IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

On 24 January 1986, I published my preliminary findings on matters sought to be included in what would be a first craft or occupational award for miscellaneous workers.

In my decision I identified a number of items in respect of which further information was required.

The parties were also invited to confer on these and other issues with a view to reaching agreement or identifying areas of disagreement.

On 12 March a further hearing was convened for the purpose of taking responses from parties on the questions raised by me and to report progress, if any, flowing from conferences held during the adjournment.

In the event the Commission was informed that a significant measure of agreement had been reached on all matters. The actual terms of agreement were, I feel, an object lesson for industrial practitioners at all levels and on all sides of the industrial table.

Specifically it demonstrated what can be achieved, given goodwill and mutual trust on the part of all parties.

I therefore turn to the matters addressed. Where appropriate a brief resume of attitudes of the parties to certain issues will be given and my decision recorded on each matter.

INCIDENCE OR APPLICATION OF AWARD

In earlier proceedings The Australian Mines and Metals Association (A.M.M.A.) had objected to a new award applying willy-nilly in the mining industry where other awards and agreements applicable to the majority of employees already had application.

The Union and the A.M.M.A. subsequently agreed to exempt employers and employees in that industry. And in this regard it was agreed that for the purposes of identifying "the industry of mining" a mine should have the same meaning as that attributed to the noun "mine" in Section 3 of the Mines Inspection Act.

On the understanding that this exemption will only apply to employers of persons in the mining industry per se, and not incidental or remote from the industry, the agreed exemption will be incorporated in the award in the expectation that mining industry employees are already catered for by industry awards, Federal or State, and do not become award free.

As this is the first award of this kind to have application in the private sector, it occurs to me that I should take this opportunity to explain who shall be bound by its terms.

Except to the extent to be specified in an Exemptions and Modifications clause to be included in the award, it shall have application to and be binding upon all employees and employers of junior and adult persons in the classifications set out in the award except:

To the extent that there is discovered inconsistency between awards or agreements referred to in (a), (b) and (c) above, this award shall have no application.

Notwithstanding the foregoing, having regard for informed discussion that took place during proceedings regarding the likely incidence of application of this award, leave is reserved to any organisation of employers to apply for exemption in whole or in part from its operation. However in all such cases the onus will rest heavily upon the applicant seeking relief to show cause why such an exemption should be granted.

JUNIOR RATES

Mr. O'Brien agreed to the inclusion of a schedule of junior scales capable of having application to all adult classifications.

In signifying his agreement to this provision he made it clear that:

(a) If juniors are to be employed, employers can only expect to get what they pay for. That is to say, no employer can or should expect an adult performance from a junior employee; and

(b) In any case, no employer should be able to employ more than 50 per cent of his workers employed under the terms of this award as juniors. Thus, if 4 cleaners and 2 yardmen were employed by the one employer, he could employ no more than a total of 3 juniors. In those circumstances there would be no impediment to engaging, say, 3 junior cleaners provided he employed the remaining cleaner and all yardmen as adults. Or he could employ 2 junior yardmen plus 1 junior cleaner, so long as the remainder were employed in adult classifications. It is clear therefore that an employer would have reasonable flexibility in employing a mix of juniors and adults. And of course the prescribed ratio of juniors to adults could only apply where more than one person is employed under the terms of the award. Were this not to be the case such a provision would act as a prohibition against employment of young people.

Nevertheless inclusion of junior rates for all classifications, albeit totally justified in my opinion, unquestionably represents a major and commendable concession by the union. This concession was, I feel, welcomed by the Tasmanian Chamber of Industries.

In deciding to include a schedule of junior rates I will also include those classifications referred to by Mr. O'Brien relating to the ratio of juniors to adults.

Mr O'Brien's gratuitous observation regarding the level of responsibility and performance to be assumed by, or expected from, juniors, requires no decision and very little comment other than to remind the parties that juniors are juniors. They do not in the early stages of their working life hold themselves out as experienced workers and therefore cannot be regarded as such. As they gain experience in their chosen avocation their rate of pay increases - somewhat mechanically perhaps. But each increment is intended to reflect and compensate for the increasing progress made by the worker in his or her quest for recognition as a useful contributor to an employer's work-force. As a junior further ascends the experience ladder, he or she must expect to accept proportionately more responsibility and produce better results. This will continue until full adult status is achieved. At that point the employee is entitled to hold himself or herself out as an experienced worker and expect to be rewarded accordingly by being paid the appropriate adult rate.

