Industrial Relations Commission of New South Wales CITATION : Local Government (State) Award 1997 - Application by the Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division for variation re Clause 11 Use of Skills & or matters [2000] NSWIRComm 108 APPLICANTS: Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division PARTIES : Local Government Engineers Association of New South Wales RESPONDENTS: Local Government and Shires Associations of New South Wales FILE NUMBER: 5445 of 1998 CORAM: Schmidt J Award - variation of clause 11 of the Local Government (State) Award 1997 - allowance sought for community language skills and first aid work - operation of existing clause deficient - case made out under s17 of the Industrial Relations Act 1996 - variation to insert clause 11 in clause 33 of the award - variation to clause 11 and Schedule B of the award - saving provision CATCHWORDS : Wage fixation - Work Value and Allowance principles - work performed on a regular or occasional basis - payment through salary system - allowance fixed - absorption Industrial Relations Act 1996 LEGISLATION CITED : Local Government Act 1993 Local Government (General) amendment (Community and Social Plans) Regulation 1998 Occupational Health and Safety (First Aid) Regulation 1989 HEARING DATES: 03/13/2000; 03/14/2000; 03/15/2000; 03/16/2000; 04/12/2000 DATE OF JUDGMENT: 06/23/2000 APPLICANTS: Mr B Kruse Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division LEGAL REPRESENTATIVES: Mr G Brock Local Government Engineers Association of New South Wales RESPONDENT: Ms L Tiddy Local Government and Shires Associations of New South Wales JUDGMENT: - 37 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Schmidt J DATE: 23 June 2000 MATTER NUMBER IRC 5445 OF 1998 LOCAL GOVERNMENT (STATE) AWARD 1997 Application by the Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division for variation re Clause 11 Use of Skills & or matters DECISION 1 This application for variation of clause 11 of the consent Local Government (State) Award 1997 was brought in October 1998 by the Federated Municipal Shire Council Employees' Union of Australian New South Wales Division ('the Union'), in accordance with clause 33 Leave Reserved of the award. That clause does not expressly deal with clause 11 Use of Skills of the award, as the result of an oversight. During the hearing the Union amended its application, by consent, to vary clause 33 to rectify that difficulty, there being no doubt between the parties that they had there agreed to make reference to clause 11. 2 The application was supported by the Local Government Engineers Association of New South Wales ('the LGEA'), but the Environmental Health and Building Surveyors Association of New South Wales withdrew from the proceedings at the hearing, announcing it had no interest in the application. The LGEA was later represented in the proceedings by the Union. The parties had spent considerable efforts in seeking to resolve the difficulties which had given rise to this application, including conducting various surveys of their respective members and exploring their differences in conciliation before the Commission. Even when the matter was arbitrated, alternative positions were developed which were put forward in written submissions after the conclusion of the hearing. 3 The application sought the deletion of clause 11, which provides: '(i) An employee shall be paid the salary system rate of pay that recognises the skills the employee is required to apply on the job. The skills paid for shall not be limited to those prescribed by the job description and may, where appropriate, include skills possessed by the individual employee such as the use of a community language or first aid, which are required by council to be used as an adjunct to the employee's normal duties. Employees who are required by council to use such additional skill(s) in the performance of their duties shall have the use of those skill(s) considered in the evaluation of the position provided that: (a) the employee shall be accredited as appropriate; (b) prepared to be identified in the council as possessing additional skill(s); (c) available to use the additional skill(s) as required by council; (d) recognised by council as a regular user of the additional skill(s) as an adjunct to their normal duties. Provided further that council shall establish a minimum level of usage of additional skill(s) for this subclause to apply. (ii) The parties are committed to improving skill levels and removing impediments to multi-skilling and broadening the range of tasks that the employee may be required to perform. (iii) The council may direct the employee to carry out such duties that are within the limits of the employee's skill, competence and training. (iv) An employee required to relieve in a position which is at a higher level within the salary system shall be paid for that relief. The rate to be paid shall be determined by considering the skills/experience applied by the employee relieving in the position but shall be at least the minimum rate for that position in accordance with the salary system except where the higher level skills have been taken into account within the salary of the relieving employee. (v) Payment for use of skills relieving in a higher paid position shall be made for the time actually spent relieving in the higher position.' 4 The new clause sought, (as amended), provided: ' 11. USE OF SKILLS A: General Provisions (i) The parties are committed to improving skill levels and removing impediments to multi-skilling and broadening the range of tasks that the employee may be required to perform. (ii) The council may direct the employee to carry out such duties that are within the limits of the employee's skill, competence and training. (iii) An employee required to relieve in a position which is at a higher level within the salary system shall be paid for that relief. The rate to be paid shall be determined by considering the skills / experience applied by the employee relieving in the position but shall be at least the minimum rate for that position in accordance with the salary system concept where the higher level skills have been taken into account within the salary of the relieving employee. (iv) Payment for use of skills relieving in a higher paid position shall be made for the time actually spent relieving in the higher position shall be made for the time actually spent relieving in the higher position. B: Additional Skills Allowances (i) Community Language Allowance (a) Where an employee is acquired by council in the performance of their duties to utilise skills in a community language to provide services to speakers of a language other than English, or provide AUSLAN services, the employee shall be paid an allowance in addition to the weekly rate of pay as set out in Table 2. (b) The Community Language Aide acts as a first point of contact for Non English Speaking Residents. The Aide identifies the resident's area of enquiry and provides basic assistance. Types of assistance may include face-to-face discussion and/or telephone enquiry. (c) Language Aides convey straightforward information relying to council services to the best of their ability. Community Language Aides do not replace or substitute the role of a professional interpreter/translator. (d) Language Aides shall record their use of a community language according to Council established policy. (ii) First Aid Officer Allowance Where an employee is required by council in the performance of their duties to be in charge of a first aid kit and/or administers first aid the employee shall be paid an allowance in addition to the weekly rate as set out in Table 2. (iii) Additional Skills Criteria Where an employee is required by council to use community language or first aid skills in the performance of their duties: (a) Council shall provide the employee with the opportunity to obtain accreditation from a language aide or first aid accreditation agency; (b) The employee shall be prepared to be identified as possessing the additional skill(s); (c) The employee shall be available to use the additional skill(s) as required by council; (d) The employee shall be recognised as an occasional or regular user of the additional skill(s) as an adjunct to their normal duties. (iv) Savings The above provisions identify minimum criteria only, and nothing in Sub Clause 11B of this award shall be construed so as to require the reduction or alteration of more advantageous benefits or conditions under any existing arrangements. 