Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T2334 - 13 December

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T2877

Industrial Relations Act 1984
s.23 application for the making of a new award

Transport Workers' Union of Australia,
Tasmanian Branch

(T.2334 of 1990)

TRANSPORT WORKERS GENERAL AWARD

 

COMMISSIONER P A IMLACH

13 December 1990

Award - new award

REASONS FOR DECISION

This decision marks the final step in the processing of an application for a new award made under Section 23 of the Act by the Transport Workers' Union of Australia, Tasmanian Branch (the Union).

The title and scope of the new award were confirmed in a decision given on 8 August 1990 and interest in the Award was granted on 24 September 1990.(1)

At the last hearing, Mr B Hansch, who appeared for the Union, produced a further exhibit the purpose of which was to show those items in the proposed new award which were different from the prescriptions of the Carriers Award of this Commission which was used as the basis of the proposed new award.

The key changes were:

  • Certain definitions of classifications were removed because they did not directly relate to the occupation of driver.

  • In clause 10 - Annual Leave, the period of absence from work in 12 months on account of sickness or accident after which accrual of leave would cease was extended from 14 days to 91 days. Mr Hansch acknowledged this as an improvement on the Carriers Award provision, but he said the change brought the provision into line with many of the Commission's awards which have the same figure prescribed.

  • Also in the annual leave clause, subclause (n) has been varied in that whilst the meaning remains the same a number of superfluous words have been removed.

  • Clause 19 - Highest Function (known in most other awards as the mixed functions clause), was varied to provide for the higher rate to apply for the whole shift only after two hours or more worked continuously in the higher duties. In the Carriers Award the higher rate is prescribed to be paid for the whole shift immediately the higher duties are commenced.

    Mr Hansch pointed out that this provision (along with almost all of those changed) actually reduced the standards of the Carriers Award, but brought the new award into line with general standards across the board in the awards of the Commission.

  • In clause 20 - Holidays, payment for time worked on Good Friday and Christmas Day was reduced from treble time to double time and one half and the minimum payment for such work was reduced from four to three hours.

  • In clause 26 - Meal Times, where an employee has been notified of overtime work the day before, the meal allowance is not payable whereas it is in the Carriers Award.

  • In clause 28 - Overtime (call back), the minimum payment has been reduced from four to three hours.

  • In clause 29 - Payment of Wages, wages which are required to be paid weekly in the Carriers Award were permitted to be paid fortnightly by agreement and additionally payment by electronic funds transfer was permitted at the employer's discretion. Further in that same clause, the time permitted to elapse before wages must be paid after the expiry of the pay week was increased from two days in the Carriers Award to four days in the proposed new award.

  • In clause 33 - Sick Leave, an employee was required to notify his or her non-attendance within one hour of the normal starting time whereas in the Carriers Award an employee is only required to notify the absence within 24 hours of the commencement.

Mr Hansch said that the proposed new award had been restructured somewhat by comparison with the Carriers Award. He produced another exhibit to show the range of standards for various conditions in those awards of the Commission which presently provide for driver's classification - there were eighteen of them. He pointed out that the general standard across those awards were the ones sought for the proposed new award. By comparison in most items, he said, the Carriers Award prescribed better conditions.

Mr K. Brotherson, who appeared for the Tasmanian Confederation of Industries (the Confederation) voiced a key factor of disagreement with the Union's proposals whilst acknowledging that many of the new conditions sought were less than similar provisions in the Carriers Award. He said "... really what we have is an occupational award which is designed to cover driving classifications in non-transport industries. We therefore believe that some recognition needs to be made of the industry of the employer and the relevant conditions which apply to those particular employers."(2)

Mr Brotherson went on to develop the Confederation's argument that, like the Transport Workers (Mixed Industries) Award of the Australian Industrial Relations Commission (the AIRC), the proposed new award, apart from providing transport workers' pay rates, should only provide those conditions peculiar to the nature of transport work or to transport workers.

An excerpt from the AIRC Transport Workers (Mixed Industries) Award was produced as an exhibit(3) showing the clause in that award, termed a "majority clause", which required the transport workers in a non-transport industry to be covered by the award conditions applying to the majority of the workers in that industry save only those conditions specified in the Transport Award which were few in number by comparison.

