T331
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
DECISION The majority decision of the Full Bench in this matter is that the appeal be dismissed. Reasons for decision of the respective members of the Bench are attached. REASONS FOR DECISION - DEPUTY PRESIDENT A. ROBINSON On 21 January 1986, Commissioner Watling handed down a decision to insert the classification of "Boiler Attendant" in the Vegetable Preservers Award with a wage rate of $245.30 per week as from the first pay period to commence on or after 21 January 1986. The Federation Engine Drivers and Firemen's Association of Australasia (the F.E.D.F.A.) appealed that decision both as to quantum and operative date. APPEAL I have had the benefit of reading the decisions of my fellow Commissioners and am grateful for the succinct outline of the evidence presented to us at the hearing by Commissioner King. I concur with such and adopt it also to save unnecessary repetition. Two threshold matters arose at the commencement of the appeal hearing, i.e.:-
We were unanimous in our view that no new evidence should be introduced at the appeal because no compelling reasons could be advanced justifying such a departure. Whilst the Christmas/New Year period punctuated the hearing before the Commissioner concerned and the F.E.D.F.A. had some domestic difficulties, the Commission granted time and gave clear notice of its intention to proceed in the New Year. On the other matter raised by the Tasmanian Chamber of Industries, the Full Bench was divided as to whether it should refrain from further hearing the appeal and dismiss it pursuant to 71(13) on the basis of 21(c)(i) or (ii) applying, i.e. - (i) that the matter or part is trivial; (ii) that further proceedings are not necessary or desirable in the public interest. My reasons for opposing the application by the T.C.I. were there would need to be extenuating circumstances before any organisation could be denied the right to be heard in the exercise of appeal rights and, in my view, no such circumstances exist on this occasion. I also formed the view that in circumstances where the rate determined at the first hearing was below that proposed by the employer applicant who then and now acknowledges it is sustainable within the Principles and public interest criteria of the Act, at least represented an arguable case before us. I turn now to the appeal proper against the wage rate determined for the newly created classification of "Boiler Attendant" and the operative date of such rate. Section 70(10) of the Act requires that:- "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 admissible in a court or not." In this instance no new evidence was admitted and thus the facts as presented are not in dispute, save that T.C.I. argued before us that the F.E.D.F.A. had originally opposed the rate of $259.60 operative from 3 November 1985 proposed by the T.C.I., whereas it now supported it as a minimum figure. I agree with Commissioner King that such an interpretation of the F.E.D.F.A.'s position is far too narrow. Rather than opposing the rate proposed it was seeking to reserve unto itself the right to argue for a higher rate at some later time. It is important to point out that the primary position of the F.E.D.F.A. was that it was at the relevant time, opposing the inclusion of a "Boiler Attendant" classification in the Vegetable Preservers Award. Thus the bulk of the argument by the parties on each side was devoted to this aspect. Comparatively little was before Commissioner Watling by way of submissions and evidence concerning an appropriate wage rate or operative date in what was a situation of extending an existing award to award-free work. The three (3) grounds of appeal are as follows:- "1. The Commission erred in failing to give any weight, or sufficient weight, to the submission that in the event the Commission proceed to make an award, the rate of pay and operation date should be as proposed by the Applicant, namely $259.60 per week operative from 3 November 1985. 2. The Commission erred in that it failed to reach a decision in accord with the whole of evidence. 3. Such other grounds as to the Commission to appear just." The evidence before Commissioner Watling, presented by the T.C.I., was that the wage rate of $259.60 (operative from 3 November 1985) was - (a) The lowest rate being paid by any employer in the industry concerned in this State and therefore to grant the application would create no increased cost. (b) Was assessed by reference to the value of work already covered by the award in accordance with the requirements of Principle 10(b). (c) Not against public interest, the criteria of Section 36, and (d) There was no likelihood of any flow-on. The F.E.D.F.A. indicated it was not in a position to put forward any alternate wage rate at that time, but rather supported a situation of having a closer look at "whoever might be involved" and drew attention to the fact that certain other awards covering "boiler attendants" stipulated not one but a range of "boiler attendant" classification. Commissioner Watling proceeded to determine an interim rate of pay and clearly invited either party to make further applications, if they so wished, to seek a work value exercise at some later time. The fundamental question here is not whether members of the Full Bench hearing this appeal may have come to different conclusions or acted any differently in the same set of circumstances, but whether in all of the circumstances it was reasonably open to the