T10369
TASMANIAN INDUSTRIAL COMMISSIONIndustrial Relations Act 1984
and Hume and Kerrison
[1] On 14 August 2002 the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (the applicant), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984 (the Act) for a hearing before a Commissioner in respect of an industrial dispute with Hume and Kerrison Pty Ltd arising out of an alleged breach of the Long Service Leave Act 1976 section 8 subsection 3(c) and (d) and severance pay in respect of termination of employment as a result of redundancy, in respect of Mr Jamie Quinn. [2] The hearing commenced at the Supreme Court, Cameron Street, Launceston, Tasmania, on Monday 2 September 2002. Mr B White appeared on behalf of the applicant and Mr A Cameron of the Tasmanian Chamber of Commerce and Industry appeared on behalf of the respondent. Following initial submissions, the matter was adjourned sine die. On 4 October 2002 Mr White wrote to the Commission requesting that the matter be relisted. The hearing was resumed on Monday 14 October 2002. [3] Mr Cameron raised a jurisdictional issue, which was his contention that the employer was respondent to a Federal Award, the Timber and Allied Industries Award 1999, and that the Timber and Allied Industries (Long Service Leave) Award 1999 also applied, therefore, he said, the Commission does not have jurisdiction to hear the dispute in relation to redundancy or long service leave. Jurisdiction - Redundancy For the respondent [4] Mr Cameron submitted that Clause 6 – Coverage of Award – of the Timber and Allied Industries Award has application to the type of work performed by Mr Quinn, which was joinery work. [5] The rates of pay provided for the occupations mentioned in clause 22 of the Timber and Allied Industries Award are incorporated into the award from other awards. Clause 22.5 refers to the classification of joiner and imports into the federal award the rates of pay from the state Building Trades Award. [6] Once that has happened all the other terms and conditions of the Timber and Allied Industries Award apply. [7] Mr Cameron referred the Commission to a decision of the Full Bench in Joshua John Strudwick and Irish Murphy’s Pty Ltd, which was an appeal against a decision of Commissioner Imlach [actually, Commissioner Abey]. At paragraph 51 the Full Bench said that: “It is our view that the words found in s.30A are unambiguous and given their ordinary meaning deny access to the TIC [Tasmanian Industrial Commission] to an employee, or former employee, covered by a federal award and employed by a constitutional corporation. Such an employee, or former employee, is able to make application to the AIRC [Australian Industrial Relation Commission].” [8] Mr Cameron tendered the relevant part of the list of respondents to the Timber and Allied Industries Award, which showed that Hume and Kerrison Pty Ltd is a respondent to that award. Also in the evidence was a copy of the Certificate of Incorporation of the company. [9] Subsequently, by letter dated 8 September 2002, Mr Cameron referred the Commission to Section 152 of the Workplace Relations Act 1996, which states: “Section 152 AWARDS TO PREVAIL OVER STATE LAWS AND STATE AWARDS 152(1)[State law etc inconsistent] Subject to this section, if a State law or a State Award is inconsistent with, or deals with a matter dealt with in, an award, the latter prevails and the former, to the extent of the inconsistency or in relation to matter dealt with, is invalid.” For the applicant [10] Mr White, for the applicant, submitted that the work performed by Mr Quinn was not work covered by the Timber and Allied Industries Award. He said that the work performed was covered by the National Joinery Products Award and the state Building Trades Award – Division B. Whilst Mr White agreed that Hume and Kerrison were respondent to the Timber and Allied Industries Award, he said they are not a respondent to the National Joinery Products Award, therefore the state award applies. [11] A letterhead and business card of Hume and Kerrison showed the nature of the work performed. The letterhead says that Hume and Kerrison are sawmillers, timber merchants, joiners, and manufacturers of roof trusses and solid timber doors. The business card refers to the Joinery Division and lists kitchens, staircases, joinery, laminated beams, mouldings, solid doors, timber windows, and renovation material to order. In the Joinery Division where Mr Quinn was employed, the work included spray painting, cupboards, kitchens, bench tops and counters. Some of the machinery used included saws, spindle moulders, buzzers and joinery machinery. [12] Mr Quinn told the Commission that the work he performed included shop fit outs, which involved installing counters and shelves after having built them in the workshop. These were made from a variety of materials, including timber, craftwood and melamine. Approximately 30% of his time was spent on shop fit out work. He also made timber windows, timber window frames and timber staircases in the workshop and then fitted them on site. 70% of his time was spent in manufacturing, for example, in making kitchens and cupboards and timber door and window frames. He also did some building work and repair and maintenance around the factory. [13] In Mr White’s submission, the nature of the business of Hume and Kerrison is such that the work is covered by more than one award. The federal Timber and Allied Industries Award, whilst it refers to the manufacture of frames, trusses, doors, windows and other building products, has nothing in it which relates to carpentry and joinery. [14] The trades of carpenter and joiner are not specified in Appendix D – Manufacturing and Joinery Sector of the Timber and Allied Industries Award. The indicative tasks at various levels are not the tasks performed by a carpenter and joiner. The work performed by Mr Quinn was covered by Division B of the Tasmanian Building Trades Award, apart from the on-site work performed, which was covered by Division A of that award. Clause 2(f) – Scope of Building Trades Award refers to carpentry and the definitions for Division D – WEEKLY HIRE, MAINTENANCE AND WORKSHOPS defines a carpenter or joiner as