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T2820

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T3174

Industrial Relations Act 1984
s.23 application to vary an award

The Federated Miscellaneous Workers Union of Australia
Tasmanian Branch

(T.2820 of 1990)

MISCELLANEOUS WORKERS AWARD

COMMISSIONER P A IMLACH

19 June 1991

Amendment - Hours of Work - Right of Entry

REASONS FOR DECISION

This was an application made under Section 23 of the Act by The Federated Miscellaneous Workers Union of Australia, Tasmanian Branch (the Union) for two separate amendments to the Miscellaneous Workers Award (the Award).

The amendments sought were for the deletion of the Right of Entry clause from the Award and for the reinstatement of amendments to Clauses 16 and 25 of the Award made by the Commission in matter T.1158 of 1988 following a 4% second tier agreement: the latter amendments had been later removed at the request of the parties, in matter T.1753 of 1988.

Mr K O'Brien appeared for the Union and with the aid of a number of exhibits, canvassed the history of the amendments relating to clauses 16 - Hours of Work and 26 - Saturday, Sunday and Holiday Work. In relation to these clauses one purpose of the application was to clarify provisions in the Award relating to payment for work done on Saturdays and Sundays. There has been a protracted history of confusion and disputed interpretation over this area of the Award; even formal applications to the President for interpretation have availed nothing. The amendments made by T.1158 of 1988 certainly did go some way to remedying the problem, but by virtual agreement those amendments were withdrawn (T.1753 of 1988).

I propose to reinstate those amendments on the basis that when they were originally introduced it was as part of an agreed package of offsets in a 4% second tier agreement. Part of that agreement was that the amendments to clauses 16 and 26 would be further reviewed to clarify the intent of those clauses. Apparently it was this latter review which resulted in the eventual removal of the amendments agreed. I regard this matter as an on-going part of that review. If any party is dissatisfied with my decision in this I believe the best course would be for an application to further amend the Award to be lodged, but it should be aimed at improving these provisions of the Award not simply removing them.

It seems to me that a key factor prompting the Commission to accede to the previous application to remove the provisions, apart from the acknowledgement of the on-going confusion and the eventual need to clarify the situation, was the virtual agreement between the parties: I do not feel so constrained as there is now no agreement.

The other purpose of the application, the deletion of the Right of Entry clause, arose out of difficulties the Union had with one particular employer who, amongst other things, used the terminology of the clause to thwart the very process it purported to establish.

I believe it is not uncommon that inadequacies such as the one raised only come to light on the rare occasions when little used Award provisions like this one are availed of.

I do not accept the arguments that just because it has not been a problem before or there should be more than just one example, the matter should not be addressed.

In any case in the course of the hearing and the arguments and counter arguments it became clear to me that the real sources of the Union's problems were at subclauses (a)(iii) and (a)(iv) of the provision.

As to subclause 24(a)(iii):-

"That, without the consent of the employer, the representatives shall not visit the premises more than once in each week..."

I accept that it is unnecessarily restrictive and open to misuse. It will be deleted.

As to subclause 24(a)(iv) I believe the provisions of the Act, at Section 77 are sufficient prescription and in any case a dispute over right of entry ought properly be brought to this Commission for resolution - it also will be deleted.

Apart from these specific items, however, I believe the Right of Entry clause does have a place in the Award and I do not endorse its removal entirely.

An order [correction order] is attached operative from the date of this decision.

 

P A Imlach
COMMISSIONER

Appearances:
K O'Brien for The Federated Miscellaneous Workers Union of Australia, Tasmanian Branch.
W Fitzgerald (4/12) and M Sertori for the Tasmanian Confederation of Industries.

Dates and places of hearing:
1990.
Hobart:
December 4.
1991.
Launceston:
May 7.
Hobart:
May 29