Commissioner acting alone to reach the decision he did or whether he erred. Commissioner Watling had to consider the evidence before him as to the appropriateness of the wage rate and operative date suggested by the employer as having been properly assessed by them in consultations with employees as a minimum rates. Furthermore such rate (adjusted from time to time by National Wage C.P.I. increases) has been in existence for some time. The F.E.D.F.A.'s only challenge to the rate was that is may not be found to be adequate on closer examination. The Commissioner also had to consider statutory requirements of the Act, and in particular Section 36 (public interest), and Section 20 (Commission to act according to equity and good conscience). In present circumstances there can be no suggestion of adverse employment, economic or other effect by granting the proposed rate of pay and consequently public interest would not be offended. It seems to me however, the real concern of the F.E.D.F.A. in this case is that - (a) the evidence supports a minimum rate of $259.60 as a minimum rate of pay (pre-National Wage) on all necessary criteria and in combination; (b) Section 20(b) provides - "20 - (1) In the exercise of its jurisdiction under this Act the Commission - (a) ...... (b) shall do such things as appear to it to be right and proper for effecting conciliation between parties, for preventing and settling industrial disputes, and for settling claims by agreement between parties;" Effectively therefore the appellant is claiming that the Commissioner who heard the original matter unreasonably failed to give proper weight to these two particular aspects, and instead chose a lower interim rate of his own volition, taken from the Engine Drivers and Firemen's (General) Award. Clearly there is an important statutory duty to encourage conciliation and the settlement of claims by agreement and despite T.C.I.'s argument I believe there was agreement concerning the base wage rate. This is not to say the Commission must endorse every agreement reached and it was a matter of common ground that the Commission must be satisfied on public interest and Wage Fixation Principles criteria. Principle 10(b) provides that:- "In the extension of an existing award to new work or award free work the rates applicable to such work will be assessed by reference to the value of work already covered by the award." What was put to the Commissioner was that such an assessment had been made by one employer concerned in consultation with employees when an assessment was made pursuant to 10(b) of the Principles. The Commissioner clearly was not prepared to accept such an assessment at face value, even as an interim measure, but instead expressed a preference for inspections, involving the F.E.D.F.A., at a later time to enable a proper assessment to be made. Apart from the assertion of Mr. Edwards (for T.C.I.) that the rate of $259.60 (pre-National Wage) was slotted in approximately half way between two production worker classifications, there were no details provided as to the skills, responsibilities, training or conditions under which any of the work under consideration is performed before the Commissioner to assist him. It needs to be borne in mind that the Commissioner was considering not what was to be the rate of pay for employees of one employer, but for the whole of the industry encompassed by the Vegetable Preservers Award throughout the State. The rate he chose as an interim rate was taken from a significant, established award of long standing which has wide application. In all of the circumstances I do not believe it has been illustrated that Commissioner Watling erred by failing to give sufficient weight to all of the evidence as to the interim wage rate or operative date, and it is my decision that the appeal be dismissed. This therefore becomes the majority decision.
A. Robinson
REASONS FOR DECISION - COMMISSIONER R.K. GOZZI In this matter two threshold questions were required to be considered by us. One related to the admission of new material; the other went to the question of whether or not the appeal should be dismissed on the grounds that it was trivial and/or not in the public interest. We came to a unanimous decision that no new material should be introduced to this appeal hearing. However, on the threshold matter going to the dismissal of the appeal, without proceeding to a hearing on the merit, the majority view of the Bench was that the appeal hearing should continue to finality. In dissenting from the majority view, I had regard to section 71(13) of the Industrial Relations Act 1984, which provides that a Full Bench may refrain from further hearing an appeal and dismiss it, if satisfied that the provisions of Section 21(2)(c)(i) or (ii) are applicable. In my opinion this appeal should have been dismissed on the grounds contained in Section 21(2)(c)(i), which are as follows: 21(2) ...the Commission may, in relation to a matter before it - (c) at any stage of those proceeding, dismiss a matter or a part of a matter, or refrain from further hearing, or determining, the matter or part if the Commission is satisfied - (i) that the matter or part is trivial; I may well have taken a different stance had Commissioner Watling not specifically indicated in his decision that he had only decided on an interim rate of pay for the classification of Boiler Attendant, which was inserted in the award as a result of his decision. In my opinion the parties could not have been left in