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T2526, T2545 and T2767

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.23 application for award or variation of award

The Federated Furnishing Trades Society of Australasia
Tasmania Branch

(T.2526 of 1990)

Federated Clerks Union of Australia
Tasmanian Branch

(T.2545 of 1990)

Tasmanian Confederation of Industries
(T.2767 of 1990)

FURNISHING TRADES AWARD

 

COMMISSION R J WATLING

HOBART 22 November 1990

Wage rates - State Wage Case November 1989 - Structural Efficiency Principle - Second Stage - Application Granted - Operative Date from the First Full Pay Period 22 November 1990

REASONS FOR DECISION

The State Wage Case decision of November 1989 determined that the Second Structural Efficiency adjustment should be examined on an award by award basis as opposed to division by division within an award.

The delay in dealing with this, the Furnishing Trades Award, has been brought about because the Transport Workers' Union of Australia Tasmanian Branch (TWU) has been reluctant to involve itself in the industry negotiations. Hence the TWU is not an applicant for the second structural efficiency increase for this award, however the application made by the Tasmanian Confederation of Industries (TCI) seeks to vary all divisions in the award.

The applications made by The Federated Furnishing Trade Society of Australasia, Tasmanian Branch (FFTU) and the Federated Clerks Union of Australia, Tasmanian Branch (FCU) seek to vary Divisions A and B respectively.

As no agreement exists between the TWU and the other parties to the award, the Commission is required to determine all the applications before it.

In his submissions Mr T Edwards for the TCI stated that the new career and classification structures had not been finalised and they would continue to be processed as part of the structural efficiency agenda.

This award has, in the past had a close link to the Federal Award for this industry and Mr Edward indicated that a national skills audit was in train for the furnishing industry. This, he said was being conducted under the auspices of the National Furnishing Industry Training Board and would not conclude until approximately December 1990.

That being the case I can understand the reluctance of the parties to establish new classifications and career structures at this time, without having the benefit of considering the results of the national skills audit.

Nevertheless the TCI, FFTS and the FCU had reached agreement on the following package:

DIVISION A

1. Annual Leave

    * delete mandatory Christmas closedown.

    * insert provisions for the breaking of annual leave by agreement including up to 4 days "short term" annual leave.

    * insert provisions for closedowns to be in one, two or three separate periods one of which to be at least 14 consecutive days (10 working days).

    * insert provisions for part close down and part rostered leave.

2. Casual Employment

    * insert provision to extend casual employment beyond 12 weeks by a reement between the employer and the appropriate unions).

3. Part-time Employment

    * reduce minimum weekly hours from 19 to 7.6 with provision for less than 7.6 by agreement between the employer and the appropriate union(s).

    * insert a ratio whereby part-time employees do not exceed the ratio of 1:4 full timers.

4. First Aid Certificate

    * insert provision for Red Cross Society Certificate.

5. Hours of Work

    * increase spread of hours from 6 am - 5 pm to now be 6 am - 6 pm.

    * insert provision for a work cycle other than the 1, 2, 3 or 4 week cycles by agreement.

    * insert provision for the working of 12 hours shifts by agreement between the employer, employees and the Union.

    * increase the work period required to qualify for a rest break from 4 hours to 5 hours.

    * introduce provisions for the staggering of rest breaks.

    * delete transitory provisions associated with the introduction of 38 hour week provisions.

6. Meal Hours

    * 45 minutes but 30 if agreed between the employer and majority of affected employees.

    * up-date subclause (b) by deleting transitory provisions.

    * insert provisions for an employer to stagger meal breaks and for an employee to work up to 6 hours without a break for a meal.

7. Overtime

    * delete transitory provisions.

8. Payment of Wages

    * delete transitory provisions.

9. Shift Work

    * same changes as made to Hours of Work.

10. Sick Leave

    * notification to be before normal commencement time if practicable.

    * delete transitory provisions.

11. Structural Efficiency

    * introduce a provision for the reaching of enterprise agreements by way of a consultative mechanism.

