GENERAL ORDER TO VARY ALL AWARD RATES AND ALLOWANCES

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Trades and Labor Council of Western Australia

APPLICANT

-v-

MINISTER FOR CONSUMER AND EMPLOYMENT PROTECTION, AUSTRALIAN MINES AND METALS ASSOCIATION INC. AND CHAMBER OF COMMERCE AND INDUSTRY OF WESTERN AUSTRALIA

RESPONDENT

CORAM Chief Commissioner A R Beech

 Senior Commissioner J F Gregor

 Commissioner S J Kenner

 Commissioner J H Smith

 Commissioner J L Harrison

HEARD Monday, 30 January 2006

DELIVERED Tuesday, 7 March 2006

FILE NO. APPL 957 OF 2005

CITATION NO. 2006 WAIRC 03884

CatchWords General Order re award wages - Whether National Wage Decision has issued - Power to issue General Order in absence of National Wage Decision - Intervention of Commonwealth Minister - Whether proceedings should be adjourned - Industrial Relations Act 1979 (WA) ss 23, 27(1)(e) and (f), 30(2), 50, 51

Result Directions issued

Representation 

Applicant Ms. C. Ozich (of Counsel) on behalf of the Trades and Labor Council

Respondent Mr. C. Pettit and with him Mr P. Wilding on behalf of the Department of Consumer and Employment Protection acting as agent for the Minister for Consumer and Employment Protection

   Ms. C. Brown on behalf of Australian Mines and Metals Association Inc.

Mr. G. Blyth on behalf of the Chamber of Commerce and Industry of Western Australia

 Mr. A. Power (of Counsel) on behalf of the Commonwealth Minister for Employment and Workplace Relations, as intervenor

Reasons for Decision

1         THE COMMISSION IN COURT SESSION:  On 10 November 2005 the Trades and Labor Council ("TLC") lodged an application for a General Order pursuant to section 50(2) of the Industrial Relations Act, 1979 ("the Act").  The TLC’s application seeks a 4% increase to all award wage rates and related allowances, and that the minimum adult award wage be increased to $503.80 per week, from 7 July 2006.  The application seeks to amend the State Wage Fixing Principles in order to give effect to these changes.  Finally, the application states that the Commission should consider the matter as one desirable to be dealt with by way of joint conferences and proceedings with other industrial authorities which have before them applications seeking similar quantum adjustments to that contained within this application, in accordance with sections 80ZG and 80ZI of the Act.

2         On 5 December 2005 the Chief Commissioner in Chambers requested the parties to endeavour to reach an agreement on a timetable for the application to be set down for hearing.  No agreement was reached.  On 13 January 2006 the Commonwealth Minister for Employment and Workplace Relations applied for leave to intervene in the application on behalf of the Commonwealth.  The Commission listed the application on 30 January 2006 in order to deal with the application to intervene and other preliminary matters.

3         The Chamber of Commerce and Industry of Western Australia ("CCIWA") and Australian Mines and Metals Association ("AMMA") both submitted that the Commission does not have the jurisdiction or the power to make the General Order sought.  We recognise the obligation on the Commission once jurisdiction is challenged to determine that issue before proceeding with the application (Springdale Comfort Pty Ltd trading as Dalfield Homes v Building Trades Association of Unions of Western Australia (1987) 67 WAIG 325).  All parties agreed that their submissions would be made to the Commission in writing according to an agreed timetable.  Submissions from the TLC and the State Minister were received on 13 February 2006, those from the CCIWA and AMMA on 27 February 2006 and the submissions in reply from the TLC and the State Minister on 1 March 2006 and our decision on the issue follows later in these Reasons for Decision.

The Application of the Commonwealth to Intervene

4         The Commission decided during the course of the proceedings on 30 January 2006 that limited leave to intervene would be granted to the Commonwealth.  We now set out our reasons for that decision.

