IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This is my final decision on application T No 282 of 1985 made by the Tasmanian Chamber of Industries, for the purpose of inserting a boiler attendant classification in the Vegetable Preservers Award.

At the hearing on Friday 13 December 1985, Mr D Grove, representing the Food Preservers Union of Australia (Tasmanian Branch) and Mr J T Lynch, representing the Federated Engine Drivers and Firemens' Association (Tasmania Branch), requested that this matter be adjourned because:-

a) There were many companies in the Vegetable Preserving Industry who employed boiler attendants and were respondents to the Federal Engine Drivers and Firemens' Award;

b) That the FED&FA has served a log of claims on a number of companies affected by this application;

c) It was the FED&FA's expressed and clear intention to serve more widely, and in fact "cover the field if possible".

d) The FED&FA had a strong interest in having people in this industry covered by a Federal award;

e) There was a live "roping in" dispute (C 3038 of 1983) and that has been activated from time to time to rope employees in throughout the nation; and

f) If the award was varied in the manner sought, it may bring on demarcation disputes and there would be no right of representation by the FED&FA of boiler attendants as it was not a party to the Vegetable Preservers Award.

This application for an adjournment was opposed by Mr T Edwards of the Tasmanian Chamber of Industries. However, I adjourned the matter and advised the parties that the hearing would be reconvened on Monday 6 January 1986, at which time I would hear argument for and against the application.

At that time, I pointed out to Mr Lynch, representing the FED&FA that the adjournment would enable him time to answer some of the questions I had put to him during the course of his submissions.

The main questions to which I referred were:-

1) How far had the Union gone in serving the companies in this industry?

2) How many people in this industry were covered by an existing Federal award?

The hearing resumed on the 6 January 1986 with Mr T Ryan, representing the Food Preservers Union of Australia (Tas Branch) and Mr D Holden, representing the Federated Engine Drivers and Firemens Association (Tasmania Branch) and Mr T Edwards, representing the Tasmanian Chamber of Industries.

The Claim

The Tasmanian Chamber of Industries' application sought to introduce a new classification of boiler attendant into the Vegetable Preservers Award, with a wage rate of $259.60 per week and conditions of employment the same as those prescribed in the Food Preservers Award 1973 and operative from the 3 November 1985.

Mr Edwards said:-

"Our application seeks to regulate the employment of boiler attendants, in the Food Preserving Industry in Tasmania, that are not already catered for by an appropriate State or Federal award."

The main reasons for the application were:-

1) That the award-free status previously existing for these employees is undesirable in view of the existence of the Wage Fixation Principles;

2) That arguably any employee whose employment is not regulated by an award of either the State or Federal Commission could be considered to not be bound by the provisions of the Wage Fixation Principles;

3) An award-free situation is of itself an undesirable proposition as there is no regulatory framework upon which a suitable employment contract can be built;

4) That employers have traditionally utilised the Vegetable Preservers Award giving the very significant advantage of a common set of conditions of employment to virtually all employees in a particular work place;

5) It will provide an identical set of conditions as those applying to the vast bulk of employees employed in the Food Preserving Industry in this State.

The fact that some companies were award-free was recognised by Mr Holden when he said:-

"The situation is that boiler attendants employed by the companies who Mr Edwards seeks to cover by this award, have operated for some considerable time, award-free."

However, Mr Holden said that the employers' application seeks to cut across, in some instances, an application made by the FED&FA for Federal award coverage.

Wage Fixation Principles

Mr Edwards said the claim should be considered in the light of the Principles, and in particular, Principle 10(b) which states, inter alia:-

"In the extension of an existing award to new work or to award-free work, the rates applicable to such work will be assessed by reference to the value of work already covered by the award."

He said it was the Chamber's view that the amount claimed did not contravene the Principles and submitted the following:-

"Our assessment of the value of the work of a boiler attendant in this industry is that it would not equate with the function performed by employees classified within group 1 of the Food Preservers Award 1973; But in our view, should be valued more highly than that performed by employees classified in group 2 of that particular award.

The wage rate we seek is $259.60, whereas group 1 of the Food Preservers Award shows a wage rate of $262.20 and group 2 is $257.90. You will of course understand, sir, that those Food Preservers Award wage rates are pre national wage, inasmuch as this award has not been varied to reflect the 3.8 per cent national wage increase.

