2010 WAIRC 00335
EDUCATION ASSISTANTS (GOVERNMENT) GENERAL AGREEMENT 2010;
GOVERNMENT SERVICES (MISCELLANEOUS) GENERAL AGREEMENT 2010

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE EXECUTIVE DIRECTOR DEPARTMENT OF EDUCATION, THE LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION (WA BRANCH); THE EXECUTIVE DIRECTOR LABOUR RELATIONS DIVISION DEPARTMENT OF COMMERCE; AND THE LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION (WA BRANCH)
APPLICANTS
-V-
(NOT APPLICABLE)
RESPONDENT
CORAM CHIEF COMMISSIONER A R BEECH
COMMISSIONER S J KENNER
COMMISSIONER S M MAYMAN
HEARD MONDAY, 8 FEBRUARY 2010, MONDAY, 22 FEBRUARY 2010, WEDNESDAY, 10 MARCH 2010, THURSDAY, 11 MARCH 2010, FRIDAY, 12 MARCH 2010, MONDAY, 15 MARCH 2010, TUESDAY, 16 MARCH 2010, WEDNESDAY, 17 MARCH 2010, WEDNESDAY, 28 APRIL 2010, THURSDAY, 29 APRIL 2010
WRITTEN SUBMISSIONS 25 MAY 2010, 27 MAY 2010
DELIVERED FRIDAY, 11 JUNE 2010
FILE NO. AG 1 OF 2010, AG 3 OF 2010
CITATION NO. 2010 WAIRC 00335

CatchWords Industrial agreements – Applications to register – Agreement to arbitration of wage increases to be included upon registration – Work value – Government wages policy – Effect of State Wage Principles - Industrial Relations Act, 1979 s 26(1)(a), s 42G
Result Annual wage increases ordered
1
.
Representation
JOINT APPLICANTS MR R. HOOKER (OF COUNSEL) AND WITH HIM MR B. OWEN ON BEHALF OF THE LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION.

Mr H. Dixon (of Senior Counsel) and with him Mr R. Bathurst (of counsel) on behalf of the Executive Directors of the Department of Education and of the Labour Relations Division of the Department of Commerce

CONTENTS

The Applications to the Commission 3
The Timing and Duration of the Hearing 4
Overview of the Cases Presented 4
The LHMU Case 5
The Government Departments’ Case 6
Consideration of the Issues 7
School Gardeners 7
School Cleaners 9
Other General Classifications 10
Conclusion of the Evidence Regarding School Gardeners, Cleaners and Other General Classifications 11
Education Assistants 12
Parity 18
Relativities with Teachers 23
The Low-Paid Nature of the Work of the Employees to be Covered by the 2010 Agreements 25
Gender Equity 26
Economic Issues 28
Supplementary Submissions – Effect of the State Budget 2010-11 30
Other Industrial Agreements 31
Lawfulness of the Government Wages Policy 31
Scope of section 42G of the Act 33
Conclusions 35
Reasons for Decision
The Applications to the Commission

1 This is the unanimous decision of the Commission in Court Session. The Commission has before it applications to register two enterprise agreements pursuant to s 41 of the Industrial Relations Act 1979 (“the Act”). The Education Assistants’ (Government) General Agreement 2010 (which we refer to as “the 2010 EA Agreement”) and the Government Services (Miscellaneous) General Agreement 2010 (“the 2010 Government Services Agreement”) (“the 2010 Agreements”) will replace the current 2007 Agreements of those names. The Liquor, Hospitality and Miscellaneous Union (LHMU) on the one part, and the Executive Directors of the Department of Education and of the Labour Relations Division of the Department of Commerce (on behalf of a number of Government departments) on the other part, have reached agreement on all matters other than the increases to be applied to the wage rates in the two agreements.

2 The parties have agreed to bring the applications to the Commission pursuant to s 42G of the Act, the relevant parts of which are now set out:
“42G. Parties may agree to Commission making orders as to terms of agreement
(1) This section applies where—
(a) negotiating parties have reached agreement on some, but not all, of the provisions of a proposed agreement;
(b) an application is made to the Commission for registration of the agreement as an industrial agreement, the agreement to include any further provisions specified by an order referred to in subsection (2); and
(c) an application is made to the Commission by the negotiating parties for an order as to specified matters on which agreement has not been reached.
(2) When registering the agreement, the Commission may order that the agreement include provisions specified by the Commission.
(3) An order referred to in subsection (2) may only be made in relation to matters specified by the negotiating parties in an application referred to in subsection (1)(c).
(4) In deciding the terms of an order the Commission may have regard to any matter it considers relevant.
(5) When an order referred to in subsection (2) is made, the provisions specified by the Commission are, by force of this section, included in the agreement registered by the Commission.
(6) Despite section 49, no appeal lies from an order referred to in subsection (2).”

3 Accompanying the applications to register these agreements is a separate Agreement for Arbitration made between the parties which contains the framework for the matter before us. Relevantly at this time, the two agreements to be registered will be in the same terms as the existing 2007 agreements with some exceptions; the terms of the agreements will in each case be for three years and the effective date for the first wage increase will be the first pay period on or after 1 January 2010 regardless of the hearing date or date of decision. The arbitration is to be only about the annual wage increases to be included in the 2010 Agreements and the parties have agreed that they will not argue any other matters.

4 In relation to the annual wage increases to be included in the 2010 Agreements, the respective positions of the parties are set out in Clause 2(a) of the Agreement for Arbitration which is as follows:
“The LHMU will argue for wage increases of 7%, 6.5%, 6.5% and the Government respondents will argue for wage increases of 2.5%, 2.5% and 3%.”

The Timing and Duration of the Hearing

5 The Agreement for Arbitration includes the following in Clause 6:
“The parties will agree on the programming for arbitration and request the Commission to list the matter for 25 February 2010 onwards.”

6 The hearing of this matter proceeded according to a programme which was agreed between the parties rather than one set down by the Commission. The parties advised that despite the terms of the Agreement for Arbitration, due to the availability of counsel, they requested that the matter be listed for a six day hearing commencing on 10 March 2010. This was accommodated by the Commission and the matter was listed as requested. The parties did not conclude their respective cases within their agreed time and subsequently agreed that the hearing should resume for a further three days on 28, 29 and 30 April 2010. Again, the Commission accommodated this request, although it could have accommodated an agreement to resume the hearing on an earlier date. The parties completed their respective cases on 29 April 2010. On 21 May 2010, after these Reasons were drafted but before they were able to be delivered, the LHMU sought and was granted leave to make supplementary submissions on the State Budget which was delivered on 20 May 2010. Those submissions were received on 25 May 2010. The Government departments’ submissions in reply were received on 27 May 2010.

Overview of the Cases Presented

7 The LHMU and the Executive Directors of the Department of Education and of the Labour Relations Division of the Department of Commerce are joint applicants. The LHMU presented its case followed by the Government departments and each replied to the case presented by the other party. Both parties presented detailed and helpful written outlines of their opening and closing submissions.

8 All witness evidence was given initially by witness statements filed in the Commission and standing as the evidence-in-chief of that witness on the understanding that any witness would be available to be called to be cross-examined if requested. The LHMU presented witness statements from 21 persons, six of whom gave supplementary oral evidence in chief and were cross-examined; a further 10 were called at the request of the Government departments in order for them to be cross-examined. The Government departments presented witness statements from 10 persons, seven of whom were called and cross-examined. The Commission was also presented with a considerable amount of documentary material. Members of the LHMU negotiating committee attended the hearings, as well as officers from the Government departments. The Commission thinks it is appropriate that this occurred; it will lead to a greater understanding of this decision and of the process of the arbitration which was agreed between the parties to decide the issues over which they have been unable to agree.

9 It is not practicable to refer to all of the evidence and documentary material in these Reasons for Decision. What follows therefore is an outline only of the respective submissions and evidence. Where it is necessary for the purposes of these Reasons for Decision, detail will be given.

The LHMU Case

10 In summary, the LHMU submits that a central, if not the central, consideration to the exercise of the Commission’s discretion will be what is fair and reasonable in the circumstances. It is a principal object of the Act to ensure that all agreements registered under the Act provide for fair terms and conditions of employment. The agreements to be registered concern the work of Education Assistants (EAs), school Cleaners, Gardeners and other general employees of the Government covered by the LHMU.

11 The LHMU submits that its case is based upon a combination of circumstances any or all of which justify its claim for a 20% wage increase over three years. The circumstances as described by the LHMU are the Premier’s public comments about the “modest” nature of the Government’s offer; the public comments of Ministers about the importance and difficulty of the work done by school support workers; the refusal of the Government to honour an agreed position that Cleaners and Gardeners in the Department of Education should be paid the same as Cleaners and Gardeners in the Department of Health; an existing entitlement for EAs to a defined percentage increase from 1 April 2010; that the Government offer if granted would materially disturb the 1998 relativities between Teachers and EAs; changes in work value; the “unfairness and illogicality” of the Government’s Wages Policy especially compared with the wage agreements reached with Teachers, Public Servants, Police and other employees of or connected with the Government; the “systemic economic disadvantage” experienced by the employees covered by the agreements by nature of their predominantly female gender mix; and the low-paid nature of the work carried out by these employees and the disproportionate impact on them of cost of living increases.

12 The evidence called by the LHMU in support of its case came from two Cleaners: Ms Darby and Mr Milligan, a Cleaner-in-Charge: Mr Clements, three Gardeners: Mr Kitis, Mr Peters and Mr Spence, three EAs: Mr Hitt, Ms Jones and Mr New, four EA Special Needs: Ms Machin, Mr McDowell, Ms Prescott-Brown and Ms Williams, a Senior EA: Ms Parnell, a Tour Guide/Supervisor at the Fremantle Prison: Ms Usher and a Visitor Services Officer at the WA Museum: Ms Murray. In addition, the LHMU Secretary Mr Kelly gave evidence, as did Ms Gurrin, who is the Lead Organiser for the LHMU’s members in the Department of Education, Ms Deveraux, who has 35 years’ experience in education and children’s services, Ms Cattalini, the Director, Social Policy of the WA Council of Social Services (“WACOSS”) and Dr Flatau, who is a Senior Lecturer in Economics at Murdoch University.

The Government Departments’ Case

13 In summary, the Government departments say that the offer of 8% over the life of the 2010 Agreements is fair and reasonable in all of the circumstances. It maintains the real value of wages presently payable, and awards an increase in real terms because the proposed increases of 2.5%, 2.5% and 3% are greater than the forecast increases of the Perth Consumer Price Index (“CPI”) for the period, being of 2.25%, 2.5% and 2.75%. There are no new productivity measures to be made to justify a greater increase. All employees to be covered by the 2010 Agreements have had significant real wage increases over the past 12 years which well exceeded CPI for the same period.

14 Further, the offer takes proper account of the budgetary constraints facing the Government following the significant economic downturn in 2008-09 which decreased the State’s own-source revenue, replaced budget surpluses with projected deficits in 2010-11 and caused the Government to introduce corrective measures to ensure the sustainability of the State’s finances. Wage increases above the offer will need to be funded by additional borrowing, will place further pressure on the State’s credit rating and will be inconsistent with the financial management principles of the Government Financial Responsibility Act 2000. There is a need to take account of the potential flow-on effect in other areas of the public sector of higher wage increases.

