T380
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
INTERPRETATION APPEARANCES:
DATE AND PLACE OF HEARING: 10.06.86 Hobart
This is an application by the Australian Mines and Metals Association seeking interpretation of the scope of the Restaurant Keepers Award1. The application giving rise to proceedings, pursuant to Section 43 of the Act, was couched in the following terms: "DETAILS OF PROVISION OF AWARD 1. The Restaurant Keepers Award in Part I and Clause 2 Section III and Part II Section III refers to Industrial Catering. 2. The Restaurant Keepers Award in Part I Clause 2 Section III sets out a number of classifications including those of "(c) Kitchenmaid, Kitchenman, Housemaid, Cleaner." 3. The Restaurant Keepers Award in Part II Section III Industrial Catering Clause 3 - Definitions includes "(c) `Industrial Caterer' shall mean an employer carrying on the business of catering and/or providing accommodation for an unlimited number of persons involved in Industrial Undertakings on location where catering is provided for on the basis of a minimum of 2 main meal times per day." 4. Included in the list of industries in which the Restaurant Keepers Award is establishes is "(d) Caterer." "Specific facts giving rise to Application for Interpretation of the Award are as follows: A. The employees of an "Industrial Caterer" known as Afco Industrial Services Group Pty Ltd have been and continue to be engaged and paid in accordance with the Restaurant Keepers Award. B. The duties of some of the employees of the said company conform with those of Kitchenmaid, Kitchenman, Housemaid, Cleaner. C. The duties of other employees of the said company conform with those of Chef or First Cook, Second or Relief Cook, Other Cook. D. The Federated Miscellaneous Workers Union has asserted and continues to so assert that the Restaurant Keepers Award is not the appropriate award to determine the rates and conditions of employment of the employees referred to in B above. E. The Federated Miscellaneous Workers Union concedes that the employees referred to in C above may be appropriately covered by the Restaurant Keepers Award." The nub of the matter at issue boiled down to the question of whether or not the business of "industrial catering" as provided for in Section III of Part I of the Act is wide enough in its incidence to embrace catering for services in addition to, or other than, the provision of food and beverage. As specified in the application, a company, known as AFCO, is contracted to Renison Limited (a mining company situated on the West Coast of Tasmania) to provide meals and cribs to the residents of the client-company single men's quarters. In addition, the AFCO company services accommodation facilities and provides a laundry service. It also services ablution blocks, laundries, corridors and recreation areas and in addition it assumes the task of maintaining a general level of control over order and discipline in the dining and accommodation areas. Of a total of 7 employees engaged by the company to provide these functions, 4 are engaged in kitchen duties and are classified as chef manager, chef manageress, relief cook and kitchenmaid. The remaining 3 employees are employed for 3 to 3½ hours per day and are classified as one of the following: kitchenman, kitchenmaid, housemaid or cleaner. It is this latter group who service the bedrooms, ablutions, dining area and occasionally help out in the kitchen by preparing vegetables. Other duties are as assigned by the caterer and include stock-room duties re filling the Coke machine or drink vending machine, counting takings from the automatic machines and generally tidying up grounds (referred to colloquially as `emu bobbing'). Mr. Taylor has asked the Commission to declare that the industry of industrial catering extends to and includes work relating to the provision of serviced accommodation facilities in premises owned by the client, Renison Limited. Mr. Butler, representing the Federated Liquor and Allied Industries Employees' Union, agreed with Mr. Taylor's interpretation of the award and expressed surprise that the question had even arisen. Mr O'Brien, on behalf of the Federated Miscellaneous Workers' Union, disagreed with the views expressed by Mr. Taylor and Mr. Butler. He believed that, generally speaking, industrial catering starts and finishes at the provision of food and drink. Therefore any work performed relating to serviced accommodation falls outside the scope of this award. It was argued that this work falls outside the purview of the Restaurant Keepers Award2 and if not picked up under the general application provisions of the Insurance3 or Cleaners4 Awards, would in all probability, be covered under the terms of the Miscellaneous Workers Award5. This latter award, among other