IN THE TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T1005

Industrial Relations Act 1984

REASONS FOR DECISION

This hearing arose out of an application made by the Tasmanian Confederation of Industries to vary the Miscellaneous Workers Award in the following manner:-

29.    Special Provisions Applicable to Video Hire Establishments

(a)    Scope

This clause shall apply to establishments in which the principal purpose of the business is the hire of video movies to the public.

(b)    General Conditions of Employment

The provisions of this clause shall to the extent of any inconsistency, prevail over clauses contained elsewhere in this Award. In all other respects the provisions of the Award shall prevail.

(c)    Hours of Work

(i) The ordinary hours of work shall be an average of thirty-eight per week to be worked in not more than 8 hours on any one day. The spread of ordinary hours shall extend from 9.00 a.m. to 9.00 p.m.

(ii) Payment of a premium of 20 per cent shall be made for hours worked after 9.00 p.m. or before 9.00 a.m.

(iii) No employee aged less than eighteen years of age shall be permitted to work alone beyond 9.00 p.m.

(d)    Saturday Work

All work performed on a Saturday by weekly and part-time employees shall be paid at the rate of time and one quarter.

(e)    Sunday Work

All work performed by weekly and part-time employees on a Sunday shall be paid at the rate of time and one half.

(f)    Public Holidays

All work performed by weekly and part-time employees on a Public Holiday shall be paid at the rate of double time.

(g)    Casual Employees

Employees engaged on a casual basis shall be paid a loading of 20% for all hours worked, such loading shall be in lieu of annual leave, sick leave and public holidays. The penalty rates applicable to weekly and part-time employees for work on Saturdays, Sundays and Public Holidays shall not apply to casual employees.

(h)    Part-time Employees

Part-time employees shall be paid per hour one thirty eighth of the rate prescribed for weekly full time employees. Part-time employees shall be entitled to annual leave, sick leave and public holidays on a pro rata basis.

At the commencement of the hearing a number of threshold matters were raised and covered in my Preliminary Decision handed down on 17 September 1987. I see no need to further canvass those issues in this decision.

History

1. In 1984 the Insurance Industrial Board Award was varied to include a classification of library attendant. This award had common rule application under the Regulations pertaining to the Industrial Relations Act 1975.

2. On 1 January 1985 the Tasmanian Industrial Commission came into being under the Industrial Relations Act 1984.

3. As a result of hearings between 13 May and 10 October 1985, the President of the Commission made a declaration in accordance with Section 33(2) of the Industrial Relations Act 1984 on 14 October 1985. The declaration stated that a case had been made out for the establishment of a craft award (T.105 of 1985). It stated:-

"I am therefore satisfied that a prima facie case has been made out for a craft award to be made. Accordingly I declare that:

(a)   The occupations or callings of:

(i) Caretaker or Janitor (resident)
(ii) Caretaker or Janitor (non resident)
(iii) General Attendant or Utility Officer
(iv) Lift Attendant
(v) Tea Attendant
(vi) Cleaner
(vii) Groundsman or Yardman
(viii) Library Attendant
(ix) Vehicle Cleaner
(x) Domestic

are occupations or callings in respect of which the Commission, on the authority of the scope of the union's registered constitution, could find sufficient jurisdiction to include in any award to be made on this application; however

(b)   any award to be made embodying those classifications may need to be restricted to areas of private industry not already covered by an award that includes the same classifications or callings; and in any case

(c)   any award may need to include an exemption or limitation provision excluding certain employers and industries from its operation. But any such modification would be subject to the Commission being satisfied that, as a consequence of an agreement reached, or on argument presented by any employer or employee organisation, exemptions, limitations or variations of that kind to the scope of any new award were otherwise justified.

Having found jurisdiction to this extent it will now be a matter for the applicant to pursue its claim in accordance with Principle 10 of the Guidelines.

In the event an award is made the Commission will take the appropriate steps to have the relevant common rule declaration relating to the Insurance Award rescinded."

4. On 11 December 1985 the matter came before the President of the Commission. During the course of the hearing he was informed that substantial agreement had been reached between the Federated Miscellaneous Workers Union of Australia, Tasmanian Branch and the Tasmanian Chamber of Industries as it was then known. However, in his Reasons for Decision dated 24 January 1986, the President sought additional information on the following, and I quote in part from that decision:-

"1.    38-Hour Week...

2.     Conditions Carried Forward from Insurance and Cleaners Awards

Why, if this award is to now stand alone, certain conditions of employment, not regarded as standard industry conditions, or peculiar to the work of classifications contained in the award, should be carried into this award and made binding upon non-consenting employers. I have in mind certain public holiday provisions regarding substituted days; certain sick leave provisions; calculation of casual rates; requirements regarding technological change. Other examples might also be given. Furthermore there may need to be included in the award a mixed functions clause; provision for payment of wages in the employer's time and other complementary provisions of a machinery nature.

3.     Preference in Employment...

4.     Classification of Domestic...

5.     Juniors...

I am of course mindful Mr. O'Brien has already addressed himself to most, if not all, the foregoing matters. My immediate concern therefore is not so much with his submissions, but with the paucity of overall information from employer advocates. Prima facie they appear not to have given careful attention to the specific conditions of employment that ought to apply to employees in situations where the award itself stands alone. It seems to me this will surely be the case in many instances where small business is involved.

Accordingly, I request the parties now confer with the view to themselves clarifying and hopefully agreeing upon as many of these issues as possible."

5. On 12 March 1986 the hearing of application T.105 of 1985 reconvened for the purpose of taking responses from the parties on the questions raised by the President in his decision on 14 January 1986.

