Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T4000

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.70 application for notice of appeal

Metals and Engineering Workers' Union
(T.4000 of 1992)

METAL AND ENGINEERING INDUSTRY AWARD

 

FULL BENCH
DEPUTY PRESIDENT A ROBINSON
COMMISSIONER R J WATLING
COMMISSIONER R K GOZZI

11 November 1992

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:

"The Confederation sought the amendment because of a number of its employer members had voiced strong criticisms of the terms of the present Right of Entry provision which had been put into the Award as an agreed item during recent restructuring exercises. The employer members complained that the agreed clause gave too much latitute to union representatives. The Confederation's proposed amendment was said to restore the reasonable right of employers as to the entry of union representatives on the work sites.

Specifically the Confederation disputed the following conditions where:

    A representative "may enter during working hours" the employer's premises.

    Even though there was a qualification specified later in the Clause, the Confederation submitted that this provision was wrong in that it gave the representative carte blanche to enter in the first instance. The Confederation said that this took away the right of the employer to decide whether or not any person should be permitted into the work site and at what time such persons should enter.

    If the person in charge is absent or unavailable contact may be made with the person "apparently in charge" of the worksite.

    This provision was unacceptable also to the Confederation of the grounds that it was too general and vague, again giving too much latitude."

Later in his decision the Commissioner said at page 3:

"On the grounds that an employer has the primary and ultimate responsibility for the proper and efficient running of an industrial operation, a provision as to right of entry of union representatives ought to be premised by the unwritten statement that any employer has the right, or prerogative, to decide whether or not and under what conditions such representatives may enter the workplace."

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:

"77-(1) For the purpose of interviewing any employees in connection with any of the business or affairs of the organisation, an officer of an organisation of employees engaged in an industry, or employed in an Agency, within the meaning of the Tasmanian State Service Act 1984, or by a State authority, not being such an Agency, in respect of which the Commission has jurisdiction or to which an award applies may, subject to any conditions prescribed in an award or the regulations, enter, during any period so prescribed, any factory, shop, office, or other premises or land in or on which an employer to whom the award applies carries on business or employs any State employees."

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:

"(i) the representative shall make contact with the person in charge, or apprently in charge of the factory, shop, office or other premises or land; or

(ii) if the representative wishes to enter part of the factory, shop, office or other premises or land, to the person in charge, or apparently in charge, of that part;"

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:

"25(1) For the purposes of subsection (1) of Section 77 of the Act, it is, except as otherwise prescribed by a condition in an award, prescribed as a condition subject to which an officer of an organisation of employees to whom that subsection applies may enter any factory, shop, office, or other premises or land pursuant to that subsection that the officer shall identify himself -

(a) to the person in charge, or apparently in charge, of the factory, shop, office, or other premises or land; or

(b) if the officer wishes to enter part of the factory, shop, office, or other premises or land, to the person in charge, or apparently in charge, of that part."

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:
Mr S Clues for the Tasmanian Confederation of Industries.
Mr F Baker for the Metal and Engineering Workers Union.
Mrs H Dowd for the Federated Clerks Union of Australia, Tasmania Branch.

Date and Place of Hearing:
1992
Hobart
October 29, 30

1 T No 3870 of 1992
2 Ibid