5         The Commonwealth Minister submitted that the Commonwealth has evinced a clear intention that minimum rates of pay applicable to employees in the new federal system should be determined by the Australian Fair Pay Commission ("AFPC") and that minimum rates of pay applicable to other employees currently covered by the federal system which remain within the jurisdiction of the Australian Industrial Relations Commission ("AIRC") for a period of five years as transitional employees are to be set by the AIRC having regard to, amongst other things, the wage setting decisions of the AFPC and the desirability of its decisions being consistent with wage setting decisions of the AFPC.  It was submitted that the Commonwealth therefore has a strong interest in these proceedings because a determination by the Western Australian Industrial Relations Commission ("WAIRC") purporting to adjust wage rates would undermine the Commonwealth’s clear intention. 

6         A number of other grounds were put forward based upon this position.  It was submitted that the granting of the application would be likely to affect the Commonwealth’s workplace relations policy objectives and interests more generally with respect to minimum rates of pay and that the Commonwealth has major concerns about the potential inconsistency, uncertainty and confusion which may arise from a minimum rates determination made by the Commission.  Such a determination would be likely to produce disharmony between the Western Australian and federal workplace relations systems. 

7         The Commonwealth Minister also drew attention to the grounds upon which the TLC has made its application.  Those grounds include the Commission having regard to the interests of the employees immediately concerned, the interests of the community as a whole and, to the extent that it is relevant, to the state of the national economy and the economy of Western Australia.  It was submitted that the Commonwealth has an interest in the state of the national economy and the state economy.  Submissions were made regarding what the Commonwealth saw as the inseparability of the two economies. 

8         The Commonwealth Minister’s application for leave to intervene was supported by the CCIWA and AMMA.

9         The TLC, in opposing the Commonwealth Minister’s intervention, submitted that the Commonwealth could have no legal interest in the application.  The TLC submitted that any potential disharmony between the state and federal systems would arise as a direct result of the Commonwealth’s own policies destroying the previous practice of consistency between jurisdictions.  Furthermore, the interests of the Commonwealth are now confined to the federal jurisdiction because of the Commonwealth’s constitutional inability to extend coverage further than that prescribed in the Commonwealth’s Work Choices legislation.  It would be inappropriate to allow the Commonwealth to intervene on the basis of a broad policy interest because it would mean the Commonwealth would be able to intervene in any proceedings in the State Commission thus rendering section 30(2) meaningless. 

10      The State Minister also opposed the Commonwealth Minister’s intervention.  The Minister drew the Commission’s attention to the consideration of section 30(2) of the Act by a Full Bench of the Commission in CFMEU v. Sanwell Pty Ltd & Another (2004) 84 WAIG 727.  In that matter the Full Bench observed that the Minister plainly does not have an interest of the type referred to in R v. Ludeke & Others; Ex parte Customs Officers' Association of Australia, Fourth Division [1985] 155 CLR 513 at 522.  Rather, the right to intervene with the leave of the Commission is conferred on the Commonwealth under section 30(2) of the Act.  The State Minister submitted that there were no matters of law in which the Commonwealth could assist the Commission and that there were no matters of law likely to affect industrial relations as regulated by the Commonwealth legislation.

Consideration

11      The Commonwealth Minister’s intervention is to be considered pursuant to section 30(2) of the Act: 

"The Minister of the Commonwealth administering the Department of the Commonwealth that has the administration of the Commonwealth Act may by giving the Registrar notice in writing of his intention to do so, and by leave of the Commission, intervene on behalf of the Commonwealth in any proceedings before the Commission in which the Commonwealth has an interest."

It is therefore necessary that the Commonwealth Minister demonstrate that the Commonwealth has an interest in the proceedings.  We consider this to be a lesser test than the requirement imposed on a person seeking to intervene under section 27(1)(k) of the Act who is obliged to demonstrate a "sufficient interest".  The Commonwealth Minister’s application to intervene is based upon the Workplace Relations Act 1996 (Cth) as it has been amended by the Workplace Relations Amendment (Work Choices) Act 2005.  The Commonwealth expressly does not seek to intervene on the basis of the Workplace Relations Act 1996 prior to the Work Choices amendments coming into effect.   Although not all of those amendments have yet come into effect, we have considered the Commonwealth Minister’s application on the basis he has advanced it.

12      We note the Commonwealth Minister’s submission that a decision of this Commission in favour of the application would undermine the Commonwealth’s stated intention that minimum rates of pay applicable in the new federal system, and to transitional employees, should be determined by the AFPC. 