PROTECTIVE CLOTHING

Consequent on some earlier debate on this issue, Mr. O'Brien advised that as a result of discussions held it was now agreed that there would be a continuing requirement to provide overalls or coveralls to those classifications of employees already entitled to receive them under the terms of the Insurance Award^1(P040) ; or to persons such as those who might attract the classification of vehicle cleaner carrying out work, the nature of which could be expected to require protection against soiling of clothing or work attire.

Domestics and library attendants would, he said, be exempted from this provision.

Nevertheless where an employer required an employee to wear a uniform as distinct from protective clothing, it was understood that no exemption from the proposed award prescription would apply. In short, where an employer requires an employee to wear a uniform the employer shall be responsible for providing that uniform. But protective clothing, such as overalls or coveralls, need only be provided to employees working in classifications that are not exempted by the terms of this award.

PREFERENCE

A good deal of discussion took place regarding the agreed Preference of Employment clause. In the result the Union agreed to modify the provision by deleting the requirement for approved conscientious objectors to make a cash contribution to a union-nominated charity. This alteration was necessary in view of the Commission's jurisdictional incapacity to include such a requirement in any case.

Nevertheless I adhere to my earlier-stated view that any provision, the effect of which is to require employees or potential employees to become and remain financial members of an organisation as a condition precedent to being afforded preference in employment (and, one assumes, retention in employment) is tantamount to requiring compulsory union membership by award.

Even if it was within the Commission's jurisdiction to make such an order, I would be reluctant to do so. There is a number of reasons for this. One major consideration must surely be that for so long as Sections 144 and 145 of the Commonwealth Conciliation and Arbitration Act continue to apply to persons seeking to become members of, or resign from their membership from federally-registered organisations (which may also happen to be state registered), no "compulsory unionism" provision, however described in a state award could, in my opinion, be regarded as a binding prescription.

In the instant case I was assured by Mr. O'Brien that the agreed provision (which is by no means new or unique in private industry awards inherited by this Commission) is not in fact intended to be regarded as compulsory unionism.

Instead it is to be seen more as a provision intended to give preference in employment to those who are either members of an appropriate union at the point of application, or persons who are willing to become members. In any case, preference in employment in this context must be written down to the "all things being equal" understanding.

Mr. O'Brien later explained that unless a provision of the kind now under examination is included in the award, it would be open to any non-unionist seeking employment to give an undertaking to join an organisation in order to obtain the measure of preference flowing from the provision. But if successful in his application for employment, without some form of estoppel it would be open for that person to immediately resign his membership.

This, Mr. O'Brien submitted, would be against the true intention to the preference clause. Furthermore he reminded me that the particular provision which I considered to be potentially offensive would not apply to persons who at point of entry were already members of an organisation.

I will reluctantly accept this explanation. The responsible attitude demonstrated during the conduct of this case provides no grounds for concluding that Mr. O'Brien's expressed views on the intent of this clause are other than genuine and expressed in good faith. Moreover, as Mr. Sertori raised no objection, the proposed agreement will be included. But it must be clearly understood this is not a standard this Commission necessarily accepts as appropriate or desirable. It is, however, an existing provision in the Insurance Award^1(supra) which will be largely subsumed by the operation of the Miscellaneous Workers Award.

MIXED FUNCTIONS

I was informed that it is now agreed that a Mixed Functions clause should be included in the award. This will provide for payment at the higher rate for actual hours worked, up to 3 in any one day, where an employee performs duties for that period in a higher classification for which a greater rate is prescribed.

Where an employee, classified to a lesser classification, is directed to perform work covered by a higher classification for more than 3 hours on any one day, he shall be entitled to be paid the higher rate as for the whole day.

In this context the test to be applied is actual hours worked in the higher classification - not equivalent penalty hours such as might result from, say, 2 hours' overtime worked before or after the normal commencing or cessation time. In such cases (assuming no other work was done at the higher rate during the day) only overtime worked would be paid at the higher rate. But if the actual period of overtime worked exceeded 3 hours but all other hours worked during the day were carried out in the employee's substantive classification, he would be entitled, none the less, to be paid for all ordinary and all overtime hours at the higher rate.

PAYMENT OF WAGES

Despite my expressed concern about certain aspects of the proposed Payment of Wages clause to be included in the award, I was assured that for the time being at least no alteration should be made to the intended provision.

