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TP1/19, 21, 22, 30

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

TP.1/19,21,22,30 IN THE MATTER OF OBJECTIONS BY THE AMALGAMATED METAL WORKERS' UNION TO THE GRANTING OF AWARD INTEREST TO THE AUSTRALASIAN SOCIETY OF ENGINEERS, TASMANIAN BRANCH
   
  RE: CEMENT MAKERS AWARD, EMU BAY RAILWAY AWARD, FERRO ALLOYS AWARD, MARINE BOARDS AWARD
   
ACTING PRESIDENT HOBART, 15 March 1990
   

REASONS FOR DECISION

   
APPEARANCES:  
   
For the Amalgamated Metal 
Workers Union
- Mr G D Adams
   
   
DATE AND PLACE OF HEARING:
   
14 March 1990           Hobart  
   

These four matters are a reference by the Registrar and concern applications pursuant to Section 63(10) of the Industrial Relations Act 1984.

In each instance the Amalgamated Metal Workers' Union (AMWU) have objected to the claimed award interest of the Australasian Society of Engineers, Tasmanian Branch (ASE).

The matters were joined and heard together.

At the commencement of the hearing it was noted that the ASE was not in attendance and having then checked the file and been satisfied that the organisation concerned had been properly notified in accordance with the requirements of the Act, the matters were heard ex parte.

The AMWU advised that certain discussions had been held earlier with the ASE in relation to each of these matters.

Objections of the AMWU in relation to the Cement Makers Award, the Ferro Alloys Award, and the Marine Boards Award were based upon the fact that:

1. the ASE does not have members who are employed under the terms of the three (3) awards and

2. the ASE was not represented on the three industrial boards which covered such industries prior to the establishment of the present Commission on 1 January, 1985.

Section 63(10)(c) of the Act states, inter alia:

"(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;"

On the evidence before the Commission the criteria in relation to membership specified in Section 63(10)(c) of the Act has not been met, and since this is one of the essential requirements to be met I hereby determine that the objection of the AMWU to the ASE having interest in the Cement Makers Award; the Ferro Alloys Award and the Marine Boards Award is upheld, and no such interest exists.

In relation to the remaining award, i.e. the Emu Bay Railway award, the AMWU seriously questioned that the ASE does in fact have even one member. It was not in a position to testify that the ASE has no members employed under the terms of that award, but on the balance of probabilities, very much doubts if it has.

The only other ground raised was non membership of the Emu Bay Railway Industrial Board, prior to 1 January 1985. The second ground of objection does not in my view of itself properly constitute one of the three grounds for objection stipulated under the Act. Rather such a circumstance related more to provisional registration, which no longer applies. I am therefore not prepared to uphold the objection on this point.

As already indicated however, Section 63(10)(c)(i) requires that, inter alia, membership must exist.

Whilst the onus properly exists on the AMWU to prove its case, it would be unrealistic to impose an unreasonable burden of proof in a matter such as the present one.

The AMWU has responsibly qualified its assertion that the ASE has no membership employed in this particular area and the ASE has not chosen to defend such an assertion when given the opportunity to do so.

On the balance of probabilities I conclude that the ASE does not meet the requirements of Section 63(10)(c)(i) of the Act, and accordingly I uphold the objection.

It therefore follows that the ASE does not have an award interest in the Emu Bay Railway Award. However leave is reserved for the ASE to make application in the future if it can establish grounds to justify award interest at a later time.

A copy of this determination is now referred back to the Registrar pursuant to Section 63(12) of the Act.

 

A Robinson
ACTING PRESIDENT