In this matter the appellant Tasmanian Farmers' and Graziers Employers' Association has challenged the decision of Commissioner Watling in matter T.353 of 1986 on three grounds, namely:

1. That the Commissioner failed to understand some of the evidence;

2. That the Commissioner gave undue weight to some of the evidence;

3. That the Commissioner, despite in his decision stating he did not wish to tamper with formula, then proceeded to do so.

During proceedings Mr. Rice for the T.F.G.E.A. stated:

"The decision of the Commissioner to set a rate higher than the flock sheep rate for shearing certain goats, and to set a rate for different breeds of goats is the reason for this appeal."

Transcript, p.7

We have now read the transcript and studied the exhibits tendered during the original proceedings. After close consideration of the arguments presented by Mr. Rice in prosecution of the appeal, and those of Mr. Hanlon in defence of the Commissioner's decision, we have reached the following conclusions: -

1. The union did not seek to differentiate between animals producing cashmere or mohair, although there was ample opportunity for it to have done so had that been its intention.

2. While not "interfering" with the Federal Pastoral Award piece-work rates for shearing sheep, there is no doubt that the Commissioner departed from the accepted application of the formula in adapting it to apply to the shearing of goats. We are concerned that this may result in flow-on claims for the shearing of sheep.

3. The necessity for a terminology differential between "angora" and "kashmir" was not established. In fact apart from studs the "breeding up" process appears not to be complete in Tasmania. The evidence suggested that "goats are goats", but some can be bred up to produce cashmere while others produce mohair.

4. Perusal of the transcript suggests the Commissioner might have been well advised to have allowed information to be presented regarding service of a Federal log of claims in the pastoral industry. Had he done so it may well have occurred to him that that log, when prosecuted, could have facilitated a wider examination of goat shearing in Australia. If so, such an examination may have rendered unnecessary any determination of this matter at State level. We have come to this conclusion having regard for the fact that the State award simply mirrors the Federal prescription for shearing sheep. It would be reasonable to assume that in the event the Federal award were to include a piece-work rate for shearing goats (whether that award ultimately had application to all owners and breeders in Tasmania or not may not be of any moment) the State award may simply adopt the Federal rate for goat shearing as is the case in relation to shearing sheep.

5. Only two witnesses gave evidence regarding commercial shearing of goats. One preferred shearing goats to sheep and the other preferred sheep to goats. On the basis of that evidence it would be difficult to determine differential rates for animals producing different fibres.

6. While we are of the opinion the Commissioner fell into error in assessing the evidence, the fault was not entirely his. He appears to have exercised his discretion and did what he felt he could or should do on the evidence available. Had the points made during the appeal proceedings been made during the original hearing, it is possible that the Commissioner may not have reached the conclusions he did.

7. In our opinion to have done other than fix goat shearing rates at current sheep rates in the absence of wide-ranging evidence was inappropriate in the circumstances having regard for the fact -

(i) A Federal award may be made covering goats;

(ii) No other State or Federal Award currently prescribes a rate for goat shearing.

Conclusion

In all the circumstances we will allow the appeal in respect of the second ground of appeal.

In rejecting the other two grounds we draw attention to our comments as they pertain to the third ground of appeal.

On balance we have decided to refer the whole of the matter back to the Commissioner for further consideration regarding the appropriate rate to apply for "flock goats" regardless of the fibre they produce.

We also invite him to reconsider, in the light of the best evidence available, the entire question of the need to differentiate between goats producing mohair and those producing cashmere fibre or down.

To best facilitate what is contemplated by this decision we have decided to quash in toto the order issued by Commissioner Watling rather that just that part which is the subject of this appeal. This will allow an unfettered review of the whole of the matter should the Commissioner so decide.