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Arbitration In ContemptThe Industrial Relations Pecking Order as shown in the NSW Retail IndustryG F Carmody'The new structure of the Industrial Commission (of New South Wales) will serve to streamline its operations and procedures, and answer the legitimate demands of those who seek a less legalistic body with more emphasis on conciliation'.
'However, let me also make it clear that our paramount consideration is that the commission (sic) should retain the respect of all parties to the conciliation and arbitration process'.
'Last year the Labor Council and its constituent unions, and indeed the Government, expressed concern about relations between the NSW Government and the unions'.
'That relationship is now as it should be---better than ever'.
'The success of the commission (sic) over the years has largely depended on its judicial power, but on its rigid impartiality and integrity which has given its determinations credibility and binding force'.
'All parties can be assured that the restructured commission (sic) will have an enhanced credibility and its role as the prime conciliator and arbitrator in industrial disputes in this State be maintained'.
(Extracts from speech to the Labor Council of NSW by Mr Wran, Premier of NSW, on 20 February 1986, proposing, inter alia, extensive restructuring of the Industrial Commission of NSW. Extracts as reported by Christopher Jay in the Financial Review, 21 February 1986. Parentheses added.)
This paper reviews some recent developments relating to award conditions applicable in the New South Wales retail industry. The focus is upon award conditions in what are classified as 'general shops'. Two main themes are developed. The first theme is that the arbitral authorities clearly are aware of the inverse relationship between the cost of labour and capacity to employ that labour. However, some particular proposals by them for award variations have drawn upon that relationship deliberately to reduce employment prospects---both absolutely and relatively - for particular categories of labour (specifically, young people). Such proposals ostensibly were motivated by concerns about 'justice'. The second theme is that, notwithstanding inferences that might be drawn from some of the statements reproduced at the start of this paper, the actual industrial relations pecking order in New South Wales at the present time is as follows. At the bottom of the heap are the unemployed (in this case especially those who are both young and relatively unskilled). Next come the employers (the smaller below the larger). The Industrial Commission follows. Above the Industrial Commission is the State Government. As to whether the State Government tops the pecking order, or is in turn beholden to another group, I will leave the reader to draw his or her own inferences from the facts presented. My own views, I think, will be quite clear.
On 7 October 1983, Mr Justice James J Macken of the Industrial Commission of NSW forwarded to the Minister for Industrial Relations and Technology his Report on certain questions concerning the opening and closing hours of shops in NSW and related matters. This Report (the Macken Report) was the final response to a reference by the Minister for Industrial Relations to the Industrial Commission on 1 December 1982. The terms of reference are presented in detail in Appendix A. Briefly, the Industrial Commission was required to report on the appropriateness of the then existing opening and closing hours of shops and, if those hours were judged not to be appropriate, what hours would be appropriate, having regard to the interests of all parties affected. In the event of any change in trading hours, the Industrial Commission was also required to report on changes in other conditions of employment for employees. Most employers argued that trading hours should not be extended. Some argued that an extension was desirable, but only on the basis of abolition of all penalty rates (except overtime) and retention of a 40-hour week in order to offset the additional costs involved. Only a few retailers supported an extension of trading hours without these conditions. The unions opposed extended trading, arguing that it would lead to the further 'casualisation' of the retail industry. (However, Mr Justice Macken noted that such opposition might not continue if 'quid pro quo' protecting and enhancing the interests of the unions, could be introduced as part of a package including extended hours.) Following a lengthy process of considering written submissions and hearing witnesses on the matters referred to the Industrial Commission, Mr Justice Macken prepared his conclusions as to trading hours and working conditions (inter alia), and these are presented in his Report. Based on those conclusions, Mr Justice Macken made recommendations to the Minister. These are presented in full in Appendix B. In summary, Mr Justice Macken made the following recommendations: (i) Trading Hours Trading hours for general shops in NSW should be extended to allow one additional trading night (up to 9:00 p.m.) each week. Shopkeepers could choose which extra night to trade. Closing time for general shops on Saturdays should extend to 4:00 p.m. Fines and penalties for breaches of trading hours should be increased. Restrictions on extended trading in holiday and tourist resort areas should be lifted. (ii) Working Hours, The Working Week, Conditions of Employment The spread of working hours, the standard of working hours, the 'shape' of the working week, and other conditions of employment of employees engaged in the retail industry, should be referred to the Industrial Commission of New South Wales. On 25 October 1983, the NSW Minister for Industrial Relations and Technology, Mr Hills, announced that the NSW Cabinet had accepted the recommendations in the Macken Report and that legislation to give effect to them would be introduced in the current session of the NSW Parliament. A copy of his statement is in Appendix C. It is interesting to note that Mr Hills' statement refers explicitly to concerns about the rights of full time employees. It also states that the Government will seek the deferment of the abolition of the under-18 wage rate until 1 January 1986, to provide time 'for investigations of a system in which the industry can hire and train junior employees, and establish the proportion of these juniors to adults'. His statement also indicated that a special tribunal (the Retail Trades Industrial Tribunal) would be established and that, inter alia, this tribunal would consider applications for 'awards or variations in awards and conditions for employees in the industry'. The statement concluded by endorsing the Macken Report as 'a fair response to the conflicting interests represented in the industry ... (that) deserves the support of the community.' (Parenthesis added.) As a result of this decision, a new division (Division 7) was inserted in the Industrial Arbitration Act 1940 by the Industrial Arbitration (Retail Trade) Amendment Act, 1983, No. 161. Section 38V in Division 7 provides that, as soon as possible after its commencement, the Retail Trades Industrial Tribunal:
The references to employment conditions in Mr Hills' statement do not relate to recommendations in the Macken Report. Rather, the Report suggests that these and related questions should be referred to the Industrial Commission of NSW. However, these references are relevant to Chapter 9 of the Macken Report, entitled 'Conclusions As To Working Conditions'. In this Chapter, Mr Justice Macken noted: 'A pleasing unanimity, between union and employer alike, .... with respect to the need for urgent and radical change' as regards conditions of employment (Paragraph 9.1). Mr Justice Macken went on to note that the terms of reference 'require the yardstick of the public interest to be used to measure questions of both trading hours and employment practices in the retail industry'. He proceeded from that to assert that 'the paramount dimension of public interest applicable both to trading periods and employment practices is the issue of full-time permanent employment for workers in the industry (and hopefully for the tens of thousands of the unemployed for whom jobs can be found given minor adjustments to trading hours and award provisions).' (Paragraph 9.2) In that context, Mr Justice Macken noted the marked increase in the employment of casuals and part-timers in the retail industry. Over the ten years to 1983 the average ratio of casuals and part-timers to permanent employees increased from 30:70 to around 70:30. He concluded that this trend, which he accepted as being undesirable, was not a reason to oppose any extension of trading hours. Rather, its causes lay in the nature of award conditions and it was these that needed to be changed. Mr Justice Macken argued that the relative costs of hiring different categories of labour built into the relevant awards militated in favour of casuals and part-timers, and younger employees, and against permanent, full-time, adult, employees. Mr Justice Macken clearly had particular views on the value of particular occupations. At paragraph 9.3, for example, he observed that: 'In take-away food stores the whole industry now operates to provide work experience for secondary school children; which experience only too frequently fits them for the dole.' Mr Justice Macken concluded that the whole structure of the award should be referred to the Industrial Commission of NSW in Court Session, and offered no final solution to the problem identified in his Report. However, he then went on to offer some suggestions about possible directions for change 'while pointing out that there is more than one answer to the problem' (Paragraph 9.5). His suggestions for modification to the award included the following: (i) Replacement of the concept of an hourly rate of pay and a 40-hour 5 day week by the concept of a shift of 7 hours. (ii) Apart from preservation of existing employees' rights to work a 40-hour week in 5 days should they so desire, there should be phased in a 35-hour working week comprising 5 shifts of 7 hours each. That might be worked as 5 shifts on as many days, but would in most cases be worked as a 4 day week, with one day having a double shift. Any shift concluding at 9.00 p.m. would be paid as a full shift, even though it was only 5 hours: that would approximate current penalty rates for such shifts. Any 5 hour shifts on Saturdays would also count as full shifts. (These suggestions were to form the basis of the 'premium hours' concept - see below). (iii) As 'a further contribution to the creation of full-time employment for school leavers' (paragraph 9.6), most of the junior rate provisions in the award could be abolished. One junior rate should be provided, not less than the 18-year old rate, 'thus, removing from the award the financial incentive to employ school students as against school leavers' (paragraph 9.6). (iv) 'A further disincentive' to the employment of school children would be the construction of permanent rosters that included at least one day during which otherwise juniors would be at school. Such a roster system would also discourage school children from seeking such work because the adoption of 'premium hours pay arrangements (i.e. where the notional shift duration exceeds the actual duration) would eliminate the penalty loadings to hourly rates of pay for weekend work often performed now by such employees. Mr Justice Macken clearly expected that a reduction in the length of the working week should be accompanied by a proportional diminution in the weekly pay of employees. He claimed that a 4 day week would more than compensate employees for this cost. However, he envisaged phasing-in arrangements to allow those presently working a 40 hour week over 5 days to continue that practice if they desired so to do. He concluded Chapter 9 of his Report by asserting that an advantage of a reversion to permanent: labour would be that over time 'the industry could be returned to recognising and using the traditional skills of the permanent shop assistant: it would provide work worthy of the inherent dignity of a man and not merely be a derogatory way of earning a living.' (paragraph 9.6).
As to the value judgements upon which Mr Justice Macken's conclusions are based, views may differ. It is probably universally agreed that unemployment should be reduced. However, in assigning priorities within the ranks of the unemployed, Mr Justice Macken's conclusions are much more controversial. To the extent that he gives priority to reducing adult unemployment, at the expense of juniors, he seems to ignore the relatively severe unemployment problem affecting younger people. Public attention has focussed increasingly upon youth unemployment. The so-called 'Priority One' initiative - whatever its actual defects purports to reflect the Federal Government's assessment of where the most urgent unemployment problem lies. To the extent that Mr Justice Macken favours full-time permanent employment over part-time employment, again he seems to be ignoring changes in work preferences over the last decade or more. Part-time employment is increasingly favoured by many in the workforce, notably married women with children. Permanent part-time employment arrangements have been increasingly recognised within Australia (e.g. within the Federal Public Service). But it is Mr Justice Macken's value judgements about students (whether at school or in tertiary institutions), and under-18 employees, that are most controversial. Not only does he suggest explicitly a financial disincentive to their employment (abolition of the under-18 award rates), but also he proposes that students effectively be debarred from employment in the retail industry (or, if not, jeopardise their education and also, in some cases, break the law in seeking to keep their casual jobs). This effective prohibition on entry into the labour market for a particular group, to my mind, is outrageous. Which group will be next? Married women with young children? Then older members of the workforce? Then the second income earner in any family group? Will we finally get to a stage where only 'breadwinners' are allowed (legally) to work? (It is worth noting that the award provisions in the retail industry already include 'proportions clauses' that are intended to limit the employment of juniors relative to adults.) The right of any person to seek employment is surely part of the framework of a free, democratic society. However, in Australia at the present time, democracy does not entitle employers legally to offer work to those seeking it unless applicable award conditions are complied with. Mr Justice Macken's proposal further circumscribes employers' ability to respond to those seeking work. I do not believe that democratic society should attempt to solve its unemployment problems effectively by cutting the supply of eligible labour by legislative or arbitral fiat. Turning to the mechanisms involved in his suggestions, it is apparent that Mr Justice Macken is aware of the inverse relationship between labour costs and capacity to employ. This can be seen by reviewing his suggestions. (a) His proposal for a 35-hour week based on 5 seven hour shifts is basically a work-sharing proposal. He is aware that wages per week will need to be reduced proportionately to avoid cost increases from introduction of a shorter working week. The premium hours concept is intended roughly to approximate existing penalty rates (although it averages closer to time and a half than to time and a quarter). However, to the extent that on-costs (especially for permanent full-timers) have a fixed or non-proportional component, the increased requirement for numbers of employees resulting from shorter actual hours for those already employed will involve increased average labour costs for the same amount of labour services provided. The net employment gains will depend upon the balance of these cost increases and increased consumer demand from extended trading hours. If extended