TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.70 appeal against a declaration by the President

Tasmanian Confederation of Industries
(T.3094 of 1991)

HAIRDRESSERS AWARD

Appeal - Re interpretation declaration made pursuant to Section 43 of the Act

REASONS FOR DECISION

In this matter the Tasmanian Confederation of Industries (TCI) has appealed against a declaration made pursuant to Section 43 of the Act by the President.

The appeal is made pursuant to Section 70(1)(c) of the Industrial Relations Act 1984, and the relevant declaration dated 8 May 19911 provides as follows:

"DECLARATION

Pursuant to the provisions of Section 43 of the Industrial Relations Act, I hereby declare that the provisions of Clause 2 - Scope - of the Hairdressers Award, specifically placitum (iii) Proprietor of Health and Physical Culture Studio, include and have application to the proprietor of a health and fitness centre."

The grounds of appeal are that:

1. The President erred in declaring that the Hairdressers Award "include and have application to the proprietor of a health and physical fitness centre".

2. The President erred in placing little or no weight on the submissions of the Tasmanian Confederation of Industries (TCI), going to the rules of interpretation of Judicial and Arbitral Tribunals which require regard to current English usage.c

3. The President erred in determining that the phrase "health and physical was not in common usage", and then ultimately determining that the award has application.

4. The President erred in determining that "the words health, physical and culture in my opinion can clearly be interpreted as having generally the same meaning as health and fitness" as such a finding was not supported by the evidence or submissions.

5. That the President erred in placing undue weight to the submissions of the applicant union relating to the meaning of the word "studio".

6. That the President erred in determining indirectly that the word "studio" means "a centre" and such finding was contrary to the evidence and submissions.

7. The President erred in giving little or no weight to the submissions of the TCI, going to the fact that health and fitness centres were established in the early 1980's.

8. The President erred in giving undue weight to the submissions of the applicant union relating to the relevance of the Telecom Yellow pages in the determination of the matter.

9. The President erred in giving little or no weight to the submissions of the TCI that the words contained in Clause 2(iii) must be interpreted consistently and in conjunction with words in Clauses 2(i) and 2(ii).

10. Such other grounds as the Commission considers appropriate.

The appellant did not seek leave of the Commission to admit evidence or material other than that which was raised in the original proceedings.

The Hairdressers Award provides in Clause 2 - Scope, that it is established in respect of:

"(i) The trade of Hairdresser, Barber and/or Wigmaker;

(ii) Proprietor of a Beauty Salon; and

(iii) Proprietor of a Health and Physical Culture Studio."

There is also contained within the body of the award a list of classifications including that of "All Others", which is defined as follows:

"'All Others' - shall mean any person engaged in -

(a) beauty culture or beauty therapy industry

(b) health and physical culture studios

(c) health and fitness centres

(d) persons performing manicures, pedicures, chiropody or podiatry."

The President in the original hearing was asked to declare that the Hairdressers award has binding application in respect of persons employed by establishments such as "Dockside Fitness" which provide a range of activities and services including fitness assessments; use of gymnasium equipment (weight lifting, bicycles, rowing machines, etc); use of swimming pool, spas, saunas and aerobics.

Two past employees testified that they worked in these areas and also carried out sundry duties including cleaning of spas, pools and gymnasium equipment; reception duties, unlocking and locking premises.

Evidence was given by the Managing Director of Dockside Fitness in relation to the nature of the business being conducted, the duties and responsibilities of employees, their qualifications and the question of award coverage.

In the alternative the President had been asked to declare that the Miscellaneous Workers Award has application.

Section 71(10)(ii) of the Industrial Relations Act 1984 requires that, inter alia:

"(10) On the hearing of an appeal, a Full Bench shall act according to equity, good conscience, and the merits of the matter without regard to technicalities or legal forms, and may direct itself by the best evidence it can procure, whether that evidence would be admissable in a court or not.

(11) Division 2 of Part II of the Evidence Act 1910 applies to the proceedings in any appeal before a Full Bench as if -

(a) the Full Bench were such a body of inquiry as is referred to in section 14 (1) (b) of that Act;

(b) the matter the ground of the appeal were the matter into which it was appointed to inquire by its instrument of appointment; and

(c) subsection (2) of section 19 of that Act were omitted.

