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Tasmanian Industrial Commission

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T2949

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

The Hospital Employees Federation of Australia
Tasmanian Branch

(T.2949 of 1991)

and

Derwent Court Nursing Home

 

DEPUTY PRESIDENT

HOBART 22 February 1991

Alleged breach of award

This matter concerns a notification of dispute pursuant to Section 29 of the Act.

However the subject matter concerns the alleged failure of Derwent Court Nursing Home to observe provisions contained in the Hospitals Award relating to uniforms.

The Tasmanian Confederation of Industries (TCI) acting as agent for the employer concerned, raised a threshold question of jurisdiction.

It must be said that in the past it has not been uncommon for parties to bring to the Commission industrial disputes of a like nature for resolution, and for the Commission to act upon such requests in appropriate circumstances. Nevertheless those occasions when the good offices of the Commission have been used to settle such issues in the past were entirely dependent upon a mutual desire by all parties concerned to utilise the Commission in such a way.

Whilst the Act provides that a person subject to an award shall not fail to comply with any of the provisions of the award (Section 48) it also provides that proceedings for an offence against the Act shall be heard and determined by a magistrate (Section 92). Section 91 stipulates that in proceedings for offences against the Act there is an onus on a defendant to prove compliance.

Alternative remedies open to a party to obtain satisfaction may also be found in either:

    1. Seeking an interpretation of a provision contained in an award (Section 43); or

    2. Seeking a variation to an award

In this instance I have no alternative other than to uphold the argument advanced by the TCI and to dismiss the application for want of jurisdiction.

 

A Robinson
DEPUTY PRESIDENT

Appearances:
Mr D McLane with Mr C Stringer for The Hospital Employees Federation of Australia, Tasmania Branch
Mr W J Fitzgerald with Mr G Alexander for Derwent Court Nursing Home

Date and place of hearing:
1991
Hobart
February 21