Industrial Relations Act 1984
s.70 appeal against decision

Tasmanian Confederation of Industries
(T.2877 of 1991)

TRANSPORT WORKERS GENERAL AWARD

Appeal against decision in matter T.2334 of 1990 - Refusal to insert a Majority Clause - Appeal upheld

REASONS FOR DECISION

This appeal by the Tasmanian Confederation of Industries (TCI) pursuant to Section 70 of the Industrial Relations Act 1984 was against a decision of Commissioner Imlach in matter T.2334 of 1990.

Specifically, the appeal was against that part of the Commissioner's decision rejecting the submissions of the TCI to insert a Majority Clause in the Transport Workers General Award. The effect of this clause would have been to apply conditions of employment applicable to the majority of employees in any establishment to employees who would otherwise be subject to the Transport Workers General Award.

The TCI relied on the following grounds of appeal:

The Commissioner was in error to the extent that he held the view that the union had a more significant interest in the Award than the employer organisations party to the Award.

There is no sound basis for this conclusion, and to the extent that it influenced his decision, the Commissioner erred.

We do not intend to refer separately to each ground of appeal but acknowledge that they were addressed in their entirety by Mr Abey for the TCI and in rebuttal by Mr Elliott for the Transport Workers Union, Tasmanian Branch.

We have however concluded that the Commissioner erred at least in respect of Grounds 1 and 5 of the Grounds of Appeal.

Ground 1:

In reaching his decision that a Majority Clause should not be inserted in the Transport Workers General Award the Commissioner said at page 3 of his decision:

"It seems to me that the key factor in considering this application is the majority clause sought by the Confederation. Had that not been involved there probably would have been almost total agreement between the parties. There being disagreement a major effect of the new award is in the balance.

I consider the one item which tips the balance decisively is the fact that an occupational award has been accepted in this jurisdiction by the declaration made by the President on 5 June 1990. That declaration having been made all parties ought to have accepted that the likely end result would be an occupational award running alongside other industry awards of the Commission. More to the point, the Act itself, at Section 33, specifically provides for industry and occupational awards equally to be made."
(our underlining)

Section 33 (2) states, inter alia:

"The President may, after consultation with such organisations as he considers appropriate, by notice in the Gazette, declare an occupation in which classes of employees are employed by private employers in any industry or industries to be an occupation in respect of which the Commission may make an award."

The President, in his declaration of 5 June 1990 stated the following:

"I have decided that I will declare, by notice in the Gazette, that the Commission has jurisdiction to make an award in respect of the occupations listed below, which are not covered by other awards of this Commission:

(b) driver of a mobile crane;

(c) driver of a fork lift truck."

Whilst the declaration was limited to areas of employment not covered by other awards of the Commission, nothing contained in the declaration has the effect of restricting or inhibiting the making of an award in respect to wages and/or conditions of employment for employees falling within its scope.

The declaration does not impose restrictions on the number of clauses, or their type, which might form part of the award. Nor does the declaration prevent or limit the proper consideration of the merit of any clause which might be proposed for insertion into the award.

The declaration, having been made, paves the way for submissions to be made on merit as to what should go into the occupational award. No more and no less.

Accordingly, we believe the Commissioner erred in that he considered the declaration to be a decisive factor in determining whether or not there should be a Majority Clause in the award.

Ground 5:

In the original proceedings the TCI sought to rationalise the approach to conditions of employment. To that end its submissions focused on the adoption of a Majority Clause in respect to conditions of employment relevant to employees where the Transport Workers General Award has application.

It took comfort in this approach from a decision of a Full Bench of the Australian Industrial Relations Commission (AIRC) arising out of an application to vary the Transport Workers (Mixed Industries) Award 19841 to reflect the second Structural Efficiency Increase. Specifically they relied on that part of the decision which stated:

"The breadth of coverage of the award has been an important factor in our deliberations. Further in our view it is consistent with the intention of the structural efficiency principle for transport workers to have consistency of treatment with the employees under the majority or principal award in the establishment. Some awards of the Commission and state industrial tribunals already contain similar provisions to that claimed by the employers. It is cumbersome and inefficient for an employer to have to apply different sets of conditions to employees at the same establishment. Different conditions of employment in the same establishment can also cause disputation and disruption."2

The Commissioner in rejecting the clause adopted by the AIRC said that whilst it was noteworthy it was not a precedent.

On the other hand the Commissioner stated:

"... the Miscellaneous Workers Award which is an occupational award, contains a full range of conditions and covers workers in single industries who, in many cases, would be members of a small group amongst a much larger group covered by a separate, industry award of this Commission: that is a precedent. There is no majority clause in that award."
(see decision Page 4) (our underlining)

We do not believe that the making of the Miscellaneous Workers Award can be elevated to precedent status when

(a) it was made by consent by a Commissioner sitting alone;

This contrasts significantly with the inclusion of a Majority Clause in the Transport Workers (Mixed Industries) Award 1984 by the Full Bench mentioned earlier which was

(b) made under the current Wage Fixing Principles; and

Whilst this Commission is not bound by decisions of other tribunals, that does not mean that in appropriate circumstances the Commission will refuse to take cognisance of certain decided cases.

As to the second part of Ground 5 we consider the Commissioner fell into error in that he did not afford the parties the opportunity to address him on a matter fundamental to his decision as is required pursuant to Section 20 (4) of the Industrial Relations Act 1984.

The appellant requested the Commission, if it upheld the appeal, to quash the original decision as it related to the Majority Clause only and to include the Majority Clause in the Transport Workers General Award as originally sought.

This we do, and we direct the TCI to prepare for our consideration the necessary draft orders which will be operative from the date contained in the original decision.

Appearances:
Mr T Abey for the Tasmanian Confederation of Industries.
Mr D Elliott and Mr B Hansch for the Transport Workers Union of Australia, Tasmanian Branch.

Date and Place of Hearing:
1991
February 14
Hobart

1 Print J2976
2 Ibid, p3