T6639
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Australasian Meat Industry Employees Union,
Appeal - declaration by President Westwood on 12 November 1996 in matter T6257 of 1996 - meaning of proviso re apprentices wage rates - appeal dismissed - declaration confirmed REASONS FOR DECISION Towards the end of 1996 the Tasmanian Chamber of Commerce and Industry Limited (TCCI), an organisation with members subject to the relevant award, applied to the President pursuant to Section 43 of the Industrial Relations Act 1984 for an interpretation of Clause 8 - Wage Rates, Division I - Apprentices of the Abattoirs Award. More specifically, in terms of the Act, the application sought of the President "a declaration on how (the proviso to Division I) is to be interpreted". The award expresses the particular proviso in the following terms:
Section 43(1A)(a) of the Act specifies that, concerning such applications and among other things, "the President must declare, retrospectively or prospectively, how the provision of the award is to be interpreted ...". In satisfaction of that duty the President appended to his written Reasons for Decision of 12 November 1996 the following declaration, effective "from the first full pay period to commence on or after 27 January 1994":1
It is against this declaration that The Australasian Meat Industry Employees Union, Tasmanian Branch (AMIEU), an organisation whose members are affected by the declaration, now appeals pursuant to Section 70(1)(f) of the Act. The Notice of Appeal, as lodged on 3 December 1996, nominates the following grounds:
When proceedings commenced before us on 13 February 1997, two procedural issues of a threshold nature fell for immediate determination. In the first place Mr A Cameron, appearing for TCCI, submitted that the grounds of appeal, as set out in the Notice of Appeal, are without substance since they contain no valid reasons why the President allegedly erred. Rather, Mr Cameron contended, the grounds merely express the Union's disagreement with the President's declaration to the extent that he did not agree with AMIEU's submissions at first instance. In the circumstances, Mr Cameron argued, we should dismiss the application pursuant to Section 21(2)(c)(i) of the Act because it is trivial in nature. When pressed by us to explain how this Bench might invoke any of the powers set out in Section 21(2)(c), given the more specific provisions of Section 71(13) of the Act concerning what a Full Bench may do on hearing an appeal, Mr Cameron contended that the general powers of Section 21(2)(c) would override the terms of Section 71(13) which are particular to the appeal process. Replying for AMIEU, Ms F Robinson opposed the threshold application, submitting that the appeal grounds do contain substance in that they seek to move this Full Bench to determine whether the President erred in concluding that he should make the declaration now under appeal. Ms Robinson went on to concede, however, that as a matter of more abundant caution the grounds of appeal should include "a statement to the effect that insufficient weight was given to the proceedings before Commissioner Gozzi in January of 1994 and his decision in those proceedings ...". Accordingly, Ms Robinson sought leave to amend the grounds of appeal to that effect, at the same time informing us that this ground would be "probably the only basis of the appeal that I will be putting before you today". It is this application that comprises the second of the two procedural issues put to us at commencement of these proceedings. At this juncture, in response to a question raised by Ms Robinson, we expressed doubt about our capacity or that of the parties, even in the presence of consent, to waive perceived questions of jurisdiction. Furthermore, we observed, an application to amend the grounds of appeal as lodged, particularly if viewed as a substantial rather than merely cosmetic amendment, might arguably constitute, in effect, an application to extend the time for lodgment of an appeal, contrary to the provisions of Section 21(2)(m)(i) of the Act. That is to say, we suggested, it may be arguable that the application seeks to insert a new ground of appeal which was not one lodged within the prescribed 21 day appeal period2 and of which the employer has had no appropriate notice. After taking time to consider the issues, Ms Robinson submitted that the proposed amendment would not constitute a fresh ground of appeal. It was, she said, merely an amendment and just that and, as such, one which the Commission could allow in terms of Section 21(2)(k) of the Act, ie "the amendment, on such terms as it thinks fit, of those proceedings or a document relating to that matter". In addition, Ms Robinson contended, since the core of the appellant's argument in the present matter would go to the matter of weight to be given to proceedings before Commissioner Gozzi, the proposed amendment could not disadvantage the respondent because the relevant materials were exhibited and discussed in the course of proceedings before the President. In any event, Ms Robinson submitted, even if the Commission rejects the amendment application, it should still proceed to hear and determine the appeal because the Notice of Appeal comprehends the thrust of the Union's argument. Mr Cameron objected to the application on the basis that the proposed amendment constituted a substantial change to the grounds of appeal as lodged. He contended that, in the circumstances, the limitation imposed by Section 21(2)(m)(i) would apply because the suggested ground of appeal is not one of those contained in the Notice of Appeal lodged and served in accordance with Section 71 of the Act. Furthermore, he continued, the President dealt with the Gozzi proceedings, both on the day and in his Reasons for Decision. Mr Cameron concluded by urging us to reject the application to amend the grounds of appeal and to then dismiss the proceedings entirely because the appeal has no substantive basis. After retiring to consider the parties' submissions we determined the two procedural issues in the following manner:3
