IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This application was made by the Federated Liquor and Allied Industries Employees' Union of Australia (Tasmanian Branch) [F.L.A.I.E.U.j for the purpose of introducing a 38 hour working week in the Aerated Waters Award.

I was informed by the parties that discussions had taken place in 1982 and an agreement was reached at that time to introduce a 38 hour working week from that date in the three major companies covered by this award.

The method of implementation was dealt with on a plant by plant basis.

No reason was given for the delay in seeking to vary the award, some four years after it had been implemented.

It must be pointed out that during the intervening period when the union had reached agreement with the employers in this industry and the current application, an agreement was registered under the Industrial Relations Act 1975 between the F.L.A.I.E.U. and Cadbury Schweppes Pty. Ltd., granting a 38 hour week to certain employees in that company. The agreement does not include clerks' or carters and drivers' classifications.

This application, if successful, will in effect vary the hours of work in this award for employees engaged in -

(a) the manufacture of aerated waters, cordial or non-intoxicating beer and cider (including clerks) and carters and drivers at Cascade Fruit Juices and Coca Cola Bottlers Pty. Ltd.;

(b) clerks, and carters and drivers employed at Cadbury Schweppes;

Both parties urged the Commission to ratify the agreement.

My task is to consider whether or not the agreement reached between the parties satisfies the Wage Fixation Principles and, in particular, Principle 5 which states:

"In dealing with claims for a reduction in standard hours to 38 per week, the cost impact of the shorter week should be minimized. Accordingly, the Commission should satisfy itself that as much as possible of the required cost offset is achieved by changes in work practices."

In the first instance I must consider what cost offsets were achieved through changes in work practices and then determine whether the cost impact will be minimal.

During the hearing it was put to me that the major cost offset was that rostered leisure days (12 per year) would be taken during that part of the year normally referred to in the industry as the 'low season'.

As no specific mention was made about clerks and carters and drivers, one can only presuppose that this agreement would also apply to those employees.

Whilst I recognise that the method of implementation agreed to by the parties may be in a form that allows idle time to be reduced in the 'low season', nevertheless, it is in my view, very hard to quantify and neither the unions nor the employers made any attempt to do so.

It can hardly be said that a method of implementing a 38 hour week can be considered an offset in the terms of "changes in work practices", however, it may reduce the cost impact of introducing a shorter working week. The onus on the parties to satisfy the Commission of its monetary value was not discharged.

The other offset I was asked to endorse was a provision to extend the span of ordinary hours, but the award variation sought by the parties was conditional upon agreement being reached between the employer and the relevant unions.

No attempt was made to cost this purported offset and I can understand why, as it was conditional upon agreement being reached between the parties.

One may even question whether or not it can be classed as a genuine offset.

Another offset relating to Cascade Fruit Juices which expired on 1 January 1985 was as follows:

(i) 13 nominated days in the year to be known as make up days when 2 shifts would operate from 6.00 a.m. to 2.00 p.m. and 2.00 p.m. to 10.00 p.m. On such nominated days no shift penalties would be paid.

(ii) 1 R.D.O. to be taken on Brewery Picnic Day.

(iii) Meal allowance only to be paid if employees not notified on the previous day.

Whilst I accept that agreement was reached between the F.L.A.I.E.U. and the Company, and implemented on 1 January 1983, nevertheless, no value was placed on this offset.

I point out to the parties that they are free to reach agreement on any matter over and above the wage rates and conditions contained in the award, but they should not expect this Commission to automatically rubber stamp agreements reached outside the system.

The Wage Fixation Principles are clear. I intend applying the strict test in this matter.

At this stage the parties have made little or no attempt to quantify the cost offsets associated with this agreement and have relied on assertions such as:

(a) the value to the employers of the offsets were satisfactory in respect to the implementation of the 38 hour week;

(b) that there would be next to no cost involved in providing a 38 hour week in that form;

(c) I would certainly submit that the cost effect is very, very minor;

(d) the banking of days, and taking them in the off season, minimized the cost of the implementation of the 38 hour week;

I remind the parties of the decision of the Full Bench in T. No. 3 of 1985 which receives my support

"For that reason we make it clear now that if applicants are to have the Commission consider claims for reduced hours, including agreements for the working of those hours over a 9-day fortnight or a 19-day month, the following minimum criteria must be met.

1. The matter must first be agreed to by all parties. (* Now varied because of new Principle 5.)

2. There must be produced to the Commission hard evidence, preferably in documentary form, of improved work practices.

3. There must be produced information or a document setting out the approximate gross and net cost of what has been agreed.

4. There should be produced a document identifying consequential alterations necessary to give effect to the agreement reached. That document should include full details of alterations, if any, to regulations, awards, and other regulatory instruments.

(* mine)

5. It should be made clear to the Commission if the agreement reached includes an undertaking that there shall be no loss of pay consequent on introduction of a 38hour week. And if so, how that is to be achieved in the event allowances and matters of that kind are presently attracted on a daily or hourly basis."

Having canvassed some of the issues it is not my intention to reject the application outright, but I defer making a decision on this matter until such time as I have heard further submissions from the parties satisfying the previously mentioned minimum criteria outlined in the decision of the Full Bench in T. No. 3 of 1985.

The matter will be relisted at the request of either party.

R.J. Watling
COMMISSIONER