IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This is the first application to have been filed seeking a declaration by the President pursuant to Section 33 (1) (b) and (2) of the Act.

For the benefit of those as yet unfamiliar with this aspect of the Commission's overall function, a brief explanation might be appropriate.

Prior to proclamation of the Industrial Relations Act 1984, awards having application in the private sector were made by Industrial Boards and applied to the industry of the employer only. Under the present Act the President may, after consulting with such organisations as he considers appropriate, respond to an application in that regard by declaring an occupation or a number of occupations to be occupations or callings in respect of which the Commission has jurisdiction to make a craft, as distinct from industry, award.

In the instant case the Federated Miscellaneous Workers Union of Australia, Tasmanian Branch, (the union) has made such an application. The applicant seeks a declaration that the following classifications are within jurisdiction for the purpose of there being made a craft award covering the occupations or callings of:

1.  Caretaker or Janitor (resident)
2.  Caretaker or Janitor (non resident)
3.  General Attendant or Utility Officer
4.  Lift Attendant
5.  Tea Attendant
6.  Cleaner
7.  Groundsman or Yardman
8.  Library Attendant
9.  Vehicle Cleaner
10. Domestic

At the outset the union was requested to itself confer with any employee organisation, active in the private area, having constitutional coverage in its own right for the same or similar classes of employees working in or in connection with industries, or industrial pursuits in respect of which it was registered.

The Tasmanian Chamber of Industries and the Retail Traders Association attended formal hearings and made submissions. Much of the on-record discussion however centred upon the circumlocutory language of sub-section (1) (b) of Section 33. In its present form that particular sub-section must be regarded as a piece of convoluted nonsense. The T.C.I., on the other hand described it as an abomination. However that may be, the intention of the draftsman can probably be deduced from sub-section (2), which states:

"The President may, after consultation with such organisations he considers appropriate, by notice in the Gazette, declare an occupation in which classes of employees are employed by private employers to be an occupation in respect of which the Commission has jurisdiction under this Act."

It is therefore reasonable to infer from the words used that the President must satisfy himself by the best means available that -

(a) There is a need for a "craft award" or an award covering a combination of persons usually employed by private employers in those crafts or callings; and

(b) There is in any case jurisdiction flowing from the registered constitution of the applicant employee organisation seeking inclusion of those crafts or callings in an award to be made; and

(c) Inherent in (a) and (b) is the likelihood that any award made may include within its scope, exemptions and modifications either in accordance with constitutional limitations, voluntary demarcations of functions or as a result of applications by other organisations having regard for existing industry awards.

These then are the broad criteria I extract from the legislation. At least that appears to be the ratiocination behind the provision, notwithstanding its somewhat obfuscated construction.

Mr. O'Brien explained that a discrete award containing the classifications referred to was desirable in order to overcome long-standing confusion within industry regarding the appropriate rates for persons employed in those occupations or callings.

In fact the work of caretaker, general attendant, lift attendant and cleaner is presently covered by the Insurance Award, but application of those classifications and wage rates is extended by regulation outside the insurance industry. Therefore any private employer of cleaners, for example, not subject to an industry award containing that classification would need to observe the Insurance Award rates, even if he was engaged in an industry not remotely connected with insurance.

No employer organisation presented any opposition to Mr. O'Brien's proposal which, if accepted, would require rescission of the present common rule regulation applying to the four classifications mentioned. But little licence is needed to extrapolate the work of those four classifications to include all but the callings of groundsman, yardman or domestic which the union now wishes to have inserted in a "craft award".

Perusal of the union's registered constitution clearly establishes the F.M.W.U.'s right to enrol as members persons employed in all the classifications referred to in its application.

Moreover, except to the extent that it might be found in certain industry awards, the classification of "domestic" appears to be relatively award free at the moment.

I am therefore satisfied that a prima facie case has been made out for a craft award to be made. Accordingly I declare that:

(a)    The occupations or callings of:

(i) Caretaker or Janitor (resident)
(ii) Caretaker or Janitor (non resident)
(iii) General Attendant or Utility Officer
(iv) Lift Attendant
(v) Tea Attendant
(vi) Cleaner
(vii) Groundsman or Yardman
(viii) Library Attendant
(ix) Vehicle Cleaner
(x) Domestic

Are occupations or callings in respect of which the Commission, on the authority of the scope of the union's registered constitution, could found sufficient jurisdiction to include in any award to be made on this application; however

(b)    any award to be made embodying those classifications may need to be restricted to areas of private industry not already covered by an award that includes the same classifications or callings; and in any case

(c)    any award may need to include an exemption or limitation provision excluding certain employers and industries from its operation. But any such modification would be subject to the Commission being satisfied that, as a consequence of an agreement reached, or on argument presented by any employer or employee organisation, exemptions, limitations or variations of that kind to the scope of any new award were otherwise justified.

Having found jurisdiction to this extent it will now be a matter for the applicant to pursue its claim in accordance with Principle 10 of the Guidelines.

In the event an award is made the Commission will take the appropriate steps to have the relevant common rule declaration relating to the Insurance Award rescinded.

L. A. Koerbin
PRESIDENT

14 October 1985