Mr. O'Brien explained that those apparent deficiencies regarding time and nature of payment to which I had drawn attention were the result of agreed concessions regarded as set-offs against the introduction of a 38-hour week, and for that reason alone ought not be altered by the Commission.

I accept this explanation and will include the agreed provision. Nevertheless, in acknowledging this agreement, and the reasons for it, I would none the less expect that where reasonably practicable employees, if they so desire, will be paid during working hours. The only departure from this fundamental approach should be in cases where either the nature of the activities of an employer and his employees, or the physical circumstances obtaining at an employer's establishment are such as to justify a different method of payment being adopted.

In short, I would expect reasonable employers to act reasonably and meet the convenience of employees wherever possible, provided, of course, no significant additional costs are involved.

Mr. O'Brien pointed to the growing incidence of direct bank deposits as an alternative to payment in case. This naturally renders unnecessary the need to ensure that employees are paid, wherever practical, within working hours.

I am aware that this alternative is probably growing in popularity. This has particular application where employees are members of credit unions and this kind of pay deduction is agreed to. But the fact remains there will always be a significant section of the work-force who confidently expect, and must be considered entitled, to be paid in cash where there exists no good reason why this should not be an option.

38-HOUR WEEK

In my earlier findings I indicated certain reservations about a 38-hour week provision being included in this award before the "parent" Insurance Award^1(supra) was varied. As that stage I was of the opinion that to do so may well have been tantamount to the tail wagging the dog.

However, it was explained to me that this ward, when made, will embrace the majority of persons now subject to the extended^{2(Statutory Rule 290 of 1984 (Schedule 2)} Insurance Award. This means that in future the Insurance Award will apply in the insurance industry and not have general application.

I accept that all reasonable set-offs (including the significant concession of inclusion of junior rates) have been attended to and properly addressed. The claim having not been opposed is therefore granted. However I consider it will be necessary to make some temporary arrangements regarding retrospective application of this provision. These are referred to elsewhere in this decision.

CLASSIFICATION OF DOMESTIC

I turn now to consider what is perhaps the most important classification to be included in the Miscellaneous Workers Award. Although a number of questions were raised regarding proposed coverage of domestics, on each occasion the Commission sat to consider this and other matters no party was able to demonstrate why such a classification or occupational group should not be made the subject of award coverage.

Among other things, comment was invited on the possibility of school children who do baby-sitting or ironing or other domestic work such as house-cleaning for pocket money, now becoming subject to award coverage subject to the Preference of Employment clause.

A good deal of discussion also centred around the notion of juniors and adults performing work on a contract for services basis as distinct from carrying out work in accordance with a contract of service - i.e. where a clear employer-employee relationship exists.

On balance it seems to me Mr. O'Brien's pragmatic observation "that many casual arrangements might continue to be regarded as contracts for services" is apposite. I agree with that view. I also accept his submission that there are numbers of situations where clear employer-employee relationships exist. There could also be discovered at least one professional body from whom domestic assistance may be obtained on a fee for service basis. Employees of that body might now except to be covered by this award.

During the hearing it was more or less agreed that the best approach to the general question of award coverage for domestics would be to generally publicise the fact that unless persuaded otherwise the Commission will proceed to prescribe award rates and employment conditions for domestics including juniors. And in this regard the Commission should decide that in due course an opportunity would be afforded to interested organisations to show cause why this classification should not now be subject to award regulation.

Accordingly, and if requested to do so before 7 May 1986, I am prepared to consider any bona fide objection on 21 May 1986. However, it should be clearly understood that those seeking to persuade the Commission to refrain from including the classification of domestic in this award must accept that the onus will rest upon the objector.

In the event the classification is included, the Commission confidently expects that the union will not capriciously attempt to enrol as members persons who, because of age or domestic circumstance, find themselves compelled to perform duties of a domestic nature on an occasional basis. On the other hand it may be that some individuals might willingly seek membership of an appropriate organisation in order to secure the kind of protection or representation not available to non-members.

Should the Commission find no impediment to providing award coverage for domestics it will frame a suitable provision saving the situation of employees who, although under the age of 21, might presently be in receipt of higher rates than in future could be attracted under the terms of the junior scale. Any such saving provision would, of course, have application only to persons presently employed, or employed at the date this award takes effect.

