T10999
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Construction, Forestry, Mining and Energy Union and Pasminco Hobart Smelter (Administrator Appointed) (now Zinifex)
Industrial dispute - whether an industrial matter - whether a dispute about modes terms and conditions of employment requires a collective element - appointments and promotions - application dismissed REASONS FOR DECISION [1] On 7 August 2003 the Construction, Forestry, Mining and Energy Union (CFMEU) ("the union"), 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 Pasminco Hobart Smelter (Administrator Appointed) (now Zinifex) ("the company") arising out of the alleged refusal to allow CFMEU member Mark Gower to return to work without valid reason. [2] The dispute was heard at the Commonwealth Law Courts, Hobart, before myself, commencing on 29 August 2003. Conciliation conferences took place on 29 August and 12 November 2003; and 26 May 2004. There was a Directions Hearing on 17 June 2004, and the matter proceeded to arbitration on 18, 19 and 20 August 2004. [3] Mr B Stirling appeared for the applicant and Mr R West appeared for the respondent. BACKGROUND [4] Mr Mark Gower has been employed at the Risdon plant of Zinifex since December 1990. He is currently working on light duties in the site redevelopment team. His substantive position is in the electrolysis department. [5] Between 1991 and 1998 he sustained a number of workplace injuries. From November 1998 until the beginning of 2003 he worked on restricted duties in the electrolysis department. [6] At the beginning of 2003 Mr Gower was informed that he would not be able to continue working in the electrolysis department; the company claiming that it would untenable for medical reasons for such arrangements to continue. [7] The company obtained a report from Dr Andreas Ernst, of Work Fit Tas Pty Ltd, dated 21 July 2003. He said that Mr Gower had advised there were no significant changes in his condition and issued guidelines for restrictions to apply to his work.1 [8] Although Mr Gower was informed in early 2003 that he could not continue to work in the electrolysis department, he did, in fact, continue to do so until 7 August 2003, when he was told not to attend for work. He then remained at home and in receipt of workers' compensation payments. As a result, the union brought a dispute before the Commission, claiming that Mr Gower was able to continue productive work in the cellroom and seeking his reinstatement to that position. [9] The first day of hearing was 29 August 2003. The company had obtained a further report from Dr Ernst, which was dated the day of the hearing. It said that Mr Gower was fit to perform work that involved low and mild loadings to his lower back and to his elbows. Dr Ernst said:
[10] Mr Gower's treating doctor, Dr Scarr, in a letter dated 13 June 2003, indicated that the restricted duties Mr Gower was performing were the same as had pertained since April 1997. Dr Scarr said:
[11] During the proceedings of 29 August 2003, it was agreed that Mr Gower would be placed on wages rather than workers' compensation until the end of September 2003 and that the company would identify alternative employment opportunities. [12] On 9 September 2003, the company offered Mr Gower a temporary position as a labourer in the site redevelopment team on a part time basis. He commenced this work on 21 October 2003 and was paid at the rate applicable to his substantive position in the electrolysis department, with a proportion of his wages made up of workers' compensation payments. [13] At the request of the union, the matter was brought back before the Commission on 12 November 2003. The union's claim was that Mr Gower should perform meaningful work in the plant on wages for the entirety of his duties, expressing concern that the "bank" of workers' compensation entitlements would eventually run out. [14] On that day, it was agreed between the parties that the company would investigate whether there were any permanent positions available to Mr Gower within in the plant, or, alternatively, whether Mr Gower could be made permanent in his present position in site redevelopment. [15] The company responded to Mr Gower by letter dated 17 November 2003 in which they said that there were no suitable permanent vacancies in the site redevelopment team, but they were prepared for him to continue that work on an interim basis. [16] It appears that the situation remained unchanged for some months, until Mr Matthew Double assumed responsibility for the Human Resources Manager position, and commenced a review of all employees in receipt of workers' compensation payments. [17] This gave rise to a meeting in March, between Mr Gower and Mr Double, at which a number of issues were discussed, including whether there were any permanent vacancies in site redevelopment. [18] On 19 May 2004 Mr Double responded in writing, saying that there were no vacancies that matched Mr Gower's capabilities. As a result, the union asked that the matter be brought back before the Commission. The proceedings resumed on 26 May 2004. [19] Mr Gower continued to work 32 hours per week in site redevelopment. There was a vacancy in that team created by the resignation of Mr Jack Fraser, a tradesperson. The union said that Mr Gower regularly performed 90% of the work that Mr Fraser had done. They proposed that Mr Gower be permanently placed in that position. At the conclusion of that day's