We add here, merely for purposes of completeness that, during the course of the debate that ensued in relation to the above-mentioned procedural questions, we disposed of Ground 3 of the Grounds of Appeal on the basis that "this Commission is not vested with the general jurisdiction to act of its own motion".4 In inviting the appellant to proceed we indicated to the parties that, pursuant to Section 71(9) of the Act, we would hear argument on the issues raised by the respondent. Before going on to deal with those issues it is helpful to record, briefly, the circumstances which initially brought the matter before the President. In February 1995, by way of individual contracts of training, Devonport City Abattoir provided a number of persons with apprenticeships in slaughtering. The Abattoirs Award prescribes the weekly wage rates for such apprentices by reference to certain percentages of the relevant tradesperson's weekly wage rate.5 In March 1996 AMIEU commenced proceedings in this Commission pursuant to Section 29 of the Act, claiming that the apprentices concerned are underpaid in terms of award entitlements.6 The basis of the Union's claim is that, in terms of the proviso to Division I of the award,7 the employer has not provided the required "accredited off-the-job technical training". It is those proceedings that gave rise to the matter now under appeal. We include this historical recital merely to put the current proceedings into context. In so doing, we do not overlook Mr Cameron's opening admonition to keep in mind that circumstances surrounding Devonport City Abattoir and its operations were put to the President merely as background to show why the particular proviso now requires interpretation. That advice, he said, was conveyed to the President at the time. Mr Cameron urged us to disregard those circumstances in the context of this appeal, since what was before the President was a question of interpretation of the Abattoirs Award concerning how that award should apply in the abattoir industry. The application did not invite the President to determine an interpretation in relation only to the Devonport City Abattoir. So much for introductory observations. In support of her contention that the Notice of Appeal does comprehend grounds of substance, Ms Robinson submitted that the President erred when he interpreted the award in the terms set out in his declaration. In particular, she contended, he erred in that part of his interpretation that asserts training "must be provided before the expiry of the contract" of training. To the contrary, AMIEU argues that a proper construction or interpretation of the proviso shows that an employer must provide the relevant training from commencement of, and concurrently with, each contract of training. It follows from this view, in the Union's mind, that for any period, or periods, during which an employer does not provide the relevant training, the apprentices involved will accrue an entitlement to the appropriate tradesperson's rate of pay. Mr Cameron, for his part, submitted that the decision under appeal, in the quoted observation from Mr Edwards (then appearing for TCCI) that "you could potentially have an apprentice in your employ for four years and only provide training in the last year", 8 clearly shows that the President was fully aware of the problem that is the focus of the Union's case in these proceedings. Mr Cameron said TCCI conceded in its submissions that such an interpretation "makes no sense at all", an observation that also found its way into the President's Reasons for Decision.9 The Union, he said, also took the view that it was an inappropriate outcome. However, Mr Cameron continued, notwithstanding those remarks, which he plainly considered in the context of all the circumstances, the President took the decision against which the Union now appeals. Going to the 1994 proceedings before Commissioner Gozzi,10 Ms Robinson argued, referring to the relevant transcript, that the case illustrates the need perceived at that time by both AMIEU and the Meat and Allied Trades' Federation of Australia (MATFA) to take steps to ensure that employers in the industry could neither exploit young persons nor displace permanent employees with trainees and apprentices. So much, she said, reflects also in the Commissioner's subsequent decision where he records that:11
