TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s70(1) appeal against decision

Zinifex Australia Limited
(T12321 of 2005)
Australian Mines and Metals Association (Incorporated)
(T12322 of 2005)
Construction, Forestry, Mining & Energy Union, Tasmanian Branch
(T12323 of 2005)
The Australian Workers' Union, Tasmania Branch
(T12341 of 2005)

and

The TESA Group Pty Ltd

and

Skilled Group Limited

Appeal against a decision handed down by Commissioner T J Abey arising out of T11802 and T11848 of 2004 - Order varied

REASONS FOR DECISION

[1] In a decision issued on 21 September 2005, in Matters T11802 and T11848 of 2004, Commissioner Abey found that:

"...employees of Skilled Group Limited and the TESA Group Pty Ltd who are engaged in the production process at the Risdon Smelter of Zinifex are subject to the terms of the Zinifex Hobart Smelter Enterprise Award (the Zinifex Award), such finding to have effect from 21 September 2005."

[2] The decision has been appealed by the Construction, Forestry, Mining and Energy Union (CFMEU) [T12323 of 2005]; The Australian Workers Union (AWU) [T12341 of 2005]; Zinifex Australia Limited (Zinifex) [T12321 of 2005], and Australian Mines and Metals Association Incorporated (AMMA) [T12322 of 2005].

T12323 of 2005

[3] The CFMEU relied on the following grounds of appeal:

1. "The learned Commissioner erred in determining that employees of Skilled Group Limited and The TESA Group Pty Ltd, who are engaged in the production process as the Risdon Smelter of Zinifex, are subject to the terms of the Zinifex Hobart Smelter Enterprise Award, effectively from 21 September 2005 and not retrospectively from the date of the Award.

2. The learned Commissioner's finding that the Award has effect only from 21 September 2005 rather than from the date of the Award is plainly unreasonable and unjust on effected employees whose employment preceded this date.

3. For such other reasons as the Commission deems appropriate."

T12341 of 2005

[4] The AWU grounds of appeal were identical to those of the CFMEU.

T12321 of 2005

[5] Zinifex relied on the following grounds of appeal:

"1. The decision of the learned Commissioner was in effect a decision to vary the Award to apply it to the named contractors, Skilled Group Limited (Skilled) and The TESA Group Pty Ltd (TESA), in the future and accordingly the order to give effect to that decision was contrary to s.31(2)(b) of the Act.

2. The learned Commissioner made an error of law by failing to accord the parties natural justice and/or acted in breach of s.31 by making an order without first affording the parties a reasonable opportunity to make relevant submissions. The matter before the Commissioner to which the parties' submissions were directed was the question of whether the Award in its terms applied at the time to Skilled and/or TESA, contractors engaged by Zinifex at the Risdon Smelter. The decision of the Commissioner, properly construed, reveals that he considered a different question, namely whether as a matter of merit and industrial equity the Award ought to be applied to Skilled and TESA in the future. The parties were not given an opportunity to put submissions, nor call evidence on this issue.

3. The decision and order to find the Award applicable to Skilled and TESA only after 21 September 2005 was a finding as to the legal effect of the Award and in the nature of a declaration and as such was not available to the learned Commissioner under s.31 of the Act. That section empowers the Commission to direct, by order in writing, that anything that should be required to be done, or any action that should be taken to prevent or settle an industrial dispute, is to be done. The decision and order of themselves do not require anything to be done.

4. The learned Commissioner lacked jurisdiction to make the decision and order that the Award applies to Skilled and TESA after 21 September 2005. The dispute notified to the Commission was an alleged breach of the award by TESA and Skilled. Upon the Commissioner ruling that the Award did not apply to Skilled and TESA prior to the date of his order there could be no dispute before him as to a breach and he accordingly lacked jurisdiction to make any further orders.

5. The learned Commissioner erred in law by treating the dispute as being a dispute about terms and conditions of employment under part (a) of the definition of `industrial matter' when in fact it was a claim for a breach of an existing entitlement under part (b) of the definition. The definition is a composite of two distinct concepts with parts (a) and (b) giving rise to separate and distinct jurisdictions each involving the exercise of quite different powers. One is about the determination of competing claims over the mode, terms and conditions of employment (administrative/legislative power), and the other about the enforcement of determined rights (judicial power).

6. The learned Commissioner erred in law by having regard to an irrelevant consideration namely the public interest in contractors not being `placed in an award free situation', such consideration being irrelevant to the question of whether the award in its terms had been made so as to apply to contractors.

7. In any event if the public interest was relevant to the issues before the Commissioner the learned Commissioner failed to have regard to:

(a) the fact that the disparity between the wages and conditions for Zinifex employees and contractors on the site was not due to the application of the Award but rather to the Zinifex Hobart Smelter Enterprise Agreement 2004; and

(b) the application of other common rule awards which would afford award protection for contractors working at the Risdon site.

8. The learned Commissioner erred in law in failing to consider, or properly consider, the question of onus. As the parties notifying the dispute the unions bore the onus of satisfying the Commission that the award was intended to apply to Skilled and/or TESA as well as Zinifex.