proceedings, it was agreed that the company would consider the union's suggestion. [20] The company set out its response in a letter to Mr Gower dated 31 May 2004. Relevantly, they said that the work undertaken by the site redevelopment team was to change and therefore there would be less demand for unskilled and semi skilled employees, and that the only vacancy in the team was for a trades person. [21] On 1 June 2004 the union wrote to the Commission, advising that the company's response had failed to bring an end to the dispute. The matter was to proceed to arbitration. [22] The company obtained a further report from Dr Ernst, dated 21 July 2004, regarding Mr Gower's fitness for work in the site redevelopment team as a non-tradesperson. Dr Ernst assessed Mr Gower as fit for duties which posed low and mild loadings to the lower back, neck, shoulder and arm regions; and unfit for duties which posed moderate and high loadings. Orders Sought [23] The Orders sought by the union, as outlined in correspondence dated 1 July 2004, are that:
WITNESS EVIDENCE For the Applicant: Mr Mark Gower [24] In a written statement,4 Mr Gower described his regular duties in the site redevelopment team. He said that Mr Jack Fraser had performed all of those tasks plus a small amount of welding, about one hour per week. [25] In his verbal evidence Mr Gower said that his work in the cell team had involved the full range of work, excepting for manganese digging. His physical condition had remained fairly stable from the time he started restricted duties until August 2003 [when he was told to stay home]. [26] He had worked on the site redevelopment team from October 2003 until the present. His view was that he was ready and willing to continue to do that work on a permanent basis. The work had not so far caused him any problems. [27] He agreed that he was subject to limitations as a result of his elbow and back injuries. He did not completely agree with Dr Ernst's assessment that he was only fit for duties which imposed low and mild loading to the lower back and unfit for duties which imposed moderate and high loadings. He said:
[28] Nor did he agree with Dr Ernst's assessment that he was fit for duties which posed low and mild loadings to the neck, shoulders and arm regions and unfit for tasks which posed moderate and high loadings in those areas.
[29] He disagreed with Dr Ernst's observation that he was only partially fit for the role in site redevelopment, saying that he could undertake 90 to 95% of the work. [30] He said:
Mr Dean Nichols [31] In a written statement8 Mr Nichols said that he had been employed at Zinifex since 1997 and presently worked in the site redevelopment team. [32] Mr Nichols said that the work Mr Gower did as part of his regular duties were all tasks that Jack Fraser also performed, in addition Mr Fraser performed a small amount of welding. If Mr Gower were made permanent, then the tradesmen on site could cover the welding that Mr Fraser had done. [33] He gave oral evidence in relation to a workplace injury to his back. [34] He expanded upon the work performed by members of the team, including himself, Mr Gower and Mr Fraser. He also gave evidence about levels of supervision and the pacing of the work. [35] Mr Nichols had worked with Mr Fraser for the 12 months before he left. When asked what work Mr Fraser did, he said:
Mr Murray Brian Richards [36] In a written statement10, Mr Richards said that he had been employed at the Zinifex plant since 1994 and had worked in site redevelopment until recently. [37] He outlined the work that Mr Gower presently performed and said that Jack Fraser also performed all of those tasks, and, in addition, a small amount of welding. If Mr Gower were to be made permanent in the work he is currently engaged in, the welding work previously performed by Mr Fraser could be covered by the other tradespeople on site. [38] In his verbal evidence, Mr Richards said that he was injured in 1999 and was on workers' compensation. He had worked in site redevelopment for approximately two years. Most of the time since October of 2003 he had worked alongside Mr Gower. He had also worked alongside Mr Fraser. The only work that Mr Fraser had done that Mr Gower did not do was a small amount of welding. There was absolutely no difference between the work that Mr Fraser and Mr Gower performed, other than the welding. [39] Mr Richards gave evidence of a similar nature to Mr Nichols, concerning work performed by the team, planning of work and levels of supervision. For the Respondent: Mr Grant Pennicott - Workers' Compensation Advisor at Zinifex Hobart [40] In Mr Pennicott's written statement11, he said that he had been involved in the management of Mr Gower's workers' compensation since 2002. [41] Mr Pennicott said that in October Mr Gower suffered a back injury and lodged a workers' compensation claim. In November 1992 he suffered an injury to his elbows and lodged another claim. In November 1993 he lodged a claim for a sore right elbow. In 1996 he lodged another claim in relation to his elbows. In 1998 he suffered a further injury and lodged a claim for lower back strain. As a result of all of those injuries Mr Gower was unable to continue in the electrolysis department. He was placed on restricted duties about 13 November 1998 and has remained so since then. From 26 October 1999 he was allocated duties that comprised only some of the cell inspection tasks that form part of the duties of operators in the electrolysis department. [42] On 7 August 2003, based on advice from Dr Ernst, the company decided to cease Mr Gower's modified duties in the cell room, given the limited number of tasks he was able to perform. [43] Mr Pennicott obtained a Risk Assessment for site redevelopment work for non-trades persons, provided by Dr Ernst on 21 July 2001. [44] In his oral evidence, Mr Pennicott said that he obtained a further report from Dr Ernst for the Commission proceedings in order to establish whether Mr Gower was able to work at industry norm levels. [45] The report was dated 6 August 2004 and said inter alia:
