TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

The AWU-FIME Amalgamated Union
Tasmania Branch
(T.Nos. 4182 of 1992 and 5035 of 1994)

and

Adelaide Mushrooms Nominees Pty Ltd
t/a Tasmanian Mushrooms

Industrial dispute - award restructuring - translation

REASONS FOR DECISION

These applications were lodged with the Commission by The AWU-FIME Amalgamated Union, Tasmania Branch (the applicant) pursuant to section 29 of the Act, for the purpose of resolving a dispute between the applicant and Adelaide Mushrooms Nominees Pty Ltd trading as Tasmanian Mushrooms (the respondent).

Essentially the two applications deal with the same subject matters.

This is a dispute over the wage rates to be paid to 3 employees (as at 13 March 1992) as a result of being transferred from the Horticulturists Award to the Farming and Fruit Growing Award, as part of the award restructuring process.

History

1.  Prior to the first full pay period to commence on or after 13 March, 1992, employees of the respondent were paid in accordance with the provisions of the Horticulturists Award.

2.  That award, under Clause 8 - Wage Rates, subclause B - Vegetable Grower, Seed Farmer and/or Nurseryman, contains a provision that would see junior employees receive 100% of the adult wage rate at 18 years of age and over.

3.  After the first full pay period to commence on or after 13 March, 1992, decisions of the Commission1 saw the respondent falling within the scope of the Farming and Fruit Growing Award. This award rationalisation was part of the structural efficiency and the minimum rates adjustment process for the industry. The scope of that award is as follows:

"This award is established in respect of the industry of farming and/or fruit growing and without limiting the generality of the foregoing, shall include:

(a)  the preparation, sowing, raising, packing and harvesting of crops including grains, vegetables, peat moss, fungi, hops, nuts, or other specialised crops grown for the production of essential oils or pharmaceuticals;

(b)  livestock farming including the management, breeding, rearing and/or grazing of horses, cattle, sheep, pigs, goats, poultry, deer and/or other livestock;

(c)  fruit growing including the management, cultivation, picking, grading, packing and/or forwarding of fresh fruits including grapes;

(d)  seed farming and/or silviculture where such work is performed in conjunction with the activities specified in sub-clauses (a), (b) and (c) of this clause;

(e)  apiarist;

(f)  floriculturist (as defined)."

In Clause 5 - Supersession and Savings it states -

"This award incorporates and supersedes:

(a)  ...........

(b)  Horticulturists Award:

No. 1 of 1990 (Consolidated) in respect to the following classifications appearing in Clause 8 - Wage Rates:

(i)  Subclause A - Fruitgrower - all classifications,

(ii)  Subclause B - Vegetable Grower/Seed Farmer - classifications:

(1)  Farm hand, an employee who without direct supervision, carries out any duties required of him in connection with the growing of vegetables;

(2)  Farm hand, general;

(iii) Subclause F - Piece-Work - all classifications.

(c)  .........."

It goes on to state -

"PROVIDED that no right, obligation or liability incurred or accrued under any of the abovementioned provisions shall be affected by the replacement and supersession.

PROVIDED ALWAYS that where an employer, at the time of the making of this award, is paying wage rates in excess of those herein prescribed to an employee the wage rates so paid in excess of those herein prescribed shall not be reduced as a result of this award.

Nothing in this award shall be taken to reduce the conditions of an employee, who at the time of the making of this award, is in receipt of conditions in excess of those herein prescribed."

(4)  The new Farming and Fruit Growing Award to which the 3 employees (being the subject of this dispute) were transferred, contained a provision for junior employees. It was as follows:

"3. JUNIOR EMPLOYEES

The minimum rates of wages that may be paid to junior employees shall be the undermentioned percentage of the total wage for the classification Farm and/or Orchard Hand - Level 1 (as defined);

	%	Amount per week
Under 16 years of age 16 to 17 years of age 17 to 18 years of age 18 to 19 years of age 19 years of age and over	55 65 75 85 95	167.90 198.40 228.90 259.40 289.90"

At no time during the hearing of T.3677 of 1992 i.e. the application that gave rise to the new Farming and Fruit Growing Award, was the question of how juniors , who had reached to age of 18 years of age, and who, under the Horticulturists Award would be paid at 100% of the adult rate of pay, should be translated to the Farming and Fruit Growing Award.

5. To further complicate the matter the question of rates of pay for junior employees was further considered during the course of hearing application T.3825 of 1992. The consent variation arising out of that hearing, extended the scale for junior employees, and was operative from the first full pay period to commence on or after 26 June, 1992. It read as follows:

"3. JUNIOR EMPLOYEES

The minimum rates of wages that may be paid to junior employees shall be the undermentioned percentage of the total wage for the classification Farm and/or Orchard Hand - Level 1 (as defined);

	%	Amount per week
Under 16 years of age	55	167.90
16 to 17 years of age	65	198.40
17 to 18 years of age	75	228.90
18 to 19 years of age	85	259.40
19 to 20 years of age	95	289.90
20 years of age and over	100	305.20"

This provision clearly states that employees 20 years of age and over will receive 100% of the adult rate.

Issues in Dispute

In short, the applicant in these matters has asked the Commission, in order to settle an industrial dispute, to determine whether or not three employees of the respondent who, immediately prior to being translated to the Farming and Fruit Growing Award, were in receipt of 100% of the adult employees rate under the Horticulturists Award, should be translated to 100% of the adult employees rate in the new Farming and Fruit Growing Award.

Finding

I decline to issue any recommendation or order in respect of this matter for the following reasons:

1.  In the absence of any specific translation in the Farming and Fruit Growing Award, I can only arrive at the conclusion that the parties, when negotiating the new award, understood and envisaged that 18 and 19 year old employees would not receive 100% of the adult rate of pay as;

(a)  the award was made by consent and drafted by the parties, and

(b)  junior rates were further discussed and extended arising out of T.3825 of 1992 some three months after the operative date of the new Farming and Fruit Growing Award. During that hearing the parties requested the Commission to determine the 20 years of age and over rate of pay be 100% of the adult rate. This adds further weight to my earlier conclusion.

2.  It must be remembered that the new award was made as part of the award restructuring process under the Wage Fixing Principles. That process also bought with it a new classification structure and wage increases under the Minimum Rates Adjustment Principle. There was no automatic right for 18 and 19 year old employees, who were classified at 100% of the adult rate in the Horticulturists Award to be translated to the new award at the same level. The important fact was that the employees in question did not have their rates of pay reduced by the making of the new award. They continued to receive an amount of money which equated to 100% of the adult rate under the old Horticulturists Award which was in excess of the rate of pay for their age under the new restructured award.

R J Watling
COMMISSIONER

Appearances:
Messrs W Fitzgerald, R Lanthois, D Schirrippa and S Gates for Adelaide Mushroom Nominees Pty Ltd trading as Tasmanian Mushrooms.
Mr G Cooper with Mr J Devlin for The AWU-FIME Amalgamated Union, Tasmania Branch.

Date and place of hearing:
1993
Feb 17
Ulverstone, Tas
1993
Mar 4
Hobart
1994
May 6
Sept 29
Hobart

1 T.3682 of 1992 and T. 3677 of 1992