IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

INTERVENERS

This is a dispute in relation to a claim for a site allowance for employees of the Port of Devonport Authority engaged in a specific project, namely the extension of the existing passenger terminal building located on the Devonport Wharf, together with the modification of the existing wharf vehicle loading and unloading ramp.

All of such work relates specifically to the modification of existing wharf and passenger facilities which will be needed by approximately the end of June, 1985, to accommodate the Bass Strait vehicular/passenger vessel "Abel Tasman", which is to replace the "Empress of Australia".

The dispute also related to wage rates initially, but this aspect was not pursued by the parties before the Commission.

In the first instance, this matter was brought to the attention of the Tasmanian Industrial Commission by way of an application for a dispute hearing pursuant to Section 29 of the Industrial Relations Act, 1984, following a breakdown in negotiations between the parties and the taking of strike action which lasted for one week.

When this matter was brought on for hearing at Devonport on 10 April, a threshold question arose as to jurisdiction over all parties concerned in the dispute, as well as what awards appropriately covered the work subject to this dispute.

The Federated Engine Drivers and Firemen's Association of Australia pointed out that the Port of Devonport Authority is a respondent to the Engine Drivers and Firemens (General) Award and the various building trades unions claimed that since building construction work was being carried out, the Award of the Marine Boards Industrial Board (now an award of the Tasmanian Industrial Commission) should not be applied, but that appropriate building trades awards should be applied.

It was not revealed until that time that the F.E.D.F.A. had notified the Conciliation and Arbitration Commission of a dispute pursuant to Section 25(1) of the Federal Act in relation to the same matter as made subject to an application under the State Act.

With the concurrence of the parties, a site inspection was carried out.

Subsequently, the President of the Australian Conciliation and Arbitration Commission referred the dispute C2404/1985 to a Local Industrial Board for hearing and determination pursuant to Section 44B of the Conciliation and Arbitration Act. C2404/1985 relates to the Port of Devonport Authority and the Federated Engine Drivers and Firemen's Association of Australia.

Upon resumption of the hearing at Hobart on 18 April, 1985, both matters - State T. No. 94 of 1985, and Federal C2404/85 were joined for convenience because they relate to the same matter, i.e. a site allowance claim for all employees engaged upon the building of an enlarged passenger terminal and wharf modifications which are necessary to accommodate the vessel "Abel Tasman".

At the outset, it was conceded by the Port of Devonport Authority that the particular project made subject of dispute is one on which a site allowance is appropriate. The Commission was asked to determine the quantum of such site allowance, and that indeed was the position of all parties who accepted the earlier inspections carried out on 10 April at Devonport, and the observations made by all parties as part of that exercise, be deemed to be part of the formal arbitral exercise.

The inspections had revealed that the relevant work concerns all that work being undertaken by the Port of Devonport Authority with its own labour force and sundry contractors, and necessary to accommodate the berthing facility for the "Abel Tasman" and associated passenger accommodation.

There is already a substantial wharf at East Devonport and a passenger terminal building which adequately services the "Empress of Australia". However the "Abel Tasman" is substantially larger and will carry approximately double the number of passengers. As a consequence, the existing vehicular wharf ramp and passenger terminal building must be modified, including increasing the size of the passenger terminal building.

In essence the work involves:-

(a) Partly dismantle the passenger terminal building, including the stair well.

(b) Install a new stair well.

(c) Provide a new area for a lift.

(d) Temporary stairs to be later replaced by an escalator mechanism.

(e) Extension of the overall passenger deck at the upper level.

(f) Upgrading of associated facilities, including toilets etc.

It was a matter of common ground that the bulk of the work is building construction involving building worker classifications. In addition, the parties agreed that the work of altering the wharf ramp in the same immediate area involves the same work gang and that such personnel are interchangeable, and therefore not separable for the purpose of this exercise.

The claim of the unions was for $2.00 per hour for each hour worked as a flat amount for the duration of the job.