The proceedings before Commissioner Gozzi clearly demonstrate, Ms Robinson submitted, that the parties had a certain set of circumstances in mind when they moved the Commission to insert the Division I proviso into the award. In view of this background, Ms Robinson went on to suggest, it was incumbent upon both the parties to the award and the President, in the proceedings before him, to make sense of the proviso under an entirely different set of circumstances that they, the parties, did not at the time foresee. Mr Cameron acknowledged the intention of the parties, in the proceedings before Commissioner Gozzi, concerning employment of apprentices. However, he said, the Commissioner's decision shows that, while accepting "the thrust of the submissions of the parties" he nevertheless did so only after expressing "some reservation about the provisos requested to be inserted in the awards in question ...".12 The Commissioner's decision incorporating those remarks, Mr Cameron continued, was exhibited before the President in the proceedings at first instance. In the circumstances, Mr Cameron argued, it is clear that the President was fully aware of the reasons and circumstances that surrounded insertion of the proviso into the award. Coming further forward in time from the Gozzi case, Ms Robinson informed us that at the time of their appointment in February 1995, at the time of lodgment of AMIEU's Section 29 application in March 1996 and up to and including the last day of proceedings before the President in October 1996, there was no accredited off-the-job training in place for the relevant apprentices. There is no dispute between the parties, Ms Robinson said, about these facts. Ms Robinson went on to concede that "it would probably have been more appropriate for the parties to the award to seek to vary the award to take into account the changes that have taken place in training in this industry since 1994 ...". Regrettably, she said, that did not occur and it is now up to this Commission to determine what the proviso means and whether its interpretation should reflect consistency with the parties' stated intentions and Commissioner Gozzi's understanding and acceptance of the reasons behind the 1994 variation. The Commissioner's comments on the record, Ms Robinson contended, indicate that his understanding of the proviso was that it would have no relevance until such time as there was, in fact, accredited training available. Ms Robinson told us that the Union accepts that the MINTRAC13 course will comprise competency based training modules and may or may not, depending on the individual, require a four year period to complete. AMIEU does not suggest that an employer must deliver training on a weekly basis - indeed, there is no set time for completion of the training modules. What the Union does suggest, however, is that the period of training and the period of any contract relating to training should be concurrent - that is, the apprentice or trainee should be given an opportunity to complete the training within a reasonable period following commencement of the contract and to become competent in the necessary skills without undue delay. In so asserting the Union's position, Ms Robinson acknowledged the extremely difficult position of the parties, the President and this Bench in that there is nothing in either the evidence or by way of agreed submissions that provides any real detail of the proposed course. Mr Cameron agreed that, at time of the interpretation hearing, there was no approved accredited training program in place nor had there been during the preceding 18 months period. However, he said, the President was aware that, at the time of the hearing, an application was before the relevant authority for accreditation of the MINTRAC program, a training program particularly aimed at apprentice slaughterers. The state of the President's knowledge in this regard, Mr Cameron said, is demonstrated in his decision by the observation that:14
In the matter of the contracts of training, Mr Cameron acknowledged that they clearly set out the employer's obligation to make training available by reference to certain requirements set out in a "training schedule" attached to each. At the time the Devonport City Abattoir understood, wrongly as it subsequently transpired, that an accredited training course was then available. Mr Cameron said that, in this regard, the President had before him evidence showing that such requirements were the responsibility of the relevant training authority, which, since slaughtering was a prescribed trade, ought to have dealt with the issue before allowing the employer and apprentices to enter into contracts of training. But, even so, Mr Cameron submitted, when the President's declaration is read in conjunction with the contracts of training as they currently exist, copies of which were also exhibited in the interpretation hearing, it is unlikely, looking into the future, that a situation would arise where an apprentice would only receive training during the contract's final year of operation. In summary, Ms Robinson admitted to the difficulty of relating a time-based contract of training to a competency-based training scheme. However, she argued, the intention of the parties at the time they inserted the 1994 proviso into the award was to ensure that apprentices had concurrent training from day one of their period or contract of training. "Concurrent" in this sense, Ms Robinson explained, does not mean off-the-job training every week or every day or that when technical courses cease, the apprentices go up to the normal wage rate. It simply means that, in a structured, competency-based training program those things are taken into account. In the circumstances of this case, Ms Robinson concluded, the absence of any accredited training for the apprentices concerned between February 1995 and October 1996 calls into operation the proviso inserted into the award in 1994 because those circumstances clearly represent exactly the mischief that the parties sought to eliminate. Ms Robinson urged us to consider the Union's submissions. Mr Cameron, in his summary, contended that these circumstances show that, in the proceedings before him, the President was quite aware of the obligations of both employer and apprentices concerning the contracts of training. Indeed, he argued, the