IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This application by the Tasmanian Confederation of Industries (TCI) was initially before the Deputy President who dealt with those matters able to be considered by a Commissioner sitting alone.

The application to vary the Retail Trades Award also contemplated the inclusion in the award of certain annual leave loading provisions for employees classified as Nightfill Assistants.

As the Industrial Relations Act, 1984 requires matters of that kind to be processed before a Full Bench of the Commission the Deputy President referred that part of the application to the President pursuant to Section 35 of the Act. The President in turn referred the residual matter of this application i.e. the question of payment of wages or allowances to nightfill assistants during periods of annual leave to this Full Bench for determination.

Mr Edwards appearing for the TCI made detailed submissions to the Bench in support of the award variation; the thrust of which would ensure that nightfill assistants receive an annual leave loading based on their current 25 per cent shift loading or 17.5 per cent leave loading, whichever is the greater.

The current provision stipulated in subclause (f) of Clause 9 - Annual Leave of the award could enable nightfill assistants to receive both loadings cumulatively.

Mr Edwards made it clear that this was never the intention and that the "Coles Agreement" which had been in force for many years only ever contemplated one allowance being paid. The amount of the allowance to be paid in that way was that which produced the greatest payment for each employee.

We are satisfied from the submissions of Mr Edwards going to the history of this matter, the overall context of which was confirmed by Mr Targett appearing for the Shop Distributive and Allied Employees' Association, Tasmanian Branch, that the "first awards" principle is correctly applied by the variation of the award in such a manner as to give effect to the "Coles Agreement".

The operative date of our order which is attached, will be from the first pay period to commence on or after 24 April 1989.

The retrospectivity that we have now decided upon is because we are satisfied that when the original nightfill provisions for annual leave loading were included in the award, a significant drafting error was made by the parties when the "Coles Agreement" was first transposed into the award.

Accordingly, as we do not wish to compound the error by awarding a current operative date, we have decided that the variation now endorsed should be from the date when the mistake was first made in the award. Order