IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

The application by the Association of Professional Engineers, Australia (APEA) sought to extend the scope of the Professional Engineers' Award by adding four additional names to Clause 3, "Parties and Persons Bound'. They were:-

1. The Commissioner for Transport
2. The Marine Board of Hobart
3. The Marine Board of Burnie
4. The Marine Board of Devonport

No objection arose in the case of the Commissioner for Transport and after hearing the parties the Commission satisfied itself that it was proper to grant the application as a consent variation.

It should be noted, however, that the variation applies to salaries only and not conditions of employment.

Date of effect will be from the first full pay period to commence on or after 4 October 1985.

The parties are requested to forward a draft order reflecting the necessary award variations to the Commission.

In the case of the three named Marine Boards, Mr Abey opposed the application and the matter was argued at some length.

Mr Henderson, for the APEA, argued that under the provisions of Section 34 of the Industrial Relations Act 1984, this Commission has the power to make awards in respect of all persons employed in a Government department, or by a State authority or the classes of persons employed in or by one or more Government departments or State authorities.

He said that under Section 3 of the Act a State authority is defined as:

" a body or authority, whether incorporated or not, which is established or constituted by or under an Act or under the royal prerogative, being a body or authority which, or of which, the governing authority, wholly or partly, comprises a person or persons appointed by the Governor, a Minister, or another State authority, but does not include a Government department."

He said he believed the marine boards came under that definition by virtue of Part III of the Marine Act, 1976.

He explained that Section 16 of the Marine Act provides that, "Every board shall be a body corporate having perpetual succession and a common seal." Section 17 provides that, "The Governor may, by proclamation, alter and redefine the limits of the jurisdiction of any board." Under Section 18 the Governor may, by proclamation, fix and determine boundaries for the board. Under Section 40, subsection 6,

"If a vacancy in the office of warden continues after the time prescribed for election thereto or from any other cause cannot be filled, the Governor may appoint any qualified person to the vacant office."

At page 4 of transcript Mr Henderson said:-

"In my submission that is sufficient to justify these boards being brought under the State Services Act within the meaning of the definitions of State authorities, as defined in Section 3 of the Industrial Relations Act and caught up in Section 34."

Mr Henderson then went on to trace the history of his association's attempts to gain State award coverage by:-

1 Direct negotiation with the Marine Boards of Hobart, Burnie, Devonport and the Port of Launceston Authority (initially).

2 An approach to the Minister of the day to have the first three mentioned Marine Boards and the Transport Commission declared "controlling authorities" pursuant to Part V of the Public Service Act, 1974.

Neither of such moves proved successful for one reason or another and the passage of the Industrial Relations Act, 1984, and the repeal of Part V of the Public Service Act (now about to be replaced by the Sate Services Act), meant relief could only be sought through the present, fresh approach.

Mr Henderson pointed out that the Marine Boards concerned are in fact paying his members in accordance with the State Professional Engineers' Award and consequently the granting of the present application would not impact in any way at this time. Rather the Association's application was to tidy up the question of appropriate award coverage.

Although it was not the preferred position of the APEA, Mr Henderson indicated that if this Commission formed the view that the role of APEA members in Marine Boards did not sit squarely with those presently covered by the Professional Engineers' Award, then a separate port Authorities Award could be created.

All of this was, however, predicated upon the assumption that Marine Boards in this State are "State Authorities", as defined.

Finally Mr Henderson submitted that what was proposed could be accommodated with principle 10 of the Wage Fixing Principles.

The application was opposed by Mr Abey representing the three port authorities concerned.

Mr Abey argued that those port authorities are not "State Authorities" and accordingly they cannot be made subject to a public sector award as sought.

In dealing with the question of definition of "State Authority" in Section 3, Mr Abey said at pages 13 to 15 of transcript, inter alia:-

"... (State authority) means a body or authority, whether incorporated or not, which is established or constituted by or under an Act or under the royal prerogative ..."

"So far so good. We would accept that the ports are established under an Act within that part of the definition. It goes on to say:

"... being a body or authority which, or of which, the governing authority, wholly or partly, comprises a person or persons appointed by the Governor, a Minister or another State authority, but does not include a Government department."

Of course this question swings on that second part of the definition and I will table an exhibit, being an extract from the Marine Act 1976.

(Exhibit A1)

The extract from the Act goes to the question of how the governing bodies of these various ports are in fact elected and constituted. If I can take you to page 15, section 20, it says:

"The Marine Board of Hobart shall consist of 9 wardens elected by the shipowners of the ports within the jurisdiction of the Board and the importers and exporters of goods into or from any port or waters within that jurisdiction."

It then goes on in successive sections to detail the weight which is given to each individual person who is eligible to vote. Quite clearly, there is no provision there for the Governor to nominate a person to sit on the Marine Board of Hobart.

