TASMANIAN INDUSTRIAL COMMISSION

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

Construction, Forestry, Mining and Energy Union, Tasmanian Branch
(T10332 of 2002)

and

Island Block & Paving Pty Ltd

Industrial dispute - alleged unfair termination of employment - application out of time - alleged breach of award - Civil Construction and Maintenance Award applies - alleged breaches of Building and Construction Industry Award dismissed - correction order

REASONS FOR DECISION (CORRECTION)

[1] On 22 July 2003 I issued Reasons For Decision in relation to this matter.

[2] On 18 August 2003, the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (the CFMEU) wrote to the Commission in the following terms:

"Could you please advise regarding the above matter, than an order was issued.

This request is made so that we have clarification for our records given that the CFMEU (Tasmanian Branch) intends to appeal the decision."

[3] In dismissing the application it was my clear intention that a formal order be issued to that effect.

[4] To remove any doubt, an amended page 13 to the Reasons For Decision dated 22 July 2003 is issued herewith and marked "Annexure A". Paragraph 94 is amended accordingly.

Tim Abey
COMMISSIONER

Appearances:
Mr W White, Construction, Forestry, Mining and Energy Union, Tasmanian Branch, for Mr Mahnken
Mr A Cameron, Tasmanian Chamber of Commerce and Industry Limited, for the respondent

Date and Place of Hearing:
2003
May 26
Launceston

ANNEXURE A

"This award shall have no application to work covered by the scope of any other award of the Tasmanian Industrial Commission."

[90] This statement is unambiguous. If some other award applies, then the Building and Construction Award does not, even if in the absence of the other award, it might have application.

[91] I find that the Civil Construction and Maintenance Award has, in most cases exclusive, and in some cases at least equal, coverage of the work performed by Mr Mahnken whilst in the employ of Island Block and Paving Pty Ltd. It follows that by virtue of the above qualification in the Scope clause, the Building and Construction Industry Award does not apply to the work performed by Mr Mahnken.

[92] Mr White also relied on s53 of the Act which reads:

"53. Where an employee performs 2 or more classes of work to which different awards apply, he shall, in respect of all matters (other than wages rates or piecework rates) in respect of which different provisions are contained in those awards, be deemed to be employed under such of those provisions as confer on him the greatest benefits."

[93] In my view, this section does not assist the applicant. Mr Mahnken did not perform "2 or more classes of work to which different awards apply.." Mr Mahnken performed one class of work and the debate is: which of the competing awards has proper application? That question has been decided in favour of the Civil Construction and Maintenance Award.

Conclusion

[94] This application was limited to alleged breaches of the Building and Construction Industry Award. I have found that this award does not have application. It follows that this part of the application is dismissed. I so order.

Alleged Unfair Termination.

[95] Mr Cameron contended that the application was lodged outside the 21 day time limit imposed by s29[1B] of the Act and that no "exceptional circumstances" had been demonstrated to justify an extension of time. It is necessary to determine this preliminary issue ahead of any merit consideration.

[96] The uncontested facts are:

• Mr Mahnken's last day of work was 23 May 2002.
• Effective from 24 June 2002, Mr Mahnken was certified by a medical practitioner as ceasing to be incapacitated for work, albeit with an ongoing direction to avoid heavy lifting.1

1 Exhibit R2