T3003
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Shop Distributive and Allied Employees Association RETAIL TRADES AWARD
Award variation - insertion of new clause, "Trade Union Training Leave" REASONS FOR DECISION In broad terms, the claim seeks to require employers to release, on full pay, employees who are delegates or duly elected representatives of a union for up to five days each year for the purpose of attending trade union training courses conducted, or approved, by the Australian Trade Union Training Authority. The claim is directed to retail industry employers of 4 or more employees. It requires employers of 4 to 49 employees to allow paid leave to at least one representative and employers of 50 or more employees to allow paid leave to at least two representatives to attend courses. A number of other supporting or administrative conditions are set out in the claim such as the giving of notice; eligibility; what constitutes full pay; options for deferral etc. Mr. Noonan, for the Shop Distributive and Allied Employees' Association, Tasmanian Branch (SDAEA), sought to rely on a decision of a Full Bench of the Industrial Relations Commission of Victoria, which granted trade union training leave in the retail industry on 11 April 19901. The only differences between this claim and the agreement ratified in the Victorian matter were -
Attention was drawn to the observation in the Victorian Decision that "there is a clear trend by industrial tribunals to support trade union training, including paid trade union training leave". A number of decisions of the Federal tribunal were tendered also to substantiate the union's claim that a standard existed federally about the granting of trade union training leave. It was alleged that together these decisions indicated the following trends:-
Mr. Noonan informed the Commission that the Tasmanian Branch of his union had over 80 shop stewards. The union had a general aim of electing one shop steward per shop and in the case of department stores, one per floor. He submitted material prepared by the Australian Bureau of Statistics which purported to show that in Tasmania at July 1990 there were 4234 retail establishments. Broken down into employment size there were:
At present the union runs two courses a year of two days each, one in Launceston and one in Hobart. This year, it was stated, approximately 70 representatives would attend, 30 in Launceston and 40 in Hobart. In response to a question, Mr. Noonan said a similar arrangement was likely to apply in 1992, but he was unable to say what the frequency of courses or the numbers involved would be after 1992, but that the number of days training might increase according to needs. It was claimed that employers with a total annual wages bill of $200,000 or more could offset the cost of any paid trade union training leave granted against the training levy of 1% which, the Commission was told, would rise to 1.5% as from 1 July 1992. It was contended that paid trade union training leave would not only benefit the individuals, the unions and employees generally, but it would also benefit the employers by virtue of the fact that shop stewards would have a better understanding of the industrial relations system. Ms. Dowd, for the Federated Clerks Union, supported the application. The Tasmanian Confederation of Industries, through Mr. Abey, expressed opposition to the claim both in detail and in principle. It was submitted that the claim was "on the periphery of the regulation of wage rates and conditions of employment"; and further, that it did "not go to the heart of ensuring that employees are appropriately protected in terms of remuneration and the conditions under which they perform work". It was asserted that in a working lifetime the vast majority of employees will never attend a trade union training course, whether or not paid leave was granted. Mr. Abey contended that paid trade union training leave was an item which found its way into awards by consent to suit a particular circumstance or settle a particular log of claims. It was not, he submitted, a prevailing or emerging standard which should be granted by arbitration. Mr. Abey claimed that some employers already granted paid leave to employees attending trade union training courses; some grant part paid leave; some grant unpaid leave; whilst there are others who refuse to grant even unpaid leave. He argued that what previously had been provided on a voluntary basis should not become a mandatory requirement; neither should it be imposed on those employers who do not consider a benefit will be derived from the granting of paid trade union training leave. It was contended that trade union training was for the benefit of the trade union movement and the employer should not have to support financially an arrangement which is developed solely for trade unionists. Mr. Abey tendered an extract from the report of the Trade Union Training Authority for the financial year 1989/90 which indicated that for that period the Authority received a Commonwealth grant of $8,945,000. He suggested that it was open to the trade union movement to allocate its resources as it saw fit and that if the Authority wanted to pay for or subsidise union representatives attending trade union training courses, then such an option was available. It was conceded that a significant number of awards contained provisions regulating trade union training leave, but the existence of those provisions should not unduly influence the Commission because what had occurred had occurred largely by consent and/or in other industries. Mr. Abey cited a N.S.W. Industrial Commission decision by Watson J. of 24/8/87 AWU (NSW) in Bowling Club Employees (Cumberland and Newcastle) and Country Awards in which His Honour stated, inter alia:
Mr. Abey submitted that little had occurred since 1987 to warrant any different view to that expressed by Mr. Justice Watson. It was asserted that the decisions relied on by the SDAEA, with the exception of the Victorian decision, were pre-1987, or involving a different industry not relevant to retailing, and in many cases were by consent, if not in detail certainly consent in principle. In the circumstances it was argued the Commission should not grant the application against such strong opposition in principle and in detail. Mr. Abey drew the Commission's attention specifically to the Victorian decision which was, he said, the only decision of any real relevance in this matter. However he also noted that it was by consent. But even though it was by consent, the SDAEA was endeavouring to further advance those provisions in terms of the number of establishments which would be affected and the number of delegates to be released for training. It was submitted that if the Commission was persuaded to approve the application there was no justification for altering the provisions adopted in Victoria. Whilst not resiling from his position of total opposition to the application, Mr. Abey claimed that nothing had been put to the Commission which suggested there were circumstances in Tasmania which warranted provisions different from those applying in Victoria. Both Mr. McDougall of the Tasmanian Chamber of Retailers, and Mr. Rice for the Retail Traders Association and the Tasmanian Farmers & Graziers Industrial Association supported the submissions of the TCI. They emphasised the impact that the proposal would have in terms of additional cost and inconvenience which they submitted were unreasonable and unnecessary in the present economic climate. They claimed that the industrial relations atmosphere in retailing in Tasmania was exceptionally good and that the system currently in place which allowed approximately 70 delegates to train each year was quite adequate. All employer representatives indicated they were prepared to negotiate further with the union on the issue of joint funding. However, Mr. Noonan was unable to give the union's undertaking that it could freely enter into negotiations on the matter. At the conclusion of submissions I indicated that I would not close the proceedings but hand down an interim decision which might assist the parties to advance the matter through conciliation. Accordingly, I wish to record the following observations: No awards of this Commission provide for paid trade union training leave and I am not satisfied that an existing or emerging standard has been determined upon which I could rely for precedent. To arbitrate such a significant matter at this early stage of the proceedings would be premature and inappropriate. The five parties involved should enter into discussions designed to achieve, if possible, a measure of agreement on the principle of trade union training leave (paid, part-paid or unpaid), its application to the retailing industry and if some agreement is reached on the principles involved, the conditions which should be applied in managing such a provision. I agree with the observations contained in some of the decisions referred to in submissions, that any arrangements entered into should be relevant to the industry concerned. To that extent I suggest that the parties should confine themselves to dealing with the issue as it relates to the needs of the industry in this State rather than trying to emulate, or draw on examples elsewhere which might not be all that relevant in the Tasmanian context. Apart from the general principle of paid trade union training leave, I consider there are two additional primary issues which should be considered carefully by the parties. The first is what should be regarded as an appropriate quantum of leave given that the length of the courses currently offered is only two days. The second is the union's proposal that shops with four or more employees should be required to release a representative who is selected for a course. The impact of such leave clearly has the potential to be far more dramatic on a small employer than on a large employer. A further issue which might be addressed is the possibility of the union and the employer jointly meeting the wage cost involved bearing in mind, amongst other things, the potential of a double cost to the employer who might have to employ relief staff. On advice from either the applicant or the employer parties that the negotiations have concluded with or without agreement the matter will be re-listed.
F. D. Westwod Appearances: Date and Place of Hearing: 1 Decision D90/0634 |