This is an appeal pursuant to Section 70 of the Industrial Relations Act 1984 against the refusal of a Commissioner sitting alone to include a specific provision in an award.

The decision concerned was in matter T.862 of 1987 in which Commissioner Watling refrained from varying the Miscellaneous Workers Award by inserting the proposed new Clause 29, expressed in the following terms:

"29.     Special Provisions Applicable to Video Hire Establishments

(a)      Scope

This clause shall apply to establishments in which the principal purpose of the business is the hire of video movies to the public.

(b)      General Conditions of Employment

The provisions of this clause shall to the extent of any inconsistency prevail over clauses contained elsewhere in this Award. In all other respects the provisions of the Award shall prevail.

(c)      Hours of Work

(i) The ordinary hours of work shall be an average of thirty-eight per week to be worked in not more than 8 hours on any one day. The spread of ordinary hours shall extend from 9.00 a.m. to 9.00 p.m.

(ii) Payment of a premium of 20 per cent shall be made for hours worked after 9.00 p.m. or before 9.00 a.m.

(iii) No employee aged less than eighteen years of age shall be permitted to work alone beyond 9.00 p.m.

(d)      Saturday Work

All work performed on a Saturday by weekly and part-time employees shall be paid at the rate of time and one quarter.

(e)      Sunday Work

All work performed by weekly and part-time employees on a Sunday shall be paid at the rate of time and one half.

(f)      Public Holidays

All work performed by weekly and part-time employees on a Public Holiday shall be paid at the rate of double time.

(g)      Casual Employees

Employees engaged on a casual basis shall be paid a loading of 20% for all hours worked, such loading shall be in lieu of annual leave, sick leave and public holidays. The penalty rates applicable to weekly and part-time employees for work on Saturdays, Sundays and Public Holidays shall not apply to casual employees.

(h)      Part-time Employees

Part-time employees shall be paid per hour one thirty eighth of the rate prescribed for weekly full time employees. Part-time employees shall be entitled to annual leave, sick leave and public holidays on a pro rata basis.

2.      The above variation to apply from 1 August 1987."

The application before Commissioner Watling was made by the Tasmanian Confederation of Industries (TCI).

The preceding history of the matter is somewhat long and complex and was set out in detail in a decision in matter T.862, dated 23 October 1987. Much significance attaches to the fact that the President had made a declaration in accordance with Section 33(2) of the Act on 14 October 1985 to the effect that a case had been made out for the establishment of a new craft award (T.105 of 1985).

In that declaration the President said he was satisfied that a prima facie case had been made out for a craft award to be made and declared that some ten (10) occupations or callings could be included in an award of the Commission. One of the classifications was that of `Library Attendant".

Subsequently the Federated Miscellaneous Workers Union, Tasmanian Branch, (FMWU), made application for a new Miscellaneous Workers Award and reported to the President that substantial agreement had been reached with the TCI concerning the content of that award.

The President expressed some reservations about various clauses in the proposed award and directed the parties to confer and consider, a number of `non-standard conditions' contained in the draft.

Finally a consent award was made, albeit with some reservations.

At pages 16 and 17 of his decision the President said, inter alia:

"This award is made by consent, and must be seen in that light. It will contain a number of provisions which, on their face, may appear to be more generous than would otherwise have been awarded had these matters been left to the Commission to determine ...

Ordinarily I would have declined to include such provisions, whether by consent or otherwise, had it not been for the fact that the reality of the situation is that these conditions already have application by reason of the Cleaners Award1 and the general application provisions of the Insurance Award2. And whereas no employer party submitted any reasons to justify these provisions, all agreed that they could not now be withdrawn having regard to their consent background and the history of award coverage for the majority of classifications that will now become subject to the terms and conditions of this award ...

The remedy of course lies in the hands of any organisation that wishes to seek an exemption from part or parts of this award. However in the absence of agreement the burden of proof would be heavily upon such an applicant to demonstrate that appropriate alternative arrangements could be made within an employer's establishment."

On 13 July 1987 the FMWU made application to the President for an interpretation of the award, pursuant to Section 43 of the Act. The President was asked to declare that, subject to certain qualifications, employees employed in, or in connection with video libraries were subject to the conditions of this award.