It was alleged by the union representatives that this particular project is clearly distinguishable from an ordinary building project because it involves:-

(1) Demolition and alteration of existing structure, and

(2) It is subject to what was described as "outside influence". Those matters were detailed as:-

(a) Difficulties created by working whilst public access to the area in that both vehicular and passenger traffic regularly traverse through the work site, to and from the "Empress of Australia" on 2 days per week, exacerbated by the fact that Department of Agriculture inspections held up cars and passengers.

The "Mary Holyman" also berths in the same vicinity and loading and unloading is disruptive to building construction activities and creates a potential safety problem if great care is not exercised.

(3) Access to the upper storey of the terminal building was claimed to be "not of the normal standard" in that it is by an aluminium ladder.

(4) Sandblasting is being carried out in the area and the result affects all who work in the same vicinity.

(5) Safety boots are not supplied.

(6) Working close to the seaside subjects employees to strong salt laden sea breezes and causes both discomfort and a tendency for corrosion to tools to an extent not usually associated with working in a normal work environment.

(7) Some employees in the gang have duties which require them to work over water.

Reference was made to a number of other disputes in which the Australian Conciliation and Arbitration Commission awarded site allowances in the building and construction industry as well as civil construction. It was argued that in some of those cases recognition was given to the abnormality of employees work being carried out where public access is maintained. Hobart International Airport renovations and extensions was given as a case in point (C6598/84), Civil and Civic and BLF and Others).

In presenting the employers' response to the claim, Mr. Abey submitted that any site allowances awarded must be allowable by the Wage Fixing Principles of both the Australian Commission and the Tasmanian Commission. (Both Principles are the same).

Mr. Abey referred, in particular, to Print F2900 at page 42 and quoted, inter alia, from what appeared under the sub-heading of Allowances, First Awards and Extensions of Existing Awards:-

"It should be noted that building and construction site allowances will continue to be determined in accordance with the decision of the Full Bench of 25 February, 1983. (Print F1957)."

That case, known as the Sapri Case, was relied upon and quoted as to the criteria laid down for determining the question of site allowances.

At page 6 of that decision it says, inter alia:-

"We see the existing arrangements as they were operating on 23 December last continuing to apply, subject to the following:-

(i) In relation to a claim for a new site allowance the first issue to be decided is whether the site is one for which an allowance is appropriate. As the unions acknowledged, not all projects attract an allowance. The test is whether at 23 December 1982 the site would have attracted such an allowance. It would be quite contrary to the intention of the wage pause to grant a site allowance for areas or circumstances where one would not have customarily applied or in any other way to create a precedent for the extension of site allowances beyond the areas or circumstances to which they have previously applied."

(Three other criteria are also listed but were not quoted or relied upon).

Mr. Abey said that having regard to this principle, it was conceded that it would be within the Principles to award a site allowance in this instance in that there can be no question that a significant part of the project constitutes the remodelling of a building.

It was further conceded that site allowances for building projects as such are not uncommon. The fact that the wharf operation is an integral part of the same project, and that labour is interchanged between the wharf and the terminal building creates a situation whereby it would be industrially unrealistic to attempt to divide the two components of the project.

He added that had this been a wharf project in isolation, his submission may well have been quite different.

Whilst it was conceded by the employer that the site should attract some additional payment, it was said that any such allowance should be of modest proportions, having regard to the circumstances of the site.

Decision

The joining of the State and Federal matters in relation to the one issue of a site allowance claim pertaining to separate unions differently bound yet engaged in the one project became possible only because of the co-operation of the respective Presidents of both Tribunals. This removed the first major impediment to settling the dispute.

There still remain, however, complexities which need to be understood because such circumstances appear to be unique to the site.

Certainly the parties have used arguments and quoted references to circumstances which are not the same and therefore puts into doubt the relevance of much, if not all, the argument.

In particular, I have some concern for the suggestion that the Sapri Case can be useful in the present case, given that a marine authority is using its own labour to carry out work which is necessary to allow a replacement ship on the Bass Strait run to berth, load and unload cargo and passengers.

Certainly the Principles embrace the Sapri Case and during the course of the hearing, the parties were directed to the contents of the Full Bench decision of 16 August, 1984, handed down in Melbourne relating to an appeal matter in C.No.1036 of 1984 against a site allowance decision granted by Commissioner Coleman.