[46] When cross-examined, Mr Pennicott said that he was not aware of any documents in which the normal standards in relation to a fit worker in the industry were set out. [47] Dr Ernst had not assessed Mr Nichols or Mr Richards for their suitability for work in site redevelopment, nor were any of the other injured workers in that team assessed by Dr Ernst at any time. Mr Mark Robert Eaglesham - Manager of Engineering and Health and Safety at Zinifex, Hobart. [48] In a written statement13 Mr Eaglesham said that the site redevelopment team had been part of his managerial responsibility for approximately nine months. It was first established in July 2002 to improve site standards through a demolition and redevelopment program. [49] In September 2001 the company was placed in administration and severe restrictions on capital expenditure were put into place. As a result, the site redevelopment team focussed on low cost site beautification projects and minor works. Given the lighter nature of the work, the company assigned a number of employees on light duties to the team. There are currently five supernumerary employees temporarily working on the team on restricted duties as part of their return to work plans, including Mr Gower. These employees retain their original substantive positions, pending their recovery from their physical restrictions. [50] The company ceased to be under administration in April 2004. Consequently, a new works program has been developed which will change the role of the site redevelopment team back to its original purpose. Most of the demolition and removal work will not be suitable for employees with restricted work capacity. The work will require people with suitable trades skills. [51] Mr Eaglesham gave detailed oral evidence about future plans, the organisational structure and the role of tradespersons, contractors and supernumerary employees. He said that the role for injured workers in the team is as trades assistants or support personnel. There had been no major consideration of the role of injured workers in relation to the organisational chart developed for the team, and it was his belief that the time such employees spent on the team was finite. SUBMISSIONS Merit Mr Stirling for the Applicant [52] Mr Stirling submitted that it is unfair that Mr Gower has been left in a position with no permanency of employment. [53] The basis on which Mr Gower was removed from the cellroom is disputed, but the union has moved away from seeking reinstatement to that position in an attempt to settle the matter. The union has proposed a number of arrangements that offer a way forward, but the company, for its own reasons, has made it impossible to come to an acceptable solution to the dispute. [54] There is no reason why Mr Gower should not become permanent in site redevelopment. He has undertaken a broad range of duties in that position for a period of nine months, and there is currently a vacancy as a result of the departure of Jack Fraser. Most of the work that Mr Fraser did was work undertaken by unqualified labourers and Mr Gower is capable of doing that work and filling that vacancy on a permanent basis. The evidence shows that Mr Gower has worked on the site redevelopment team without any worsening of his condition. [55] The company's claim that the position vacant is that of mechanical trades person is artificial, adopted to prevent the resolution to the dispute in the terms sought by the union. [56] The Commission should approach Dr Ernst's evidence with some caution. The report of Dr Ernst dated 6 August 2004 was obtained in the context of the union's submission having already been served on the employer. [57] The use of Dr Ernst's reports gives rise to an element of unfairness because it allows for the concentration of attention on particular employees, which is what has happened in this case. By Mr Pennicott's admission, Dr Ernst has not, for example, analysed Dean Nichol's capacity to work in site redevelopment. [58] The Commission cannot be fully satisfied that Dr Ernst's evidence shows beyond doubt that Mr Gower is unsuitable for the work that he has undertaken and has been undertaking since October 2003. The evidence is that only a portion of the work that has been analysed by Dr Ernst is classified in the high range of loadings. His letter of 6 August 2004 makes generalised predictions but does not put any evidence in the context of Mr Gower's condition on the basis of the work that he has done over the past nine months. Dr Erst also makes qualified comments, such as:
[59] The union does not disagree that management prerogative should not be interfered with except in the case of unfairness. That principle is repeated and is binding on this Commission in Lewis v Coles Myer Logistics. However, the history of the present matter has led to unfairness to Mr Gower. [60] In August of 2003, despite a letter from his doctor, Dr Scarr, he was removed from his position in electrolysis and it was only through the union's intervention that he was put back onto wages. [61] There was a struggle to get Mr Gower into some other work. For over twelve months he has been left dangling. That is the nub of the dispute. There has been unfairness because he should never have been taken out of electrolysis in the first place. [62] The company had said at various times during the conciliation process that it would look for a position for Mr Gower. The Commission would be aware that the union has been consistently frustrated in that process. Matters have not proceeded as the union understood they would. It is that aspect that has kept the dispute alive. [63] The matter has been before the Commission for twelve months. The Commission should determine whether or not the level of analysis and assessment by Dr Ernst that has been sought and used by the company is reasonable. Mr Gower has performed the work in site redevelopment for several months without agitation of his injuries. Dr Ernst's evidence is not sufficient for the Commission to determine that he is unfit for work in the redevelopment team. [64] Section 29(1) and s.31(1) give the Commission a broad responsibility and a broad power to settle disputes and to issue orders for that purpose. [65] It is sufficiently broad for the Commission to do what it sees fit to bring this dispute to settlement. Mr Gower has been left in an unfair position because he is without a permanent position of employment at Zinifex. Mr West for the Respondent [66] Mr West submitted that the company has met its obligations in relation to the fair treatment of workers injured in the course of their employment. For six years Mr Gower has had the support of rehabilitation providers, and alternative employment options have been explored. [67] Under the Workers Compensation and Rehabilitation Act 1988 there is a twelve months minimum period during which the employer has an obligation to assist with return to work. The company has retained Mr Gower on restricted duties for almost six years. [68] In the context of what is reasonable for injured workers, Michael Lewis v Coles Myers Logistics15 establish the general proposition that the employer is required to take reasonable measures to assist injured workers to rehabilitate, and that the stipulated twelve month period might not be able to be strictly relied upon, if it is unfair to do so. [69] The company has acted properly and under medical advice. It has conducted ergonomic assessments. There is evidence of physical incapacity in the reports of Dr Ernst. There are many things that Mr Gower cannot safely do. It would be unreasonable for the Commission to tell the company that they must permanently employ somebody in those circumstances. [70] The union's case proceeds on the incorrect assumption that there is a current position being filled by Mr Gower on a temporary basis. There is no such position. Mr Gower retains his position as an operator in electrolysis. The offers to Mr Gower were always offers of temporary alternative duties. [71] It has long been recognised, as summarised by Abey C in Coles Myer Logistics, that the Commission will only intervene when they consider that the employer has acted unreasonably or unfairly. The Commission does not lightly interfere in management decisions, particularly about staffing matters and manning levels unless it is satisfied that there is some unjust or unfair exercise of management's prerogative to run its own business. Mr West provided a number of cases in support of this proposition. [72] The removal of Mr Gower from the electrolysis area was not a capricious act. It was based on ergonomic assessment and medical advice. The company has considered alternative positions for him. The union has presented no evidence that there was any available position for which Mr Gower was physically fit. If he is not fit for a position, then it is perfectly reasonable that a position was not offered to him. The proposal that Mr Gower be made permanent in site redevelopment was rejected with good reason and after proper consideration. Jurisdiction Industrial Matter The Respondent [73] Mr West submitted that the dispute is about Mr Gower only; therefore it does not have the necessary collective element implicit in the primary definition of an industrial matter. [74] The Act defines an industrial dispute at section 3 - Interpretation:
[75] An industrial matter is defined to mean:
the mode, terms and conditions of employment; or ..." [76] It is the mode, terms and conditions of employment that is relevant to this dispute, which must pertain to the relations between employers and employees. [77] In New Town Timber and Hardware v Gurr ("New Town Timber") Zeeman J gave a primary meaning to the definition of industrial matter, ie, that it must pertain to the relations of employers and employees. The primary definition, he said, is enlarged by the matters set out in paragraph (a) [as it was then], but what follows in the definition must be read down to relate only to disputes that have an industrial character; that is, they must be read in the context of the primary meaning. [78] Zeeman J said:
[79] and;
