CRISIS ASSISTANCE, SUPPORTED HOUSING INDUSTRY - WESTERN AUSTRALIAN INTERIM AWARD 2011

SOCIAL AND COMMUNITY SERVICES (WESTERN AUSTRALIA) INTERIM AWARD 2011

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2013 WAIRC 00795

DELIVERED : FRIDAY, 6 SEPTEMBER 2013

FILE NO. : APPL 77 OF 2012, APPL 78 OF 2012

Applicant

AND

Aboriginal Alcohol and Drug Service (AADS) (Inc) & ors

    AND

Marra Worra Worra Aboriginal Corporation & ors

Respondents

CatchWords : Award – Award variation – Alignment of rates of wages in State Awards with national modern award – SWC Principles 10 and 12 – Social and community services sector

Legislation : Industrial Relations Act 1979 (WA) s 6(b), s 40, Workplace Relations Act 1996 (Cth)

Result : Awards varied

Representation:

 Ms K Davis, Western Australian Municipal, Administrative, Clerical and Services Union of Employees

 Ms J Lorca, South West Refuge Inc (for APPL 77 of 2012)

 Ms I Cattalini, Western Australian Council of Social Services Inc

 Mr S Bibby (as agent), for Community Employers WA

Case(s) referred to in reasons:

Equal Remuneration case 1 February 2012 [2012] FWAFB 1000

Equal Remuneration case 22 June 2012 [2012] FWAFB 5184

2007 State Wage Case [2007] WAIRC 00157 at 127; (2007) 87 WAIG 1487 at 1501

2013 State Wage Case General Order [2013] WAIRC 00353; (2013) 93 WAIG 476 at 492

Reasons for Decision

1          This is our unanimous decision.  These are two applications to amend the Social and Community Services (Western Australia) Interim Award 2011 and the Crisis Assistance Supported Housing Industry – Western Australia Interim Award 2011 in relation to wage rates.  On 28 August 2013, after hearing the matters, the Commission in Court Session informed the parties that the awards would be varied in accordance with the agreement they had reached and that our written reasons for decision would issue subsequently.  What follows are our reasons for decision.

2          The awards cover employees working for employers which are not national system employers in youth and children’s services, community centres, women’s services, family support services, community legal centres, home and community care services, drug and alcohol services, community housing services, specialist health services, tenancy services, mental health services and domestic violence refuges. 

3          The  creation of  these two awards in 2011, as set out in the transcript of the delivery of the awards, followed the change to national-State industrial relations coverage in Western Australia in 2006 after the amendments to the Workplace Relations Act, 1996 (Cth).  When this change occurred, the majority of employers in the social and community services sectors in Western Australia were national system employers and retained their federal award coverage.  However a minority of employers in Western Australia, estimated by the applicant to be approximately 15%, were not national system employers for the purposes of the changes to the Workplace Relations Act, 1996; those employers, and their employees, remained covered by those federal awards for a transitional period of five years which expired in 2011. 

4          In 2011, the applicant, with the support of those employers, applied for these two awards to issue to cover the non-national system employers and their employees who would otherwise become award-free at the expiry of the transitional period.  The purpose of the awards was stated to be to continue the existing terms of industrial relations regulation which had existed for quite some time in the federal system, but to utilise the provisions of the State legislation to prescribe that regulation by reason of the Commonwealth vacating the field.  The making of the awards was supported by employers in the industry on the basis that the awards to issue in the WA industrial relations system contained exactly the same terms and conditions of employment as those in the transitional federal awards.  The awards were made on that basis and are seen, in the words of the applicant, as “exact replicas” of those federal awards.  This background is relevant to our consideration of these two applications. 

5          The evidence before us shows that the employees of national system employers in the social and community services sectors in Western Australia, and indeed elsewhere in Australia, are covered now by the Social, Community, Homecare Disability Services Industry Award 2010 (a national system modern award).  The coverage of the two awards before us is stated by the applicant to be two streams covered by the national system modern award. 

6          Following the decision of Fair Work Australia in the Equal Remuneration Case ([2012] FWAFB 1000; [2012] FWAFB 5184), employees covered by that modern award have been paid at significantly higher rates of wages.  The applicant points to those higher rates of wages, and argues that equity, good conscience and the substantial merits of the case favours re-aligning the rates prescribed in the two awards before us in these matters with those rates. 

