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T2667 and T2676

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.65A application for determination of award interest

The Federated Engine Driver's and Firemen's Association of Australasia,
Tasmanian Branch

(T.2667 of 1990)

and

The Australian Workers' Union,
Tasmania Branch

(T.2676 of 1990)

PASMINCO ROSEBERY (MINING) AWARD

 

COMMISSIONER R.K. GOZZI

HOBART, 28 February 1991

Award Interest

REASONS FOR DECISION

These applications by the Tasmanian Branches of The Federated Engine Drivers' and Firemen's Association of Australasia (FEDFA) and The Australian Workers' Union (AWU) were to initiate determination of interest proceedings in the Pasminco Rosebery (Mining) Award1 (the new award) which became operative on 8 August 1990.

Accordingly, following the steps required to be undertaken by the Registrar in conformity with the Industrial Relations Act 1984 the applications were referred to me by the President for determination.

Given that the AWU objected to the possible inclusion of the FEDFA in the new award, I decided to join the applications for purposes of hearing.

In deciding these matters I must take into account the provisions of Section 63(10)(c) of the Act which are as follows:

"(c) that Commissioner shall determine which awards the organisation has an interest in by satisfying himself that -

(i) the membership of the organisation consists of or includes members who are employers or employees in the industry or occupation to which the awards stated in its application pursuant to subsection (1)(a)(vii) relate or who are State employees to whom those awards relate:

(ii) that membership is consistent with the organisation's rules or constitution a copy of which has been lodged with the Registrar pursuant to subsection (1); and

(iii) the organisation being granted an interest in an award or awards would not prejudice the orderly conduct of industrial relations in Tasmania."

Mr Hayes, appearing for the AWU, submitted that the Pasminco Rosebery (Mining) Award significantly altered work arrangements to those in place when the Mining (Lead-Zinc) Award had application to employees of Pasminco Mining Rosebery (Pasminco).

It was contended by Mr Hayes that the changed circumstances relating to the organisation of work at Pasminco subsequent to the introduction of structural efficiencies created a barrier to the inclusion of the FEDFA in the new award.

Mr Hayes asserted that the definitions and classifications of Surface Operator, Mill Operator and Miner (Underground Operator) contained in the new award effected broadened job functions which went beyond the specific job-related definitions and classifications in the Mining (Lead-Zinc) Award and which the FEDFA could legitimately cover in accordance with its rules.

Mr Hayes argued that the singular and principal areas of interest to the FEDFA in the Mining (Lead-Zinc) Award, i.e. winder winch and loco driving and plant operating, did not carry forward in that manner to the new award.

It was submitted by Mr Hayes that the definitions and classifications of Surface Operator, Mill Operator and Miner (Underground Operator) refer to broad skill levels which include the specific tasks contemplated by the FEDFA Rules.

Therefore, Mr Hayes reasoned, it was not open to the FEDFA to cover employees performing only some components of the job functions envisaged in each of the new award definitions and classifications.

Mr Best for the FEDFA countered that it had been held in decisions of other tribunals that in determining eligibility for membership of the FEDFA regard must be had for the "prime purpose"2 of a worker's employment.

He contended that if an employee's prime purpose is to undertake work which the FEDFA is able to cover then those employees would be eligible for membership of that employee organisation.

Mr Best did not accept that the FEDFA Rules limited that organisation's ability to be involved in the mining industry. He referred to a High Court decision3 (not tendered or read into transcript) where he purported it was held that the FEDFA Rules are not confined to any particular industry. However that may be I recognise the wider scope of the AWU Rules which refer to metalliferous mining.

Having regard to the submissions of the parties as they relate to Section 63(10)(c)(i) and (ii) of the Act, I am of the opinion that the FEDFA has a constitutionally valid membership at Pasminco.

In my view the test that should be applied to determine membership eligibility is to consider what work these Operators undertake. There can be no question that the work they perform has in many cases as a core activity or a prime function the very tasks outlined in the FEDFA Rules.

Therefore it follows that the membership of the FEDFA is consistent with its Rules as required by Section 63(10)(c)(ii) of the Act.

The question contemplated in Section 63(1)(c)(iii) is whether or not the granting of an interest in the award would prejudice the orderly conduct of industrial relations in Tasmania.

Consideration of that issue has caused me the greatest concern. Having been directly involved in the structural efficiency processes in the making of the Pasminco Rosebery (Mining) Award I readily understand the urgings of the AWU that the Commission should take this opportunity to exclude the FEDFA from the new award to avoid the potential of demarcation disputes and to enhance structural efficiencies.

Mr Hayes correctly observed that the entire thrust of structural efficiency is to create greater flexibility in the workforce. He properly submitted that the AWU have wider career path opportunities for its membership at Pasminco than does the FEDFA. Because of those circumstances it was the assertion of the AWU that from a functional point of view it was logical to rationalise the union parties to the award.

Further Mr Hayes foreshadowed the likelihood of industrial disputation should employees who are not members of the AWU intrude into its work areas.

In my opinion fundamental to structural efficiency is the integration as far as is possible of an employer's workforce. The AWU recognised this with respect to shared functions in the structural efficiency proceedings for the making of the Pasminco Rosebery (Mining) Award.

It is entirely appropriate in my view for there to be at least peripheral overlap between traditionally demarcated work areas and indeed this has been a feature of many structural efficiency arrangements endorsed by the Commission.

In that context training of employees in those peripheral areas makes good sense. This should not lead to demarcation disputes when these employees on completion of the appropriate training perform those peripheral tasks as part of an integrated workforce.

In all of the circumstances I conclude that the orderly conduct of industrial relations in Tasmania would not be prejudiced by the inclusion of the FEDFA in the award.

Therefore as I have found in favour of the FEDFA in respect of the matters specified in Section 63(10)(c)(i), (ii) and (iii) I determine that it will be granted an interest in the award operative from the date of this decision.

With regard to the AWU I am also satisfied that it meets the requirement of this Section of the Act and it will accordingly be granted an interest in the award from the same date.

A copy of this decision will be forwarded to the Registrar pursuant to Section 65A(6)) of the Act.

The order is attached.

 

R.K. Gozzi
COMMISSIONER

Appearances:
Mr B. Best with Mr K. Gadd for The Federated Engine Drivers' and Firemen's Association of Australasia, Tasmanian Branch.
Mr B. Lowe, Mr C. Hayes (26.9.90, 13.11.90) for The Australian Workers' Union, Tasmania Branch.
Mr D. Skinner with Mr R. Evetts for Pasminco Mining-Rosebery.

Date and Place of Hearing:
1990
Hobart:
September 10, 26
November 13

1 T.2486 of 1990
2 Transcript p.75
3 Transcript p.76