TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.23 application for award or variation of award

The Australasian Meat Industry Employees Union,
Tasmanian Branch
(T.3515 of 1991)

MEAT TRADES AWARD

Hours and overtime

REASONS FOR DECISION

This matter concerns an application by The Australasian Meat Industry Employees Union, Tasmanian Branch, (AMIEU) to vary the Meat Trades Award by including a minimum hours per day provision.

The first hearing was on 5 March 1992 before Commissioner Gozzi.

Subsequently the file was reassigned at Commissioner Gozzi's request.

In first of all explaining the historical reasons for the application before me on 25 March 1992, Mr Swallow of the AMIEU said that following earlier proceedings some time ago involving both the granting of a 38 hour week for supermarket employees and a 4% second tier increase, resultant orders reflected alterations in conditions of employment which were not intended by the relevant decisions and/or agreed positions.

The present application was therefore an attempt to rectify one of a number of these problems.

Reference was made to the earlier provisions of the Meat Trades Award which then stipulated that the ordinary hours of work were to be 40 per week to be worked on 8 hours per day, 5 days per week, Monday to Friday inclusive. He said that when the hours of work for supermarkets was changed the words "Monday to Friday inclusive" were omitted through error.

Mr Swallow said however that there had been no problem until one large supermarket employer took unfair advantage of the situation and forced its employees to involuntarily work their ordinary hours over 5 1/2 days, Monday to Saturday inclusive.

As an example of the type of scenario which had been applied Mr Swallow said ordinary hours might have been arranged in such a way as to require full-time employees to work only 4 hours on a Monday and 5 hours on Tuesday thus allowing the balance required to make up a maximum of 38 (in the case of supermarkets) to be spread unevenly over the remaining four days, including Saturday morning.

Mr Swallow said these work arrangements were changed arbitrarily for the period concerned and without consultation with either the employees involved or their union.

This action by the employer caused a dispute and a possible walkout was averted following union intervention which negotiated a cessation of the practice pending reference of the whole question of how ordinary hours should be worked to this Commission.

To rectify the situation the AMIEU application (T.3515) sought to include in the Meat Trades Award a provision that the ordinary hours of work be 7.6 per day.

However application was made during the hearing for leave to amend the claim to clarify its intent by adding to the original claim the following:

Employer representatives initially opposed the application to amend on two fundamental grounds, i.e.:

This particular issue was debated at some length, following which an understanding was reached which allowed the amendment to be accepted.

The hearing was thus adjourned to enable employer representatives to prepare their response to the expanded claims, and to enable the AMIEU to seek leave to withdraw identical claims made part of a separate application.

When the hearing resumed on 9 April Mr Swallow reported that private discussions held during the interval had failed to produce any agreed position.

He expanded upon his reasons for submitting the present claims and said that there was a need to clarify the ordinary hours of work clauses because confusion exists at present following a number of previous award variations.

Mr Swallow quoted from extracts of earlier transcript, in particular page 63 in matters T.3055 and T.3056 of 1991 in relation to proceedings held on 30 August 1991. These extracts were categorised as illustrating how a mistake was made in that the provision for ordinary hours of work being extended to 10 per day was included in the employer's draft Order, but not in that of the union. He said such an extension was predicated falsely upon what had been determined under a related Federal Award by Deputy President Riordan. However Mr Swallow said that Deputy President Riordan had made it clear that either penalty rates would be incurred within such times or equivalent time off must be granted.

I was invited by Mr Swallow to also address this particular issue at an appropriate time.

It was emphasised that the manner i n which the award has been used since the hours clause in the award was widened has caused considerable unrest among employees in the supermarket area in particular, and the present application is designed to remedy that situation.

The Commission was told that the 38 hour week for retail butchers (outside of supermarkets) is to be dealt with in the next 8 to 10 weeks, and because employees in Tasmania have been required to give away more by way of conditions of employment that any other State in Australia, the present anomaly should be rectified at this time.

Mr Swallow submitted that the ordinary hours of work are already adequately flexible and that the alternatives available to working a 38 hour week were intended to be exercised through agreement. However in the case complained of the employer simply instructed employees as to how their ordinary hours of work were to be spread over 5 1/2 days.

It was said that in other States rostered days off are given, but not in Tasmania.

