TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.70 appeal against a decision by Commissioner in T2971 of 1991

Federated Miscellaneous Workers Union of Australia
(T3755 of 1992)

INDEPENDENT SCHOOLS (NON TEACHING STAFF) AWARD

Appeal against decision of Commissioner

REASONS FOR DECISION

On 21 February 1991 the Federated Miscellaneous Workers Union of Australia, Tasmanian Branch, (FMWU), submitted an application, T No. 2971 of 1991, in accordance with Section 24 (2) of the Industrial Relations Act 1984, to vary the Boarding Schools and Student Hostels Award. In summary the application sought -

(a) to change the title of the award to the "Independent Schools (Non Teaching Staff) Award";

(b) to change the scope of the award;

(c) to insert a new eight-grade classification structure including wage rates, relativities and definitions.

In an interim decision of 1 October 1991, Commissioner Imlach issued an order establishing a new title and scope which had been agreed by the parties. The remainder of the claim was to be further negotiated and the file was "kept open to allow hearings to resume at the request of one or all of the parties".

On 24 March 1992, after further hearings, Commissioner Imlach handed down a decision which -

(a) granted the second structural efficiency adjustment (i.e up to 3.0% wage increase) available under the 1989 Wage Fixing Principles, and the 2.5% increase and associated provisions in accordance with the August 1991 State Wage Case decision;

(b) inserted the new classifications and definitions;

(c) inserted an agreed minimum rates adjustment process to commence from 1 January 1992, and

(d) dealt with seven issues proposed by the Tasmanian Confederation of Industries, which had not been agreed by the parties, but on which the parties jointly requested arbitration.

An Order giving effect to these decisions was issued simultaneously.

Of all the issues determined by the Commissioner, the union was concerned in particular with the decisions to insert a definition of part-time employee, a loading for part-time employees, and a loading for casual employees. The appeal application, as amended at the commencement of these proceedings, contained the following grounds of appeal:-

"1. The Commissioner erred in that he failed to have proper regard for the evidence before him.

2. The Commissioner erred in that he failed to have proper regard for the submissions of the parties before him.

3. The Commissioner erred in that his conclusions are reached without proper regard for the wage fixation principles established by the Commission.

4. The Commissioner erred in that he failed to have proper regard to the principles of equity and good conscience in reaching the decision he did.

5. The decision of the Commissioner was not reasonably open to him on the material before him, nor was it limited to the subject matter of the application.

6. The decision of the Commissioner erred in regarding the variations sought to be made to the award as the replacement of a `prior award' by a `new award'.

7. The Commissioner erred in that he failed to have proper regard for rates of pay and conditions in existence in the industry.

8. The decision of the Commissioner to reduce loadings for part-time and casual employees was made without proper or apparent reason on the face of the decision.

9. The decision of the Commissioner to include a part-time definition which differs markedly from the submissions of any party is not reasonably open to him as it was never canvassed during the hearing.

10. The departure of the Commission from the parameters of the matters put before the Commission for arbitration is unjust and unwise. The Commissioner should have given the parties the opportunity to withdraw from the package of agreed measures which surrounded the matters not agreed upon, determining that he intended to reach a conclusion not supported by any party in the proceedings before him.

11. The Commissioner erred in that he failed to have regard for the fact that his decision had seriously undermined the package of measures agreed upon between the parties.

12. The decision should not be allowed to stand as it is unfair, unjust and inequitable.

13. Such further or other reason as the Commission may deem fit."

Although the FMWU dealt with the Grounds of Appeal seriatim, we intend to deal first with Ground 5, in particular that part of Ground 5 which alleged that certain parts of the Commissioner's decision were not open to him to determine as the subject matter did not form part of the application.

The appellant claimed that the parts of the decision of 24 March 1992, which were of concern, notably those dealing with part-time and casual loadings and certain definitions were not referred to in the subject matter of Application T No. 2971 of 1991. An examination of the application clearly indicated that to be so. The application was not amended during the hearings to include those subjects which were subsequently arbitrated at the request of the parties.