5 The variation sought was opposed by the Local Government and Shires Association of New South Wales ('LGSA'), which argued that the Union had not made out a case for any alteration to the existing consent provision. 6 In final submissions, both parties indicated that they had alternative positions to advance, which were later reduced to writing. The Union's alternative position was that clauses 11B(iv) and 11B(ii) should provide: '11B(iv) (a) The above provisions identify minimum criteria only, and nothing in Sub-clause 11B of this award shall be construed so as to require the reduction or alteration of more advantageous benefits or conditions under any existing arrangements. (b) An employee's salary system rate of pay shall not be reduced as the result of the payment of an additional skills allowance. (c) Where, prior to ( insert date of award variation ), an employee has received a discernible payment for the use of an additional skills allowance, council shall pay the employee the difference between the rate then paid to the employee and the rate of set out at Table 2. 11B(ii) First Aid Allowance Where an employee is required by council in the performance of their duties to be in charge of a first aid kit and/or administers first aid the employee shall receive a salary system payment for the use of such skill or shall be paid an allowance in addition to the weekly rate of pay as set out in Table 2.' 7 The LGSA's alternative position was that Clause 11(ii) of the existing clause should be varied to provide:- 'An employee required to use language skill(s) as provided in subclause (i) shall have the skill(s) paid for in the salary system. Nothing in this subclause shall limit the right of the Council and the employee to agree to an enterprise arrangement that recognises the use of language skill(s). Provided further that this subclause shall not be construed to require the reduction or alteration of more advantageous benefits or conditions which the employee may be entitled to under existing arrangements.' 8 In the alternative, it was submitted that the clause advanced by the Union should be varied to include in clause B(i)(a) the words 'required to use skills as an adjunct to their normal duties', the reference to AUSLAN services should be deleted, as should clauses B(ii), B(iii)(a) and the words 'an occasional or' in clause B(iii)(d). The evidence 9 Evidence was called by the Union from Nina Antosz, Library Assistant, Blacktown City Council Library; Roberta di Brazza, Information Technology Manager, Drummoyne Council; Sandra Hemming, Outreach Adviser within Bankstown Council; Carmel Caggegi, Community Worker Ethnic Services, Leichhardt Council; Joanna Stabinski, Team Leader in Community Development, Multicultural Services at Canterbury City Council; Eric Poulos, Senior Policy Officer with the NSW Anti-Discrimination Board; Kevin Dunn, lecturer in urban and cultural geography and qualitative research methods at the University of New South Wales; Linda Pettersson, Principal Policy Officer with the Ethnic Affairs Commission of NSW, Gordon Brock, Industrial Officer with the Association of Professional Engineers, Scientists and Managers of Australia. 10 Gay Digirolamo, Customer Service Officer with Concord Council and Deborah Tamplin, Research Officer for the Federated Municipal and Shire Council Employees' Union of Australia, NSW Division were not required for cross examination. 11 Evidence was called by the LGSA from Trevor Brown, Director - Corporate Services of Auburn Council; Les Hullick, General Manager of Concord Council; Michael Wowk, Employer Services Coordinator of Blacktown City Council; and David Gibson, Director of Industrial Relations and Employment Division of Local Government and Shires Associations of New South Wales. 12 Raymund Banister, Manager Human Resources, Hurstville City Council and Cynthia Goulet, Manager Personnel, Rockdale City Council were not required for cross examination. 13 An agreed statement of facts was tendered by the parties, which in short, noted that: (i) In 1987, the State Government launched a pilot Local Ethnic Affairs Policy Statement Programme ('LEAPS'). This encouraged local councils to provide services to residents of diverse cultural, religious and linguistic backgrounds. This programme led to the establishment of social and community plans by various councils. (ii) In 1989, the State Government introduced a 'Community Language Allowance Scheme ('CLAS'). This provided a means for State Government employees to be rewarded for the provision of language assistance for simple and uncomplicated enquiries by people of non-English speaking backgrounds ('NESB'). Such employees did not replace interpreters. They had to be accredited by the Ethnic Affairs Commission, which conducts examinations and issues accreditation certificates. Two levels of allowances were established, a base level of $686 per annum and a higher level of $1029 per annum. (iii) In 1998, the Local Government (General) Amendment (Community and Social Plans) Regulation was introduced. It required all local councils to develop and implement social/community plans, having regard to demographic data and human needs assessments, which enabled councils to choose priority initiatives to meet the needs of certain mandatory target groups, which included people from culturally and linguistically diverse backgrounds. The use of community language aides and services was one way in which councils could implement such plans. Section 428(2)(j) of the Local Government Act 1993 provides: '428. Annual reports … (2) A report must contain the following: … '(j) details of programs undertaken by the council during that year to promote services and access to services for people with diverse cultural and linguistic backgrounds in a manner that is consistent with the principles of cultural diversity,' (iv) Accreditation for language aides employed by councils is available from the Ethnic Affairs Commission and from the University of New South Wales at a cost of about $125. The National Accreditation Authority for Translators and Interpreters ('NAATI') also formerly provided an accreditation service, which has been discontinued. (v) Australian Bureau of Statistics ('ABS') data published the Ethnic Affairs Commission in the report 'The People of NSW: Statistics from the 1996 Census' indicated that between 1991 and 1996 in the Sydney region there had been an 11% increase in the number of persons speaking a language other than English at home. Of such residents 20.9% described themselves as having poor English literacy skills. In NSW overall, there had been a 10% increase in such persons during the same period, with 20.4% describing themselves as having poor English literacy skills. (vi) The MEU and the LGSA both conducted surveys of their respective members, which led to an agreement that numerous councils throughout Sydney utilise the community language skills of employees in order to assist NESB clients. (vii) Canterbury Council - The 1996 census indicated that there had been