IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

These applications were lodged for the purpose of making a new award of the Tasmanian Industrial Commission to be called the "Building and Construction Industry Award".

The following employee organisations were the applicants in this matter:

• The Operative Painters and Decorators' Union of Australia, Tasmanian Branch
• The Amalgamated Society of Carpenters and Joiners of Australia, Tasmanian Branch
• The Operative Plasterers and Plaster Workers' Federation of Australia,Tasmanian Branch
• The Building Workers' Industrial Union of Australia (Tasmanian Branch)
• The Australian Building Construction Employees' and Builders Labourers' Federation, Tasmanian Branch
• The Australian Workers Union (Tasmania Branch)
• The Federated Clerks Union of Australia, Tasmanian Branch
• The Federated Engine Drivers' and Firemens' Association of Australasia, Tasmanian Branch
• The Australasian Society of Engineers (Tasmanian Branch)
• The Transport Workers Union of Australia, Tasmanian Branch

There being no objections raised, the Federated Ironworkers Association of Australia (Tasmanian Branch), the Plumbers and Gasfitters Employees Union of Australia, Tasmanian Branch and the Master Builders' Association of Tasmania were granted leave to intervene, along with the Australasian Society of Engineers, after they withdrew their application, T.1228 of 1988.

I informed the parties and intervenors at the commencement of submissions that it was my intention to hear argument and hand down a written decision on the following preliminary matters:

(1) Whether or not there should be a new award established called the "Building and Construction Industry Award".

(2) The proposed scope for the award.

(3) The parties and persons to be bound by the award.

I will now deal with these issues in seriatim.

There currently exists an award of the Commission called the "Building Trades Award". The scope of that award is as follows:

"This award is established in respect of the following trades:

(a) painting, paper hanging or glazing (construction work done on site);

(b) signwriting;

(c) plastering (whether solid or sheet);

(d) floor sanding;

(e) construction or demolishing wooden or concrete wharves, piers or jetties (other than by Marine Boards);

(f) manufacturing joinery;

(g) partitioning and ceiling fixing;

(h) bricklaying;

(i) roof tiling;

(j) scaffolding, rigging, steel-fixing or steel-tying (building construction);

(k) stone working (other than by monumental masons);

(l) any other building or demolition trade not subject to another award."

The construction and contents of this clause leaves a lot to be desired. From a cursory glance, it can be seen that a significant number of the crafts listed therein are not "trades" given the full industrial meaning of the word.

Indeed the Scope clause begs a number of questions in relation to, amongst other things, the position and standing of plumbers; certain work carried out by builders labourers; equipment operators; carters and drivers; and clerks, even though classifications appear in the body of the award for these categories of employees.

No person appearing at the hearing opposed either (a) the making of a new industry-based award or (b) its title.

I have been persuaded by the submissions of the parties for the need to establish a Building and Construction Industry Award with a title of the same name and I decide accordingly.

This now leads me to the second aspect of the application, i.e. the Scope of the award.

Section 33 of the Industrial Relations Act 1984 makes it clear that the Commission may make an award in respect of all or any private employees employed in an industry.

The Act defines "industry" to mean "any industry, trade, business, undertaking; profession, calling, function, process, or work performed, carried on, or engaged in by a private employer."

Therefore, if this is to be an industry award, the Scope clause must identify the industry of the employer.

The agreed position of the parties was that the scope of the new award should be as follows:

"2. SCOPE

This award is established in respect of the Building and Construction Industry and shall include work performed in or in connection with:

(a) the excavation, erection, construction, repair, renovation, maintenance, demolition or pre-fabrication of buildings including concrete grain silos;

(b) the construction, repair, maintenance or demolition of structures including:

Civil and/or Mechanical Engineering projects;

Power houses, Structures, Industrial complexes, Chemical plants;

Hydro-carbons and/or Oil treatment plants;

Silos;

Sports and/or Entertainment complexes; Car parks except car park buildings and car parks within the alignment of the building;

Wooden and/or concrete jetties, wharfs or piers other than by Marine Boards.

(c) The manufacture and/or machining and/or assembling of joinery products including component parts of joinery products; signwriting; painting and/or decorating; casting of plaster, terrazzo, mosaic, or similar products; shop fitting and stonemasonry.