things, contains classifications of domestic and cleaner and does not depend upon the "industry of the employer" criterion but rather the occupation or calling of the employees. However it does not apply in the mining industry. Having agreed with Mr. Taylor's assertion that industrial catering per se could include all of the work contracted for by AFCO, Mr. Butler, like Mr. Taylor, produced documentary material supporting this assertion. Mr Abey, on behalf of the Tasmanian Chamber of Industries, also concurred with the view expressed by the Mines and Metals Association. He too tendered an exhibit in the form of an extract from the Shorter Oxford Dictionary, and in doing so took comfort from the definition of the verb "cater". This, among other things, was said to mean "to provide (requisites, things, things desired, etc.)". Mr. O'Brien also tendered as an exhibit a copy of a decision by Mr. Commissioner Negus of the Western Australian Industrial Relations Commission dated 4 February 1986. In some respects that matter touched upon issues not entirely dissimilar to the present case. But in the result the matter was determined largely upon the question of constitutional capacity of one organisation to enrol members employed by industrial caterers (including, as it happened, AFCO). To my mind Mr. O'Brien's assertion that the extension of the industry of caterer in 1971 to embrace industrial catering as distinct from general catering was as exercise ultra vires the then Industrial Board's function, does not carry any weight in these proceedings. The fact is, correctly or incorrectly, that provision was inserted in the Restaurant Keepers Award and has remained unchallenged until today. More importantly, the Restaurant Keepers Award, along with all other awards extant as at 1 January 1984, is deemed to have been made by this Commission, and until challenged in a court of competent jurisdiction must be regarded as having been validly made. The actual definition of industrial caterer is cast in the following language: "Industrial caterer shall mean an employer carrying on the business of catering and/or providing accommodation for an unlimited number of persons involved in industrial undertakings on location where catering is provided for on the basis of a minimum of 2 meal times per day." It is clear that the Industrial Board, in deciding to extend the narrow definition of caterer, clearly intended to take the function of industrial catering beyond the mere provision of food and beverage. The inclusion of reference to accommodation and all that that involves would be, I believe, consistent with the Shorter Oxford definition of "cater". Moreover, in their present form it would appear that the words used by the draftsman intend that a caterer may be able to provide different services; for example, meals only, meals and accommodation, or accommodation only. Under the terms of the Industrial Relations Act 1984, awards may be either industry awards covering the industry of the employer(s), or, with the President's approval, occupational awards covering the occupations or callings of employees. This award is an industry award and covers a multiplicity of industries broadly encompassed by the popular expression "hospitality industry". I can see no reason to disagree with Mr. Taylor and others who support his view that the adjective "industrial", when used to describe a particular kind of catering, does no more than provide scope for different forms of catering in the industry. Industrial catering per se is not stated as a separate industry in the award. Only caterer is stipulated. Industrial catering therefore is only a refinement of the generic term, caterer. None of the other awards referred to by Mr. Taylor would have application to the work described by him as being work carried out by AFCO for Renison Limited. Accordingly I declare that the work performed by the 7 employees of AFCO in connection with providing meals and accommodation services for Renison Limited is work carried out within the provisions of Section III of Part I of the Restaurant Keepers Award. I further declare that industrial catering, as defined, is part and parcel of the industry of caterer referred to as item (d) in the preamble to Parts I and II of the Restaurant Keepers Award. Having interpreted the award in this way, I would make the following observation: In my opinion questions as to the classes of labour involved, or the rights of organisations to represent that labour, do not arise in this case, except inferentially. And then only by reason of the Industrial Relations Act requirement that organisations shall have a registered interest in certain awards. Issues of that kind are more properly dealt with by the Commission otherwise constituted.
L. A. Koerbin 20 August 1986 |