President made provision in his declaration to cover circumstances where an apprentice might not receive the relevant accredited "off-the-job" training. In conclusion Mr Cameron submitted that, in terms of the contentions argued on behalf of AMIEU in these appeal proceedings, the President was aware of and took into account all the circumstances and applied appropriate principles in determining the matter before him. Furthermore, he added, the Union had the opportunity at the original hearings to put to the President all their matters of concern. For all these reasons, Mr Cameron urged us to dismiss the Union's appeal. In determining this matter we go first to Mr Cameron's threshold objection regarding competency of the appeal grounds. In doing so, we necessarily revisit our procedural decision15 for the purpose of adding some additional relevant explanation. We decided to hear the appeal on two grounds: first, we doubt that there is power in a Full Bench, on appeal, to summarily dismiss proceedings in the manner suggested by Mr Cameron. In that context we believe, contrary to the view he pressed on us, that the specific powers of Section 71(13) prevail over the more general powers of Section 21(2)(c) of the Act. Consequently, we formed the opinion that, in the circumstances of this case, the powers of Section 21(2)(c) are not available to us. Our second ground supports this conclusion. Without going into the matter too deeply, it is enough to say that Section 71 of the Act is replete with references to "the hearing of an appeal".16 We think this is a clear direction to a Full Bench dealing with an appeal to hear the appeal on its merits. In these circumstances, therefore, we do not believe it is open to us to purport to dismiss the appeal without first hearing it as to the substantial merits. Having now heard the appeal, we are satisfied that Ground 1 of the Grounds of Appeal17 is sufficiently explicit to accommodate the substance of the appeal as sensibly argued by Ms Robinson. Accordingly, we find that, as Ms Robinson put it, "... the notice of appeal is the substance of the thrust of the Union's argument ...".18 For all the above reasons, therefore, we reject Mr Cameron's threshold submission that we should summarily dismiss the Union's application on the grounds that "... there is no substance to the grounds of appeal ...".19 As to appeal Ground 2, we accept the submissions of Mr Cameron that it is not a valid ground of appeal because:20
Accordingly, we dismiss this ground of appeal. It is now appropriate to turn to the contentions of merit. The President's Reasons for Decision record the essence of the debate that ran before him. TCCI submitted, in outline, that "... the wording of the proviso to Division I was vague and imprecise"21 and, concerning the words "who do not receive", is capable of "being applied to the past, present or future".22 To this submission the Union's response was that:23
However we note that, regarding the Union's reliance on the 1994 proceedings before Commissioner Gozzi, the weight of which comprises the focus of this appeal, no direct reference to the matter appears in the President's decision. On its face this brevity of construction, so far as it concerns the Union's submissions, might suggest some support for Ms Robinson's contention that "... the President did not give sufficient weight to the proceedings (and) the decision before Commissioner Gozzi".24 However, when we look at the transcript of proceedings before the President it becomes clear that his description of the Union's submission on this point is an omnibus phrase, designed to cover, briefly, the entire scope of the Union's arguments. We say this because, after putting its primary response,25 which is what the President's decision reflects, the Union goes on to explain its understanding of the parties' intentions and reasons in 1994 for the proviso - an explanation that takes the form of a continuous dialogue between the President and Mr Swallow (for AMIEU) that goes on for some time.26 During the course of that discussion the following exchange occurs:27
Then, a little later, the President rephrased his proposition to put it into context of the facts surrounding Devonport City Abattoir. In doing so he put the following to Mr Swallow:28
Further on still, the transcript discloses what Mr Swallow meant by the above somewhat ambiguous response, ie. "... the words of that proviso were put in and until such time the training was available, the apprentices employed in the interim get paid the full tote odds" - an expression we understand to mean, as correctly recorded by the President, "the employer should pay the tradesman's rate".29 Our point in referring to these particular exchanges is because, to our mind, they show beyond doubt that the Union put forward its point of view in a most emphatic and unambiguous way and that the President, by the very nature of his questioning, clearly entertained no uncertainty about the Union's position. Equally, it seems to us on the evidence, no doubt appears to arise about what was before the President regarding Commissioner Gozzi's 1994 proceedings. All the relevant considerations, we think, were put to the President by the parties. He was told of and had before him the relevant transcript of proceedings displaying the parties' jointly held views about the mischief they then sought to cure;30 from the same transcript, he was aware that the parties had reached their agreement as to the appropriate award variations in private conference, without disclosing the basis of their agreement;31 and he was aware from the decision