a 9.4% increase in the NESB population of Canterbury Council since 1991, with 45.2% of its then total population with an NESB background. This council adopted a LEAPS statement in 1988; implemented a formal language aide programme, with accredited language aides under the CLAS scheme in 1991 and introduced a two level payment system in 1993. Those payments remained at $10 for the 21 language aides now employed and $20 for one paraprofessional employee. (viii) Bankstown Council - The 1996 census indicated that there had been a 15.8% increase in the NESB population of Bankstown Council since 1991, with 28.8% of its then total population with an NESB background. This council employed a number of employees who utilised their community language skills at various locations throughout council, but no payment was made for such work. (ix) Concord Council - The 1996 census indicated that there had been a 1.3% increase in the NESB population of Concord Council since 1991, with 26.1% of its then total population with an NESB background. This council employed a number of employees who utilised their community language skills at various locations throughout council, including the council's one stop shop, but no payment was made for that work. (x) Drummoyne Council - The 1996 census indicated that there had been a 1.9% decline in the NESB population of Drummoyne Council since 1991, with 21.4% of its then total population with an NESB background. This council participated in the LEAPS pilot and employed a number of employees who utilised their community language skills at various locations throughout council, but no payment was made for that work. (xi) Hurstville Council - The 1996 census indicated that there had been a 28.3% increase in the NESB population of Hurstville Council since 1991, with 24.1% of its then total population with an NESB background. This council employed 5 language aides accredited by the Ethnic Affairs Commission who were paid an allowance of $5.50 per week. (xii) Rockdale Council - The 1996 census indicated that there had been a 7.5% increase in the NESB population of Rockdale Council since 1991, with 33.4% of its then total population with an NESB background. This council employed eight language aides accredited by NAATI, who were paid an allowance of $7.00 per week. (xiii) Blacktown Council - The 1996 census indicated that there had been a 25.4% increase in the NESB population of Blacktown Council since 1991, with 23.9% of its then total population with an NESB background. It employed a number of staff who provided language assistance to clients of council, particularly in the library, which has had policies in place since the 1970s designed to develop a range of services for the cultural needs of NESB residents. It also published a directory of employees with multi-lingual or signing abilities who 'can be called upon' to assist with communication problems between staff and customers, but made no payment to such staff. This council also used the Ethnic Affairs Commission telephone interpreter service. (xiv) Leichhardt Council - The 1996 census indicated that there had been a 12.6% decrease in the NESB population of Leichhardt Council since 1991, with 15.5% of its then total population with an NESB background. This council adopted a formal community language policy in 1990; Language aides are paid $12.08 per week. (xv) Auburn Council - The 1996 census indicated that 50% of the population had an NESB background, with 28% of those born overseas speaking English 'not well' or 'not at all'. This council has incorporated accredited language aid skills into its salary system and employs six aides, three in libraries, two in customer service and one in corporate services. (xvi) When the 1992 Local Government (State) Award was made as part of a commitment to implementing a programme of award restructuring designed to satisfy the structural efficiency principle of the Commission's wage fixing principles, a skills-based award structure was implemented, which involved councils developing enterprise arrangements through local salary systems on a council by council basis. This involved all skills-based allowances paid under former awards being incorporated into existing employees' rates of pay. The 1997 award was amended by inclusion of the current clause 11(i) to incorporate express reference to first aid allowances and community language skills and leave was reserved to the parties to review this arrangement. 14 The evidence of various of the witnesses expanded upon what had been agreed by the parties. Mr Brock, for instance, gave evidence of the difficulties which emerged in 1992 in the transition to the new broadbanded classification structure, which led the award parties to publish a joint statement to this effect: 'FIRST AID ALLOWANCE Prior to June 8 1992 clause 7(vi) of the Local Government Salaried Officers' Award and clause 7(xi) of the Municipal and Shire Council Wages Staff Award provided for daily allowances for employees appointed to perform first aid duties and to be responsible for the first aid kit. These allowances were identified by the parties to the award as skill related allowances and deleted from the above awards as a result of award restructuring. The Implementation Kit advises that regularly received skill related allowances should be incorporated into transfer rates of pay. The Kit identifies the first aid allowances as skill related allowances. Many councils and employees are of the view that the first aid allowances provided by the former awards recognised a skill possessed by the employee rather than a skill which is a requirement of the position. This makes it difficult to assess the value of the skill to the position. Following further negotiation, the parties have agreed that the first aid allowances should be treated as an allowance and added to an employee's rate of pay after transfer of the position to the new award structure. All other regularly received skill related allowances should continue to be incorporated in the employee's transfer rate of pay. Councils should not hesitate to seek advice from the Industrial Relations and Employment Division or their respective unions regarding concern or difficulties arising from the transfer to the new award structure. Such information assists the parties in monitoring the progress of award restructuring in the industry and in future negotiations. 15 Clause 11 was later inserted in the 1997 award, to accommodate continuing difficulties with compensation for skills utilised by employees in their work, but which were not a requirement of the employee's position. In that context, I turn then to the evidence as to use of these skills and the payments made for such work. Community Language Skills 16 The evidence disclosed that in NSW, where there are between 175 and 177 councils affected by the Award, only one council, namely Auburn Council, pays employees for use of community language skills in the manner contemplated by clause 11 of the Award. Some councils make no payments for the use of such skills, in some cases taking the view that employees who use such skills do so only on a voluntary basis and are not required to perform such work in the course of their employment - Blacktown and Bankstown Councils, for example. Other councils make payment for the use of such skills on an overaward basis - Leichhardt and Canterbury Councils, for instance. 