At page 6 of Print F6435 the Full bench said, inter alia:-

"The parties in these proceedings have raised the question of the relationship between the Principles laid down in the Sapri Case (F1957) and the wage fixing principles announced in the National Wage Case decision of 23 September 1983. In the course of the latter, the Full Bench said:-

`It should be noted that building and construction site allowances will continue to be determined in accordance with the decision of the Full Bench of 25 February 1983.'

Consequently, it is our view that Principle 9, Allowances, of the current wage fixation Principles must be read in conjunction with the Sapri Case principles, insofar as site allowances in the building and construction industry are concerned."

I draw attention to the fact that the Full Bench was referring to site allowances so far as the building and construction industry is concerned.

It is a significant feature of the Sapri Case (Print F1957) which is relied upon by the employer to support the contention that the instant site allowance claim is allowable by the Principles, that that part of the dispute relied upon in the earlier case concerns Sapri Construction Company Pty. Ltd. and the Amalgamated Society of Carpenters and Joiners of Australia and others, involving a decision in the building and construction industry.

The Port of Devonport Authority is a harbour authority and not ordinarily involved in the building and construction industry, and arguably is not now. The vast majority of its employees are covered by the State Award of the Marine Boards Industrial Board. A small minority are accepted as being covered by the Federal Engine Drivers and Firemen's (General) Award.

At page 3 of the Sapri Case print the Full Bench said, inter alia:-

"It can be seen from the above that whereas the disputes before us extend to various types of allowances, particular reference was made by the President to site allowances.

The granting or altering of allowances is particularly referred to in Guideline 3 of the Commission's decision of 23 December 1982 and is as follows:-

`Only in circumstances which could not have been foreseen at this date should increases in existing award allowances or service increments be permitted or a new site allowance or service increment created'."

Reference was then made to the state of the economy.

More particularly, the Sapri Case referred to the fact that the parties adverted to the history of the building trades awards, and the fact that those awards already contained a provision recognising site allowances.

This was expressed at page 4 thus:-

"During the proceedings the parties referred to the history of the building trades awards particularly since 1975 when the first so-called "paid rates" award was made and to the development of various types of allowances in the industry, both by award prescription and in the form of private agreements, including the granting of site allowances. Allowances, other than site allowances, have continued to be prescribed by the relevant awards. As to site allowances, these too have been specifically prescribed by the awards from time to time for named sites, particularly on resource development and other major projects. Since early 1982 there has also been provision within the awards for dealing with other site allowance claims, including major shopping centres which had previously been dealt with, in the main, outside the awards.

This regularised situation is reflected by the following provision now in the national Building Trades Construction Award and similar provisions in the Building Construction Employees and Builders Labourers Award, the various Plumbing Awards and the Australian Workers' Union Construction and Maintenance Award:

Site Allowance

`Where a dispute arises on any site as to entitlement to an allowance or the proper level of such an allowance, a party may notify the Commission of such dispute and the Commission shall determine the proper rates as thought necessary to compensate for special factors or disabilities associated with work on that site; provided however that the Commission may determine that such site allowance shall be paid in lieu of any of the special rates related to conditions on the site as prescribed in subclause 12.1 hereof.

Where the procedure prescribed by this subclause is being followed work shall continue normally.

A site allowance determined in accordance with this subclause shall be deemed to be prescribed by this award and shall apply in accordance with the terms of the Commission's decision.'

It was argued by the unions involved in building and construction that, as a result, the current awards in fact already provide for site allowances. That the determination of a site allowance under the above provision does not involve the creation of a new allowance and that assessments of amounts of particular site allowances under the provisions necessarily take account of conditions which by their very nature were unforeseen when the provision was included in the award and were unforeseen on 23 December 1982."

Later at page 5 of the Sapri Case the Full Bench said, inter alia:

"It will be evident from the submissions that there was common ground among the parties that Guideline 3 does not preclude the establishment of new site allowances. We agree with this as it does not involve the creation of a new type of allowance but the fixing of the amount of an allowance for which provision exists in the award and for which there is a specific procedure laid down."

The Bench then only had to address itself to the fact that there were differences amongst the parties as to the precise circumstances in which new site allowances should apply.