We are satisfied from studying the transcript and exhibits presented that the President had before him and took into consideration a sufficient description of the relevant facts relating to the industry being carried on by Dockside Fitness so as to enable him to compare such with the scope of the Hairdressers Award, or in the alternative the Miscellaneous Workers Award.

The President clearly took into account the competing arguments and material before him and weighed such material before following established rules of interpretation and making a declaration.

Section 33 of the Act enables the Commission to make awards in respect of:

"(a) all or any private employees employed in an industry; or

(b) classes of employees employed in an occupation in any industry or industries engaged in by private employers and declared by the President under subsection (2) to be an occupation in respect of which the Commission may make an award."

Since no declaration has been made in respect of 33(b), i.e. classes of employees covered by the Hairdressers Award, then 33(a) applies to industries covered by the scope clause of this award. Therefore that part of the scope which refers to:

"(iii) Proprietor of a Health and Physical Culture Studio"

must be read down, and in the context of being an industry carried on by proprietors. In this context we conclude that the emphasis the appellant in this matter sought to apply to the meaning of the word "studio" has not the relevance it would have as if the place in which the industry was actually conducted was crucial to the case before the President.

The Act describes industry in very wide terms, i.e:

"'industry' means any industry, trade, business, undertaking; profession, calling, function, process, or work performed, carried on, or engaged in by a private employer;"

and this definition supports the final position adopted by the President in effectively giving emphasis to the industry aspect rather than the place in which such industry is conducted.

Similarly we believe he was entitled to do this because to apply the accepted dictionary meaning of "studio" in conjunction with the preceding words in the relevant part of the scope clause of the Hairdressers Award would have created an absurdity. The word "studio" was defined before the President as meaning:

". the working room of a painter, sculptor, photographer, etc. often with skylights of windows specially designed to secure suitable light;

. a room in which a cinema - play is staged;

. a room in a radio or television broadcasting station used for transmission;

. a room in which some form of art is pursued e.g., dancing, singing or acting."

Clearly that definition if read in conjunction with the words:

"Proprietor of a Health and Physical Culture ..."

would make no proper sense.

In the principles of interpretation laid down in the Hume Pipe Case, 11 SAIR at page 2, and adopted by Stanley J. of the South Australian Industrial Court in his judgement concerning FLAIEU-Club Industries - Hotels, Clubs etc Award ALR Vol. 21, No. 18, 321, the following is to be found, inter alia:

"(1) The intention must be gathered from the instrument itself.

(2) The words of the instrument must be taken in their grammatical sense and ordinary usage.

(3) The grammatical and ordinary sense will not be modified unless to avoid absurdity, repugnance, or inconsistency.

(4) The instrument must be construed as a whole. It follows that -

(5) A bare statement of intention wherever found cannot of itself govern the legal effect when that legal effect is ascertainable by application of the rules of construction to the document itself."

Having regard for those principles we believe the TCI overly relied upon a technicality in the wording of the scope clause and that the President was entitled in the final result to modify the literal meaning of the words in accordance with the rules of interpretation in order to "avoid an absurdity, repugnance, or inconsistency"(3).

Whilst we accept that the scope clause is all important in determining the area of application of an award, and the award-maker in this instance was less than precise, nevertheless the rules of interpretation allow that "the intention must be gathered from the instrument itself".

Accordingly the fact that the body of the award contains a definition of the classification of "All Other" which includes a person engaged in "health and fitness centres" as well as health and physical culture studios can be drawn upon as supportive of the President's conclusions and declaration pursuant to Section 43 of the Act.

Finally we conclude that it has not been demonstrated that the President fell into error, misdirected himself, or that his decision in this matter was not reasonably open to him on the evidence.

For these reasons the appeal is dismissed.

Appearances:
Mr W.J. Fitzgerald for the Tasmanian Confederation of Industries.
Mr K. O'Brien for The Federated Miscellaneous Workers Union of Australia, Tasmanian Branch.

Date and Place of Hearing:
1991:
Hobart
July 23

1 T.2495 of 1990 and T.2686 of 1990