IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

On 14 October 1985, following a number of hearings convened for that purpose, I found that there existed sufficient jurisdiction within the scope of the registered constitution of the Federated Miscellaneous Workers' Union to enable the Commission to make an award for employees engaged in the occupations or callings of caretaker or janitor (resident), caretaker or janitor (non-resident), general attendant or utility officer, lift attendant, tea attendant, cleaner, groundman or yardsman, library attendant, vehicle cleaner and domestic.

In due course, a declaration to that effect was published in the Gazette pursuant to Section 33(2) of the Act.

Subsequently, the matter came before me for the purpose of making a craft or occupational award for the classifications referred to.

The application was processed in accordance with Principles 10 (first awards and extension of existing awards) and Principle 5 (Standard Hours).

It was submitted Principle 10 could be involved because what was being pursued by the union was, in many respect, no more than a cloning of existing classifications, wage rates and employment conditions set out in the current Insurance Award save that instead of the award having the characteristics of an Industry Award, what was proposed was a craft or occupational award.

Lineal relationship with the Insurance Award came about because of the somewhat curious statutory provision to be found in Section 40 of the Act which allows the operation of an industry award to be extended to other unrelated industries by way of regulation. This is confusing to employers and employees engaged in those areas. They find it difficult to accept that the terms and conditions of, in this case, the Insurance Award for example, can, or indeed should apply in, say, the Mining Industry.

To overcome this unusual situation, the FMWU prosecuted a claim for a craft or occupational award embodying the same classifications (with two significant additions) and, for the most part, similar conditions to the Insurance Award.

The new award was to apply in areas where those classes of employees were not already covered by a Federal award, a State industry award or a registered agreement.

The additional classifications of vehicle cleaner and domestic were included to fill a perceived award vacuum.

Vehicle cleaner was defined to mean -

"An employee responsible for the general cleaning of motor vehicles (including vehicles for hire) and who may also have other duties in respect of the employer's use of the vehicle."

Domestic was defined as -

"An employee who shall perform normal household duties which (without limiting such duties) may include cleaning, laundering, ironing, cooking and child-minding."

During the course of the hearing, I was informed substantial agreement had been reached between the union and the Tasmanian Chamber of Industries regarding classifications, wage rates and employment conditions - including a 38-hour week - but there remained in issue the fundament question of incidence of application.

The Australian Mines and Metals' Association on the other hand indicated agreement only with the concept of an occupational award. And while willing to accept the proposed classifications and wage rates, rejected out of hand any proposition that an employer of a small number, or perhaps only one person under the terms of the proposed Miscellaneous Workers Award, would none the less be obliged to observe in relation to those persons or that individual conditions of employment different from those applied to the majority or remainder of an employer's work force. Moreover some of those conditions were said to be superior to general industry standards applicable in this State.

The proposed 38-hour week provision was used to illustrate this point. It was suggested it would be industrially unwise to impose a 38-hour week provision on a non-consenting employer employing just one or two miscellaneous workers if the bulk of that employer's labour force observed the conditions of an industry award or agreement that determined ordinary hours of work at 40 per week. Other examples in similar vein were also given.

Both the Tasmanian Chamber of Industries and Mines and Metals Association representatives were firmly of the opinion that in situations where miscellaneous workers comprised the minority of an employer's work force, they should enjoy the same conditions of employment - Federal or State - applicable to the majority of employees at the employer's establishment.

Mr. O'Brien understandably refused to accept this proposition. He quite properly pointed out that as the law now stands, extension of all or part of an industry award by regulation - including in this case the Insurance Award - imposes on affected employers an unquestionable liability to observe the wage rates and conditions of that award, regardless of considerations of the kind argued by Mr. Sertori and Mr. Taylor.

This is undoubtedly the situation at present. But it must be kept in mind that it was the confusion resulting from common rule extension of awards that prompted this application in the first instance.

I believe both Mr. Sertori and Mr. Taylor have touched upon issues that need to be addressed in more detail before any award is made. However Mr. O'Brien's point that most of what was being objected to (other than the 38-hour week) was already applicable to and legally binding upon the objecting organisations, is equally valid.

However that may be, Mr. O'Brien appears somewhat more responsive to a suggestion that he might consider, on merit, individual applications from employers for exemption from certain parts of the proposed award. Applications of this kind could of course only be made by registered organisations and would need to demonstrate that the circumstances obtaining to an employer's establishment were such that because of existing industry conditions, or for other good reason, certain exemptions from the operation of the totality of the proposed Miscellaneous Workers Award should be granted.

To my mind this appears to be the only common sense approach to a complex problem. This being the first craft or occupational award to be made by the Commission, is it palpable all parties including the Commission should proceed with some care. When made the award may well become a model for others to follow.

For all of these reasons I propose relisting this matter. I consider this desirable in order to further clarify the fundamental issue of exemptions from or modifications to application of the award to be issued in due course.

In addition I seek further submissions on the following -

1.      38-Hour Week

Why a 38-hour week should be granted in the "extended area of the Insurance Award" before the Insurance Award itself has been considered.

2.      Conditions Carried Forward from Insurance and Cleaners Awards

Why, if this award is to now stand alone, certain conditions of employment, not regarded as standard industry conditions, or peculiar to the work of classifications contained in the award, should be carried in this award and made binding upon non-consenting employers. I have in mind certain public holiday provisions regarding substituted days; certain sick leave provisions; calculation of casual rates; requirements regarding technological change. Other examples might also be given. Furthermore there may need to be included in the award a mixed functions clause; provision for payment of wages in the employer's time and other complementary provisions of a machinery nature.

3.      Preference in Employment

Should such a provision be included at all, and if so why, and in what form?

4.      Classification of Domestic

Further information is required to enable the Commission to ensure all persons bound by the award will understand exactly what category of domestic is to be covered. The Commission is particularly concerned to clarify at the outset the position of persons of various age groups who on a "fee for service" or "rate per hour" arrangement carry out duties for householders or individuals.

5.      Juniors

Is there any requirement at all to include junior or trainee rates for any classification to be included in the proposed award?

I am of course mindful Mr O'Brien has already addressed himself to most, if not all, the foregoing matters. My immediate concern therefore is not so much with his submissions, but with the paucity of overall information from employer advocates. Prima facie they appear not to have given careful attention to the specific conditions of employment that ought to apply to employees in situations where the award itself stands alone. It seems to me this will surely be the case in many instances where small business is involved.

Accordingly, I request the parties now confer with the view to themselves clarifying and hopefully agreeing upon as many of these issues as possible.

I therefore intend relisting this application on Wednesday, 12 March 1986 (10.30 a.m. in Hearing Room No. 5, Commonwealth Law Courts Building, 39-41 Davey Street, Hobart) for the purpose of ascertaining if any further agreement can be reached, and to hear additional submissions on the merits of those matters to which I have now drawn attention, including operative date.

L.A. Koerbin
PRESIDENT

24 January 1986