IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

On 21 May 1986 I received advice from Mr Commissioner Watling regarding an application made to him on 19 May 1986 that the matter then before the Commission be referred by me to a Full Bench.

Having perused the transcript of those proceedings, I have formed an opinion that:

1. The preliminary point raised by the Tasmanian Chamber of Industries regarding an application awaiting my attention, while not put in argument for a reference was, to my mind, ill considered.

2. Advance notice of the likelihood of an appeal that was given gratuitously by the MBA was, it seems to me, equally unfortunate, if not bordering on contempt of the Commission as then constituted.

I say now that neither items 1 nor 2 have had any bearing on my decision whether or not a Full Bench should be appointed.

3. The question of the extent to which the Building Trades Award has applied and applies now in this State, having regard for the incidence of Federal award coverage and the status of certain Federal awards following recent enactments of Commonwealth legislation is, in my opinion, a matter of substance in need of clarification.

4. Arising out of item 3 must inevitably be the question whether or not any dispute on any building site in this State prima facie now falls within the jurisdiction of this Commission? And if so, whether or not industrial disputes about industrial matters, including money claims, could be the subject of proceedings pursuant to Sections 29 or 30 of the Act. But more importantly, to what extent would sub-sections (1), (2), (3) and (4) of Section 31 apply in cases where -

(a) the Building Trades Award applied generally throughout the State; or

(b) applied in part only?

5. The question raised on behalf of the Minister for Industrial Relations regarding appropriate award coverage (if any) for State employees who were, or are, subject to the provisions of a Federal award or Federal awards affected by recent Commonwealth legislation, is a matter of some importance. Among other things, it again appears to beg the question (albeit in a different form) of the application of private industry awards to State employees. That question has also been raised before another Full Bench of this Commission. In passing I note the employer of those State employees was not represented at the hearing.

6. The matter of alleged nexus with a Federal award having been mentioned by representatives of employers and employees, raises in my mind serious questions whether such considerations may be entertained at all under the Principles - except in those rare and isolated cases which must come before an Anomalies Conference.

7. Alleged industrial misconduct may very well result in proceedings sooner or later coming before a Full Bench. But in this case it seems to me it would be difficult to deal with this question until items 3, 4 and 5 have been clarified.

On balance I consider items 3, 4, 5 and 6 to be matters of sufficient public importance upon which the experience and judgment of a Full Bench should be brought to bear. To the extent it appears to me that those matters will become issues to be considered in determination of Matter T398 of 1986, I will convene a Full Bench as requested. The presiding member will be Mr Commissioner Watling, who will be joined by Commissioners Gozzi and King.

L A Koerbin
PRESIDENT