T3025 and T2956
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Transport Workers' Union of Australia and Pasminco Mining (Rosebery) Pasminco Mining (Rosebery) Award
REASONS FOR DECISION This matter concerns an appeal against a decision of a Commissioner sitting alone to include a provision in an award relating to wage rates by the Transport Workers' Union of Australia, Tasmanian Branch (the TWU) pursuant to Section 70 of the Industrial Relations Act 1984. The decision appealed concerned the granting of an application by Pasminco Mining (Rosebery) to reduce the wage rates applicable to the classifications of Mill Operator and Surface Operator by an amount of $21.10 per week retrospectively to 8 August 1990. In his Reasons for Decision1 handed down in Hobart on March 1991 Mr Commissioner Gozzi stated at page 2 that:
In the circumstances the award will be varied in the manner requested by the applicant, operative from 8 August 1990." The stated grounds of appeal by the appellant were as follows:
We are not satisfied that the TWU raised before Mr Commissioner Gozzi in matter T No 2956 of 1991 any argument relating to the claimed correction of an error by the employer being proscribed by the Wage Fixation Principles. And even if this particular ground of appeal did not constitute new material before us, we cannot separately identify any such prohibition within the Principles. Grounds 2 and 3 going to the question of disadvantage being imposed upon the TWU by virtue of a decision of the Commission do not in our view constitute proper grounds for appeal. It is almost inevitable that any decision of the Commission going to the level of wage rates to be contained in an award will favour only one party, and, as a consequence, probably disadvantage the other. Whilst appeal ground 4 alleges the Commissioner failed to give due consideration to the TWU submission, nothing was put to us to demonstrate that this was so. It needs to be recognised that Mr Commissioner Gozzi was faced with competing submissions concerning whether or not a genuine error had occurred in the calculation of a wage rate. His reasons for deciding in favour of the applicant were briefer than may have normally been expected, but they convey to us that, faced with a difficult situation, he carefully weighed the evidence of both sides before reaching a final decision. We are not prepared to comment upon ground 5 because to do so would be a judicial act and, as a consequence, beyond jurisdiction. If the TWU hold to the view that the outcome of the decision in matter T No 2956 of 1991 offends any provision of the Industrial Relations Act 1984, it would need to be tested in a Court of competent jurisdiction. Despite the obvious disappointment of the TWU at having an earlier consent arrangement made in accordance with the "Structural Efficiency" principle of this Commission's Wage Fixation Principles arbitrarily amended, we are not satisfied that the decision made by Mr Commissioner Gozzi was not reasonably open to him on the evidence before him. Nor have we been persuaded that he misconstrued the facts or misdirected himself in any material way in applying a fundamental principle. For these reasons the appeal is dismissed.
Appearances: Date and Place of Hearing: |