IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

The application, subject of this decision, seeks to vary the Ice Cream Makers Award (the Award) by reducing ordinary working hours from 40 to 38 per week. The variation is not opposed and is reflected in a consolidation of the award.

In proceedings before the Commission on 7 April 1987 a number of variations to the detail of the application were outlined by Mr. O'Brien and agreed to by the employer.

The unusual background of. this matter is such that the parties asked for informal discussions, prior to the presentation of formal submissions. Following those discussions Mr. O'Brien summarized the situation as follows:

"Mr. 0'Brien:

The difficulty, as has been explained, basically is that whilst agreement is one of long standing and dates back to a period when this award was an award of the Ice Cream Makers Industrial Board, that the parties to that board had agreed to a variation taking place in the terms now before the Commission, or in terms generally agreed to be those now before the Commission.

However, the paperwork on that matter was never completed, I think, due to the parties (and particularly my own organization) not pursuing the question of the variation as perhaps it should have.

In the circumstances, however, we are now before the Tasmanian Industrial Commission asking that the award be varied to reflect the agreement that was then reached."

(transcript page 2)

It was agreed at the time that the old Industrial Boards award would be varied from 1 March 1984. In fact a 38 hour week has applied to employees of Australian United Food Plants from that date in spite of the fact that the Award was not varied.

The parties have agreed in this matter to a date of operation of the Award variation of 1 March 1984.

Work practice changes, agreed between the parties and in place since March 1984, have resulted in an estimated 3% cost offset of the original 5% total cost. An additional 1 1/2I in cost offsets have been achieved in "award-type" offsets.

It was submitted that the one advantage of the current situation is that agreed cost offsets have now been in place for three years and have achieved the estimated savings.

In applying the tests required by the Wage Fixing Principles to this matter, I am satisfied that they have been satisfactorily addressed by the parties. The Award will therefore be varied to reflect the agreement to reduce ordinary working hours from 40 to 38.

An appropriate date of operation of the Award variations causes me some concern. That concern goes to two aspects:

(i) the extent of the retrospectivity agreed between the parties; and,

(ii) the possibility of other employers, unknown to the parties, being bound by such an award variation.

In addressing the second of the above concerns Mr. Sertori submitted:

"Mr. Sertori:

However, as this authority and my organization have a concern for public interest and other factors that emerge under section 361, I believe, although I can give some assurance, there are no other employers in the area, I can't give a hard and fast guarantee. Therefore I support the proposition that the date of 1 March 1984 apply to the company known as Australian United Foods, for the purpose of the record, commonly trading as Peters Ice Cream in this State. For any other area, I would suggest that, although Mr. O'Brien hasn't nominated a date, for ease of the exercise, the date of the hearing today would perhaps be the appropriate date, being 7 April 1987."

(transcript page 16/17)

In respect of (i) above the parties submitted the following:

- by granting retrospectivity the Commission would only be accepting the 'reality that the agreement has been in place since 1 March 1984;

- if the Award is varied retrospectively the rights of the employer and the employee are protected, i.e. there could be no retrospective breach of the Award claims made by employer or employee;

- there would be no harm done to the public interest if the Commission recognized the special circumstances surrounding this matter by granting retrospecti'vity;

- such a decision would not create a precedent which could be used in other reduced working hours matters.

In all of the circumstances I am prepared to give retrospective application to the Award variation as agreed between the parties.

So there can be no doubt of my intention the Award will be varied as follows:

(1) to provide for a 38 hour week for employees of Australian United Foods (Peters Ice Cream) from 1 March 1984;

(2) to provide for a 38 hour week for other employees (if any) from the date of this decision.

As the Award variation is in the form of a consolidation the wage rates and related money amounts contained therein are those applying following the most recent national wage decision, i.e. effective from the first pay period commencing on or after 10 March 1987.

JG King
COMMISSIONER

1 section 36 of the Industrial Relations Act 1984