IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This application by the Australasian Meat Industry Employees' Union to vary the Meat Trades Award (the award) to incorporate a 38-hour week has been vigorously contested by the parties, culminating in a most detailed and comprehensive examination of working arrangements in the various sectors of the meat industry subject to this award.

Because of the diversity in operation of the different areas of the industry, i.e. smallgoods, retail and wholesale, each of those particular segments have been considered individually in order to establish the impact of the potential effect of reduced working hours on each component of the industry.

This very detailed analysis of cost impact and consideration of appropriate offsets to minimise the cost of introducing a 38hour week has resulted in the award being varied to provide for shorter hours for employees in the smallgoods wholesale and supermarket areas of the industry, as per my decisions¹ for those particular sectors.

In my decision awarding a 38-hour week for supermarket employees, I also considered the question of extending the award variation to retail shop employees as that matter was also before me at that time. I declined to do so because, as stated at page 10 of my 4 September 1987 decision:

The reasons for that finding are thoroughly discussed at pages 8-10 of the above decision, and there is, therefore, no need to restate them now.

The matter is again before me at this time as a consequence of the invitation extended to the parties in the above decision that either party could seek to pursue this matter at any time in the future.

Accordingly, Mr Swallow sought to continue with the prosecution of his claim in proceedings commencing on 19 January 1988.

The principal reasons giving rise to further consideration of this matter as it relates to retail shop employees are the disparate views of the parties as to laundering and overtime arrangements applicable in this segment of the industry.

Laundering of protective coats, stated Mr Swallow, is primarily undertaken by employees, and therefore because it is an award requirement that this be performed by employers, a substantial cost offset could be claimed by the union for the 38-hour week.

The other issues between the parties related to whether or not employees, when working overtime, were given time off in lieu on the basis of time for time, as suggested by Mr Swallow, or whether indeed this was not a practice in the industry, as argued by Mr Edwards.

As a consequence of the irreconcilable views and submissions of the parties I adjourned the proceedings to enable the presentation of evidence to the Commission from those directly involved in the industry.

To facilitate this, hearings were conducted at Burnie, Devonport, Launceston and Hobart.

I accept that the evidence was solicited on a non preferential basis on behalf of retail butcher shop employers; the result being a "warts and all" expose of industry working arrangements.

In that regard I listened to sixteen employer witnesses subsequent to which I indicated to Mr Edwards that further available witnesses were not necessary unless he particularly wanted to proceed with them, which he did not.

Additionally, I was presented with 76 statutory declarations from employers relating to the two issues in contention, i.e. time off in lieu and laundering arrangements.

Mr Swallow presented two employee witnesses and Exhibit S11 which set out the union's position in respect of the above controversy.

I do not propose to canvass the evidence in minute detail. Suffice to say it was overwhelmingly demonstrated that there exists in this part of the industry an array of "arrangements" designed to compensate employees for working overtime (in some cases only is the actual award rate paid) for laundering their own clothing (although in many cases employers undertake this task in accordance with award requirements) and for general working flexibility. In some cases significant over award payments are made.

These various "arrangements" have arisen because of the very nature of the operation of retail butcher shops. That is to say, the vast majority are a small business operation which in the main employ three or fewer employees. Indeed taking Exhibit E5 as indicative of the industry, out of 227 companies, representing some 85-90 percent of the retail shops in the State2, 71 shops have no employees; 69 shops employ 1 person; 39 shops employ 2 people and 28 shops employ 3 people, which in effect means that in excess of 91 percent of all shops employ 3 people or less.

It is clear that in most retail butcher shops arrangements of mutual convenience and arguably mutual benefit, have been agreed upon between employer and employee which I have been asked not to disturb by the introduction of a 38-hour week.

Mr Swallow however submitted that not all employees in this section of the industry receive the benefits outlined by employer witnesses.

Whilst I can accept that many of the arrangements explained to me by these witnesses have wide application throughout the industry, I must also accept that in other cases employees are working in strict accordance with the award and who do not receive any additional or offsetting type of benefits.

This presents a real dilemma for the Commission, particularly when regard is had for the cost offsets proposed by Mr Swallow and their effect on a retail operation working strictly in accordance with the award.

In the final analysis I am of the opinion that the only real option available to the Commission in deciding this matter is to consider the effects of the offsets as though the award stands alone.

I have come to that conclusion because after all the award provides the base for all conditions of employment and rates of pay. Therefore, in the event that other arrangements, over and above or in lieu of the award are entered into either by verbal or registered agreement, it is up to the parties involved in those arrangements to reconsider these in the light of changed circumstances that may arise from time to time, including for example a variation to hours of work.

Having regard to the foregoing, I am inevitably led back to exhibits tendered by Mr Edwards in earlier proceedings and identified as E4 and E7. These relate specifically to retail butcher shops.

These exhibits demonstrate that the proposed cost offsets, apart from laundry and overtime, amount to less than 1%.

The questions of laundry and overtime were particularly

canvassed in this hearing.

The evidence demonstrated in respect of those issues that overtime is compensated at least in accordance with the award, although in some cases it was apparent that there are "swings and roundabouts".

Clearly, with respect to laundry, some employers do not provide laundered clothing, but it was submitted by Mr Edwards that other benefits are provided in lieu.

As far as this issue is concerned I make two points. Firstly, laundering is required to be performed by employers. This was determined by the President of the Commission in interpretation proceedings3.

Secondly, for the purpose of considering laundering as an offset, Ire-endorse the value attributed to this factor in Exhibit E6.

This now advances this decision to the point where it is necessary for me to stress the fact that in considering this matter on this occasion, as opposed to when I addressed it in my decision of 4 September 1987, a great deal more information about the workings of the retail sector is before me.

I noted particularly that whilst there are some quiet periods or "down time", as it was described, usually in the early part of the week, these periods are not predictable.

I do not consider it practical to award a 38-hour week on the basis that an employee leaves the shop premises during the day, on an ad hoc basis, to gain the benefit of shorter hours, only to have to return later in the same day to complete the rest of his hours for that day.

The evidence showed that in the great majority of cases employees are permitted to leave the premises without penalty, to attend to private business. To encapsulate this arrangement as a basis for working a 38-hour week is just not realistic.

There are two additional tests that must be applied.

The first of these is the Wage Fixation Principles.

Principle 8 - Standard Hours states, inter alia, that:

I consider that a genuine offset package has been offered by Mr Swallow.

There are many examples where the kind of offsets put forward by the union have been endorsed in support of a 38-hour week.

If this was the only criteria I would approve the application before me.

However, it must also be recognised that employees should benefit from working shorter hours by gaining extra leisure time.

In these proceedings the overwhelming weight of evidence was that no extra planned time off would be able to be enjoyed by the employees, the subject of the union's claim. Indeed I confirm the finding in my earlier decision that extra overtime would be required to be worked.

Notwithstanding, I am of the opinion that in retail shops that employ a significant number of employees, this is by far in the minority of cases having regard to Exhibit E5, there may be more flexibility regarding absorption of work which would enable an individual appraisal of working arrangements leading to shorter hour agreements being registered in the Commission.

Whilst there may be opportunities for the negotiation of the type of agreement referred to above, I am not prepared to vary the award on the basis of what may be able to be achieved in a minority of cases. This would create a classic circumstance of the "tail wagging the dog".

RK Gozzi
COMMISSIONER

1 T.617 and T.619 of 1986 Reasons for Decision dated 3 August 1987 and 4 September 1987
2 T.617 and T.,619 of 1986 Reasons for Decision dated 4 September 1987 at p9.
3 T.809 of 1987 (16 July 1987)