[80] Although that case dealt with the dismissal or reinstatement of an employee, the approach taken by Zeeman J ought to be the approach the Commission takes in the instant case. The "mode terms and conditions of employment" ought to be read down to mean disputes that fall within the primary definition. [81] The Full Bench of the Commission in Capital Hill v O'Connor ("Capital Hill") refers to Justice Zeeman's decision in New Town Timber. The Full Bench said:
[82] What can be distilled from that is that the Full Bench accepted the reasoning of Zeeman J, but said that it was not now relevant in the context of unfair dismissals because Parliament had changed the law. However, taken out of the context of unfair dismissals, then the reasoning of Zeeman J remains, and that is the way the Act should be interpreted. [83] The primary meaning of the term industrial matter, as put in the often-cited passage in the MTEA and AEU ("Metal Trades") case is:
[84] The mere fact of a union being involved does not change the character of the dispute. [85] In Ranger Uranium Mines and FMWU ("Ranger Uranium"), the High Court said:
[86] There was no doubt that what the union was doing was assisting Mr Gower in a personal dispute. The fact that the union has been advocating his case does not change the fact that it is Mr Gower's personal dispute. [87] Section 29(1A) of the Act, whilst relating to industrial disputes concerning an individual, expressly provides for individual rights by statute. That section is not relevant in this dispute and the union must rely on the primary meaning of dispute. The Applicant [88] Mr Stirling submitted that the Commission is capable of issuing an order that Mr Gower become permanent in site redevelopment, because there is a dispute under section 29 of the Act in relation to an industrial matter. [89] This is a matter pertaining to the employment relationship. Within the definition of an industrial matter are a number of criteria, including a matter that relates to the mode, terms and conditions of employment. [90] The Commission has a very broad arbitral power under sections 29 and 31(1) to settle disputes and to issue orders for that purpose. In support of that, the union relies on the decision of the Full Bench in Barminco v Australian Workers Union ("Barminco"). In paragraph 32 of that decision, the Full Bench said:
[91] In New Town Timber, Zeeman J dealt with the way in which a terminated employee fitted within the definition of "industrial matter" and s.29 in the Act, as it was then, in relation to the difficulty associated with the relationship between a former employee and an employer. Justice Zeeman was dealing with a problem that used to exist before the Parliament amended the Act. [92] Mr West is saying that the use of the term "employees and employers" should exclude this matter because it involves only Mr Gower and Zinifex. If that approach were to be extrapolated, it would mean that a term such as "terms and conditions of employment" would mean that the Commission could not deal with disputes concerning one term or one condition. [93] In Capital Hill, the Full Bench of the Commission was dealing with the question of a former employee. The Full Bench concluded:
[94] The basic ratio there was that because of the enactment of s.29(1A) a personal dispute can form an industrial dispute. It is clear that the problem Zeeman J was dealing with has now gone from the Act and there is a precedent for an industrial dispute being made up of one employer party and one employee party. [95] The Commission can properly consider this to be an industrial dispute within s.3 of the Act. It is about the relationship of Mr Gower and his employer. Even so, the dispute is about other things - it is about the way Zinifex deals with workers' compensation, it is about what the company now intends to do with the site redevelopment team - there are considerations outside of the immediate relationship. This dispute doe not relate simply to the relationship of Mr Gower and the company, because there are a number of other union members in the site redevelopment team in the same circumstances as Mr Gower. [96] The Ranger Uranium case deals with a High Court consideration of what the conciliation and arbitration powers are within the Commonwealth Constitution and what the Commonwealth's Constitutional powers of dispute settling are, including the question of interstateness. Those issues are not relevant here. [97] There is a clear power under the Tasmanian Industrial Relations Act for the Commission to determine an industrial matter. Appointments and Promotions The Respondent [98] In Mr West's submission, a second jurisdictional point relates to the fundamental difficulty the union has because of the specific exclusion under the definition of "industrial matter" at s.3 of the Act, which expressly excludes matters relating to:
[99] The primary jurisdiction concerns matters pertaining to the relations of employers and employees and that is then extended by (a), matters included, and (b) matters excluded. So, even if this matter could be included as a dispute about the mode, terms and conditions of employment, it is excluded because it is a matter relating to an appointment. [100] In the matter of Saarinen v University of Tasmania ("Saarinen"), in the Supreme Court of Tasmania, concerning an employee whose contract was not renewed, Underwood J said that the dispute, whilst pertaining to the relationship of employer and employee, related to "an appointment other than in respect of the qualification for advancement".
