IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This appeal was lodged by the Tasmanian Confederation of Industries against a decision of the President handed down on 22 November 1988.

That decision granted a "special disability allowance" for work carried out at the Port of Devonport Authority No. 2 Wharf Extension.

The grounds of appeal are as follows:-

1. The President erred in that he failed to address the matter of principle going to the issue of whether it is appropriate to award site allowance for projects within the normal province of Port Authority work.

2. The President erred in that he apparently had no regard for the decisions of Robinson DP (T94 of 1985, 26 April 1985) and Walker C. (PLA & FEDFA, 8 May 1985, Print F8342).

3. The President erred in that he failed to identify any aspect which could distinguish the work done by the employees on the project from work carried out by the other employees during normal port operations.

4. The President erred in that he failed to identify any environmental aspect which was not adequately catered for by Clause 8.4 "Disability Allowance" and classification 65 relating to an allowance payable for the wearing of life jackets.

5. Such other grounds as the Commission deems appropriate.

The thrust of the original proceedings having been drawn to our attention, there is no doubt in our minds that the purpose of the original case conducted by The Building Workers' Industrial Union of Australia (Tasmania Branch) and supported by the Australian Workers' Union, Tasmania Branch was for the purpose of introducing a site allowance of $2.00 per hour for all those persons employed on the site commonly referred to as "No. 2 Berth Extension" within the province of the Port of Devonport Authority.

It is clear, having regard to the original dispute notification and the subsequent hearing, that the parties addressed issues going to site allowance only.

When the union later lodged an application for variation of the award, the application contemplated an allowance for special circumstances notwithstanding that in the original case, the applicant sought a site allowance to compensate for the following:-

(a) excess noise from the pile driver whilst sinking piles;

(b) wind carrying salty sand which burns the eyes;

(c) wind-blown soda ash when this material is being discharged from the nearby wharf. It was said that soda ash causes blood noses and excessive sneezing;

(d) slippery conditions due to water and spray;

(e) wear and tear on tools due to stripping and denailing;

(f) tack welding flash;

(g) excess noise from overhead crane operating in close proximity to the job;

(h) general congestion on site;

(i) cold prevailing south-westerly winds; and

(j) abnormally wet and sloppy conditions underfoot due to mud and slush associated with road and vehicular access construction.

During the course of that hearing, the primary submission presented by Mr. Abey for the TCI was one of opposition to the introduction of a site allowance in an area where it was not usual for one to be awarded.

He did not address the merit surrounding the quantum of the claim but only the matter of principle associated with the awarding of a site allowance.

He drew the Bench's attention to previous decisions that had been made in respect to the question of site allowances applying within the scope of the Marine Boards Award and quoted from the decision handed down by the Deputy President of this Commission on 26 April 1985 (T94 of 1985 & C2404/85) and relied on the following:-

"I make it clear, however, that the ordinary work carried on by harbour authorities, in all its varied facets, including the maintenance, erection and repair or demolition of wharf buildings, cannot be treated in the same way as the building and construction industry so far as site allowances are concerned within the terms of the current principles defined federally and within the State of Tasmania, by relying on the Sapri case.

The building and construction industry has a history of practices which are not the same as harbour authorities and the two should not be confused.

He also relied on a decision handed down by Mr. Commissioner Walker of the Australian Conciliation and Arbitration Commission on 8 May 1985 (C485/85) and highlighted the following:-

The Port of Launceston Authority contended that clause 5 `Disability Allowance' had been paid on all appropriate Marine Board port and wharf construction projects, and every single wharf in this area had been built by the Authority without the attraction of site allowance.

The Authority further contended that under the guidelines of this Commission the granting of a site allowance should not be made where site allowances have not been a feature of the industry and quoted various sections of the National Wage Case decisions from which the constraints on the granting of site allowances are specified."

He goes on:

"The claim covers a very small segment of an industry which has been traditionally serviced by this Tasmanian Commission and it would seem logical that any major change, such as the introduction of site allowances, should clearly be determined by that Commission.

I accept the argument of Mr. Abey that a site allowance should not be granted."

In the original hearing, Mr Abey pointed out that the award contained a provision for the payment of an allowance of $14.00 per week in recognition of, and compensation for, disabilities generally existing where work associated with port and harbour construction and structural maintenance is being performed. It was his submission that the purported disabilities that were examined during the course of inspections were clearly embraced within that clause.

Having regard to what has been stated, it is clear to us that this Bench must come to grips with the question of whether the President, in this case, awarded a special disability allowance which in essence is a site allowance by another name.

On that issue we have reached the conclusion, having regard to the direction given by the President in the original proceedings, that the matter of site allowance only, was addressed. The President said:-

"Now, gentlemen, having carried out inspections, I am prepared to assume now, Mr. Egglestone, that you have lodged a claim. That makes you the applicant. That means that you will have a right of reply. We will assume that the claim was in for a $2 per hour site allowance for all those persons employed on the site that we inspected. If you will now address the Commission on that aspect."

Transcript P.6.

We see no alternative but to concur with the view expressed by Mr. Abey, in this case, that "special disability allowance" and site allowance are one of the same thing. This argument is further enhanced when the order giving effect to that decision clearly awards the "special disability allowance" to a defined group of employees on a particular site falling within the scope of the Marine Boards Award.

Viewed in that way, as we believe it must be when the proceedings directed by the President are taken account of, we are of the opinion that he erred in awarding the allowance that he did.

In the event that the President intended a special disability allowance as such be inserted in the award, then he should have informed the parties of this intention, and invited a response.

This has been a difficult appeal to determine because of the interlinking of terminology. However, there is no doubt in our minds that a specific amount of money was awarded to employees working on a specific site. This, in our view, must be interpreted as a site allowance in the context of this award.

When our conclusions are extrapolated further we are satisfied that the President did not address the question of site allowance per se which was the only matter before him.

Therefore in our opinion the appeal must succeed.

If new and/or additional disabilities can be identified over and above those comprehended in the award, then it would be open to the parties to make application to have any of those particular disabilities considered by the Commission in accordance with the appropriate Wage Fixing Principle.

For the reasons we have stated, the appeal is upheld and the order is quashed.

The order deleting the provision under appeal from the award is attached.