Therefore, our claimed rate falls between those two classifications in the federal Food Preservers Award, which we say is a fair and equitable assessment of the value of the work of this category of employee.

It is an assessment that has been carried out over a period of years by the employers and the employees and has never been contested by any trade union. And thus we conclude that that is a fair and equitable assessment of the value of the work of these employees."

He also said the rates claimed meet the negligible cost criteria of the Principles in that it is no more than a reflection of the rates being paid.

The same applied to the conditions sought in the claim as they were currently being observed by employers in the industry in respect of the particular employees in question.

On the other hand, Mr Holden of the FED&FA had this to say on the appropriateness of the wage rates submitted by Mr Edwards:-

"However, if against all our arguments you intend to proceed and insert a provision in the award, we would most certainly be seeking to look at the question of wage rates and have inspections into the work currently performed."

Later in his submission, Mr Holden said:-

"If one looks at the general awards which cover boiler attendants on an industry-type basis rather than a specific company, there are five or six different references to boiler attendants. For example, boiler attendant (fireman), boiler attendant (fireman, first class), leading boiler attendant or fireman (first class), leading boiler attendant or fireman (second class), special class boiler attendant or fireman.

Also, in all awards covering boiler attendants, there is invariably a provision which is headed `In Charge of Plant'. There is no provision for such a provision in Mr Edwards' submission.

It may well be that there is no need, if he is only talking about one company, and there is no such work to be covered, then there will not be a need for it.

But, based on Mr Edwards' submission, I don't know whether he is talking about one company, six companies, a dozen companies with different types of work and which is why I said that if you are to overrule our submission and still go ahead and insert the classification claimed by the TCI, we would object to a rate of pay simply based on the evidence which has been put."

I believe some of the arguments presented by Mr Holden on the appropriateness of the amount claimed by the Tasmanian Chamber of Industries may have merit.

I am mindful of the fact that the Federated Engine Drivers and Firemens (General) Award 1968 contains a range of Boiler Attendant classifications, eg Boiler Attendant First Class, Leading Boiler Attendant, Special Class Boiler Attendant, Boiler Attendant Required to do Repairs, but to mention a few.

From the submission made by Mr Edwards it seems to me as though the rate of $259.60 per week claimed by the Tasmanian Chamber of Industries is very close to the midway point between the rates applicable for Group 1 and Group 2 employees prescribed in the Federal Food Preservers Award.

I am not yet convinced that the rate sought by the Tasmanian Chamber of Industries is the correct rate and I suggest there may be a need for a fuller review at a later date.

Public Interest

Mr Edwards submitted that there was no bar to the Chamber's application arising from Section 36 of the Industrial Relations Act 1984 and contended that it was very much in the public interest that -

"this application be granted in the form in which it has been presented, in that it seeks to regulate by award prescription, those matters which have already been agreed in the field between the employers and their employees, in that they reflect the current wage rates and conditions of employment."

He went on to say that the public interest would not be served by a continuation of the award-free environment for those employees. Nor would it affect the economic position of this or any other industry and it would not have an effect on the economy of Tasmania.

Award-free Companies

Mr Ryan representing the Food Preservers Union of Australia called on the Commission not to accept submissions from the bar table that there were employees in this industry who were award-free. He said not one scrap of evidence was put to me to prove the assertion.

He further submitted:-

"But there no doubt would be plants around where we do not have members, who may fall within the scope of the State award.

However, without any evidence before you, you do not know whether those companies that are currently covered by the Federal Food Preservers Award are respondent to the Federal award of the FEDFA or the Metal Trades Industry Award ..."

Mr Edwards responded by saying:-

" ... I wish to firstly say that it is not my responsibility to list all employers that may be bound by this award should our application be successful. I make that comment because of the `industry nature' of the award with which we are dealing, (which is all embracing within its scope of industry) unless employers are covered by a Federal award which, of course, would take precedence over a State award, as covered by the Australian Constitution.

I, therefore, contend that I, in fact, really only have to prove that there is one such employer in this State that employs a boiler attendant and is not covered by either of the Federal awards."

