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Tasmanian Industrial Commission

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T3176

 

TASMANIAN INDUSTRIAL COMMISSION

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

Federated Miscellaneous Workers Union of Australia
Tasmanian Branch

(T.3176 of 1991)

Video City
(trading as Classic Video Pty Ltd)

 

COMMISSIONER P A IMLACH

30 August 1991

Industrial dispute - settlement of dispute - non-compliance

REASONS FOR DECISION

This was an application made under Section 29 of the Act by the Federated Miscellaneous Workers Union of Australia, Tasmanian Branch (the Union) for a dispute hearing over the alleged non-compliance with a settlement reached in another dispute matter previously before this Commission, T.3112 of 1991.

The previous matter (T.3112 of 1991) had arisen out of a dispute between the Union and Classic Video Pty Ltd (otherwise known as Video City)(the Company) over the employment of a Mr Barry Woods. The settlement in the previous matter involved a commitment by the parties to honour certain conditions as to Mr Woods' continued employment. In this matter the Union claimed that the Company had reneged on the settlement agreement in the previous matter.

In an unusual turn of events the Tasmanian Confederation of Industries which had appeared for the Company in the previous matter did not do so in this matter: the Company was represented by its Managing Director and chief executive officer, Mr Terrence Ewing.

The Company advised that the reason why the agreement in the previous matter had been cast aside was because a number of its terms required the employer to act contrary to the Award. For example Mr Woods was to be given a minimum of four weeks notice before being required to relieve in another store of the Company. The agreement was not upheld also because the Managing Director himself, Mr Ewing, had not approved it. The Agreement had been signed on behalf of the Company by the Personnel Officer Mrs Geraldine Sproule, who apparently did not have the authority to make such an agreement.

The union sought to have the agreement upheld by the Commission. The Company sought to have the agreement declared invalid or not enforceable.

Altogether there were five witnesses called, Mr Woods was called by the Union and the Company called four employees including Mrs Sproule, the Personnel Officer.

The relevant facts in this case were that Mr Barry Woods was first employed by the Company in September 1988 and eventually he was made the manager of the Company's Sandy Bay store. After experiencing some problems in supervising another employee, who appeared to have gained the confidence of the Managing Director over him, Mr Woods requested to be relieved as manager and to revert to the position of video library attendant. Whether Mr Woods freely sought this change or was badgered into taking that course I am unable to say. In the witness box, however, Mr Woods confirmed that he had sought to vacate the store manager position.

There was conflicting evidence from the parties as to just what alternative employment was offered to Mr Woods by the Company.

The Company confirmed that Mr Woods remained an employee, but because he had sought to vacate the position of Store Manager, the only position available to him with the Company was that of a "floating" roster employee. This meant that he was employed full time, but was not attached permanently to any particular store and would work as allocated from week to week.

The Union claimed that Mr Woods had been offered employment in the terms of the agreement in the previous matter and that should be confirmed.

I am satisfied that Mr Woods sought to vacate the position of store manager: I was not convinced that he was coerced to do so. Because of that and the conflicting evidence I have referred to, the only position available to Mr Woods that I am able to confirm is the "floating" roster position which he must accept: I note it is a minimum.

I accept that the Managing Director had the ultimate authority to reject the agreement originally made on behalf of the Company by the Personnel Officer; such an action is against normal industrial practice where such agreements are made with implicit authority and very seldom overridden by senior management. It is common for such agreements to be made subject to senior management ratification, but no mention was made of that in this case.

I do not condone the late rejection of the agreement, but it was nevertheless valid: it follows that I am not prepared to enforce the agreement.

In itself the agreement was not against the Award since it merely contained conditions over and above the minimum standards of the Award. Such over-award agreements are commonplace and always open to be made under our present system, but they depend very much on the goodwill of the employer.

The Company claimed that the Union had been harassing it and it sought an admonition from the Commission on the basis that the matter in question (whether or not an employer was demoted) was purely in the area of management prerogative and was not an industrial matter as defined in Section 3 of the Act.

I do not accept that the subject matter of this dispute was outside the ambit of the definition of "industrial matter" in Section 3 of the Act. The whole dispute was concerned with Mr Woods' employment relations with the Company and I accept that his concerns were real. It is not necessary to go past the first few lines of the definition to verify that this dispute related to an industrial matter; the words are:

"industrial matter" means any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes..."

I confirm that I am not prepared to uphold the agreement rejected by the Managing Director.

 

P A Imlach
COMMISSIONER

Appearances:
P Shelley for the Federated Miscellaneous Workers Union of Australia, Tasmanian Branch.
T Ewing for Classic Video Pty Ltd.

Date and place of hearing:
1991.
Hobart:
July 30;
August 5.