Industrial Relations Commission of New South Wales CITATION: Racecourse Totalisators (State) Award [2005] NSWIRComm 275 APPLICANT New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union PARTIES: RESPONDENT Tabcorp Limited FILE NUMBER(S): 239 of 2005 CORAM: Sams DP 2004 State Wage Case adjustments - racecourse totalisator industry - 'lagging' award - 18 months lag - Special Case Principle - respondent seeks consent of Union to productivity/flexibility improvements - workforce profile - low paid workers - casual employment - cost of the claim - financial position of respondent - budgetary considerations - increase not factored in - new technology - possible job losses - savings for the respondent - public interest. CATCHWORDS: Held, Special Case made out - reason for 'lagging' not relevant - employees not to blame for 'lagging' award - fair and reasonable conditions of employment for employees - application in the public interest - low paid employees - Award will continue to remain behind - cost of the claim minimal - economic evidence inconclusive - profitability of overall Division - new technology to be introduced - cost offsets not considered - application granted - backdated to date of application - foreshadowed application for 2005 State Wage Case adjustments. Industrial Relations Act 1996 Industrial Relations Act 1999 (Qld) LEGISLATION CITED: AWARD Racecourse Totalisators (State) Award 313 IG 385 TAB Clerical and Administrative Staff PhoneTAB Operators Award 2002 336 IG 405 Re Nursing Homes &c, Nurses' (State) Award (No 4) (2005) 138 IR 409 Operational Ambulance Officers (State) Award [2001] NSWIRComm 331 Pastoral Industry (State) Award [2001] NSWIRComm 27 State Wage Case 1997 73 IR 200 CASES CITED: State Wage Case 2002 114 IR 81 State Wage Case 2003 121 IR 446 State Wage Case 2004 132 IR 190 State Wage Case 2005 NSWIRComm 213 HEARING DATES: 06/24/2005 DATE OF JUDGMENT: 08/04/2005 APPLICANT Ms M Wilson, Industrial Officer New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union LEGAL REPRESENTATIVES: RESPONDENT Mr N Stevens, Solicitor Stevens and Associates JUDGMENT: - 20 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS, DP 4 August 2005 Matter No IRC05/239 Racecourse Totalisators (State) Award Application by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union for variation re award wage increases DECISION [2005] NSWIRComm 275 INTRODUCTION 1 The State Wage Case 2004 132 IR 190 provided for a $19.00 per week safety net adjustment subject to the following: (a) The operative date will be no earlier than the date of the variation to the award. (b) That at least twelve months have elapsed since the rates in the award were increased in accordance with the State Wage Case 2003 decision. (c) In awards where the variation for a safety net adjustment arising from the 1999, 2000, 2001, 2002, 2003 or 2004 State Wage Case decisions is by consent and does not result in an increase in the wage rates actually paid to employees or increase the wage costs for any employer, any applicable 12 months' delay between variations may be waived. (d) . . . . . . . . . . (e) . . . . . . . . . . 2 The Racecourse Totalisators (State) Award 313 IG 385 ('the Award') was last varied on 4 October 2004 for the wage increases available in the State Wage Case 2003 121 IR 446. In a short decision, dated 18 October 2004, the Commission as presently constituted said at par (3): ...I do express my concern that this award remains a 'lagging' award and that the State Wage Case 2004 adjustments are now available to most workers under New South Wales awards. 3 Presumably acting upon that observation, the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ('the Union') filed an application on 18 January 2005, pursuant to s 17 of the Act, for the safety net adjustments available from the State Wage Case 2004. 4 The application came before the Commission on 14 February 2005, at which time Mr N Stevens appearing for the respondent, Tab Limited, opposed the application on the grounds that the proviso requiring at least 12 months between the last State Wage Case adjustment had not been met. Nevertheless, the respondent submitted that it may be prepared to consent to the application if the Union would agree to certain productivity or flexibility improvements in the Award (for convenience I shall refer to these as 'offsets'). Not surprisingly, and despite the Commission's attempts at conciliating a resolution of the matter, the Union maintained that employees employed under the Award should not be required to agree to any offsets in order to obtain the safety net adjustments available in State Wage Cases. 