T11185 - 19 January 2004
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Liquor, Hospitality and Miscellaneous Workers Union - RESTAURANT KEEPERS AWARD
Award variation - new classification - tour guides - application granted "in principle" REASONS FOR PRELIMINARY DECISION On 2 December 2003 an application was lodged by Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (ALHMWU), pursuant to Section 23 of the Industrial Relations Act 1984, to vary the Restaurant Keepers Award. When this matter came on for hearing on 18 December 2003, Mr Peter Tullgren appeared for the union. Mr Paul Mazengarb appeared for the Tasmanian Chamber of Commerce and Industry Limited (TCCI). In this application the ALHMWU seeks to vary the Award to provide Award coverage for tour guides employed by Spotless Group Limited (Spotless) at the Claremont plant of Cadbury Schweppes. Whilst neither party called evidence during the hearing I am confident that the following summary, gained from the submissions of both Mr Tullgren and Mr Mazengarb, accurately reflects the position as it currently stands. Spotless holds a contract or contracts to provide a number of services to Cadbury at the Claremont site. Such services include the management of a canteen and the provision of tour guides to conduct visitors through the factory. Employees engaged in the canteen area are, as a matter of law, covered by the Restaurant Keepers Award. Spotless uses this same Award "as a guide" for the coverage of employees engaged as tour guides. Indeed it appears likely that Spotless advises such employees that the Restaurant Keepers Award covers them. Mr Tullgren submitted that there was some interchange between the two groups of employees although the extent of such interchange was not made known to the Commission. As a matter of law the employees engaged as tour guides are award free, in that there are no appropriate classifications in this Award, or for that matter, any other Award of the Commission. It is this "Award free" status that the ALHMWU seeks to redress through this application. The terms of the application are as follows:
Mr Tullgren submitted that a scheme of relativities consistent with the then Structural Efficiency Principle have been long established in the Award. According to Mr Tullgren, the only specific award coverage for tour guides can be found in an Award of the Queensland Industrial Relations Commission known as the Tour Guides Award. This Award was handed down by Asbury C on 24 June 2002.1 Mr Tullgren said that the relativities and wage rates in the instant application are almost precisely in line with the current rates in the Queensland Award. Mr Tullgren indicated that approximately 10 employees were affected by this application. Most were employed at the Grade 2 rate on a casual basis. Should the application be successful, some of these employees would need to be reclassified at Grade 3. Mr Mazengarb said the application was strongly opposed on the grounds that such an application cannot be accommodated within the Scope clause of the Award. Mr Mazengarb referred to the Full Bench decision in NGT v NUW2 in which the tests for Award coverage were discussed at length. He said (correctly) that the Full Bench observed that the work of employees only becomes relevant if the nature of the employer's business fits within the Scope clause of the particular award. Clause 2 - Scope of the Restaurant Keepers Award reads:
Mr Mazengarb said that in this case the employer (Spotless) could not properly be characterised as a "Caterer" insofar as the employment of tour guides is concerned. It was therefore inappropriate and indeed superfluous to include tour guides in an Award which could not apply to the targeted employer. Mr Mazengarb submitted that there was no opposition to industrial regularisation as such; it was simply that this was the wrong vehicle. He suggested either a Part 1VA Enterprise Agreement or a s.55 Registered Industrial Agreement as the preferred alternative. The creation of a Tour Guides Award was also worthy of consideration. In response to a question from the Commission, Mr Mazengarb said that the TCCI was not arguing to any great extent as to the proposed wage rates, the issue in contest was the use of the Restaurant Keepers Award as the medium. In response Mr Tullgren asserted that efforts in the past to regularise the employment arrangements had "... either been met with no response by the employer, or cancelled meetings, obfuscation, and then a late suggestion about the making of an agreement, which my friend was advised would still leave these employees award free. And we don't accept that, and we are not accepting it". Mr Tullgren submitted that these employees were entitled to award coverage and to use the current award free status as a bargaining chip in any agreement negotiations was an abuse of the Commission process. Decision In my view it is contrary to the public interest that this group of employees remain in an award free situation. Indeed Mr Mazengarb did not quarrel with this proposition in principle, only the means proposed to achieve the end. I also consider that to impose the Industrial Agreement option (whether it be Part 1VA or s.55) in the absence of an Award safety net, would potentially lead to an unfair balance in relative bargaining positions. In a worst case scenario it could lead to a situation of "agree on my terms or remain award free". Mr Mazengarb has suggested that one alternative would be the creation of a Tour Guides Award. This to my mind is not a realistic option. Awards of this Commission have traditionally been based on the industry of the employer. For a short period of time it was possible to create awards based on the occupation of employees. This option was however removed by the Parliament in 1992.3 Unless it could be established that there is an industry of tour guide providers (which seems unlikely) there does not seem any realistic opportunity to create such an award. I agree with Mr Tullgren that the choice of the Restaurant Keepers Award is perhaps not the most "elegant" means of achieving award coverage, and in the longer term there may well be better options. However when confined to this group of employees, there is logic in the ALHMWU application. It has the distinct advantage of already having application administratively, and from the employer's point of view also applies to the employees engaged in the canteen operation. Apart from administrative convenience, such an arrangement would also facilitate interchange of staff, either currently or in the future. Mr Mazengarb makes a valid point concerning the "industry of the employer" argument. To have legal effect, it would be necessary for Spotless to be considered a "caterer" in respect of this group of employees. That would be determined on an overall assessment of the nature of the employer's business. This question could be put beyond doubt through a variation of the "Scope" Clause to include:
or the like. Whilst such a variation would potentially open the Award coverage to tour guides in other areas, it would, under the terms of the current application, remain confined to the Cadbury group of guides. As the employer has not offered any serious opposition to the proposed wage rates, I am inclined to the view that the application should be granted. Given the circumstances of the hearing I am however prepared to allow the parties to provide further argument and/or evidence on the following issues:
I am also prepared to conduct on site inspections if that is the wish of either party. With the agreement of the parties it may be desirable that any future proceedings should at least commence with a conference rather than formal hearing. Should either party wish to submit additional material consistent with above, they should advise the Commission and the other parties of their intention not later than Tuesday 10 February 2004. In the absence of any approach from the parties I propose to issue an order in favour of the application, with an operative date of 1 March 2004.
Tim Abey Appearances: Date and Place of Hearing: 1 No B1830 of 2001 |