IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This application made by the Federated Liquor and Allied Industries Employees' Union of Australia (Tasmanian Branch), was for the purpose of varying the Aerated Waters Award in the following manner:

1. By amending the current jurisdiction, or scope of the award by deleting the existing provision and inserting the following:

"Established in respect of the trade or manufacture of any one or more of the following, namely:

• Aerated Waters,
• Other soft drinks, Fruit Juices
• Cider
• Cordials
• Ginger Beer
• Hop and other non-intoxicating beers and/or similar types of beverage with or without alcoholic content."

2. By amending Clause 6 'Meal Allowance' by deleting the existing provision and inserting the following:

"An employee required to work overtime in excess of one hour and a half after the usual finishing time shall either be supplied with a meal or be paid $4.50 by the employer and a further meal allowance of $4.50 after a further four hours overtime has been worked."

Mr. Sherry, representing the Federated Liquor and Allied Industries Employees' Union, explained in great detail the history of award coverage in this industry.

The main features of that historical analysis can be summarized as follows:

1. The industry was cove,:-ed by a Federal award until 1981.

2. The Federal award was, and still is, known as "The Aerated Waters Industry Award" which was promulgated in the State on 15 October 1926 (C.A.R. 24 of 1926).

3. The industry coverage of the Federal award is as, follows:

"3. THE INDUSTRY

This award relates to the industry of persons employed in or in connection with the manufacture and/or distribution of aerated waters, other soft drinks, fruit juices, cider, cordials, ginger beer, hop and other non-intoxicating beers and/or similar types of beverages with or without alcoholic content."

4. There was, and is currently, a State award known as the Aerated Waters Award which has the following industry scope.

"Established in respect of the trade of manufacture of any one or more of the following, namely:

• Aerated Water;
• Cider;
• Cordial, or
• Non-intoxicating Beer."

5. Up until 1981, the wages and conditions in the manufacturing section of the State award were extremely out of date as this section of the industry operated under a Federal award from 1926 to 1981.

6. In 1981 there were negotiations between the union and the Chamber of Industries, and the Employers in the State who were covered by the Federal Aerated Waters Award, and it was agreed that the industry would be regulated from 1981 onwards by the State award and, the respondency list under the Federal award pertinent to Tasmania would be deleted and, the wages and conditions of the State award would be updated to reflect the Federal award provisions.

7. The parties also agreed that there be no continuing nexus between the State and Federal awards but it was agreed in 1981, that the existing wage rates and conditions in the industry regulated by the Federal award would be transferred into the State award.

8. Application was made by the Federated Liquor and Allied Industries Employees' Union of Australia under the Conciliation and Arbitration Act, 1904 on 2 July 1981, to have the Tasmanian respondents to the Federal award withdrawn.

The grounds upon which the application was made were

(i) A number of respondents no longer carried out operations in industries covered by Clause 3 'The Industry' of the award.

(ii) Employees employed by the respondents to the award were desirous of having their wages and conditions regulated by an award of an Industrial Board in Tasmania, set up under the Industrial Relations Act, 1975.

(iii) Named respondents in the award in Tasmania were agreeable and desirous of having their respondency removed from Schedule 'A' of the Award.

(iv) An award known as "The Award of the Aerated Waters Industrial Board" existed in Tasmania, which could properly regulate wages and conditions of employees in the aerated waters industry.

9. The application was later granted by the Australian Conciliation and Arbitration Commission:

10. On 13 July, 1981 a meeting of the Aerated Waters Industrial Board was convened for the purpose of a general review of the award, at which time the wage rates and conditions of employment were updated by the Board members, using the Federal award provisions as a base for that review (see A.19 of 1981).

Mr. Sherry continued his submission by pointing out that during negotiations in 1981, the industry coverage, or scope, of the award was not a matter that was discussed. Indeed, he understood it to be an oversight.

Changes

Mr. Sherry explained how the Cascade plant was one specifically effected by the 'scope' of the award. He said -

"At that time, and since 1981 there have been some changes in respect to Cascade but, certainly in 1981 and for as long as I can recall, Cascade has not simply been a producer of aerated waters or soft drinks and cordials.

Cascade have been a producer for many years of beverages based on apples and black currants and that segment of their business is very substantial."

He went on to point out that the company also manufactured alcoholic and non-alcoholic cider and, vinegar.

In conclusion, Mr. Sherry said that it was his Union's submission that they had a Federal award that was effective in respect to the industry coverage in. the State from 1926 to 1981 and it included a variety of areas; aerated waters and associated areas, and it was on that basis that there was agreement with the employers in the industry that they would be covered by the State award and all their employees, whether manufacturing aerated waters, apple juice, black currant juice, cider, cordials and other non-intoxicating beverages would be covered by the said award.

He said the current scope in the award left it very unclear as to whether or not a company like Cascade was bound by the State Aerated Waters Award in respect to certain employees, and it was for that reason he was asking the Commission to rectify a potential problem.

He felt the claim submitted by his organisation would leave the question beyond doubt.

Mr. Fry, representing the Federated Clerks' Union of Australia (Tasmanian Branch), supported the applications.

Mr. Abey, representing the Tasmanian Chamber of Industries opened his submission by stating:-

"We consider this to be an eminently sensible application and i-t has our unreserved support."

He agreed with the submission made by Mr. Sherry and reiterated that there were technical question marks about the award coverage of certain parts of the operations at the Cascade Company.

