Industrial Relations Commission of New South Wales CITATION: Electrical, Electronic and Communications Contracting Industry (State) Award, Re [2005] NSWIRComm 225 APPLICANTS: Electrical Contractors' Association of New South Wales Electrical Trades Union of Australia, NSW Branch PARTIES: RESPONDENTS: Employers First The Australian Industry Group New South Wales Branch Australian Business Industrial FILE NUMBER(S): IRC 3778 of 2002 and IRC 652 of 2004 CORAM: Wright J President; Walton J Vice-President; Tabbaa C CATCHWORDS: Award - Special case - Consent variation to award agreed by Union and major employer organisation - Substantial agreement with other employer organisations - State Wage Case increases - Retrospectivity - Brief decision delivered granting variation to the award - Full reasons to be provided in due course. HEARING DATES: 06/07/2005; 06/08/2005; 06/22/2005 EXTEMPORE JUDGMENT DATE: 06/22/2005 APPLICANTS: Mr R Marshall Electrical Contractors' Association of New South Wales Mr A Searle of counsel Electrical Trades Union of Australia, NSW Branch (Ms N Kastoun) LEGAL REPRESENTATIVES: RESPONDENTS: Mr P Ryan Employers First Ms V Paul The Australian Industry Group New South Wales Branch Mr J Corlette Australian Business Industrial JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President TABBAA C Wednesday 22 June 2005 Matter No IRC 3778 of 2002 ELECTRICAL, ELECTRONIC AND COMMUNICATIONS CONTRACTING INDUSTRY (STATE) AWARD 2002 Application by the Electrical Contractors Association of New South Wales for a new award. Matter No IRC 652 of 2004 ELECTRICAL, ELECTRONIC AND COMMUNICATIONS CONTRACTING INDUSTRY (STATE) AWARD Application by the Electrical Trades Union of Australia, New South Wales Branch, for a new award. DECISION OF THE COMMISSION (extempore) [2005] NSWIRComm 225 1 The hearing of this matter commenced on 7 June 2005, continued on 8 June and concluded today. Because of the nature of the proceedings, we have decided to give a short extempore decison now and make the award sought with modifications, with reasons for the decision to be published in due course. 2 On 27 June 2002 the Electrical Contractors Association ("ECA") applied in Matter Number IRC 3778 of 2002 for a new Electrical, Electronic and Communications Contracting Industry (State) Award 2002. On 9 February 2004, the Electrical Trades Union of Australia ("ETU") filed its own application for an award in Matter Number IRC 652 of 2004. 3 Following lengthy negotiations and conciliation, the ECA and ETU filed a consent application for a new award (to be called the Electrical, Electronic and Communications Contracting Industry (State) Award) on 15 February 2005. Matter Nos IRC 3778 of 2002 and 652 of 2004 were joined. Three respondents did not consent to the proposed award: Employers' First ("EF"), Australian Business Industrial ("ABI") and Australian Industry Group ("AIG"). 4 In addition to benefits for employers (which we discuss below), the proposed award contains the following primary benefit for workers, described in clause 3.1.1: three minimum wages increases of 5 percent over three years, to take effect from February 2005 (the date is unspecified in the application but the consenting parties made an oral application that the first wage increase take effect from 15 February 2005); 1 February 2006; and 1 February 2007. 5 Clause 3.1.1 is somewhat awkwardly drafted, and raises uncertainty about the manner in which the proposed award will operate in conjunction with State Wage Case increases. On one interpretation (which forms the basis for the only objection raised by ABI and AIG to the making of the consent award), the proposed award purports to grant workers the three minimum wage increases of 5 percent in addition to State Wage Case increases. 6 ABI and AIG's objection has been simply overcome by the consenting parties. Both the ECA and the ETU have confirmed that the interpretation adopted by ABI and AIG does not reflect the parties' intention: the proposed award does not grant any automatic right to State Wage Case increases, but merely signals that, in due course the ETU, with the agreement of the ECA, will seek the benefit of State Wage Case increases, through a formal application to vary the proposed award. Needless to say, such application will be considered on its merits having regard to the terms of the agreement between the parties evidenced by the proposed award and the terms of the wage fixing principles in force at the relevant time. 7 The ETU and ECA sought to remedy the problem by deleting the words "in addition to State Wage increases". This does not seem sufficiently clear for relevant purposes, given the concluding sentence of 3.1.1. In our view, to accurately reflect the parties' intentions (described above), 3.1.1 should be replaced with the following clauses 3.1.1 and 3.1.2: 3.1 The Weekly Minimum Wage is as set out in Table 1 - Wages, of Part B, Monetary Rates. 3.1.1 Weekly Minimum Wage Rate Increases (Three increases of 5 percent) 3.1.1.1 The first increase of 5 percent is incorporated in Table 1 - Wages, of Part B, Monetary Rates; 3.1.1.2 The second increase of 5 percent shall take effect from 1 February 2006; and 3.1.1.2 The third increase of 5 percent shall take effect from 1 February 2007. 3.1.2 The ETU, with the agreement of the ECA, reserves the right to apply for State Wage Case increases during the period of operation of the award. A corresponding change to that in cl 3.1.2 will be required to cl 34.2; that is, the addition of the words "by the ECA" at the end of cl 34.2. 8 EF had a broader objection. In its view, the proposed award did not represent a "good deal": according to EF, the proposed changes to conditions of employment were not worth the three annual increases of 5 percent to the minimum wage. Consequently, the applicants had failed to establish a special case to warrant any increase in wages. 9 When pressed, EF conceded that there were some benefits to employers in the proposed changes to conditions of employment and that, in reality, it did not oppose some (perhaps most) of the changes to award conditions proposed in the application. Nonetheless, EF failed to suggest any alternative bargain or outcome to that put forward by the ETU and ECA. 10 We accept the submissions of both the ETU and the ECA that the proposed award effects improvements in award provisions for both employers and employees. We have no doubt that these two bodies represent the vast majority of employees and employers in this industry and we note that other employers represented by ABI and AIG raised no further objection once the State Wage Case issue was clarified. We are satisfied that the ETU and ECA have established a special case. 11 We will therefore make the proposed award in terms of Exhibit 3 to be known as the Electrical, Electronic and Communications Contracting Industry (State) Award, with the following four amendments: (a) Subject to (b) below, clause 3.1.1 should be replaced with clauses 3.1.1 and 3.1.2 as described above; (b) Clause 34.2 will be amended by adding the words "by the ECA" at the end of the clause; (c) The first increase to minimum wages of 5 percent shall take effect from 22 June 2005, rather than from February 2005; and (d) The award shall commence from 22 June 2005 and remain in force until 31 January 2008. We note that there may be some consequential changes to the proposed award to reflect these amendments. We direct the ETU and ECA to file a further draft award document to reflect this decision in both hard copy and electronic form within 21 days. 12 The Commission orders accordingly. As noted, the award shall operate on and from 22 June 2005 and remain in force until 31 January 2008. ________________ 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.