T10317
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Northern Group Training Ltd and National Union of Workers, Tasmanian Branch
Appeal against a decision handed down by Commissioner Shelley arising out of T10001 of 2002 - Appeal Grounds 1, 2, 3 upheld, Ground 4 dismissed - whilst upholding 3 grounds of appeal the Bench have reached the same conclusion as Commissioner Shelley - original Order confirmed. REASONS FOR DECISION [1] In matter T10001 of 2002, Commissioner Shelley ordered "that Northern Group Training, trading as NGT Tasmania, 53 Canning Street, Launceston, 7250, observe the terms and conditions of the Produce Award of the Tasmanian Industrial Commission in respect of the employees whose names appear below at Schedule A, who work or who have worked at the premises of Statewide Independent Wholesalers Breadalbane, from the time of commencement of their employment until its conclusion." [2] Pursuant to s70(1)(b) of the Industrial Relations Act 1984 (the Act) Northern Group Training Ltd (NGT) lodged an appeal against the order of the Commissioner on the following grounds:
[3] The employees, the subject of the Commissioner's order, were represented by the National Union of Workers, Tasmanian Branch (NUW). [4] Leave to intervene was granted, without objection, to the Tasmanian Chamber of Commerce and Industry (TCCI) which organisation is a party to "all private sector industry and craft based awards and this matter goes to a number of principles which could possibly have application to all awards in this Commission." [5] TCCI supported the grounds of appeal lodged by NGT submitting: "1. Appeal Ground 1:
[6] Appeal Ground 1:
[7] The Commissioner in her decision at paragraph [68] found that:
[8] The scope clause of the Produce Award provides:
[9] The Commissioner said: "It was plain from the on-site inspection that the work performed by the employees was the work of an employee performing stores duties in a refrigerating or cool store chamber."1 [10] And further:
[11] It was submitted by NGT that it did not own, operate or keep refrigerators or cold stores, it is not engaged in the industry of wool, skin and hide merchandising, or in fruit wholesaling and did not sell agricultural machinery and/or equipment, accordingly it was said that the Commissioner had erred in her finding that NGT was engaged in the "industry of refrigeration and cold store keeping". [12] Mr Richardson, for the NUW, in acknowledging that some of these statements are self evident, said:
[13] Mr Glisson, on behalf of NGT, relied on extracts from the decision and transcript of proceedings before Commissioner Watling, as he then was, when making the Group Training Industry Award (GTI Award) in matter T.6173 of 1996, where he submitted that the Commissioner had then accepted the submissions of the parties to that award that the employees to be covered by the award were at that time award free. The decision records that "The evidence showed that four companies and one incorporated association were currently involved in, what was termed by the parties as, group training and between them they employed 737 employees. It was agreed that an overwhelming majority of those employees could be classed as being award free." [14] Further that decision summarised the submissions in support of the award being made and noted that "It is a requirement of the terms of a training agreement established and registered under the Vocational Education and Training Act, 1994 that the relevant industrial award under which a trainee or apprentice is to be employed must be specified in the agreement. This term of the said agreements cannot be met in circumstances where the apprentices and trainees are employed on an award free basis." [15] The summary also noted that:
[16] The Commission determined in that matter that "... the public interest would be best served by employees in this industry being covered by an award of the Commission." It is those words, together with the foregoing submissions of the parties in that matter, on which Mr Glisson relied for his argument that employees of NGT were award free prior to the making of the GTI Award, noting that the Produce Award was an existing Award at the time. Accordingly, he submitted, the Produce Award still has no relevance to the employees of NGT. [17] Mr Glisson submitted that the relevant award to apply to trainees is determined by the type of traineeship being undertaken, not the industry of the host employer. [18] He argued that the trainees in question were covered by a traineeship in transport and warehousing, not a specific training agreement for cold store or freezer room. As such the Produce Award should not apply although it was conceded that some training could take place in a cold store or freezer room but training would also take place in a general transport and distribution warehouse. [19] It was submitted by the appellant that the traineeship is for a certificate in Transport and Warehousing and that nowhere in the units of competence is there a reference to cold store or refrigeration operations. There is no requirement for specific training in a cold store for the attaining of the Transport and Warehousing Certificate. [20] We do not accept this submission. Award coverage is determined by the nature of the industry of the employer and the work undertaken by the employee. The nomenclature attaching to a type of traineeship is of little or no relevance in establishing award coverage. [21] The Commissioner determined that the relevant award for the work being performed was the Produce Award as it has application to employers described in Clause 3(b) as the industry of:
[22] At paragraphs 46 and 47 of the decision the Commissioner addressed the provisions of the Act as to award application and at paragraph 48 said: "The tests are - does the employer fall within the scope of the award? and is there a classification within the award which applies to the employees? If the answer is `yes' to both, then, all things being equal, the award binds the employer and the employees." We agree that these are the correct tests. [23] The Commissioner then stated at paragraph 49 that "It was plain from the on-site inspection that the work performed by the employees was the work of an employee performing stores duties in a refrigerated or cool store chamber." [24] And further:
[25] It is at this point, that is, the proper application of s.38[a], that the Commissioner fell into error. [26] As a stand alone operation, there can be little doubt that the Breadalbane cool store facility is subject to the Produce Award, irrespective of the operator of the facility. The reality is however, that NGT is not the operator of, nor does it receive any benefit from the operation of the cool store facility. [27] It is a reasonable presumption that NGT does receive a benefit or advantage from the placement of trainees with the host trainer, Statewide Independent Wholesalers, which is the operator of the facility. We therefore accept Mr. Glisson's submission that NGT is in the "group training industry". [28] Section38[a]reads:
[29] The Produce Award is not an occupation award. It follows that for the Produce Award to have application, NGT must be in the industry prescribed in the Scope clause, specifically, "cool store keeping and/or refrigeration store keeping". [30] We accept the Commissioner's observation that it is possible for an employer to be engaged in a number of industries. Nonetheless we consider that the Commissioner fell into error in her conclusion:
[31] We consider that the Commissioner applied the wrong test. The correct test is an assessment of the character of the employer's business. The work performed by employees only becomes relevant if the nature of the employer's business fits within the Scope clause. We agree with the observation of the TCCI that it is a "cart before the horse" approach to determine the work of the employee before first determining the industry of the employer. [32] We do not accept that the business of NGT can properly be described as falling within the industry of "cool store keeping and/or refrigeration store keeping." [33] We uphold appeal ground 1. [34] Appeal Ground 2:
[35] It was the contention of the appellant and the TCCI that the Commissioner erred in her application of s.40(1) of the Act. It was said that s.40(1) cannot be applied without reference to s.40(2) and in this matter s.40(2) is relevant as there are awards that have application to the work the subject of the application. The GTI Award, despite its then lack of enforceable content, and the National Training Wage (Tasmania Private Sector) Award (NTW Award) each apply to the work of the NGT employees. [36] The Commissioner found at paragraph 77 of her Decision that:
[37] Section 40(1) provides:
[38] Section 40(2) provides:
[39] The extension of an award by Regulation first requires an examination to ascertain whether or not the work undertaken by an employee is subject to an award. [40] At the time of the proceedings before the Commissioner the GTI Award contained only four (4) clauses being Title, Scope, Definitions and an operative date of 31 May, 1996. [41] The Scope clause provided:
[42] The GTI Award provides the following definition:
[43] We, like the Commissioner below, accept that "the scope of the Group Training Industry Award would apply to Northern Group Training". [44] Given the proviso contained in the scope clause, the work covered by that award is by reference to the Clerical and Administrative (Private Sector) Award, the Transport Workers General Award and the Miscellaneous Workers Award. [45] The classifications found in those three awards do not apply to the work performed by the NGT employees at the Breadalbane cool store facility and subject to this dispute. [46] In her decision the Commissioner stated at paragraph 64
[47] We agree with the Commissioner. Accordingly the application of the NTW Award invokes s.40(2) of the Act. The NTW Award, by reference to clause 10(c)(x) of that Award, prescribes that the Produce Award is the relevant award applicable to the work in question. As such a reference to s.40(1) of the Act is not required for a finding in this matter. [48] We also agree with the TCCI submission that an award which does not provide classifications and rates of pay is still an award for the purposes of s 40. It is whether the award, regardless of its content, or lack thereof, applies to the work being performed by an employee. The determination as to whether s.40 applies will depend on the circumstances of a particular matter. [49] We uphold appeal ground 2. [50] Appeal Ground 3:
[51] It was submitted that the Commissioner acted on a wrong principle in her finding that the employees of NGT were subject to the terms and conditions of the Produce Award. The Commissioner made her finding by relying on the provisions of s40 (1) of the Act and her finding that NGT was an employer engaged in the industry of refrigeration and cold store keeping. [52] We have already addressed those issues and do not need to expand any further. [53] Whilst we uphold appeal ground 3 we do not consider that the Commissioner's conclusion was incorrect, only her method and findings in reaching such conclusion. We will deal with that later in our decision. [54] Appeal Ground 4:
[55] The TCCI relied on its submissions in respect to appeal grounds 1 and 2 to support this appeal ground. The appellant did not specifically address us on this ground. [56] Section 60 of the Act states:
[57] The Commissioner found at paragraph 61 of her Decision that:
[58] The Commissioner also found at paragraph 62 that:
[59] We detect no error as the The NGT Tasmania Apprentice and Trainee Agreement 2000 does apply but relies on the prescribed reference to a schedule of awards. [60] We dismiss appeal ground 4. Conclusion [61] Whilst we have upheld three of the four grounds of appeal we have reached the same conclusion as the Commissioner but apply a different process in so doing and do not agree with a number of her findings. [62] As stated earlier, it is common ground, and not contested, that the NTW Award has application to NGT. The GTI Award appears in Schedule A of that award. [63] Provided that the training agreement complies with the definitions found in the NTW Award, the trainees derive their wage rates from Clause 8 of that award. [64] The NTW Award provides at Clause 10(c)(x) that:
[65] It defines the relevant award to mean: "an award that applies to a Trainee, or that which would have applied, but for the operation of this award." [66] We conclude, therefore, that the relevant award in this matteris the Produce Award. [67] That award applies to cool store/refrigeration storage and, but for a registered industrial agreement, has application to the host employer for employees employed at the Breadalbane cool store facility. This is the site where the NGT employees are engaged. [68] The appellant denied that the trainees experienced the disability associated with work in a cool and/or refrigerated store as they do not perform work in the area concerned. This was not the observation of the Commissioner who had the advantage of inspection and discussion with all of the employees on site. We accept her observations that the NGT employees were subject to the same disability as the employees of the host employer. [69] We confirm the order of the Commissioner that the employees of NGT are bound by the terms and conditions of the Produce Award for any work performed at the Breadalbane site of the host employer Statewide Independent Wholesalers. We do so for the reasons expressed above. P L Leary Appearances: Date and place of hearing: 1 Original decision para 49 |