13      We are not disposed to place great weight on this submission.  The decision of the Commission in this application can have no effect on employees covered by the federal system established by the Work Choices legislation nor to the transitional employees so created.  By section 50(3) of the Act the General Order to be made from these proceedings shall not apply to any employee whose conditions of employment may not be determined by the Commission.  We see little weight in a submission which suggests that a decision of the Commission in these proceedings will undermine the Commonwealth’s stated intention given that its stated intention necessarily is restricted to employees who are not able to be affected by any order from these proceedings.

14      We were also relatively unmoved by the Commonwealth’s submission that it had concerns regarding the potential for inconsistency, uncertainty and confusion which may arise from a minimum rates determination made by this Commission.  We consider there is much to be said for the submission made by the TLC that the potential referred to by the Commonwealth arises as a result of the Commonwealth’s own legislation.  One effect of this legislation is to remove wage, and minimum wage, setting from the AIRC and to give it to a newly created body, the AFPC.  That is significant given that section 51 of the Act specifically requires this Commission to have regard for any National Wage Decision made by a Full Bench of the AIRC, and to apply that decision in this State unless it is satisfied there are good reasons not to do so.  We do not think the Commonwealth can have been unaware of this.

15      We recognise that inconsistent minimum wage decisions are therefore now likely to occur between the States and the AFPC.  The AFPC is to make its determination according to criteria which are different from the criteria which this Commission is obliged to consider by virtue of section 6 and section 26 of the Act.  The different statutory criteria to be applied respectively by the AFPC, and by this Commission necessarily increases the very potential for inconsistency, uncertainty and confusion referred to by the Commonwealth.  Such inconsistency may arise as much from the decisions of the AFPC relative to our own decisions as it may from the decisions of this Commission relative to those of the AFPC.  We return to this issue later in this decision. 

16      For the reasons we have given, we are doubtful that thus far the Commonwealth has demonstrated an interest in these proceedings.  However, we consider that the Commonwealth is on stronger ground in its submission that, in proceedings such as these, the Commission is bound to have regard to the state of the national and state economies and that they are matters in which the Commonwealth has an interest.  We do not disagree with the reasoning of the Full Bench in Sanwell (op. cit.) that on matters such as those which arose in Sanwell, section 30(2) means that the interest of the Commonwealth Minister is not determined by R v. Ludeke & Others (op. cit.).  In the application before us, however, a General Order is sought and in enquiring into and dealing with that application, the Commission is to have regard to the state of the national and state economies.  We consider the Commonwealth Minister has demonstrated an interest by virtue of its interest in those economies.  Accordingly, leave to the Commonwealth to intervene was granted.  Given the stated purpose of the intervention was to request that the Commission adjourn these proceedings to await the outcome of the first determination of the AFPC, the leave to intervene was granted for, and limited to, that purpose. 

Jurisdiction and Power

17      The CCIWA submitted that section 51 of the Act qualifies what might be seen as the apparently wide scope of section 50 of the Act.  This is because section 51 is a specific provision enabling the making of a General Order about award wage increases which is intended to limit the scope of General Orders under section 50 of the Act.  Section 50 of the Act cannot be used to deal with a matter which Parliament intended was to be controlled by section 51 of the Act, i.e. wage increases, because the power under section 50(2)(a) to make a General Order is a power which is to be exercised "in accordance with and subject to this Division". 

18      The CCIWA also argued that Parliament’s intention is that a General Order for wage increases cannot be made if it is inconsistent with a National Wage Decision because of the Minister’s statement in the second reading speech (on 19 February 2002 at page 7517) of the Labour Relations Reform Act, 2002 that as the national and state economies are inseparable, the objective of the Government is consistency in wage outcomes.  It was submitted this view is supported by the introduction of section 51(4) of the Act providing for the Commission to be able to add to, vary or rescind a General Order relating to a National Wage Decision.  It is submitted that the clear legislative presumption in section 51 of the Act is the Commission will flow-on the wage increases of the National Wage Decision and that this presumption would be set aside if the Commission is able to make General Orders under section 50 of the Act to increase or decrease award wage rates.