an employee engaged in mixed industry upon maintenance, construction or shop work. Jurisdiction – Long Service Leave For the respondent [15] Mr Cameron submitted that the employer and the employee were bound by the provisions of the Timber and Allied Industries (Long Service Leave) Award 1999 which sets out the provisions for long service leave for employees employed pursuant to the Timber and Allied Industries Award. The provisions of that award take precedence over the Tasmanian Long Service Leave Act 1976. [16] The parties to that award at clause 3 are the same parties as to the Timber and Allied Industries Award, which incorporates and includes Hume and Kerrison Pty Ltd. Clause 3.2 says that the award applies to all employees engaged in occupations specified in that award. A joiner is specifically mentioned at clause 22(5). There is a classification under that award and the terms and conditions of that award apply. Similarly, the terms and conditions of the long service leave award apply. The Commission does not have jurisdiction to hear any dispute in relation to that award, which must be heard before the Australian Industrial Relations Commission. For the applicant [17] The substance of Mr White’s submission was that the Timber and Allied Industries Award does not apply, therefore neither does the Timber and Allied Industries (Long Service Leave) Award. [18] The State Building Trades Award is silent on the matter of long service leave, in which case the entitlements are drawn from the state Long Service Leave Act 1976. Mr Quinn is disadvantaged by the provisions of the federal long service leave award. He said that there is more than one aspect to Hume and Kerrison’s work [therefore more than one award may apply]. Section 53 of the Industrial Relations Act 1984 says: “Where an employee performs 2 or more classes of work to which different awards apply, he shall, in respect of all matters (other than wage 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.” FINDINGS [19] Clause 41 of the Timber and Allied Industries Award says: “The provisions of the Timber Industry (Long service leave) Award 1977 [T0073 Print B1492] will govern the long service leave conditions for organisations respondent to that award as provided by clause 3- Parties bound and incidence of award of the Timber Workers (Long service leave) Award 1977. In all other cases reference should be made to the relevant State Long Service Leave Legislation.” [20] Clause 3 of the Timber Industries (Long Service Leave) Award, in particular 3.2 says: “This award shall as to all employees engaged in any of the occupations specified in the said Timber and Allied Industries Award 1999, as varied as aforesaid, whether members of an organisation of employees or not, be binding upon the following organisations:” [21] [Relevantly, in this case, the organisations listed include the Tasmanian Sawmillers Industrial Association]. [22] Therefore, given that the employer is a member of the one of the listed organisations, if the work of the employee is covered by the Timber and Allied Industries Award, then the long service leave entitlements would be those as specified in the Timber Industries (Long Service Leave) Award. This is significant, because Mr Quinn, based on the length of his service, would not meet the qualifying period for an entitlement to pro rata long service leave under the terms of the Timber Industries (Long Service Leave) Award, but he would under the terms of the Long Service Leave Act 1976 (assuming, that is, that he met all other criteria). [23] The determination of both of the issues in dispute (redundancy and long service leave), all other things being equal, is dependent upon a determination as to whether or not the Timber and Allied Industries Award applies. [24] I preface the following observations with the comment that it does not fall to me to interpret the Timber and Allied Industries Award. That is a matter for the Australian Industrial Relations Commission (AIRC). [25] It was not disputed that the work performed by Mr Quinn was that of a joiner. There is reference to a joiner in the Timber and Allied Industries Award at Clause 6 – Coverage of Award. Clause 6.5.4 Manufacturing Sector refers to “Joinery work”, however, what that subclause is doing is describing the industry sector. Clause 6.2 says that the award applies to the work as described in the skill grades structures in the appendices to the award, and Mr White claimed that the indicative tasks listed are not those performed by a carpenter or joiner. [26] Clause 22 – Wage Rates also refers to a joiner, at 22(5), where the award provides for the rates of pay for a joiner to be incorporated into the award from the Tasmanian Building Trades Award. Despite the fact that the heading for 22.5 reads “Imported classifications”, all the clause does, in effect, is to establish rates of pay. It does not in any way define the classifications. [27] It may be that Mr White is correct when he says that the work performed by Mr Quinn is work more properly comprehended by the National Joinery Products Award, to which Hume and Kerrison is not respondent. In that case, based on the information presented during the hearing, the appropriate award would be the state common rule award, the Building Trades Award. No detail was put before me as to the scope of the National Joinery Products Award. However, again, that is not a matter for me to determine, it is the province of the AIRC. [28] In my view, the appropriate way for this dispute to be dealt with is, firstly, by reference to the Australian Industrial Relations Commission, in order for a determination to be made as to whether the Timber and Allied Industries Award or the National Joinery Products Award (or neither) has application. If it is found that the Timber and Allied Industries Award applies then the Commission does not have jurisdiction to hear the matters currently before it. [29] Given the foregoing, I adjourn the matter sine die. Depending upon the outcome of any proceedings in the AIRC, it will be relisted at the request of the applicant.
P C Shelley Appearances: Date and place of hearing:
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