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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Australian Workers' Union, Tasmania Branch Zinifex Rosebery (Mining) Award
Award variation - threshold matters - enterprise award - insertion of conditions contained in registered agreement - whether the Commission should refrain from further hearing the matter - whether the matter should be referred to the President - whether matter should be heard by a Full Bench - public interest REASONS FOR DECISION [1] On 9 March 2005, an application was lodged by The Australian Workers' Union, Tasmania Branch ("the AWU"), pursuant to s.23 of the Industrial Relations Act 1984 ("the Act"), to vary the Zinifex Rosebery (Mining) Award by inserting a new Division 2. [2] A hearing commenced at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, on Thursday 24 March 2005 at 11.00 am. [3] At the hearing Mr R Flanagan appeared on behalf of the AWU, Mr P Fraser appeared for the Communications, Electrical and Plumbing Union, Tasmanian Branch ("the CEPU"), Mr R West of counsel sought and was granted leave to appear on behalf of Zinifex Pty Ltd ("the company"), Mr M Watson appeared for the Tasmanian Chamber of Commerce and Industry ("the TCCI") and Mr W Fitzgerald appeared on behalf of the Australian Mines and Metals Association Incorporated ("AMMA"). BACKGROUND [4] The terms and conditions of employment of employees employed on the surface and underground at the Zinifex Rosebery plant are governed by the Pasminco Rosebery (Mining) Award ("the award"), an award made pursuant to s33 of the Act, and the Pasminco Rosebery Mine 2002 Agreement ("the agreement") made pursuant to s55 of the Act and registered in the Tasmanian Industrial Commission ("the Commission"). The agreement is to be read in conjunction with the award. Parties to the agreement are the AWU, the Automotive, Food, Metals and Engineering Printed and Kindred Industries Union ("the AMWU"), the CEPU, and the company, all of whom are also parties to the award, as are AMMA and the TCCI. [5] The agreement reached its nominal expiry date on 1 August 2004, although neither party has retired from it. Section 55 of the Act provides:
[6] For some months the parties have been negotiating with the stated intention of entering into a new agreement. [7] On 10 February 2005, in Matter No T11939, the AWU made application to the Commission for the hearing of a dispute, in the following terms:
[8] Applications in almost identical terms were made by the CEPU and the AMWU on 16 February 2005. [9] The "sticking point" was the differential treatment by the company of employees who had elected to avail themselves of individual offers made by the company, and those who had chosen to bargain collectively. The position of the parties was entrenched and attempts to settle the dispute through the conciliation process were unsuccessful. It was recorded on transcript on 9 March 2005 that further conciliation before the Commission was unlikely to be successful. The file remains open, with the option for either party to have the matter relisted at any time. [10] The AWU has now sought to have the terms and conditions of the expired agreement included in the award. The company has opposed the application. [11] Prior to the hearing, in correspondence dated 21 March 2005 Mr West, acting on behalf of the company, wrote to the Commission and foreshadowed two threshold matters.
[12] These two issues are the only matters dealt with in this decision, which does not go to the merits of the application. SUBMISSIONS Mr West for the Company [13] Mr West submitted that the Commission was able to dismiss or refrain from hearing a matter before dealing with the matter, citing as authority a decision of the High Court in Re The Australian Bank Employees' Union: ex parte Citicorp Australian Limited (1989) 167 CLR 513. [14] He said that there is a general discretion to do so contained in s21(2) of the Act, and that the words "at any stage of the proceedings" means even before hearing from the parties.