19      The CCIWA also submitted that the Commission is prevented from exercising power in this application because the 2005 State Wage Case Principles remain operative.  The Statement of Principles provides that it will operate until reviewed and is only able to be varied by the Commission exercising its power under section 51(4) of the Act.  This, in turn, can only be activated when there is a National Wage Decision; in the absence of a National Wage Decision, the State Wage Principles cannot be varied and thus the application is not able to be granted. 

20      The CCIWA also submitted that the TLC’s suggestion that there will be no further National Wage Cases must fail because there will be a decision of the Australian Commission relating to transitional awards.  These awards will be the only ones that actually contain wage rates; there will be far fewer awards in that category than there are presently, however, it is wrong to submit that there is now no role for section 51 of the Act due to the Commonwealth’s Work Choices legislation.  It is not for the Commission to ignore the Act in its present form even if parts of it may become "inoperative", and the CCIWA reminded the Commission of the decision of the Western Australian Industrial Appeal Court in Chamber of Commerce & Industry of Western Australia (Inc) -v- The Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2002] WASCA 24; (2002) 82 WAIG 405 which stated in relation to workplace agreement legislation, that it is not open to the Commission to countermand the effective legislative measures which Parliament expressly contemplated and authorised. 

21      AMMA similarly submitted that as section 51 of the Act makes specific provision for the variation to wages and related allowances in all awards of the Commission, this specific provision prevails over the general provisions of section 50.  AMMA cites the principle in Anthony Hordern & Sons Ltd v. Amalgamated Clothing and Allied Trade Union of Australia (1932) 47 CLR 1 at 7.  AMMA similarly refers to section 51(4) of the Act and submits that it requires any variation to the General Orders to be in accordance with the amount of change in the rate of wages under the relevant National Wage Decision.  The granting of the current application would have the effect of varying the General Order that was issued in the 2005 State Wage Case and section 51(4) of the Act overrides the power in section 50(2)(b) relating to the variation of General Orders generally.  AMMA also submitted that section 51 of the Act continues to have operation regardless of whether or not another National Wage Decision will ever be issued by the AIRC.  It is the role of Parliament, and not "other participants in the industrial relations system" to make any necessary variation to the Act in accordance with its intention. 

22      The TLC submitted that the Act confers jurisdiction on the Commission to enquire into and deal with any industrial matter and section 50 of the Act specifically empowers the Commission to make General Orders relating to industrial matters.  The TLC submitted that any final decision made by the AIRC in the matters currently before it that were subject to the decision issued on 21 December 2005 (Print PR966840) will not be a National Wage Decision for the purposes of section 51 of the Act.  As a consequence of the Work Choices legislation, there is now no role for section 51 of the Act. 

23      The TLC also submitted that section 51 is a legislative directive to the Commission when a National Wage Decision has been made.  It does not limit the power of the Commission under section 50 in the absence of a National Wage Decision.  There is no express limitation to this effect in section 51.  This was recognised by the Commission in the 1981 Minimum Wage Case (1981) 61 WAIG 1894 at 1902.  The principle in the Hordern (op. cit.) decision is not applicable because the plain words of section 50 and section 51 do not demonstrate an intention on the part of the legislature to limit the powers of section 50. 

24      The TLC stated, in its submissions in reply, that the power given to the Commission in section 51(4) is not limited in time to when a National Wage Decision is made.  Further, that the State Wage Principles do not prevent the Commission from considering the application and making the order sought.

25      The State Minister submitted that section 50 coexists with section 51 such that General Orders may be made under section 50 in relation to the same subject matter as is covered by section 51, in this case award wage rates.  In the alternative, the Minister submitted that the jurisdiction of section 50 in relation to award wage rates has been re-enlivened by the passage of the Commonwealth’s Work Choices legislation which has rendered section 51 inoperative. 

Consideration

26      The starting point for our consideration is necessarily the Act.  The operative part of section 51 is in section 51(2).  It requires the Commission, when and as often as a National Wage Decision is made, to consider of its own motion that National Wage Decision and unless it is satisfied that there are good reasons not to do so, make a General Order to adjust wage rates paid under awards by the amount of any change in the rate of wages under the National Wage Decision.  The Commission may also make a General Order to adopt in whole or in part and with or without modification any principle, guideline, condition or other matter having effect under that National Wage Decision. 