7          None of the named parties to the two awards have objected to the applications.  We accept the statement of Ms Davis from the bar table that at the time the applications were filed, the applicant sent a covering letter to the named parties to the awards inviting them to have discussions about the applications.  We note too that on two occasions the Commission has enclosed a covering letter to the named parties to these awards with the Notice of Hearing explaining the nature of the applications and their right to object in the Commission proceedings.  We are satisfied that lack of any objection to the applications does not arise from a lack of awareness on the part of the employers named in the awards.

8          The employers who appeared at the hearing agree with the applicant’s submissions and the orders sought.  The South West Refuge Incorporated is a named party to the Crisis Assistance, Supported Housing Industry Award – Western Australia Interim Award 2011; it submitted that it is unable to transfer to the modern award automatically as it is not a constitutional corporation, and it remains tied to the State award. 

9          Community Employers WA, an organisation registered under the Act, also supported the variations sought.  The organisation has a membership which includes both national system and non-national system employers and appeared in the Equal Remuneration Case.  We consider the organisation has as members at least some employers who would be bound by the two awards before us and attach weight to the organisation agreeing with the applicant’s submissions and the orders sought.

10       The Western Australian Council of Social Services Inc (WACOSS) supported the proposed variations.  Ms Cattalini, appearing for WACOSS, stated WACOSS’s commitment to the sustainability of services for vulnerable people in the community who are serviced by the employees covered by the two awards; their wages are critical to the workforce viability which is critical to the sustainability of those services.  Secondly, WACOSS supports notions of equitable pay within the sector and of addressing the inequitable position that has arisen from the national modern award diverging from the WA State awards, and thirdly it will enable fair funding to flow into the sector - those services currently under the national modern award have received supplementary funding and those in the State system have not.  Ms Cattalini referred to the difficulties faced by employers in the industry trying to determine whether or not they are a national system employer as being “significant”. 

11       UnionsWA filed a written submission in support of the applications.  The Hon. Minister for Commerce and the Chamber of Commerce and Industry of WA were both given notice of the hearing, however neither appeared at the hearing.

12       The Commission’s consideration of the two applications is as follows.  The applications seek a wage increase above and beyond what usually arises from the operation of the State Wage General Order.  We agree that the applications are to be considered under Principle 10 of the Commission’s State Wage Principles, which states as follows:

“10. Making or Varying an Award or issuing an Order which has the effect of varying wages or conditions above or below the award minimum conditions

10.1 An application or reference for a variation in wages which is not made by an applicant under any other Principle and which is a matter or concerns a matter to vary wages above or below the award minimum conditions may be made under this Principle. This may include but is not limited to matters such as equal remuneration for men and women for work of equal or comparable value.

10.2 Claims may be brought under this Principle irrespective of whether a claim could have been brought under any other Principle.

10.3 All claims made under this Principle will be referred to the Chief Commissioner for him to determine whether the matter should be dealt with by a Commission in Court Session or by a single Commissioner.”

13      Principle 10 is a principle of deliberately broad application.  It is not easy to anticipate in advance the many different kinds of circumstances which may warrant consideration of a wage increase to an award beyond that prescribed in State Wage Case proceedings.  The Commission in Court Session has deliberately chosen not to be prescriptive, in case so a circumstance which deserves consideration on merit is unable to be considered because it does not meet criteria set out in Principle 10.  It is for this reason that when the Commission in Court Session in the 2007 State Wage Case was asked to consider the issue of equal remuneration in significant detail, it declined to do so stating:

“We do not think it advisable to set out the criteria by which such a claim is to be assessed given specific criteria might restrict or confine a particular claim in this jurisdiction, which may not be appropriate” [2007] WAIRC 00517 at 127; (2007) 87 WAIG 1487 at 1501).

14      In this case, the applicant does not bring these applications to the Commission in Court Session as an equal remuneration matter; rather, the applicant points to the Commission’s award making powers in s 40 of the Act, and to the objects to the Act in s 6 and the general exercise of the Commission’s jurisdiction in s 26, to support the applications.

15      We consider that fairness and equity, and the substantial merits of the case, support restoring the alignment in wages between social and community services employees in the WA industrial relations jurisdiction, and social and community services employees in Western Australia in the national system.  They are undertaking identical work: the only difference between national system and non-national system employees in the social and community services sector in Western Australia is the business structure of their employer: those who are national system employers are so because they are trading corporations, and those who are not are either incorporated businesses which are not trading corporations or are unincorporated entities. 

