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Tasmanian Industrial Commission

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T862 - 17 September

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

T.862 of 1987 IN THE MATTER OF AN APPLICATION BY THE TASMANIAN CONFEDERATION OF INDUSTRIES TO VARY THE MISCELLANEOUS WORKERS AWARD

RE: INSERTION OF NEW CLAUSE PERTAINING TO THE VIDEO HIRE ESTABLISHMENTS

   
COMMISSIONER R.J. WATLING 17 September 1987
   
   

REASONS FOR PRELIMINARY DECISION

   
APPEARANCES:  
   
For the Tasmanian Confederation
of Industries
- Mr T. Abey with
  Mr T. Ewing (3.8.87 -
  for mention only,
  12.8.87 and 16.9.87)
   
For the Federated Miscellaneous 
Workers' Union of Australia, 
Tasmanian Branch
- Mr K. O'Brien (3.8.87 -
  for mention only,
  12.8.87 and 16.9.87)
   
DATES AND PLACE OF HEARING:
 
3 August 1987
12 August 1987
16 September 1987
Hobart (for mention)
Hobart
Hobart
   
   

This application was made by the Tasmanian Confederation of industries for the purpose of varying the Miscellaneous Workers Award to include special provisions applicable to video hire establishments.

The application was made after the President of the Commission handed down a decision (T694 of 1987) being an interpretation of the Miscellaneous Workers Award on 13 July 1987 in which he declared:-

    "... that an attendant, employed in or in connection with a library, as defined in Clause 7(j) of the Miscellaneous Workers Award, who is mainly required to control or supervise access to material stored in a video library, the chief and principal purposes of which are to hire video recordings, is, subject to the exclusions set out in Clause 2 of this award, subject to and bound by the terms of the Miscellaneous Workers Award."

At the commencement of the hearing on 12 August 1987, Mr O.Brien for the Federated Miscellaneous Workers' Union of Australia (Tasmanian Branch), raised a preliminary matter calling on the Commission to dismiss the application under Section 21(2)(c) of the Act which states:-

    "at any stage of those proceedings, dismiss a matter or a part of a matter, or refrain from further hearing, or determining, the matter or part if the Commission is satisfied -

    (i) ...

    (ii) that further proceedings are not necessary or desirable in the public interest;"

It was Mr O'Brien's contention that not all employees of Classic Video Pty Ltd, the principal company represented by the Tasmanian Confederation of Industries, were being paid the appropriate award rates, and he suggested the hearing should not proceed.

Mr Abey of the Tasmanian Confederation of Industries, representing his member who is purportedly the largest employer of labour in the industry, stated that while some of the staff had been paid in accordance with the award, arising out of the interpretation decision, nevertheless it was not physically possible to complete all the calculations in a short period. However, he gave the Commission an undertaking that all persons employed the company he was representing would be paid the appropriate award rate, and at least 90% of them by Tuesday 18 August 1987.

I accepted Mr Abey's undertaking and proceeded to hear his submission on the application.

When the hearing reconvened on 16 September 1987, Mr O'Brien once again called on the Commission to discontinue hearing the application alleging that one of Classic Video Pty Ltd's employees had not been paid in accordance with the award provisions and that further proceedings were not necessary or desirable in the public interest as the undertaking given at the earlier hearing was not carried out.

He called on the following comments made in a decision by Kelly CJ to support his argument:-

    "It cannot be regarded as being in the public interest that one party to an industrial dispute should be required to answer a claim before an arbitration authority when the other party, the party pursuing that claim, is flouting an arbitration award of the same authority and is, moreover, seeking to enforce that claim or some other industrial claim by the pressure of direct action whose consequences bear heavily upon the rights and the freedom of the first party. The Act itself is specific on this point. It decrees, by section 39(c) that - "In the hearing ... of an industrial dispute ... the Court ... shall act according to equity, good conscience and the substantial merits of the case ..." It cannot be in accordance with equity that a party to a dispute who has rights under an award, and therefore under the Act itself, which are being denied by the other party, should be forced to submit to arbitration proceedings in respect of claims made by the first party on the same or cognate matters. It would be quite inequitable and unconscionable for the Court to hold such a party to the arbitration of a dispute when the other party is not abiding by the award or a previous arbitration, particularly, it may be said, when that previous arbitration was made by an authority operating under the same legislation. I hold that action which is clearly inequitable and unconscionable must always be against the public interest."

    Mr O'Brien also foreshadowed that at a later time he would be arguing that the hearing should not proceed because the course of action suggested in the interpretation decision (T693 of 1987) handed down by the President of the Commission on 10 July 1987 had not been finalised.

    Mr Abey strenuously opposed the application by the Federated Miscellaneous Workers' Union of Australia (Tasmanian Branch), and strongly held the undertaking given at the previous hearing had been carried out as it related to all employees covered by this award. He said the employee, to which Mr O'Brien was referring, was employed as a computer sales person, presumably covered by another award of the Commission.

    His response to Mr O'Brien's foreshadowed submission relating to the unfinished business contained in the interpretation decision was short and precise, and that was that the hearing should not be adjourned for that reason as there was no unfinished business relating to the interpretation matter, and as the hearing got underway without the constraints of a pending decision, it should not be constrained now.

    It is not my intention to adjourn this hearing or dismiss this application on the grounds sought, and nothing presented to me at the hearing has convinced me there has been a breach of the undertaking given at the hearing on 12 August 1987.

    I take this opportunity to remind the parties and the Federated Miscellaneous Workers' Union of Australia (Tasmanian Branch) in particular, if they believe an employer is in breach of the award then they have every entitlement to prosecute their claim in a court of competent jurisdiction.

    This Commission does not police award breaches, nor was it ever intended to under the legislation.

    There is no doubt in my mind that the application made by the Tasmanian Confederation of Industries is one that they consider very important to the video hire industry, and I believe they have an entitlement to run their case.

    The union will be given ample opportunity to rebut any submissions made, and a decision will finally be made on the merit and in accordance with the Wage Fixation Principles.

    In response to Mr O'Brien's foreshadowed argument, may I say that I am of the opinion that nothing contained in the interpretation decision (T693 of 1987) constrains me from dealing with this application to consider the insertion of new classifications pertaining to video hire establishments in this award, and unless there are some exceptional or compelling circumstances that have not been brought to my attention thus far, the likely success of any application to adjourn this matter sine die, or dismiss the application may be remote.

    Having made this decision on this preliminary point, the hearing will reconvene at 10.30am on Monday 28 September 1987.

     

    R.J. Watling
    COMMISSIONER