IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

Background

On 2 February 1987 the Federated Miscellaneous Workers' Union, Tasmanian Branch, (FMWU) made application, T.661 of 1987, to vary the Welfare and Voluntary Agencies Award (WAVA Award) by deleting Division A - Employees of Child Care Centres.

At the same time the FMWU also made application, T.662 of 1987, for the making of a new award, the "Child Care and Childrens Services Award" (CCCS Award).

The intent of these applications is to seek Commission endorsement for the deletion of existing provisions from Division A of the WAVA Award and to transfer them into the proposed CCCS Award.

At the initial hearing on 6 July 1987, Mr O'Brien outlined the background to the applications being made. He said:

"These applications arise from a series of discussions between the Hospital Employees' Federation and my organisation at a national level and come from an agreement which has been reached between the organisations with regard to demarcation of certain areas of work.

That agreement has been reduced to writing and has been produced to the Australian Conciliation and Arbitration Commission in matters No. R.93 of 1984 and R.94 of 1984 ...

Transcript.p.l.

At that stage of proceedings in this Commission the Deputy Industrial Registrar of the Australian Commission had not issued his decision in the above matters, notwithstanding his consent given in transcript to the amendment of the Hospital Employees' Federation of Australia (HEF)'s Constitution as it relates to conditions of eligibility of membership. Consequently the deed of agreement between the HEF and the FMWU was not then operable.

Because of that circumstance, and an indication from Mr O'Brien that some further discussions had been requested with the FMWU by the Tasmanian Confederation of Industries (TCI) and the Royal Australian Nursing Federation, Tasmanian Branch, (RANF) I adjourned both applications to 13 July 1987.

At the resumption of hearing Mr Holden, for the Hospital Employees' Federation of. Australia, Tasmania No. 2 Branch, (previously represented by Mr Imlach of the HEY No. 1) voiced strong exception to the continuation of proceedings principally because:

(a) the Deputy Industrial Registrar had notformally ratified the rule changes to which I have referred; and

(b) the scope clause of the proposed CCCS Award was of vital interest to the HEF No. 2.

Mr Holden urged the Commission to further adjourn proceedings, indicating that his organisation would be prepared to enter into discussions with the TCI and the FMWU.

Mr Fitzgerald expressed the view of the TCI that the scope clause of the proposed CCCS Award should be more precisely defined and that the hearing should be adjourned to facilitate discussion between the parties on this particular aspect.

Mr O'Brien supported the adjournment principally because the constitutional position between the HEF and the FMWU had not been resolved, and also to facilitate dialogue.on the wording of the proposed scope clause.

Having regard to the view of the parties, I further adjourned the proceedings.

At the next hearing on 31 July 1987 I was informed by the HEF No. 2 that it no longer had any objection to the deletion of Division A of the WAVA Award as the appropriate rule changes had been properly registered and a formal membership agreement had been signed by the HEF and the FMWU.

That left the matter of the proposed CCCS Award scope clause to be resolved.

Mr O'Brien indicated that all union parties to these proceedings were in agreement with the wording proposed by the FMWU, as outlined in Exhibit OB3, which is as follows:

"This award is established in respect of the industry of:

Providing care and services for children in child care establishments not within the jurisdiction of the Boarding Schools and Student Hostels Award, the Welfare and Voluntary Agencies Award and/or the Hospitals Award."

Mr Fitzgerald was adamantly opposed to the form of words proposed by Mr O'Brien.

He said that the Child Care Association wanted time to consider the scope clause proposed by the FMWU. In the event the Commission did not grant an adjournment he submitted that the scope clause should be couched in the following terms:

"This award is established in respect of the industry of:

Providing care for children aged up to 7 years in child care centres (excluding private play centres) licensed and registered for in excess of 6 children pursuant to Part VI of the Child Welfare Act."

Mr Fitzgerald suggested, however, there may be a possibility that the Child Care Association, on further consideration, may consent to the scope clause proposed by the FMWU.

In view of Mr Fitzgerald's submissions I adjourned the hearing to 7 August 1987.

At the resumption of proceedings on that date Mr Fitzgerald submitted that a more appropriate scope clause would be as follows:

"This award is established in respect of the industry of providing care in child care centres licensed by the Tasmanian State Department of Community Welfare."

At the commencement of proceedings on 7 August 1987 I also granted leave to Mr Allen to intervene on behalf of the Commonwealth Minister for Employment and Industrial Relations in accordance with Section 27(3) .of the Industrial Relations Act 1984.

Mr Allen expressed concerns that the scope clause sought by the FMWU could result in the coverage of Family Day Care Centres.

Accordingly he drew to the attention of the Commission the funding arrangements currently in place for such establishments and he endeavoured to demonstrate the impact such award coverage would have on these centres.

From the foregoing it is readily apparent that the views of the respective parties as to the appropriate wording of the scope clause were, to say the least, disparate.

In an endeavour to reconcile those differences I decided that I should further adjourn these proceedings and direct the parties into further conference.

I reiterated that from what had been said by Mr O'Brien, the FMWU was not seeking to extend its award coverage beyond those areas already covered by Division A of the WAVA Award.