[101] Mr West acknowledged that the Chief Justice had dissented, but said that it was in a way not relevant to the instant case. [102] Cox CJ said at page 5:
[103] It is the same in the present case - there is a change of responsibilities and duties - a change of position. So even though he dissented, Cox CJ is as one in relation to the current case. This is clearly a dispute about the appointment of Mr Gower to a position on site redevelopment. The Applicant [104] Mr Stirling submitted that the order the union is seeking is not an appointment, but has to do with the mode, terms and conditions of his employment. What type of work will Mr Gower be doing, on what basis, and where? [105] In Saarinen, the decision was split, with Cox CJ dissenting. What was put in that case is not a basis for consideration in the instant case. Mr West has referred to observations made in a minority decision, which is not authoritative [106] This case is not an application dealing with the appointment of Mr Gower. In Saarinen an instrument of appointment had come to an end, the contract had expired. The debate was about whether or not there could be an appointment in that context. Mr Gower has been a permanent employee since 1990; his employment has never come to an end. [107] The exclusion in the Act of appointments should not apply in this matter. What should apply is the relevant inclusion of mode, terms and conditions of employment. FINDINGS Industrial Dispute Industrial Character [108] Mr West, for the respondent, argued that this is not an industrial dispute because, he contends, it does not have the necessary collective element implicit in the primary definition of "industrial matter" in s.3 of the Act. The collective element referred to is the alleged requirement that the dispute be more than just a "personal" dispute concerning one employee. [109] The question to be determined is: whether, in order to be an industrial matter, a collective element is required in the Tasmanian statutory regime? [110] The Industrial Relations Act 1984 is:
[111] At s.19(1) the jurisdiction of the Commission is set out:
[112] Section 3(1) defines "industrial dispute" and "industrial matter".
[113] Mr Stirling, for the applicant, submitted that if the respondent's approach were to be adopted, then it would mean that the Commission could not deal with disputes concerning one term or one condition. This is obviously not so. The Acts Interpretation Act 1931 at s.24(d) provides:
[114] However, the respondent's argument is broader than whether the words are expressed in the singular or the plural. [115] The respondent contends that because the instant case is a dispute about the "mode, terms and conditions of employment", and is not a dispute about termination of employment, then Zeeman J's comments in New Town Timber, referred to earlier, mean that the expanded definition of "industrial matter" ought to be read down to mean disputes that fall within the primary definition of "industrial dispute". In other words, a dispute about the mode, terms and conditions of employment must have an industrial character before it can be an industrial dispute. I do not disagree so far. [116] I do not, however, agree with the proposition that, in this jurisdiction, a dispute must have a collective character before it can have an "industrial character". [117] New Town Timber dealt with the situation of a former employee. In that decision, Underwood J referred to the amendments to s.29(1) of the Act effected by Act No. 59 of 1992, which conferred on an employee the right to apply for a hearing in respect of an industrial dispute. Before the Industrial Relations Amendment (Enterprise Agreements and Workplace Freedom) Act 1992 was proclaimed in March 1993, s.29(1) of the Act provided:
[118] Section 29(1), as amended by the 1992 Act, provides:
[119] As can be seen, until the Act was amended in 1992, only unions could bring disputes on behalf of employees. The Parliament, through the 1992 amendments, ended the exclusive access previously enjoyed by unions. The section now clearly allows for individual employees to bring applications for industrial disputes before the Commission. [120] Changes to the Act in 1994 put beyond doubt the question of whether a dispute concerning an individual who has had their employment terminated is an industrial dispute; in that circumstance it is evident that an individual can bring a "personal" dispute. [121] Section 29(1A) of the Act now provides:
[122] The parties agree that this dispute is about the "mode, terms and conditions of employment". Whilst the Act at s.3 does not explicitly refer to "employee or former employee" in relation to a dispute about the "mode, terms and conditions of employment", such a matter is, in my opinion, a dispute about an industrial matter because "the mode, terms and conditions of employment" are matters that, self-evidently, pertain "to the relations of employers and employees". There are some exclusions, which are set out at paras (c)(d)(e)(ea)(f)(g)(h) and (i). [123] A dispute in relation to a "breach of an award or registered agreement", also included in the expanded definition of "industrial matter" at s.3, is similarly unqualified. Given that awards and agreements set out the mode, terms and conditions of employment, then, again self-evidently, a breach of an award or agreement is a matter that pertains to the "relations of employers and employees". [124] Mr West argued that an individual could only bring a dispute before the Commission where the statutes explicitly make provision for them to do so. [125] At para (b) in the definition of "industrial matter", a dispute about "a breach of and award or a registered agreement" does not refer to "employee or former employee", therefore there is no explicit provision in s.3 for an employee. Yet, at s.29(1A)(c), a former employee is able to bring a dispute before the Commission relating to "a breach of an award or industrial agreement involving the former employee." There is explicit provision for a former employee but not for a current employee. If Mr West's argument were correct, then the manifestly absurd result would be that an employee would only be able to make application for a hearing about a breach of their award or agreement when they ceased to be an employee. [126] The Full Bench in Capital Hill, which dealt with, among other matters, the question of whether a dispute can be an industrial dispute in the absence of other employees from the dispute, found that the:
[127] Later in that decision, when addressing the observations made by Zeeman J relied upon by the respondent, the Full Bench made the following comments:
[128] In his Second Reading Speech, the Honourable R J Beswick, Minister for Industrial Relations and Training, made the following comments:
[129] I have read and considered the other authorities provided by the respondent concerning what constitutes an industrial dispute, and agree with the applicant's submission that they deal with considerations that are not relevant to the issues under dispute, which concern the Tasmanian statutory regime. The Metal Trades case concerned the Commonwealth Conciliation and Arbitration Act 1904-1934, the serving of logs of demands and the creation of an industrial dispute under the provisions of that Act, in particular, whether an award was binding on employers who did not employ members of a union as well as those who did. The requirement for the creation of an industrial dispute in the federal jurisdiction in 1934 is not the same as the requirements in this jurisdiction. I do not doubt that under the former there was a requirement for a collective element, however, in my view, under the latter there is not. [130] After consideration of the decisions of the Supreme Court of Tasmania and the Full Bench of the Tasmanian Industrial Commission, I find that there is no requirement for an "industrial matter" to have a collective element in order to be an industrial matter under the provisions of the Act. [131] In any event, I am of the view that, even if there were the necessity for a collective element in this jurisdiction, the present case has a collective characteristic. This is because the dispute was brought by a union and also because the evidence revealed that there are other union members in similar situations to Mr Gower. [132] Thus far, I have found that the Commission has jurisdiction to hear the matter, based on the first jurisdictional point raised. However, as identified by the respondent, "industrial matter" does not include "appointments and promotions". Appointments and Promotions [133] Section 3 lists a number of exclusions from the definition of "industrial matter", relevantly:
[134] The union's application concerns a claim for appointment to the position of labourer on the site redevelopment team. [135] Mr West submitted that the appointment of Mr Gower to the position is unable to be ordered by the Commission, because it would be an "appointment" and therefore ultra vires. He cited Saarinen, in which the Full Court found that the Commission had no jurisdiction to deal with the appointment to a position in the case of an employee whose fixed term contract had expired. Cox CJ, dissented, for reasons not relevant to this dispute. [136] Mr Stirling argued that the case of Saarinen is not relevant because Mr Gower is still employed; it is not a case where the contract of employment has come to an end. Further, he said that Cox CJ's observations are not authoritative because they were made in a minority decision. That may so, but the observations he made are of assistance in determining the jurisdictional point in this case. [137] Cox CJ differentiated "appointment" from "engagement"; he said that engagement is the initial act of creating the relationship of employer and employee. He said that "promotion" connotes advancement in an already existing relationship. (The evidence shows that the position the union is seeking for Mr Gower is not a promotion). And, His Honour said, "appointment"-
[138] The Macquarie Concise Dictionary defines "appointment" as:
[139] The ordinary meaning of the word "appointment" and the reasoning of Cox CJ lead me to conclude that the remedy being sought, in this case, is an appointment. [140] There are circumstances, such as disputes in relation to demotion, redeployment, transfer, or breach of award in respect of incorrect classification (all of which relate to placement of employees), where the Commission may have jurisdiction. I recognise that the distinction between "appointments", "redeployment" and "transfer" may sometimes be difficult to discover and would depend upon the facts and circumstances of individual cases. I note that the exclusion of "appointments" is peculiar to this jurisdiction. [141] Mr West referred to the judgment in Saarinen, in which Underwood J makes reference to the debate recorded in Hansard in relation to whether appointments or promotions should be excluded from the definition of "industrial matter":
[142] The evidence showed that Mr Gower's substantive position is that of an operator in the electrolysis section and that the position in site redevelopment was offered on an interim basis only. The company was adamant that Mr Gower retains his position in the electrolysis department. [143] The union said that the hearing was in relation to a dispute concerning the company's refusal to appoint Mr Gower to the vacant position in the site redevelopment team. They did not, during the hearing, challenge the transfer of Mr Gower to that position. What they challenged was the temporary nature of the transfer, saying:
[144] And:
[145] (The other two parts of the remedy sought refer to the hours of work and the method of payment for that work). [146] As articulated by Mr West:
[147] The union submitted that it was unfair that Mr Gower was taken out of the electrolysis department, but said that they had moved away from seeking reinstatement to that position in an attempt to settle the matter. [148] I have no doubt that the issue in dispute is the union's claim that Mr Gower be permanently appointed to the vacant position in the site redevelopment team. I accept that, based on the evidence, discrete positions exist within different parts of the plant at Zinifex. It is not a situation where, for example, an employee is employed as a general labourer and might be deployed to work anywhere within the plant. In such a situation, a decision by management to move an employee from one section to another would be a transfer, not an appointment, and would relate to the "mode, terms and conditions of employment" and therefore be an industrial matter. The test as to whether the Commission would intervene, or not, would be a fairness test. Contemporary practices, such as multi-skilling, would often mean that movement from one part of an enterprise to another would form part of an employee's normal work. [149] The parties agreed that Coles Myers Logistics establishes that the Commission will only properly intervene in cases where it considers that the employer has acted unreasonably and/or unfairly. [150] There may well be merit in the union's submission that it was unfair to move Mr Gower out of the electrolysis department, given that he had worked there for a number of years without any worsening of his condition and that his treating doctor was of the view that he could remain working there under the restrictions that had previously applied. Dr Ernst's prognoses were not entirely pessimistic in terms of Mr Gower's future. [151] It may be the case that some other aspects of the company's behaviour were unfair. The evidence is sufficient to create doubt as to: whether the company was genuine in seeking alternative positions for Mr Gower within the plant, despite having given undertakings during the conciliation conferences to do so; whether unnecessary obstacles were put in the path of finding a resolution to the dispute; and whether Mr Gower was treated differently to other injured workers in respect of the requirements for medical assessments. [152] However, for the reasons outlined below, it is not necessary that I make any findings in respect of those issues. [153] The applicant submitted that Barminco establishes that the Commission has a very broad arbitral power to settle disputes and to issue orders for that purpose. That is so, however the matter must be within jurisdiction. Section.31(1) confines the making of orders to orders for the purpose of preventing or settling "the industrial dispute in respect of which the hearing was convened...". [154] Notwithstanding that the origin of this dispute, more than twelve months ago, concerned Mr Gower being told to stay home from his work in the electrolysis section, by the time the matter proceeded to arbitration the dispute was only in relation to the company's refusal to permanently appoint Mr Gower to a vacancy in the site redevelopment team. On the basis of the evidence, I am satisfied that the position sought is a position with new and different tasks and responsibilities to those of his substantive position. [155] For the reasons set out above, I find that the dispute in this matter concerns an "appointment". Appointments are excluded from the definition of "industrial matter". I decline to make the Orders sought. The application is dismissed.
P C Shelley Appearances: Dates and place of hearing: 1 Exhibit A2 |