T3402
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 National Union of Workers and Purity Supermarkets
Alleged underpayment of Wages - Pallet Stackers REASONS FOR DECISION With this application the National Union of Workers (NUW) sought the Commission's assistance in resolving a dispute over the alleged failure of Purity Pty Ltd, Lampton Avenue, to observe the terms of a registered industrial agreement made between the Union and Purity Pty Ltd, Lampton Avenue and Statewide Independent Wholesalers - Trotters Lane. The issue in dispute was that the Company (Purity) refused to pay employees classified Storeman/Woman operating a certain type of mechanical equipment the rate payable to Forklift Operators. The classification of the Forklift Operator is described in the agreement as:
The mechanical equipment in question has been referred to by a variety of names such as automatic pallet stackers, automatic pallet stacking machines, automatic pallet jacks, pallet jacks, pallet lift trucks, electric powered pallet trucks and barretts. Prior to the hearing I visited the Lampton Avenue store to witness a demonstration of the two pieces of machinery, namely the pallet jack, the description I shall use, and the Forklift. The Union claimed that the words "(pallet stacks)" contained in the classification of the Forklift Operator indicated that operators of automatic pallet stacking machines should be paid the rate of a Forklift Operator as the machines were "power driven" machines similar to forklifts. The Union called one witness who was a shop steward for the Union and a Storeman with Purity at Lampton Avenue who testified that shortly after he became shop steward in 1988 he had queried with management the fact that Forklift Operators were the only employees receiving the higher rate, even though Storemen operated the "pallet stack" machines. He said that the company had advised that the machines did not stack pallets therefore the employees were not entitled to the additional payments. He had not pursued the matter because he thought it must have been settled before he became involved. The Commission was presented with the transcript and a decision by the former President (Mr. Koerbin) in the original matter1 which led to the making of the Purity/Statewide Independent Wholesalers - Federated Storemen and Packers Industrial Agreement2. The transcript and decision indicated that the employees concerned had been referred to as pallet stackers and included references to individuals (Storemen/Women) who operated automatic pallet stacking machines. The Commission was told that an automatic pallet stacker would lift a pallet a maximum of 6 inches (150 mm) off ground level whereas the Forklift could lift a pallet up to 6.5 metres off ground level. The NUW provided the Commission with documentation of the certificate of competency issued by the Department of Employment, Industrial Relations and Training which was required by employees in order to operate an electric powered pallet truck. The NUW tendered correspondence received from Statewide Independent Wholesalers Ltd dated 4 April 1987 which set out the rates to apply to Storemen/Women and Packers as from 1 April 1987. This document showed that prior to the Agreement the classification relating to the Forklift Operator specifically referred to power driven stacking machines and made no reference to "Pallet Stacks". The wording was as follows:
The NUW also tendered the definition of a "storeman" taken from the Agreement which it was claimed showed that a storeman was not required to operate power driven machinery. In summary Mr. Strickland contended that the agreement had been worded for the express purpose of equating the pallet stack operators with Forklift operators. In response to a question from the Bench, he submitted there was nothing strange about the two functions receiving the same rate of pay and he claimed that the skills required to operate the two pieces of machinery were of an equal level. For the employer, Mr. Clues sought to refute the claim that a pallet jack or pallet stack was similar to a Forklift. He asserted that the functions were different since a pallet jack was not capable of stacking pallets. It could simply only move them around just above ground level. He suggested that the reason the words (pallet stacks) were included in the agreement was to cover the possible acquisition of machinery such as the Walkie Stacker which was capable of stacking pallets up to 10 to 12 feet (3 to 3.6 metres) high. Mr. Clues took issue with the NUW assertion that the definition of "Storeman" did not entertain the use of power driven machinery. He submitted that the definition embraced the movement of goods around the store because it included the function of "distributing goods to containers or compartments or to other locations". Clearly he said the use of powered equipment was preferable to and more efficient than the manual distribution of goods. Two witnesses were called by Mr. Clues to attest to the nature of the functions of the equipment in dispute. Mr. D. Bennett, the Co-Warehouse Distribution Manager at Purity, and Mr. E. Simmonds, the owner of a company supplying materials handling equipment to industries. In brief, these witnesses stated that the pallet truck was designed for the purpose 1f transporting pallets, loaded or otherwise, around a warehouse. A 1allet jack was incapable of stacking pallets. The height to which a 1allet could be lifted above ground level varied between 2 and 6 inches (50 and 150 mm). The pallet truck was not considered to be a similar machine to a Forklift. Mr. Simmonds, in cross examination by Mr. Strickland, informed the Commission that his company had supplied Purity (for use in its supermarket stores) a machine similar to a Forklift which was known as a Walkie Stacker. Such machines were not used at the Lampton Avenue store. Mr. Clues contended that despite the way in which the terms, including "pallet stackers" had been interchanged, it was clear and accepted by the union's witness that the pallet jack could not stack pallets; it was clear also that the pallet jack was not a similar machine to a Forklift and that the use of a pallet jack was not outside the definition of a Storeman/Woman. In answer to my question, Mr. Clues informed me that all Storemen/Women at the Lampton Avenue store were required to operate pallet jacks. It was submitted that I should reject the union's claim that Purity Pty Ltd at Lampton Avenue was under paying employees who operated pallet jacks. I informed the parties that having heard the arguments I was satisfied that a pallet jack was not a machine similar to a Forklift and that pallet jack operators should not receive the same classification rate as a Forklift Operator. I decide accordingly. The claim is dismissed.
F. D. Westwood Appearances: Date and place of hearing: |