commence from the beginning of the first pay period on or after 9 December 1997 and to remain in force for a period of two years therefrom. For reasons not necessary to restate here but found in transcript of the proceedings, the Union sought a duration of one year which was opposed by the applicant. The parties were directed into further conciliation and the matter adjourned to report back on 6 January 1998. On 6 January 1998 Mr Biocca appeared on behalf of the applicant with Mr Broughton and Mr Dougherty. Mr Barry appeared for the ALH&MWU. On that occasion the parties informed the Commission that they had agreed to amend exhibit 31 by the addition of a provision which allowed for a mid term review of wages in the following terms: 41.3 The parties should conduct a review of wages commencing on or after 9 September 1998 with a view to variation of the wages component of this award with effect no earlier than 9 December 1998. The parties were under a mutual understanding enunciated by Mr Biocca that there should be no expectation of automatic wage movement but that the review would take into account all of those factors relevant to wages, the outcome depending upon the circumstances and the facts at the time. The parties then expressed their consent to the making of the Award in the terms of exhibit 31 as amended with effect from the first pay period to commence on or after 9 December 1997 to remain in force for a period of two years. I am satisfied that the Award sought has the genuine consent of the parties to it and that it satisfies the requirements of the Industrial Relations Act 1996 and wage fixation principles. The University of Newcastle Union Food and Beverage Staff (State) Award 1997 is accordingly made in the terms of the application by consent of the parties. 60 Mr McDonald took me to a number of decisions of the Australian Industrial Relations Commission (AIRC) where the issue has been determined: Application for variation of Firefighting Services - Wages - Firefighters and Firefighting Officers - Victoria - Award 1996 and Victorian Firefighting Industry Employees Interim Award 1993 (Hingley C 21/11/96 Print N6709); an appeal against that decision by the United Firefighters Union of Australia (Munro J, Acton DP, Gay C 8/4/97 Print P0024); application for variation to the Victorian Health and Community Services (Psychiatric, Disability and Alcohol and Drug services) Award 1995 (O'Shea C 12/8/97 Print P3930); and application for variation of the Public Service (Non Executive Staff - Victoria) Interim Award 1996 (MacBean SDP, Watson SD, Gay C 18/2/98 Print P8878). 61 Mr McDonald put that all of the decisions dealt with the situation where the AIRC had allowed wage increases that exceeded those generally available pursuant to national or state wage case decisions and the union party had applied for the national wage increase in addition. 62 Mr McDonald concluded a detailed examination of these decisions by reference to the conclusion of a Full Bench of the AIRC in the Public Service case found at page 6 of the decision in the following terms: "On the material before the Commission, no employee as a result of the application of the 10% increase in wages would receive less than the total of three $8 and $10 safety net adjustment amounts had these been applied. Having regard to our various findings and the requirements of the wage fixing principles, we have decided it would be contrary to the wage fixing principles for the rates of pay to be further adjusted by the $10 arbitrated safety net adjustment." 63 Mr McDonald submitted that in the present matter there is no dispute that the wage rates applicable pursuant to the Award are in excess of those that would be available under State Wage Case adjustments applied to the Restaurant Award. 64 Mr McDonald concluded his position (TR p37) in the following terms: "We say it was clearly the unrefuted intention of the parties that this increase not apply. We say in accordance with the State Wage Case principles, it should not apply because these employees are receiving in excess of what they would have otherwise been entitled to under normal State Wage Case increases in any event." 65 Mr Barry put that this matter did not concern absorption and that reference to the Restaurant Award is not appropriate as the intention and effect of the parties' negotiation and award making process was a new award for the University Union. 66 Mr Barry submitted that there was no attempt by the ALHMWU to double dip or avoid the necessary commitments, including the absorption principle. Mr Barry put that neither the parties nor the Commission in making the award could have foreseen the future course of wage movements so as to preclude future minimum wage adjustments. CONSIDERATION 67 I find that the making of the Newcastle University Union Food and Beverage Staff (State) Award removed the Restaurants Award from application to the University Union. This is abundantly clear from cl42.1 of the Award which specifies application to employees: "previously engaged under the provisions of the Restaurant &c Employees (State) Award ." 68 There is no relevant nexus with the Restaurant Award. 69 The application for wage adjustment pursuant to the 1998 State Wage Case decision is not available. Cl 29 of the Award is a valid and effective provision of the Award inserted by consent of the parties. 70 The submission that the instant award was a first award and thus prescribed minimum rates of pay which were fair and reasonable ignores the reality of the substantial wage increases achieved in the bargaining process, which had as part and parcel of it the absorption of State Wage Case decisions occurring during the term of the Award in all circumstances other than those of marked economic change. 71 Such submission also ignores the fact that the award was made by consent of the parties. 72 The employees received substantial wage increases which in their negotiations anticipated likely State Wage Case movements with the intention of two years of wage cost stability to the employer. This is not a remarkable act of clairvoyance as suggested by Mr Barry , but an educated judgment of current and anticipated economic circumstances. 73 The employees for their part received the value of this anticipation earlier than if they were to rely on state wage case movements 12 months apart. 74 The anticipation of state wage case movements by the parties is supported by the express exclusion of such increases by cl 29 and the failsafe provision of review available in the event of marked economic change. 75 The actions of the ALHMWU is seeking the 1999 and 2000 State Wage Case adjustments prior to this application also support the acceptance that in the absence of marked economic change the 1998 State Wage Case would not apply. 76 The necessary undertakings given by the ALHMWU in accessing the 1999 and 2000 State Wage Cases also prelude a subsequent application for a prior state wage case adjustments. 77 There is no evidence of wage deprivation or disadvantage to any classification prescribed by the Award. The lowest rates of pay prescribed for adult full time employees are in excess of the award reference rate. 78 The applicable rates of pay are the product of negotiation and agreement between the parties prescribed by consent in a specific award which is entirely in accord with the legislative scheme and jurisdiction conferred on the Commission by the Act and does not offend State Wage Case principles. 79 The arrangement between the parties is reinforced by the agreement between them on duration of the award recorded in the decision in IRC97/6046, referred to by Mr McDonald. 80 The application is refused. 81 Matter No IRC 6825 of 1999 is so concluded. oo0oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.