15 The Government departments also submit that there has been no material change in the nature of the work, skill and responsibility required, or in the conditions under which work is performed, to justify a wage increase based upon work value changes. In respect of EAs, the current wages payable and the offer both build on and reflect the work value adjustments from the 1998 work value case (The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v. The Honourable Minister for Education (1998) 79 WAIG 648, 658) (the “1998 EA case”) which also addressed issues concerning gender pay inequity. In respect of Cleaners and Gardeners, substantial increases of 13% were awarded by the Commission in 1998 (The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v. Education Department of Western Australia (1998) 78 WAIG 1589) (the “1998 Cleaners and Gardeners case”) and subsequent significant increases have been granted in agreements from 2001 to the current 2007 Agreement. The terms and conditions applicable to Cleaners and Gardeners are more generous than those applicable to Cleaners and Gardeners in the private sector.

16 The evidence called by the Government departments in support of their case came from the Deputy Under Treasurer, Mr Barnes and the Executive Director, Economic Business Unit, Mr Court, both from the WA Department of Treasury and Finance; the Acting Principal, Winthrop Primary School, Ms Beard; the Principal Consultant for Schools Plus, Ms Clark; the Principal Consultant Environmental Services, Mr Hastie; and the Acting Manager, Labour Relations Directorate, Ms McAdam, all from the Department of Education; the Executive Director Labour Relations Division, Mr Horstman and the Acting Manager, Labour Relations Directorate, from the Department of Commerce; the Chief Finance Officer of the Department of Health, Mr Leaf; the Principal, Sir David Brand School, Ms Lucas, and the Business Manager of Mount Lawley Senior High School, Ms Scott.

Consideration of the Issues

17 The LHMU described the case it presented in support of wage increases of 7%, 6.5% and 6.5% over the life of the 2010 Agreements as multifaceted. One of the LHMU’s “essential grounds” for the wage increase it claims is “Changes in work value”. The written submission groups together the employees to be covered by the 2010 Agreements as “school support workers” and says its witness evidence shows how their work has changed “in the last decade or so” (LHMU Final Written Submissions at 257). The Government departments brought evidence to counter the LHMU submission and in support of their own case. It is necessary to resolve the conflicts in the evidence before considering the parties’ respective positions.

School Gardeners
18 In relation to School Gardeners, the LHMU refers to the evidence of Mr Spence that the job has become more demanding and complex. He described his role as to present a clean school, a tidy school, a safe environment for children, a safe working environment and a safe learning environment. Frequencies of jobs and expectations have changed over the years. Gardeners now have to be more environmentally aware and have to deal with the consequences that brings. Changes have occurred in the standards of presentation of schools. Principals want their school to look nice, and Gardeners are being asked to do more by School Principals. Some task frequencies have increased, for example edging and brush cutting was done once every three weeks which is 17 times per year, but under a 2009 formula this was changed to coincide with the lawn mowing which is done 22 times a year. Compressing the jobs and adding to the task makes it very difficult to keep up with what the Gardener is supposed to do.

19 Reliance was placed by the LHMU on the report of a Review of Gardener Staffing Allocations in August 2008 done by the Facilities Operations Branch of the Department of Education and Training (Statement of Mr Spence, Attachment A). This was a survey of 35 Government schools which noted that factors such as the age and size of the school, student population, environmental demands and special programmes affect the work done by Gardeners and the demands on them. The LHMU says there is, accordingly, a greater work value of what Gardeners perform than was previously the case. The LHMU also stated that the report of the Review of Gardener Staffing Allocations showed that there was a shortfall of 54 FTE Gardeners and that there should be a minimum staffing level depending on the type of school. Any school with staffing levels below that level meant there was no way the required standard of gardening or maintenance could be achieved. The workload formulae are important because the workload of Gardeners has increased dramatically in the past 10 years with more focus on student involvement through “learning gardens” and sustainability lessons, and even extra garden beds put in by P & Cs, while the time allocation has not changed.

20 The LHMU submits that the handyman duties also performed by Gardeners can be wide and varied. Gardeners can be asked to do jobs to save the cost of the school employing a Handyman to do them. The LHMU says demands on, and expectations of, the Gardener have changed since 2005 because of the demands of the handyman job and the added difficulties that arise during the three months of the year when there is no support from anyone at the school. The role of the Gardener Handyman is an integral part of the functioning of the school as a community education facility. They exercise a large degree of autonomy and responsibility given that neither the Registrar nor School Principal have detailed knowledge of the inherent requirements of the position, the technical expertise and general tradesperson functions provided. No relief staff are provided during the summer period and Gardeners who do take leave during that period face the threat of returning to unmanaged landscapes and increased workloads. In at least one case, the difficulties with being in a remote community together with these issues have left the Gardener with no choice but to search for alternative employment and relocate his family.

21 From the point of view of the Department of Education, the evidence of Mr Hastie is that it is his considered view that the roles of Gardeners employed by the Department have not changed materially since 1998. The Gardening Staff Allocation Formula has been applied to all schools throughout the State since December 1993 and is still in use today. There has been only one minor amendment to the Formula since 1998 when the automatic irrigation programme was introduced. There have been changes to the format of JDFs however the duties outlined in them have not changed. The classification levels of some gardening positions changed in 2007, however this did not reflect a change in the duties of Gardeners but rather resulted from all previous wage schedules being put into one schedule and the positions renumbered.

22 Mr Hastie stated that there are only limited differences between the duties set out in the two versions of the School Gardening Manual between 1998 and 2009. One of these goes to the format of the document and the other is that the duties are described in more detail; it clarifies or makes explicit the duties of Gardeners but does not amend them. School Gardeners are now to record bore meter readings monthly where bore meters are installed. Senior Gardeners are to undertake appropriate training although they have always been required to supervise the activities of other gardening staff. The Review of Gardener Staffing Allocations in August 2008 is not necessarily the view of the senior level of the Department and its recommendations are not necessarily endorsed. To the extent the Review has identified factors affecting the Gardening Formula workloads, the existing formula already caters for those types of factors. Policies have been introduced relating to physical security and personal safety.

23 In relation to those handyman duties which are performed, the only substantive difference between 1992 and 2006 is the removal of certain plumbing duties; otherwise there have been no substantive amendments to the guidelines for handyman duties since 1993. The basic equipment and materials that Gardeners now use have not changed substantively. The formula takes all site factors into account, therefore the use of automatic reticulation, artificial turf and extensive paving are taken into account when the staffing levels are set for each school. In relation to handyman duties, the Gardeners (Government) 1986 Award No. 16 of 1983 in Clause 6(8) provides that an employer may direct an employee to carry out such duties as are within the limits of the employee’s skill, competence and training including work which is incidental or peripheral to the employee’s main tasks or functions. There has been no material change to the task frequencies contained in the School Gardening Manuals. There has been an increase in the recommended task frequencies in respect of brush cutting, lawn edging and raking over the spring and summer months. Where extra garden beds have been put in, Departmental policy is that it requires approval by a District Education Office and upon completion, the gardening time allocated to the school is reviewed in accordance with the gardening formula and additional time is allocated if appropriate.

School Cleaners
24 In relation to the work of school Cleaners, the LHMU submits that there has been an increase in violence and inappropriate behaviour in schools since 2003. It says the evidence is that the current role of Cleaner requires more demanding work in that instead of disinfecting a toilet bowl, there is now a need to disinfect entire cubicles on a regular basis. Cleaners have to be extra vigilant in their efforts to clean and disinfect. The amount of chemicals that has to be used has escalated. There is increased pressure on Cleaners. In at least one school there is never enough relief staff to fill absent positions which creates an expectation that all Cleaners are to work harder and faster to complete the job in the same time. This places unrealistic demands on the Cleaners and they believe that the work being done is sub-standard and that they have no control over the situation.

25 The Department of Education states that there have been no changes to the staffing formula for day labour cleaning (the Cleaning Formula) since 1998 other than in 2001 when an internal productivity rate of 300m² per Cleaner per hour was introduced, which is less than the productivity rate the parties were required to consider implementing pursuant to the 1998 Cleaners and Gardeners case. There are more schools with security fencing and a greater use of glass in the design of modern schools, however there has always been discretion to allocate Cleaners additional time for the opening and closing of school gates and where excessive internal glass areas are identified. In Mr Hastie’s view, since 1998 there have not been any changes to the productivity rates for external areas and gymnasiums or to the loadings which apply to areas such as toilets and vinyl floors. Changes in the JDFs since 1998 changed the way the duties of Cleaners were described but do not reflect a change in the duties actually carried out by Cleaners. Each of the duties set out in the 1998 JDFs is still required to be carried out today and there are no substantive differences in the duties of Cleaners set out in the 2001 and 2009 JDFs. There have been changes to the classification structures of Cleaners and there was a change in the Cleaner-in-Charge JDF to recognise responsibility based on internal floor area rather than the number of Cleaners supervised. Recent changes to the level of each cleaning position do not reflect a change in the duties of Cleaners. There have been some changes in the equipment used by Cleaners since 1998 and in some schools the introduction of waterless urinals, however these do not take additional time to clean.

26 The minimum hourly rates set out for Cleaning Contractors are less than the hourly rates fixed by the existing 2007 Agreement. Personal security and safety have always been issues addressed in the Department’s policy documents and induction manuals for Cleaners and Gardeners. There appears to have been a decrease in graffiti-related incidents this financial year. Where there is graffiti at a school, Cleaners are only allowed to use the chemicals and procedures that are authorised for other general cleaning purposes; if the graffiti cannot be removed using these authorised chemicals and procedures, the graffiti is reported to Building Management and Works to be cleaned by external contractors.

Other General Classifications
27 The LHMU refers to the evidence of Ms Usher, the Tour Guide/Supervisor at the Fremantle Prison whose evidence is that during the last two years her position and responsibilities have changed and expectations have risen. Tour Guides are now required to give safety instructions on two occasions during the tour. The numbers of visitors through the prison have increased significantly requiring longer hours and extra shifts. Ms Murray, the Visitor Services Officer at the WA Museum Perth site gave evidence of her duties.

Conclusion of the Evidence Regarding School Gardeners, Cleaners and Other General Classifications
28 The starting point for the Commission’s consideration is the 1998 Cleaners and Gardeners case which dealt with a claim for increased wages for Cleaners and Gardeners employed by the Hon. Minister for Education. The facts found by the Commission in 1998 are set out in considerable detail and are available to us now when we are asked to measure changes which have occurred to the work of Cleaners and Gardeners. The Commission observed at (1998) 78 WAIG 1589 at 1600 that Cleaners and Gardeners work as part of a team under the Principal’s/Registrar’s control. The Commission noted that the experience in structural efficiency reviews and enterprise bargaining negotiations shows that Cleaners and Gardeners have been considered together and that within the organisational structure of the Education Department they come within the one area of management. This has not changed, as is indicated by this application to register one agreement embracing Cleaners and Gardeners, and we consider them together for the purposes of this matter.

29 With respect to the duties of Gardeners in 1998, the Commission noted at 1597 the evidence before it of a greater involvement of Gardeners with the school community in developing budgets and programmes, in administering contractors’ attendances and being part of technology projects where school grounds are considered an extension of the classroom, although not all Gardeners are involved to the same extent. The Commission also noted at that time at  1598-1599 changes in productivity with the implementation of the gardening formula and cleaning programme which are referred to in these proceedings, particularly in the evidence of Mr Hastie.

