TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.70 appeal against decision

Tasmanian Confederation of Industries
(T.4064 of 1992)

Appeal against decision in matter T.3875 of 1992 - Automotive Industries Award - scope clause - appeal dismissed

REASONS FOR DECISION

In this matter the Tasmanian Confederation of Industries (TCI) has appealed a decision of a Commissioner sitting alone to include a specific provision in an award pursuant to Section 70 of the Industrial Relations Act 1984. More specifically the TCI appealed the Decision¹ of Imlach, C., on 13 October 1992, to vary the Automotive Industries Award by extending on the scope clause of the award to include the following:

"automotive roadside service" and

"driving school instruction"

The matter now appealed follows earlier proceedings concerning two separate applications in which the Metals and Engineering Workers' Union (MEWU) unsuccessfully attempted to first of all have the Royal Automobile Club of Tasmania (RACT) recognise it, and secondly to have a new award made in respect of the RACT and itself. The RACT and the Australasian Society of Engineers, Tasmanian Branch (ASE) had obtained registration of an agreement before the ASE was voluntarily de-registered as an organisation within the meaning of the Act.

Whilst the RACT employed both driving school instructors and roadside service personnel, the TCI contended that no relationship of "master and servant" existed in respect of other providers of driver instruction and it was unlikely that "automotive roadside service" was provided by anyone other than the RACT.

The TCI also argued that the Commissioner erred by concluding that it was possible that employees may exist which justified amending the award in the manner sought.

Section 33(1) of the Act provides that:

"The Commission may make an award in respect of -

a) All or any private employees employed in an industry; ...."

Clearly there are private employees employed in the industry of providing automotive roadside service and driving school instruction. As a consequence we conclude that it was within the Commissioner's discretion to extend the Automotive Industry Award in the way that he did, even though there may be only one employer who can be positively identified.

The TCI further argued the Commissioner erred by deciding it was necessary to vary the award to provide a floor for the "RACT Agreement" because of a possibility that the Agreement could fall down at any time or could be declared null and void for reasons outside the jurisdiction of the Commission.

We conclude that given the prevailing circumstances this particular reason for decision recognises a possibility which is self evident.

Finally the TCI alleged and emphasised that the Commissioner erred in justifying his decision based on the absence of any restriction under Section 60 of the Act. This section provides that:

"60 - While an industrial agreement remains in force with respect to an employer, its provisions prevail over any provisions of an award that relate to the same subject matter as those first-mentioned provisions and that apply to persons in this employment."

We would not disagree with such a proposition if it constituted either the sole reason or a significant reason in the matter before Imlach, C.

However we are of the view that since Section 60 of the Act was raised by the TCI as being useful to one of its arguments as to why an award should not be made, the Commissioner had every right, if not a duty, to respond to that part of the employers' case.

We believe therefore the connotation placed on this "reason" is ill-founded.

Accordingly it is our decision to dismiss the appeal.

Appearances:
Mr S Clues for the Tasmanian Confederation of Industries
Mr P Baker for the Metals and Engineering Workers' Union

Date and Place of Hearing:
1992
Hobart
December 9