trading only redistributes the pattern of consumer demand and does not affect the total, then the net effect will be a reduction in employment compared to what otherwise would apply. To the extent that rosters must focus on 7 hour shifts (or even half that time), the problems of matching employees to fluctuations in retail demand over the day, or week might add further to labour costs. (b) The proposed abolition of the under-18 award rates increases the relative cost of hiring such labour. Mr Justice Macken clearly intends that this relationship should be exploited to secure the employment objectives that he believes are most important. Again, however, his proposals involve increasing the average cost structure facing employers. Unless extended trading results in increased consumer demand, this proposal therefore will operate both to reduce aggregate employment and to increase the unemployment rate for younger people. The net effect on adult unemployment is not clear. It is worth noting that Mr Justice Macken could have suggested exploitation of precisely the same mechanism, but by lowering above-18 award rates. That would lower average labour costs, and produce net employment gains, as well as the shift towards adult employment that he sought. (c) The rostering of employees to include shifts that cover school hours is intended as a straight prohibition on retail industry employment for some erstwhile employees. Such protectionist devices are familiar in Australia (e.g. local content rules for Australian advertising). Again, however, they effectively raise average labour costs faced by employers, with consequences similar to those outlined in (b) above. (d) The suggestion for a quota of part timers, and the proportions arrangements tying junior employment to adult employment raised by Mr Hills, are familiar market share-type restrictions on employment (as apply to some imports into Australia). Their effects on average labour costs, and their consequences on employment, have already been noted. At best, therefore, Mr Justice Macken's proposals would redistribute employment away from juniors towards adults, and away from casuals towards permanent employees. The aggregate employment effect would depend upon consumer demand responses to extended trading. If extended trading merely redistributed shopping patterns, then increased average labour costs arising from the restructuring of the award proposed by Mr Justice Macken would reduce employment capacity compared with the status quo. In any case, at a time when unemployment is high and wen the Macken Report was concluded it was even higher (around 10 percent, including 26 per cent for 15-19 year members of the workforce seeking full-time work in 1983-84) there is clearly much to be said for holding average unit labour costs down, and allowing any growth in consumer demand to generate increased demand for labour, rather than being dissipated in higher costs and prices. It is hard to see how Mr Justice Macken's proposed 'minor adjustments' to award provisions, combined with extended trading hours, would help the 'tens of thousands of the unemployed'. The unemployed would more likely be the worse for any action to implement his proposals.
Legislation providing for extended trading hours was subject to a review of the retail industry before being put into effect. In February 1984 the Retail Traders' Association of New South Wales (RTA) attempted to reach agreement with the unions on the terms of a variation to the award which would provide for new trading hours and establish appropriate working conditions. The unions saw variations in award conditions along the lines suggested (but not formally recommended) in Chapter 9 of the Macken Report as an essential quid pro quo for extended trading. Employers wanted reduced, not increased, average labour costs as an offset to extended trading. Negotiations broke down. The RTA commenced proceedings before the Retail Trades Industrial Tribunal in February 1984 seeking a variation in the award to extend trading hours along the lines formally recommended in the Macken Report. The unions opposed the approach by the RTA (and sought higher penalty rates). The Tribunal reserved judgement on 8 June 1984. Before handing down its decision (see below), the Tribunal was asked to approve the registration of an individual agreement between the unions and six retailers, including five major retailers. The parties to the agreement were, on the union side, the Shop, Distributive and Allied Employees' Association, New South Wales (SDA) and the Shop Assistants and Warehouse Employees' Federation of Australia, Newcastle and Northern, New South Wales. The retailers were G J Coles and Coy Limited, Grace Bros. Holdings Limited, Target Australia Pty Ltd., Australian Safeways Proprietary Limited, Woolworths Limited, and Jack Butler and Staff Proprietary Limited. These retailers employed over 50,000 people, representing around 75 per cent of union membership in NSW, but less than 30 per cent of all those employed in the retail industry in NSW. The industrial agreement proposed changes to the award that provided for extended trading and changed award conditions broadly along the lines suggested in Chapter 9 of the Macken Report. Some of the main proposals were:
The RTA opposed this approach, and argued that it was a matter for the Industrial Commission in Court Session. The unions, of course, disagreed. On 18 July 1984, the Tribunal handed down its judgement. It rejected the RTA claim. It welcomed the agreement 'as being in conformity with the principles espoused by the Industrial Commission of New South Wales on 19 October 1983 in the State Wage Case of 1983'. Those principles reflected, at the State level, the Accord and the wage fixing Principles operating at the Federal level. The Tribunal found that cost offsets negotiated for the retailers involved were such as to involve only small net cost increases from the introduction of a 38-hour week, meeting the 'substantial cost offset' requirement. (See Principle 5 of the Federal-level wage fixing Principles.) It concluded that the agreement could be entered into between the parties and filed with the Industrial Registrar in the knowledge that it was consistent with the wage fixing Principles. The Tribunal was chaired by Mr Justice Macken. The agreement split the NSW retailers' Smaller retailers, and David Jones, were strongly opposed to its terms. They argued that its cost implications could only reduce employment capacity. First, they were sceptical that extended trading would increase consumer demand. Second, the arrangements involved added directly to average labour costs. Third, the agreement did not allow sufficient flexibility of rosters too match employees with fluctuations in retail demand. Fourth, some retailers believed that the agreement was a ploy by the larger, more self-service orientated retailers, to improve their competitive position relative to other retailers. Many employees also expressed concern about the agreement. Reports in the Sydney Morning Herald on 25 July 1984 indicated that the RTA believed that, even excluding the 5,000 or so working at McDonalds (a special shop, unaffected by the agreement, at least at present) up to 15,000 jobs for students could be affected. Both school students and those attending university expressed concern publicly about prospects for retaining their casual jobs given the rostering provisions and the agreement to phase out casuals. The rosters effectively closed the retail industry to university and school students. For many, these jobs provided important supplementary financial assistance that was essential for them to continue their education. Not all groups were unhappy. To quote Jack Taylor, industrial reporter, in the Sydney Morning Herald on 25 July 1984: 'There seems little doubt that the agreement is good for the (employed) members of the Shop, Distributive and Allied Employees' Union. And for the five parties, the deal brings great benefits---extended trading hours, greater flexibility, a 35-hour week and