He continued by saying -

"We believe that to continue that technical question mark which, hitherto, fortunately has not manifested itself in any undesirable form but, nonetheless, to continue that technical shortcoming is, in our view, against the public interest and it follows that to adopt the agreement between our two organisations and vary the scope in the suggested manner would in our submission be consistent with the public interest."

DECISION

It is my intention to deal with each of the claims separately, commencing with the claim to vary the scope of the Award.

At the outset, may I congratulate the parties for taking action to try and rectify a potential problem rather than having it surface during some other crisis period.

This sort of practice can only enhance industrial relations in the Industry and the State.

The claim of the Federated Liquor and Allied Industries Employees' Union was to expand the 'scope' of the Aerated Waters Award to read as follows:

"Established in respect of the trade or manufacture of any one or more of the following, namely;

Aerated Waters,
Other Soft Drinks,
Fruit Juices,
Cider,
Cordials,
Ginger Beer,
Hop and other non-intoxicating beers and/or similar types of beverage with or without alcoholic content."

Mr. Sherry, in his submission, stated that during negotiations in 1981, the industry coverage, or scope of the Award was not a matter discussed and he understood it to be an oversight.

May I suggest that even if it was discussed, the Board members did not have the power to change the scope of the award because of the requirement of the Industrial Relations Act 1975 which states inter alia:

"8  -  (1) The Governor may by order establish an industrial board for an industry.

(2) An order under this section shall define the industry within which the board has jurisdiction, and may assign a name to that board.

(3) The same board may have jurisdiction in several industries.

(4) The Governor may, by order -

(a) alter the jurisdiction of a board;

(b) alter the name of a board; or

(c) abolish a board.

(5) An order under this section may, in relation to any industry, limit the jurisdiction of a board to a part only of this State; and in such a case the board has jurisdiction within that industry to the extent only that it is carried on in that part of the State."

I believe the application to alter the scope of the award caters for the current practice, and clarifies any doubts surrounding the Industry coverage of the award especially in an establishment such as the Cascade Company.

I agree with the sentiments expressed by Mr. Abey when he said the application was "an eminently sensible application".

I therefore decide that the Aerated Waters Award be varied in the terms of the application.

MEAL ALLOWANCE CLAUSE

Turning now to the second part of the application.

Mr. Sherry argued for the deletion of the existing award provision for 'Meal Allowance' and for the inclusion of the following:

"6. Meal Allowance

An employee required to work overtime in excess of one hour and half after the usual finishing time shall either be supplied with a meal or be paid $4.50 by the employer, and a further meal allowance of $4.50 after a further four hours overtime has been worked.

The existing award provision reads as follows:

"6. Meal Allowance

An employee required to work overtime in excess of one hour and a half after the usual finishing time without having been notified on the previous day that he or she would be so required shall either be supplied with a meal or be paid $4.50 by the employer, and a further meal allowance of $4.50 after a further four hours overtime has been worked."

The underlined part being the difference between the claim and the existing provision.

Mr. Sherry submitted that in 1981 when the Federal award ceased to be active in the State, and the various respondents came under the State Award, it was agreed that employees would not be disadvantaged in any way in respect of wages or conditions.

He said that the Federal award provisions for meal allowance (putting aside the quantum) provides that an employee receives a meal allowance when required to work overtime even if they are notified the previous day.

He argued that the application was to insert the wording of the Federal award 'Meal Allowance' clause into the State award as it was an oversight when they transferred to the State jurisdiction in 1981.

He said that when the oversight was detected, discussions were held with operators in the industry and agreement was reached to continue to pay the meal allowance in the form of the clause applying in the Federal award.

He maintained that granting the claim would not violate Principal 11 (upon which he relied) because there was no increase in cost to employers as agreement had been reached some time ago to pay the meal allowance in accordance with the Federal provision.

Mr. Sherry's submission was supported by Mr. Abey of the Tasmanian Chamber of Industries who conceded that there was no cost implications involved in that it was already being paid. He said it was a fact that the industry had applied the Federal award prescription when determining the meal allowance.

DECISION

The parties were not seeking to change the quantum of the meal allowance, but wanted to ensure that the allowance was paid to employees when they worked overtime, whether or not they were notified the day before.

I have also noted the agreement reached (when the parties withdrew from the Federal award respondency) was that no employee would be disadvantaged.

This agreement was obviously implemented when the parties realised the meal allowance clause in the State award was inferior to that of the Federal award.

The parties relied on Principal 11 to support their application to vary the meal allowance prescription in this award.

That Principle states:

"11. CONDITIONS OF EMPLOYMENT

Applications for changes in conditions other than those provided elsewhere in the Principles must be considered in the light of their cost implications both directly and through flow-ons. Where such cost increases are not negligible, we would expect the relevant employers to make application for the claims to be heard by a Full Bench."

In arriving at my decision to grant the claim I have considered the cost implications both directly and through flow ons, and I am satisfied the claim does not contravene Principle 11, nor the relevant provisions of the Industrial Relations Act 1984.

It is for these reasons I believe the award should be varied to reflect the agreement of the parties and I decide accordingly.

Operative Date:

In their submission the parties requested that the operative date be from the first full pay period to commence on or after 1 August, 1985.

This request receives my support and I decide accordingly.

The Orders [Part I] [Part II] giving effect to this decision are attached.

R.J. Watling
COMMISSIONER