27      Significantly, section 51 is silent regarding the powers of the Commission if there is not a National Wage Decision before it.  There is no prohibition within section 51 which constrains the powers of the Commission under section 50.

28      That is the position here.  We reject the submission of the Commonwealth that the decision of the AIRC in the Safety Net proceedings before it of 21 December 2005 is a National Wage Decision as defined in section 51 of the Act.  Section 51 defines a National Wage Decision as a decision which:

a) is made by a Full Bench of the Australian Commission;

b) relates to rates of wages; and

c) is applicable generally to awards made under the Commonwealth Act

The decision of 21 December 2005 is certainly made by a Full Bench of the Australian Commission.  However, while it may be said in a general sense to relate to wages in the sense that that is the subject of the claim before it, the decision itself does not change any rates of wages in the sense envisaged by section 51(2) of the Act.  In our opinion, section 51(2) envisages a decision which operates more directly upon rates of wages and awards and operates upon them in such a way that it could be the subject of a General Order which gives effect to it in state awards (see also Re Application for a General Order (1981) 61 WAIG 1039 at 1040).  We do not consider that the decision "relates to wages" in the ordinary sense of the term.  Neither do we think that the decision is applicable generally to awards made under the Commonwealth Act.  The subject of the proceedings before the AIRC may be said to do so, however the decision relates to the conduct of those proceedings only.

29      We note that the Commonwealth was the only person appearing before us who sought to persuade us to the contrary, even though its submission was not pressed with the strength with which the other grounds relied on were pressed.  We are of the view, therefore, that there is no National Wage Decision before us for the purposes of section 51 of the Act.  Correspondingly, there is before us an application validly made pursuant to section 50(2) of the Act.  It was not submitted that the application itself was not otherwise validly before us.

30      We consider that it is validly before us.  The subject matter of the application is an "industrial matter" as defined.  Further, we consider that the power given to the Commission in section 50 is a power to make a General Order in relation to an industrial matter subject to sections 50(7) and 51B.  It differs from the Commission’s powers under section 23 of the Act in that it is a power to be exercised by a Commission in Court Session and is subject to the procedural requirements set out in sections 50(9) and 50(10).

31      We turn to our attention to section 51(4) of the Act.  It is to be noted, firstly, that the subsection is to be read "subject to this Act".  Section 51(4) is therefore to be read in conjunction with other provisions of the Act.  Section 50 is not excluded from that consideration.  It should also be noted that whilst section 51(4) empowers the Commission to add to, vary or rescind a General Order made under section 51(2), the restriction on the Commission is that it shall not add to or vary such an order in relation to any amount other than the amount of any change in the rates of wages under the relevant National Wage Decision.  If there is not a relevant National Wage Decision, it is difficult to see what the restriction is on the Commission adding to or varying the General Order.  If a relevant National Wage Decision has been given, the restriction on the power of the Commission to add to or vary the General Order is clearly stated.  Significantly, that restriction does not prevent the Commission rescinding a General Order made under section 51(2). 

32      We consider therefore that in the absence of a relevant National Wage Decision section 51(4) is no barrier to the Commission adding to or varying the 2005 General Order.  Even if that is not the case, there is no restriction in section 51(4) on the Commission rescinding the 2005 General Order, including the State Wage Principles. 

33      If the 2005 General Order is rescinded there is nothing in Division 3 of the Act which inhibits the Commission for making a General Order under section 50 adjusting rates of wages as sought in the application. 

34      Whether or not the final decision of the AIRC in the proceedings before it will be a National Wage Decision is a matter which can only be determined when that final decision is made.  It is not a matter relevant to the issue of the jurisdiction or power of the Commission to enquire into and deal with the application.

35       The application before the Commission seeks to increase award rates and allowances in the awards of the Western Australian Industrial Relations Commission by 4%.  It is not an application to give effect to a National Wage decision as defined in section 51 of the Act.  The application does however seek to amend the Wage Fixing Principles which have been made by the Commission under section 51.  If the application before the Commission in Court Session under section 50 sought to implement a National Wage decision the Commission would be unable to act under section 50 as section 51 exhaustively deals with the Commission’s powers in respect of implementing a National Wage decision.  To that extent we agree that the Commission may not be authorised under section 50 to amend the State Wage Principles because there is no power to amend.