9. In reaching his decision the learned Commissioner placed undue weight on the literal meaning of the expression `operations at the Risdon plant' in the Scope clause. This was the sole reason for deciding that the Award should be applied to Skilled and/or TESA. Such finding gave insufficient weight to the following findings of fact by the Commissioner:

(a) the Award had for all practical purposes been a `one-employer' award even when it was an industry award [29];

(b) at the time the words `production at the Risdon plant' were inserted in the Scope clause in 1996 there was only one employer on site [29] and [34];

(c) the Award was converted to an enterprise award in 1999 without any change to the Scope clause or any consideration by the Commission of the possibility that the site may have ceased to be a single employer site [35];

(d) the overall wording of the Award was inconclusive as to whether it was a single employer award or a multi-employer award [53];

(e) contractors (including but not limited to Skilled and TESA) had never played a part in negotiations in relation to the Award [62]; and

(f) the parties had (until the unions changed their position recently) always regarded the Award as only having application to Zinifex [79].

Further, the learned Commissioner failed to give proper weight to the fact that the Commission had throughout the history of the Award dealt with it as a single employer award and at no time had the Commission had any regard to the position of contractors on site nor had the Commission notified anyone other than Zinifex and the unions of proceedings affecting the Award [79].

Having regard to the onus to be discharged by the unions the learned Commissioner could not reasonably have formed the view, on the facts as found, that the award was intended to apply to any employer other than Zinifex.

10. Such further and other grounds as may be raised at the hearing of the appeal."

T12322 of 2005

[6] The grounds of appeal relied upon by AMMA were in identical terms to those relied upon by Zinifex.

[7] The TESA Group Pty Ltd (TESA) did not appeal the Commissioner's decision ("for commercial reasons") but provided the following submissions:

"TESA adopts the submissions in respect of Ground 2 as set out in the written submissions filed by Zinifex Australia Limited in these proceedings.

TESA adopts the submissions in respect of Ground 4 as set out in the Zinifex Submissions.

TESA adopts the submissions in respect of Grounds 5, 6 and 7 as set out in the Zinifex Submissions.

TESA adopts the submissions in respect of Grounds 8 and 9 as set out in the Zinifex Submissions."

[8] No appeal was lodged by Skilled Group Limited (Skilled). In the hearing below Skilled was represented by AMMA. AMMA has appealed the Commissioner's decision in its own right and not on behalf of Skilled.

[9] Leave to appear in each appeal was given to each party and the appeals were dealt with together.

Who can appeal?

[10] It was submitted by the CFMEU that the employer appellants (Zinifex and AMMA) are unable to bring appeals against the Commissioner's decision.

[11] S.70 of the Industrial Relations Act 1984 (the Act) prescribes the rights of appeal and who has a right to appeal. It states:

"An appeal may be made to a Full Bench against:

(a) a decision of a Commissioner to make, vary or rescind an award, or refuse to make, vary or rescind an award, by-

(i) an organization which appeared at the hearing; or

(ii) an organization granted, or deemed under part V to have, an interest in the award; or

(iii) the Minister..."

(b) an order made by a Commissioner under s.31(1) after a hearing relating to an industrial dispute in respect of any termination of employment, including termination resulting from redundancy, or long service leave, or breach of an award or a registered agreement by-

(i) the party who applied for the hearing; or

(ii) the party to whom the order relates; or

(iii) the Minister..."

[12] The Act defines an organization as "an organization registered under Part V" of the Act. AMMA is such an organization. AMMA appeared at the hearing below but as agent for Skilled and TESA and is named as an organization with an interest, pursuant to s.63(10) of the Act, in the Zinifex Smelter Enterprise Award (the award).

[13] We are of the view that AMMA is not able to lodge an appeal against the decision of Commissioner Abey. AMMA has lodged its appeal in its own right and not as an agent for Skilled or TESA, accordingly AMMA is not a party to whom the order of the Commissioner relates as required by s.70(1)(b)(ii) of the Act.

[14] Zinifex was granted leave to intervene in the hearing below and as such is a party to the dispute. S.28(2) of the Act recognizes an intervener as a party to proceedings before the Commission. Zinifex also has an interest in the award however the decision of the Commissioner does not relate to Zinifex.

[15] It is our view that Zinifex is not able to lodge an appeal against the decision of the Commissioner as it is not a party to whom the order relates as required by s.70(1)(b)(ii) of the Act.

Does the decision constitute an order to vary the award?

[16] The Commissioner found that the award should apply to employees of Skilled and TESA who were engaged in the production process at the smelter. Such finding does not require a variation to the award; awards of the Commission are common rule awards and do not require that parties be specifically named. The decision of the Commissioner addressed a notification of dispute lodged pursuant to s.29(1A) of the Act.

[17] We are of the view that the decision of the Commissioner does not require a variation to the award. Awards of the Tasmanian Industrial Commission are common rule awards and no variation is required to bind an employer to the terms therein.