In opening his case in response Mr Edwards sought some clarification of the precise claims of the AMIEU as it related to Saturday work.

It became clear that the primary concern of the applicant was to ensure that ordinary hours of work should be performed on five consecutive days and rostered in such a way as to give employees two consecutive days off in each week and that so long as this occurred ordinary hours may include Saturday.

Nothing in the proposal was intended to alter the present proviso that ordinary hours of work on a Saturday attract a loading of 1 1/4 time before noon, and 1 1/2 times after noon.

Mr Edwards then proceeded to explain the current award provisions as they relate to both retail shops and supermarkets.

He said that what is now sought by the AMIEU is a reversal of the benefits agreed and arbitrated in exchange for the second structural efficiency adjustment which was awarded by Commissioner Gozzi in his 17 June, 19 and 26 September 1991 decisions¹.

It was further argued that the whole concept of this application is designed to circumvent the Wage Fixation Principles by revoking earlier trade offs. The opposition to the AMIEU claim by the TCI and MATFA also relied upon public interest criteria.

Mr Edwards said the assertion by the AMIEU that the current award provision is incorrect through some inadvertent drafting error or oversight was denied and should be given no weight. This and other aspects of the employer's position was illustrated by reference to a number of exhibits.

Those exhibits went to:

Mr Edwards emphasised in present proceedings, as he had on transcript of earlier proceedings, that in his view, the only areas of substantive advantage to the supermarket section in the Meat Trades Award are those matters which the applicant seeks to reverse. On this basis the present application was categorised as a de facto appeal.

However the evidence is that during earlier proceedings before another member of the Commission the specific question of employees working their ordinary hours on five or five and one half or six days was not addressed.

Mr Edwards said TCI and MATFA strongly opposed the claim as it relates to a minimum of 7.6 hours on any day of work and said there would be a number of adverse effects if it was granted. Major supermarket chains are required by law to close at 12 noon and could not therefore usefully employ workers for 7.6 hours. The reality is that such persons can only be gainfully employed on Saturdays for 3 1/2 to 4 hours at the present time.

A further aspect of this part of the claim is that if 7.6 hours are to be counted on Saturday, that has to be compensated for elsewhere in the week by working shorter days as part of the 38 hour week.

It was said that this would severely restrict the application of those flexible methods of working the 38 hour week currently contained in the award. An example is the effect this would have combined with the 10 hour day provision. If 10 hours are worked on one or two days the balance of hours left over the remaining days of the week cannot be worked with a minimum of 7.6 hours on each. If the ordinary hours are restricted to 5 days per week, then that too would limit the flexibility currently available to employers under the award.

Mr Edwards reminded the Commission that the structural efficiency gains which were achieved by employers as part of the structural efficiency process constituted a proper application of the principles of wage fixation, and accordingly should not now be reversed in any way.

Reference was made to the August 1989 National Wage Case Decision² of the AIRC which was adopted in the State Wage Case Decision of 13 October 1989, and Mr Edwards quoted from a number of passages of the former to support his position going to ensuring that working patterns and arrangements enhance flexibility and efficiency of the industry.

The application before me is to address a number of issues raised going to the manner in which ordinary hours should be worked and when overtime should apply in retail shops and supermarkets covered by the terms of the Meat Trades Award.

I am most conscious of the fact that those same issues have not only formed part of earlier proceedings, but are ongoing and presumably further changes may result. And whilst the matter before me has allowed the opportunity for discussion in relation to some of those other issues such as a 10 hour day as part of ordinary hours, I decline the applicant's invitation to overhaul relevant clauses de novo.

For these reasons my decision restricts itself to correcting the immediate problem which was caused by one large supermarket operator spreading the ordinary hours of work over 5 1/2 days for employees whose expectancy was to work 5 days to complete their ordinary hours and have 2 consecutive days off.

I feel it is a very great pity that my repeated entreaties to the parties to negotiate a mutually acceptable arrangement which would accommodate all interests failed to produce a resolution to what amounts to a dispute over a fundamental issue of hours of work.

It is beyond question that the Wage Fixation Principles have brought into sharp focus the need for hours of work to be much more flexible than they have been in the past and to enhance productivity and efficiency for the employer. However the Meat Trades Award already contains an extraordinary range of times during which ordinary hours (either 38 or 40) may be worked.