36      However we are of the opinion the Commission is empowered under section 50 to make new wage principles if warranted on the merits which if made would be done so by having regard to the objects of the Act in section 6 and to the matters set out in section 26 of the Act.   In Re Western Australian Industrial Relations Commission; Ex parte Confederation of Western Australian Industry (Inc) (1992) 6 WAR 555 the Full Court of the Supreme Court considered a General Order made by the Commission under section 51 that varied an earlier General Order under section 51.   Rowland J with whom Seaman J (at 565) and Murray JJ (at 574) agreed that the Commission could rescind a General Order made under 51 under section 50(2)(b).  When that matter was before the Full Court there was no express power to rescind in section 51 (whereas section 51(4) now contains such a power).  However Rowland J with whom Seaman J agreed at 565 held that there was implicit power to rescind under Section 51. In addition the Court held the Commission had jurisdiction to act under section 50.

37       It is a well established rule of construction that a general provision which might cover particular circumstances will not apply when there exists within the same statute a specific provision covering the same circumstances.  This maxim was explained by Gavan Duffy CJ and Dixon J in Horden (op cit) at 7 as follows:

"When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."

38       The principle that a statutory power, expressed in general form, is not to be construed so as to avoid any condition or limitation placed on the exercise of a specific power has been applied on numerous occasions:  see R v. Wallis (1949) 78 CLR 529, at 550- 551; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672, at 678.  In Leon Fink, Mason J said at  678:

"It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power."

39       For the maxim to apply the statutory provisions in question must deal with the same subject matter.  Further as Deane J pointed out in Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-Stock Corporation (No 2) (1980) 44 FLR 455 at 469:

"Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions.  It is present where is appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter."

40      Sections 50 and 51 are not the only provisions in the Act that authorise the Commission to set wage rates.  The Commission is empowered to do so under sections 40, 40A, 40B, 44(6a)(b) and Part II Division 3A.  However except in relation to orders made under sections 40B, 44(6a)(b) (which are interim in nature) and orders made under Part II Division 3A the effect of sections 50 and  51 through the operation of section 50(3) is that where a General Order is made to apply generally to employees throughout the State,  the Commission when acting under sections 40 and 40A is required to apply any principles, guidelines or conditions that apply by General Order under section 50 or under section 51.

41      When the provisions of the Act are analysed it is plain that section 51 of the Act does not exhaustively govern the power of the Commission to change wages, principles, guidelines or conditions that affect wage making decisions of this Commission by General Order.  Whilst an order under section 51 of the Act can be characterised as an order relating to an industrial matter as defined in section 7 of the Act, it relates only to wages as an order giving effect to a National Wage decision when a relevant National Wage decision has been made and is not an order relating to "industrial matters" generally.

42      Section 50 and section 51 are intended to be read together (see for example section 51(10)).  Under section 51(2) the Commission is empowered to make General Orders relating to industrial matters in accordance with and subject to this Division and add to, vary or rescind any General Order so made.  The legislative purpose of the words “in accordance with and subject to this Division” when the Australian Commission makes a National Wage Decision the Commission is commanded to act under section 51.  The same considerations apply when the circumstances arise for the exercise of the power to make General Orders as to public sector discipline under section 51A.  However before the Commission is empowered to act under section 51 or 51A circumstances must arise which enable the provisions to be invoked.  In the case of section 51 there must be a National Wage Decision that has been made by the Australian Commission.  In this matter there is no relevant National Wage Decision to invoke the legislative command.

43      In our opinion section 50 confers an additional and independent power to set wages and principles to the power set out in section 51.  One of the principal objects of the Act is to provide a system of fair wages and conditions of employment (section 6 (ca)).  Pursuant to section 26(1)(d) the Commission is required in exercising its jurisdiction under the Act to take into consideration to the extent it is relevant  -

(i) the state of the national economy;

(ii) the state of the economy of Western Australia;

(iii) the capacity of employers as a whole or of an individual employer to pay wages, salaries, allowances or other remuneration and to bear the cost of improved or additional conditions of employment;

(iv) the likely effects of its decision on the economies referred to in subparagraphs (i) and (ii) and, in particular, on the level of employment and on inflation;

(v) any changes in productivity that have occurred or are likely to occur;

(vi) the need to facilitate 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;

(vii) the need to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises and the employees in those enterprises.

