T4000
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Metals and Engineering Workers' Union METAL AND ENGINEERING INDUSTRY AWARD
Appeal against decision of Commissioner REASONS FOR DECISION In this matter the Metals and Engineering Workers Union, (MEWU) has appealed against a decision of a Commissioner sitting alone to include a specific provision in an award pursuant to Section 70 of the Industrial Relation Act 1984. The decision1 concerned was handed down by Commissioner Imlach on 28 August 1992 and granted an application by the Tasmanian Confederation of Industries (TCI) to delete the "Right of Entry of Union Officials" provision contained in the Metal and Engineering Industry Award and replace it with another, differently worded provision as follows: "RIGHT OF ENTRY OF UNION OFFICIALS (a) For the purpose of interviewing or conducting meetings of employees in connection with any of the business or affairs of the organisation an authorised representative of a registered employee organisation may, subject to reasonable conditions set by the employer, enter any factory, shop, office or other premises or land in or which an employer to whom this award applies carries on business. (b) The representative shall make contact with the person in charge of the factory, shop, office, premises or land or other such persons appointed by the employer. (c) If any employer alleges that a representative is unduly interfering with the work or is causing dissatisfaction among the employees or is offensive in their manner, or is committing a breach of any of the conditions set out in this clause, such employer may refuse to allow the representative to enter into or to remain on the premises, but the representative shall have the right to bring such refusal to the attention of the Tasmanian Industrial Commission who will arbitrate on the dispute. (d) If requested, an official must produce a copy of the declaration of secrecy required by Section 77(3) of the Industrial Relations Act 1984 signed by the official, before any inspection of times and wages records. The right of entry provision replaced by the Commissioner's decision had only been contained in the Metals and Engineering Industry Award for a matter of weeks after being included as a consent variation when it was made the subject of a further application by the TCI as one of the earlier consenting parties. In his `Reasons for Decision'2 the Commissioner explained the applicant's case for a further review thus:
Later in his decision the Commissioner said at page 3:
In coming to this conclusion as one of the bases for justifying his decision we believe the Commissioner has not taken proper account of the provisions of Section 77 of the Industrial Relations Act 1984 and to that extent he has erred. That part of the Act provides, inter alia, that:
In our view the statute gives a right of entry to an officer of an organisation of employees engaged in an industry or employed in an agency etc., subject only to any conditions prescribed in an award or the regulations. TCI had objected to the part of the original award clause which contained a provision that, inter alia:
We believe the Commissioner misdirected himself when he agreed to change this part of the clause to require representations to be made only to "the person in charge" on the basis that the original wording is totally consistent with Regulation 25 which provides as follows:
Whilst TCI argued before us that it was within the Commissioner's discretion to review the clause as he did and that accordingly we should dismiss the appeal, we have to conclude that the decision went beyond discretion. We have further decided that the Commissioner similarly erred by exceeding his charter when, in effect, he delegated to employers covered by the award the right to themselves set the conditions for entry when Section 77 provides that such conditions are to be prescribed in an award. Apart from the limitations imposed by Section 77, there is no general rule by which the jurisdiction and powers given to the Commission by Parliament can be transmitted to another. Finally, whilst not forming part of our decision, we feel compelled to highlight the unusual background circumstances to this case and comment upon them. In particular we note that there had been a comprehensive review of the award as a whole, including the right of entry clause; the award had been one of consent; and the award and the provision concerned had a life of only three to four weeks when it was made subject to a further review by one of the consenting parties. Whilst it would not be appropriate for us to address the question of merit we find it unusual that a party should reopen a matter to which it had recently agreed based upon what would appear to be merely a change of heart rather than some illustrative evidence of actual misuse; practicable difficulty; or other concrete grounds sufficient to warrant a further review. For all of these reasons the appeal is upheld and Order No 3 of 1992 affecting the, Metal and Engineering Industry Award is quashed.
Appearances: Date and Place of Hearing: 1 T No 3870 of 1992 |