improved penalty rates for Saturday workers'. On 23 July 1984, the Retail Trades Industrial Tribunal handed down its judgement on the RTA/SDA claims in relation to the then existing award conditions in other retail shops. The main issue in dispute was that of penalty rates in the context of extended trading hours. While it was agreed that penalty rates for extended trading on the additional night each week should be time and a quarter (as for Friday night), the appropriate penalty rate for Saturday (ordinary hours) was not agreed. The RTA proposed time and a quarter. The unions (supported by the Labor Council of NSW) argued for time and a half as the standard for all employees for all ordinary time worked on Saturday. Mr Justice Macken, citing the 1972 Shiftworkers Case, concluded that the NSW Standard was time and a half and he did not propose to depart therefrom. He ruled that time and a half should apply to ordinary hours worked on Saturday afternoon for all employees (full-time, part-time or casuals). Mr Justice Macken did not rule on the union claim for time and a half for ordinary hours on Saturday morning. That issue was held over pending a more general review of the awards (see below). On 9 August 1984 Mr Justice Macken made a new Shop Employees (General Shop-Interim State) Award, including the elements of his 23 July 1984 judgement. It was applicable to general shops, except those party to the abovementioned industrial agreement and some smaller general shops. Extended trading hours came into operation in August 1984. The extension continued to be controversial. Many retailers were not convinced that extended trading hours were necessary, especially late trading on an additional week night. A survey conducted for the RTA in October 1984 suggested that 68% of shops were remaining closed on Friday nights and 53% of shops were using Saturday afternoon trading to varying degrees.
Following the judgement by Mr Justice Macken on 23 July 1984, the RTA applied that Mr Justice Macken , as the Retail Trades Industrial Tribunal, should remove various matters before him to the Full Bench of the Industrial Commission in Court Session. Mr Justice Macken agreed. Subsequent proceedings before the Commission in Court Session were initially conducted before a Bench comprising the President, Justice Fisher, Mr Justice Sweeney and Mr Justice Macken! McDonald's Systems of Australia Pty Ltd objected to Mr Justice Macken appearing as a Member of the Court Session Bench, given his authorship of the Macken Report and involvement in decisions giving rise to other issues before the Commission. Mr Justice Macken decided not to continue as a Member of the Court Session Bench. The Industrial Commission in Court Session Bench was reconstituted, comprising the President, Mr Justice Fisher, and Justices Sweeney and Watson. The RTA requested that the Full Bench hear an appeal against Mr Justice Macken's judgement of 23 July 1984 on Saturday afternoon penalty rates as well. This Full Bench of the Commission reviewed the awards relevant to the retail industry, and the RTA appeal. The award review was conducted by considering 'model awards' prepared by the unions and employers as summarising their preferred positions. These 'model awards' proposed variations to existing awards (in particular, the Shop Employees (State) Award, made by Mr Justice Macken in December 1981). These matters were mentioned by the Full Bench on 10 December 1984 and listed for hearing on dates in February, March and April 1985. In the event, hearings continued into July 1985. As the Full Bench began its hearings, award conditions in the NSW retail industry were determined not by one award, but by two awards and one industrial agreement: (i) The Shop Employees (General Shops-Interim (State) Award applied to general shops, except for those covered by (ii) and (iii) below. (ii) Most major retailers were covered by the industrial agreement filed in July 1984 with the Industrial Registrar (although small shops---12 employees or less---operated by these companies or their subsidiaries that did not open afternoon on Saturdays were excluded, and were covered by (iii) below). (iii) The remaining smaller shops were covered by the Shop Employees (State) Award. Penalty rates, and labour costs more generally, were a central issue, not only for general shops, but also for more specialised retailers. Broadly, the union position was that the terms of the industrial agreement should be built into the general shop award structure, excluding shops with twelve employees or less. In contrast, the RTA stressed the adverse labour cost, and therefore employment, impact of the union claims and proposed reductions in, if not abolition of, penalty rates and any other provisions adding to labour costs. The employer case stressed the need for flexibility in manning to cope with retail demand fluctuations. It also emphasised the use of wage bill/sales revenue ratios as central guidelines for monitoring commercial viability. Given the competitive nature of the industry, and consequent small profit margins, Such ratios tended to imply, other things being equal, an inverse proportional relationship between changes in labour costs and numbers employed. The 'premium hours' concept built into the industrial agreement was opposed by employers. The adverse employment consequences of higher labour costs were emphasised by employer witnesses responding to questioning about the effects of extended trading. In general, retailers concluded that extended trading had not resulted in increased sales, although some retailers had experienced increases in market share at the expense of others. It had altered trading patterns and added to costs. Some employer witnesses claimed that those retailers that had been party to the industrial agreement had done so to obtain a competitive edge from extended trading relative to other retailers. Such witnesses added that such a ploy might provide better working conditions, but only for an ever diminishing number of employees. The remainder of this Section deals with the main details of the judgement of the Commission on the matters before it. The Judgement was handled down on 16 August 1985. (i) Penalty Rates The RTA sought abolition of penalty rates for late trading on Thursday or Friday, although it had not appealed against the earlier determination for time and a quarter for such periods. The Commission decided not to change present penalty rates in this case. The unions sought time and a half as the award rate for ordinary time Saturday morning work, citing the Shiftworkers Case of 1972. The Commission judged that that earlier decision specifically applied to shift workers and did not constitute, of itself, a case for other workers that in effect were undertaking extended day work. The Commission noted that time and a quarter had been agreed for Saturday morning work in shops by consent in 1974. Further, the Commission agreed with the employer advocate, Mr Hill, Q.C., that to vary the rate as sought by the unions would be contrary to the wage fixing Principles and that neither Principle 6 nor Principle 9, dealing with anomalies and inequities, and allowances, respectively, would be available to support such a change. The Commission therefore refused the union claim, and in general concluded that there should be no further extension of penalty rates in relation to weekend employment. As regards Mr Justice Macken's determination of 23 July 1984 on penalty rates for Saturday afternoon work the Commission concluded that: '... different considerations apply to this industry and ... the more appropriate course would have been to extend the rate of time and a quarter applicable to Saturday morning work to work on Saturday afternoon following the extension of trading hours on Saturdays' (Page 30 of the Commission's Judgement on matters No. 1682 of 1984 and No. 2203 of 1984.) The Commission went on to argue that: 'There is another reason which, in our view, is equally compelling and which would inhibit any approach which sought to apply a