30 Changes in 1998 recorded in the decision also included the need to address additional outcomes arising from evolved responsibility that Gardeners have accepted, their contributions to school and community programmes and the environment created at schools with higher standards of gardening. For Cleaners there was the training and flexibility as members of units who can undertake all facets of cleaning duties within the school. The need for schools to compete to attract students and Teachers, and the role of cleaning and gardening services making an important contribution to an environment which projects the school community’s values and the professionalism of the services it offers students, was also noted. Therefore, to the extent that Gardeners giving evidence in these matters have emphasised there are higher standards of presentation required given the need for schools to compete to attract students and Teachers or the need to deal with contractors, these are matters which are already recognised. Some task frequencies have increased and we accept the evidence that there is a need for School Gardeners now to be more environmentally aware and that one effect of the compression of some jobs under the 2009 Gardening Manual has, at least in some cases, made keeping up with jobs more difficult. We consider this demonstrates a modest increase in productivity.

31 In relation to the work of Cleaners, we agree that evidence of the need to disinfect entire cubicles on a regular basis is not widespread amongst schools and is work which should be compensated by the payment of a higher allowance rather than being evidence of a change in the value of the work of Cleaners generally. In relation to the security of Cleaners, we note the extent of the implementation of the Review of the Physical Safety of Cleaners in Western Australian Schools (Statement of Ms Gurrin, Attachment G and T323). We do not consider this issue can be satisfactorily dealt with as part of this multifaceted submission and it should be dealt with in co-operative, not adversarial, Commission proceedings. The issue is not a factor in the work value of Cleaners and is also to be considered in the context of an employer’s general duty of care.

32 The Government departments also submit that reliance on work value changes for general wage movements across all classifications is not justified, and they list the classifications in the 2010 Government Services Agreement for which no evidence has been led. We recognise the force of this submission but, as we point out later in these Reasons, the LHMU and the Government departments have previously maintained internal relativities within the Agreement for classifications other than Cleaners and Gardeners.

33 We regard the work of Cleaners and of Gardeners to be critical to the efficient running of the school as was recognised in 1998. They have a professional pride in the work they perform, however we cannot confidently conclude that there has been a significant change in the value of the work of Cleaners since 1998 although we will have regard generally to the evidence of the work being performed by them. In relation to School Gardeners there has been some change, as we have noted above.

34 We now consider the evidence regarding the work of EAs.

Education Assistants
35 Both the LHMU and the Government departments referred to the 1998 EA case. It provides a yardstick from which to measure whether the evidence before us establishes that changes have occurred since 1998 which have increased the value of the EAs’ work. We have considered the evidence of the witnesses of both the LHMU and the Department of Education in the context of the role and responsibilities described in the 1998 EA decisions and the JDFs. The Commission must also be mindful of whether any changes which may have occurred in the role and responsibilities have already been recognised in the wage increases paid to EA classifications in the previous 2002, 2004 and 2007 Agreements. Evidence that there has been a change to a classification structure will not necessarily mean that a change in the value of work has thereby been recognised. We have found it helpful to consider the evidence as it relates to the particular issues raised.

36 Increased Violence: Several of the LHMU witnesses spoke of students becoming violent and having to face assaults from more children than used to be the case, and of having to remove and individually supervise disruptive students. (We note that the violence being referred to is not the violence referred to in the evidence of Cleaners referred to earlier.) It is part of the JDF to provide appropriate physical constraint, however EAs are expected to restrain physically mature students who can be nearly double the EA’s body weight; EAs have been attacked from behind, scratched, bitten and kicked. One EA has been attacked approximately 33 times since June 2007 and the assaults were principally from repeat incidents involving particular students. There is evidence that over the last three years there has been an increased level of violence and aggression from the students; over the last decade it has included four-year-old students in kindergarten. EAs are vulnerable to infections arising from these assaults where they have been scratched.

37 In relation to this, the corresponding evidence of the Department of Education is that the presence of challenging behaviour amongst students such as aggression is no more prevalent today than it was in 1998 and in relation to aggressive behaviour, EAs have had to work with students with challenging behaviour in the past. Ms McAdam’s supplementary statement (Exhibit MINISTER 14) shows that the number of reported incidents involving violence in schools had decreased from a peak in 2005 and has remained largely steady in absolute terms; the number of students in schools has increased since 2005.

38 We note the Commission in 1998 did refer to behaviour management in the context of the duties of EAs and that the second question in part 6 of the Request for Level 3 Recognition Form (Schedule 3 to the 2007 EA Agreement) states that the EA may be required to physically restrain or remove a student. Both of these tend to support the evidence that EAs have had to work with students with challenging behaviour in the past. We conclude that dealing with violence or aggressive behaviour is not a change since 1998. Even if, regrettably, it is occurring more regularly, or occurring in four-year-old children now as well as five-year old children or older, it does not lead to the conclusion that the value of the work of EAs has increased or that there is a role or responsibility which has not been already recognised.

39 Involvement in drafting Individual Education Programmes (IEPs): For the LHMU, EAs gave evidence of their role in the drafting of IEPs, although it is the Teacher who does the drafting and it is acknowledged that the core element of the programmes has remained unchanged. The Department of Education’s evidence is that since the introduction of IEPs in education support schools in the 1980s, EAs have been encouraged to have input into, and make suggestions about, the development and delivery of an IEP. IEPs are devised by the Teacher, and implemented by both the Teacher and the EA, under the Teacher’s direction. The EA plays a role in implementing strategies and plans as part of their IEPs.

40 We consider the evidence shows that IEPs are not new, however EAs do need to understand the objectives and to have, to the degree that is required to implement the IEP, knowledge of the underlying principles. In implementing IEPs, strategies have changed and technologies have changed since 1998.

41 Greater Number of Special Needs Children: The LHMU’s evidence is that a far greater number of special needs children are attending mainstream classes and the range of special needs has increased greatly. There are increased challenges for EAs as they are increasingly dealing with children who have serious ongoing illness and with children with behavioural or educational difficulties. There are a lot more children with specific problems now, whether they are behavioural or educational difficulties, and EAs have to make sure every individual student’s programme is delivered and monitored. An EA may need to perform both mainstream and special needs roles until an EA Special Needs (“EA SN”) is available.

42 For the Department of Education, evidence confirmed that in some circumstances, EAs now work with students with a different mix of disabilities than in 1998. The evidence was also that there have been changes in schools but the role of mainstream EAs has remained the same; preparing materials and aids for the teaching programme and under the direction of the Teacher performing certain activities with the children. The majority of students with disabilities had been fully integrated into mainstream schools by 1998 other than for students with intellectual disabilities. Since 1998 there has been an increase in the number of students with special needs across schools in the State. This had begun, but had not been completed by 1998. This is not something that is specific to mainstream schools: students with disabilities in rural and regional areas have always attended mainstream schools and the ratio of EAs to students with special needs in mainstream schools has not increased since 1998. It is possible for some students not to be diagnosed with a disability until after they have started school, however this is something that happens relatively rarely because in most instances disabilities become apparent at a very young age.

43 Counselling Students: The LHMU evidence suggested that EAs are counselling students, although not formally, and are liaising with parents and providing feedback about student performance. For the Department of Education, the evidence is that it is not the role of a mainstream EA to counsel students. It is not the role of EAs to counsel students in relation to any suspected abuse or any emotional issue. Level 2 and 3 EAs may be required in accordance with the JDF to counsel students on matters affecting their education. We note that the 1998 EA case recognised a role for counselling students on matters affecting a student’s education (the 1998 EA case at 650) and do not consider the evidence shows a difference from that already recognised.

44 Out-of-Hours Class Activities and Excursions: The LHMU evidence suggested that assisting a Teacher in out-of-hours class activities and excursions is occurring and there is an expectation that EAs attend and work at out-of-hours functions even though it is not required. For the Department of Education the evidence is that EAs are not required to perform any tasks that are not set out in the JDFs; for example, attending meetings or performing work outside usual working hours, and that mainstream EAs have not had an increased involvement in out-of-school activities and school excursions over time. We consider the balance of the evidence is that assisting a Teacher in out-of-hours class activities and excursions is not itself a new role and accept the evidence that EAs who do so may want to do so and know they can decline to do so.

45 Assisting Students: There was also evidence of an EA walking students to a bus stop which is not assisting a Teacher as such. However, it is the case that the 2002 JDF recognises that EAs “Assists with arrival and departure of students travelling on buses”. Similarly, there is evidence of EAs assisting students to undress and to bathe, however the 1998 EA case at 652 recognised the duty of EAs to attend to physical and emotional needs and work remotely from Teachers, for example in ablution facilities.

46 Increased Diversity of Students: There is evidence that there is an increased number of refugees from diverse nationalities and an increased need to understand indigenous culture, however the evidence of Ms Clark is that in 1998, schools still had a culturally and linguistically diverse population of students and the Commission in the 1998 EA case also made reference to EAs working in a school providing for the teaching of children of various ethnic backgrounds. We accept that the diversity of students from refugee backgrounds may have increased, however it does not lead to the conclusion that the value of the work of EAs has thereby increased or that there is a role or responsibility which has not been already recognised. Similarly too with the evidence that there is an increased number of children in foster care living in abusive and dangerous homes.

47 Assisting With Feeding: The LHMU gave evidence that “probably in the last four years” peg-feeding and catheterising of students is now included under the words “assist with feeding” but it is a medical procedure. The evidence from the Department of Education is that EAs were peg-feeding and catheterising students in 1998 and there has not been any significant change in the equipment being used by EAs since 1998. We accept the evidence that peg-feeding and catheterising students is not itself new even if the frequency of it has been increasing in recent years. It does not affect all EAs in that it requires an EA to be trained and an EA is able to refuse to be trained. It is not within the scope of this multifaceted claim to deal with this issue specifically. There is reference to it having been the subject of other proceedings in the Commission and that appears to us to be a more appropriate avenue for this issue to be addressed.

48 Yard Duty: The LHMU states that EAs are obliged to do yard duty yet this is not in the JDF; yard duty increases the duty of care. The Department of Education states that this has happened since 1991. Level 1 and 2 EAs must be within the eyesight of a Teacher and the Level 3 SN EA JDF says EAs can supervise students without a Teacher being present. EAs are to assist Teachers in out-of-class activities. There may be examples of EAs doing yard duty on their own but there are already emergency response plans, risk management plans, roles and responsibilities. In this context, we note from the 1998 EA case the reference then to EAs pointing out their responsibilities associated with the supervision of students placed in their care often in situations remote from the control of the Teacher, for example, in play time supervision in the pre-primary environment (the 1998 EA case at 663). We do not think the evidence shows significant change from that recognised in 1998.

49 Taking Students Out on Work Experience: The LHMU evidence is that since the 2007 EA Agreement, EAs now take students out on work experience and take them out on bus training, all of which used to be done by Social Trainers but in a lot of schools is now performed by EAs. This is countered by the evidence from the Department of Education that a Level 3 EA SN taking students out to workplaces was occurring prior to the introduction of the 2002 JDF. We consider the evidence does show that at least in some cases this task is being done by EAs, though perhaps not commonly being done by them.