The FMWU submitted that Section 24(5) of the Act permitted the Commission to make an award in relation to the subject matter of the application only. The union conceded that its argument was technical in nature, but if it was found to be correct the appeal should be upheld on the second part of Ground 5 alone.

The Confederation argued that "subject matter", in relation to Section 24(5), meant the award which was to be varied, not the particulars of the claim. The Commission's attention was drawn to Form 1 in Schedule 1 of the Industrial Relations Regulations, to demonstrate this assertion.

It was claimed that section 13(2) of the Act gave a Commissioner sitting alone all the powers and jurisdiction of the Commission and therefore the Commission, however constituted -

(a) could "regulate its own procedure" [Section 21(1)];

(b) was "not restricted to the specific claim made or to the subject matter of the claim" [Section 20(3)];

(c) could allow an "amendment, on such terms as it thinks fit, of those proceedings or a document relating to that matter" [Section 21(2)(k)]; and

(d) could "correct, amend, or waive any error, defect or irregularity [Section 21(2)(1)]; and

(e) could "do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter" [Section 21(2)(n)].

The Confederation contended therefore that the Commissioner had ample support from the legislation to deal with the subject matter placed before him by the parties.

The union argued that the powers referred to by the Confederation were general powers and had to be read down by the specific requirements of the Act contained in Division 3 - Proceedings before the Commission, which, specifically set out how proceedings before the Commission were to be conducted.

FINDING

Section 23 (1)(b) of the Act requires an application for an award, or for a variation of an award, to contain the name of the award sought to be made or varied. This section of the Act was complied with as the original application sought to vary the Boarding Schools and Student Hostels Award.

Section 23 (1)(d) of the Act requires an application for an award, or a variation to an award, to contain a statement giving full particulars of the award sought to be made or varied. The applicant complied with this section of the Act in the manner described earlier in this decision.

Section 24(5) of the Act states:

"After conducting a hearing into an application made to him under this section, a Commissioner may, subject to section 36, make an award in relation to the subject-matter of the application."

We agree with the submissions by the union that Section 24(5) specifically directs a Commissioner's attention to the requirement that an award may only be made in relation to the subject matter of the application.

In the circumstances it follows that it was open to the Commissioner to make an award only in relation to the matters contained in the application. They were:-

1. title;
2. scope; and
3. classification structure and related definitions, together with wage rates and relativities.

Accordingly, we find that the Commissioner erred in proceeding to determine the following matters which were not the subject of application T2971 of 1991. They are:

1. The 2.5% increase arising out of the August 1991 State Wage Case decision;

2. A provision for time off to be taken in lieu of payment of the penalty for working Saturdays, Sundays and Public Holidays;

3. A provision to enable the employer to direct an employee to carry out certain duties;

4. Enterprise flexibility provisions;

5. Two definitions for part-time employees;

6. Additional payment for part-time employees;

7. Casual loading;

8. Special annual leave provisions for some school services employees;

9. Payment of wages.

We make this finding notwithstanding the acknowledgement by the parties that they had requested the Commissioner to arbitrate all outstanding matters.

Having reached this conclusion we uphold the appeal on the second part of Ground 5 alone and quash those parts of the Commissioner's order, dated 24 March 1992, which varied the Independent Schools (Non Teaching Staff) Award (previously known as the Boarding Schools and Student Hostels Award) to give effect to the subject matters contained in points 1 - 9 mentioned above, which were not contained in the subject matter of Application T No. 2971 of 1991.

Given our ruling on this Ground we see no need to make any finding in relation to the other Grounds of Appeal.

The order giving effect to this decision will be drawn by Commissioner Imlach.

Appearances:
Mr K O'Brien for the Federated Miscellaneous Workers Union of Australia, Tasmanian Branch
Mrs H Dowd for the Federated Clerks Union of Australia, Tasmanian Branch
Mr P Targett for the Tasmanian Confederation of Industries

Date and place of hearing:
1992
Hobart
May 11
June 19