T1720 and T1745
|
IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
This matter arises out of a dispute notification lodged by the Tasmanian Confederation of Industries on behalf of its member, the Port of Devonport Authority. The subject matter is a claim by the Building Workers' Industrial Union of Australia and others, including the Australian Workers' Union, for a $2 per hour site allowance for work on what was described as the No. 2 Berth extension at Devonport. This was in fact a small berthing facility in course of construction, the main purpose of which was to accommodate vessels lifting onions for export. The berth itself is totally separate from any other facility and is situated upstream on the eastern side of the Mersey River and within walking distance of the existing vehicular ferry wharf. The classes of labour engaged on the project are those normally represented by the BWIU (carpenters), AWU (labourers), FEDFA (plant operators) and AMWU (welders). No contractors are included in the claim. The work in question is being carried out by the Authority's permanent maintenance employees. In addition, some temporary staff have been engaged for this project and for this project only. It was readily acknowledged that any allowance awarded would cease on commissioning of the facility and would not apply to work done by contractors engaged to construct vehicular approaches (road works) leading to and from the new berth. The estimated cost of the work was $1.7 million. Thirteen permanent PDA staff were engaged on the job, plus 9 temporaries engaged to support the permanent team. Before moving to a consideration of the merits of the argument presented by the applicant, it is important to record the range of powers vested in the various Port Authorities under the terms of the Marine Act 1976. These are:
It is clear from the above that the Authority does have the power to carry out, among other things, the maintenance, repair and construction of wharves or berthing facilities. It is also reasonable to assume that work of that king may need to be carried out from time to time by the Authority's own personnel, or perhaps by contract personnel. In the case of its own employees, there is to be found in the award a number of allowances that relate to work of an unpleasant or hazardous nature. Whether that work is new or renovative seems hardly to the point. The fact is those allowances are payable either as a general, average addition to wages, or on an "as attracted" basis. Moreover, the award also provides for service and experience payments that presumably must compensate in part at least for the conditions under which work is done. Perusal of the basic wage rates assigned to each classification in the schedule of rates set out in Clause 8 of the award, suggests that those rates are not unreasonable when regard is had for the fact that employment is by the week and add-ons for service and experience payments, plus disability allowances, amount to not less than $59.30 per week after 6 months' service, and up to $67.40 after 30 months' service. Of course, other "as attracted" allowances may also be payable from time to time. Mr. Egglestone and Mr. Jacobs for the BWIU and AWU respectively argued that the project in question should attract an additional "site allowance" of $2 per hour, or $76 per week because of exposure to:
Mr. Abey, in reply, submitted that a site allowance was not appropriate in the circumstances. In support of this submission he drew attention to the fact that all employees subject to this application already receive a $14-per-week allowance to compensate for the average disabilities associated with Marine Board work which, as I have already mentioned, includes the maintenance, repair and construction of wharves. However, the Commission was not shown or told of the "standard" disabilities experienced by the permanent workers for which the general $14 per week payment is made. In addition I understood him to say that a 34-cent-per-hour allowance for wearing life jackets while working on or over water is also payable (see item 65 in Clause 8 of Division 6). If this is true, I saw no such apparel being worn on the day of the inspection. Mr. Abey also referred the Commission to an earlier site allowance decision2 relating to the Port of Devonport Authority (Abel Tasman berthing facility). In that matter it was conceded by the Authority that a site allowance was warranted. However, in this mater no such concession was made. The Commission was then referred to a decision by Walker C. of the Australian Conciliation and Arbitration Commission3 regarding the Port of Launceston Authority. In that matter an allowance of 32 cents per hour was awarded for the need to wear life jackets while working on or over water. That allowance is now said to be paid to PDA employees in addition to the general $14 disability allowance which, coincidentally, is the same as the $14 per week currently prescribed under the Building Trades Award. Having inspected the site during very wet conditions, I formed an opinion that on balance some extra allowance could be justified. However, any amount to be awarded should be considerably less than the $2 per hour claimed. If it could be argued that the work was different from that normally carried out by "permanent staff", it certainly could not be argued that it was different from that performed by those persons engaged specifically for the job. Moreover, the disability factor, if it exists, would be greater at the beginning of the job and would diminish somewhat as the work progressed. Of course, climatic conditions would remain constant, but welding flash, congestion, sloppy and slippery conditions underfoot, working over undecked areas of water, wear and tear on tools etc. would diminish as the job progressed toward completion. Although the claim was opposed by Mr. Abey, it seemed to be generally understood that if, notwithstanding that opposition, the Commission found in favour of the applicant in whole or in part, any allowance awarded should be paid for the duration of the job. This inevitably would mean that the Commission, in deciding the issue, would need to strike an average rate spread over the life of the construction. And in doing so it would need to take into consideration both the initial high level of disability as well as the inevitable tapering off of the components alluded to, as the job reached the completion stage. I have given anxious consideration to the matter, and have come to the conclusion that in cases such as these there can be no precise method of determining a fair and reasonable amount by resorting to some arithmetical formula. At best, after taking into account all of the factors, including especially, that is now being paid; the nature of the Authority's activities; the wage fixing principles; costs; the reality of the situation; the fact that except for those engaged specifically for the job, the remainder are permanent as distinct from itinerant workers; and of course the diminishing nature of the environmental factors said to justify the allowance on merit, I have decided to award a temporary disability allowance. This will be payable in addition to the two allowances now being paid. The amount I award is of course arbitrary. I determine it at 29 cents per hour flat, for each hour worked. That is, there shall be no premium or penalty addition. The rate proposed is an average and should be paid for the duration of the job - i.e. from the commencement until the Authority determines that it is substantially completed. In this context "substantially completed" should be taken to mean that to all intents and purposes the wharf is ready for use, notwithstanding that there may remain some relatively minor jobs yet to be completed in order to fully comply with the plans and specifications of the job itself. Whether the approaches to the wharf are completed at that stage or not should not be a consideration, as that work, I was informed, was being carried out by contract. This decision applies only to persons covered by the award and to no others. Moreover, it would be consistent with this decision if the allowance prescribed was, by agreement, paid on completion of the job, or on termination of a temporary employee's engagement. However, I do not determine that it must be paid in that manner. In order that the amount of the allowance itself may be understood, and in part reconciled, I have converted to an hourly rate two allowances I understand are now being paid. These are the disability allowance, and item 65 (work in life jackets on or over water). In round figures the sum of the two allowances mentioned is 71 cents per hour for a 38-hour week. By adding 29 cents to the result, the total becomes, in round terms, $1 per hour. This means that the maximum to be paid for the three allowances should not exceed (again, in round terms) $1 per hour. However, if the "life jacket allowance" is only paid to some and not to others, then the 29 cents may be increased by 34 cents for those persons. Stated another way, the equation is: Where disability and life-jacket allowance is paid, the site allowance should be 29 cents per hour flat. Where disability allowance but no life-jacket allowance is paid, the site allowance should be 63 cents per hour flat. Subject to the mixed functions clause, the new allowance is payable only for work actually performed on site. Finally, I would observe that speaking generally I do not believe site allowances per se should be claimed or granted willy-nilly. In any case, regard should be had for the "all up" rates already being paid and, where it is possible to ascertain this information, why these rates are being paid. For example, this award also includes provision for payment of experience and incremental payments of up to $53.40 per week. This means that the add-ons for a skilled worker whose basic weekly wage is presently $291 per week could, after 6 months, become $374.22. This amount is ascertained as follows:
*Approximately 31.38% above the base rate of $291 The necessary order giving effect to this decision is attached.
L. A. Koerbin 1 Marine Act 1976, Part VIII, Division I |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||