The Commission, of its own motion, initiated proceedings to vary the Aboriginal Communities and Organisations Western Australia Interim Award 2011 under s40B of the Industrial Relations Act. Section 40B allows the Commission to vary an award for any of the following relevant purposes:

• to ensure that the award does not contain wages that are less than the minimum award wage as ordered by the Commission under s 50A;
• to ensure that the award does not contain provisions that discriminate against an employee on any ground on which discrimination in work is unlawful under the Equal Opportunity Act 1984(WA);
• to ensure that the award does not contain provisions that are obsolete or need updating; and
• to ensure that the award is consistent with the facilitation of the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises.

The interested parties broadly agreed that the Award ought to be varied under s 40B:

• That clause 7 - Enterprise Flexibility should be removed as being contrary to the principles summarised in City of Cockburn v Western Australia Municipal, Administrative, Clerical and Services Union of Employees (WASU) & Ors [2023] WAIRC 00787 and applied in Commission’s Own Motion v (Not Applicable) [2023] WAIRC 00836;
• That Schedule B should be varied to remove salary rates which are below the minimum rates set under s 50A;
• That Schedule F should be updated to remove parties that no longer exist and to correct party names; and
• That discriminatory definitions of ‘spouse’ or ‘de facto’ should be removed.

The only contentious issue was what variations should be made to the rates of pay in Schedule B to achieve the purposes of s 40B. The WASU argued that the Commission should not only increase the Level 1 salaries below the statutory minimum, but also increase all rates in the Award to establish increases in pay for the steps within each classification level.

Senior Commissioner Cosentino declined to do this. The Senior Commissioner noted that the power in s 40B was limited to effecting variations for the purposes stated in the section, and that any variation to wage rates must be in accordance with the Statement of Principles contained in the State Wage Case General Order. As WASU had not addressed or satisfied any such principle, the Senior Commissioner ordered that only those wage rates that were below the statutory minimum be increased, and then that they be increased only to align with the statutory minimum.

The Senior Commissioner also rejected WASU’s argument that the pay increments within each level were an unintended distortion, noting that predecessor instruments appeared to intend to deliberately phase out pay increments within levels.

The Award was varied accordingly.

The Decision can be read here.