5 Both parties agreed that the application could only be determined in accordance with the instruction of the Full Bench in the State Wage Case 2002 114 IR 81 which required that any application of this type be dealt with as a Special Case. At par 72 the Full Bench said: In our view, no proper basis has been established for the retention of principles 8 (g) and (h) (dealing with 'lagging' awards). Upon the material before us, it would appear that the principles have essentially served their purpose. Any residual issue (such as may exist) should be dealt with in special case proceedings. 6 This requirement was reaffirmed in the State Wage Case 2003. The Special Case Principle is expressed as follows: Except for the flow on of test case provisions, any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the principles, will be processed as a special case before a Full Bench of the Commission, unless otherwise allocated by the President. This principle does not apply to applications for awards consented to by the parties, which will be dealt with in the terms of the Act, or to enterprise arrangements, which will be dealt with in accordance with the Enterprise Arrangements principle. 7 This requirement remained unaltered in the State Wage Case 2004 and is relevantly applicable to the application now before the Commission. That being so, the matter was referred to his Honour the President. On 23 February 2003, his Honour determined that: Having considered the reference to the President of the Commission by Deputy President Sams in this matter dated 21 February 2005, and the memorandum of his Honour of the same date, I determine that these proceedings, including any Special Case aspect of them, are to be dealt with by his Honour. BACKGROUND 8 The respondent operates oncourse totalisator facilities at around 170 locations throughout New South Wales, covering over 2300 race meetings a year. The respondent employs around 940 employees, of whom 900 are casual oncourse totalisator operators. The remainder are full or part time permanent employees. The overwhelming majority of casual employees are women who are paid the 2A rate under the Award which is presently $20.22 an hour. 9 The current rates of pay under the Award are: Base Rate 1/12th Travel Clothing Total Classification Per hour Annual Allowance Allowance Rate per $ Leave per hour per hour hour $ $ $ $ Level 1 15.40 1.27 1.07 0.61 18.35 Level 2A 17.12 1.42 1.07 0.61 20.22 Level 2B 17.56 1.45 1.07 0.61 20.69 Level 3A 18.44 1.54 1.07 0.61 21.66 Level 3B 19.02 1.59 1.07 0.61 22.29 Level 4 20.36 1.70 1.07 0.61 23.74 THE EVIDENCE For the Union 10 The Union tendered affidavits from Ms Lyn Fraser, the Union's Research Officer and Ms Jan Flanagan, a casual totalisator operator employed by the respondent. Neither Ms Fraser nor Ms Flanagan was required for cross-examination. 11 Ms Fraser traced the recent history of her involvement in applications to vary the Award and noted that the Union had raised the 'lagging' status of the Award in s19 Award Review proceedings in November 2003. She also referred to the proceedings before the Commission in October 2004. She also commented on the exchanges of correspondence between the Union and the respondent. 12 Ms Fraser undertook a comparison of rates of pay between phonetab operators employed under the TAB Clerical and Administrative Staff PhoneTAB Operators Award 2002 and oncourse totalisator employees which disclosed higher rates of pay for phonetab operators. 13 Ms Flanagan works as a casual totalisator operator for 4.5 to 6.5 hours each week on a Wednesday, public holidays and at compulsory race meetings. She has two other jobs as a casual teacher's aide and as a permanent part time school co-ordinator. Ms Flanagan is a sole parent with two teenage sons. She has worked as a totalisator operator since 1977. At that time, she was working between 22 and 25 hours per week. She has also worked in rostering and has trained new operators. 14 Ms Flanagan said that the majority of casual operators are employed at the 2A rate of $20.22 per hour which includes annual leave, travel and clothing allowance. 15 Ms Flanagan spends more on her clothing than for her other jobs because of the standard of dress required. She also spends more time travelling and more costs for travelling than her other jobs; for example, to Randwick and Canterbury racecourses. Her hours at the race meetings vary from 4.5 to 6.5 hours. She noted that the winter shifts are shorter because there are fewer races. She added that operators are responsible for any cash shortages in what is a high-risk industry. 16 Ms Flanagan deposed that the vast majority of operators are women who fall into two broad groups. The first consists of mostly older women who have many years experience and are available for all race meetings and do not have other jobs. The second group is the Saturday/Public Holiday employees who have other jobs or are studying. 