Mr O'Brien, in fact, gave explicit assurances on the record to that effect.

I acknowledge however that Mr Fitzgerald's concern goes to what will ultimately occur in the field in the event that the scope clause of a new award is not precise in terms of coverage.

It was in that context that Mr Fitzgerald considered that the assurances given by Mr O'Brien, on the record, did not address his concerns.

Following the adjournment on 7 August 1987, and prior to resumption of proceedings, the Federal Secretary of the Municipal Officers' Association of Australia wrote to the President of the Commission on 13 August 1987, in the following terms:

"Dear Mr President

RE: Applications by the Miscellaneous Workers Union for an Award proceedings T661 of 1987 and T662 of 1987

As you would be aware the MOA made an application to the Industrial Commission asking to be heard in relation to its interest in the above matters. That application was rejected.

We wish to draw to your attention the fact that related matters are proceeding in the Australian Conciliation and Arbitration Commission before Mr Commissioner Brown. Those applications, C. Nos. 1188/87 and 1450/87, relate to applications for an Award for child care workers in Local Government in Tasmania.

Claims have been made by both the Municipal Officers' Association and the Federated Municipal and Shire Council Employees' Union and there is no dispute existing between our organisations in respect of those claims.

The Federated Miscellaneous Workers' Union has successfully made application to intervene in the above Arbitration Commission proceedings, on the basis of opposition to an Award being made. In this respect they have also succeeded in having those proceedings adjourned for a considerable period of time.

In light of this adjournment we note with some concern that hearings are continuing in the Tasmanian Industrial Commission in relation to an award which is in some respects also the subject of the Conciliation and Arbitration Commission proceedings.

We ask therefore, in the public interest and in the interest of equity and good conscience, that the proceedings in matters T661 of 1987 and T662 of 1987 be adjourned until the Australian Conciliation and Arbitration Commission has dealt with the related matters before it.

A copy of this letter has been forwarded to the Miscellaneous Worker's Union."

The Federal Secretary of the MOA also wrote to Commissioner Brown of the Australian Commission, in these terms:

"Dear Commissioner Brown

RE: C. Nos. 1188 of 1987 and 1450 of 1987

At the last hearing of the above matters an application for intervention made by the Federated Miscellaneous Workers' Union was allowed and as a result of a further application by that organisation, the proceedings were adjourned for a considerable period of time.

In light of that adjournment we note with some concern that proceedings are continuing in the Tasmanian Industrial Commission in relation to a recent award application made by the FMWU, which in some respects is also the subject of the matters before yourself.

As there may be some prejudice to our application if the status quo is not maintained until the proceedings in the Federal Commission are determined, we ask that you list the above matters urgently so that we may put submissions as outlined below.

In light of the intervention delaying our proceedings and the refusal of the Tasmanian Industrial Commission to hear our case we submit that the FMWU should be called upon by the Commission to undertake that the proceedings in the Tasmanian Industrial Commission will be adjourned, on their application, until the determination of the matters before the Federal Commission.

In the event that this undertaking is not forthcoming we will ask the Commission, constituted by yourself, to indicate that for the purposes of any argument pursuant to 41(1)(d) to be run by the FMWU, current proceedings and determinations of the Tasmanian Industrial Commission will not be used to the prejudice of the Applicants in C. Nos 1188/87, 1450/87.

We enclose herewith a copy of a letter sent this day to the President of the Tasmanian Industrial Commission asking that tribunal to adjourn the relevant proceedings on the basis of equity, good conscience and natural justice.

In view of the circumstances of this application we would appreciate an urgent relisting of the matters."

As a consequence of the correspondence received from the MOA the President of the Australian Commission and the Acting President of the Tasmanian Commission gave their approval for joint proceedings to take place in respect to the matters before the respective Commissions.

Joint proceedings were commenced on 27 August 1987, but failed to resolve the dispute between the FMWU and the other union parties relating to coverage in the Local Government area.

As a consequence the following joint statement (Brown and Gozzi CC.) was placed on the record:

"Commissioner Brown:

We have considered the fact that the conference failed to resolve the dispute.......... the directions that might help to resolve it, so in those circumstances we make the following statement. In the first place, the unions are urged to settle this dispute internally within the trade union movement. Secondly, in the meantime, while those efforts are attempted, the status quo on membership should be observed, and recruiting should cease until the unions either resolve the dispute amongst yourselves, or it is resolved by decisions of the commissions. Thirdly, proceedings in the Tasmanian Industrial Commission on 14 September continue to be scheduled. They may or may not become joint sittings, depending on progress in the interval; that is to say, progress towards resolving the dispute in the interval.

Fourthly, given the long period before proceedings in the Australian Commission resume, the difficulty there was advocates for the Miscellaneous Workers Union being available. Now, given the circumstances which have been revealed today, we ask the Miscellaneous Workers Union to do its best to attempt to arrange for an earlier hearing, rather than waiting for that length of time.

And, finally, we say that even if the two commissions sit separately in the future, we again repeat our intention which was stated to you in conference, that we will be delivering co-ordinated decisions on this dispute if we are required to make decisions."

