T2664, T2671 and T2535
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Goliath Portland Cement Company Limited and The Australian Workers' Union, s.23 application to vary an award The Australian Workers' Union, Federated Clerks Union of Australia, CEMENT MAKERS AWARD
Industrial dispute - structural efficiency principle REASONS FOR DECISION These matters, all related to the Cement Makers Award, were joined for hearing purposes. They included an application for the second stage of the 3% Structural Efficiency increase by the Federated Clerks Union of Australia, Tasmanian Branch (the FCU) (T.2535 of 1990) under Section 23 of the Act; an application by the Tasmanian Confederation of Industries (the TCI) for a hearing in respect of an industrial dispute under Section 29 of the Act (T.2664 of 1990); and an application by the Australian Workers' Union, Tasmanian Branch (the AWU), also under Section 23 of the Act, for the second stage of the 3% Structural Efficiency increase. A dispute notified in the Australian Industrial Relations Commission (the AiRC)1 between the Company and the Federated Engine Drivers' and Firemen's Association of Australasia (the FEDFA) which had been assigned to me by the President of the AIRC under section 174 of the Australian Industrial Relations Act was brought on for hearing in conjunction with all these other matters. Mr T Abey appeared for the TCI and, on behalf of the one company concerned, the Goliath Portland Cement Company (the Company), outlined the history of the Structural Efficiency negotiations with the unions so far. He submitted exhibits which in general outlined the Company's proposals and attitudes in the matter of restructuring. He stressed that the two key elements of the Company's aims in this area were (a) to have one award only covering its operations in Tasmania and (b) to have a maximum of two unions only represented at those operations. The advocates for the unions appearing at the hearing were at pains to state their objections to the Company's proposals; the objections varied a little, but it appeared that all unions were anxious and ready to take part in joint negotiations aimed at reaching settlement under the Structural Efficiency Principle. Initially Mr B Best, who appeared for the FEDFA, sought to have the hearing discontinued as it related to the Australian Industrial Relations Commission application, but his submissions in that regard were not accepted. The Confederation's application stated that agreement on restructuring had been reached with some of the unions, but curiously, none of the unions confirmed this at the hearing. The general reaction of all the unions present at the hearing was mixed in that some reported having discussions in some form or other with the Company over restructuring and others said that virtually nothing had occurred. The hearing was adjourned to allow all parties to join in conference. Later, on the day of the hearing, I was advised that a resolution had been reached and an agreement (operative from that date) as to restructuring would be drawn up and forwarded to the Commission. It would also be put to meetings of union members for endorsement. The hearing was closed subject to the receipt of written confirmation of the agreed matters and the rank and file approval. I advised that the hearing would be adjourned in case it was necessary to recall the parties should some part of the settlement need formal amendment or re-negotiation. In the meantime written details of the agreed items and advice that such details have been accepted by the unions have been received by the Commission. The items in the agreement, which may be considered as acceptable under the Structural Efficiency Principle requirements were as follows:
Having been presented with agreement between the parties I am prepared to endorse the implementation of this second stage Structural Efficiency Agreement in the Award, but, I am not prepared at this stage to endorse the proposed enterprise agreement clause: I am not opposed to the insertion of such a clause, but in this case there are three items or factors in it which need to be addressed. But, before specifying them I will summarise my reasons. There is nothing to preclude any parties to an award making an industrial agreement outside the award so long as it does not contravene the award in which case it would be illegal. Where an agreement is brought to the Commission for endorsement (whether it contravenes the award or not) I believe the clear prime intention of the Act is that such an agreement be registered as prescribed at Section 55(4):
i I do not believe as a Commissioner I am able to deal with an agreement in any other way. I am aware that in support of the contention that "enterprise agreements" are envisaged under the Act, use has been made of the words in Section 55(4) "Except in the case of an agreement made as required by an award . . ." I do not agree with this contention. I believe the reference relates only to those matters in awards which allow flexibility within the ambit of the finite provisions of a particular clause. I believe moreover that those instances in present awards which do allow the award prescription to be completely negated are invalid or a nonsense. It seems to me that where the parties do wish to negate an award provision, the award should be amended or an appropriate agreement registered. I do not accept that the registration of an agreement is necessarily a complicated and protracted process. The items I have referred to are as follows:
If the abovementioned amendments are made to the agreement I would be pleased to endorse it for inclusion in the award. As to clause 5(b)(iii) mentioned above, I believe the words "lesser benefit" are imprecise and subjective and if left in the clause would lead only to disagreement and confusion. An order, operative from 28 August 1990 will be issued within five days of this decision.
P A Imlach Appearances: Date and place of hearing: 1 C No. 70076 of 1990 |