17 Even where councils make payment for use of such skills, the payment often depends upon employees obtaining particular accreditation. There was evidence, for instance, at Leichhardt Council, that a native mandarin speaker had declined to be accredited, but still performed community language aide work, in one case, translating for a visiting Chinese delegation, over the course of an entire day. That employee received no additional payment for that work. 18 The overwhelming conclusion from this evidence was that there is an inconsistent approach adopted by different councils as to the payments which they make to employees who use their community language skills at work. In some cases, where payment is made, the amount of the payment has not been reviewed for a number of years, in other cases no payment is made at all. 19 The evidence also disclosed that such skills are not only utilised to assist residents with enquiries, but in a range of other ways. Ms Antosz, for instance, gave evidence that in the library at Blacktown Council employees with these skills have used them in order to help establish collections maintained in languages other than English, for example Polish. Both translation and cataloguing work is performed, as well as selection of material and reviewing material such as magazines, in order to determine whether subscriptions should be maintained. First Aid work 20 Predecessors to the award contained first aid allowances. When the Local Government (State) Award was made by consent in 1992, no such allowance was provided. 21 Councils are, however, obliged to maintain first aid kits pursuant to regulation 6 of the Occupational Health and Safety (First Aid) Regulation 1989 and to provide appropriately qualified first aid personnel pursuant to regulation 8, which provide respectively: '(1) In respect of each first-aid kit provided at a place of work under clause 6 - (a) a person or persons must be appointed to be in charge of the first-aid kit and be readily available to render first-aid attention when necessary to persons working at that place of work; and (b) a notice must be displayed in a prominent position near the first-aid kit clearly showing - (i) the name and telephone number (if applicable) of the person or persons so appointed; and (ii) in respect of each person so appointed, the place where the person is normally located at that place of work; and (iii) the name and telephone number (if applicable) and place of work of any additional person appointed to render first-aid. (2) In respect of a first-aid room provided at a place of work under clause 7 - (a) a person or persons must be appointed to be in charge of the first-aid room and be readily available to render first-aid attention when necessary to persons working at that place of work; and (b) a notice must be displayed on or adjacent to the door of the first-aid room clearly showing - (i) the name and telephone number (if applicable) of the person or persons so appointed; and (ii) in respect of each person so appointed, the place where the person is normally located at that place of work; and (iii) the name and telephone number (if applicable) and place of work of any additional person appointed to render first-aid. (3) A person appointed to be in charge of a first-aid kit at a place of work at which more than 25 persons work must be the holder of a current first-aid certificate approved by the Authority. (4) A person appointed to be in charge of a first-aid room at a place of work must be the holder of a current occupational first-aid certificate approved by the Authority. (5) Any additional person appointed to render first-aid at a place of work at which a first-aid room is provided must be the holder of a current first-aid certificate approved by the Authority. (6) Despite anything to the contrary in this clause, a medical practitioner or registered nurse is qualified to render first-aid and to be in charge of a first-aid kit or first-aid room. 22 The evidence suggested that while many councils make payments in accordance with the provision of clause 11 of the Award, to the employees it appoints to meet these obligations, other councils make no payment to such employees for such work. Consideration 23 Section 10 of the Industrial Relations Act 1996 ('the Act') requires the Commission to make awards which fix 'fair and reasonable conditions of employment'. When an application for variation of an award comes to the Commission, s17(3)(c) of the Act requires that: '17. Variation or rescission of award (3) An award may be varied or rescinded in any of the following circumstances only: (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' 24 A relevant consideration when a variation is sought, is whether the award provision in question, on the evidence, provides for 'fair and reasonable conditions of employment'. If it fails to do so, it is, of course, more likely that the requirements of s17(3)(c) of the Act will be met. 25 In this case, I am satisfied on the evidence that the provisions presently made in clause 11 of the Award do not provide fair and reasonable conditions of employment and that the clause requires variation to ensure that employees are paid for work which they perform and from which their employer benefits. In this respect, the Union's case was made out. I reject the councils' submission that the clause would only be granted if evidence demonstrated 'wide and unsurmountable problems in respect to the application of the clause'. In my view, that is not the test. 26 I have reached this conclusion in the context of the structure of this award and the evidence led by the parties as to the performance of both community language and first aid work and how it is remunerated. 27 I particularly take the view that it is both disingenuous and wrong for a council to suggest that employees who, for instance, are asked if they possess community language skills and whether they would be prepared to assist residents who have difficulty speaking or understanding English and are later called upon to provide such assistance, are not entitled to any payment for such work, because they are not required to perform it and are merely volunteering to do so. That this attitude is persisted with at a time of increasing numbers of residents who require such assistance and in circumstances where councils must increasingly meet legislative obligations to provide such assistance, is difficult to understand. 28 In this respect, I observe that the evidence of Mr Brown, led in explanation of why Auburn Council had built community language skills into its salary system, stood in marked contrast to the evidence of those who explained why their councils made no payment for such work. In that context especially, it is regrettable that this council's approach, which alone appears on the evidence to have been pursued on a basis consistent with the existing award provision must, for the greater good, be dismantled. Such potential outcomes are, however, one of the features of the system of industrial relations established by the 1996 Act, which provides for common rule awards. I have also been influenced in my conclusion by the evidence that even under this salary system, the payments made to all employees who are paid in respect of community language work are less than the allowance I propose to award. I note that the consequences of this conclusion may, nevertheless, be disadvantageous for the employees concerned, under the applicable salary system. I urge the parties to discuss any resulting difficulties in an endeavour to find an agreed resolution. 29 Against that background, I turn to deal with community language work. Community language work 30 The award contains a skill-based classification structure in clause 4 and in clause 5, fixes entry level rates of pay for those classifications, with councils being also obliged to 'introduce a salary system to complement skills-based structure and rates of pay of the award.' Clause 3 Definitions also deals with salary systems in subclause (vi), which provides: '(vi) A salary system determined how employees are paid. Council's salary system complements the entry level rates of pay and skill descriptors in the award by identifying salary points that are over and above the entry level rates of pay. Each salary point shall be defined so as to enable progression through the salary system based upon the acquisition and use of skills. A salary system shall provide for a method of salary review.' 