This award shall have no application to work covered by the scope of any other award of the Tasmanian Industrial Commission."

I have noted the submissions of Mr. Edwards, that, at some time in the near future, applications will be made seeking variations to the Mechanical Engineers Award and the Electrical Engineers Award to cover certain categories of employees employed in the construction industry.

Notice was also given that application will be made to amend the Scope clause appearing in the Plumbers Award for the purpose of making sure plumbers employed in the building and construction industry were adequately covered.

With this in mind, I am prepared to accept and adopt the verbage contained in the draft Scope clause prepared by the parties.

In doing so, I wish to make it clear that this award is to be a private sector award and its establishment is not intended to cut across or replace work covered by the scope of other awards of the Commission.

In determining the third and final part of this preliminary decision, that is, the parties and persons to be bound by the new award, I need to make the following comments as this part of the application has an integral link with the question of registration of organisations under the Industrial Relations Act 1984.

The Act requires the Registrar, after the due processes of registration have been completed, to issue an organisation registered under the Act a certificate of registration specifying the awards in which a Commissioner has determined (under Section 63(10)(c)) the organisation has an interest.

The question of "interest" in awards has yet to be determined for all organisations operating within this jurisdiction. Therefore, I make it known to the parties and the intervenors in this matter that any decision I make on the parties and persons to be bound by this new award is only an interim I finding as this will be the subject of review when the Commission finally deals with this matter under Section 63(10)(c) of the Act.

During the course of the hearing no objection was raised to the following applicant organisations and others being made parties to this award. They are:

• The Operative Painters and Decorators' Union of Australia, Tasmanian Branch;
• The Amalgamated Society of Carpenters and Joiners of Australia, Tasmanian Branch;
• The Operative Plasterers and Plaster Workers' Federation of Australia, Tasmanian Branch;
• The Building Workers' Industrial Union of Australia (Tasmanian Branch);
• The Australian Building Construction Employees' and Builders Labourers' Federation, Tasmanian Branch;
• The Australian Workers Union (Tasmania Branch);
• The Federated Clerks Union of Australia, Tasmanian Branch;
• The Federated Engine Drivers' and Firemen's Association of Australasia, Tasmanian Branch;
• The Transport Workers Union of Australia, Tasmanian Branch; The Master Builders' Association of Tasmania; and
• The Tasmanian Confederation of Industries.

However, a view was expressed by the Federated Engine Drivers' and Firemen's Association of Australasia, Tasmanian Branch to the effect that the Australian Workers Union (Tasmania Branch) should be limited in its participation or interest in the award to subclauses (b) and (c) of the Scope clause drafted by the parties.

Mr. Grey, representing the FED&FA was of the opinion that the limited interest of the AWU should be spelt out in the Parties and Persons Bound clause.

On the other hand, the AWU responded to the submission by saying:

(a) it should only be restricted by the limits of its Rules;

(b) the Parties and Persons Bound clause was not the appropriate place to attempt any demarcing of work in the building and construction industry; and

(c) if any demarcing of work was to be undertaken, it should be done so in the body of the award through classifications appearing in the award.

Mr. Hanlon representing the AWU, also informed the Commission that agreement had been reached between his organisation and the Australian Building Construction Employees' and Builders Labourers' Federation, Tasmanian Branch that it (the AWU) would not seek to enrol builders labourers as members in the area of work performed in or in connection with the excavation, erection, construction, repair, renovation, maintenance, demolition or pre-fabrication of buildings including concrete grain silos.

This type of voluntary demarcation agreement is to be commended and I would recommend this approach to all unions.

I do not intend, at this stage, to make a final decision on the question of the parties and persons to be bound to the award and least of all any restrictions that may or may not be placed on organisations, prior to the matter has been dealt with in accordance with Section 63(10)(c) of the Act.

However, in the interim and as no opposition was expressed to certain organisations being parties to the award, I determine that the eleven organisations mentioned on page 7 of this decision shall be parties and persons bound under the new award.

In conclusion, I wish to advise the parties that the hearing will reconvene on Monday 30 May 1988 at 10.30 a.m. at which time I am prepared to hear submissions on the rates of pay and conditions of employment that should be contained in the award.

R.J. Watling
COMMISSIONER