    * such consultative procedures will also deal with implementation of classification structures, facilitative award provisions and matters concerning training.

12. Classifications

    * Broadband existing classifications as per Federal Furnishing Trades Award and where possible assimilate clerical and/or transport classifications into the broadbanded classifications structure.

DIVISION B

1. Investigate and progress towards greater uniformity with Division A including Enterprise Agreement provisions etc.

2. Rest Periods

    * introduce provision for the staggering of rest breaks.

    * increase qualifying period for rest breaks to coincide with those proposed for Division A.

In respect to Division C - Carters and Drivers the TCI sought the following:

1. Align all conditions of employment with those applicable for production employees so as to eliminate the need for a separate Division for Drivers.

2. By deleting subclause (i), Clause 67 - Annual Leave and inserting in lieu the following:

    "(i) Broken Leave

      The annual leave shall be given and taken in one or two continuous periods, one of those two periods must be of at least 21 consecutive days, including non-working days. Provided that, if the employer and an employee to agree the annual leave entitlement may be given and taken in two separate periods, neither of which is at least twenty-one consecutive days including non-working days, or in three separate periods.

      Provided further than an employee may, with the consent of his employer take short-term annual leave, not exceeding four days in any calendar year at a time or times separate from any of the periods determined in accordance with this subclause."

3. by inserting the following new clause:-

"CASUAL EMPLOYEES

    (a) A casual employee is one engaged and paid as such. A casual employee may be engaged for a period up to twelve weeks at any one time or for such longer period as may be agreed between the employer and the union provided that such agreement shall not be unreasonably withheld.

    (b) A casual employee for working ordinary time shall be paid per hour one thirty-eighth of the weekly rate prescribed by this award for the work performed plus a loading of 20% in lieu of annual leave, sick leave and public holidays."

4. By inserting the following new clause:-

"PART-TIME EMPLOYEES

    (a) Apart-time employee shall be an employee regularly engaged to work no less than 7.6 hours per week. Provided that where the operating requirements of the employer necessitate the engagement of a part-time employee for a shorter period per week, the employer may, with the prior agreement of the appropriate union, engage such an employee. Provided further that such agreement shall not be unreasonably withheld.

    (b) A part-time employee as defined in sub-clause (a) of this clause shall be paid for each hour worked during ordinary working hours one thirty-eighth of the minimum weekly rate prescribed by this award for the class of work performed.

    (c) an employer shall not engage part-time employees at a ratio greater than one part-time employee for each four full-time employees or part thereof.

    (d) Apart-time employee shall be entitled to annual leave, sick leave and public holidays which shall be paid pro rata to hours worked.

      In respect to public holidays and sick leave a part-time employee shall not be paid more than the number of hours they would otherwise have worked on that day.

    (e) Such part-time employees shall not be compelled by the employer to work overtime.

    (f) All other provisions of this Division shall apply to part-time employees."

5. By deleting Clause 69 - Hours.

6. By deleting Clause 72 - Rest Periods.

7. By deleting "eighty hours" and "6.66 hours" from subclause (a)(iv) Clause 73 - Sick Leave and inserting in lieu "seventy-six hours" and"6.33 hours".

8. By inserting in Clause 68 - General Conditions the following:-

    "The provisions of Clauses:

      Structural Efficiency

      Hours of Work - Day Workers

      Meal Hours - Day Workers

      Shift Work

      Settlement of Disputes Procedure

    of Division A and the provisions of Clauses:-"

    Mr Edwards, in support of the TCI's application stated that it was their intention to try and create uniformity of conditions between carters and drivers and production employees in this Industry.

    He said that the TWU had not responded to the Structural Efficiency agenda items, thus their views were not known to the TCI.