17 Ms Flanagan had not been aware that the Award was not up to date and believed that employees should receive State Wage Case increases to which they are entitled. Any wage increase would be of assistance to employees in being able to support themselves and their families. For the respondent 18 Ms Bernadette McLoughlin is the General Manager, Oncourse Sales, responsible for the management of oncourse totalisator facilities in New South Wales, Victoria and Queensland as part of the respondent's Wagering Division. She has 23 years' experience in the industry and 18 years managing oncourse operators. 19 Ms McLoughlin traced the history of the respondent's acquisitions of the two former companies which operated oncourse totalisator facilities - Racecourse Totalisators Pty Ltd in 1999 and AWA Wagering Systems Pty Ltd in 2000. 20 Ms McLoughlin detailed the history of how State Wage Case increases since 2000 came to be paid under the Award. She attached various minutes of meetings and exchanges of correspondence with the Union. She believed the Award became a 'lagging' award as a direct result of the Union's failure to apply for the increase in 2000. 21 Ms McLoughlin said she was not aware that an employer could apply for the State Wage Case increases. She agreed the respondent had not written to the Union about the matter. Ms McLoughlin agreed that cost offsets for State Wage Case increases was not a requirement of the wage fixing principles. However, the respondent was looking for cost neutrality if it agreed to the 2004 increase. 22 Ms McLoughlin said that when the Union filed for the 2004 State Wage Case adjustment, the respondent replied by referring to the requirement for 12 months between increases. However, the respondent proposed that it may agree to the increase if the Union was prepared to discuss issues relating to "the flexibility of processes and productivity". 23 The respondent later identified the changes it was seeking as: The parties agree in principle to enter into a State enterprise agreement to replace the Award; The payment of wages cycle be changed to the fortnight ending on a Tuesday, and payment on a Friday; No Sunset clause for Melbourne Cup Day; and Changes to some classifications under the Award. 24 Ms McLoughlin detailed her involvement in the preparation of the respondent's financial accounts for the financial year 2004/05. She said each of the Group's businesses operate as 'profit centres' and the oncourse operations must set its own budget and take into account its own cash forecasts and capital expenditure. 25 In preparing the budget, labour costs were taken into account and no allowance was made for the 2004 State Wage Case because 12 months must elapse from the 2003 increase awarded in October 2004. She said that any further increase at this time would 'blow-out' the budget. 26 Ms McLoughlin highlighted the lack of growth and expected decline in profitability of oncourse operations since 2001/02. This decline was expected to continue due to a significant fall in punter attendances at oncourse race meetings. Profits would also be affected by a decline in high value customers. Ms McLoughlin agreed that the dividend for a bet was the same whether it was placed oncourse or offcourse. 27 Ms McLoughlin provided a graph which was said to depict declining profits in oncourse operations since 2001/02. The graph does not however, deal with profit, but rather with turnover. Ms McLoughlin also tendered a newspaper article which referred to a drop in Sydney racing TAB sales from $692.6m in 1993 to $576.4m in 2004. Again, these figures do not reflect profit, but sales. 28 In cross examination, Ms McLoughlin said the respondent was required to provide a service to the race clubs in terms of totalisator facilities. The number of windows which are opened on race days are negotiated with the race clubs. Oncourse facilities would never be completely shut down. 29 Ms McLoughlin was shown the TabCorp financial report for the 6 months ended 31 December 2004 and in particular par 2 on p 7: Wagering The Wagering division achieved profit before interest, taxation and amortisation of goodwill of $103.2 million, which was 159.9% above the previous corresponding half year. Its total operating revenue increased by 194.5% to $688.6 million. The increases included the impact of the wagering business of Tab Limited acquired in July 2004. 30 Ms McLoughlin explained that the large growth of almost 200 per cent reflected the acquisition of Tab Ltd in 2004. She added that it would not be appropriate to disclose to shareholders negative returns of one business unit in the Division. 31 In order to address the respondent's declining profits, Ms McLoughlin said that she had investigated ways of offsetting cost increases. The two largest controllable costs are casual wages and security. She concluded that reducing security guards manning cash in transit or at racecourses would not be in the public interest. 