IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

On 4 May 1987 the Federated Liquor and Allied Industries Employees' Union (Tasmanian Branch) made application to the Commission in relation to the introduction of a 38-hour week for employees subject to the provisions of the Restaurant Keepers Award.1

The matter came on for hearing before the Commission on 4 June. It was submitted that the variation sought was an agreed matter between the Federated Liquor and Allied Industries Union and the Tasmanian Confederation of Industries.

The parties tendered exhibits showing:

(a) A summary of offsets;

(b) the cost of the 38-hour week and the value of the offsets;

(c) the award variations required to reflect the agreement.

They further submitted that the cost of introducing the shorter working week into the restaurant keeping industry, after taking into account the fixed and variable costs, was negligible.

During the proceedings it was made clear that the application to introduce a 38-hour week provision into the Restaurant Keepers Award was the result of significant negotiations and was being processed without duress. In this regard it was pleasing to observe the obvious spirit of co-operation that resulted in the matter coming before the Commission as a consent variation.

Although I am satisfied that genuine attempts have been made to agree upon very real offsets in the industry, I would express my continuing concern that employers who are not members of the TCI or some equivalent organisation none the less find themselves bound by such a provision due to the common rule effect of this award. The same concern extends to other common rule awards. So far as I am aware this is the only State industrial system that denies any person bound by an award the right to be heard on the merit of its contents. The only exception to this rule is where an employer is a member of a registered organisation. Unfortunately there is nothing the Commission can do about this situation.

The problem is exacerbated by the fact that the parties did not seek to enter into a discrete agreement. They chose instead to have the Restaurant Keepers Award varied. This means that all employers and employees bound by this award will now observe a 38-hour week.

In the circumstances the Commission has no choice but to vary the award in the manner sought. The agreed variations -

(a) Fall within the wage fixing principles;

(b) Reflect genuine cost offsets associated with the claim; and

(c) Except to the extent that they bind non-consenting parties, do not offend the public interest.

I reiterate my concern that there may be some employers who would not wish to be bound by this variation and its consequences who do not have the right to appeal or to plead incapacity to pay unless holding membership of a registered employer organisation. But without some legislative change that position will remain unaltered. To deny the benefit of a shorter working week to those whose employers have agreed to the changes would be unfair, if the sole reason for doing so was to protect the interests of employer non members.

Variations giving effect to what has been agreed will operate from the following dates:

(1) For Divisions A, B and C - on and from 15 August 1987;

(2) For Division D - from 15 June 1987.

 

L A Koerbin
PRESIDENT

1 P058