50 Changes to the Education Programme: There is evidence before us from EAs that the education programme is now more structured and formal. Diagnostic testing for children at educational risk, both educational and behavioural, has improved and increased. The evidence of Ms Parnell, a Senior EA, is that it has required a great deal of “upskilling” for the classroom EA in the delivery of the educational programme. Ms Machin, an EA SN, said that there are more individual programmes, more facilities available and more areas to look at where things can be done for individual students, whereas before it used to be just one area. Mr New, an EA, stated that workload and documentation has changed in that there are now Risk Analysis forms and a formal interview process. The recent inclusion of a “collaborative approach” in writing behavioural programmes requires interviewing. Plans that historically were two pages long now run to seven or eight pages. For the Department of Education there was evidence that an increased focus on cooperative learning (encouraging children to work together, plan together and talk to each other as they learn) did not make the role of mainstream EAs any more difficult or add to their responsibilities. A Socio Psychological Education Resource (“SPER”) or a Behaviour Centre EA will have a high level of input into the team that devises the behaviour management plan and the SPER EA Level 3 JDF provides for this. Ms McAdam’s, Acting Manager, Labour Relations Directorate, Department of Education, evidence is that the role, responsibilities and duties of EAs set out in the 2002 EA SN JDF directly reflect the role and duties of EA SNs from the 1998 EA case and that three new categories of EA were added in 2007.

51 There is evidence that the amount of testing done with children has greatly increased over the last three years. All students are tested now for a greater variety of subjects. One-on-one time spent with children has led to increased expectation and demands. As a Teacher does one-on-one testing, the EA supervises, carries out set activities and maintains behaviour of the whole class. In Ms Parnell’s case, she said she will be in charge of the 26 other children that are in the classroom, while making sure that they are carrying out activities that are set down in the programme and also maintaining behavioural management within the classroom. EAs are called upon to undertake at least some additional student assessment and accountability duties in order to free up the time that Teachers have available to spend with students. EAs are more frequently required to supervise, carry out set activities and maintain behaviour management with a whole class group while the Teacher conducts one-on-one testing. Over the past three years, as pressure on Teachers has increased, for example in areas of reporting, recording, accountability and assessment issues, the EA has become more involved with these important requirements. Ms Machin’s evidence is that EAs are expected to take on a higher duty of care than previously.

52 Supervision by teaching staff has given way to a greater level of independence and autonomy so that work unsupervised can occupy the majority of a day; although working under the guidance of the Teacher, EAs have been left to work on their own with small groups and can and do supervise the education support class by themselves without a Teacher present. Ms Prescott-Brown, an EA SN, says in her evidence that EAs can be expected to take classes on a regular basis without Teacher supervision.

53 For the Department of Education, it is acknowledged that over the last 10 years there have been screening tests. There also has been testing as part of the Australian Early Development Index which requires Teachers, not EAs, to complete a checklist. Ms Clark states that there has been some change since 1998 in the increased testing of students. The introduction of Schools Plus in 2005 also meant that EAs fulfil a more generalised role in the classroom which has had the most impact in mainstream classes because it has allowed Teachers to spend more time with a student who has special needs and while the Teacher is doing that, the EA helps supervise the remainder of the class. This does not require EAs to do more than what they were doing in 1998. Further, the generalised role increases the quality of the experience for the EA, the quality of the experience for Teachers and the quality of the experience for students. It allows an EA to work with an increased number of students, which in turn allows the Teacher to spend more time with a student who has the highest needs.

54 The Department of Education’s evidence emphasises that since 1998 there has not been any significant change in the nature of the work performed by EAs, the skill and responsibility required or the conditions under which the work is performed, other than changes that have been recognised by the Department, for example by changes in the classification structure for EAs. The role, responsibilities and duties of EAs have not changed over the last 12 years. Not all mainstream EAs embraced the changing role of providing assistance directly to children; a number predominantly assist Teachers. The Department points out that the Level 3 EA SN JDF provides that EAs may be required to supervise students without the presence of a Teacher.

55 We note that the basis of the LHMU’s claim in 1998 included an increase in responsibility in teaching/supervising small groups of students without direct supervision of a Teacher (the 1998 EA case at 651). The Commission recognised that EAs contribute to the teaching programme with feedback on individual students, that they assist with assessments of a student’s needs and are involved in the full scope of the education process (the 1998 EA case at 652). We consider the balance of the evidence shows EAs are now more likely to work without direct supervision to a greater extent as the Teacher spends more time with an individual student. This conclusion applies to both EAs and EA SNs. Even though the Level 3 EA SN JDF provides that EAs may be required to supervise students without the presence of a Teacher, Ms Prescott-Brown’s evidence shows that she, as a Level 3 EA SN, is “doing whole classes” and sometimes can “make up classes” as well. This has moved beyond the position found in the 1998 EA case where EAs take control of the classroom when the Teacher has to deal with a crisis (the 1998 EA case at 652). The expression used in the hearing of “getting more bang for your buck out of your resources” (T384) is to the point and we do not accept the evidence that this does not require EAs to do more than what they were doing in 1998.

56 We attach some weight to the evidence of Ms Deveraux on this issue given her knowledge of, and the evidence presented in, the 1998 EA case. We note her evidence that EAs are routinely being required to not only prepare and implement a Teacher’s programme but are undertaking collaborative planning of lessons and then observing and reporting on the outcomes of that lesson. EAs are required to take a much greater role in implementing the discipline policies and individual behaviour management programmes within the school.

57 In relation to whether the JDF gives an accurate picture of the work actually done by EAs, there was evidence of an EA being solely responsible for the implementation and administration of a Withdrawal Support Programme (Oral Language) for three years and preparing and facilitating lessons for small groups. This programme was phased out at the end of 2009. Ms Parnell gave evidence about a Fundamental Movement Programme which has been introduced that requires an EA, not the Teacher, to assess students in the outdoor area, helping with their gross motor development, which in turn affects their educational development. We have not found the issue significant otherwise.

Parity
58 This aspect of the LHMU case applies to each of the 2010 Agreements although for different reasons. In the case of the 2010 EA Agreement the LHMU draws attention to clauses within the current 2007 EA Agreement and submits that weekly wage rates for EAs should be increased by 4% from 1 April 2010 irrespective of the outcome of the present proceedings. Relevantly, Clause 28.2 of the current 2007 EA Agreement states as follows:

“28.2 In the event that a replacement agreement for the “Department of Education and Training Ministerial Officers General Agreement 2006” has an annual general wages component that is above 4.0% applied in 2009 then the percentage rate above 4.0% will be applied to this General Agreement from the date of application of the increase in the replacement agreement for the Department of Education and Training Ministerial Officers General Agreement 2006.  The intention of the parties is to ensure that parity in terms of quantum and effective dates of general wage increases is maintained between this General Agreement and the replacement agreement for the Department of Education and Training Ministerial Officers General Agreement 2006.”

59 The LHMU states that subclause 28.3(a) is directly applicable to the present circumstances. This subclause provides as follows:

“28.3 The parties to the General Agreement agree that should a replacement General Agreement not be registered by 1 January 2010 then this General Agreement continues in force pursuant to section 41(6) of the Industrial Relations Act 1979, and the weekly wage rates of all employees increase as follows:

(a) in the event that a replacement agreement for the “Department of Education and Training Ministerial Officers General Agreement 2006” provides for an annual general wage increase component in 2010 in excess of the State Wage Case outcome, that increase applies to employees covered by this General Agreement from the same effective date as the replacement Department of Education and Training Ministerial Officers General Agreement 2006;”

60 The LHMU says that the Department of Education and Training Ministerial Officers General Agreement 2008 (2008) 89 WAIG 233 (“DETMOGA 2008”) (which replaced the DETMOGA 2006 mentioned in subclause 28.3(a)) provides for increases from 3.5% to 4.9% from 1 April 2010, averaging 4%; accordingly, weekly wage rates for the current 2007 EAs should be increased by 4% from 1 April 2010 irrespective of the outcome of the present proceedings.

61 The Government departments oppose the Commission awarding any wage increase based upon Clauses 28.2 and 28.3. They submit that the general wage component referred to was not above 4% and, in any event, one would need to look at the Ministerial Officers which were comparable and are relevant. The DETMOGA 2008 provided a wage increase for Level 1 and 2 School Officers (whose wages are aligned to those of EAs) of 3.5% from the first pay period on or after 1 April 2010. However subclause 28.3(a) requires a comparison to be made between that wage increase and the 2010 State Wage Case outcome before any amount is paid; the 2010 State Wage Case outcome has not been handed down. As to the 3.5% wage increase for Level 1 and 2 School Officers in these proceedings, the Agreement for Arbitration provides for the effective date of the first wage increase to be the first pay period on or after 1 January 2010. In other words, three months earlier than 1 April 2010; a 3.5% increase paid on 1 April 2010 is equivalent to a 2.6% increase paid from 1 January 2010, which is effectively the Government departments’ offer.

62 Our conclusion in relation to this part of the LHMU claim is as follows. The reference in Clause 28.2 to the DETMOGA 2006, together with the words “The intention of the parties is to ensure that parity in terms of quantum and effective dates of general wage increases is maintained between this General Agreement and the replacement agreement for the Department of Education and Training Ministerial Officers General Agreement 2006”, is an expression of intent by both the LHMU and the Department of Education at that time to continue the link between the wage rates of EAs and the wage rates of School Officers which was established as a direct result of the 1998 EA case. That link is particularly illustrated by reference to the table set out in the decision in the 1998 EA case at 656. It shows the EA classifications fell within the span between Level 1 and 2.3 of The Education Department Ministerial Officers Salaries Allowances and Conditions Award 1983 No. 5 of 1983 (“the EDMOSAC Award”). School Officers are now covered by the DETMOGA together with the EDMOSAC Award.

63 We consider that subclause 28.2 points to a presumption that EAs would receive an increase based upon the increase payable from 1 April 2010 under that link. That is not to say there is an entitlement under Clause 28.2 of the current 2007 EA Agreement for a wage increase of 4% from the first pay period on or after 1 April 2010 – Clause 28 is to be read as a whole, and Clause 28.3 provides for the present situation, where a replacement for the 2007 EA Agreement has not been registered by 1 January 2010 by providing alternatives for determining the wage increases to apply in 2010. In subclause 28.3(a) the “general wage increase component” is to be compared to the outcome of the 2010 State Wage Case (which is not operative until 1 July 2010).

64 From the above, we consider two observations are valid. The first is that the 2007 EA Agreement shows the agreed intention of the LHMU and the Department of Education that in 2010 the wage increase to be applied to EAs in 2010 would be primarily determined by reference to the DETMOGA 2008 and not to be determined by reference to the wage increase for Teachers. The second observation is that there is nothing in Clause 28 which could support the LHMU claim of a 20% wage increase over three years.

65 We will take into account in our final conclusions the fact that the 2007 EA Agreement contains an expression of intent by both the LHMU and the Department of Education at that time to continue the link between the wage rates of EAs and the wage rates of School Officers which was established as a direct result of the 1998 EA case.

66 In relation to Cleaners and Gardeners, the LHMU points to Clauses 17.3 to 17.7 of the current 2007 Government Services Agreement which it says manifest a common intention for parity with Department of Health Support Workers. Clauses 17.3 to 17.7 are as follows:

“17.3. In the event that a replacement agreement for the LHMU – Department of Health Support Workers Federal Agreement 2004 provides for an annual general wage increase component that is above 4.0% applied in 2009 then the percentage rate above 4.0% shall be applied to this agreement from the date of application of the increase in the replacement agreement for the LHMU - Department of Health Support Workers Federal Agreement 2004. The intention of the parties is to ensure parity in terms of quantum and effective dates of general wage increases is maintained between this agreement and the replacement agreement for the LHMU Department of Health Support Workers Agreement 2004.