standard applicable to weekly shift work employees to Saturday work by shop employees in the retail industry. The evidence before us establishes that the extension of shopping hours into Saturday afternoons has not resulted generally in additional sales but rather to a spread of the existing level of sales, at added cost to the industry. The added cost of additional employment includes both penalty rates and other operating costs. Further, the success of Saturday afternoon opening is unevenly distributed. It has proven more successful in large shopping centres. Elsewhere in strip shopping areas and in a number of country areas it has met with limited success with closures often well before 4.00 p.m. or complete closure on Saturday afternoons. We believe that there is a definite public interest in the added amenity of Saturday afternoon shopping and a direct industrial interest in the further employment opportunities that extended trading on Saturday afternoon implies. We are reluctant to impose a further cost burden which would inevitably tend to discourager Saturday afternoon shopping, discourage its spread and limit employment opportunities'. (Page 31 of the Judgement.) The Commission therefore upheld the RTA appeal with respect to Saturday afternoon penalty rates for weekly and part-time staff, and reinstated a rate of time and a quarter (for those shops not covered by the industrial agreement). As to penalty rates for casual employees (who receive a 15 per cent loading), Mr Justice Macken had determined that, in addition, time and a half should apply on Saturday afternoon in his judgement of 23 July 1984, although no additional penalty was awarded for late trading on week nights. The Commission agreed with Mr Justice Macken's findings as regards late trading on week nights. The Commission also judged that the same conclusion should apply to Saturday mornings. As to Saturday afternoons, however, the Commission did not uphold the award of time and a half, but awarded an allowance of $6 ($3.30 for juniors) to casuals employed to work for more than 4 hours on a Saturday, with no change in allowances ($2 for adults and $1.10 for juniors) for casual employment up to 4 hours on a Saturday. Subject to that change, the Commission allowed the RTA appeal against Mr Justice Macken's determination with respect to casuals on 23 July 1984. (ii) The Premium Hours Concept The unions sought implementation of this proposal in general shops employing more than 12 employees. The RTA strongly opposed the concept as impractical. The Commission was not convinced that the RTA's claims were wholly valid. However, the Commission did not convert the claim into an award requirement, but suggested that the parties confer in an attempt to establish agreement on an appropriate award provision that would give an option to introduce such a form of rostering if desired. The Commission was not more specific but indicated it would deal further with the matter 'as may be necessary'. (iii) Restrictions on Casual Employment The unions sought to restrict casual employment to 15 per cent of total working hours in a shop, at least with effect from two years from the date of introduction of extended working hours. The RTA strongly opposed the union claim. The Commission found that there was little evidence of difficulties arising from casual employment but suggested that the matter be kept under notice by the unions. The Commission added that no presently employed casual employees should be dismissed or otherwise disadvantaged by any change to award conditions relating to casual or other employment that might be proposed in future. As to the claims before it, the Commission rejected the union proposals further to restrict the employment of casuals, although it also rejected an RTA claim reducing the minimum casual shift from four to three hours. (iv) Restrictions on Junior Employment The registered industrial agreements between the unions and some employers provide that 'a junior person attending secondary school shall not be engaged as a casual employee'. Such juniors shall not be employed by companies party to the agreement as part-time employees either, except for the employment of Christmas temporaries, without 'the written permission of the Secretary of the appropriate union'. The unions sought the inclusion of these provisions in the Award. The Commission's views on the claim are summarised in the following extract from its 16 August 1985 judgement (pages 42-43): 'In our view, the proposed clause is in terms discriminatory of a class of persons. As has often been mentioned this Commission under Statute has no supervision over agreements filed in its Registry and consequently and regrettably this discriminatory provision is now enforceable as if it were an award of this Commission. On the hearing before us no attempt was made to present any argument relating to the position of secondary school students, nor were they as a class or group in any way upon notice of these proceedings or of the proposed disposition of their interests nor were they represented or heard. There was evidence from some employers that they preferred secondary students for casual employment because they were better motivated and perhaps more capable. It was also said that many junior applicants for employment did not present well. We accept that it is preferable to employ school leavers who may otherwise join the unemployed than secondary students and we would hope that employers would take note of this observation. Such an objective ought not to require a discriminatory prohibition upon the employment of secondary students, some of whom may have quite urgent reasons for requiring employment.' The Commission rejected the union application. (v) Elimination of 15 Year Old Junior Rate The union advocated abolition of the 15 year old rate (40 per cent of the adult rate). The RTA opposed the union claim. The Commission noted that no case was made out by the unions for such a claim. Further, the Commission concluded that the wage fixing Principles precluded the making of such an alteration. 'To grant a 20 percent increase in the commencing rates for junior employment would clearly, in our view, infringe the Principles so obviously that further discussion is not required, and in any case no case on the merits has been made out. (Page 44 of the Judgement.) The union claim was rejected. (vi) Proportions The unions sought a one-to-one limit on the ratio of part-timers to full-timers to supplement existing proportions (one-to-one) limiting ratios of juniors to seniors (both part-time and full-time). The Commission noted that the existing proportion clauses had often been honoured in the breach, at least on a shop-level basis. The Commission was prepared to accept employer pleas for flexibility with respect to proportion clauses in general shops. On the evidence before it, the Commission concluded that the issue of proportions could be met by general shops in a self-regulatory way, and that: '... the existing provision, while not entirely anachronistic, is necessary.' (Page 47 of the Judgement.) The Commission indicated its preparedness to reconsider the proportions issue in the Light of experience over the next two years. (vii) Part-Time Employment The RTA claim for introduction of the concept of a 'regular employee' (minimum 8 hours per week with a period of engagement of four weeks) was regarded by the Commission as an ambit claim. The Commission agreed substantially with the unions' claim, providing for part-time employment in general shops for a minimum period of 4 hours on any day, and at least 16 hours per week (up to a maximum of 30 hours), except that in some cases, where Saturday work is involved, the minimum weekly employment can be 15 hours. (viii) Form of Award/Commencement Date/Duration The Commission judged that a single Shop Employees (State) Award be made replacing the two (then) existing awards. The new Award was to operate as from the first pay period commencing on or after 16 August 1985 and was to remain in force for two years.