"The declaration handed down on 13 July (T.712 of 1987) stated:-

`Accordingly I declare that an attendant, employed in or in connection with a library, as defined in Clause 7(j) of the Miscellaneous Workers Award, who is mainly required to control or supervise access to material stored in a video library the chief and principal purposes of which are to hire video recordings, is, subject to the exclusions set out in Clause 2 of this award, subject to and bound by the terms of the Miscellaneous Workers Award.

I further declare that this interpretation shall apply from 1 August 1987.'"

The TCI expressed the view that when the Miscellaneous Workers Award was made it was never contemplated or indeed perceived that it would extend to the video hire industry, and a variation was accordingly applied for to ensure that certain conditions in that area appropriately met industry requirements.

The TCI's first ground of appeal was expressed as follows:

"1.   On page 11 the Commissioner states:

`1. It can be seen from the previously mention history of the making of this Award that both parties were given ample opportunity to consider and reconsider all the aspects of their agreement.'

There appears to be inherent in this statement an implication that the parties were in some way barred from seeking to address a problem which only came to light subsequent to the making of the Award. To the extent that this prevented him from addressing the application on merit, the Commissioner erred."

In our view it was reasonably open for Commissioner Watling to conclude from the evidence before him that ample opportunity was given for both parties concerned to consider and reconsider all aspects of their agreement to make an award in the terms drafted.

The conclusions drawn by the TCI that the words used by Commissioner Watling implied that the parties were barred from seeking to address a problem which only came to light subsequently, appears to us to be not sustainable. Rather we believe that the comment is open to a number of constructions, including an implication that once consenting parties enter into an agreement and are directed to carefully consider the content of clauses contained therein before it is ratified, then such a deal should normally be honoured once concluded.

We cannot accept that the mere making of such a statement as has been quoted demonstrates an error of judgement as claimed by the applicant in this matter. In any event, applications to vary awards, based on merit, are common place. No party is precluded from making an application to vary an award, at any time.

Appeal ground 2 states as follows:

"On page 12 the Commissioner states:

`The claim predominantly seeks to reduce existing award conditions, and whilst it is open to advocates to argue that an application such as this does not fall within the parameters of the Wage Fixation Principles, nevertheless, it must be remembered that unions are restricted in seeking variations to the award by their commitment to the `no extra claims' provision contained in Principle 2 - Commitment.

In my view, it follows that as a matter of principle, employers should not attempt to vary existing awards in a manner that would disadvantage employees without accepting the onus of proving an anomaly or inequity in the same manner required of the unions, or pursuing a case under Principle 13 - Economic Incapacity.'

These conclusions are in error in the following respects:-

(i) The Commissioner draws an incorrect analogy between the `No Extra Claims' commitment and the ability of employers to lodge applications in accordance with the principles.

(ii) The Commissioner wrongly concludes that a claim pursued under Principle 9 `Conditions of Employment' must first be proved as an `anomaly' or `inequity',

(iii) The Commissioner states that an anomaly or inequity must be proved `...in the same manner required of the unions ...'. This apparently overlooks the fact that the applications to the `Anomalies Conference' can only be made by the Tasmanian Trades & Labor Council.

It would follow on the basis of the Commissioner's conclusion that an application made by an employer organisation would in the first instance need to be approved by the T.T.L.C. which is clearly an absurd constraint."

The TCI argued that the Commissioner fell into error, as outlined above.

The TCI correctly pointed out that applications to the Anomalies Conference can only be made by the Tasmanian Trades and Labor Council. It is of course not contemplated in the Wage Fixing Principles that employers use such a mechanism.

The fundamental question is whether or not the applicant in the original matter was entitled to have the claims as submitted determined on merit or dismissed for the reasons given. This question is raised in appeal ground 3:

"3 The Commissioner erred in apparently not considering the application on merit, thus denying natural justice to an industry which has hitherto never been subjected to an appropriate examination by an industrial tribunal."

We would indicate that in our opinion the observations of the Commissioner are just that and accordingly we cannot agree that they should have been elevated to the status of being grounds, sufficient to dismiss the claims. Rather, it is the right of any organisation, as we have said, to seek the making or variation of an award in accordance with the provisions of the Act, including those of public interest, and any wage fixing principles in force.

It is our decision therefore, that the appeal be upheld and we direct the Commissioner proceed to determine, on the merit, each of the proposals submitted as variations to the Miscellaneous Workers Award by the TCI.

This may be done at the discretion of the Commissioner, either by reopening the hearing or deciding all questions on the evidence and material already submitted.

1 P018
2 Supra