32 Over the last three years, the respondent has been developing new technology which includes automated totalisator machines. This will reduce the number of casual employees directly and avoid training costs. The new technology has reached a trial stage with the race clubs expressing great interest in purchasing the new equipment. Ms McLoughlin agreed that the new technology was an impersonal means of placing bets which may not be popular with the public. However, cost savings would be available if the new technology is rolled out before it might otherwise have been. This may initially reduce casual staff levels by 2 per cent. 33 In a reply affidavit, Ms Fraser disputed that the Union had failed to address the 'lagging' nature of the Award. The Union had sought both the 2000 and 2001 State Wage Case adjustments in 2001 and raised the matter in s19 Award Review proceedings in 2003. She noted the respondent had not sought to address the 'lagging' nature of the Award. 34 As to the proposed offsets, Ms Fraser said the Union had never arrived at a 'consent position' to be put to its members. Rather, the Union had agreed to put the respondent's proposals to members. 35 Ms Fraser undertook a study of the effect of the 'lagging' Award on actual rates of pay, the cost savings for the respondent and the effect of any retrospectivity granted in this case. She used the 2A casual totalisator rate for her research. She concluded as follows: (a) If the rate was adjusted for each year the State Wage Cases had been granted since 2000, the rate would be $20.98. (b) If an average of 15 hours per week was worked over 35 weeks, the operator has lost $1432.03. (c) Using 800 employees this represents a saving to the respondent of $1,023, 224. (d) Using the same criteria, the amount of back pay if the increase was granted from 18 January 2005, is $122,400. 36 Ms Fraser concluded that these figures demonstrate that the respondent's savings were significant and it was unreasonable that employees should be required to make further productivity offsets. SUBMISSIONS For the Union 37 Ms M Wilson submitted that the Union's application for the 2004 State Wage Case increases should apply from the date of the filing of the application - 18 January 2005. She said the Commission has the power to grant the application under ss15, 17 and 52 of the Act. Ms Wilson said the Award had become a 'lagging' award in 2000 and since that time employees have suffered financially while the respondent has benefited from not having to pay State Wage Case adjustments on time. 38 Ms Wilson said the employees covered by the Award were casual and part time and were on low incomes. These employees were precisely those which the State Wage Case had intended to protect when it granted safety net adjustments to the low paid. In seeking cost offsets, Ms Wilson emphasised that such offsets are not required for State Wage Case adjustments. The 12 months between safety net adjustments was not designed to benefit employees over the needs of the low paid. Ms Wilson submitted that the Commission had established a mechanism for correcting 'lagging' awards through the Special Case Principle. 39 Ms Wilson referred to the respondent's assertions that it may have to close windows and bring forward plans for new technology. She said that as casual employees, work is made available by the employer, as needed. New technology will be introduced, irrespective of the outcome of this application. 40 In any event, Ms Wilson submitted that the respondent was a large and profitable organisation. 41 Ms Wilson referred to earlier State Wage Cases which granted award wage increases by General Order thus ensuring all workers benefited from State Wage Case increases. 42 Ms Wilson said the Union would be filing shortly for the increases available from the State Wage Case 2005 NSWIRComm 213. Ms Wilson suggested that that application should be joined with these proceedings and in the worst case scenario, the 2005 adjustment should apply from 18 January 2006. For the respondent 43 Mr Stevens put that the so-called savings alleged to have been made by the respondent is not the test of whether there exists a Special Case. The test is whether or not the conditions of employment in the Award are fair and reasonable; see Pastoral Industry (State) Award [2001] NSWIRComm 27 and Operational Ambulance Officers (State) Award [2001] NSWIRComm 331. Importantly here, Mr Stevens said, were the express provisions of Principle 8 of the Wage Fixing Principles which require an application to be made which may result in an Award variation, but subject to there being at least 12 months since the last State Wage Case adjustment. The respondent is entitled to rely on the Wage Fixing Principles in setting its budgets and forecasts. 