T1929
|
IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
This matter concerns an appeal pursuant to Section 70 of the Industrial Relations Act 1984, against a declaration made under Section 43 of the Act by the President. The matter appealed against emanated from an application by the Shop Distributive and Allied Employees' Association (SDA) for interpretation of the Retail Trades Award and centred around the question of the definition of "Shop or Branch Manager or Manageress" and "Assistant". In his written interpretation1 of 14 April 1989, the President reviewed the circumstances of a particular case before him involving an employee of the Launceston Black Rose who was referred to only as "Mrs G". This lady was employed alone and carried out a range of duties which gave rise to a claim by the SDA that the award should be interpreted in such a way as to allow her to be treated and paid not as an "assistant" (as defined), but as a "Shop or Branch Manageress" (as defined). The President made a number of comments in relation to the need for significant drafting repair to the award before a declaratory statement, capable of general application to the whole retail industry could be made, and then proceeded to deal with aspects relating only to the immediate case before him. He then made a finding that "on the language used by the award maker, the definition of `Shop or Branch Manager/Manageress' was more appropriate to the circumstances of Mrs G's employment than that of `Assistant'". The appellant contended that the President had in fact made a declaration, and as a consequence an appeal could be brought. Such a contention was based upon two grounds:- 1. That the President's interpretation had in fact been filed in accordance with Section 43(5) of the Act. 2. Public expressions of opinion made by the Division of Labour and Industry in relation to what constituted a declaration in another matter2 which went to appeal3, and the purported supporting opinion of the Solicitor-General in the same matter. In that matter the Appeal Bench found that no declaration had been made, but DLI have said they disagreed with that finding. It was conceded that neither an organisation affected nor the Secretary had requested an order to be made pursuant to Section 43(4) of the Act in the present matter. Section 43(1) provides that:
And Sections 43(4) and (5) provide that:
And Section 70(1)(c) provides that:
Thus the President may make a declaration, and such declaration may be made in his reasons for decision, but shall be made in the form of an order, if within 7 days of the handing down of his reasons for decision, an eligible organisation or the Secretary so request. Essentially however the question of whether or not a declaration has been made becomes a question of fact in each case. If no declaration has been made in accordance with the Act, then no appeal may be made. In the matter before us we informed the parties during the course of the hearing that, from enquiries and a search we caused to be made, no declaration was lodged with the Registrar; nor was any declaration filed by him pursuant to the requirements of Section 43(5) of the Act. And whilst the appellant had relied upon a response given to an earlier verbal inquiry to the contrary by the Registry, no material substantiation was able to be provided to the Commission. Based upon this fact and our examination of the President's decision as a whole we are satisfied that he did not make a declaration and accordingly the appeal is deficient. Furthermore we dismiss as irrelevant the evidence of DLI opinion against a finding of fact by a Full Bench in matters T No 1837 and T No 1985 of 1989, whether it be supported by other opinion or not. For all of these reasons the appeal is dismissed.
| |||||||||||||||||||||||||||||||||||||||