My concern is twofold:

(1) There is no history of the work being carried out by harbour authorities in this State or elsewhere being work which, at 23 December 1982, would have ordinarily attracted a site allowance. In fact, the reverse is the case. In 1959 the original work of building a passenger ferry terminal building was contracted out by the Port of Devonport Authority and no site allowance was applicable.

Renovations to the same building were undertake by the Port of Devonport Authority using its own labour force in 1973 and this too did not give rise to a site allowance being granted.

(2) Neither the Award of the Marine Boards Industrial Board nor the Engine Drivers and Firemens (General) Award contains provision for the granting of a site allowance claim, as do the various building trades awards and the Australian Workers Union Construction and Maintenance Award.

The parties did indicate that they held opposing views as to whether or not the bulk of the work presently being undertaken falls properly within the scope of the Award of the Marine Boards Industrial Board (not including F.E.D.F.A. personnel), but they did not fully debate this question.

If the relevant work falls within the scope of the State Award of the Building Trades Industrial Board which largely mirrors Federal counterpart awards, and therefore contains provision for site allowances, then it would not be unreasonable to apply the Sapri Case, provided all of the other criteria can also be accommodated.

I make it clear, however, that the ordinary work carried on by harbour authorities, in all of its varied facets, including the maintenance, erection and repair or demolition of wharf buildings, cannot be treated in the same way as the building and construction industry so far as site allowances are concerned within the terms of the current Principles applying Federally and within the State of Tasmania, by relying upon the Sapri Case.

The building and construction industry has a history of practices which are not the same as harbour authorities and the two should not be confused.

It must be recognised that, in this instance, there is a situation that must be regarded fairly and realistically as unique.

The Port of Devonport is recognised as an authority which is extremely diversified and, to its credit, conducts a variety of businesses, either alone or in conjunction with others. As I understand it, this authority has an active interest in such businesses as:

(a) cool stores for vegetables and butter away from the vicinity of any wharf;

(b) abattoirs;

(c) a commercial airport;

(d) boat building.

Against this background, it would not be difficult to include "occasional builder" to the list, but I am not prepared to take such a broad-brush approach when proper opportunity was not granted to enable both parties to fully debate this aspect.

It is a matter of some significance, however, that the erection of the original building was contracted out to a builder and the parties agreed that if the same was done on this occasion, the State building trades awards would automatically apply.

For the purpose only of considering the site allowance question as a means of settling this dispute, I am prepared to treat the project to be a building construction site because of the significance of the project which is to cost in the vicinity of $2 million, as well as the nature of the building and the purpose for which it is to be used.

Whilst the uncomplicated straightforward nature of the original building did not attract a site allowance at this particular locality, I believe that if the present circumstances had prevailed as at 23 December, 1982, then they would have attracted a site allowance.

I do not accept all of the argument advanced by the claimant unions as to factors which are said to justify a site allowance.

Nevertheless, some of those reasons are valid, and in particular, the presence of passengers, cargo and private vehicular traffic, even though not continually present, creates an extremely difficult and disruptive work environment, not normally encountered at a building site. This, in conjunction with the difficulty of access to the first floor level and the presence of sandblasting, creates conditions which, in combination, could not reasonably have been foreseen when award conditions, including the existing disability allowance, were set.

I therefore conclude that upon merit, a site allowance is appropriate.

In considering the quantum of the allowance, I accept that disruption caused when other ships are in nearby berths is not constant and that other factors will vary and must similarly be averaged out.

Having regard for all of the facts and consequent upon what was brought out during the course of inspections, I determine that the site allowance applicable to this particular project shall be 55¢ per hour for every hour worked as a flat amount to be in lieu of all special rates otherwise applying, other than for the rate applying to heavy block laying.

Whereas the principal employer is the Port of Devonport Authority and the employees in this special project at East Devonport number approximately 40, including approximately 23 temporary men, I recommend that contractors on site similarly apply the same site allowance.

The parties agreed the period concerned is the life of the project and I was not called upon to determine a more definitive time.

I decide accordingly.

A. Robinson
DEPUTY PRESIDENT