OPERATIVE DATE

As stated on 12 March, 1986, the award will apply in all respects from 12 April 1986, save that the classification of Domestic, if included, will not apply until after 12 May 1986.

NON-STANDARD CONDITIONS

This award is made by consent, and must be seen in that light. It will contain a number of provisions which, on their face, may appear to be more generous than would otherwise have been awarded had these matters been left to the Commission to determine.

I refer specifically to such provisions as automatic substitution of public holidays that fall on weekends (e.g. Anzac Day); certain sick-leave provisions, the effect of which appear to authorise two "sick" days each six months without proof of illness; preferences in employment (to which specific reference has already been made), along with an agreed provision regarding technological change. These are the main areas of concern to me.

Ordinarily I would have declined to include such provisions, whether by consent or otherwise, had it not been for the fact that the reality of the situation is that these conditions already have application by reason of the Cleaners Award^1(P018) and the general application provisions of the Insurance Award.^2(supra) And whereas no employer party submitted any reasons to justify these provisions, all agreed that they could not now be withdrawn having regard to their consent background and the history of award coverage for the majority of classifications that will now become subject to the terms and conditions of this award.

It is true that the Commission could have provided different conditions for future employees saving only the situation of those already employed at the date the award takes effect. But it was generally agreed that this would be divisive and likely to produce industrial disharmony if two employees of the same classification, employed in the same establishment, were to find themselves entitled to different conditions under the terms of the one award .

The remedy of course lies in the hands of any organisation that wishes to seek ane exemption from part or parts of this award. However in the absence of agreement the burden of proof would be heavily upon such an applicant to demonstrate the appropriate alternative arrangements could be made within an employers' establishment.

OVERTIME AND EXTRANEOUS PAYMENTS

This has been a somewhat unusual case. It is the first application the Commission has been asked to deal with which seeks a craft or occupational award as distinct from an award having industry-wide application.

Unfortunately, the time taken to bring this matter to a satisfactory conclusion has been somewhat lengthy. No blame can be attributed to any of the parties. In truth it might be said that being a first award the Commission has itself chosen to proceed with some caution.

It is difficult to provide for every foreseeable circumstance in bringing down a first award likely to have quite wide application across many industries. This perceived difficulty is not lessened by the fact that many employers and employees will, on promulgation of the award, because of its general application characteristics, become subject to its terms perhaps without having had prior knowledge of the likelihood that such an award would be made. For that reason, it seems to me some temporary relief may need to be provided for employers enmeshed in this common rule or general application concept who are genuinely unaware that a 38-hour week will now apply from 12 April.

I am of the opinion that it would be unreasonable to immediately exact penalty rates from those employers who, being genuinely unaware of what was happening, having continued to require their employees to work a 40-hour week beyond that date.

This situation I believe illustrates the difficulty experienced by some employers bound by common application awards. Many have no prior knowledge of likely retrospective or prospective obligations to allow improved wages and working conditions to their employees.

Of course one obvious remedy is to become a member of a registered employer organisation. But it is unlikely in the extreme that an ordinary householder, for example, who occasionally employs a domestic, would consider this an appropriate remedy. On the other hand it might be argued that any employer of labour, whether he employs on a part-time or full-time basis, has an obligation to keep himself informed of his responsibility to meet current or probable pay rates and conditions applicable to his employees.

If he chooses not to enquire of the Secretary for Labour of the likely or possible changes to an award, and the nature of those changes, he no doubt does so at his peril.

But as none of these matters were or could have been debated by persons who are not organisations, I have decided that on this occasion I should, in the public interest, exempt those employers from demands for extraneous payments of overtime to persons who have worked a 40-hour week beyond 12 April. That exemption will only apply until the time notice of the making of this award is gazetted, or until the regulation extending operation of the Insurance Award is rescinded, whichever occurs first.

Notwithstanding the long history of Wages Board determinations and similar awards, I incline to the view that generally speaking, except in the case of CPI adjustments and matters of that kind, adjustment to wages or working conditions applicable to "common rule" or general application awards should operate prospectively, in order to allow those employers and employees who are automatically bound without a right to appear and be heard reasonable notice of their respective rights and obligations.

An alternative might be for enactment of legislation requiring the Registrar or Secretary for Labour to give notice in the print media that certain award conditions are under review or have been changed. Order No. 1 of 1986 and Order No. 1 of 1991

L. A. Koerbin
PRESIDENT

21 April 1986