T1804
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
The United Fire Fighters, Tasmanian Branch (UFU) has sought to have its interest declared in the Officers of the State Fire Commission Award. Whilst the application was made on 12 January 1989, and at a time preceeding the issue of certificates of registration of organisations generally, that process has now been completed by the Registrar, and therefore this matter needs to be considered in accordance with the requirements of Section 65A and 63(10)(c) of the Act. And though the timing of events caused a deal of confusion as to how this matter should be processed, I am now satisfied that proper notification was given to all relevant parties, and full opportunity was afforded to every party who already has an interest in this award to be heard in relation to the present application. In his brief appearance in this matter Mr Jarman, appearing on behalf of the Minister for Public Administration and the Minister for Industrial Relations, indicated only that it is a general policy position of Government that it would be concerned if there was more than one union party to this award. The UFU makes its application on the basis that it has members covered by the award who wish to have their industrial interests furthered through that organisation. The UFU stressed that it did not make the present application for the purpose of gaining further membership within its organisation, and only wishes to represent uniformed officers of the State Fire Service whose functions and duties fall squarely within the eligibility rules of the UFU. Those are duties which are associated with the extinguishment, suppression and prevention of fires. Section .65A (4) and (5) of the Industrial Relations Act 1984 provides as follows: "(4) Before making a determination under subsection (3), a Commissioner shall give the applicant for the determination and the organisation having an interest in the award concerned an opportunity to be heard on the matter. (5) A Commissioner shall take into account such matters specified in section 63 (10) (c) as are relevant to the making of a determination by him under subsection (3)." And 63 (10) (c) provides that: "(c) that Commissioner shall determine which awards the organisation has an interest in by satisfying himself that (i) the membership of the organisation consists of or includes members who are employers or employees in the industry or occupation to which the awards stated in its application pursuant to subsection (1)(a)(vii) relate or who are State employees to whom those awards relate; (ii) that membership is consistent with the organisation's rules or constitution a copy of which has been lodged with the Registrar pursuant to subsection (1); and (iii) the organisation being granted an interest in an award or awards would not prejudice the orderly conduct of industrial relations in Tasmania". It is a matter of common ground that the UFU application complies with the requirements of Section 63(10)(c) (i) and (ii) above, but the Tasmanian Public Service Association (TPSA) have opposed the granting of the application on the basis of Section 63(10)(c) (iii), i.e. that to grant award interest to the UFU would prejudice the orderly conduct of industrial relations in Tasmania. The TPSA say it believes that by granting the UFU interest in this award the orderly conduct of industrial relations would be jeopardised to the extent that this would introduce unnecessary competition and conflict between unions in the work place, and that would be contrary to the August 1988 Wage Fixing Principles as they relate to the rationalisation of the respondency of awards. They also say that employees who are covered by this award can conveniently belong, and have conveniently belonged to the TPSA in the past, and that accordingly there exists no valid reason for extending award interest at this time. In my view matters of the kind presently before the Commission should be arbitrated upon only as a last resort, and every encouragement should be given to the parties concerned to resolve the question of award interest within the normal mechanisms of the trade union movement. However in this instance, even though such encouragement was provided, the end result is that the question can only be determined by arbitration. I make the observation that whilst each of the parties provided me with very fundamental reasons for their respective positions, very little supporting argument and no case reference material was provided to assist me in deciding such an important matter, despite the fact that full opportunity was extended to each party to do so. I turn now to that which was put to me. The Government's right to participate is a statutory one, but understandably a matter such as this concerning the rights of two unions, its appearance and participation was only cursory. To this extent I feel no need to unnecessarily dwell upon the broad concept it espoused of limiting the number of employee organisations with a formal interest in this particular award. Such a concept was not at issue; but only whether or not the UFU should be added as a "party or person bound" in the Officers of the State Fire Commission Award. The whole case put forward by the TPSA opposing the UFU claim occupies only two paragraphs, and because of its brevity may conveniently be quoted in full, i.e.: "Our position, quite simply, sir, is that we believe that by granting the UFU interest in this award the orderly conduct of industrial relations will be jeopardised to the extent that the granting of such interest will introduce unnecessary competition and