TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.70 appeal against decision

Federation of Industrial, Manufacturing and Engineering Employees,
Tasmania Branch
(T.3578 of 1991)

TASMANIAN GOVERNMENT DEPARTMENTS (MECHANICAL AND ELECTRICAL)
ENGINEERING AWARD

Award interest determination

REASONS FOR DECISION

This was an appeal made under Section 70 of the Act by the Federation of Industrial, Manufacturing and Engineering Employees, Tasmania Branch (the FIMEE) against a decision of the Commission in matter T3036 of 1991. In that matter Commissioner Watling sitting alone, decided not to include the name of the FIMEE in the parties and persons bound clause of the Tasmanian Government Departments (Mechanical and Electrical) Engineering Award (the Award).

Soon after the opening of the hearing the FIMEE sought to amend its grounds of appeal by deleting the reference to Section 63(10)(C)(i) and (II) of the Act.

The grounds of the appeal were stated in the application as follows:

"1. The Commissioner erred by failing to give due consideration to the Applicant's submissions regarding the history of membership within the employment scope of the award.

2. The Commissioner erred by placing undue weight on the submissions of the objector, the Metal and Engineering Workers' Union Tasmanian Branch, as to the likelihood of the industrial disputation should application be granted.

3. The Commissioner failed to give due weight to the evidence that members of the applicant had a history demonstrating the ability to work in industrial harmony with other industrial parties.

4. The Commissioner erred in making a decision which denies members of the Applicant, employed within the scope of the award, the right to proper representation under the Industrial Relations Act, 1984.

5. The Commissioner failed to place due emphasis on the submissions of the applicant that it satisfied the criteria as set out under S.63(10)(C)(iii) for declaration of interest in the Award.

6. The Commissioner erred by placing undue emphasis on submission that competition for coverage of employees is likely to occur between the applicant and the objecting union.

It seemed to us that the keystone of the FIMEE arguments on appeal was the Commissioner's alleged failure to acknowledge the submissions and evidence put to him that the FIMEE, whether in its amalgamated form or as the Federated Ironworkers Association or the Australasian Society of Engineers (the ASE), had a history of membership and activity in the area of the Award and, relying on that history and the State Secretary's assurance that (in the foreseeable future) it would not be active or canvass for members outside that historical area. The FIMEE submitted that it was wrong for the Commission to deny the granting of interest on the basis of simple albeit "vigorous" competition between unions in pursuit of wages and conditions for their members.

The FIMEE implied or stated that the Commissioner was wrong in assessing that there would be conflict between the unions if the FIMEE was granted interest - there was not evidence for such a conclusion the FIMEE said.

The FIMEE also submitted that the Commissioner was wrong in refusing to consider the historical role of the ASE on the basis that it no longer existed. The FIMEE submitted that the decision was unsound in that due weight was not given to that factor.

The Metals and Engineering Workers' Union (the MEWU) opposed the appeal in particular submitting that:

• The commissioner was quite correct in that he sought assurances as to the FIMEE's intentions to compete against the MEWU and also sought unsuccessfully to have the unions reach agreement on demarcation. He clearly took the responses into account in his decision and as a result was not satisfied that the orderly conduct of industrial relations would not be prejudiced.

• The MEWU had the overwhelming majority of members and the FIMEE (or the ASE) had a poor record of industrial activity in the area.

• The FIMEE had not satisfied the general principles previously outlined by the Commission as necessary for an appeal to succeed.

We are satisfied that the key factor in this appeal is whether or not the Commissioner erred in deciding, under Section 63(10)(C)(iii), that the orderly conduct of industrial relations in Tasmania would be prejudiced by the granting of interest in the Award to the FIMEE.

There is no doubt that in this matter the Commissioner in accordance with the provisions of the Act had full discretionary powers. In his discretion he decided in the circumstances that the FIMEE, in failing to reach a demarcation settlement and in declining to forsake its right to organise in this area of its coverage, ought not be granted an interest in the Award. In his discretion the Commissioner was of the view that the granting of interest to the FIMEE would be prejudicial to the orderly conduct of industrial relations in Tasmania.

We are satisfied that the Commissioner canvassed the issues put before him, gave due weight to the various factors involved and properly decided the matter in accordance with the provisions of the Act.

We are unable to find that any of the grounds of appeal are sustainable.

The appeal is dismissed.

Appearances:
J. Barron with S. Pablic for the Federation of Industrial, Manufacgturing and Engineering Employees, Tasmania Branch.
P. Baker for the Metals and Engineering Workers' Union.

Date and Place of Hearing:
1992.
Hobart:
January 29.