44      The purpose of the Act set out in the objects together with section 26 make it clear that it is intended the Commission have wide and unfettered powers to fix wages that should not be confined to the implementation or rejection of a National Wage Decision.  For example if a decision was made by the Commission on its own motion under section 51(2) not to make a General Order to adjust wages by the amount of a change in wages in a National Wage Decision that would not preclude the Commission from hearing and determining an application under section 50 to adjust wages by a General Order on grounds which do not rely upon the making of a National Wage Decision by the Australian Commission.   This construction is consistent with section 51E which contemplates that reviews of the minimum weekly rates of pay for the purposes of the Minimum Conditions of Employment Act 1993 are to occur under section 51E(1) each time the Commission considers a National Wage decision or under 51E(2) and (3) by application by the TLC, CCIWA, AMMA or the State Minister at least 12 months after the most recent increase in the rate that is the subject of the application.

45      In the circumstances, we are of the view that the Commission has both the jurisdiction, and the power, to enquire into and deal with the application presently before it. 

Whether the Proceedings should be Adjourned

46      The Commonwealth Minister made the principal submission that these proceedings should be adjourned to await the outcome of the AFPC’s first determination.  Its position was supported by CCIWA and AMMA.  The strength of the Commonwealth Minister’s submission is that historically this Commission has, by virtue of its legislation, adopted a consistent approach to wage fixing with developments at the Commonwealth level.  It was submitted that the philosophy of such an approach is still valid and the Commission should consistently give due regard to it.  Some degree of coordination therefore is to be preferred.  The preferred course of action would be for the Commission to adjourn proceedings until the AFPC’s first determination, followed by the corresponding consideration by the AIRC of the wage rates for transitional employees, so that this Commission has the advantage of the reasoning in those matters to take into account in its own deliberations.  In this way, potential inconsistencies will be able to be taken into account by the Commission. 

47      The Commonwealth Minister submitted that the "old" system has been replaced by a new system after a considered view by the Commonwealth of the need within the country to change to a new system; to proceed independently would undermine the benefits of what has been a long standing national approach to minimum wage fixing.  If the Commission is to grant an increase before the AFPC decision and any subsequent AIRC decision, there would be a substantial risk that employees in the same industry with the same skills working in businesses sometimes situated on the same street would be subject to different minimum rates and not because of different levels of productivity, or because of different levels of business profitability, or because their needs are different, but simply because of the legal status of the business in which they are employed.

48      The proposal to adjourn was opposed by the TLC.  The TLC observed there are to be no further National Wage Decisions.  The only manner, therefore, that employees remaining in the state jurisdiction are able to receive the benefits of a wage increase based upon State Wage Case considerations is by this application.  This application is not being sought in haste: an operative date of 7 July 2006 is sought.  The Commission should distinguish between delaying the hearing for an event which may occur at some point in the future and delaying the hearing when it is clear that there will not be a National Wage Decision in the future.  The TLC submitted that any final decision by the AIRC in the adjourned proceedings presently before it will not be applicable generally to awards made under the Commonwealth.  It will be applicable only to those awards applicable to transitional employees.  These awards can, at best, be only a subset of "awards made under the Commonwealth Act" as those words are used in section 51 of the Act. 

49      The TLC also pointed out that it is the Commonwealth’s own changed legislation which has increased the potential for inconsistency and that there is no guarantee of consistency even after the AFPC’s initial determination.  Indeed, the AFPC can respond and take the decision of this Commission into account. 

50      The State Minister also opposed any adjournment of these proceedings.  The State Minister is concerned that no employee in Western Australia should miss out on the benefit of a wage increase because of the absence of a National Wage Decision for the purposes of section 51.  Further, inconsistencies in wage rates have occurred in the past and may well occur in the future.  The reason for it is caused by the Commonwealth’s own action.  Employees of this State will benefit from having an unfettered decision of the WAIRC to which to refer. 

