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T3875

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s23 application to vary an award

Metals and Engineering Workers' Union
(T3875 of 1992)

AUTOMOTIVE INDUSTRIES AWARD

 

COMMISSIONER P A IMLACH

13 October 1992

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:-

"automotive roadside service" and

"diving school instruction."

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) " - had at the time of the registration of the agreement in 1990 some 27 members. In August 1990 or thereabouts the MEWU approached the RAC seeking proper representation and discussions with the company. The employer refused to even talk with the MEWU. They didn't advise us that they were entering into a new agreement with the ASE even though they knew the ASE had limited coverage in the workshop. An application to file a new agreement was listed before the Commission and subsequently the matter was dealt with.

The employer did not tell the MEWU of its intention to make the application. It did not tell the MEWU of the hearing date or the application to the registrar. The employer didn't tell the Commission that the ASE didn't have coverage of all the employees. The employer didn't tell the Commission that the MEWU had coverage of some 27 members. The employer didn't tell the Commission that the MEWU wanted to become party to the previous agreement. Ms Pavlic, who was representing the ASE, said to the Commission on page 172 of transcript of the earlier matter on 12 June, by inference, that the MEWU was told the application to register the agreement was, in fact misstating the position.

The parties to the agreement had, at the very least, a duty to tell the Commission of these facts as they were material in enabling the Commission to act according to equity, good conscious and the merit of the case, as is provided by section 1 of the Act. Courts have long held that silence can amount to misleading conduct and a misrepresentation of the facts. In fact, the Commission was misled, and I refer, sir, to your comments on pages 12 and 18 of the transcript in March and June of 1991. Sir, we would submit that you were misled, that the agreement was registered - with the agreement - of all the RACT employees and that the ASE was the only registered organisation with members within the workshop. Sir, it would be our submission that to refuse to deal with the current application for an award would be to condone such misleading conduct by the parties in their appearances before the Commission."

The MEWU further submitted (in this matter):-

"The questions posed in that submission were, we submit, critical of the determination of public interest. Those comments, sir, which we believe were valid in that earlier hearing are no less valid in these proceedings. The comments form part of the record of that case. They were submitted in evidence and were not challenged. Can there be a rebuttal from the TCI today? I do not believe so.

I would submit to you, sir, that it is incumbent upon the Commission to accede to our claim in the public interest. As I have previously quoted from my earlier submission, to do otherwise would be to condone a position adopted by the parties which are subject to these proceedings."

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:-

"All or any private employees engaged in an industry".

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:

  • from T2983 as to public interest and other factors,

"I accept that the Commission has no power under the Act to decide the validity or otherwise of industrial agreements registered with it. It is also true that under the provisions of the Act once an agreement is registered with the Commission, it is very difficult indeed for a person or organisation outside the ambit of the agreement to become a party to the agreement do not agree to any such involvement. At present, without drastic action, the MEWU is powerless to thwart the agreement."

"The Act further provides for industrial agreements made between registered employee organisations and employers to be filed and registered in the Commission. Such agreements are ironclad virtually and unassailable by parties outside the agreements.

I repeat, all these requirements and provisions are clearly envisaged by the Act and form part of our established industrial system.

The Club, by refusing to deal with the MEWU is relying on its rights established under the system. It would be wrong for me, as a Commissioner, to even recommend that the Club acknowledge the MEWU."

  • from T3616 as to the non-application of the proposed Scope clause in Tasmania:

"I accept that it may be undesirable or superfluous to make the new award when all of the area sought to be covered by the new award may already be covered by the agreement, ...."

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 is possible that there would be employees in the State covered by the extended Scope clause sought (admittedly not likely in view of the Confederation's submissions which I don't doubt).

  • I regard the making of the amendment as putting a base or a floor under the Agreement in the same way as agreements are made usually on the basis of an award already existing. It is possible that the Agreement could fall down at any time or could be declared null and void for reasons outside the jurisdiction of the Commission.

  • I do not see anything at all in Section 60 of the Act stopping the proposed amendment.

  • The proposed amendment is not contrary to Section 33 of the Act in that the application merely seeks to clarify the scope of the Award. I consider that the two classifications sought to be included are consistent with the general concept and coverage of the Award. In the preceding context the arguments by the Confederation, referred to and endorsed in pages 4, 5 and 6 of the decision in matter T3616 of 1992, do not apply in this case, particularly in the light of the first two reasons mentioned above. I accept the submissions of the MEWU as to its compliance with Section 33(1)(a).

  • If the MEWU were to seek to include a classification of a roadside serviceman in the Award it would be advisable to seek to amend the Scope clause first, as it has in this application. In this context I accept the MEWU's argument that the "roadside" mechanic and driver employed by the company contracted to the Nissan Motor Company in Tasmania are in truth roadside servicemen clearly falling within the meaning of the proposed amendment and hence the application meets the requirements of Section 33(1)(a).

  • I think it is proper and fair for the MEWU to seek and obtain a prescription in an award in which it has an interest which covers classifications for which it has coverage and membership albeit access to those members may be blocked legally by the Agreement.

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
COMMISSIONER

Appearances:
P Baker for the Metals and Engineering Workers' Union.
H Dowd for the Federated Clerks Union of Australia, Tasmania Branch.
J Long for the Federation of Industrial, Manufacturing and Engineering Employees.
M O'Byrne for the Liquor, Hospitality and Miscellaneous Workers Union.
S Clues for the Tasmanian Confederation of Industries.

Date and place of hearing:
1992
Hobart
September 16