44 Mr Stevens submitted it was necessary to look at the reason why the Award became a 'lagging' Award. The respondent had gone to great lengths in 2000/01 to try and reach an enterprise agreement with the Union. He added that it was simply not the forum to address the matter in a s19 Award Review or the State Wage Case 2003. The matter had at least a four year history, yet the Union had only now sought to address it. 45 Mr Stevens addressed the requirements of the Union to establish a Special Case. Two important considerations were the cost of the claim and the public interest. From the evidence of Ms McLoughlin it was apparent that there will be additional costs for the respondent which have not been budgeted for. 46 In referring to the Union's calculations of costs and savings, Mr Stevens said there was no evidence that the Union's reliance on a particular scenario was the usual or average case. In any event, such savings are not the test to be applied in this case. 47 In considering the public interest, Mr Stevens submitted the Commission should rely on Ms McLoughlin's evidence that the increase will impact on jobs. By looking for cost savings, the need to reduce the labour impact would be neutral. Other public interest factors were the lack of growth of the on course operation, expected decline in profitability and service to the public through the introduction of new technology. Mr Stevens detailed each of these factors by reference to Ms McLoughlin's evidence. 48 While opposing the application, Mr Stevens put that if the Commission was against the respondent, an operative date some time later than the 18 January 2005 would be less of a cost burden for the respondent. 49 At the conclusion of his submissions, the Commission asked Mr Stevens if the Commission should do or say anything about the respondent's proposed cost offsets. He said that while it was not the appropriate forum to do so, the Commission might consider at least three of the four cost savings, identified by the respondent in the evidence. 50 In reply, Ms Wilson agreed that Ms Fraser's calculations were based on a particular scenario. However, on any basis the respondent must have made considerable savings by not passing on a wage increase. 51 As to the public interest tests, Ms Wilson said that Ms McLoughlin had not said the respondent would experience no growth, just less growth. As to job losses, these would occur anyway, as would any reduction in hours for casual employees. She said the real public interest is ensuring low paid workers receive the safety net adjustment. 52 As to staggering the operative dates, Ms Wilson put that the respondent had been on notice for some time that the "lagging" issue would be addressed. Finally, Ms Wilson said that the respondent should look to other cost savings, such as reducing its profit margin. CONSIDERATION Special Case Principles 53 As properly conceded by both parties, this application must be processed as a Special Case in accordance with Principle 10 of the State Wage Case 2004 Wage Fixing Principles. The matters to be considered when dealing with the obligations on the parties under the Special Case Principle are well known and were recently referred to in Re Nursing Homes &c, Nurses' (State) Award (No 4) 138 IR 409 where the Full Bench said: 18 The special case and work value principles have been recently considered in a number of decisions of the Commission, including, in particular Re Social and Community Services Employees (State) Award (2001) 113 IR 119 at 128 - 130 ; Re Operational Ambulance Officers (State) Award (2001) 113 IR 384 at 418 - 420 ; Re Public Hospital Nurses (State) Award (2002) 115 IR 183 at 186 - 190 ; Re Health Employees Pharmacists (State) Award and other Awards (2003) 132 IR 244 at [23] - [27]; Re Public Hospital Nurses (State) Award (No 4) (2003) 131 IR 17 at [16] - [22]; and Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2004) 133 IR 254 at [30] - [32] and [86] - [96]. It is unnecessary, in light of those recent decisions, to reconsider the principles except to emphasise that: 1 In order to satisfy the requirement for a special case, the applicant must demonstrate that the case has "special attributes" or is "out of the ordinary" so as to take it outside the restrictions which may otherwise apply under the wage fixing principles: Re Operational Ambulance Officers at [166]. 2 An applicant to a special case needs to establish an "adequate evidentiary foundation" to establish the special factors that warrant an award variation in order to set fair and reasonable conditions of employment: Re Operational Ambulance Officers at [168]. 54 I repeat, the onus rests with the applicant to convince the Commission of the merits of the claim based on an adequate evidentiary foundation. In granting any Special Case claim, the Commission is required to consider the cost of the claim, potential for flow on and the public interest. For this application to meet the tests of what constitutes a Special Case, the Union must establish that the case is one which is "exceptional", "unusual" or "out of the ordinary". 