ACAC Transcript p.65 (27.8.87)

The joint proceedings were adjourned indefinitely.

On 14 September 1987 matters T.661 and T.662 of 1987 resumed before this Commission.

Mr O'Brien submitted, that following the joint statement made that the FMWU, MOA and MEU try to resolve their differences, a meeting was held with the ACTU on 11 September 1987.

He advised that the parties had left that meeting on the basis that their respective positions would be further considered.

Mr O'Brien also informed the Commission that he understood that the TCI would be seeking the exemption of "play centres" and the Local Government area from the proposed new award.

Mr O'Brien indicated that as the FMWU was opposed to the foreshadowed application for exemption, and given that the TCI was supporting federal coverage in the Local Government area in proceedings before Commissioner Brown, an adjournment of these proceedings was appropriate.

Mr Fitzgerald, in supporting the request for an adjournment, advised the Commission that productive discussions had been held with the FMWU on 3 September 1987 on the scope issue; however the matter had not been finalised between the parties.

Mr Grant, for the RAM, informed the Commission that it was the wish of his organisation to be involved in future negotiations.

Having regard to the submissions of the parties and the stage reached in proceedings I considered it appropriate to agree to the request of the parties to adjourn this matter sine die.

I did indicate at the time, however, that it was my intention to take the opportunity to correct the long-standing deficiency in the scope clause of the WAVA Award, recently brought to the attention of the Commission.

Before dealing with that issue I conclude this part of my report on proceedings by making the point that I have summarised the proceedings in relation to the applications before me, and the relevant aspects of the joint proceedings, so when this matter continues in the future, the thrust of what has transpired in the Commission, thus far, can be readily discerned.

WAVA Award Scope Clause

This matter arises consequential to application T.661 of 1987 by the FMWU seeking the deletion of Division A (Employees of Child Care Centres) of the WAVA Award.

As already indicated in this decision there was a great deal of debate on the wording of a scope clause for the proposed "Child Care and Childrens Services Award", which is the subject matter of application T.662 of 1987.

The FMWU proposal for the wording of the CCCS Award scope clause was based on Statutory Rule No. 69 of 1984 which, it was said, altered the scope of the Award of the WAVA Industrial Board; although the variation is not reflected in the present WAVA Award document (No. 1 of 1987 - Consolidated, as amended by No. 2 of 1987).

When the WAVA Award was first consolidated as an award of this Commission (No.2 of 1986 - Consolidated) the wording of the scope clause was drawn from the specification of the jurisdiction of the WAVA Industrial Board, as set out in its last award - No. 4 of 1984 - Wage Rates (dated 5 December 1984).

That award, however, did not reflect the change previously made to the jurisdiction of the Industrial Board by Statutory Rule No 69 of 1984, in March 1984.

Under the savings and transitional provisions contained in Schedule 2 of the Industrial Relations Act 1984, Section 2(1) reads:

"An award under Division 1 of Part III of the Industrial Relations Act 1975 that is in force immediately before the proclaimed day shall, on that day, be deemed to have been made by the Commission and, on and after that day, continue to have effect as an award under this Act."

Clearly then, what was legally in force as at 1 January 1985 carried forward as an award of this Commission.

Mr Fitzgerald of the TCI initially submitted that as the alterations detailed in the Statutory Rule had not been manifested into a variation of an award document by the WAVA Industrial Board, the Industrial Board award that carried forward to this Commission did not incorporate the Statutory Rule alterations. Mr Fitzgerald had considered that the Statutory Rule was only "enabling legislation" and that as no award variation had been made by the Industrial Board the alteration did not legally take effect and therefore carry forward to this Commission.

Mr Fitzgerald also submitted that the Statutory Rule was void ab initio "because the scope clause, as presently reflected in the WAVA Award, did not provide the basis for the alteration made in 1984 by the Statutory Rule".

Both these arguments are rejected.

Whilst Mr Fitzgerald, in later proceedings, advised the Commission that on reflection he saw no difficulty with the Commission amending the scope clause of the WAVA Award to incorporate the alteration made by the Statutory Rule, it is important to address his earlier submissions so that the reason for the variation to the scope clause is clear.

It is to be noted that the Statutory Rule is not "enabling legislation". It, itself, altered the jurisdiction of the WAVA Industrial Board.

Simply because the alterations were not reflected in the Award of the WAVA Industrial Board, No. 4 of 1984 - Wage Rates, does not alter the fact that the jurisdiction of the WAVA Industrial Board was altered by law, by Statutory Rule No. 69 of 1984, pursuant to Section 8(4) of the Industrial Relations Act 1975.

As it was the specification of jurisdiction which gave the scope to the Industrial Board awards, and which is now reflected in the scope clauses of private sector awards of this Commission, the scope clause of the WAVA Award will be varied by the attached Order to comply with and reflect the changes made in accordance with the law in 1984.

As nothing of any moment now turns on the issue of operative date, and for administrative ease, the 'correction order' is issued in the form of an amendment to the award and is operative from the date of this decision.

Finally in adjourning these matters sine die, it is of course open to any of the parties to seek a relisting at any time.

R.K. Gozzi
COMMISSIONER