Mr Edwards said that he had contacted two companies in this industry that were members of the TCI to ascertain:-

The companies which Mr Edwards contacted were Daffodil Food Products and Huon Canning Company, and he said both had indicated that:-

Mr Edwards said:-

"Therefore, I have no option but to conclude that they are award-free because there is no award which covers them."

Mr Ryan responded by saying that it was not evidence and that it was an assertion from the bar table.

He said:-

"My submission is there is no evidence before you Sir.

Mr Edwards, I suppose could well give evidence from the box, but it would not be direct evidence. He doesn't know. All he can say to you is that somebody told him that `A is A and not A is B'."

If one were to take Mr Ryan's submission to its logical conclusion, then a significant number of applications dealt with by the Commission, should, based on Mr Ryan's criteria, be rejected because submissions were made from the bar table.

This I am not prepared to accept.

I think it is appropriate at this point to recall the provisions of the Industrial Relations Act 1984 where it states, inter alia:-

"20(1) In the exercise of its jurisdiction under this Act, the Commission -

(a) act according to equity, good conscience, and the merits of the case without regard to technicalities of legal forms;

(b) shall do such things as appear to it to be right and proper for effecting conciliation between parties, for preventing and settling industrial disputes, and for settling claims by agreement between parties;

(c) is not bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and

(d) shall have regard to the public interest."

In all the circumstances I am prepared to accept Mr Edwards' submission.

Objection to Proceeding with the Application

Mr Holden, representing the FED&FA seemed to be reluctant, to say the least, to present submissions on this matter as it was only brought to his attention on Thursday 2 January 1986. He maintained -

a) That December the 13^th was a most inappropriate time of the year to hear any type of matter;

b) That it was an awkward position for an organisation to be put in as it was the run up to Christmas;

c) That it was generally considered to be part of annual leave in the union movement;

d) That the Federal Office of the FED&FA only recommenced work on the 6 January 1986;

e) That the FED&FA was in the process of moving office.

As I had requested answers to certain questions raised at the previous hearing on the 13 December 1985, the unions were offered an adjournment until 10.30 on the 7 January 1986. However, this was not suitable to them and, in any case, I am not too sure whether I would have received answers to my questions.

Eventually, Mr Holden agreed to proceed under protest and I had this to say at the time:-

"Mr Holden, all I can say is that the matter was adjourned on the last occasion so as to hear submissions on this occasion.

I am not too sure how many times the Commission has to adjourn hearings to enable people to prepare their submissions, or to gather their information.

It was adjourned in good faith last time to enable this homework to be done, and therefore I don't see any real reason for complaint about proceeding now.

The parties were fully informed that I intended to proceed today.

The Commission has other commitments as well, but nevertheless, I wish you to proceed."

Objections to the Claim

The main grounds for the Union's objection to the claim are summarised below:-

1.  The FEDF&A has an interest in having boiler attendants covered by the Federal Engine Drivers and Firemens' General Award 1968;

Whilst this might be the union's preferred position, nevertheless the Commission has a claim before it to insert a provision in this award, and therefore the application should not be rejected on this ground.

2.   There was a live "roping in" dispute (C 3038 of 1983) and that has been activated from time to time to rope employees in throughout the nation.

I have examined this submission and I fail to see where the two companies cited by Mr Edwards as being award-free for the purpose of this application have been either:-

(a) Served with a log of claims to rope them into the Federal Engine Drivers and Firemens' (General) Award 1968;

(b) Been made a respondent to that award.

I feel that Mr Lynch of the FED&FA accurately summed up the situation when he said:-

"Clements and Marshall, the company I am talking about, have been sought to become roped in some months ago.

How far the national office is down the track, I am not quite sure. As I say, the situation is unclear because of the Federal industrial officer being on leave."

Mr Edwards recognised that Clements and Marshall were the only company to his knowledge that had been served by the FED&FA.

I am therefore of the opinion that this is an insufficient reason to reject the application.

3.   That the FED&FA has served a log of claims on a number of companies affected by this application.

This was one of the questions to which I sought an answer on the first sitting day.

The unions were unable to assist me in establishing exactly how many companies in this industry had been served with a log of claims for the purpose of roping them into the Engine Drivers and Firemens' (General) Award. On the evidence available to me, it seems as though only one company in this industry has been served.

