T322
IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act, 1984
The Building Workers Industrial Union (Tasmanian Branch) (B.W.I.U.) made application to vary the Building Trades Award in the following manner. 1. To increase tool allowances in Part I, Section I, Clause 5 and Section II, Clause 4 with consequential increases to the rates paid to hourly hire employees in both sections, using the formula prescribed in the National Building Trades Construction Award for the purpose of computing the hourly rates. 2. To increase the rates applying in the following clauses of Part II, Section I -
3. Increase the rates applying in the following clauses contained in Part II, Section II -
4. Increase the rates in Part I, Section VI - Weekly Hire, Maintenance and Workshops, Clause 5 - Tools and Tool Allowance. Mr. Currie, representing the B.W.I.U., stated that the application emanated from a decision handed down by Mr. Justice Alley of the Australian Conciliation and Arbitration Commission (C. No. 7642 of 1985). Mr. Smith, representing the Master Builders' Association of Tasmania, and Mr. Edwards, representing the Tasmanian Chamber of Industries, supported the application made by the B.W.I.U. including the operative date. The parties' submissions can be summarized as follows:- 1. the decision handed down by His Honour, Mr. Justice Alley, resulted from a review of expense related items contained in the National Building Trades Construction Award (C No. 7642 of 1985) and the Plumbing Trades (Southern States) Construction Agreement (C. No. 9112 of 1986); 2. the Australian Bureau of Statistics' figures had been used to index the expense related items; 3. the parties sought to vary the allowances in accordance with Principle 9 (a)(i) of the Wage Fixation Principles; 4. His Honour, Mr. Justice Alley, made his decision in accordance with the same Principle; 5. there exists a nexus between this award and the National Building Trades Construction Award and the Plumbing Trades (Southern States) Construction Agreement, and acceptance by the Commission of the claim would maintain the nexus; 6. the decision of the Australian Conciliation and Arbitration Commission in matters C. No. 7642 of 1985 and C. No. 9112 of 1986 granted an interim increase of 7.7% pending a complete review; 7. the subject matter of this application had been tested in the Australian Conciliation and Arbitration Commission; 8. the tool allowance has been traditionally subjected to a formula determined initially by Mr. Justice Ludeke, which reflects the cost of purchasing a common tool kit; 9. the tool allowance appearing in Part I, Section VI - Weekly Hire, Maintenance and Workshops, be varied in a like manner; 10. the award be varied from the beginning of the first full pay period to commence on or after 19 December 1985. Award Cross References It was put to me during the course of the hearing by the Master Builders' Association of Tasmania and the Tasmanian Chamber of Industries, that if I granted the claim, and varied Part II, Section I, Clauses 5, 15, 16 and 29, then I should ensure that Part II, Section III - Builders Labourers, was not inadvertently varied. They maintained this could occur as Part II, Section III, Clause 10 - General Conditions, stipulates that Clauses 5, 15, 16 and 29 of Section I shall apply to builders labourers. They therefore requested the Commission to delete reference to Clauses 5, 15, 16 and 29 from Part II, Section III, Clause 10 - General Conditions, and print in full in Part II, Section III, the following clauses containing the existing rates. (a) Fares and Travelling Mr. Bacon, representing the Australian Building Construction Employees' and Builders' Labourers Federation (Tasmanian Branch) stated that he was mindful of the fact that there was no application before the Commission to vary Part II, Section III of the award and, therefore he would have no objection to the proposal presented by the employers. DECISION I have been persuaded to vary this award in the manner sought by the parties. Having decided to adopt that course it is necessary to point out that a similar claim was made to vary this award in December 1984, and this is the first review of these allowances since that occasion. The Wage Fixation Principles enable existing allowances which constitute a reimbursement of expenses to be adjusted to reflect the change in the level of such expenses. I accept, from the evidence presented, that this application falls within that category. I note also that the Federal Award and Agreement with which this award has a nexus have been varied in the precise terms as that claimed by the applicant in this matter. The granting of the claim will, by necessity, mean that the rates of pay for hourly hire employees in Part I, Sections I and II will be increased accordingly as the formula used to compute the hourly rate includes the tool allowance which has been varied by this decision. The formula to which I refer is that which applies to the National Building Trades Construction Award, and adopted by the parties to this award some time ago even though there is no reference to that formula in this award. (This, I hope, will be rectified by the parties in the not too distant future.) The Hourly Rate Calculation - Follow the Job Loading contained in the National award reads as follows: "The calculation of the hourly rate shall take into account a factor of eight days in respect of the incidence of loss of wages for periods of unemployment between jobs. For this purpose the hourly rate, calculated to the nearest cent (less than half a cent to be disregarded) shall be calculated by multiplying the sum of the appropriate amounts prescribed in 9.2 [Weekly Bate Rates] and 9.3 [District Allowance] herein, Clause 10 [Industry ad Underground Allowance] and Clause 11 [Tool Allowance] by fifty-two over fifty point four (52/50.4), rounded to the nearest cent, adding to that subtotal the amount prescribed in 9.5 [Special Allowance] herein and dividing the total by thirty-eight (38) provided that in the case of a Carpenter-Diver, the divisor shall be thirty-one (31)." (contents of [.....] mine). Award Cross References As there was no application before me to vary Parts I and II, Section III of this award I am going to adopt the suggestion of the employers and take the necessary steps to ensure that Section III is not inadvertently varied through the cross referencing of Section III back to Section I. My order will reflect this position. I note also that Mr. Bacon, representing the Australian Building Construction Employees and Builders Labourers Federation (Tasmanian Branch), did not oppose this course of action. OPERATIVE DATE The Industrial Relations Act 1984 states inter alia:- "37(5) The Commission may, in an award, give retrospective effect to the whole or any part of the award - (a) if and to the extent that the parties to the award so agree; or (b) if, in the opinion of the Commission, there are special circumstances that make it fair and right to do so." The parties, on this occasion, have agreed that the operative date of this award shall be from the beginning of the first full pay period to commence on or after 19 December 1985 and I am prepared, on this occasion, to support the agreed operative date. I do so not only because the parties have agreed, but because I believe there are special circumstances that make it fair and right to do so. The parties have been, for some time, trying to clarify this award and discussions have taken place in an attempt to reach a position whereby an agreed document can be presented to the Commission. This exercise has taken longer than anticipated and even though the parties have made every attempt to finalize their position, they eventually had to request the Commission to bring this application on for hearing as the completion of this task was not possible within the time span. The award will be varied from the beginning of the first full pay period to commence on or after 19 December 1985 as can be seen by the attached order. ORDER I have also taken the opportunity to consolidate Part I of this award to take account of the many amendments since 17 July, 1984. Part II of the award will be consolidated at some later date.
R.J. WATLING |