[15] Mr West advanced four grounds that, he said, supported his contention that the matter should not proceed in the public interest. The first was that it was inappropriate for expired agreements to be uplifted into awards. [16] He said that the legislative intent was clearly that an agreement has a period of operation and either party has the opportunity to get out of that agreement by retiring from it. For that reason, it would not be proper for the Commission to, by arbitration, place those agreement conditions in an award in order to prevent a party from retiring from the agreement. [17] The rights in relation to variation of awards are not the same as for agreements. The parties to an agreement are able to unilaterally retire from that agreement once it expires. To grant the application would make the agreement the property of the Commission, rather than of the parties. [18] The system of enterprise bargaining is encouraged in each of the states and federally. The general approach has been to arbitrate safety net awards that underpin enterprise bargaining. That is reflected at Principle 3 in the current Wage Fixing Principles of the Commission, which says:
[19] Principle 4 makes it clear that awards are safety nets that underpin workplace bargaining, consistent with what is set out in the preamble to the Act. The Commission's role is to arbitrate safety net standards and to actively encourage workplace bargaining. [20] He submitted that the award safety nets contemplated in the Wage Fixing Principles are not about entrenching people's actual wages and conditions but are about a fair, underpinning set of conditions leaving scope for bargaining. The notion of uplifting all of the terms in the current registered agreement and inserting them in the award in the name of up updating the safety net is inconsistent with the concept of a safety net. [21] In July 2000, in a review of the Wage Fixing Principles, in T8413 and 8483, the Full Bench said at page 47:
[22] Mr West said that where there was consent to uplift the terms of an expired agreement, that was a different matter. There are various ways in which agreements can be given legal effect, including consent awards. The issue is consent; it is whether or not the union can come to the Commission and have a result imposed that the company does not consent to. [23] The second ground is the existence of bargaining notices lodged in the Australian Industrial Relations Commission ("the AIRC") by the company, which, it was claimed, set in place a scheme under the Federal Act which is at odds with arbitration proceedings in this Commission. Section 170N of the Federal Act prohibits the AIRC from arbitrating during a bargaining period and reflects a public policy position under the Federal Act which resonates with the approach in this state - that bargaining ought to take place on the basis of minium safety net protections without the intrusion of arbitration. [24] The third ground is that the application is outside of the Wage Fixing Principles. The award is up to date and the union is now seeking to increase the wages from around $600 per week up to $98,000 per year and to introduce the concepts of annualised salaries, unlimited sick leave and the cashing in of annual leave. The agreement has a classification structure that differs from that in the award. This represents a departure from the concept of a safety net award. [25] The fourth ground is that there is an agreement that remains in operation. Neither the union nor the company has sought to retire from the agreement. If the Commission were to arbitrate the award in the manner sought then [the decision] would have no effect, because s60 of the Act says:
[26] The agreement deals with the same subject matter as the award so, whatever the Commission decides, it will have no legal effect because the agreement remains in place. If one party considered that they had a better deal as a result of the arbitration, then they might retire from the agreement, in which case the outcome would not be as a result of the Commission's arbitration, but as a result of the actions of the parties. That would be inappropriate and not in the public interest, Mr West said. [27] In the company's submission, in the public interest the Commission should refrain from dealing with the matter and dismiss it before it starts. However, if the Commission decided not to dismiss or refrain from further hearing the matter, then, in the alternative, the Commission should, pursuant to s.24 of Act, refer the matter to the President for the purpose of considering whether a Full Bench should deal with the matter. [28] He said that there are three ways in which the matter can be referred to the President. Section 24(4) provides:
[29] That can happen independent of the parties, at the initiative of the Commissioner, Mr West said. [30] The second way, he said, arises under s24(4A):
[31] That was the purpose of the letter sent to the Commission on 21 March 2005 (Exhibit R1), which had also put the other parties on notice. [32] Section (4C) provides:
[33] In Mr West's submission, s24(4C) requires the Commissioner to refer the matter to the President and there is no discretion not to do so. [34] The third way that the matter could be referred to the President was after the hearing had commenced, pursuant to s24(4D):
