T1117
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
This application was made by the Australian Workers Union (Tasmania Branch) for the purpose of inserting wage rates and conditions of employment in the Poultry, Game and Marine Products Award for persons employed on sea-based fin fish farms. These employees are currently award-free. Mr Hanlon, representing the AWU, prosecuted the application under Principle 12(b) of the Wage Fixation Principles. There was no objection raised by the parties to the making of an award for these employees. The applicant's claim sought to include the following provisions in a separate section of the award entitled:- Division B - Sea-Based Fin Fish Farm Employees
Inspections were undertaken at the more significant farms, however, no evidence was taken on the job. During the course of the hearing, the Commission heard from witnesses on both sides. The evidence adduced, primarily, centred around the general tasks and duties of a fish farm attendant and they can be summarised as follows:-
It must be stated that the duties may vary slightly from farm to farm and not all employees undertake diving duties. However, the evidence seemed to suggest that experience in diving and boat handling were becoming (if not already) a prerequisite of the job. For the duties of diving, boat handling and driving, employees would be required to have a Diving Proficiency Certificate, Coxswain's Certificate, Truck and/or Forklift Vehicle Licence respectively. Although, from the evidence, I gleaned that these requirements may not be enforced at all establishments. Apart from boat handling and diving and the specialised area of net making, it seems to me that the more physically difficult aspects of the job are:-
The unpleasant aspects of the job are:-
I am of the view that the easier jobs on the farm are:-
After considering the evidence of the witnesses, the parties presented the following agreed exhibit detailing the duties of a fish farm attendant as:- "Operating boats (including loading and unloading boats); mooring pens; net changing and washing; harvesting fish (including bleeding); fish husbandry (including observing, separating, mortality retrieval, feeding); recording of fish farm data; general housekeeping and maintenance; basic repairs to nets, and in addition, employees may be required to perform diving duties." It was also recognised by the parties that fish farm attendants generally work under the direct or indirect control of managerial staff and/or technical staff. Where the parties disagreed was:-
These are the issues left for me to determine. When extending the award to new work, the Wage Fixation Guidelines require the rate for such work to be assessed by reference to the value of the work already covered by the award. The parties referred me to a number of classifications contained in this award to support their respective positions and the union sought comfort from classifications contained in other awards that they believed to be more in keeping with the work carried out by fish farm attendants, divers and maintenance employees. I believe the duties of a fish farm attendant cannot be compared with any single classification contained in the Poultry, Game and Marine Products Award, and, in particular, I reject the submission that the work equates to that of a process worker, as clearly the tasks are vastly different. Mr Fitzgerald, representing the Tasmanian Confederation of Industries, suggested that if I had difficulty equating them with a classification under this award then I should turn to the farm hands classification under the Agriculturists Award. This I am not prepared to accept as the nature of the work is not comparable. Fish Farm Attendant In arriving at my decision, I am required to exercise a discretion between competing arguments. In doing so, I have assessed the value of a fish farm attendant's work and that of the maintenance employee to work already covered by the award with particular reference to the skills; responsibilities; the nature of the work itself and the conditions under which the work is performed. On balance, I conclude that a fish farm attendant classification should be placed in the award at the amount of $337.60 per week. I must point out that the rate contains a reasonable component for the disability of having to work on and/or over water in all weather conditions. The rate also excludes any component for diving. Diving This now brings me to the question of fish farm attendants being required to dive or persons being employed for the sole purpose of diving on a fish farm. The evidence showed underwater diving is carried out primarily to:-
I was also informed that some divers wished to provide their own wetsuits and other equipment when required to dive for hygiene reasons and their own self-confidence in the equipment. Although this does not seem to be the practice on every farm. At this stage, not all fish farm attendants are required to dive, but that may not be the case in future. Nevertheless, diving requires extra skills, responsibility and a certain level of proficiency to do the job in a safe manner and free from accident. I am going to award a special additional amount to employees when called upon to undertake diving duties and that amount should differentiate between employees providing their own equipment and those using the employer's equipment. I determine that, in addition to the amount paid to a fish farm attendant, an additional amount of $2 per hour be paid to employees for every hour or part thereof they are required by the employer to undertake diving duties. However, in instances where an employee is required by the employer to undertake diving duties and supply his or her own equipment, then the additional amount shall be $6 per hour or part thereof. Trainees The evidence showed that it took 3 to 6 months for a person employed as a fish farm hand, with no previous experience in the industry, to become reasonably proficient. I am going to recognise this by placing in the award an amount of $300 per week for those employees who have not completed 4 months service in the industry with one or more employer. Maintenance Employees The industry seems to have very limited areas of employment for full-time maintenance employees as most of the maintenance and major repair work is carried out by companies specialising in the particular area of need. However, where persons are solely employed on the manufacture and/or maintenance of pens; design and/or manufacture of nets; I am going to award an amount of $321 per week. This rate does not include any disability component as the work would normally be carried out on land and in a workshop. Second Tier Increase I note that this award has not received the second tier increase arising out of the Wage Fixation Principles. In arriving at my decision in this matter, I was required to look at the work being undertaken in the industry at the time submissions were being presented, and my conclusions have been based on that fact. Therefore, if an application is made for a second tier increase to be reflected in this award some time in the future, I would not anticipate the rates contained in this new division being varied unless there exists good and cogent reasons for doing so, and then only in conformity with the Guidelines. General Conditions It was recognised by all parties that whilst the general conditions of employment applying to persons employed under Division A of the award were not totally appropriate, nevertheless, the Commission was requested to adopt those provisions for the new Division D - Sea-Based Fin Fish Farm Employees. The parties foreshadowed that at some time in the not too distant future a separate application would be made to consider conditions of employment more appropriate to this section of the fishing industry. I am going to accept the submissions of the parties on this aspect of the claim on the understanding that more appropriate provisions will be considered at a later date. Therefore these will only be interim conditions of employment and the parties are requested to direct their attention to these issues as soon as practicably possible. Operative Date The operative date of this decision shall be from the first full pay period to commence on or after 7 June 1988. Order An order giving effect to this decision is attached.
R.J. Watling |
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