T4265
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Federated Clerk Union of Australia and Ray White Real Estate - Kingston
Industrial dispute - non payment of commission REASONS FOR DECISION In this matter the Federated Clerks Union of Australia (Tasmanian Branch) (FCU) notified a Section 29 dispute in the following terms: "A dispute with Ray White Real Estate - Kingston, 175 Channel Highway, Kingston re: Non Payment of Commission." The issue of jurisdiction of the Commission to deal with this dispute was raised on behalf of Ray White Real Estate, Kingston. In that regard I reiterate my observations and findings contained in my Reasons For Decision in matter T.4251 of 1993 concerning Charles Johnson Real Estate. My comments were as follows: "Mr Clues appearing for Charles Johnson Real Estate (the employer) argued that the Commission lacked jurisdiction to deal with this matter. The submissions of Mr Clues centred on Section 92 of the Act which provides for offences against the Act to be heard and determined by a magistrate. In the proceedings there was discussion between the Commission, Mr Clues and Mr Clegg appearing for the FCU on the appropriateness or otherwise of the Commission hearing this matter pursuant to Section 29 of the Act. Taking a step by step approach to the dispute notification it is clear that: (1) pursuant to Section 3 of the Act industrial dispute "means a dispute relating to an industrial matter, and includes a dispute relating to: (a) ... (b) the entering into, execution, or termination of any contract for services in circumstances that affect, or may affect, an employee in, or in relation to his work;" (2) also pursuant to Section 3 of the Act, industrial matter "means any matter pertaining to the relations of employers and employees, and without limiting the generality of the foregoing, includes: (a) a matter relating to: (i) rates of remuneration, whether as wage rates or piece work rates, or variation of those rates or additions to those rates, or extra or special payments; (ii) ... (iii) ... (iv) ... (v) the mode, terms or conditions of employment; (vi) the relations between employers and employees. (b) the manner in which any rates of remuneration are to be fixed. Having regard to the foregoing the subject matter of the dispute notification is well comprehended in the definitions set out above. Accordingly there is no impediment, in my opinion, from the Commission hearing the dispute pursuant to Section 29 of the Act. The outcome of proceedings conducted in that manner may result in the conciliated settlement of the dispute. Alternatively there is nothing to prevent the Commission from issuing an order, on matters subject to this dispute notification, which would direct, as intended by Section 31(1) of the Act "that certain things be done or certain action is taken" as may be specified in the order. By way of elaboration I do not consider it appropriate for the Commission to decline to hear this or similar disputes given the broad definitions in Section 3 of the Act and the mechanisms and powers available pursuant to Section 29 and 31 of the Act. Indeed it could well be that subsequent to hearing a dispute of this nature the Commission may issue an order stipulating the rate of remuneration and the amount of accrued annual leave that should apply and the applicability or otherwise of the three per cent occupational superannuation. The Commission could also reach a conclusion on the appropriate operative date(s). It is acknowledged that the Commission has no jurisdiction to deal with offences against the Act. However the Act also provides pursuant to Section 44 that evidence of an order under Section 31 may be given in any legal proceedings." I am of the opinion that the issues in this dispute are also capable of being heard pursuant to Section 29 of the Act. Accordingly this matter has been set down for resumption of hearing on 27 April 1993 at 10.30am.
R K Gozzi Appearances: Date and Place of Hearing: |