The record shows that the Commission was informed that a significant measure of agreement had been reached on all matters. Indeed the President stated:-

"The actual terms of the agreement were, I feel, an object lesson for industrial practitioners at all levels and on all sides of the industrial table."

However, he did go on to make some observations in relation to the non-standard conditions contained in this award, and I quote in part from pages 16 and 17 of the decision:-

"This award is made by consent, and must be seen in that light. It will contain a number of provisions which, on their face, may appear to be more generous than would otherwise have been awarded had these matters been left to the Commission to determine...

Ordinarily I would have declined to include such provisions, whether by consent or otherwise, had it not been for the fact that the reality of the situation is that these conditions already have application by reason of the Cleaners Award1 and the general application provisions of the Insurance Award2. And whereas no employer party submitted any reasons to justify these provisions, all agreed that they could not now be withdrawn having regard to their consent background and the history of award coverage for the majority of classifications that will now become subject to the terms and conditions of this award...

The remedy of course lies in the hands of any organisation that wishes to seek this award. However in the absence of agreement the burden of proof would be heavily upon such an applicant to demonstrate that appropriate alternative arrangements could be made within an employer's establishment."

6. On 13 July 1987 the President of the Commission made a declaration pursuant to Section 43 of the Act. The declaration arose out of an application made by the Federated Miscellaneous Workers Union of Australia, Tasmanian Branch who sought an interpretation of the classification of library attendant appearing in the Miscellaneous Workers Award.

It was the union's opinion that, subject to certain qualifications, employees employed in or in connection with video libraries were subject to the conditions of this award.

The declaration handed down on 13 July (T.712 of 1987) stated:-

Library Attendant Classification:

Mr. Abey, representing the Tasmanian Confederation of Industries in this matter claimed the classification of library attendant, when first inserted in the Insurance Industrial Board Award, was to his knowledge, designed to cover library attendants employed in insurance offices and the Medical Benefits Fund.

He said, when the Miscellaneous Workers Award was made, this classification was transferred to the new award, however, it was never perceived by his organisation that the award would extend to the video hire industry.

Mr. O'Brien, representing the Federated Miscellaneous Workers Union of Australia, Tasmanian Branch said the parties agreed to include the classification of library attendant in the award but he could not recall whether the video hire industry was specifically mentioned during the course of discussions.

He maintained, however, that it was always his organisation's intention that the classification of library attendant cover employees in the video hire industry.

With the foregoing in mind, I make the following observations:-

1. It can be seen from the previously mentioned history of the making of this award that both parties were given ample opportunity to consider and reconsider all the aspects of their agreement.

2. Nothing was put to me during the course of this hearing that conclusively established the many factors operating in the minds of the parties during the course of negotiations which lead ultimately to the agreement.

3. One irrefutable fact is that a declaration has been made under Section 43 of the Act and subsection (7) states:-

Therefore this award does cover library attendants.

Wage Fixation Principles:

It was Mr Abey's submission that this matter should be treated as a first award and dealt with under Principle 12 - First Awards or Extensions to Existing Awards as it was the first time the industry was subjected to examination.

During the course of the hearing, I advised the parties that I was not prepared to accept this application as a first award in view of the previously mentioned declaration made under Section 43 of the Act.

Mr. Abey whilst not agreeing with my ruling, indicated that if I was not prepared to accept Principle 12 as being appropriate, this matter would fall within Principle 9 - Conditions of Employment. This line of argument was opposed by the union.

The claim predominantly seeks to reduce existing award conditions, and whilst it is open to advocates to argue that an application such as this does not fall within the parameters of the Wage Fixation Principles, nevertheless, it must be remembered that unions are restricted in seeking variations to the award by their commitment to the "no extra claims" provision contained in Principle 2 - Commitment.

In my view, it follows that as a matter of principle, employers should not attempt to vary existing awards in a manner that would disadvantage employees without accepting the onus of proving an anomaly or inequity in the same manner required of the unions, or pursuing a case under Principle 13 - Economic Incapacity.

It would also be open to the parties to consider all the issues raised in this case during the course of their discussions on the second tier increase under Principle 3 - Restructuring and Efficiency.

Previous Recommendations:

Earlier this year an application was made by the Federated Miscellaneous Workers Union of Australia, Tasmanian Branch for an interpretation of Clause 16 - Hours of Work, subclause (a) of the Miscellaneous Workers Award, insofar as reference is made in this clause to the maximum ordinary hours that may be worked on any one day; the method of working those hours, and the days upon which ordinary hours may be worked.

The President handed down a decision on 10 July 1987 (which was received by the parties after the commencement of this hearing) in which he refrained from making a declaration under Section 43 of the Act. (See T.693 of 1987).

However he made the following observation:-

"In summary the award provision is, I believe, an imbroglio. This needs to be put right by the parties taking enough time to ensure that the hours of work and related provisions correctly reflect the original intention of those who agreed upon the format of this award."

He went on to say:-

"Meanwhile, I suggest that the parties confer in the light of the foregoing. They would be well advised to consider reworking the hours of work and Saturday overtime provisions having regard for the classes of employees catered for by this award and the circumstances in which those persons discharge their respective functions."

Conclusion:

I have considered all the evidence surrounding this application but in view of my earlier comments relating to:-

(a) the Wage Fixation Principles and the avenues open to the parties when dealing with an application of this kind; and

(b) the suggestion of the President arising out of application T.693 of 1987

I decline to vary the award in the manner sought.

R.J. Watling
COMMISSIONER

1 P018
2 Supra