T3875
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Metals and Engineering Workers' Union AUTOMOTIVE INDUSTRIES AWARD
Award - scope of award REASONS FOR DECISION This was an application by the Metals and Engineering Workers' Union (the MEWU) for an amendment to be made to the Scope clause of the Automotive Industries Award (the Award). The history behind this application was significant: in dispute matter T2983 of 1991 the MEWU, having gained significant membership amongst the employees of the Royal Automobile Club of Tasmania (the Club), sought recognition from the Club, but, despite protracted hearings and negotiations, was unsuccessful. Further, in matter T3616 of 1992, the MEWU sought to improve its position by applying for a new award to cover the operations of the Club exclusively; it failed in that attempt as well. The MEWU sought to extend or clarify the scope of the Award by adding the following words:-
The MEWU confirmed in its submissions that the real purpose of this application was to make it clear that, putting aside the effect of the RACT/ASE Road Service and Technical Department Staff Agreement 1990 (the Agreement), the work classifications encompassed by the additional words in the Scope clause were under the jurisdiction of the Award. The MEWU adopted the words of the Commission, as contained in the decision in matter T3616 of 1992, to state its claim in this application. The MEWU said it sought to put "a base or a floor under the Agreement as it were in the same way as agreements usually are made on the basis of an award already existing". In support of its claim the MEWU also relied upon other words in the decision mentioned in the previous paragraph, they were, ".... it would not be contrary to Section 60 of the Act to make the new Award despite the presence of the agreement ...." and "I do not see anything at all in Section 60 stopping the making of the new Award." The MEWU submitted that it was in the public interest for the scope of the Award to be amended as sought on the basis of what had been already submitted in the transcript of matter T3616 of 1992: the relevant words were quoted by the MEWU,
The MEWU further submitted (in this matter):-
The MEWU submitted that the application met the following requirements of Section 33 (1)(a) of the Act as to the making of an award to apply to:-
In the light of this prescription of the Act the MEWU said that the Award (the amendment thereto) could only be made for employees employed in an industry. The MEWU said that the Club was not an industry in itself, but, rather part of the wider industry of road service which was covered by the Award. On the grounds of consistency in industrial prescriptions for road servicemen employed by automobile clubs in all states, the MEWU submitted also that the scope of the Award ought to be expanded as requested so that a career structure could be developed on a national industry perspective. The MEWU said that the reasons set out by the Commission in the decision in matter T3616 of 1992 as being adequate for the expansion of the Scope clause had been met by the form and words of this application. The Federated Clerks Union appeared at the hearing, but, made no submissions. The Federation of Industrial, Manufacturing and Engineering Employees sought to reserve its right to make submissions until after the Tasmanian Confederation of Industries (the Confederation) had put its case. The Confederation opposed the application and noted that no other party supported it. In the first instance, the Confederation submitted, an expanded scope of the Award would have no coverage at all since the two classifications sought to be covered, apart from the Agreement, were not to be found in Tasmania. All the driving instructors working outside the Club were independent contractors and there were no other roadside servicemen employed as such. There was a Tasmanian company, the Confederation reported, which was contracted by the Nissan Australia Company to provide a certain roadside service, but it only employed a driver and a motor mechanic (already under the Award), hence the Club was the only organisation in Tasmania actually employing driving instructors and roadside servicemen. With the aid of an exhibit the Confederation availed of the following excerpts in support of its arguments:
The Confederation sought to have the application rejected on the basis the classification of driving instructor was not really natural to the Award and also on the basis that the application was trivial as allowed for in Section 21(c)(i) and (ii) of the Act. It was further submitted in opposition that this was really a re-run of the previous cases and further proceedings were not necessary or desirable. The Confederation produced an exhibit which contained copies of the two previous decisions of the Commission related to this application T2983 of 1991 and T3616 of 1992, and other documentation in particular from the Taxation Department relating to instructors being independent contractors. The Confederation quoted from the Taxation Office advice in support of its submission that the driving instructors were independent contractors and the Commission had no jurisdictional power over them. The Confederation submitted that nothing had changed since the previous decisions rejecting the MEWU's attempts, the President had made no declarations as to the occupations sought to be included in the Scope clause and hence further proceedings were undesirable. The question was put by the Confederation as to what future