any doubt that Commissioner Watling, on this particular aspect, envisaged a further and more extensive examination of what would be an appropriate rate of pay. I hold strongly to the view that it is clear that Commissioner Watling had not finalised his deliberations on the rate of pay to be inserted in the award, and that remains the situation until such time as a final (as opposed to an interim) rate has been decided upon by him. In his decision Commissioner Watling said - "However, I am not prepared to accept, at this time, the amount of $259.60 per week sought by the Tasmanian Chamber of Industries as being the appropriate rate for this classification. I believe that an amount of 245.30 per week should be inserted in the award as an interim rate. This would give the parties an opportunity to present further submissions to the Commission (via a fresh application) and enable the Commission, along with the parties, to examine in greater depth, such things as whether or not there should be grades within the classification corresponding to the work required to be performed." (Underlining mine) Decision, p.29 As I have already commented, the intent of Commissioner Watling's decision is not ambiguous in any way. He clearly invited the parties to jointly, with him, examine this matter in greater depth. In the circumstances, it is my firm view that appeal proceedings should not have been instituted on a matter that has not been finalised. That is to say, in my opinion, the appeal was pre-emptory and inappropriate. I wish to make it abundantly clear though that I do not quarrel with the fact that an appeal option was available to the F.E.D.F.A. However, my view was that the appeal, having regard to the course of action proposed by the Commissioner, was trivial. The nugatory aspects of this appeal are, in my opinion, accentuated when regard is had for the fact that the remedy sought by the appellant in a practical sense, is already available to those employees employed as Boiler Attendants who are now subject to the award. That is to say that whilst the Commissioner was not satisfied, on the material put before him, that a rate of $259.60 (Pre N.W.C. of 4/11/85) was the rate to be included in the award, that amount adjusted by 3.8% for the 4 November 1985 N.W.C. decision is being paid. It is of concern to me that the invitation by the Commissioner to the parties to make a fresh application to allow a comprehensive examination of the rate which should be finally inserted in the award was not taken up by the F.E.D.F.A. as a first step. It seems to me not necessary to exercise an indisputable appeal right when in the first instance, the good faith of the parties should have been directed to the resolution of the appropriate rate of pay by way of further process envisaged by Commissioner Watling. After all, apart from the emphatic submission by the applicant, that the rate of $259.60 was the correct one, and notwithstanding that in the original proceedings that amount was argued against the background of the Principles and the provisions of the Industrial Relations Act 1984, neither the appellant or the Commissioner had seen the work performed. In the appeal proceedings, at page 4 of the transcript, Mr. Holden said: "We sought to reserve our rights in that we had not seen the work performed because we really weren't sure where we were talking about." Understandably, Mr. Holden qualified that submission in these proceedings, and also those before Commissioner Watling, by making the point that the F.E.D.F.A. was not opposing the applicant's proposed rate of $259.60, except that it may be too low. The fact remains, in my view however, that the Commissioner was at liberty to decide on an interim rate, for the very reason that Mr. Holden sought to reserve the F.E.D.F.A.'s rights to have a look at the work, i.e. so as to come to a proper and considered conclusion. Mr. Holden said, in the original proceedings:
In my view, the decision of Commissioner Watling envisaged `having a look at the work'. All that was required was for the appellant to make an application. If subsequently, after a detailed examination of the work performed and other related matters, the rate finally decided upon by Commissioner Watling was one not agreeable to one or either party then, in my view, that is when an appeal should have been instituted. I cannot over-emphasise the significance, in my opinion, of the fact that the intent of the decision of Commissioner Watling was to keep the matter before him to allow the determination of a final rate of pay. In such circumstances, and for the reasons outlined herein, I dissented on the determination of the threshold matter and held to the view that the appeal was trivial. In my opinion, the appropriateness of the rate should have been further processed before Commissioner Watling, as contemplated by him. Apart from what I have said thus far, there is one further aspect that I should comment on. In the appeal proceedings dealing with this threshold matter, Mr. Holden did indicate that he was not arguing about Commissioner Watling's offer to further examine the rate of pay. What he objected to was the base established by the Commissioner. In that context Mr. Holden said, on the hearing of the appeal - "We may well wish to come back and look at the matter afterwards, but we certainly don't intend to come back and look at it from a base of $245.30 when, in effect, what we were offered was $259.60 which would have become $269.40 on 4 November 1985."