It must be said that even if a number of companies had been served, it does not necessarily restrict this Commission from dealing with this application. Indeed this Commission should not restrain itself from acting because some companies may have been served with a log of claims which may or may not lead to them being made a respondent to a Federal award sometime in the future.

Mr Grove, representing the Food Preservers Union of Australia, said on the first day of the hearing that the FED&FA had referred the matter to their Federal office with a view to having a log of claims served on those companies where they (the FED&FA) had membership in order to seek Federal award coverage.

I ask the question what happen to those companies in this industry where the FED&FA did not have membership? Do they remain award-free?

I do not believe this is a reasonable ground to reject the application.

4.   There were many companies in the Vegetable Preserving Industry who employed boiler attendants and were respondents to the Federal Engine Drivers and Firemens' Award.

It was Mr Holden's submission that the following companies were respondents to the Federal Engine Drivers and Firemens' General Award -

(a) Edgells, Devonport, Ulverstone, Scottsdale and McCains of Smithton.

Mr Holden stated:-

"Those four operations would employ without doubt the majority of people in the Food Preserving Industry in this State."

He went on -

"Mr Edwards has stated that the union has sought to rope in Clements and Marshall to this award.

Now, it is my submission that any other companies in this industry would only be small companies, and would only employ a few employees. Certainly a minority in respect of the industry in this State."

But later on in his submission, Mr Holden recognised that there may be other companies in the industry when he said:-

"I have a possible list of companies, Clements and Marshall, Franklin Evaporators, Huon Canning, Grove Fruit Juices, Daffodil Food Products, Blue Banner Pickles and MZ Processors, but how many of those people employed boiler attendants I am not familiar with."

Just because some companies are covered by a Federal award, I do not believe it is a valid reason to reject this application as it is quite obvious that a number of other companies are not covered by the Federated Engine Drivers and Firemens' (General) Award 1968.

5.   If the award was varied in the manner sought, it may bring on demarcation disputes.

This question was canvassed at some length.

From the submissions made by Mr Grove, it seems to me as though any potential demarcation disputes will not be between the FED&FA and the FPU, as he (Mr Grove) said:-

"Coverage of boiler attendants has not been a matter which has been in dispute between the FED&FA and the Food Preservers Union in any circumstances that I can recall, simply because the Food Preservers, long ago, has recognised the right of the FEDFA to represent those people and indeed in some circumstances has facilitated it."

He goes on:-

"Indeed, our position is that we would do whatever we could to facilitate coverage of the boiler attendants by the Federated Engine Drivers and Firemens' Association."

However, Mr Holden submitted:-

" ... if the classification is introduced into the State award, it should be borne in mind that provisional registration has been granted to an organisation to cover boiler attendants, (an organisation other than the FEDFA.) Therefore, if this classification is introduced into this award, there will be another union claiming the right to enrol boiler attendants."

The Union to which Mr Holden was referring is the Allied Engineering and Ironworkers' Association (Tasmanian Branch).

I tend to agree with the submission made by Mr Edwards on this matter which can be found on pages 77, 78 of the transcript, and in particular where he said:-

"I say that in that the Allied Engineering and Ironworkers Association constitution will contain the classification of boiler attendant until the provisional registration situation is finally resolved regardless of whether these companies are covered by State or Federal award. Therefore Mr Holden's submissions in relation to potential demarcation problems exist now."

If the Commission decided not to insert a classification for boiler attendants in this award, it would not stop the Allied Engineering and Ironworkers' Association (Tasmanian Branch) from seeking to enrol boiler attendants. Therefore, I am not prepared to reject the application on this ground.

6.   There would be no right to representation by the FED&FA of boiler attendants as the organisation was not a party to the Vegetable Preservers Award.

This particular objection was raised by Mr Grove when he advanced the proposition that it would be unfair to cover members of the FED&FA by this award without giving them representation.

This point was picked up by Mr Edwards during the hearing on the 6 January 1986, when he requested the Commission to include the FED&FA, along with the TCI and the TTLC, in the "Parties and Persons Bound" clause in the award when consolidating it in the new format adopted by the Commission. He tendered an exhibit (E2) to emphasise this point and concluded this part of his submission by stating:-

"This proposal, Sir, in my submission would obviate totally any semblance of merit that may have been seen in Mr Grove's submission on the 13 December."