[35] Mr West contended that the qualifications set out in (4D) only relate to applications made after the commencement of the hearing. Once the case has opened it then becomes a matter for the Commissioner's discretion. In the present case the company had made a preliminary application before the commencement of the hearing therefore there was no discretion available and the Commission has an obligation to refer the matter to the President. Whether the President decides to refer the matter to a Full Bench or return it to the Commissioner was a matter for the President to decide, taking into account the matters set out in ss(4). [36] Mr West said that, whilst it is up to the President to decide whether the matter is referred to a Full Bench or sent back to the Commissioner, she needed to consider the arguments and as there was no opportunity for a hearing before the President he was setting out his arguments in support of such a reference. [37] Section 35 sets out matters to be dealt with by a Full Bench:
[38] Mr West submitted that the claim before the Commission concerns matters set out in s35(1) and which do not fall under any of the principles established by a Full Bench. Therefore, apart from whether it is in the public interest to do so, legally only a Full Bench can deal with this application. [39] As a matter of public interest this application is so far outside of the general scope of regulating wage fixing in this State that there are no guiding principles and it ought properly be dealt with by a Full Bench. In addition, in July 2000 the Full Bench said that uplifting agreements into awards is inappropriate and might possibly be available only in exceptional cases. [40] The existence of the federal bargaining notices raises a significant jurisdictional point worthy of the Full Bench's attention. [41] The public interest arises in relation to the fact of the existing agreement that would override the outcome of any arbitration [of the award] and that ought to be considered by a Full Bench. [42] The role of arbitration for the Commission is primarily the fixing of a minimum safety net for award conditions and flowing on test case standards. It would need to be very exceptional circumstances to extend beyond that. The objective of the Commission is to encourage enterprise agreements and the Commission should not readily arbitrate. Mr Fitzgerald for AMMA [43] Mr Fitzgerald supported the submissions of Mr West, and added that the award, whilst rejected by the President as an industry award, was still a prominent mining award that would have some precedent aspect if the Commission was inclined to accept the application. Mr Watson for the TCCI [44] Mr Watson also supported Mr West's submissions. He said that it was unprecedented for the Commission to arbitrate what was in effect an agreement between the parties, albeit already ratified by the Commission as a s55 agreement. It is inappropriate for the Commission to arbitrate on top of an agreement that has been negotiated between the parties. [45] It would be a common-sense approach to refer the matter to the President, he said, particularly given the Full Bench's observations in the 2000 review of the Principles, which made it quite clear that it is not appropriate to put enterprise agreements, whether expired or not, into awards. Mr Flanagan for the AWU [46] Mr Flanagan said that it was not the intention to enhance or alter the employment arrangements already in place, but to incorporate the existing s55 agreement into the enterprise award. That is consistent with, and comprehended by, the existing Wage Fixing Principles. [47] Principle 3 requires that the Commission:
[48] The expression "proposed award or agreement" shows that the Full Bench comprehended the possibility of an award being one of the mechanisms that would encourage and facilitate workplace bargaining. In this case the award concerns one employer only. [49] Principle 4 says that:
[50] Mr Flanagan submitted that this is an application to adjust the award to ensure that the safety net in the enterprise award is a relevant safety net, consistent with Principle 4 and the union's rights under the Act. [51] The "industrial circumstances" are a relevant consideration in the context of this application, and the Commission is referred to other proceedings recorded in T11939 of 2005. [52] Given that the application is consistent with the Principles, it is not a matter that should either be dismissed or considered by a Full Bench. [53] Mr Flanagan said that such an application was not unique and referred to a decision of Imlach C in T8030 of 1998, which was an application for a variation to the TEMCO Enterprise Award, made by AMMA. In the decision at para 2, the Commissioner said:
[54] The only distinction between that application and the present one is that it was by consent. Whether there is consent or not does not change the processes or the requirement for consistency with the Principles. If it was consistent with those requirements in the TEMCO matter, then, Mr Flanagan submitted, it is also consistent on this occasion. [55] On 1 May 2003, Abey C issued a decision, T10727, again in relation to TEMCO, in which he said::
