T13113
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Chamber of Commerce and Industry Limited TIMBER MERCHANTS AWARD
Award variation – application amended – minimum wage provision – supported wage provision - award review process – Principle 13 - consent matters – application granted – award varied – operative date ffpp 18 April 2008 REASONS FOR DECISION [1] This is an application pursuant to s.23 of the Industrial Relations Act 1984 (the Act), made by the Tasmanian Chamber of Commerce and Industry Limited and the Tasmanian Sawmillers Industrial Association (the applicants) and lodged on 27 March 2008. [2] The application sought to vary the Timber Merchants Award by inclusion of the minimum wage and supported wage provisions and the award review process. [3] Principle 6.2 states: “Where the minimum rates adjustment process has been completed in an award the Commission may on application determine to combine the base rate and the supplementary payment into an award rate. The arbitrated safety net adjustment shall continue to be expressed as a separate amount to protect the integrity of the relativities established in the structural efficiency process.” [4] And Principle 13: “The Commission requires that each award is to be reviewed to ensure: (i) consistent award formatting; (ii) removal of discriminatory provisions; (iii) removal of obsolete or amendment of inaccurate award provisions; (iv) updating Clause 6—Parties and Persons Bound (Award Interest); (v) the award is written in plain English; (vi) inclusion of appropriate facilitative provisions; (vii) the inclusion of an appropriate enterprise flexibility clause.” Background [5] Mr Cornish informed the Commission that the timber industry in Tasmania is predominantly within the scope of the federal Timber and Allied Industries Award 1999. Following the industrial reforms of the previous government many timber enterprises, not being constitutional corporations fall within the scope of a transitional award which will not operate beyond the end of the transitional period. Enterprises under the transitional award will revert to the state industrial system. There are a considerable number of small businesses within the industry that will be affected. [6] The federal award has become the de facto award in the industry for various reasons. The award has almost universal coverage of timber enterprises. There were businesses operating under the federal award by mistake of law. This situation was revealed in a Tasmanian Industrial Commission matter before Abey C involving a forest harvesting contractor with separate legal entities (a corporate and a family partnership) in the enterprise, the consequence of a misunderstanding as to the legal effect of membership of an industry association. [7] Membership of the industry association carried with it the status of respondent to the federal award. The legal effect of respondent status through membership of the organisation meant, in law, employees of the entity that was the member fell within the scope of the federal award, and employees of the non member entity fell within the scope of the Timber Merchant’s Award. Subsequent inquiries lead to the conclusion that this misconception was widespread in the harvesting sector. [8] In 2007 the Commission, of its own volition, sought to rescind the Timber Merchants Award. The award had not been kept up to date and for all intents and purposes appeared to be obsolete. Following hearings in the Commission and discussions between the parties it was agreed it would be more appropriate that the award should be updated. The opportunity was also taken to make the award consistent with the federal award in respect of wages and classifications as far as possible. This action will allow any occupations affected to transfer seamlessly at the end of the federal award transitional period. [9] The federal Timber and Allied Industries Award 1999 includes provisions for classifications not provided for adequately in the Timber Merchants Award. In particular, the classification arising out of the advent of truss manufacturing and engineered products, such as muscle beams and glue laminating, is covered in the varied award. [10] Although it was agreed in principle to call up the provisions of the Clerical and Administrative (Private Sector) Award for clerical employees, strong representation from industry associations resulted in the existing clerical and merchandising classifications being retained, and the respective wages brought into line with the 2007 State Wage Case decision. Variations to the Award [11] The following clauses describe the variations in the Timber Merchants Award in detail. Clause 1 – Title No Change. Clause 2 – Scope The scope has been broadened to include “timber processors” within the industry to reflect woodchipping, plywood and veneer operations and operations ancillary to sawmilling, woodchipping, plywood or veneer operations. The Australian Workers Union wishes to ensure that the scope of the Silviculture and Aforestation Award is not impinged upon – clause 11 of this award has been varied to expressly exclude any possible infringement upon that award. Clause 3 – Arrangement Consequential variations as required. Clause 4 - Date of Operation First full pay period to commence on or after 18 April 2008. Clause 5 - Supersession and Savings Reflects the supersession and incorporation of the Timber Merchants Award No. 1 of 2005 (Consolidated) and No. 1 of 2006. Clause 6 - Award Interest The Tasmanian Farmers and Graziers Employer’s Association, Industrial Association has formally withdrawn its interest in the Timber Merchants Award and is no longer shown as having an interest in the award. The Construction, Forestry, Mining and Energy Union, Tasmanian Branch title has been updated. Clause 7 – Definitions The definition of “union” removed. Clause 8 - Wage Rates and Related Matters Timber related employments This clause has been extensively revised in that the timber employment and trade classifications contained within the federal Timber and Allied Industries Award 1999 have been incorporated. Further these classifications are contained in a number of appendices to the federal award. The federal award appendices cover: (a) Harvesting and Environment/Forest Management Sector; (b) Milling and Processing; (c) Board, Panel and Veneer Sector; (d) Manufacturing and Joinery; and (e) Sporting Goods. The content of the appendices have been simplified in that provisions that are duplicated in other parts of the Timber Merchants Award have been omitted, as have enterprise specific provisions. Provisions relating to bullock teams have also been omitted. Clerical and Merchandising Classifications The clerical and merchandising wage rates have been brought into line with the 2007 State Wage Case decision. Classifications have not changed. While the appearance of the appendices has been changed to conform in line with the formatting of the Tasmanian awards, the substance of the appendices incorporated into Clause 8 is unaltered. New minimum wage and supported wage sub-clauses have been inserted. Clause 11 - Application of Other Awards At the request of the Australian Workers Union this award has been varied to expressly exclude any possible infringement of the Silviculture and Aforestation Award. Clauses 40 and 47 - Superannuation The superannuation clause was inadvertently included twice in the draft – Clause 47 of the original draft has therefore been deleted in toto. Redundant provisions relating to enterprises that had sought and been given exemption from the provision nominating TISS as the superannuation fund, and granted employers not given an exemption a period of time until 20 August 1989 in which to make such an application for exemption have been removed. The employer contribution rates contained in the previous version of the award have been deleted as they are no longer relevant. Remaining Clauses The following clauses have not been varied except where necessary allowances have been brought in line with the 2007 State Wage Case decision:
[12] Having heard the submissions from the parties, I am satisfied that the Timber Merchants Award should be varied in the manner set out in the amended consent draft Order presented by the parties. In approving the application, I am satisfied it is not contrary to the public interest test required pursuant to s.36 of the Act. [13] The Order giving effect to this decision is attached and will be operative from the first full pay period to commence on or after 18 April 2008.
James P McAlpine Appearances: Date and place of hearing: |