If I can take you to page 18, section 31:

"The Marine Board of Devonport shall consist of 11 wardens of whom -

(a) nine shall be elected by electros of the Devonport voting district; and

(b) two shall be elected by electors of the Ulverstone voting district , ..."

Again, no provisions for appointment by the Governor.

On the next page, section 32 says:

"The Marine Board of Burnie shall consist of 8 wardens of whom -

(a) four shall be elected by electors of the Emu Bay voting district;

(b) three shall be elected by electors of the Table Cape voting district; and

(c) one shall be elected by electros of the Penguin voting district ..."

Quite clearly there is no provision there for the Governor or a Minister or another State authority to appoint a person to those governing bodies. As such, we say that it is simply not competent for this Commission to make an award in the manner sought.

Mr Henderson has fleetingly relied upon the provision elsewhere in the Act, going to the filling of casual vacancies.

In our submission, that simply cannot succeed in bringing the port authorities within the meaning of a State authority as detailed in the Act, because if you look at the wording carefully, it says:

"... of which, the governing authority, wholly or partly, comprises a person or persons appointed by the Governor ..."

For example, as is the most likely position, if there is no casual vacancy and there is no appointment made by the Governor to fill that casual vacancy, then the governing authority does not wholly or partly comprise of persons appointed by the Governor. It does not say that the governing authority `may' include a person appointed by the Governor, it says, "shall comprise". That is a very subtle distinction.

The mere fact that the Governor has this residual ability to appoint persons to fill casual vacancies in certain circumstances - very limited circumstances - does not bring the ports within the definition of a State authority."

Mr Abey then went on to argue that it is beyond question that port authorities in Tasmania have traditionally been covered by what is deemed to be a private sector award and there has never been any question in the past that it should be otherwise. He said the matter should not be heard further pursuant to Section 21(2)(c) of the Act.

I ruled that I would not dismiss the matter pursuant to Section 21(2)(c) and allowed further argument to be put.

In response Mr Henderson argued further that:-

(a) Port authorities in Tasmania are far from being independent.

(b) They are in fact controlled by Government through the Marine Act.

(c) The port authorities are constituted by an Act of Parliament and the Wardens are initially elected by electors however qualified.

(d) The Government has a further involvement by having the ability to appoint people to casual vacancies.

(e) Presumably the Governor-in-Council has the ability to determine the boundaries of each of the port authorities.

Decision

During the course of hearing the APEA demonstrated that it, from 1981 onwards, has made repeated approaches to Tasmanian port authorities to try and obtain award coverage in respect of its members.

It also made a formal request to the Minister of the day on 18 January 1982 to try and achieve Public Service award coverage.

None of those approaches were successful, and the plea at this time is for this Commission to formalise existing arrangements, without granting any increases.

The application, however, is not aimed simply at achieving award coverage for a small group of employees who are presently award-free.

Instead the application is very distinctly for professional engineers to be covered by a public sector award - either by attachment to the existing Professional Engineers' Award or the creation of another.

Regardless of the perceived benefit which attaches to public sector awards as opposed to private sector awards, the matter clearly turns squarely upon the definition of "State authority", given that neither of the three port authorities are controlling authorities proclaimed under the State Services Act.

Clearly the three port authorities are authorities established or constituted under an Act, ie the Marine Act 1976.

Critical to the rest of the definition, however, is whether:-

"(the) body or authority wholly or partly comprises a person or persons appointed by the Governor, a Minister, or another State authority ...'

With the exception of the fact that casual vacancies may be filled by the Governor appointing a qualified person to fill such a vacancy, the main thrust of the Marine Act is for Port Authorities to be elected by private bodies within the same general area as the port concerned.

Upon enquiry at the hearing I was informed that, as far as is known, there are in fact no persons currently holding positions which were Government appointments to fill a casual vacancy at either Hobart, Burnie or Devonport. Thus it would seem that none of the three port Authorities concerned currently even partly comprise of a person or persons appointed by the Governor, a minister or another State Authority, and accordingly they cannot, in my view, be treated as being a State Authority at this time. Clearly, however, it is feasible that casual vacancies can occur and be filled by the contingency provision of the Marine Act, but from a common sense point of view, I do not believe it is feasible, nor could it have been contemplated that a body should be deemed to be public from time to time and private at other times.

To my mind, one should be guided by the principal thrust of the Marine Act and the Industrial Relations Act where they contain complementary provisions, as in the present case. This surely is preferable to taking a narrow and pedantic view which gives disproportionate weight to some contingency provision which caters for the exceptional circumstance rather than the general rule.

For these reasons, I decide against the inclusion of the three named Port Authorities in Clause 3, Parties and Persons Bound, in the Professional Engineers' Award.

A Robinson
DEPUTY PRESIDENT