If a boiler attendant classification is to be introduced into this award, and as the FED&FA has members in the industry and has constitutional coverage of boiler attendants, I see no bar to them being made a party to this award. This being the case, then the objection to the award variation on this ground is diminished.

7.   Introducing a boiler attendant classification into the State award will provide different conditions of employment between people who are expected to work together.

It must be remembered that the State Vegetable Preservers Award does not, in itself, contain wage rates for production employees in this industry. It does, however, contain limited conditions, but in the main the Sate award specifies that the wage rates and conditions of employment for production employees will be the same as those contained in the award known as the Food Preservers Award made by the Commonwealth conciliation and Arbitration Commission.

This being the case, the bulk of employees in the industry receive the wage rates and conditions of the Federal Food Preservers Award.

If a boiler attendant classification was placed in the State award and the conditions contained therein were adopted, then by reference to the Federal Food Preservers Award, boiler attendants would receive the same conditions as the bulk of the production employees in the establishment. It could be argued that it provides uniformity of conditions of employment in the establishments covered by the State award.

8.   The granting of the claim will lead to future 41(1)(d) arguments in the Federal Commission and significantly strengthen the arguments of the employer.

I do not accept this as a compelling reason to reject this application and I remind the parties as I did during the hearing that I am only prepared to make awards based on the facts and the arguments before me and not on the basis that any decision arising out of an application may be used as a Section 41(1)(d) argument in the Federal Commission.

9.   We (the unions) are of the view that employees in the industry do not want to be covered under a State award.

Mr Holden's submission on this ground as follows:-

"Because the majority of the employees are covered under the Federal award and the majority of employees, as we understand it, are quite reasonably happy, and that is based on visits by union officials to the various factories.

I would have visited Edgells at both Scottsdale, Ulverstone and Devonport three times in the three months preceding Christmas, and similarly with McCains, and there is certainly no problems at all with the Federal award coverage in respect of those plants. I have already said they are covered by far the overwhelming number of employed in the industry."

Mr Holden told the Commission earlier in his submission that Edgells at Scottsdale, Devonport and Ulverstone and McCains were covered by the Federal Engine Drivers and Firemens' General Award. That being the case, then those employees which Mr Holden bases this part of his submission would not be affected by this application. As I was given no indication of the feelings of employees in the industry other than those mentioned above, I am reluctant to accept this line of argument to reject the application.

CONCLUSION

I have arrived at the conclusion after examining the submissions presented by the parties that a Boiler Attendant classification should be placed in the Vegetable Preservers Award with conditions of employment the same as those prescribed for "employees other than Clerks" and I decide accordingly.

However, I am not prepared to accept, at this time, the amount of $259.60 per week sought by the Tasmanian Chamber of Industries as being the appropriate rate for this classification.

I believe that an amount of $245.30 per week should be inserted in the award as an interim rate.

This would give the parties an opportunity to present further submissions to the Commission (via a fresh application) and enable the Commission, along with the parties, to examine in greater depth, such things as whether or not there should be grades within the classification corresponding to the work required to be performed.

The rate I have chosen is equivalent to the rate currently prescribed for a Boiler Attendant (Fireman) First Class in the Engine Drivers and Firemans (General) Award 1968 (elsewhere base rate) plus 3.8% giving a rate of $245.30 per week, ie $236.30 plus $9.00 = $245.30.

Having decided to include a classification for Boiler Attendant in this award and as the FED&FA has members in the industry and has constitutional coverage for Boiler attendants, I believe the organisation should be made a party to this award and I decide accordingly.

The Commission also accepts the submission made by Mr Edwards when presenting Exhibit E2 that the Tasmanian Trades and Labor Council and the Tasmanian Chamber of Industries should be included in the "Parties and Persons Bound" clause.

Savings Provision

It is not my intention that any employee who is currently in receipt of Wages and Conditions of employment in excess of those described in this decision, be disadvantaged or suffer a diminution of remuneration through the making of this Award.

OPERATIVE DATE

As there was little or no compelling argument put to me on the operative date, I determine that it be from the first full pay period to commence on or after 21 January 1986.

The Order giving effect to this decision is attached.

R J Watling
COMMISSIONER

21 January 1986