55 In this later respect, I am well persuaded that the Union's onus has been appropriately discharged. Firstly, the fact that this is the only case which has specifically addressed the notion of a 'lagging' award outside State Wage Case proceedings must, I think go in large measure to justifying this as an 'exceptional', 'out of the ordinary' case. Secondly, the extent of the 'lagging' is also, in my view, somewhat exceptional and would ground a conclusion that this case has unusual characteristics. The 'lagging' Award 56 There is no doubt that this Award is a 'lagging' award within the meaning of that description adopted by the Full Bench of the Commission in the State Wage Case August 1997 73 IR 200 and subsequent State Wage Cases. Indeed, on one view, this Award might more aptly be characterised as a 'badly lagging' Award; being around 18 months in arrears for the relevant State Wage Case safety net adjustments. 57 There is little to be gained by apportioning blame for how the Award came to be in this state; suffice it to say that absolutely no criticism can be levelled at the employer or the employees for the current circumstances. It was a rather cheeky submission from the Union to suggest that the employer could have rectified the deficiency by making an application itself. That being said, I am troubled by the fact that this Award has been known to be 'lagging' for some years, yet no attempt was made to rectify the position in various State Wage Case proceedings since 2001. It could not be said that this Award is of little consequence or limited coverage, particularly as it is an actual rates Award applying to a predominantly female workforce in a significant industry in New South Wales. 58 Importantly, in my view, is the Commission's imperative to question whether it is fair and reasonable to perpetuate an unsatisfactory situation which has arisen through no fault of the employees covered by the Award. Unless some corrective action is taken, this situation is likely to continue and the employees will continue to be disadvantaged, vis a vis, other employees in New South Wales who are reliant on State Wage Case increases. 59 Specifically, the Commission's legislative mandate is governed by s10 of the Act: 10 Commission may make awards The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees. I propose to determine this matter according to these tests. CONCLUSIONS 60 For the reasons I shall shortly outline, I have concluded that granting this application will be consistent with the Act's objective of awards being made which set 'fair and reasonable conditions for employees'; see Pastoral Industry (State) Award. I further conclude that the grant of the application would be in the public interest. 61 Firstly, the evidence is that this is an actual rates Award. In other words, the rates of pay prescribed in the Award are the actual rates of pay paid to the employees. No over award payments are made. It must be observed that safety net adjustments are designed, inter alia, to provide a mechanism for ensuring that rates of pay for employees on actual rates awards do not fall significantly behind employees who receive over award payments or who are covered by enterprise arrangements or agreements. 62 Secondly, employees employed under the Award are overwhelmingly women. The work is casual employment with the employees being engaged on race days only. Ms McLoughlin's evidence was that she works 4.5 to 6.5 hours a week and supplements her income by other casual and part time engagements. 63 Thirdly, the current hourly rate for a racecourse totalisator operator 2A is $20.22. It could hardly be said that the rates under this Award are high or excessive. Safety net adjustments were introduced to assist the needs of the low paid. In my opinion, employees under this Award may properly be regarded as low paid employees and, in the ordinary course, would be entitled to receive the benefits of safety net adjustments provided for in State Wage Cases in a timely fashion. 64 Fourthly, this application was filed on 18 January 2005. The Union seeks this date as the date from which the 2004 State Wage Case adjustments should apply. Even accepting this operative date, the Award will remain around 6 months behind the State Wage Case 2004. While I accept there will be some administrative burden on the employer in calculating any back pay entitlements, I do not accept this burden to be exceptionally onerous or unworkable. This burden must be weighed against the rectification required to be made for the employees concerned. 