    He went on to say:

      "Mr Commissioner, this industry has within it a large number of employees who perform the duties of transport drivers on a mixed functions basis. I am personally aware of people that act in the role of a storeman/driver. I am also aware of people that act in the role of an assembler/driver. I am aware of people that act in the role of transporting carpet to and from the area in which i t has got to be laid. I'm aware of people driving small vehicles to deliver furniture for the employer; those people are predominately employed as another classification with the employer's factory and, on a mixed functions basis, undertake tasks of a transport worker.

      It is for those reasons, along with what we believe to be the primary thrust of the structural efficiency principle, that we advocate that is is appropriate to more closely align transport worker conditions with those for other employees in the furnishing industry.

      Some of those other issues to which I refer are the issues arising from the principles themselves; they are, multiskilling - broadening the range of tasks required to be performed by any particular employee, facilitating mixed functions, and generally trying to provide for efficient and effective work flows which cannot be achieved if certain segments of an employer's business are covered by divergent conditions of employment "

Mr Edwards tendered as an Exhibit (TC13) being a decision of the Full Bench of the Australian Industrial Relations Commission comprising Maddern, J., Marsh, D.P. and Merriman C., in respect of the Transport Workers (Mixed Industries) Award 1984. (Print J2976)

He drew my attention to a number of passages contained therein and placed some reliance on the following:

      "Some awards of the Commission and state industrial tribunals already contain similar provisions to that claimed by the employers. It is cumbersome and inefficient for an employer to have to apply different sets of conditions to employees a t the same establishment. Different conditions of employment in the same establishment can also cause disputation and disruption." (Pg 3)

A significant proportion of the submission presented by Mr Hansch for the TWU, in response to Mr Edwards, could best be described as being more appropriate for a case that sought to delete carter and driver classifications from this or any other Award.

As there was no such application before the Commission the relevance of that line of submission is somewhat questionable.

Mr. Hansch also suggested that I should not deal with the carters and drivers division in this Award as part of this Structural Efficiency exercise.

If I accepted that suggestion then I would not be dealing with Award restructuring for the Furnishing Industry. It is worth pointing out again, that the State Wage Case Decision of Nov 1989 determined that the Structural Efficiency adjustment should be carried out on an Award by Award basis, thus dealing only with certain divisions within an Award would be in keeping with that Decision.

In answer to a question from the Bench as to whether or not the TWU accepted the TCI's application, Mr Hansch stated that he accepted the rates of pay be increased to the amounts described in the TCI application but not the changes to certain conditions of employment.

After considering all the submissions presented during the course of this hearing I have arrived at the conclusion that the three applications before me should be granted.

The main reasons for doing so are:

1. The respective packages presented by the applicants are sufficient to warrant the second Structural Efficiency adjustment along with the programme to continue negotiations on an appropriate classification structure.

2. I could not find any cogent reasons for accepting the position adopted by the TWU.

3. I accept the submission presented by Mr Edwards in respect to the need for uniformity of conditions between carters and drivers and production employees in this Industry.

4. The applications conform with the Wage Fixing Principles and do no harm to the public interest requirements of the Act.

OPERATIVE DATE

The parties to the award could not agree on an operative date and it was strongly argued by the FFTU that it should be the 16 August 1990.

As there was no agreement the Act requires that I consider any "special circumstances" that would make it fair and right to grant retrospectivity to this decision.

I have not been able to find any special circumstances that are sufficient to warrant back dating the Decision until the 16 August 1990. Therefore, I determine that it be the first full pay period to commence on or after 22 November 1990.

ORDERS

The orders giving effect to this decision are attached.

 

R J Watling
COMMISSIONER

Appearances:
Mr J W Gill and Mr R Orange for the Federated Furnishing Trade Society of Australasia, Tasmanian Branch
Mr B Hansch for the Transport Workers' Union of Australia, Tasmanian Branch
Mr G H Adams for the Federated Miscellaneous Workers Union of Australia, Tasmanian Branch
Mrs H Dowd for the Federated Clerks Union of Australia, Tasmanian Branch
Mr T Edwards of the Tasmanian Confederation of Industries

Date and place of hearing:
1990
Hobart
August 8
October 17
October 24