17.4. If, after the nominal expiry date, this agreement continues in force pursuant to section 41(6) of the Industrial Relations Act 1979, the weekly wage rates, including allowances contained in this agreement that are increased by the same percentage as annual wage increases, of all employees shall increase as follows:

(i) In the event that a replacement agreement for the LHMU department of Health Support Workers Agreement 2004 provides for an annual general wage increase component in 2010 in excess of the State Wage Order outcome, that increase shall apply to employees covered by this agreement from the same effective date as the replacement LHMU department of Health Support Workers Agreement 2007. Provided that in the event that a replacement agreement for the LHMU department of Health Support Workers Agreement 2004 does not occur, the provisions of sub-Clauses (ii) and (iii) of this Clause apply; or

(ii) the weekly wage rates and allowances in this agreement that have been agreed to be increased by the same amount and at the same time as general wage increases of all employees covered by this agreement will increase at the same time and in the same amounts as provided to employees on the minimum award wage by subsequent Western Australian Industrial Relations Commission State Wage Orders; or

(iii) In the event that the Western Australian Industrial Relations Commission State Wage Orders are discontinued, the weekly wage rates and allowances in this agreement that have been agreed to be increased by the same amount and at the same time as general wage increases of all employees covered by this agreement will increase on 1st pay period on or after January 1 in each subsequent year by 3.0% or the percentage increase in the Consumer Price Index for the 12 months to March in that year, whichever is the lesser amount.

17.5. Any increases arising out of this clause will be absorbed by future agreement increases.

17.6. Where the Catering Employees And Tea Attendants (Government) Award 1982 makes provision for service pay that provision shall have no application during the operation of this agreement.

17.7. The union agrees that any adjustment made in accordance with the provisions of this clause will not be used as a rationale to claim that relativities need to be adjusted or restored in subsequent agreements.”

67 The LHMU submits that the issues generated by Clauses 17.3 and 17.4 can be addressed by “awarding an increase commensurate with that awarded to School Teachers in late 2008”. It rejects any suggestion from the Government departments that it was not intended that an ongoing link be established with Health Support Workers.

68 The Government departments submit that agreement was reached in 2007 that there would be parity between employees (principally Cleaners and Gardeners) covered by the 2007 Government Services Agreement and employees with similar classifications under the LHMU – Department of Health Support Workers Federal Agreement 2004. Because of this, the employees received wage increases of between 13% and 41% (averaging 23%) over the life of the 2007 Government Services Agreement. As to Clause 17.3, the replacement of the Federal Agreement, the WA Health – LHMU – Support Workers Industrial Agreement 2007 ((2007) 87 WAIG 2972), did not provide for an annual general wage increase component that is above 4% applied in 2009 so the clause never came into effect. On the plain wording of the clause there is no obligation on the Government to provide parity with Department of Health employees in 2010.

69 Further, they submit that it was not intended that an ongoing link be established with Health Support Workers because the parity adjustments were not based upon a full and proper work value assessment. They point particularly to Clause 17.7 to argue that these parity adjustments would not be relied upon in the future to achieve further wage increases.

70 We commence our consideration of this issue by noting there is no established link for the wages of school Cleaners and Gardeners comparable to the link established for EAs with School Officers. Rather, the decision of the Commission in the 1998 Cleaners and Gardeners case ordered a wage increase of 13% based upon an admitted productivity improvement since 1992-1993 of 30% and the Commission ordered the LHMU and the Department of Education to continue with a process of structural reform by considering a number of changes to working conditions and allowances (see (1998) 78 WAIG 1601 at 1602). Since that time, the wage increases in the 2002, 2004 and 2007 Agreements applying to the Cleaners and Gardeners have provided wage increases consistent with the headline wage increases granted to EAs, but this seems to be no more than a coincidence. The parity with Department of Health Cleaners and Gardeners agreed to in the 2007 Government Services Agreement shows that there was, and is now, no link between the wages of School Gardeners and Cleaners and EAs or School Officers. There is certainly no basis for the LHMU submission that “the issue should be addressed by awarding an increase to Cleaners and Gardeners and other ancillary government employees based upon the increase received by teachers”.

71 In relation to the LHMU submission that there is an ongoing parity between the wages under the current 2007 Government Services Agreement and wages of Health Support Workers, Clause 17.3 comes into effect if the WA Health – LHMU – Support Workers Industrial Agreement 2007 provides for an annual general wage increase component that is above 4% applied in 2009. In fact, it provided for an annual general wage increase from 1 August 2009 which is 4%. It is not above 4%. Accordingly Clause 17.3 does not come into effect.

72 Clause 17.4(i) of the 2007 Government Services Agreement shows the agreed intention of the LHMU and the Government departments in 2007 in the event that the 2007 Government Services Agreement continues in force pursuant to s 41(6) of the Act that in 2010 the wage increase to be applied in 2010 to the employees covered by the 2007 Government Services Agreement would be primarily determined by reference to Health Support Workers. Again, there is nothing in Clause 17 which could support the LHMU claim of a 20% wage increase over three years.

73 Clause 17.4(i) does not establish an ongoing link with Health Support Workers. This is because Clause 17.4 merely provides for a situation where the current 2007 Government Services Agreement continues without a new agreement being registered and Clause 17.7 makes it plain that the union agreed that any adjustment made in accordance with Clause 17 will not be used as a rationale to claim that relativities need to be adjusted or restored in subsequent agreements.

74 However, Clause 17.4(i) is not an irrelevant consideration in this matter because, in fact, a new agreement has not been registered even though we have before us an application to register a new agreement.

Relativities with Teachers
75 Another part of the case presented by the LHMU in support of wage increases of 7%, 6.5% and 6.5% over the life of the 2010 Agreements is its submission that the Government departments’ offer materially disturbs the 1998 relativities between Teachers and EAs. The LHMU submitted a schedule of relativities showing the change between the wages of EAs and Teachers since 1998. It makes the point that while there have been some minor variations to the relativities over that time, the increases granted to Teachers in the School Education Act Employees’ (Teachers and Administrators) General Agreement 2008 (“the 2008 Teachers Agreement”) ((2008) 89 WAIG 234) have markedly changed those relativities. The LHMU states that this is indicative of the Government’s inequitable approach to the payment of its employees within the public sector. The LHMU submits that the Commission has previously recognised the merit of maintaining relativity between Teachers and EAs, and for this not to be corrected would not only be unjust and inequitable; it would substantially reduce and marginalise the relativities established between EAs and Teachers by the Commission in 1998.

76 The Government departments point out that the submission that there is a link between the wages paid to EAs and the salary of Teachers was first raised by the LHMU in its closing submissions and is inconsistent with the LHMU’s original Outline of Submissions.

77 In relation to this submission, we turn to the first of two decisions in the 1998 EA case (15 April 1998, 79 WAIG 658 at 669). The Commission concluded:

“It is clear to us that regard must be given to the internal relativities within the school environment this (sic) includes school assistants, technical staff, Registrars and teachers. The most appropriate relativity would appear to be that with the Teacher.”

78 However, that conclusion was not the final word on the matter. At page 670 the Commission issued a Direction to the parties noting the obligations on them under the 1996 EA Agreement and directing them to take certain steps under that Agreement to facilitate the proper disposition of the matter. This was followed by the second decision (9 September 1998, 79 WAIG 648) where the Commission noted that there had been no agreement on wage rates notwithstanding the first decision. The Commission in Court Session was therefore required in that second decision to determine the wage rates to be paid to EAs. At page 657 the Commission in Court Session noted:

“The alignment of Education Assistants’ rates with those of School Officers under the EDMOSAC scale as claimed by the applicant Union can be justified on the basis of evidence submitted to the Commission. …
While the KMC rate at Level 2, 4th year has a relativity of 76% of the teachers’ benchmark rate it is not inconsistent with the environment in which wage rates have been determined in schools to align the new classification structure with those set down for School Officers under the EDMOSAC Award. …
Rates of pay determined in accordance with the EDMOSAC structure accommodate the provision of a single non professional wage structure along-side the professional salary stream for Teachers in schools.”

79 Although the Commission noted that the EA Key Minimum Classification (KMC) rate at Level 2, fourth year has a relativity of 76% of the Teachers’ benchmark rate, the rates of pay were determined in accordance with the EDMOSAC Award structure. In fact, the 1998 EA case did not itself lead to the Commission making an order: on 3 December 1998, the parties varied the Education Department of Western Australia (Education Assistants – ALHMWU) Enterprise Bargaining Agreement 1996 ((1998) 78 WAIG 4868) introducing the new EA classification structure “reflecting the decision” of the Commission (Statement of Ms McAdam at [62]).

80 After 1998, the headline wage increases in the subsequent EA Agreements in 2002, 2004 and 2007 were not based upon salary increases to Teachers. The LHMU conceded, properly, that those subsequent EA Agreements in fact maintained the alignment with School Officers not with Teachers. The LHMU claim before us for parity based upon Clause 28.3 of the current 2007 EA Agreement, which refers to the DETMOGA 2008, illustrates this point.

81 In summary, even though in 1998 an EA classification was aligned at 76% of the Teachers’ benchmark rate, there has been no reliance between 1998 and now in any of the wage increases received by EAs upon the subsequent variations to the Teacher benchmark level referred to in the LHMU Submissions at [31]. We do not say the relativity referred to in the 1998 EA case is no longer relevant. On a future occasion the LHMU might be able to show that it is; on this occasion the record shows the LHMU itself has not seen that alignment as relevant for adjusting the wages of EAs when Teachers’ salaries have been increased. Further, on this occasion, the wage increase in the 2008 Teachers Agreement is not being put forward by the LHMU to justify a wage increase for EAs in the manner advanced in 1998 but as just one reason among many to justify a 20% wage increase for all classifications in the 2010 Agreements and in that context the wage increases in the 2008 Teachers Agreement can have little relevance.

The Low-Paid Nature of the Work of the Employees to be Covered by the 2010 Agreements
82 The LHMU witnesses who are to be covered by the 2010 Agreements gave evidence of their financial circumstances and their concern at the increases in Government utilities and charges. A schedule of increased utility charges is attached to the LHMU supplementary written submission. A Cleaner spoke of having two jobs yet struggling to meet all financial commitments given the cost of living has increased yet the wage has not increased. An EA spoke of not being able to live on one wage alone and that household bills have increased in the order of 20% in the last year. There was evidence of a family’s cost of living having increased in “the last couple of years”. Others spoke of significantly increased power and water bills, and increases in fuel and grocery prices.

83 One EA drew up and included in the evidence a “personal budget” determined by taking an average amount actually spent on items over the last two years from the receipts which had been kept. It showed a weekly shortfall of almost $100.00 per week. Another gave evidence of working at another job two nights a week to compensate for the low income received. Another EA spoke of being at the top of the level of pay in the existing 2007 Agreement but described it as “barely enough to live on let alone have a merry Christmas or pay the children’s educational expenses”. There is reference to the need to have a vehicle to go to work and yet the costs of petrol, insurance, registration and maintenance are increasing. Another EA spoke of being on medication for health issues which absorbs a large amount of income.

84 Evidence was given of restricting the use of heating in the middle of winter due to the cost of the electricity consumed. A Gardener is searching for alternative employment. Concern was commonly expressed that the wage increase proposed by the Government of 8% over three years does not produce a real wage rise particularly to compensate for the real increase in Government charges and price increases. Given the valuable contribution of EAs, school Cleaners and Gardeners in terms of ensuring the effective operation of the schools and education of children, the Government departments’ offer undervalues their work, particularly when compared to the salaries of Teachers, Nurses and Police. A number of witnesses referred to the level of mortgage payments and that they are likely to increase; this can take over half the net wage of a person on the salary of an EA.