Consideration

51      Our consideration of whether to adjourn involves the following.  The Commission has before it an application validly made and which is within its jurisdiction.  By section 23(1) of the Act, the Commission is to enquire into and deal with matters which come before it.  By section 22B of the Act, in the performance of its functions the Commission is to act with as much speed as the requirements of the Act and a proper consideration of the matter before it permit.  The Commission also has the power, in section 27(1)(e) and (f) to sit, or to adjourn, to any time and place. 

52      The reasons advanced for the adjournment are those advanced by the Commonwealth Minister.  We have referred earlier in these Reasons to the weight to be given to the Commonwealth Minister’s submissions regarding his concerns that inconsistency and uncertainty may arise if we proceed in advance of a determination of the AFPC and the AIRC.  We note also that in the present circumstances the concern of the Commonwealth Minister is not shared by the State Minister.  That is not to say that the Commission is not concerned at the desirability for there to be consistency between the minimum wages paid to employees covered by this jurisdiction and to employees covered by the federal legislation.  There are good reasons to have such a consistency.  Any inconsistency between the decisions of this Commission, and in the future, of the AFPC, and of other State’s industrial tribunals, will be a factor of relevance to us in the future. 

53      However, consistency does not mean that the respective minimum wages are to be identical.  Neither is consistency to be achieved only by this Commission delaying the exercise of its statutory duty to await an event at some unspecified future time.

54      We note the decision of the AIRC referred to of 21 December 2005.  Ordinarily, a decision by the National Wage Bench to adjourn its consideration on the understanding that the hearing will resume before it at a later date is a decision which, whilst not a National Wage Decision, is a decision which would be quite persuasive in this Commission.  However, as observed by this Commission in earlier proceedings in 1981 (op. cit.), it is one thing to consider and, after consideration, to adopt a decision which has been given elsewhere or to await the outcome of some relevant proceeding which is on foot before another tribunal.  It is altogether another thing for a tribunal lawfully requested to exercise its jurisdiction to refuse, in effect to do so upon no better ground than speculation about an application to another tribunal which has not at the time been made and is uncertain both as to time and substance (Re: Application for a General Order (1981) 61 WAIG 1894). 

55      In this matter, we accept that at a point in the future the AFPC will make a determination.  The expectation is that the AFPC will make its determination in the Spring of this year.  Correspondingly, the AIRC will then make a determination regarding the wage rates applicable to awards of transitional employees.  Neither of those two decisions will be applicable to the employees still within the jurisdiction of this Commission.  We do not consider it consistent with the obligations on us under our own legislation for the Commission to adjourn proceedings to await the outcome of matters not directly related to our consideration on the basis of the Commonwealth Minister’s fear of inconsistency and uncertainty arising from different decisions which arise from its own legislative changes. 

56      Where the refusal of an adjournment would result in serious injustice to one party an adjournment should be granted unless in turn this would mean serious injustice to the other party (Myers v. Myers [1969] WAR 19).  To adjourn in these circumstances would be to the serious injustice of the applicant and the employees covered by the awards of its affiliates.  The employees who will not be embraced within the Workplace Relations Act 1996 (Cth) will remain within the jurisdiction of the Commission.  Those employees will have any possible future wage increase from our consideration of the application adjourned for an indefinite period.

57      The injustice to the Commonwealth, and in turn to the employers as represented by the CCIWA and AMMA who remain within the State jurisdiction, and upon the granting of the claim (about which we pass no comment), would be to pay a wage increase to employees who have not received one through enterprise bargaining some twelve months after the last wage increase and which may possibly be inconsistent with a future decision of the AFPC which will not apply to them.  We do not consider that a serious injustice to warrant the granting of an indefinite adjournment and the application is refused.

Joint Proceedings

58      During the hearing, the TLC stated that it no longer saw this application as one desirable to be dealt with by way of joint conferences and proceedings with other industrial authorities.  It sought the deletion of paragraph 5 of its application.  The Commission deleted paragraph 5 by consent of all parties. 

Programming

59      It remains then for the Commission to issue Directions programming this application.  The Commission has the advantage of the draft Directions, and respective submissions, of the TLC and CCIWA.  The Direction which now issues takes these into account.