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T1681

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

T.1681 of 1988 IN THE MATTER OF AN APPLICATION BY THE SECRETARY FOR LABOUR FOR INTERPRETATION OF THE RETAIL TRADES AWARD

RE: CLAUSE 7, DEFINITION OF "ASSISTANT"

PRESIDENT 16 December 1988
INTERPRETATION
APPEARANCES:
For the Secretary for Labour - Mr. J. Evans
For the Shop Distributive and
Allied Employees' Association
- Mr. P. Fenton
  with
  Mr. P. Targett
For the Tasmanian Confederation
of Industries
- Mr T. J. Abey
DATE AND PLACE OF HEARING:
15.11.88                 Launceston
02.12.88                 Hobart

 

This is the first occasion, following a more recent amendment to the Industrial Relations Act 1984, on which the Secretary for Labour has exercised his right to make application to the Commission for an interpretation of an award.

The question to be answered in response to the Secretary's application is whether persons described by Mr. Evans as "telephone sales people"; "door to door sales people"; and "canvassers generally" are either:

    (a) directly covered as employees under the terms of the Retail Trades Award as Assistants;

    (b) covered in any case by reason of the regulation, common rule or general application extension of that classification in circumstances where no other award applies; or

    (c) award free.

Regulation 14 provides for extension of existing award classifications to employees not specifically provided for in an award, but who are performing work of a class envisaged by a nominated classification. That classification may or may not be defined in the specific award referred to in the Regulation.

Reduced to more easily understood language, Regulation 14 complements Section 40 of the Act.

Section 40 comprehends extension by regulation of the whole or any part of an award, including of course award classifications and wage rates. The intention of this is to apply similar rates to persons performing similar work in industries not covered by the Scope Clause of the "parent" or "master" award from which the particular classification is drawn.

Notwithstanding the fact that an employee may not be engaged in, say, the retail industry, provided that person is, by definition, devoting any portion of his or her time to the sale of goods or assembling goods, or indeed acting as a messenger, the "extended" classification of "assistant" could apply. If, however, that person is covered by a federal or state award or agreement relating to the industry in which he or she is engaged, the extended classification does not apply.

In my opinion no other conclusion is possible.

It does not matter, I believe, that a sale may not result from the action of the individual, or if the transaction is eventually concluded by someone else. Provided that technical niceties are not unduly or too rigidly relied upon, the real test ought to be whether or not the person actually selling, or the person setting the scene for the sale as it were, by reason of random telephone contact, door to door selling, or by some other means, the principle purpose of which is to bring about a sale.

If the person concerned is an employee and is devoting his or her time to the sale of goods in an obviously direct sense, then I think the tests laid down by the Regulation are met.

As to the specific question of telephone canvassers and door to door salesmen employed in the industries cited in the Scope Clause of the Retail Trades Award, the test to be applied must be one that turns on the question of whether or not, given that all the other tests are met, the selling or canvassing is actually done from a shop. The parent award makes this abundantly clear.

Stated another way, I am of the opinion that the effect of Regulation 14, or Section 40 of the Act, is to extract from a parent industry award a certain classification (or classifications) and extend to award free employees the wage rate applicable to that work.

That is to say, regard should be had to what is physically being done by the employee concerned. That work should ten be tested against the particular classification and/or definition nominated by the regulation. If the employee concerned is carrying out work, the nature of which is the same or similar to that envisaged by the classification concerned, then provided no other award or agreement applies the employee concerned is entitled to be paid in accordance with the salary rate prescribed for the classification set out in the regulation.

Accordingly, I would be prepared to declare that in determining whether or not a classification nominated pursuant to Regulation 14 has application to an employee or an employer, the test is whether:

    (a) the employer or employee is otherwise award free;

    (b) the work as defined (if a definition appears in the parent award) is similar.

In applying such tests it is neither necessary nor relevant to have regard for the Scope Clause of the parent award - only the classification and wage rates, together with the definition of that classification, if given. But it cannot be over emphasized that care needs to be exercised in satisfying the principal test of whether or not another federal or state award or agreement applies.

Most awards covering private employees and employers are industry awards, with the industry stated in the Scope Clause. Other awards affecting private employers and private employees are referred to commonly as occupational awards. Subject to the constitutional capacity of the employee organisations, to enrol as members persons in any industry, those awards may apply to the work performed regardless of the employer's industry. The one exception might be where the employer is bound by an industry award that includes that classification - for example, a cleaner.

Those tests must first have been exhausted before regard should be had to those classifications having general application by reason of Regulation 14.

As the Secretary's request was more general than specific, I find it somewhat difficult to make a positive declaration. However, if requested to do so, a declaration will be made. It may be, however, that the foregoing is sufficient to answer the questions asked.

 

L. A. Koerbin
PRESIDENT