[56] These two decisions show that an application to roll the existing terms of a s55 agreement into an enterprise award in order that it continues to be a relevant award safety net is comprehended by Principle 4 of the Wage Fixing Principles. [57] The application for reference to a Full Bench should be rejected. Mr Flanagan contended that there is no mandatory requirement for reference to the President as submitted by the company, when s24 is read in the context of the Act, particularly in relation to s20. [58] If the Commission forms the view that another award would be directly affected or that it is important in the public interest, then, in those circumstances, it is appropriate for it to be referred to a Full Bench but that is not the case in the present matter. [59] In the Review of the Wage Fixing Principles in 2000, the Full Bench at page 47 said:
[60] The Full Bench has said that the parties have the right to make an application to vary an award and there might be circumstances where it is appropriate for an application such as the present one to be heard and approved. [61] Mr Flanagan submitted that in the present case there are exceptional circumstances. The conduct of the company in the enterprise bargaining negotiations (which were the subject of the dispute in T11939 of 2005) was an act of tyranny and oppressive conduct and the union will not accept employees being punished for acting collectively. [62] Under the Act, there are processes for the orderly and lawful resolution of industrial disputes, and the Commission has the authority to vary awards in response to applications from the parties. [63] Mr Flanagan said that whilst it was not the intention of the union to pursue a federal agreement, should that happen, then the state enterprise award would or could be used as the basis of consideration of the "no disadvantage test", therefore the insertion of the current terms and conditions would serve a very real purpose in providing an underpinning safety net award in the event that either of the parties retired from the s55 agreement. [64] In encouraging enterprise bargaining in the context of the Tasmanian jurisdiction the obligation on the Commission in Principle 4 is for the award safety net to be varied on application from time to time, having regard for a number of factors. It is appropriate for the Commission to grant a status quo variation to the existing safety net enterprise award. [65] In summary, the application concerns an enterprise award and there is no precedent or implication for any other award. The application is doing no more than seeking to insert the existing conditions of employment into the enterprise award. There is no inconsistency with the wage fixing principles. The union accepts that the Commission should encourage the parties to bargain but the application is asking the Commission to exercise its role in ensuring that enterprise awards are relevant safety net awards for the purposes of enterprise bargaining. Such an approach has been adopted with another enterprise award - the only difference being that in this case there is not consent. The award variation sought would in no way dramatically change the system of industrial relations in Tasmania, particularly given the small number of enterprise awards. Mr Fraser for the CEPU Mr Fraser supported the submissions put by Mr Flanagan for the AWU. FINDINGS [66] I note that the application is to be amended to properly reflect the position put by the AWU, namely, that their intention is only to insert existing wages and conditions into the award. [67] I accept the company's argument that, in respect of s21(2) "at any stage of the proceedings" means that a matter could be dismissed even before hearing the parties, however, I find it difficult to conceive of a situation in this jurisdiction where a matter could or would be dismissed before any submissions were put at least in relation to the threshold matters, when considered in the context of the Act as a whole and the requirement to ensure that all parties are given a reasonable opportunity to be heard. [68] The questions to be decided are: 1. Whether the application should be dismissed pursuant to s21(2)(c)(ii) and (iv):
2. In the alternative, whether the matter should be referred to the President pursuant to s24(4A:
[69] Incidental to this is the question of: 3. Whether the Commissioner has the discretion not to refer the application to the President. [70] Question 1 requires an examination of what is meant by the "public interest". [71] The Act deals with the "public interest" at s36:
[72] This is an application for a variation to an enterprise award and does no more than seek to insert into an already existing award the terms and conditions of an agreement which already applies at the enterprise and which has reached its nominal expiry date. That agreement has applied since 2 August 1992, a period of two and a half years. [73] It would be difficult to sustain an argument, indeed, no such argument was put, that the variation sought would or could have any affect on the economic position of the relevant industry, which is the mining industry. Similarly, no submissions were put that the variation sought would have any affect on the economy of Tasmania or the level of employment. [74] Section 36(c) requires the Commission to:
[75] There is no definitive test of the "public interest". The authorities suggest that the Commission needs to consider the whole of the circumstances in order to determine where the public interest lies. It does not depend upon special or exceptional circumstances. There is no formula that can be applied. Each case has to be considered in the context of its own particular circumstances, including the nature of the claim, the attempts at conciliation and the conduct of the parties. [76] The interests of justice must be another consideration. It is not in the interests of justice to refrain from hearing a matter that is properly brought before the Commission. It is hard to conceive of circumstances in which it would be in the public interest for a Commissioner to refrain from hearing a matter that the Act requires them to hear. [77] The objects of the legislation are another consideration. In the preamble to the Act, the Commission is charged with "hearing and determining matters arising from or relating to industrial matters, including the making of awards and the conduct of hearings.." [78] Mr West advanced four grounds that, he said, went to the public interest. The first ground was that it was inappropriate for expired agreements to be uplifted into awards. [79] I am not persuaded that this is an argument for refraining from hearing the matter in the public interest. In my view, it is a matter to be taken into account when considering the merits of the application. [80] In July 2000, in a review of the Wage Fixing Principles, in T8413 and 8483, the Full Bench said at page 47 that whilst as a matter of "general principle" they considered it inappropriate to incorporate expired agreements into awards -
[81] I agree that such a determination should only be made after hearing the parties and the Full Bench's comments support the applicant's argument that the matter should not be dismissed before proceeding to hearing. [82] There are at least two previous decisions of the Commission in which expired agreements have been incorporated into an enterprise award; in T8030 of 1998 and T10727 of 2003 the Commission found that such applications did not offend the requirements of the Act, the Wage Fixing Principles or the public interest test. [83] The only difference between those applications and the present one are that those applications were by consent. Lack of consent is no reason not to hear an application for the variation of an award. [84] This application is made pursuant to s23 of the Act. It is an application to vary an award. The application is made in accordance with the provisions of the Act. The applicant has the right to make such an applications. Applications to vary awards are routinely dealt with by the Commission according to the provisions of s24. [85] The company argued that by converting the agreement into award conditions it would be changing the rights of the parties. That, surely, is the effect of any award or award variation. The fact of its existence changes the rights of the parties. That argument, taken to its logical conclusion would mean that no awards would ever be made or varied. [86] I reject the proposition that the Commission should not hear the matter on the grounds that it is inappropriate for expired agreements to be incorporated into awards. I am of the view that whether it is appropriate to grant the application or not is a matter to be decided following the hearing as part of the deliberations concerning the merits of the application. [87] The second ground argued by the company was that the existence of bargaining notices filed in the AIRC in some way created an impediment to the Commission arbitrating this matter. [88] The dispute brought before the Commission in T11939 of 2005 forms part of the background to this application. In my decision of 18 February 2005 I dealt specifically with the question of the effect of the bargaining notices on proceedings before this Commission, I found inter alia:
[89] I adopt the same reasoning in relation to this application. This is an application to vary an award of the Tasmanian Industrial Commission. The bargaining notices concern what might happen should there be industrial action relating to the making of a federal certified agreement. The two are not related. [90] The third ground is that the application is outside of the Wage Fixing Principles. Mr West said that the award was up to date and to impose the agreement conditions would be a departure from the concept of a safety net award. [91] Principle 4 of the Wage Fixing Principles states:
[92] The Principle clearly states that an application such as the present one can be made. It will be for the Commission to determine whether or not the award safety net is relevant, after hearing from the parties and weighing up the evidence and arguments, taking into account the prevailing circumstances. [93] I find that the application is within the Wage Fixing Principles. [94] The fourth ground advanced for dismissing or refraining from further hearing the matter is the fact of the existence of an industrial agreement, from which neither party has retired. Mr West submitted that any variation to the award would have no effect because the agreement prevails over the award. [95] It is the case that the wages and conditions that currently apply at the enterprise will not change if the application to vary the award is granted. However, as pointed out by the company in relation to another argument, that does not mean that there is no change. What does change is the underpinning award, should either party retire from the agreement, which is no doubt the point of the application, and is consistent with the maintenance of an award as a relevant underpinning safety net. [96] Mr Flanagan, for the union, submitted that even though there was no intention to pursue a federal award, the state award needed to be up to date in order for there to be a relevant underpinning safety net should such an agreement be made at some stage in the future. That is not a relevant argument. What happens in the federal arena is a matter for that jurisdiction and is not a matter that this Commission can take into account. [97] I have not been persuaded that the matter should be dismissed or that I should refrain from further hearing the matter in the public interest or for any other reason. I find that the matter ought to proceed to hearing. [98] The company requested that, in the event that I determined that the matter ought to proceed to hearing, they requested that I refer the matter to the President of the Commission, pursuant to s24(4A) of the Act. [99] In Mr West's submission, the Commission has no discretion not to refer the matter, provided that the request is made before the commencement of the hearing, (which the company had done in correspondence dated 21 March 2005. [100] Mr Flanagan submitted that the Commission did have a discretion, when s24 is read in the whole context of the Act, particularly s20(1), which prescribes that:
[101] Whilst the Commission is able to act with regard to technicalities or legal forms, the provisions of s20(1) do not enable the Commission to ignore provisions of the Act. [102] The Act provides for a Commissioner to refer a matter to the President if the Commissioner considers that the application directly affects another award; or is so important that it is in the public interest to have the matter dealt with by a Full Bench (s24(4)). [103] I have already found, for the reasons given above, that I do not consider the matter to be so important that it is in the public interest to have it dealt with by a Full Bench. [104] Mr Fitzgerald for AMMA submitted that the award was a "prominent" award and would have some precedent aspect if the Commission granted the application. [105] I reject Mr Fitzgerald's proposition. The award is an enterprise award. As referred to during the present proceedings, it had been unsuccessfully argued in other proceedings before the President that the award was an industry award. This award has application to only one employer and only on one site. It does not directly affect another award, and I so find. [106] I do not intend to exercise my discretion to refer the matter to the President pursuant to s24(4) because I do not consider that the application directly affects another award or is so important that it is in the public interest to have the matter dealt with by a Full Bench. It is simply a routine application for the variation of an award. The company does not consent to the variation. In my view, the proper approach is for the company to put their arguments to the Commission in the course of a hearing. Section 24(1) specifically provides that an application made under s23:
[107] Section 35(1) prescribes:
[108] It is of note that the variation to the award sought in this application is the same as the terms of an already registered industrial agreement. Presumably the parties, including the company, did not see the matters contained in the agreement as being Full Bench matters when the agreement was made in November 2002. The Act has not changed since that time. [109] This is simply an application to vary an award, consistent with the principles, and, therefore, I do not consider that the application is so important that it is in the public interest to have the matter dealt with by a Full Bench. Commissioners sitting alone routinely deal with award variations. In my view, it is not in the public interest to have routine matters referred to a Full Bench, on the basis of the additional expenditure of public resources and the additional amount of time involved. [110] However, I agree with Mr West, that where a party makes such a request prior to the hearing of the matter, the Commissioner has no discretion not to refer the matter to the President. [111] Section 24(4C) prescribes:
[112] If the hearing has commenced then the Commissioner does have discretion, and may refer the matter to the President if the Commissioner is of the opinion that the matter ought to be dealt with by a Full Bench. There is no such discretion available before the commencement of the hearing. [113] Accordingly, whilst it is not my view that the matter should be dealt with by a Full Bench, I refer the application back to the President, pursuant to s24(4C).
P C Shelley Appearances: Date and place of hearing: 1 Exhibit R1 |