The 16 August 1985 judgement by a Full Bench of the Industrial Commission of NSW was largely welcomed by the employers. Not surprisingly, the unions were not happy. The Federal Secretary of the SDA, Mr Joe de Bruyn. indicated that industrial action would be considered as part of a campaign to overturn the Commission's judgement. However, such action did not eventuate, and over the latter part of 1985, the retail industry continued operating relatively smoothly. There were some rumours going around the industry to the effect that the unions were seeking action from the State Government, but there was virtually no industrial disputation. On Wednesday, 20 November 1985, the Wran Government introduced its 'Factories, Shops and Industries (Further Amendment) Bill 1985' into the Legislative Assembly. There appears to have been little fanfare associated with the introduction of this Bill. The Government's intentions were the subject of a brief evening television news report on that day. As far as I can tell, there has been virtually no other media reporting of the Wran Government's initiative. The Bill has now been passed into law (although copies of the legislation in final form are not yet available from the NSW Government Bookshop or Printer) as the 'Factories, Shops and Industries (Further Amendment) Act 1985'. The purpose of the Bill was 'to amend the Factories, Shops and Industries Act 1962 with respect to the registration and trading hours of shops and for other purposes.' (Emphasis added.) Promoting those 'other purposes' were the following provisions (which appear on page 5 of the Bill): (1) The introduction after Section 79 of a new Section, 79A, as follows: 'Premium rates of pay for Saturday afternoons 79A. (1) The regulations may amend any award made under the Industrial Arbitration Act 1940 (whether or not published) which fixes the rates of pay of employees in shops by the substitution of the rate of time and a half for any other rate of pay specified in the award for ordinary hours worked by any such employees on a Saturday after 12 noon.' (2) The regulations made under subsection (1) may also provide for the amendment of any award referred to in that subsection so far as to apply the rate of time and a half to hours worked by casual employees in shops on Saturdays after 12 noon and for the omission of provision in the award for any loading in relation to those hours.' In short, the penalty rate determinations made by Mr Justice Macken on 23 July 1984, which were overturned by a Full Bench of the Industrial Commission of NSW in Court Session on 16 August 1985, were reinstated by direct legislative action by the Wran Government in November 1985. Since then, to my knowledge, there has been no real outcry against this legislative action, not even by the State Opposition.
The foregoing description of developments in relation to retail industry award conditions in NSW demonstrates very clearly that the arbitral authorities know that higher labour costs operate to reduce capacity to employ that labour. Individual members of the Industrial Commission of NSW seem to have different views about how that relationship should be exploited to secure a variety of employment objectives. Mr Justice Macken's proposals in Chapter 9 of his 1983 Report are directed quite deliberately at promoting fewer (or no) job opportunities for younger, casual and even part-time employees, if that will produce some increase---however small---in full time adult employment. The 16 August 1985 Full Bench judgement seems somewhat more concerned with aggregate employment, and appears to reflect an unwillingness to accept the priorities explicitly adopted by Mr Justice Macken. The Wran Government's preferences---as revealed by its 1985 legislation on Saturday afternoon penalties - seem to be closer to those of Mr Justice Macken than to those of Justices Fisher, Sweeney and Watson. For a Government whose declared priority is 'jobs, jobs, jobs', such preferences are puzzling, to say the least. The nature of the retail industry makes these preferences particularly difficult to understand. As pointed out by Mr Roy Lawrence, Executive Director of RTA, in an affidavit before the Full Bench of the Industrial Commission on 22 March 1985:
In short, the retail industry is well suited to provide job opportunities, particularly part-time and casual jobs for the younger and less skilled members of the workforce. Why try to change its employment characteristics, given the pattern of unemployment in Australia? The views of another authority on unemployment, especially youth unemployment are worth noting. As Clyde Cameron, former Minister for Labor in the Whitlam Government, observed in his book Union in Crisis: 'We have not helped the young by demanding that they not be employed unless paid excessive wages. We have priced them out of the labour market and we deserve no thanks for that.' It is hard to avoid the conclusion that the gratitude, or otherwise, of unemployed youth (and other categories of labour) is a matter of indifference to the key decision makers in the industrial relations arena in NSW. The ranking of the Industrial Commission, the State Governments and the unions in the industrial relations pecking order provides a plausible explanation for this situation. The Wran Government has thus proposed a restructuring of the Industrial Commission of NSW. Apparently the intent of the proposal is to produce a more informal arbitral system, with dispute processing in a less legalistic atmosphere by a system of (newly appointed) arbitrators. The Labour Council of NSW has been pressing for such changes for some time. Employers have opposed them because of concerns that the arbitrators appointed by the Government might be more amenable to union objectives. The details of the proposal have not yet been worked out. Nevertheless, in the light of the retail industry award developments reviewed in this paper, it is perhaps a little easier to read between the lines (where that is necessary) of Mr Wran's speech to the Labor Council of NSW. The Industrial Commission of NSW occupies a subservient position in the industrial relations pecking order. Respect for the Commission, and its impartiality and credibility, seem open to question, or at least under threat. In the light of the legislative reaction to the Full Bench judgement of 16 August 1985, modesty (in the sense suggested by H R Nicholls) would seem to be a necessary attribute for Commission members in NSW.
