T912, T2409, T2176, T2407, T2513
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Building Workers' Industrial Union of Australia Metals and Engineering Workers' Union The Federated Engine Drivers' and Firemen's Association of Australasia SHIPBUILDERS AWARD
38 Hour Week, Superannuation and Award Restructuring REASONS FOR DECISION These matters have been joined, and collectively seek to vary the Shipbuilders award in respect of:
Some of these applications have been dormant for a long period of time, and dating back to August 1987. Whilst the Commission has made time available for hearings, the parties have not been in a position to proceed before this time. Preliminary type hearings were held on 3 November 1989 and 17 July 1990 but no progress was possible. Clearly the claim of 4% "second tier" is no longer relevant to current wage fixation principles as it has been overtaken by the structural efficiency and minimum rates principles. Accordingly, with no opposition, that claim was formally dismissed. On the remaining three issues the parties have substantially negotiated a package of measures designed to revamp and modernise what has been accepted as an old and largely outdated award. The structure of the Shipbuilders Award and many of its provisions relate more to the construction and repair of comparatively small and mainly wooden vessels; as well as ships dunnaging. During more recent times there have been significant changes to the industry, with less and less use of traditional materials in boat building (and repair), and more and more use of replacement materials - particularly aluminium and fibreglass. With use of these materials has come more modernised production techniques, together with a shift to far more radical types of craft, both as to design and ultimate use. The package of matters agreed to were described as fairly dramatic and incorporated introduction of new definitions; a commitment to current Wage Fixation Principles; a requirement by employees to carry out such duties as are within the limits of their skill, competence and training; a commitment by the parties to co-operate positively to increase efficiency and productivity and to enhance career opportunities and job security of employees in the industry; the establishment of working parties for testing and trialling of various skill levels and other matters; enterprise flexibility arrangements; award modernisation provisions; and flexibility arrangements in respect of hours of work. Apart from these agreed matters, other matters required arbitration. Those matters are as follows: Clause 11 - Bereavement Leave Whilst the wording of the clause may be regarded as that which commonly applies in private sector awards generally, the following added proviso was not an agreed matter:-
Union advocates emphasised that the extra leave of up to 10 days which was being claimed would be unpaid. It was argued that given the fact that it is not uncommon for employees to work at locations which are a long distance from the location of near relatives, 3 days is inadequate time to complete such round journeys. Some persons for instance work in Australia when their home town is in New Zealand. Whilst such a proviso would not be likely to be used very often, it could certainly be justified in specific cases In his opposing argument Mr Edwards said such a change to the award would not constitute an efficiency measure. And the Commission was reminded that this claim is co-incidental with a hearing before a Full Bench1 which is also dealing with unpaid leave, i.e. parental leave. Mr Edwards submitted that there are very real cost imposts to employers in allowing employees leave with or without pay. He said that the vast majority of employer members engaged in this industry employ below five employees and the absence of one person for an extended period would be detrimental to the business. Furthermore the existing clause is not only properly regarded as standard, but was created out of a "common rule" case conducted under previous legislation and carried forward via subsequent transition provisions of the Industrial Relations Act 1984. To change such a standard should properly require test case proceedings, rather than as a single award issue. Decision Whilst there has been a proper emphasis and concentration of recent times upon varying awards to give effect to measures designed to improve the efficiency of business enterprises, it would be wrong for any party to assume that other categories of claims are now proscribed, and I would discourage the perpetuation of any such notion. In my view it would be a sad commentary upon the system of industrial justice if such imbalance occurred and that no longer could employees expect consideration to be given to claims such as for compassionate leave of a sufficient duration to enable attendance at a funeral of a close relative. Whilst the present standard of allowing up to 3 days paid leave of absence was established through common rule proceedings under earlier Tasmanian legislation, there is no attempt here to alter that standard. Rather the proposal is to have included in the award a proviso for unpaid leave to be granted with the consent of the employer in appropriate circumstances where 3 days paid leave may be inadequate. However the insertion of such a proposal in the award in the manner proposed would constitute a formalisation of such type of arrangements as in all probability already occur. However, if the present claim was accepted, there would be an onus placed on an employer not to unreasonably refuse such a request for a longer period of leave and permit reference to the Commission in the event of a refusal. I agree with the submission that the likely use of such new provision if granted would not be frequent but it must be true also that to grant such unpaid leave could constitute an additional cost and cause inconvenience to an employer in some instances. I accept in principle that any employer should show compassion to an employee who explains the need for unpaid leave in special and unforeseen circumstances. By the same token the employee should equally be aware of the employer's requirements. Since however there is already contained in the award a "Settlement of Disputes" clause which could be utilised where agreement cannot be reached in relation to this type of circumstance I do not see the demonstrated need to include a separate proviso at this time. If circumstances change the claim may be again raised. Clause 18 - Hours Whilst the parties had agreed to the introduction of a 38 hour week, they could not agree to the inclusion or otherwise of one of the bases as to how such weekly hours may be worked. The employer representative proposed that one such nominated method should be:
In the alternative, union representatives proposed the following:
Much of the argument centred around the desirability or otherwise of working a 19 day month and flexibility of working arrangements at an enterprise. Given that the parties each held to an either/or position the logic of such respective arguments is not readily apparent. It is my decision that both proposals be included for the reason that they are not mutually exclusive and the disputes procedure is available if required. Clause 19 - Job Steward The parties agreed to a provision which recognises job stewards, expressed as follows: An employee appointed as a job steward shall upon notification by the union to the employer be recognised as the accredited representative of the union to which he belongs and he shall be allowed all necessary time during working hours to submit to the employer matters affecting the employees he represents. However they sought arbitration as to the following additional wording: Further shall be allowed reasonable time during working hours to attend to job matters affecting his/her union. A Job Steward shall notify the principal contractor's representative and his/her union prior to the calling of any stop work meeting. Mr Harding said that it is already common practice for job stewards to be encouraged by employers to attend to a range of problem solving tasks on the job, not only to settle matters in contention before they become the subject of a dispute, but to facilitate the implementation of structural efficiency measures designed to improve industry viability. And he said that notification of proposed stop work meetings in advance constituted a usually appreciated courtesy to employers. However Mr Edwards categorised the contentious paragraph as first of all giving the impression of legitimacy to the calling of otherwise illegal stop work meetings; and secondly giving unjustified licence to job stewards to attend to domestic type union matters in the employer's time. Decision It is undoubtedly true that job stewards are recognised and utilised in a wide range of different circumstances, depending upon the particular type of enterprise and a variety of other factors. It follows that it is difficult to be prescriptive without either unnecessarily exaggerating the job delegates legitimate role and purpose, or restricting it in such a way as to be to no one's advantage. Similarly to prescribe by award clause that the employer must be given early advice of stop work meetings can be interpreted differently. In my experience prescriptive award clauses of the nature presently claimed can be justified, either where consented to, or where particular circumstances can be demonstrated which justify the need for such a remedy. However in this instance neither consent or demonstrated need have been shown to exist. Accordingly I decide against including the disputed proposal in the award at this time. In the event of changed circumstances this matter may be re-listed at another time. Clause 26 - Payment of Wages The parties presented a comprehensive draft "payment of wages" clause. Subclause (a) (ii) provides as follows:
However there is disagreement as to:
Decision I decide that it is proper and appropriate to include the reference to union consent to electronic fund transfer because this is an important award matter and relevant unions have an interest in the award which affects their members. Since the only question before me is the number of bank transactions which an employer should meet as a consequence of using E.F.T. and not the principle, my task is that much easier. I decide therefore in favour of two (2) such transactions per week, i.e. one deposit and one withdrawal in respect of each pay period. This would seem equitable to cancel out any additional cost which would ordinarily arise out of such changed arrangement from cash payment. Clause 34 - Sick Leave The draft clause put forward contains the following subclause (ii) which is not agreed to in every respect, i.e.:
T.C.I. argued that to permit notification to an employer of inability to attend for duty due to sickness 4 hours after starting time was unacceptable. However the parties were not far apart in that both acknowledged the need to notify as early as practicable, and before the usual commencement time, save only for circumstances beyond an employee's control. Decision Clause 34 (ii) will be worded as follows:
This provision is common to most awards of the Commission and embraces the dual concepts of early notification and recognition of circumstances which may be beyond an employee's control in exceptional circumstances. Clause 32 - Settlement of Disputes This new clause contains a number of agreed procedures to be followed where disputes arise including a requirement to continue working and the final reference to the Commission. However T.C.I. oppose the inclusion of the following additional wording:
Decision In my view the agreed procedures are appropriate and appear to provide a proper avenue for the resolution of matters at issue if followed. The exercise of legal rights of any party can neither be conferred or denied by this Commission, and accordingly the inclusion of such additional wording as is proposed is unnecessary. For these reasons it is my decision that this part of the proposal not be included. CONCLUSION: The package of matters agreed, together with matters arbitrated now constitute proper grounds for the variation of the award in accordance with the applications, and satisfy the requirements of the Wage Fixation Principles and Section 36 of the Act. The award will therefore be varied accordingly. Date of Effect: All of these variations shall have effect from the first full pay period to commence on or after 23 September 1991. Order will follow.
A Robinson Appearances: Date and place of hearing: |