T8441
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Australian Workers' Union, Tasmania Branch PASMINCO ROSEBERY (MINING) AWARD
Award variation - insertion of new clause - Work Done Through Contractors - outside third party - jurisdiction - application dismissed REASONS FOR DECISION This was an application made under Section 23 of the Industrial Relations Act 1984 (the Act) by The Australian Workers' Union, Tasmania Branch (the AWU) for a variation to be made to the Pasminco Rosebery Mining Award (the Award). The AWU was seeking to vary the award by inserting a new clause:
At the outset, Pasminco Australia Limited trading as Pasminco Rosebery Mine (the Company), represented by the Australian Mines and Metals Association (Incorporated) (the Association), submitted that the application was not within the jurisdiction of the Commission. The AWU responded that to establish jurisdiction it needed to present its case by calling witnesses and making submissions. It was agreed, however, that the Association would put its submissions on jurisdiction first. The Association submitted that the application covered a matter which was not an industrial matter as defined in Section 3.1 of the Act, since the application sought to regulate matters pertaining to the relations between the Company and others (ie, contractors), not the employees. The employees sought to be covered may be employees of another employer (a contractor), but, they do not have an employment relationship with the Company, the Association alleged. The intended clause, the Association said, does not relate to the relationship between the Company and its own employees. Were the Commission to endorse this application, the Association submitted, the Company would be inhibited in engaging third party contractors and making commercial arrangements with other companies, all of which would be contrary to the public interest as specified in Section 36 of the Act. Put another way, the Association said the application was seeking to extend the coverage of the enterprise award further than the enterprise itself (to the employees of an outside contractor). The Union disputed the Association's contention that the Company's employment of contract labour was not a subject encompassed by the definition of "industrial matter" in the Act. The Union produced exhibits, in particular of Federal decisions clearly accepting that a dispute between an employer company and its employees over its decision to employ contract labour in preference to its own employed labour did relate to the relationship between that employer company and its employees, that is, the subject was an "industrial matter" as defined. FINDINGS It is important to note at the outset that this application was made under Section 23 of the Act and, in conformity with that, it sought a variation to the Award by way of the inclusion of a new clause. Whilst a dispute over the use of contractors by an employer could well provide jurisdiction for the Commission to conduct a dispute hearing through an application made under Section 29 of the Act, this is an application to vary an award so that an employer would be bound to conform to certain requirements when engaging contractors, thus imposing a condition on an employer about the terms of a contract the employer may make with a third party, not the employer's employees. The Commission is satisfied on the preceding basis that this application seeks to impose conditions on the Company's ability to freely contract with an outside third party and hence the subject matter of this application does not come within the relationship between the Company and its employees; it seeks to regulate the Company's relationship with others who are not its employees. The application is therefore dismissed, being outside the jurisdiction of the Commission.
P A Imlach Appearances: Date and place of hearing: |