I have no sympathy for that argument at all. The inescapable fact is that a substantive base would have only been established after the completion of the Commissioner's ultimate deliberations. Had the F.E.D.F.A. chosen to follow that path and let the Commissioner make a final determination, I fail to see how its position would, in any way, have been prejudiced. In conclusion, having heard the appeal in its entirety, my reasons on the threshold matter hold as my determination that the appeal is trivial and should be dismissed.
R.K. Gozzi
REASONS FOR DECISION - COMMISSIONER J.G. KING This decision deals with an appeal by the Federated Engine Drivers and Firemen's Association of Australasia (Tasmanian Branch) (F.E.D.F.A.) against a decision of Commissioner Watling in T.282 of 1985. In that matter the Commissioner in a decision dated 21 January 1986, determined, amongst other things, that the classification Boiler Attendant should be included in the Vegetable Preservers Award (the Award). He also determined a weekly wage rate of $245.30 and a date of operation of the award variation giving effect to his decision of; "the first full pay period to commence on or after 21 January 1986." The F.E.D.F.A. appealed all three aspects of the decision, i.e.:-
At the commencement of the appeal proceedings on 7 March 1986, Mr. Holden appearing for the F.E.D.F.A., advised of a material change in circumstances since the lodging of the appeal. The material change in circumstances being; that the major company, in the context of the employment of Boiler Attendants, Clements and Marshall, is now respondent to Federal Awards. The result being that Commissioner Watling's decision no longer has any effect on that Company. The sequel of this development is that the F.E.D.F.A. no longer wished to proceed with the appeal against the inclusion of the classification in the Award. However, it intended to proceed with the appeal as it relates to the other two matters. As a preliminary matter Mr. Edwards appearing for the T.C.I. submitted that the appeal should be dismissed and that further proceedings were not necessary or desirable in the public interest. He contended that the F.E.D.F.A. decision not to proceed with the appeal against Commissioner Watling's inclusion of the classification "Boiler Attendant" in the award, added weight to the T.C.I. submission that the appeal was vexatious and frivolous. It was also submitted by Mr. Edwards, that as Commissioner Watling in determining the rate clearly foreshadowed a fresh application being submitted to allow the rate to be thoroughly tested, the appeal could only be considered as trivial. A further preliminary argument went to the possible introduction of evidence or material which had not been previously available to Commissioner Watling. Following an adjournment to consider both matters the Commission made the following announcement:
I can indicate that the Bench is divided in its view on the question or not of proceeding. The majority view of this Bench is that the appeal before us should not be dismissed as being vexatious or frivolous, but that we should proceed to hear it. We are unanimous on the other question that no new material not before Commissioner Watling should be introduced into this hearing."
It is important to note that the determination of this appeal, whether successful or not, will have no immediate or foreseeable effect, in terms of wage rates paid, on the employees now covered by the Award. Their total rates are well in excess of the Award rate determined by Commissioner Watling and those total rates have been increased by indexation movements, both before and after award coverage applied. In these circumstances it is not difficult to understand and in fact have sympathy for the threshold argument of the T.C.I. that the appeal is trivial. However, the F.E.D.F.A. consider there is a principle involved which will be put to the test by this appeal. The three grounds of appeal relied on by the Union, contained in Annexure A to the "Notice of Appeal" are: "8. The Commission erred in failing to give any weight, or sufficient weight, to the submission that in the event the Commission proceed to make an Award, the rate of pay and operation date should be as proposed by the Applicant, namely $259.60 per week operative from 3 November 1985. 9. The Commission erred in that it failed to reach a decision in accord with the whole of evidence. 10. Such other grounds as to the Commission appear just." A summary of the F.E.D.F.A. submissions in support of the appeal is as follows:-
Mr. Holden concluded his submission by indicating his preferred position, which is that the appeal should be upheld by the restoring of the offered rate of $259.60 from 3 November 1985. However, for practical reasons he would not be opposed to a date of operation of 21 January 1986 provided the $259.60 was increased by 3.8% to $269.50. Mr. Edwards appearing for the T.C.I. opposed the granting of the appeal. A summary of the main points relied on by Mr. Edwards is:-
Mr Edwards did not resile from submissions put by the T.C.I. in proceedings before Commissioner Watling. As I believe they are crucial to the determination of this appeal I will quote his primary position from transcript:- "Mr Edwards: The rate we have claimed also in our submission, meets the negligible cost criteria of the Principles, in that it is no more than a reflection of the rate being paid (in this case, at Clements and Marshall, which we understand is paying the highest rate in the industry to Boiler Attendants), and will not therefore occasion any increased rate to any employee."