conflict between unions in the work place and that will be contrary to the August 1988 wage fixing principles as they relate to the rationalisation of the respondency to awards. The employees who are covered by this award can conveniently belong and have conveniently belonged to the TPSA, and as such, we believe there's no valid reason for extending the award interest. That's all I have to say, sir. Thank you." In dealing with this matter it is pertinent to point out that the Act provides no list of statutory criteria which must be taken into consideration before deciding such an issue. Nor are there regulations containing supplementary provisions relating to Section 63(10)(c). And since the Commission's inception was only 1 January 1985, and full registration (as opposed to provisional registration), and consequential matters emanating therefrom, have not been at issue before this time, no precedents have yet been established. Thus only cases decided by other tribunals or courts can be called into aid, provided of course such cases rely upon similar legislative provisions as are contained in the Industrial Relations Act 1984. Reference was made by the TPSA to that part of the August 1988 National Wage Case Decision1 which made mention of "updating and/or rationalising the list of respondents to awards". That reference is to be found at page 11 of the print and forms one aspect of the Structural Efficiency principle. This Commission adopted the same principle in its Full Bench decision of 5 September 19882 and the wording is identical in both jurisdiction. However, I do not find that the quotation constitutes persuasive material in the context of this matter. The Structural Efficiency principle is concerned with ways in which increases in wages and salaries or improvement in conditions shall be justified, and provides, as follows: "STRUCTURAL EFFICIENCY Increases in wages and salaries or improvements in conditions allowable under the National Wage Case decision of 12 August 1988 shall be justified if the union(s) party to an award formally agree(s) to co-operate positively in a fundamental review of that award with a view to implementing measures to improve the efficiency of industry and provide workers with access to more varied, fulfilling and better paid jobs. The measures to be considered should include but not be limited to: · establishing skill-related career paths which provide an incentive for workers to continue to participate in skill formation; · eliminating impediments to multi-skilling and broadening the range of tasks which a worker may be required to perform; · creating appropriate relativities between different categories of workers within the award and at enterprise level; · ensuring that working patterns and arrangements enhance flexibility and the efficiency of the industry. · including properly fixed minimum rates for classifications in awards, related appropriately to one another, with any amounts in excess of these properly fixed minimum rates being- expressed as supplementary payments; · updating and/or rationalising the list of respondents to awards; (my underlining) · addressing any80 cases where award provisions discriminate against sections of the work-force." Whilst that principle undoubtedly carries with it commendable support for the philosophy of parties adopting measures to improve the efficiency of industry, I do not believe it can be applied in a negative way as seems would be the case in this instance if I was so persuaded by the TPSA. And in any case respondency to awards as such is a feature of Federal awards, and not awards of this State. In considering whether or not the granting of award interest to the UFU would prejudice the orderly conduct of industrial relations in Tasmania I have taken into consideration the assurance of that organisation that its objective is not to simply increase its membership. Rather its stated intention is to limit its objectives to representing the industrial interest of employees usually employed in or in connection with the prevention, suppression or extinguishment of fires. I also accept the converse situation that persons covered by the Officers of the State Fire Commission Award not so employed will not be treated by the UFU as necessarily having the same industrial interests. In this context industrial interest means the interests of the employees, and not the interests of any particular organisation. I believe there is justification in this instance for both the TPSA and the UFU to have an award interest and that failure to accede to the UFU application would effectively deny to certain employees of the State Fire Commission a reasonable right of choice without causing conflict in the industrial community. Whilst many employees in this area will undoubtedly wish to continue to align themselves with the larger TPSA organisation which represents the industrial interests of a wide variety of occupations, it is my judgement that others could reasonably wish to be separately represented because of their common vocation, involving as it does specialised training and technical qualifications. My views in this regard are consistent with the views expressed by Kelly C.J., Dumphy & Wright J.J. "In the matter of the Commonwealth 1901 1951 and of THE ASSOCIATION OF PROFESSIONAL Applicant and THE PROFESSIONAL OFFICERS Respondents *3 (Misc. Nos. 51 of 1950; For these reasons the application of the UFU is granted and the award will be varied accordingly. DATE OF EFFECT This variation shall have effect as from 13 September 1989. Order
A. Robinson 1 Print H4000
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