T8033
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Mines and Metals Association (Incorporated)
Award variation - State Wage Case 1997 - Award Review Process Principle 16 - Right of Entry Clause - obsolete and invalid - clause in lieu REASONS FOR DECISION This was an application made under section 23(1) of the Industrial Relations Act 1984 (the Act) seeking a variation to the Electrolytic Zinc Award (the Award). The application was made by the Australian Mines and Metals Association (Incorporated) (the Association) on behalf of Pasminco Australia Limited trading as Pasminco Hobart Smelter. The Commission was advised that, except for one item, all the amendments proposed in the application had been negotiated and agreed by all parties to the Award arising out of the award review process initiated by the Commission following the State Wage Case decision in 1997. As well as across the board matters such as formatting, clause name changes and clause re-numbering, the agreed variations included:
Apart from these and consequential changes, the Award was unchanged in substance. The Association submitted that the proposed variations were not contrary to the requirements of the Act, nor the principles of the Commission. The unions present at the hearing indicated their agreement to the proposed variations except for the Right of Entry clause which they all opposed on the primary grounds that it was contrary to the provisions of the Act covering right of entry. The Construction, Forestry, Mining and Energy Union, Tasmanian Branch (the CFMEU) relied on the Commission's "Award Review" Principle 16(1), especially the words:
The CFMEU said the present right of entry provision was inaccurate and inconsistent with the Act. The CFMEU suggested that the present right of entry clause be deleted and replaced with the following clause:
The matter of the Right of Entry clause was hard fought. It was agreed prior to the close of the hearing that the Association would reply in writing to the unions' submissions in favour of deleting the present clause with the unions having the final say in writing, if required. The Association made the point that the CFMEU did not formally apply to have the right of entry clause varied and the CFMEU also relied on the alleged "inaccuracy" of the present clause, not that it was "obsolete" which would have been more appropriate. The Association disputed that the present clause was "inaccurate" and pointed out that in its present form it had been acceptable to all parties for many years. FINDINGS I accept the submission of the parties as to the agreed amendments; these proposals are consistent with the requirements of the Act and the principles of the Commission, particularly Principle 16 Award Review Process. I am satisfied also that the implementation of the proposed agreed amendments is not against the public interest as described in the Act. The present award prescription provides that an accredited union officer may enter the employer's premises on legitimate union business during specified hours and only on week days that are not public holidays. Union visits outside these days and hours are permitted, but, only under mutually agreed terms. There are other restrictions prescribed. By comparison, the Act prescribes that an accredited union officer may enter any premises during working hours to speak to union members. There are other prescriptions, but, no other restrictions of the type enumerated presently in the Award. It is clear that the present prescription in the Award for right of entry is contrary to the provisions in the Act and, therefore, it will be deleted as obsolete and invalid and the simple clause referring to the Act, suggested by the CFMEU, will be inserted in lieu. The Commission will call a drafting conference of the parties in the near future to confirm a draft order.
P A Imlach Appearances: Date and place of hearing: |