There is a further development in this story that bears reporting. On Wednesday 23 April 1986, the NSW Government introduced in State Parliament the Industrial Arbitration (Further Amendment) Bill, 1986. On 24 April 1986 the Bill was passed by the Lower House along Party lines. The object of the Bill, outlined in the explanatory note at the start, is to amend the Industrial Arbitration Act 1940- (a) to limit the duration and provide for the review of exemptions in respect of awards granted to employers under Section 87 or 88 of that Act; (b) to provide that decisions of the Retail Trade Industrial Tribunal are not to be the subject of any appeal or review, and (c) to make express provision for the making of reports by the Tribunal on matters referred to it by the Minister. Schedule 2 of the Bill relates to amendments concerning the Retail Trade Industrial Tribunal. It provides for the replacement of Section 38T (2) and (3) by the following: (2) An order, award, ruling or decision made by the Tribunal in the course of exercising the jurisdiction or powers referred to in subsection (1) shall, for the purposes of this Act, be deemed to be an order, award, ruling or decision of the Commission in court session. (3) Notwithstanding anything in this Act, no appeal lies to the Commission from any order, award, ruling or decision of the Tribunal. In short, the Retail Trade Industrial Tribunal---at present M;r Justice Macken---has been made appeal-proof by law. One can only wonder why this extraordinary amendment was introduced. Why is this provision applicable only in respect of the retail industry, while the right of appeal is presumably maintained in respect of other industries? Is this an attempt to ensure enshrinement in awards of a particular view about the desirability (or, more accurately, the asserted undesirability) of casual employment in the retail industry, regardless of its youth employment consequences and in the face of the more sensible views of the Commission in Session? Is it a device for allowing the relevant unions to seek to overturn all of the decisions of the NSW Industrial Commission handed down on 16 August 1985?
Terms of Reference Reference by the Minister for Industrial Relations Pursuant to Section 35 (1) (o) of the Industrial Arbitration Act, 1940, the Minister for Industrial Relations hereby refers to the Industrial Commission of New South Wales the following matters, namely, (a) Whether the opening and closing hours of shops (other than small shops), as defined in the Factories, Shops and Industries Act, 1962, are appropriate having regard to the reasonable requirements of persons who purchase goods, the interests of persons engaged in the business of the retail sale of goods (including proprietors of small shops), the employees engaged in such retail sale and the public interest, and if not what opening and closing hours would be appropriate. (b) Whether in the event of any change in the trading hours of retail shops an alteration should be made in the spread of working hours, the shape of the working week, or other condition of employment of employees, and if so, the nature of such changes. (c) Whether any extension of trading hours generally would have an adverse effect on small shops and the persons employed therein. (d) Whether extended trading hours on the two Saturday afternoons immediately prior to Christmas 1982 would have any adverse or prejudicial effect on- (i) the interests of the persons engaged in the retail sale of goods or the employees engaged in such retail sale; (ii) the outcome of the inquiry required by paragraphs (a) to (c) hereof.
Recommendations As To Trading Hours 11.1 It is recommended that the trading hours in general shops in New South Wales be extended so as to allow trading on one additional night of each week, other than Thursday night, to 9 p.m. Such additional trading night to be selected by the shop-keepers. 11.2 It is recommended that the closing time for general shops on Saturdays be extended to 4 p.m. 11.3 It is recommended that butcher shops be allowed to remain open on a Thursday night to 9 p.m. but that extended trading provisions otherwise applicable to general shops between Monday and Friday or on Saturday morning should be deferred until such time as the parties indicate that there is a sufficient supply of qualified labour to enable butcher shops to open during the same period as general shops. 11.4 That the Factories, Shops and Industries Act, the Regulations made thereunder and the Schedules to the Act and Regulations pursuant to which shops are described and classified for purposes of extended trading should be repealed and replaced with a single system of regulation pursuant to which shops are gazetted to be of a class or otherwise to be allowed to trade during extended periods, such gazettal being dependent upon the issuing by the Under Secretary of a certificate defining the shop as one permitted to trade during extended periods either generally or for particular periods and which is so permitted to trade only during the currency of such a certificate which may be withdrawn by the Under Secretary if such a shop should, in his opinion, cease to be of the class or to have complied with conditions precedent to the issuing of the certificate to trade. Should an appeal be instituted against refusal by the Under Secretary to issue such certificate it should be made clear that pending the hearing of such an appeal, such shop or class of shops cannot trade during extended trading periods. 11.5 It is recommended that the Act and Regulations be amended so that the Minister may refer to the Industrial Commission of New South Wales an application for an extended trading classification and that the Commission be empowered to issue a Report to the Minister recommending or otherwise the granting of such a certificate either absolutely or on conditions and that the discretion to so recommend would be governed by the criteria of the public interest which would involve a consideration of the consequences upon other traders of extended trading of an applicant, the consequences on employees or potential employees and the number of fulltime jobs which would be provided should such a certificate to trade be issued. 11.6 It is recommended that prosecutions for breach of trading hours should be able to be initiated by a union, or unions, by the Minister, by the Retail Traders' Association or other registered union of employers in the industry or by any person or corporation whose trading interests are affected. It is further recommended that fines for breaches of trading hours should be increased so that a fine not exceeding $10,000 may be levied for any third or subsequent offence and that where an employer has been fined on three occasions the Industrial Commission of New South Wales may issue an injunction against any person apparently in charge of premises which have been trading illegally, or any employee or person working upon such premises in the illegal sale of goods against continuing to breach the Act or Regulations. That such fines and injunction process should also be available to prohibit the advertising of shops trading in breach of trading hour legislation or those responsible for such advertisements being publicised. It is further recommended that where breaches of trading hours continue in defiance of the law that the certificate to trade as a shop should be cancelled by the Under Secretary on the application of any person interested. It is further recommended that applications for registration as a small shop or otherwise for exempt status should be publicised and be available to unions and employers in the industry to enable an objection to such application where the applicant is, in the opinion of the party to the industry, not a genuine application. 