In retail shops the hours are, inter alia:

And for supermarkets the hours are:

"59. HOURS

Because supermarkets have a 38 hour week there is also included in the award a further provision relating specifically to the implementation of those shorter hours, i.e. a reduction from 40 to 38. This further provision is fairly standard and relates well to awards in which the ordinary hours of work previously have been 8 hours per day Monday to Friday inclusive, but still have Saturday and Sunday as overtime days only.

This strict relationship of the proviso to an 8 hours per day Monday to Friday situation becomes quite obvious and makes more sense when it stipulates for instance that:

However when other alternatives contained in the 38 hour week proviso are combined with the already wide ranging spread of hours earlier detailed (and including Saturday), a potentially explosive cocktail is the result. And in this regard the alternatives which are obviously incompatible with the first part of this clause include the following:

That at least one large employer was prepared to exploit the opportunity to take full advantage of the wide ranging award prescription without proper regard to the industrial fairness so far as employees is concerned warrants a variation to the award to prevent any repetition.

On this aspect it is noted that whilst the employer complained of was prepared to take literally the wording of a set of comprehensive provisions which was to his advantage, this employer apparently disregarded other fundamental requirements which did not suit. I refer in this regard to Clause 14 "Consultative Procedures" and Clause 22 "Enterprise Agreements".

Clause 14 provides, inter alia, that:

and later:

And whilst all of the provisions need to be read as a whole, it is nevertheless relevant to point out that the "Enterprise Agreements" Clause provides, inter alia:

and later:

The thrust of those provisions contain an important element which on the evidence before me has been ignored. That element is that before changes occur at the workplace affecting the working conditions of employees there shall be proper consultation with those employees concerned and their union is to be advised of the intention to commence such discussions before they actually occur.

Whilst the working of short as well as long hours per day and working ordinary hours in this fashion over 5 1/2 days has been suspended at this time, the AMIEU cannot be confident the practice will not resume unless the award is suitably varied to prevent it.

TCI and MAFTA argued with justification that the current award permits increased flexibility of hours of work and this is consistent with the requirements of the Wage Fixation Principles and that the award variations concerned were a consequence of negotiations and/or arbitrated decisions which concurrently granted wage increases.

Employer representatives also refute the AMIEU assertion that orders previously made contained errors.

In my view neither the integrity of the award provisions in relation to ordinary hours of work, nor the principles upon which they were created, would be compromised by subsequent amendment if such amendment was necessitated by clear evidence of an abuse of employer prerogative.

As to whether or not the Orders complained of accurately reflected the understanding of one or other of the participating parties is not so significant in my opinion as the overriding consideration of the nett effect which resulted from the application of those award provisions.

The fact of such an abuse is proven and brings no credit to those responsible. It is perhaps regrettable that in totally disregarding any consideration at all of the effect of such action on employees an arbitral solution has become necessary in an era when emphasis upon enterprise bargaining is being portrayed as the flavour of the month.

However, for the reasons that have been outlined I have decided to support the thrust of the application by amending the award to ensure that ordinary hours of work shall be worked only on 5 consecutive days from Monday to Saturday inclusive, and,that overtime provisions will apply outside such times.

I point out that any employer may enter into an agreement with an organisation of employees if alternative work arrangements are found to be mutually convenient. And contrary to what has been falsely reported in some quarters recently such employer need not be part of a registered organisation to access the Tasmanian Industrial Commission in this regard.

If such agreements are duly registered they prevail over any State award and have full legal effect.

However it needs to be emphasised that conversely private agreements which are inconsistent with an award are not legal unless registered.

Date of Operation:

This variation shall have effect from the beginning of the first full pay period to commence on or after 31 May 1992.

Order is attached.

A. Robinson
DEPUTY PRESIDENT

Appearances:
Mr J.E. Swallow for The Australasian Meat Industry Employees Union, Tasmanian Branch.
Mr T.J. Edwards with Mr M.D. Flynn and Mr L. De Nooyer for the Tasmanian Confederation of Industries and the Meat and Allied Trades' Federation of Australia (Tasmanian Division).

Date and place of hearing:
1992
Hobart
March 5, 25
April 9
1991:
December 16

1 T.3055 of 1991
2 Print H9100