confidence the RACT could have in the State's industrial system if this application were to proceed. The Confederation referred to the other company providing roadside service in the State (for the Nissan Motor Company in particular) which employed a driver and a mechanic under the jurisdiction of the Award; the main point in this submission was that there was no need for the new classifications sought by the MEWU. The Confederation also submitted that the present scope of the Award was clearly limited to the businesses of either selling or repairing automobiles and this obviously did not envisage driving instruction. The Tasmanian Automobile Chamber of Commerce (the Chamber), a party to the Award, was unable to be represented at the hearing, but, had sent a letter to the Commission submitting its views on the application. The Confederation sought to have the Chamber's views incorporated on the record and with the agreement of the MEWU, in particular, the letter was read into the record. It is fair to say that the substance of the Chamber's submissions coincided with that of the Confederation. The FIMEE opposed the application saying that it had been representing the Club's employees satisfactorily and at the time of the hearing all the relevant employees of the Club were members of FIMEE whereas, conversely to the FIMEE's knowledge the MEWU had no members employed by the Club. The MEWU, in response to all the opposition to its application, submitted that it was not a re-run of the previous cases, but, a different matter altogether; there had been three distinct applications by the MEWU relating to the Club it said. As to the expanded coverage sought the MEWU pointed out that the present Scope clause did not meet the requirements of Section 33(1)(a) of the Act in that to exclude driving instructors and roadside servicemen would not fulfil the requirement therein for an Award to be made, "in respect of (a) all or any private employees employed in an industry." The MEWU further submitted that there were employees to be covered by the extended Scope clause and also that the Agreement was due to expire in 1993 which implied that, if there was no prescription as sought in the Scope clause, at that time the Award would be deficient. Mainly for the reasons virtually foreshadowed in the previous hearings in connection with the MEWU and its long-running dispute with the Club I am satisfied that the Scope clause of the Award ought to be amended as requested. I consider it would not be contrary to Section 60 of the Act to make the amendment to the Award requested in this application, despite the presence of the Agreement. In my view it is a matter of judgment as to whether or not it is undesirable or superfluous to make the amendment when all of the area sought to be covered by the amendment may be covered already by the Agreement: in this case I am prepared to amend the Award for the reasons:
It may be, as the Confederation submitted, that the present scope of the Award is limited to either the selling or repairing of automobiles, but, there is no reason why the MEWU may not seek to expand that scope in the manner sought and that being the case I consider the occupation of driving instructor is not inconsistent with the concept of the automobile industry as a whole. I accept the MEWU's contention that this is a separate issue to those decided in the two previous cases relating to the MEWU's attempts to gain formal recognition from the Club. In the first case (T2983 of 1991) the MEWU sought simply by means of a dispute hearing application under Section 29 of the Act for the Club to grant it recognition in the workplace and access to its members there. This is a straight out application to amend an award (albeit all parties are aware that the ultimate purpose is for the MEWU to gain recognition and access as before). In the same way, in the second case (T3616 of 1992), the MEWU sought to have an entirely new award made (no-one doubted for the same reasons as before), but, again that was different from this application. In deciding this application as I have I do not believe I have vitiated the two previous decisions referred to especially as this decision does not in any way interfere with the Agreement which stands (or falls) separately. Another submission put to the Commission by the Confederation during the hearing was that the MEWU should be stopped from harassing the Club by these repeated applications. I confirm that the Commission has been conscious of this factor for some time: the continuation of this long-running dispute is undesirable. Nevertheless, quite apart from the effects of this latest decision, I believe, in the context of the significant number of the Club's employees who have clearly expressed their wish to be represented by the MEWU, which has a legitimate interest in the Award, the Club must accept that the MEWU has rights and opportunities under the provisions of the Act to exercise those rights. I note that for whatever reason the MEWU has not taken industrial action over the dispute, but, has relied upon the mechanisms afforded by the Act. To date the Commission has not been minded nor persuaded to interfere with the freedom of any of the parties to use the procedures available under the Act to pursue legitimate ends. Finally, I am satisfied that it is not against the public interest that the Award be amended as requested. The Award will be amended as sought operative from the date of this decision. An Order is attached.
PA Imlach Appearances: Date and place of hearing: |