16      In the context of these two awards which were  made by consent to maintain the same employment conditions across the social and community services sector in Western Australia irrespective of whether the employer is or is not a national system employer, we consider the applications should be granted.  To conclude otherwise would be to leave social and community services employees in Western Australia, and their non-national system employers, faced with a growing disparity in wages compared to their colleagues in Western Australia performing identical work employed by national system employers. 

17      We accept the evidence that social and community services employers have for some years campaigned for funding to increase wages to ensure the viability of the sector.  Low wage rates and associated difficulties in attracting and retaining staff threaten the sector’s capacity to deliver the services required.  Amending the awards will facilitate Commonwealth Government supplementary funding for the wage increases prescribed by the amendments.

18      In this regard, correspondence received by the Commission from the Commonwealth Government confirms its commitment to equal remuneration for all social and community services workers throughout Australia, and advises that the Commonwealth Government is committed to fund its share of any wage increases resulting from the amendment of these awards in these applications (Exhibit ASU 2).  The commitment from the Commonwealth Government is as follows:

“We are pleased to advise that the Australian Government is committed to fund its share of any wage increases should the ASU’s application before the Commission is successful, and extend supplementation to ensure that social and community sector workers in Western Australia receive the same support as their counterparts across Australia. 

As per the national supplementation process, the scope of the Government’s commitment will be to those providers, funded either directly or indirectly, with employees in Western Australia who would have been covered by the federal Equal Remuneration Order had they been under the national workplace relations system.” 

19      We are satisfied from the applicant’s submissions that the employees covered by the two awards subject to these applications are within the Commonwealth Government’s commitment to ensure that social and community sector employees in Western Australia receive the same support as their counterparts across Australia.

20      Further, the applicant points to a $604 million increase to State funding for the not-for-profit community sector over four years announced in the 2011 WA State Budget, which included an initial increase to State-funded programs of 15% followed by a further increase of funding to meet strategic needs.  The applicant draws the Commission’s attention to the statement of the Hon. Premier of WA in the Legislative Assembly that the funding is so that organisations can continue to provide and improve quality services to those in need, and to improve the pay and conditions of the people they employ, although not simply for that reason (Hansard, Assembly, Tuesday 24 May 2011, p 3838).

21      We regard the circumstances of these applications as limited.  The decision in this matter does not provide a precedent for other awards to be amended beyond those increases permitted by the State Wage Principles where these circumstances do not apply.

22      The orders that issued in these applications on 29 August 2013 contain the same wording as far as possible as the wording used in the Social, Community and Disability Services Industry Equal Remuneration Order 2012 (PR525485, 22 June 2012).  This includes describing the additional payment to be made as an “Equal Remuneration Payment” although we have not varied the awards as a result of a consideration of the merits or otherwise of equal remuneration; we have used the same wording because we accept the applicant’s submission that the Commonwealth Government intends to use the same funding model which was used to roll out the funding to national system employers following the Equal Remuneration Case.  For that reason we consider that on this occasion using the same wording will assist in maintaining consistency between the application of Commonwealth funding to an employer bound by either of the awards with the application of that funding to an employer who is a national system employer. 

23      Consistency of wording will also be of assistance to an employer who is unsure whether they are in the national or State industrial relations systems because there will be no significant difference between the national and State orders.  Additionally it will assist in maintaining a consistency between the manner that the increased rates of salary resulting from the orders are applied to an employee covered by either of the awards and the increased wages paid to an employee of a national system employer resulting from the Social, Community and Disability Services Industry Equal Remuneration Order 2012. 

24      We recognise that the capacity of an employer bound by either of the awards to pay the increased rates of salary resulting from the orders is dependent upon receiving the Commonwealth supplementary funding.  In the event that this is not received, an employer will be able to apply to reduce or postpone the variation of the award to it in accordance with Principle 12 of the State Wage Principles.

25      We congratulate the parties on reaching an agreement.  As Ms Davis, appearing for the applicant, properly noted, one of the principal objects of the Act in s 6(b) is to encourage, and provide means for, conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes.  That has occurred in this case: there has been lengthy conciliation before the Commission and it is a credit to the applicant and the employers with whom the applicant has spoken that agreement has been reached.  In accordance with that agreement, the variations to the awards will take effect from the first pay period on or after 28 August 2013, the day the orders were signed and delivered.

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