85 The evidence of the financial pressures felt by these employees was largely unchallenged and we accept it; in doing so we note the Government departments’ criticism of the “personal budget”. The evidence was supported by the evidence of the Director of Social Policy at WACOSS. WACOSS highlights that living expenses are steadily increasing and that increases in income do not always keep pace. WACOSS maintains that the CPI is an inadequate measure of true living costs for Western Australians living on low incomes. Although many wage earners earn above minimum wage levels, they are still subject to the cost of living increase pressures outlined in the WACOSS paper, even if their income is higher than the WACOSS hypothetical model.

Gender Equity
86 In its supplementary written submission, the LHMU submits that approximately 89% of the LHMU members the subject of this arbitration are female and the Commission can and ought to find that this is a significantly higher proportion of female employees than is present amongst such categories as Police, Public Servants, Fremantle Port Authority employees, Western Power employees and School Teachers. School support workers, and the ancillary employees represented by the LHMU, exemplify one of the factors that has been identified as a major contributor to the gender pay gap in Australia. That is, a gender segregated labour market with women being concentrated in a narrow band of occupations and industries. The WA Government’s “initial” and “modest” offer fails to match the increases granted to other, male dominated employee groups. It thereby exacerbates the gender pay gap both within the public sector and within the State of WA as a whole. Whilst on the one hand the WA Government has, most laudably, been a vocal advocate for the improvement of pay equity, it, on the other hand, has contradicted and undermined that goal by the inequity and unreasonableness of its present offer.

87 The Government departments point out that the LHMU did not provide any further details in its “Further and Better Particulars” as to how adherence to the Government Wages Policy was unfair and no reference was made to pay equity. Further, no submissions were made regarding the issue of pay equity during the opening of the LHMU case. There was no oral evidence led by the LHMU on pay equity or how adherence to the wages policy was allegedly unfair. They point out that the three main groups of employees the subject of the arbitration - Gardeners, Cleaners and EAs - have been offered the same pay rise and the Wages Policy has been applied equally to all three groups. Of those groups, Cleaners and EAs are predominantly female. There is no evidence led by the LHMU that the work of the employees the subject of the arbitration has been undervalued by reason of gender. Any historical inequity that may have been experienced by EAs by reason of their gender was redressed by the 1998 EA case. Therefore, the existence of a gender pay gap in WA does not mean that all employees in female dominated industries and areas are undervalued and underpaid and there is no evidence that the work of the employees the subject of this arbitration has been undervalued by reason of gender.

88 The Government departments’ evidence from Mr Horstman, the Executive Director Labour Relations Division of the Department of Commerce, denied that the Government Wages Policy exacerbated the suppression of women’s wages:

“I think that the policy provides for a standard percentage increase based on whatever is the DTF-projected CPI at the start of negotiations, so there isn’t any discrimination between one agreement and the other.” (T344).

89 We consider that gender equity is an issue that may impact individual employees. More relevantly it may affect whole groups of employees based on their occupation, employment status, the industries in which they work and their gender. Work in Australia undertaken by men and women has been, and continues to be, markedly different. Gender segregation for example is but one issue that can impact on what is regarded and ultimately valued as women’s work.

90 The employees to be covered by the 2010 Agreements contain a high proportion of females. However, we have had insufficient evidence brought before us to determine, on the basis of pay equity, whether male dominated employee groups have intensified a gender pay gap and undervalued the wages of women the subject of these applications. In order to make such a finding it may be necessary to compare and reflect on:

· an historical skill based assessment of the various classification(s), the subject of the applications; together with
· a skill based assessment of male dominated comparator classifications of similar skill, knowledge and competence;
· relevant industry features including indicators of undervaluation;
· relevant industrial qualities including limited access to bargaining;
· conditions under which work is performed; and
· any other consideration relevant to gender.

91 In any such claim the Commission must be able to ultimately determine whether the employees concerned are in receipt of equal remuneration for work of equal or comparable value and identify the barriers which might be preventing those persons from receiving equal remuneration. Similarly the Commission, within the scope of the claim and the Act, having regard to the objects of the Act and s 26 in particular, should remove those barriers so that the workplace is, on the basis of gender, fair and equitable.

92 The Commission does not exclude such findings being made in the future with respect to any or all of these classifications, nor does it suggest any such assessment ought preclude the period prior to 1998. On this occasion, the LHMU merely raised this issue in a general way as one part of what it sees as a multifaceted claim and it has not sought to produce the evidence necessary to show the employees to be covered by the 2010 Agreements are not in receipt of equal remuneration for work of equal or comparable value. It has merely asked for all classifications to receive a 20% wage increase.

Economic Issues
93 A significant element of the case presented by the Government departments to show the offer of 8% over three years is fair and reasonable in all of the circumstances related to the budgetary constraints facing the Government, following the significant economic downturn in 2008-09. We turn to consider this issue. The Government departments provided a report from Mr Court, the Executive Director of the Economic Business Unit from the Department of Treasury and Finance. In summary, the report states that although WA’s economic outlook has improved over the past year, the State’s economic recovery is expected to be gradual. The Global Financial Crisis did affect the State significantly with economic growth of only 0.7% recorded in 2008-09 down from 5.2% in 2007-08. The Department of Treasury and Finance expects WA’s Gross State Product (“GSP”) to grow by 2.75% in 2010-11, increasing to 4% in 2011-12 and 4.75% in 2012-13.

94 In a supplementary witness statement, Mr Court states that it is premature to conclude that the State’s economy is expected to have already reverted to conditions similar to those that existed prior to the Global Financial Crisis.

95 Mr Barnes, Deputy Under Treasurer at the Department of Treasury and Finance produced a report to show that based on current projections, the Government does not have the financial capacity to pay wage increases beyond those prescribed in its Public Sector Wages Policy whilst maintaining sustainable State finances. The impact of initiatives taken to ensure that the State’s finances are sound and sustainable would be partially unwound if public sector wages are increased beyond the parameters of the Government Wages Policy.

96 The thrust of Mr Barnes’ report is that there has been an improvement in the economic outlook compared to last year’s budget which has not flowed through into the State’s finances. The State’s own-source revenue was impacted very significantly by the Global Financial Crisis and in some cases will take years to recover. Further, the Government is facing significant infrastructure and service delivery costs as a result of strong population growth.

97 Mr Barnes’ report makes the point that notwithstanding the projected strengthening in economic growth, the long term outlook for revenue growth remains subdued, and a major factor detracting from growth is a continued decline in WA’s share of GST revenue which has declined from 10% in 2006-07 to 8.1% in 2009-10 and will further decline to just 7.1% in 2010-11, representing a loss of $443 million in GST funding in 2010-11. The report also notes that higher salary costs would require higher debt to be incurred unless essential services or infrastructure investment are reduced or taxes increased by a corresponding amount. This would directly increase the net financial liabilities to revenue ratio, which in turn may impact upon the State’s AAA credit rating. Salary expenses are the single largest component of general Government expenses, and movements in salary expenses play a significant role in expenses growth and the general Government net operating balance.

98 A slightly contrary view of the responsiveness of the State’s economy was taken by Dr Flatau, Senior Lecturer in Economics at Murdoch University. In overview, he gave evidence that over the last year the State’s economy has improved significantly above the projected outlook. The Government’s mid-year financial projections released in December 2009 included significant upward revisions to State Product Growth, State Final Demand Growth and to forecasts for the WA labour market. Dr Flatau stated that forecasts for the Wage Price Index (“WPI”) growth in the mid-year financial projections statement was to be 3.25% in each of 2009-10 and 2010-11 and the actual growth for 2008-9 was 5.2%. Growth in the WA public sector WPI for 2008-09 was 5.7% and to the December quarter 2009, year-on-year growth in the WA public sector WPI was 4.7%. The CPI for Perth rose by 2.1% for the year to the December quarter 2009. Since the release of the 2009-10 mid-year financial projections statement, economic data releases suggest that the WA economy and labour market have strengthened further and the significant revisions included in the 2009-10 mid-year financial projections statement understate the current position of the WA economy and labour market.

99 Dr Flatau also stated that the wages of EAs, school Cleaners and Gardeners are at the very low end of the spectrum of wages for labour in Australia. He concluded that the growth in the pay of Teachers is marginally ahead of general public sector growth but the pay of EAs, Gardeners and Cleaners is below public sector wage growth on the basis of WPI data. Increasing the wages of very low paid workers has not been found to have significant adverse employment consequences. The very low paid market is very much detached from the wider labour market resulting in little “flooding up” of any wage increases obtained at the low end. In response to questions from the Government departments, Dr Flatau said a degree of caution is always required when going into the future because it is unknown, but the balance is very much in favour of a positive view, and a more positive view than the mid-year forecast.

100 On a balancing of their evidence we consider it unarguable that the Global Financial Crisis had a severe impact upon the State’s finances and indeed, in these proceedings, no-one really argued that it did not. The principal issue in this part of the evidence is the extent to which it might be able to be stated confidently that the State’s economy has reverted, or will revert during the life of the 2010 Agreements, to conditions similar to those that existed prior to the Global Financial Crisis. We do not think that can be said.

101 Rather, we consider it far more likely that there will be a gradual recovery for the State’s economy over the next three years. There is a lag between any improvement in the economic outlook flowing through into the State’s finances. Even if there is some room for optimism in the longer term, we think Dr Flatau was quite correct with respect to saying that a degree of caution is always required when looking into the future. In this context we note that the 1 April 2010 decision of the WA Salaries and Allowances Tribunal which the LHMU tendered in evidence (Exhibit LHMU 38) also concluded that caution was appropriate in the current economic circumstances.
Supplementary Submissions – Effect of the State Budget 2010-11

102 The LHMU submits that it is of particular significance that the Government projects surpluses for the foreseeable financial year commencing 2010-11 of $286m, $652m and $807m; that the actual WPI growth estimated for the present financial year is 3.5% and for the 3 financial years commencing 2010-11 to be 3.75%, 4.0% and 4.5%; and that the estimated actual CPI growth for the present financial year is 2.25% and for the 3 financial years commencing 2010-11 to be 2.75%, 3.0% and 3.25%.

103 The LHMU says that a number of points flow from what it describes as “the very substantial revision” of the Government’s estimates contained in the Budget relative to the mid-year review. These include that if it was ever tenable to assert that the Government lacked the financial capacity to pay the wage increases sought by the LHMU whilst maintaining sustainable State finances such an assertion is no longer tenable in light of the projected surpluses for 2010-11 and beyond. The State Government's spending choices explained in the Budget further illustrate the proposition developed in the LHMU's Closing Submissions that practically all of such spending reflects, at base, a determination of policy choices. There has been no indication from the Government that, in light of the revised economic figures contained in the State Budget, there is to be any increased recognition of the worth to the State school system of educations assistants, cleaners and gardeners.

104 The Government departments reply that the LHMU wrongly seeks to recast the Government's case, over-emphasise the monetary effects of the Budget and overlook the important role of the Government Wages Policy. They list a number of matters of relevance to the issues raised in these proceedings and submit that despite the improved budgetary position, on all of the evidence before the Commission, the Government's offer of an 8% pay rise over three years is fair and reasonable. Further, notwithstanding the improved general Government sector net operating balance position, the Government does not have the capacity to pay wage increases beyond those prescribed in the Government Wages Policy while maintaining sustainable State finances given the improved operating balance is already being used to fund a significant increase in the State's Asset Investment Program. Reflecting this, the State's financial capacity is largely unchanged since the mid-year review. The Government Wages Policy remains a cornerstone of the Government's responsible economic management of wage negotiations and increases. Nothing in the Budget and the broader economic circumstances referred to above, have justified a departure from the Policy.