NOTE: The above submission was corrected at a hearing convened for that purpose on 17 January 1986 to the extent that the word "highest" to read "lowest." and further down the page: "Mr Edwards: Therefore I again contend that there will be no additional cost to employers by their formal adoption by the Commission. And clearly therefore, no breach of the Wage Fixation Principles in that regard arises." and "Mr Edwards: We also submit, Sir, that there would be no bar to our application arising from Section 36 of the Industrial Relations Act 1984; in that I contend that is very much in the public interest that this application be granted in the form in which it has been presented, in that it seeks to regulate by award prescription those matters which had already been agreed in the field between employers and employees, in that they reflect the current wage rates and conditions of employment." and "Mr Edwards: For the sake of the record, Sir, and so that you may be satisfied as to Section 36 of the Act, I do advise that there will be no effect on the economic position of this or any other industry, as a result of the granting of the application and there will be absolutely no effect on the economy of Tasmania or on employment levels. Thus, in our view, Section 36 does not provide any bar to the grant of our claim. And we say that simply because it is a reflection of the existing provisions."
Earlier in his submission to Commissioner Watling, Mr. Edwards had dealt in some detail with the appropriate Principle under which his application could be processed. That Principle he maintained was Principle 10 - First Awards and Extensions of Existing Awards, and in particular Principle 10(b). It was his submission that the rate had been assessed having regard for "the value of work covered by the Award." The only response to Mr. Edward's submission on the merit of the wage rate put forward by him before Commissioner Watling is recorded as follows: Mr Holden: "..., which is why I said that if you are to override our submission and still go ahead and insert the classification as claimed by the T.C.I. we would object to a rate simply based on the evidence which has been put."
While Mr. Edwards relied on the above to demonstrate that the Union opposed the rate proposed by the T.C.I., I cannot accept that it can be read into the above that the F.E.D.F.A. opposed the rate on the basis that it was too high. What the above clearly means is that while there was no agreement on the rate which should go into the award, (for obvious reasons) there was no submission that the rate should be less than that proposed by the T.C.I. The fundamental question to be answered in this appeal is whether or not in the above circumstances it was open to Commissioner Watling to arrive at the decision he did. That decision effectively reducing the rate proposed by the T.C.I. by $24.20 per week. The requirements laid down by the Industrial Relations Act 1984, on the Commission in dealing with matters before it, are contained in Section 20, the relevant parts of which read: "20. (1) In the exercise of its jurisdiction under this Act, the Commission - (a) shall act according to equity, good conscience, and the merits of the case without regard to technicalities or legal forms; (b) shall do such things as appear to it to be right and proper for effecting conciliation between parties, for preventing and settling industrial disputes, and for settling claims by agreement between parties; and (c) shall have regard to the Public Interest. It would seem to me in the light of the above that if an agreement or proposal put forward by a party or parties can be sustained on the merit and does not offend the Public Interest or the Wage Fixing Principles, the party or parties should reasonably expect that their agreement or proposal would be endorsed by the Commission. The F.E.D.F.A.'s position in this case would of course be stronger if there had been agreement on the rate to go into the award. However the lack of agreement does not in my view substantially alter the application of the tests enunciated above. Mr. Holden in proceedings before this Bench was quick to concede that if an agreement or proposal put forward by parties or a party offended the Wage Fixing Principles or the Public Interest there was a discretion available to the Commission to do something different. However it was his view that the submissions in the matter before Commissioner Watling could not be interpreted in such a way that the T.C.I. proposals, going to wage rate and date of operation were against the Public Interest or the Wage Fixing Principles. I agree with that view. The facts which support that position are:
Having accepted that the T.C.I. proposals were not contrary to the Wage Fixing Principles or the Public Interest and in the absence of opposing submissions, I believe it was not open to Commissioner Watling to conclude as he did in relation to the wage rate. I would therefore uphold the appeal by the F.E.D.F.A. in relation to the wage rate aspect. Although nothing hangs on it I would determine the date of operation for practical reasons only, as the first pay period commencing on or after 21 January 1986. Having had the benefit of reading the respective decisions of my colleagues it transpires that this is a dissenting decision. It therefore has no effect and an order is not necessary.
J.G. King | ||||||||||||||||||||||||