31 It is clause 11(i) of the award which requires that 'an employee shall be paid the salary system rate of pay that recognises the skills the employee is required to apply on the job.' 32 Clause 11(i) also contemplates that 'the skills paid for shall not be limited to those prescribed by the job description and may, where appropriate, include skills possessed by the individual employee such as the use of a community language or first aid, which are required by council to be used as an adjunct to the employee's normal duties.' 33 It is this provision which has plainly led to the position where only one council has made use of community language skills a feature of the salary system it has established and has led the others, who make payments for the use of such skills, to do so on an overaward basis. 34 The requirements further prescribed by the award in clause 11(i) have provided the circumstances in which other councils have been able to ask employees to perform community language work, to their benefit when that work is performed, so that residents with language difficulties are assisted, but to make no payment to the employees affected, for reasons such as that the work is not required to be performed or is performed voluntarily. Those requirements are: 'Employees who are required by council to use such additional skill(s) in the performance of their duties shall have the use of those skill(s) considered in the evaluation of the position provided that: (a) the employee shall be accredited as appropriate; (b) prepared to be identified in the council as possessing additional skill(s); (c) available to use the additional skill(s) as required by council; (d) recognised by council as a regular user of the additional skill(s) as an adjunct to their normal duties. Provided further that council shall establish a minimum level of usage of additional skill(s) for this subclause to apply.' 35 This provision, seemingly, enables some councils to avoid payment for community language work, because the employees were not 'required' by council to use such skills, in some cases even if accredited and were not 'recognised' by council as 'a regular user of the additional skill(s) as an adjunct to their normal duties'. This approach was adopted even at Blacktown Council, which published a guide of employees who could be called upon by others to perform such work. 36 This aspect of clause 11(i) of the award is even more curious when it is considered together with the provisions of clause 11(iii), which permits a council to 'direct the employee to carry out such duties that are within the limits of the employee's skill, competence and training.' Seemingly, it would be permissible for a council to direct an employee with community language skills to perform such work, but to make no payment therefore, so long as the employee had the relevant skill, competence and training to do so, but had not also been both accredited and 'recognised' by council as 'a regular user of the additional skill(s) as an adjunct to their normal duties'. So understood, the potential unfair operation of the clause is stark. 37 It follows that clause 11 of the award, while agreed when the award was made, as currently structured is both unfair and has plainly not worked in practice. It is evident that there are here substantial reasons for varying this award in order to ensure that in this respect, it provides fair and reasonable conditions of employment and that it is not contrary to the public interest to do so. A case was also made out that the variation accords with the requirements of the Commission's Wage Fixing Principles, especially the Allowance and Work Value principles, which each require that consideration be given to the work, skill and responsibility required in performing community language work. The work plainly has a value, as clause 11 itself contemplates, but which is not being adequately recognised through that mechanism. 38 Such work involves employees in providing assistance to persons who have difficulty understanding or communicating in English, with a range of simple inquiries. On the evidence, when more complex translation is required, councils have access to and make use of a range of outside translation services, including the free Ethnic Affairs Commission telephone translation service. 39 It was also obvious, on the evidence, that the reason why councils favoured the use of their own employees' community language skills, was because the use of such outside services was not always efficient, having regard to the time involved and in some cases, costs incurred, when such services were utilised. By comparison, these difficulties were not present when it was only relatively simple assistance which was needed to be provided in a particular community language. This could more quickly and conveniently be provided by a council employee on hand at the workplace. 40 It is also pertinent to observe that the evidence revealed that in some cases, the resistance to payment of council employees, was because of the way in which particular councils had structured themselves internally. There was evidence, for example, of a council establishing different parts of council as separate cost centres and internal difficulties arising when an employee of one cost centre provided community language assistance to a resident making inquiries of another council cost centre. When so understood, resistance to payment of the employees who are providing such services can be seen in its true light. Such difficulties do not provide a proper basis for refusing the Union's claim, indeed they assist in demonstrating the problems which flow from the current award provision. 41 The employees who possess community language skills are typically native speakers of a particular language, who are employed in a variety of positions throughout council and are called on to utilise these skills on an as needs basis, in addition to their normal duties. While some are employed in customer service roles, for instance, in the 'one stop shops' which some councils operate or in libraries, this is not always the case. There was evidence, for instance, of other employees, such as engineers and those employed in various information and technology type positions, also performing community language work. 42 As to training and accreditation, the evidence was that in some cases councils encourage such accreditation and in others they do not, usually at those councils which make no payment for such work. The evidence was that such training and accreditation was of a relatively modest cost and duration and was valuable from the point of view of employees, who thereby, for instance, gain an understanding of their role, the ethical considerations arising when any translation services are provided and when other assistance should be sought. Councils also plainly benefit from employees being armed with such training. On the evidence of Ms Caggegi and Ms di Brazza, for instance, it cannot be doubted that the training improves the level of service being provided. 