Other Industrial Agreements
105 We have not found the Agreements to which the LHMU point for comparison to be helpful. In relation to those directly involving the Government as the employer, each has had at least a part of their respective wage increases based upon improving efficiency or changed work practices.

· In relation to the Western Australia Police Industrial Agreement 2009 the Government departments informed the Commission that the Agreement required re-negotiation to comply as far as practicable with the Government Wages Policy and was consistent with it. The wage increase within that Agreement totalling 8% over two years was based upon the projected WA WPI growth of 8% over two years as set out in the 2008-09 mid-year financial projections. Efficiencies were also provided.
· In relation to the 2008 Teachers Agreement the negotiations for this Agreement commenced in September 2007 as the 2006 Teachers Agreement expired on 1 March 2008. Agreement was eventually reached in late 2008, seven months prior to the commencement of the current Government Wages Policy. Further, the negotiations were conducted in the context of a Teacher shortage and where the CPI for the 12 months to September 2008 was 4.9% and the WPI was 5%. The salaries and conditions within the 2008 Teachers Agreement were designed to ameliorate the effects of the Teacher shortage, for example improved allowances for country and remote schools, and improved salaries to attract and retain Teachers. The 2008 Teachers Agreement also contained efficiencies such as the removal of some 42 working parties and the inclusion of new flexibility provisions allowing flexibility in the delivery of education programmes and some classes to be outside of the existing school day.
· In relation to the Public Service General Agreement 2008 which provides headline wage increases of 4.5%, 4% and 4%, the Government departments informed the Commission these yearly wage increases were the same as the yearly wage increases under the current 2007 Agreements which had been negotiated approximately 14 months earlier.

106 In relation to the other Agreements referred to, we do not regard them as helpful given the lack of any direct Government involvement.

Lawfulness of the Government Wages Policy
107 The LHMU contends in its submissions that “(t)here are real issues in this arbitration as to whether the Policy relied upon by the Government as tying its hands to offer any more to school support workers is lawful and has fettered a proper exercise of its administrative decision-making power” (LHMU Final Written Submissions at [324]).

108 In particular, the LHMU contends that the Government Wages Policy must be lawful vis-à-vis enabling legislation: Green v. Daniels (1977) 51 ALJR 463. Further that administrative decision-makers are not able to fetter their discretion by the application of a policy: Minister for Immigration v. Gray (1994) 50 FCR 189; Drake v. Minister for Immigration (1979) 46 FLR 409. Finally it has submitted that decision makers cannot inflexibly apply a policy or rule to the exclusion of the individual merits of a case: Yang v. Minister for Immigration (2003) 132 FCR 571; Minister for Immigration v. Tagle (1983) 67 FLR 164; Neat Domestic Trading Pty Ltd v. AWB Limited (2003) 216 CLR 277.

109 The Government departments contend in their written submissions that the submissions of the LHMU in relation to this matter are misconceived and that the Government Wages Policy, the subject of consideration in this case, has not been formulated to assist in the exercise of a statutory discretion, as is the case in the authorities referred to by the LHMU.

110 We conclude that the issue that arises in this matter is whether the Government Wages Policy and its application attracts the principles as discussed in the authorities above and if so, whether its application by the Government to the LHMU claim is unlawful.

111 The Government Wages Policy, on the material before us, was not made in accordance with any statutory provision or other legislative instrument to which we have been referred. It seems that the Government Wages Policy has been developed as an exercise of managerial discretion by the Executive to assist in its negotiation of wages and conditions for public sector employees. Wages policies as such are not new; they have existed in various forms as promulgated by successive State Governments.

112 On the unchallenged evidence before us, the Government Wages Policy was developed in response to a perceived need to constrain wages growth in the public sector whilst also ensuring that the real value of wages is maintained.

113 In Green, the matter in issue was a decision of the Director-General of the Department of Social Security in relation to qualifications for unemployment benefits under the Social Services Act 1947 (Cth). Specifically, the application of a policy developed by the Department to apply the statutory criteria for eligibility.

114 Gray concerned the deportation of a person considered a “non-citizen” under s 55 of the Migration Act 1958 (Cth) and the application of a policy formulated for those purposes. In that case, the Full Court of the Federal Court of Australia considered the role of the Administrative Appeal Tribunal “as part of a continuum of administrative decision-making, is not bound by governmental policy although it may take such policy into account” (at [205]).

115 In Drake, the matter before the Court concerned a decision taken by a Government department to deport an alien under the Migration Act 1958 (Cth) and the application of a policy which was developed to assist Government decision makers in the exercise of a discretion in relation to that decision. In Yang, the issue was a decision made by a delegate of a Minister under the Migration Regulations 1994 (Cth) to decline an application by a student for a student visa.

116 Furthermore, in Tagle, the issue arising was a decision by a Government department, in applying a policy, to deport an immigrant under the Migration Act 1958 (Cth) and the terms of the relevant policy relied on by the decision maker.

117 Finally, in Neat, the issue arising was the refusal by a company to consent to the grant of a licence. The majority judgment of the High Court concluded that the relevant decision was not an administrative decision for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The decision was thus not amenable to judicial review.

118 The circumstances before us are, in our view, distinguishable from those considered in the cases relied on by the LHMU. These applications do not involve the application of statutory criteria to a decision of an administrative nature, or a policy formulated to assist in the application of a statute or other legislative instrument. Counsel for the LHMU was not able to assist us with any authority directly on point.

119 In these applications, the Government has developed a Government Wages Policy to guide Departments and Agencies in the negotiation of industrial agreements with public sector unions and employees. In our view, the cases relied on by the LHMU do not assist in the circumstances before us. There is no basis to conclude, even assuming that the Commission has jurisdiction to do so, that the Government Wages Policy, or the Government decision-making in reliance on it, is unlawful.

120 There can be no issue with the fairness of the Wages Policy per se that the Commission can concern itself with. The fairness of a Government policy is not an industrial matter: Commissioner, Public Service Commissioner and Ors v the Civil Service Association of Western Australia Inc and Ors (1998) 78 WAIG 3629. However, the fairness of the application of Government policy such as the Wages Policy as it applies to the terms and conditions of employment of the employees to be covered by the 2010 Agreements is an industrial matter and is amenable to the Commission’s jurisdiction under s 23(1) of the Act.

Scope of section 42G of the Act
121 Section 42G of the Act is within Division 2B of Part II dealing with industrial agreements and is be interpreted in the context of Part II and the Act as a whole. In particular, provisions such as the objects of the Act in s 6(ae) in relation to industrial agreements containing fair terms and conditions of employment; s 6(ag) as to efficiency and the needs of industry and enterprises; s 6(ca) regarding a system of fair wages and conditions of employment; and s 26(l)(a), (c), and (d) appear to be relevant (see also Fire and Emergency Services Authority of Western Australia and United Firefighters Union Australia West Australian Branch v. n/a (2007) 87 WAIG 1283 per Harrison C).

122 By s 42G of the Act, the Commission is empowered to make an order as to matters specified by the parties to a proposed industrial agreement where the parties have been unable to reach agreement as to those matters. An order is to be made under s 42G(2) of the Act.

123 Three conditions are to be met prior to the Commission exercising powers under s 42G(2) to make an order. First, by s 42G(l)(a) the parties are required to reach agreement on some, but not all, matters for inclusion in an industrial agreement. Second, by s 42G(1)(b), the parties are required to make an application to the Commission for the registration of the industrial agreement. Third, by s 42G(1)(c), the parties are required to make an application to the Commission for an order under s 42G(2) “as to specified matters” on which agreement has not been reached.

124 On the application being made by the parties under s 42G(l), the Commission is empowered to make an order under s 42G(2) on the registration of the agreement. An order made by the Commission under s 42G(2) can only be made in relation to the matters specified by the parties in the application under s 42G(l)(c) of the Act.

125 For the purposes of the exercise of powers under s 42G(2), the Commission is able to have regard to “any matter it considers relevant”: s 42G(4) of the Act. Once an order under s 42G(2) is made, by the force of s 42G(5), the order is included in any industrial agreement registered by the Commission under s 41 of the Act, as long as it is otherwise compliant with s 41A of the Act.

126 The jurisdictional requirement on the Commission for the purposes of s 41 of the Act is that the proposed industrial agreement be “an agreement with respect to any industrial matter”: s 41(1) of the Act. (emphasis added). Upon an application for registration of an industrial agreement under s 41(1) of the Act, by s 41(2), and subject to ss 41(3), 41A and 49N, the Commission must register the industrial agreement. For the purposes of s 41 of the Act, there is no requirement that all provisions of the proposed industrial agreement relate to “industrial matters”: Hanssen Pty Ltd v. Construction, Forestry, Mining and Energy Union (Western Australian Branch) (2004) 84 WAIG 694.

127 It is reasonably plain that the Commission’s jurisdiction under s 42G(2) of the Act is not at large. The parameters of the Commission’s powers are limited to those matters “specified” by the parties to the proposed industrial agreement and in respect of which no agreement has been reached as a result of bargaining for an industrial agreement. This is emphasised by the use of the word “only” in s 42G(3) of the Act, which suggests an intention by the Parliament that the powers of the Commission be confined to the “matters specified” by the parties in the s 42G(1)(c) application.

128 For the purposes of s 42G(3), the Commission may make an order “in relation to” the matters specified by the parties in the application under s 42G(1)(c) of the Act. The phrase “in relation to” is one of considerable breadth: Oceanic Life Ltd and Anor v. Chief Commissioner of Stamp Duties (1999) 168 ALR 211. There needs to be some connection between the order and the subject matter of the specific matters referred.

129 In these applications, the “specified matters” referred to the Commission in the Agreement for Arbitration are the rates of pay for EAs, school Cleaners and Gardeners and other general classifications to be covered by the 2010 Agreements. The Commission is thus not limited to the “claims” made by the parties in terms, as long as an order arising from s 42G(3) concerns the wages to be paid to the affected employees. For the purposes of making a s 42G(3) order, the Commission may have regard to “any matter it considers relevant”: s 42G(4) of the Act. This is subject to s 26(1), which specifies to what the Commission must have regard in making an order.

130 It is also the case, as was agreed by counsel for the parties, that the terms of s 42G contemplate that an order could be made by the Commission that provides for disparate outcomes for the various classifications the subject of these proceedings.

Conclusions

131 The Commission is to decide the yearly wage increases to be included in the 2010 Agreements in accordance with equity, good conscience and the substantial merits of the case (s 26(1)(a) of the Act). The Government departments draw attention to the Commission’s State Wage Principles (2009 State Wage Order (2009) 89 WAIG 747 at 761) to submit that the strict test for an alteration in wage rates due to changes in work value is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or an upgrading to a higher classification. The Government departments submit that the State Wage Principles are clearly a relevant consideration in the present matter. However, the obligation on the Commission under s 26(1)(a) of the Act is not displaced by the tests and limitations of the State Wage Principles. That does not mean the Principles are irrelevant but as the Commission in the 1998 EA case observed at 668:
“As a general proposition, if the parties enter into an Enterprise Agreement which itself is not subject to the Principles and make provision for arbitration under terms acceptable to them, why should matters which they have recognised may be arbitrated be caught by Principles that otherwise have no application?”
(See too the 1998 Cleaners and Gardeners case at 1596)

132 Enterprise Agreements, unlike Awards, are not vehicles of broad or general application. They are restricted in their application to the parties to the Agreements. This application under s 42G therefore calls for a close consideration within the broader or general issues particular to the employers and employees to be covered by the 2010 Agreements and cannot have wider application.

