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T594

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

T.594 of 1986

IN THE MATTER OF AN APPLICATION BY THE FEDERATED LIQUOR AND ALLIED INDUSTRIES EMPLOYEES' UNION TO VARY THE HOTEL AND MOTEL KEEPERS AWARD

   
 

RE: ACCIDENT PAY

   

PRESIDENT

HOBART, 30 January 1987

   

REASONS FOR DECISION

   

APPEARANCES:

 
   

For the Federated Liquor and Allied Industries Employees' Union

- Mr N.J. Sherry

   

For the Tasmanian Confederation of Industries

- Mr W.J. Fitzgerald

   

DATE AND PLACE OF HEARING:

 

16.1.87 Hobart

 

This application by the Federated Liquor and Allied Industries Employees' Union sought variation of the Hotel and Motel Keepers Award in relation to Clause 9 - Accident Pay.

Mr. Sherry, who appeared for the FLAIEU, reminded the Commission that the state Hotel and Motel Keepers Award is, as near as possible, a mirror of the Federal Hotel and Motel Keepers Award. Some four years ago, when the state Hotel and Motel Keepers Award was created, subject to minor variations the provisions of the Federal award were adopted almost clause for clause in the local counterpart award.

He informed the Commission that the construction of Clause 9, "Accident Pay" had recently been drawn to his attention by the Department of Labour and Industry. It states, in part:

    "9. ACCIDENT PAY

    From the commencement of this award should an employee meet with an accident at his or her place of employment and is subject to and qualifies for compensation under the Workers' Compensation Act or Ordinance presently in force in the States and areas covered by this award, such employees shall have the amount received by way of compensation increased by the employer to the amount of the usual award weekly rate ruling at the time of such accident. The payment made by the employer shall be limited to a maximum period of 26 weeks."

Mr. Sherry stated that the reference in this clause to workers' compensation is an exact copy of the provision in the Federal Hotel and Retail Liquor Industry Award.

He submitted that in particular the provision - "The payment made by the employer shall be limited to a maximum period of 26 weeks" - was inaccurate in respect to the way the Workers' Compensation Act applies in Tasmania and there was concern that it could lead to confusion on the part of employees.

Mr. Sherry submitted that while it was unusual to have a provision in a state award relating to workers' compensation he did not think deletion of the clause from the award would cause any problems. However as there was such a prescription in the Federal award it was considered desirable that there also be reference to workers' compensation in this award. It was suggested therefore that the existing clause be deleted and replaced by the following:

    "All employees shall be covered by the provisions of the Tasmanian Workers' Compensation Act."

Mr. Fitzgerald, appearing on behalf of the Tasmanian Chamber of Industries, suggested that employees subject to the provisions of the Hotel and Motel Keepers Award would be covered by the provisions of the Workers' Compensation Act without the need for specific reference to that fact being included in the award.

He referred to the definition of "industrial matter" contained in Section 3(1) of the Industrial Relations Act 1984 - in particular sub-paragraph (e). This definition precludes the Commission from dealing with workers' compensation as an industrial matter.

Section 3 states, in part:

    "3 - (1) In this Act, unless the contrary intention appears:

    'industrial matter' means any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes

    but does not include a matter relating to -

    (e) compensation payable to employees in respect of injuries or diseases suffered in the course of their employment;"

Mr. Fitzgerald stated that, in the Chamber's opinion, the provisions relating to workers' compensation could be deleted from the award. However he left any decision in that regard to the discretion of the Commission.

While I can readily understand Mr. Sherry's desire to make the award as complete a document as possible in order that members are aware of their rights and obligations, the Commission cannot deal with non-justifiable matters.

The Workers' Compensation Act stands alone and like, say, the Long Service Leave Act, applies according to its terms quite independently of any award.

No member of the Commission can find jurisdiction by consent if the Act proscribes the subject matter.

Accordingly I have no option but to delete the provision and at the same time effect any consequent renumbering of the remaining clauses.

 

L.A. Koerbin
PRESIDENT