43 The councils opposed the Union's application as being unnecessary, having regard both to the existing award provision and the evidence as to its operation. It was submitted that those councils who pay allowances should be regarded as doing so pursuant to 'enterprise arrangements'. That submission is not sustainable given the evidence, which was that the bulk of this work is not being remunerated as contemplated by clause 11 of the award, where it is remunerated at all. 44 It is difficult to see that those councils who pay the allowances do so under 'enterprise arrangements' as that term is commonly understood, for instance, in accordance with the Enterprise Arrangements principle of the Commission's Wage Fixing principles. Those payments are not made in accordance with any award provision, indeed they are being made in a manner not contemplated by the award in clause 11. Nor was there evidence that the arrangements had been arrived at in accordance with clause 30 Council Agreements. This conclusion is further supported by the fact that where such allowances have been paid, they have not been adjusted over the years in accordance with movements in award rates of pay. 45 The approach which such councils have adopted is, however, understandable, given the evidence as to the way in which this work is performed. Councils have plainly not built use of community language skills into their salary systems, precisely because the skills and work involved do not form part of the skills which employees utilise in their ordinary positions at council. Payment for such work through the salary systems provided for by the award, does not seem to arise naturally. Subject to what I observe later, in relation to Mr Gibson's evidence, there was no evidence of any general desire by councils to accommodate such work within their salary systems being given practical effect by councils, as they have long been free to do. 46 It follows that the proper conclusion is that the award should include a provision which ensures that this work is paid for when it is performed rather than only if the council recognises an employee in various ways as presently contemplated. The best way to ensure that this occurs is by insertion of an appropriate allowance into the award. I emphasise that this conclusion does not mean that there should be any other departures, in general or particular terms, from the agreed structures in this award, particularly the skills-based classification structure. The position remains that the Commission will not lightly require or permit parties to depart from an agreed approach, or one which was introduced in order to simplify complicated award provisions, particularly when such agreements were reached in return in part for wage increases. 47 The alternative position advanced for the councils, was also designed to retain the existing provision and to ensure that no allowance for this work should be introduced into the award. For similar reasons, this alternative position is also rejected. I have taken account of the further alternatives pressed in the drafting of the award provision which I will deal with later. 48 As to the amount of the allowances, there was, of course, evidence of a range of payments being made, in the case of the community language skills, ranging from $5 to $25 per week, as well as the evidence of payments made under the CLAS scheme. My consideration of these matters was assisted by the evidence of various of the witnesses, including Ms Caggegi, Ms Stobinski and Mr Poulos. 49 I note that the Union in its amended claim, pressed that employees should be paid the allowance, whether the work was performed on a regular or occasional basis. This was opposed by the councils which, however, indicated a preference for a weekly, rather than a daily allowance. In that light, the Union withdrew its claim for a daily payment. 50 Having considered this aspect of the case, I have concluded that the proposal that the same allowance be paid, whether the work is performed regularly or occasionally must be rejected. Such an approach would be inconsistent with Principle 6(c) of the Work Value Principle. The proper approach consistent with the principle is that the allowance be paid when the work is performed. 51 The Union's claim was later further altered after discussions, to a weekly allowance of $13.14 payable to all employees who perform the work, whether regularly or irregularly and in the alternative a daily allowance of $5 per day, payable to all employees. It was explained that the calculation of the weekly rate had had regard to the annual CLAS rate, although there were two rates there provided - one for frequent and the other for infrequent or occasional use of the language. This was compared to the evidence of the payments currently being made by councils, which on average was $9.60 per week. The basis of the daily rate was unclear. 52 After further discussion between the parties, as to this aspect of the claim, the common position announced was that payments on a weekly basis or regular use basis was a preferable award mechanism to a daily allowance. In coming to this position, the councils did not, however, resile from their opposition to the granting of any allowance. The Union for its part continued to press the higher weekly rate. 53 Having come to the conclusion that an allowance must be awarded and that it should not be payable irrespective of whether the work is performed on a regular or irregular basis, but taking into account the parties' common position that a weekly payment is preferable and having in mind the practical difficulties associated with record keeping in the context of this work, I have concluded that the proper approach is to fix a weekly allowance which is payable regularly, if the employee performs the work regularly or in the case of irregular work, on the occasions when the work is performed. 54 Having regard to all of the evidence, including the evidence that existing payments have not been adjusted and the rates paid for CLAS work, as well as to the evidence of the work itself, I have concluded that the rate for the allowance should be fixed at $13.14 per week. First Aid work 55 I turn then to this second aspect of the case, which raises somewhat different and more difficult questions. The evidence was that when the skill-based salary structure was developed and introduced in 1992 in a predecessor to the award, employees were transferred to the new structure, in part, by reference to their total rates of pay under the pre-existing awards, including the first aid allowances there provided. In this way, payment for employees who were performing first aid work was ensured and ongoing. 56 The position now is not so clear. The evidence was that some 40 councils presently include first aid skills in their salary systems, some make payments by way of overaward allowance and others, (about 104), seemingly made no payment even though all councils plainly require such work to be performed, in order to meet their obligations under the regulation earlier referred to. 57 On the evidence, there are now employees who perform first aid work at councils and who are not paid for such work, for example because they were employed after the 1992 award was established and the salary system operating at their council does not recognise nor compensate for use of such skills, as contemplated by clause 11 of the award. The objection of the Union to the current situation was twofold, firstly that different employees were compensated differently for the use of such skills, depending upon the salary system or allowance which a particular council had developed, and secondly that some employees were not paid at all for such work. 58 The submissions advanced for the councils made plain that they regarded a situation where no payment was made for such work to be inconsistent with the award. The councils' attitude to the claim was, however, that the Union had not met the onus which fell upon it to make out a case and that there had been no real difficulty demonstrated in relation to the operation of the current award, so far as first aid allowances were concerned. They also submitted that the basis of the amount claimed - an average of pre-existing allowances - was an erroneous basis upon which to award the allowance, particularly in the absence of evidence as to the frequency of use of such skills or the requirements made by councils as to their use. 59 That there is skill and responsibility attached to first aid work is undoubted. This is recognised in many awards of this Commission and not the subject of any real debate in these proceedings. This is also consistent with the provision presently made in clause 11 of the award. 