133 The Agreement for Arbitration when read with s 42G(4) of the Act limits the Commission to making orders in relation to rates of pay within the current classification structure and conditions of employment. It is not part of the Agreement for Arbitration that the Commission make orders in relation to reclassifying employees or groups of employees, nor make orders in relation to improving efficiency or changing work practices, both of which have been part of the previous 2002, 2004 and 2007 Agreements between the LHMU and the Government departments. The quite narrow terms of the Agreement to Arbitrate will therefore result, for the first time in recent years, in three-year agreements with no changes to work practices. The parties retain the capacity to reach agreement on matters set out in Schedule A to the Agreement for Arbitration, however neither party referred to these matters in the context of efficiencies or changes in work practices.

134 The absence of any productivity or efficiency changes in either of the 2010 Agreements, means that the wage increases in those comparison Agreements which do have those changes are not directly applicable to our consideration of the wages increases to be inserted into the 2010 Agreements. Although the LHMU wished to admit evidence of attempts which may have been made by it during the negotiations to discuss changes to work practices, we do not consider that evidence to be relevant. What efforts were made by either party to offer, or require, efficiencies or changes to work practices is not a matter which can influence the limited orders which the LHMU and the Government departments agreed the Commission may make.

135 For similar reasons, we refused to admit into evidence matters supporting a submission the LHMU wished to make that the Government departments had not bargained in good faith. In our ruling (T222) we considered that it is not necessary for the Commission to do more than note that the LHMU and the Government departments had failed to reach an agreement and that each may be critical of the other’s position in negotiations. We did so in part because, as correctly noted by the Government departments, this issue only arose part-way through the hearing and the LHMU had given no notice in its Further and Better Particulars nor in its Outline of Submissions that it intended to argue that the Government departments had not bargained in good faith. We accept that the Government departments’ evidence had not been prepared with that issue in mind and in fairness we did not permit the submission to be made.

136 Further, we were aware that in the 1998 Cleaners and Gardeners case the LHMU had argued that the then Government had not bargained in good faith and the Commission on that occasion had been obliged to spend time dealing with that issue. Its conclusion, amongst other things, was that a finding that a claim has merit does not depend upon a finding that a party negotiated in bad faith (the 1998 Cleaners and Gardeners Case at 1599). In this case, given the quite limited nature of any orders we can make under s  42G(4), we concluded that the merit of the LHMU claim would not be affected by whether the Government departments had not bargained in good faith.

137 The Agreement for Arbitration suggests that both the LHMU and the Government departments seek the same wage increase for all classifications in both the 2010 Agreements. To a considerable extent, this can be justified because although the 2010 Agreements have their origins in separate decisions, the LHMU and the Government parties have agreed in the past to the same headline wage increases for all classifications in both sets of Agreements at the same time, as we now set out in the following table:

Year
Headline Wage Increase
2007 EA Agreement
2007 Government Services Agreement
4.5%, 4%, 4% T302 and also the Statements of Ms McAdam [41], Mr Horstman [54].

4.5%, 4%, 4%
2004 EA Agreement
2004 Government Services Agreement
$28.60 or 3.4%, 3.5% and 3.5% Statements of Ms McAdam [55], Mr Horstman [51] (noting that the Government Services Agreement replaced the previous Government Services Agreement and the Children’s Services and the Dept. of Justice Misc. Employees Agreements).

$28.60 or 3.4%, 3.5% and 3.5%
2002 EA Agreement
2002 Gardeners Agreement
3% and 4.5% Statements of Ms McAdam [57], Mr Horstman [49].

3% and (1.5+3%)= 4.5%

138 Both the LHMU and the Government departments have also been prepared to maintain the internal relativities of the Agreements. Even though the agreement reached in 2007 (that there would be parity between employees covered by the 2007 Government Services Agreement and employees with similar classifications under the LHMU – Department of Health Support Workers Federal Agreement 2004), applied principally to Cleaners and Gardeners, to maintain internal relativities within the Agreement classifications other than Cleaners and Gardeners were also adjusted.

139 However, some parts of the multifaceted claim advanced by the LHMU can only lead to differing outcomes for the two 2010 Agreements, for example, that part of the LHMU claim that there is an agreed parity between EAs and School Officers in Clause 28.3 of the 2007 EA Agreement but a different parity between Cleaners and Gardeners and their similar classifications in the Department of Health in Clause 17.3 of the 2007 Government Services Agreement. The application of those different parities is likely to result in differing wage increases. Also, they clearly show the LHMU and the Government departments themselves saw no common link between the wages of EAs and the wages increases of school Cleaners and Gardeners and other general employees of the Government.

140 The LHMU has grouped together the employees to be covered by the 2010 Agreements as “school support workers”, however this overlooks the fact that the wages of EAs and of Cleaners and Gardeners are not linked. Even in 1998, the LHMU did not link its claims in respect of a work value increase for Cleaners and Gardeners to the wage increases which had been gained for EAs in the 1998 EA case. Additionally, the recent history shows that the LHMU has pursued past wage increases for EAs and for School Gardeners from two different sources: School Officers, and Gardeners in the Department of Health, respectively.

141 Moreover, at least since the 2007 Government Services Agreement, the inclusion of employees of at least the Departments of Children’s Services and Justice means the 2010 Government Services Agreement will cover employees who have no link whatsoever to school employees. We cannot accept the LHMU submission that all employees to be covered by the 2010 Agreements comprise one group of “school support workers” and that we should therefore give all classifications in the 2010 Government Services Agreement the same wage increase as that awarded to Teachers (LHMU Outline of Submissions at [15]).

142 The LHMU claim also does not sufficiently recognise the quite different economic environment from that prevailing prior to the global financial crisis. Even with the State’s improved budgetary position evident from the 2010 Budget we are conscious of the cost implications of ordering yearly wage increases to be included in the 2010 Agreements which total more than 8%. Notwithstanding the improved budgetary position the economy of the State has not returned to its pre-2009 levels and there are still risks to its full recovery. In relation particularly to the Department of Education, the evidence of Mr Leaf, the Acting Deputy Director General, Finance and Administration at the Department of Education is that despite exhaustive efforts by the Department, the 2009-10 Budget is proving extremely difficult to meet. He also said that negotiations are ongoing with the Department of Treasury and Finance for supplementary funding so that its existing commitments to meet wages and salary payments can be met, and payments to suppliers can be made on the due dates.

143 We take into account the likely wages outcome generally across the Government by virtue of the application of the Government Wages Policy which, we are informed, applies throughout the public sector without exception. We are informed that wage increases in relation to the Main Roads Department; Fire and Emergency Services Authority of WA fleet and equipment maintenance services; the Metropolitan Cemeteries Board and the operations of the Kings Park Botanic Gardens and Park Authority are as a result of the application of this Policy. Although the LHMU states the numbers of employees covered by those Agreements is relatively small, this does not alter the fact of the wages increases within them.

144 We are aware that the costing of the Government’s offer to the LHMU would represent an additional $53 million to relevant agency budgets; an increase equivalent to the estimated rise in the WPI (3%, 2.75% and 3.25%) would represent an additional $60.8 million to relevant agencies’ budgets. If WPI forecasts of 3.25%, 3.25% and 3.5% were to be used, this figure would be higher, representing an additional $71.5 million to relevant agencies’ budgets or an $18.5 million increase over and above the CPI increase which has not been factored into the latest financial estimates of agencies because it is a requirement that it would be funded through productivity improvements.

145 We note however it is not the submission of the Government departments that the Government Wages Policy stands as “an absolute bar” to awarding a wage increase (T510) providing that the increases are soundly based. Further, the 2007 Agreements now regulate the relationship between the LHMU and the Government departments and each contains a reference to School Officers and to Health Support Workers respectively which is directed to the first of the annual wage increases in the 2010 Agreements.

146 The balancing of all of the above considerations in the context of the evidence before us in order to reach a decision which is both fair to the employees to be covered by the 2010 Agreements and fair to the Government departments is a matter of judgment according to equity, good conscience and the substantial merits of the case. In relation to EAs we have found that their productivity has increased. In the context of the quite narrow terms of the Agreement to Arbitrate and s 42G(3) of the Act, together with the past approach of the LHMU and the Government departments to internal relativities, we consider fairness warrants the benefit to be reflected in the wages of all EAs to be covered by the 2010 EA Agreement. To order a first annual wage increase of 3.5% in recognition of the wage increase received by the relevant School Officers on 1 April 2010 would not include an amount in recognition of the change to the value of the work of EAs which we have found has already occurred and is happening now. However, to order an additional amount in full recognition of the increase in the value of their work in the first annual wage increase would be to ignore the economic evidence before us. We consider a first annual wage increase of 3.75% is fair and reasonable and that any further wage increase based upon the change to the value of the work of EAs should occur over the life of the Agreement. Accordingly, we find annual wages increases of 3.75%, 3.75% and 3.5% over three years to be fair and reasonable to both parties. These increases are not intended by us to affect in the future the relationship between the wages of School Officers and the wages of EAs which the parties established in 1999 and have since maintained.

147 In relation to the 2010 Government Services Agreement we have found an increased productivity of School Gardeners. We also give some weight to the reference to Health Support Workers in Clause 17.4(i) and the difference in 2010 between the wages of support staff in Education and in Health illustrated in Table 4 of Mr Horstman’s Statement and in the Statement of Ms Gurrin, Attachment H which shows an average monetary difference of 2.3% with the hospital allowance deducted. We have regard too to the evidence generally of the work performed by School Cleaners, and that both the LHMU and the Government departments have previously preferred to maintain the internal relativities in the Agreement we consider that a first annual wage increase of 3.0% is fair and reasonable. In relation to the second and third increases we have regard to the forecast movements in the CPI for Perth. We do not say that the CPI for Perth is a perfect measure of the costs incurred; we do say however that it is a measure, amongst others, consistently referred to by the Commission for this purpose in successive State Wage cases. We consider in the context of all of the evidence before us that the second and third annual wage increases will be 2.75% and 3% over three years.

148 The decision we have reached is based upon a close consideration of the circumstances of the 2007 Agreements and the work performed by the employees to be covered by the 2010 Agreements. Our decision is not a justification for wage increases in other agreements.

149 We have given consideration to the order to issue. The only applications before us are those to register the 2010 Agreements. The parties did not make a separate application under s 42G(1)(c) and this matter has proceeded on the agreed basis contained in the Agreement to Arbitrate. In the absence of such a separate application, we propose that an order as prescribed in s 42G(2) now issue in the applications before us. The order will be that the 2010 Agreements include the annual wage increases we have determined and also that the applications be re-listed for the purpose of registering the 2010 Agreements once the parties supply schedules of the wages clauses giving effect to those annual wage increases.

150 A minute of proposed order to that effect now issues. The Commission requests that the parties notify the Commission and each other within 48 hours of the delivery of the Reasons whether a speaking to the minutes is requested. If there is no request, the order will issue in the terms of the minute. If a request is received, the parties should make their submissions in writing to the Commission by Friday, 18 June 2010. The parties are advised that after the order issues, the applications will be re-allocated to Kenner C for the purposes of re-listing in accordance with the order.