11.7 It is recommended that the present restrictions on extended trading in holiday and tourist resort areas should be lifted and that shops in holiday resort areas should be allowed to trade during extended trading periods during all such times of the year as tourist demand so requires or suggests that they should remain open. It is further recommended that the current definition of Tweed Heads be redefined so as to expand the trading area south by reference to the Tweed River at the point of Barney's Point Bridge, and thus make uniform trading hours within the town. More appropriately perhaps the Tweed Heads area should be redefined as a holiday resort area and shops be permitted to trade during extended trading periods by reference to such gazettal. 11.8 It is recommended that the definition of 'small shops' in the Act should be simplified and expanded so as to allow for the employment of not more than four (4) fulltime employees together with such part-time relief as is necessary to make such employment effective. 11.9 It is recommended that in the event of applications being made for exempt status or for certification as a shop entitled to trade during extended trading periods on weekdays or on weekends, the processing of such applications should be done in such a way so that retailers who complied with the trading laws during the course of this Inquiry would be afforded preferential treatment over traders who persisted in trading illegally during that period. Recommendations As To Working Hours, The Working Week Or Conditions Of Employment 11.10 That the question that the spread of working hours the standard of working hours, the shape of the working week and other conditions of employment of employees engaged in the retail industry should be referred to the Industrial Commission of New South Wales pursuant to Section 35 (1) (o) of the Industrial Arbitration Act, 1940.
11.11 It is recommended that in addition to the expansion In the size of the staff eligible to be employed in a 'small shop' as outlined above, the definition of a 'small shop' should be amended so that an abuse of the provision by which a single emporium can be notionally divided into separate departments and called 'small shops' is prevented. In this regard the South Australian legislation appears to provide an effective model. It is also recommended that the powers of the Under Secretary be enlarged so that the issuing of a certificate to trade as a 'small shop' and its withdrawal should be the determinant of the right to trade as such and that where no certificate is in force, the automatic classification should be that of a general shop.
11.12 It is recommended that with respect to Christmas trading in 1983 that apart from any extension to trading hours envisaged and applied at that time otherwise as a result of this Report, all shops should be authorised to trade on the three Saturday afternoons before Christmas excluding the afternoon of Christmas Eve. Thus, if the Recommendation is accepted, all-day Saturday trading would be permitted on r, t and t December, 1983.
Statement by NSW Minister for Industrial Relations and Technology, Mr Pat Hills Tuesday, October 25, 1983.
Retail Trading Hours Cabinet today accepted the recommendations of Mr Justice Macken on the New South Wales retail trading industry. Legislation to effect the recommendations will be introduced in the current session of the NSW Parliament. But regulations will be brought down immediately allowing afternoon trading on the three Saturdays before Christmas this year---December 3, 10 and 17. General shops will be allowed to remain open until 4 p.m. on Saturdays under the amending legislation and until 9 p.m. on a second night during the week, in addition to Thursdays Shopkeepers will be allowed to choose for themselves which extra night they will trade. The amendments will guarantee the rights of people who wish to remain permanent full-time employees in the Industry and who wish to continue to work their existing hours Any disputes arising in the industry over this will be determined by a special tribunal to be called the Retail Trades Industrial Tribunal. The Tribunal will consist of a Judge of the Industrial Commission as chairman, a conciliation Commissioner as deputy to act in the absence of the judge, and two part-time members who will act as assessors---one representing shopkeepers and the other representing employees. The Government will appear before the Tribunal and seek the deferment of the abolition of the under 18 wage rate until January 1, 1986. This two year period will provide time for investigations of a system in which the Industry can hire and train junior employees, and establish the proportion of these juniors to adults. The Tribunal will also consider applications for awards or variations in award conditions of employees in the industry. It will make recommendations to the Minister on extended trading certificates for shops, after considering the effects on other shops, employees and the creation of full-time jobs. The definition of 'small shops' will be tightened to prevent abuse of the law by which a single emporium can be notionally divided into separate departments which are then called small shops, and therefore, exempt from the trading hours provisions of the Act. Small shops will be allowed to have no more than four full-time employees---instead of the present two---plus part-time employees where necessary. Applications for small shop status will have to be publicised and made available to unions and employers. This will enable objections if, in the opinion of any party to the industry, an application is not genuine. The policing problems of the Act are to be tightened. Fines for breaches of trading hours will be increased from the present maximum $1,000 for each offence no matter how many times it is repeated. In future, a maximum fine of $10,000 may be levied for any third or subsequent offence. Where a trader has been fined three times the Industrial Commission may issue an injection against any person who is apparently in charge. If breaches continue, the offending shop's certificate to trade may be cancelled altogether on the application of any person interested. The Macken Inquiry was exhaustive and thorough. Written submissions were received from employee and employer groups as well as individual traders. A broad section of shopkeepers, union representatives and employers was personally interviewed by the Judge. His valuable and comprehensive report was presented to the Government on Friday, October 7, 1983. His perceptions and reasoned analysis combined to make as complete an overview of the retail industry in this State as could be achieved. While not pressing for complete deregulation of the industry, Judge Macken's plan is a fair response to the conflicting interests represented in the industry.
His recommendations have received the support of the
Industry and trade unions and deserve the support of
the community. |
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