Mr Brotherson produced a further exhibit which was a proposed "majority clause" for insertion in the claimed new award and aimed at "knocking out" most of the standard type clauses claimed for the new award, for example, annual leave, sick leave and public holidays.(4) On behalf of the Confederation Mr Brotherson said he had no difficulty with the extension of time to 91 days (from 14 days) before the accrual of annual leave ceased. He confirmed that the employers would get more flexibility from most of the other variations sought by the Union and therefore he saw no conflict with the First Award Principle.

Mr Brotherson repeated his conviction that the majority clause was essential in the new award.

It seems to me that the key factor in considering his application is the majority clause sought by the Confederation. Had that not been involved there probably would have been almost total agreement between the parties. There being disagreement a major effect of the new award is in the balance.

I consider the one item which tips the balance decisively is the fact that an occupational award has been accepted in this jurisdiction by the declaration made by the President on 5 June 1990. That declaration having been made all parties ought to have accepted that the likely end result would be an occupation award running alongside other industry awards of the Commission. More to the point, the Act itself, at Section 33, specifically provides for industry and occupational awards equally to be made. These last two points run against the majority clause proposition of the Confederation which itself is not the complete answer because if it were to be adopted there would still be special matters prescribed in the new award, for transport workers, which would require the employer to look from one award to the other. Whilst it may be against present trends the concept of an occupational award is not intrinsically wrong industrially, the Act provides for such, a declaration has been made and the Union, which really has the prior interest in that the award is specifically made for drivers, seeks a complete award.

The AIRC majority clause quoted by the Confederation, whilst noteworthy, is not a precedent. As far as I can discern the Australian Industrial Relations Act 1988 makes no reference to the type of awards which may be made whereas the Tasmanian Act clearly envisages the two types in this jurisdiction.

Mr Hansch, in one of his submissions, quoted the case of an electrician who might be covered by a separate appropriate award and employed and paid by an employer in an industry where the biggest number of employees are covered by a completely different award. No doubt, in AIRC awards, in many single industries, many others beside electricians, are covered and paid by separate awards. However, in this Commission's jurisdiction, there is already existing just such an occupational type award as is sought by the Union in this case; I refer to the Miscellaneous Workers Award which is an occupational award, contains a full range of conditions and covers workers in single industries who, in many cases, would be members of a small group amongst a much larger group covered by a separate, industry award of this Commission: that is a precedent. There is no majority clause in that award.

I do not accept the need for a majority clause in the new award.

Apart from the major area of disagreement the Confederation has indicated its acceptance of the proposed new award's provisions.

I endorse the proposed new award as set out in exhibit H5.

Because this is a new award and such an important one it should be well scrutinized against the current Wage Guidelines. The parties both submitted that the proposed new award did not offend the Guidelines.

I believe the real test in the words of the First Awards Principle is "prima facie the main consideration is the existing rates and conditions". The Union in prosecuting this case used the Carriers Award as the basis for the proposed new award and I confirm that as appropriate and not inconsistent with the Guidelines.

As Mr Hansch pointed out nearly all the changes that were made in the proposed new award actually reduced the particular conditions taken from the Carriers Award: in that context the one improved condition, the extended period before annual leave accrual ceases, is well counterbalanced.

During the hearing on a number of occasions reference was made from both sides to the method by which employees will become subject to the proposed new award. In particular the Confederation warned that the Union should not be expecting automatic agreement to the removal of driving classifications already existing in a number of awards of the Commission. In this context it should be remembered that the Scope clause of the proposed new Award, by agreement, provides in general for all drivers to be covered who "... are not covered by other Awards of this Commission".

In fact, Mr Brotherson said that if the Union adopted the attitude it had in a couple of recent matters, in particular the Retail Trades Award second stage structural efficiency negotiations and settlement, very little agreement would be forthcoming from the Confederation in the foreseeable future.

I confirm that, so far as the Commission is concerned, driving classifications should only be deleted from other awards of the Commission by agreement between the parties. On the other hand if agreement is being unreasonably withheld the matter should be referred to the Commission through the normal processes. I also confirm that, whilst no one should be expecting a headlong rush of deletions from other awards as already indicated, I would expect that this award having been properly made, most driving classifications, in the long term, will be removed from other awards of this Commission.

An order for the new complete award, reflecting this decision, is attached operative from 13 December 1990.

 

P A Imlach
COMMISSIONER

Appearances:
B Hansch for the Transport Workers' Union of Australia, Tasmanian Branch.
K Brotherson for the Tasmanian Confederation of Industries.

Date and place of hearing:
1990.
Hobart:
October 26;
November 12

1 T.2677 of 1990
2 p.31 of transcript
3 Exhibit B1
4 Exhibit B2