60 On balance, having considered the evidence in light of the competing positions advanced, I have concluded that the Union's claim must succeed, but only in part. As earlier noted, the Commission will not lightly permit parties to walk away from agreed award provisions, particularly where their introduction was accompanied by wage increases. The real problem with the Union's approach to the introduction of an allowance in the award for first aid work is that in seeking to address its concerns about the operation of the current provision, the remedy which it proposes will have the result that some employees will be paid twice for the same work. Such a result is not permissible under either the Act nor the applicable principles. However, in my view, having in mind the evidence led, I cannot form the view that the proper course is simply to dismiss the claim as not having been made out on the evidence, as the councils urged. 61 On the other hand, having regard to the history of the award, its predecessors and the agreements which underpinned them, I cannot accept that any proper complaint can be made that those employees who do receive payments in respect of first aid work are not all paid the same rate for such work. This situation arises under the various salary systems which councils have established in accordance with the award obligations earlier referred to, either because the previous allowance was absorbed into a particular rate of pay when the parties moved to the new structure in 1992, or because of the way in which provision is now made in those salary systems for recognition and payment for the use of such skills. It should not be overlooked that in either case, the payments made have moved over the years with increases in award rates of pay and continue to do so. 62 In that context, it is entirely unremarkable that different payments result. That, after all, is the very heart of the award scheme, which provides for various minimum payments and also requires councils to establish their own salary systems, which provide for payments in addition to the generally applicable award minima, having in mind the particular work required at that council and the skills which employees are required to possess and use, in order to perform such work. 63 That such salary systems may have given different weight to the use of first aid skills was plainly contemplated when the award structure was designed. Nor is it remarkable that the use of such skills in different circumstances may attract different payments. Such a situation could, after all, reflect different demands made of different employees at different workplaces. The evidence led in this case, was not of a kind which would permit the conclusion to be reached that any particular payment made for first aid work in a particular case was inappropriate, having regard to the award provision, the salary system in place at the particular council, the work performed by the particular employee and the skills utilised in such work. 64 What could be concluded from the evidence, however, was that those cases where first aid work was required to be performed and no payment was made for such work needed to be addressed. Because of the structure of clause 11 of the award, it cannot simply be concluded that such circumstances are inconsistent with the provision there made and should be left to be pursued by the Union on the basis of claims for underpayment of wages as the councils suggested. Given the present award structure that would not be an easy task. It follows that clause 11 needs to be varied in order also to address these circumstances. 65 The allowance claimed was for $8.58 per week, that amount having been calculated by reference to the pre-existing award allowances and adjustments to award rates in the intervening period. I reject the councils' criticisms of the determination of that amount. The current award applies to employees in the past covered by a number of different awards. An allowance is sought for a minimum payment for use of those skills. To have regard in that context to the rates applying under the predecessor awards and movements in award rates in the intervening period, seems an appropriate approach to the assessment of the rate. Nor was any other approach advanced as an alternative. 66 I note that it follows from the approach which I propose to adopt, that whether or not the new allowance is to be paid will depend on whether an employee is already paid for first aid work in accordance with the salary system which applies at the council in question. Difficulties will arise if the salary system or its application to a particular employee who performs first aid work do not make it clear whether payment is being made for the use of those skills or not. It will be a matter for individual councils to ensure that the position for particular employees under their salary system is clear, in order to ensure that disputes do not arise. The Award variation 67 Against those conclusions, I turn to the variation to the award which should be made. As I have noted, the parties advanced a number of alternatives. I have rejected the councils' approach for the reasons given. There were also difficulties with the positions advanced by the Union. 68 The councils also advanced submissions as to the changes which should be made to the Union's alternative clause, in the event that the Commission adopted that approach. Those submissions have to be considered in the context of the evidence given by Mr Gibson, for instance, as to the circumstances in which the councils agreed in 1992 to the introduction of the new classification structure and increased rates of pay, which included that the 'award provisions no longer contained gender-based classifications, seniority based appointment and incremental scales and skills and qualifications based allowances, as such provisions were inconsistent with the new award provisions and the parties' intentions as set out in the award's Clause 2 Statement of Intent.' 69 Clause 2 of that statement provided: 'The parties to the award are committed to co-operating positively to increase the structural efficiency of Local Government and to provide employees with access to more fulfilling, varied and better-paid work by providing measures to, for instance: · establish skill-related career paths; · eliminate impediments to multi-skilling; · broaden the range of tasks which a worker may be required to perform; · achieve greater flexibility in workplace practices; and · eliminate discrimination.' 70 I also note Mr Gibson's evidence that: 'On 2 September 1999, the Associations' Industrial Panel resolved that "language skills be recognised in councils' salary systems under the award." The Executives of the Local Government Association of NSW and the Shires Association of NSW endorsed this position at their respective meetings on 7 October 1999 and 8 October 1999.' 71 While that background and these resolutions cannot be overlooked, they cannot, at the end of the day, outweigh the force of the evidence in the case which demonstrated the deficiencies of the current provision. 