65 Fifthly, Mr Stevens emphasised the cost of the claim and its possible impact on the respondent's operations, including the maintenance of existing staffing levels. It is trite, of course, to observe that any wage increase is a cost to the employer. However, in view of the quantum of increase proposed, and my assessment of its financial impact, I conclude that the cost imposition on the respondent will be minimal. I note that the Union argued that the respondent has had the benefit of savings from delaying past safety net increases. While there is some logic in this submission, I am not convinced that the savings are as great as the Union has calculated. In any event, I agree with Mr Stevens that this is not the test of whether this application should be granted. 66 Sixthly, Mr Stevens correctly in my opinion, did not advance his client's case on an incapacity to pay basis. That being said, the central thrust of the respondent's case focused on the cost impact of the claim and its consequences for staffing levels. I should say, I find this evidence to be unpersuasive for the following reasons. 67 The Commission was provided with information concerning reduced turnover arising from falling attendances at race meetings. This was not disputed. However, the evidence was less than clear as to the effect of the reduced turnover on operating costs and the profit and loss of the oncourse operations. 68 The Commission accepts Ms McLoughlin's evidence that the oncourse operations of TabCorp Holdings Ltd is required to set and meet its own budgets and operating expenses. However it is pellucidly clear from TabCorp Holdings Ltd half year report to 31 December 2004 that the oncourse operations are not an autonomous business unit within the corporate entity. Rather, its results are included in the Wagering Division which, for the period just referred to, recorded a profit before taxation and amortisation of goodwill of $103.2m - 159.9% above the corresponding previous period. Total operating revenue increased by 194.5% to $668.6m. While this was attributed, in large measure, to the acquisition of the wagering business of TabCorp Ltd in July 2004, it still is a profit of the relevant Division. 69 Moreover, the respondent's Managing Director, in describing the overall results, said "We currently expect the group will again deliver solid growth earnings per share in the 2005 financial year". 70 I do not regard the proposed fast tracking of new technology and its effect on staffing levels as being an impediment to the grant of the claim. Obviously, the new technology will be introduced at some stage. This is a fact of modern industrial life. However, in my view, this argument should not be used as a grounds to justify the refusal of an otherwise meritorious claim. 71 Mr Stevens did not argue that, if the Commission granted this application it should do so with all, or some of the cost offsets, accepted by, or endorsed by the Commission. As mentioned earlier I queried Mr Stevens about this at the conclusion of his submissions. Upon reflection, I do not believe I have sufficient material before me to make variations to the Award or otherwise recommend or order that the proposed offsets be given effect. 72 Notwithstanding this conclusion it seems to me that at least two of these proposals would have little, or no impact on the employees under the Award; for example, the Union's agreement to an enterprise agreement and EFT for employees' wages, rather than cash payments. 73 Finally, I would direct the parties' attention to a General Ruling made by the Queensland Industrial Relations Commission on 27 June 2005 pursuant to ss287 and 288 of the Industrial Relations Act 1999 (Qld) (Queensland Government Industrial Gazette, 8 July 2005 at 412). The effect of this General Ruling was to provide a mechanism for adjusting all Queensland State awards for outstanding State Wage Case increases from 1 January 1987 to 1 January 2005. I would emphasise, of course, that this process was adopted under a different legislative framework and no doubt in different circumstances. Obviously, I have not relied on it when arriving at my determination of this matter. Indeed, it would be wrong for me to do so, absent of any submissions from the parties on the relevance, or otherwise, of this decision. I raise it merely as a matter of some passing interest for the parties. 74 For the reasons I have earlier expressed, I would grant the Union's application to apply the State Wage Case 2004 increases to the Award effective from the first full pay period to commence on or after 18 January 2005. The parties are directed to confer as to an agreed schedule to be filed with the Commission within 14 days. Liberty to apply is available in the event of any disagreement. 75 As to the Union's application IRC3413 of 2005 filed on 30 June 2005 seeking the State Wage Case 2005 adjustments, that matter is listed for mention on Thursday 18 August 2005 at 10:30am. Peter J Sams, AM Deputy President 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.