History of the Award:

[18] Since the commencement of the Act in 1984 the Zinifex award was known as the Electrolytic Zinc Award (the Zinc award) and included at Clause 2 Scope, the following:

"This award is established in respect of the industry of:

(a) producer of electrolytic zinc, zinc oxide, acid and other product of zinc ores and aluminium sulphate; and

(b) manufacture of artificial fertilizers."

[19] The Parties and persons Bound clause provided:

"Unless otherwise specified, this award shall have application to and be binding upon:

(a) all employers (whether members of a registered organization or not), who are engaged in the industry Clause 2 - Scope.)"

[20] Commissioner Abey noted in his decision that:

"There can be no doubt that the award [the Zinc award] at the time was a genuine industry award. As a matter of law the award in its then configuration would have applied to any other employer engaged in the industry as described in the Scope clause. That is, it could have applied to multiple employers. I do however accept, without the need for evidence, that it was for all practical purposes, a one-employer award, as there were no other employers in the industry."1

[21] In 1996 the award was varied to remove reference to the manufacture of artificial fertilizers. The Scope clause then read:

"This award is established in respect of the production of:

Electrolytic zinc, zinc oxide, acid and other products of zinc ores and aluminium sulphate at Pasminco Metals EZ's operations at Risdon Plant."

[22] The award was varied in 1999 to replace the Parties and Persons Bound clause with an Award Interest clause which removed reference to the words

"...all employers... engaged in the industry."

[23] Also in 1999 the name of the award was changed to Pasminco Hobart Smelter Enterprise Award but there was no change to the Scope clause. The name was again changed in 2004 to reflect the new company name and the award was varied to "...simply delete the word Pasminco from the title... and replace it with the word Zinifex."

[24] The provisions of the Zinifex award therefore have application to employees of employers engaged in the production of "electrolytic zinc, zinc oxide, acid and other products of zinc ores and aluminium sulphate at Pasminco Metals EZ's operations at Risdon Plant" and those employees who are engaged in occupations to which the award applies.

[25] Accordingly the finding of the Commissioner that "the award applies to employees of TESA and Skilled so far as such employees are engaged in the production process as described in the evidence" is a correct finding.

[26] The award was initially created as an industry award and whilst in 1999 the title was changed to refer to a specific location and employer no change was made to the scope clause to limit its application to a single employer (Zinifex). Whether that was an oversight or not is not relevant to our considerations, we are required to have regard to the words in the relevant clauses of the award.

The appeals by the CFMEU and the AWU:

[27] We deal with appeal grounds 1 and 2 together as they address the same considerations.

[28] Appeal grounds 1 and 2:

"1. The learned Commissioner erred in determining that employees of Skilled Group Limited and The TESA Group Pty Ltd, who are engaged in the production process as the Risdon Smelter of Zinifex, are subject to the terms of the Zinifex Hobart Smelter Enterprise Award, effectively from 21 September 2005 and not retrospectively from the date of the Award.

2. The learned Commissioner's finding that the Award has effect only from 21 September 2005 rather than from the date of the Award is plainly unreasonable and unjust on effected employees whose employment preceded this date."

[29] It was submitted by the CFMEU and the AWU that as the Commissioner had found that the award had application to both Skilled and TESA then the award would apply from the time the employees of Skilled and TESA commenced work on the Zinifex site and not the date of 21 September, 2005, as determined by the Commissioner below.

[30] The CFMEU and AWU argued that the Commissioner erred in exercising his discretion by limiting the application of the Zinifex award to an operative date of the period after 21 September, 2005. Further it was argued that it "was not a question of imposing award obligations on Skilled and TESA retrospectively" as having found that the Zinifex award had application to the work in question then, as a matter of law, the obligations under the award would apply from the time the employment commenced at the Zinifex site.

[31] We agree with that submission; if the Zinifex award has application to the employees of TESA and Skilled then it has application for the period of their employment on the Zinifex site.

[32] Accordingly we are of the view that the Commissioner erred in limiting the application of the award to a nominal date of 21 September, 2005.

[33] We confirm the finding of the Commissioner that the Zinifex award has application to TESA and Skilled but vary the Order by deleting reference to an effective date of 21 September, 2005.

ORDER

Pursuant to section 31 of the Act The Commission finds that employees of Skilled Group Limited and The TESA Group Pty Ltd, who are engaged in the production process at the Risdon Smelter of Zinifex, are subject to the terms of the Zinifex Hobart Smelter Enterprise Award, we so order.

P L Leary
PRESIDENT

Appearances:
Mr R West, Minter Ellison, Lawyers with Mr M Double for Zinifex Hobart Smelter
Mr B FitzGerald for Australian Mines and Metals Association (Incorporated)
Mr T Roberts for the Construction, Forestry, Mining and Energy, Tasmanian Branch and on behalf of The Australian Workers' Union, Tasmania Branch

Date and place of hearing:
2005
December 16
Hobart

1 Original decision para 29