72 Having considered all of the evidence and the submissions, I am inclined to a provision which does not depart too far from the current terms of the agreed clause, but which addresses the two aspects which I have identified. The clause which I propose provides: 'Clause 11 Use of skills A. General provisions (i) An employee shall be paid the salary system rate of pay that recognises the skills the employee is required to apply on the job. The skills paid for shall not be limited to those prescribed by the job description and may, where appropriate, include skills possessed by the individual employee which are required by council to be used as an adjunct to the employee's normal duties. Subject to parts B and C of this clause, employees who are required by council to use such additional skill(s) in the performance of their duties shall have the use of those skill(s) considered in the evaluation of the position. (ii) The parties are committed to improving skill levels and removing impediments to multi-skilling and broadening the range of tasks that the employee may be required to perform. (iii) The council may direct the employee to carry out such duties that are within the limits of the employee's skill, competence and training. (iv) An employee required to relieve in a position which is at a higher level within the salary system shall be paid for that relief. The rate to be paid shall be determined by considering the skills/experience applied by the employee relieving in the position but shall be at least the minimum rate for that position in accordance with the salary system except where the higher level skills have been taken into account within the salary of the relieving employee. (v) Payment for use of skills relieving in a higher paid position shall be made for the time actually spent relieving in the higher position.' B. Community Language and Signing work (vi) When an employee utilises skills in a community language as an adjunct to their normal duties in order to provide services to speakers of a language other than English, or to provide signing services to those with hearing difficulties, the employee shall be paid an allowance in addition to the weekly rate of pay as set out in Table 2. The allowance may be paid on a regular or irregular basis, according to when the work is performed. (vii) Such work involves an employee acting as a first point of contact for non-English speaking residents or residents with hearing difficulty. The employee identifies the resident's area of inquiry and provides basic assistance, which may include face-to-face discussion and/or telephone inquiry. (viii) Such employees convey straightforward information relating to council services, to the best of their ability. They do not replace or substitute for the role of a professional interpreter or translator. (ix) Such employees shall record their use of a community language according to council established policy. C. First Aid Work (x) Where an employee is required by council to be in charge of a first aid kit and/or to administer first aid and the use of such adjunct skills are not paid for in accordance with the salary system established by the council, the employee shall be paid an allowance in addition to the weekly rate, as set out in Table 2. D. Additional Skills Criteria (xi) Where an employee is required by council to use community language or first aid skills in the performance of their duties: (a) Council shall provide the employee with the opportunity to obtain accreditation from a language aide or first aid accreditation agency; (b) The employee shall be prepared to be identified as possessing the additional skill(s); (c) The employee shall be available to use the additional skill(s) as required by council; (xii) Such training shall form part of a council's training plan and budget, in accordance with the requirements of clause 20 of this award. E. Savings (xiii) These provisions identify minimum criteria only, and shall not be construed so as to require the reduction or alteration of more advantageous benefits or conditions under any arrangements existing at the date the award was varied to give effect to this clause. They shall not however be cumulative upon such existing payments. 73 I observe that the councils opposed reference in the clause to provision of 'AUSLAN' services, because there was no evidence that council employees used such skills. That submission cannot be accepted, given for instance, the reference to such services in the directory published by Blacktown Council, under the heading "Interpreters at Blacktown Council', which is introduced by the words: 'The following is a directory of employees with multi-lingual or signing abilities. They can be called upon to assist with communication problems between staff and customers.' 74 I can see no basis for different treatment for employees who assist residents with hearing difficulties by signing, as opposed to those with English difficulties who are assisted by use of an employees' community language skills. I do accept that it is not appropriate in an award to make reference to an undefined acronym such as AUSLAN and hence have made reference in the award provision to the more commonly understood term, 'signing'. 75 The employers also opposed reference being made in the clause to training matters, given the provision for training already made in clause 20 of the Award. That provision provides that 'All employees shall have reasonable and equitable access to training.' It also requires councils to establish training plans and budgets, which have regard to various needs, including individual needs. Having in mind the evidence in this case and the requirements of clause 20, I have concluded that it is appropriate to make reference in the award to particular training in respect of community language and first aid work, with appropriate cross-reference to the provision of this latter clause. 76 The Union sought a saving provision to ensure that employees did not suffer any reduction of pay as the result of the introduction of any of the allowances sought. In the case of community language skills, this was a concern which arose particularly at Auburn Council, albeit for a handful of employees. Having considered this issue, I have concluded that it is appropriate to include a saving provision. In the event of any difficulties arising, they should, of course, be discussed between the parties in the ordinary way, with recourse, if necessary, to the Commission in accordance with the award dispute resolution procedures. 77 In cases where overaward allowances are presently paid, the new award provision will, of course, apply. My intention, it should be noted, is that any overaward allowances will be absorbed to the extent of the new allowance. This is referred to in the savings provision. 78 I finally observe that the parties will have the opportunity to review the operation of the new clause, both when next negotiating a new award and when the award is next reviewed in accordance with s19 of the Act. Any difficulties or deficiencies in its operation then identified can be addressed, but should obviously be discussed in the meantime. Orders 79 For all of these reasons, I order the variation of the award to insert reference to clause 11 in clause 33 of the award; to delete clause 11 and to insert therein in lieu, the clause earlier outlined. I also order the variation of Schedule B to the Award, by insertion of the allowances sought. I intend to give councils a short period to adjust to the new provision. Accordingly, I order that the variation take effect from the beginning of the first pay period to commence on or after 7 July 2000. 80 The Union is directed to file a document reflecting these orders, for the purpose of the settlement of the minutes of the variation of the award, within 7 days of the date of this decision. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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