of Commissioner Gozzi, which was also before him, that while the Commissioner expressed "... some reservation about the provisos ...", he did not explain the nature of those reservations, either in the transcript of proceedings or in his decision.32 The above observations satisfy us that the parties' competing views were clearly before the President and that, as we read the record of proceedings, he understood their purport. However, we note that despite the certainty of understanding possessed by AMIEU about the proviso's meaning, a certainty not shared by TCCI, the proceedings before Commissioner Gozzi disclose, on their face, heavy qualifications, which we mention above. Those qualifications raise serious doubts about the weight, in terms of reliability, that a tribunal might place on such proceedings in circumstances where, like those before the President, the relevant parties do not share a common understanding about some aspects of their original intentions. In addition to the above considerations, we are also mindful of the environment in which the parties invited the President to exercise his interpretative jurisdiction, ie. the "entirely different set of circumstances"33 that now apply and that "it probably would have been more appropriate for the parties to the award to seek to vary the award".34 In terms of Ms Robinson's reference to "the stated intention of not only the parties to the award but also Commissioner Gozzi's understanding of the reasons the amendments were sought"35, we accept that the record of proceedings before the Commissioner makes plain the nature of the problem that the parties both acknowledged and wanted to overcome and that the Commissioner's decision records his understanding of that intention.36
In this context, however, we think it is very important to set out quite precisely what the parties were dealing with in 1994. The following extracts of transcript from the proceedings before Commissioner Gozzi demonstrate quite clearly the nature of the mischief with which the parties were then dealing:
Ms Robinson then goes on to contend that:40
Even if this is a correct interpretation of what Commissioner Gozzi "saw", about which we think there must be some doubt because of the qualifications we mention above, we cannot see how it helps the Union in the present case. Clearly, neither the parties nor the Commissioner were contemplating, in early 1994, the "entirely different set of circumstances" that arose subsequently and to which Ms Robinson correctly refers. Those circumstances were, of course, the shift from concurrent time-based contracts of training and vocational training to time-based contracts of training accompanied by competency-based training schemes. In our view the intention of the parties in 1994, to put it briefly, was to compel employers of apprentices in the meat industry to provide those employees with "appropriate technical training" and to thereby eliminate the practice of employing apprentices, without training them, as a cheap labour option. There is nothing on the record in the Gozzi proceedings that we can see (since we cannot know what was said or done off the record) which supports the Union's contention in the current matter that commencement of a contract of training and commencement of actual training must be concurrent. The real focus of the parties and the Commissioner, as we have said, was on the provision of "appropriate technical training" rather than on the timing for delivery of that training. In the proceedings before both the President and us there is nothing to suggest that appropriate competency-based training will not be available during the life of the contract of training. To the contrary, the evidence is that such training will be available, if it is not already available.41 We agree with Ms Robinson that, as a matter of law, it was incumbent upon the President, in the circumstances, to make sense of the proviso in a manner consistent with the parties' stated intentions in the Gozzi proceedings. In other words, we think the President was obliged, in interpreting the proviso, to give effect as best he could to the meaning intended for it by the parties in 1994. We believe that is exactly what he did. Even though he did not mention the Gozzi proceedings in his decision, it is clear from his declaration that he did give weight to those proceedings, including the mischief the parties told Commissioner Gozzi they wanted to prevent. So much, we think, is evidenced by the fact that, as argued by Mr Cameron, the President "made provision in his declaration that should apprentices not receive the relevant accredited off the job training then they would be paid the relevant slaughterman's rates".42 The President's declaration, in making provision for circumstances in which an employer might not deliver the required competency-based training within the period of the contract of training, entirely reflects, in our judgment, the essential substance of the parties' 1994 intentions. For all the above reasons we agree with Mr Cameron's submission that the President understood and took into account, in coming to his decision, the Union's opinion about the meaning of the proviso when, according to the Union, it is properly construed. The materials put to us show that the President knew and considered the fact that the Union favoured a concurrent approach between operation of a contract of training and delivery of relevant training and opposed the assertion of TCCI that training could be given and accepted at any time during the four year contract period. In weighing these competing views it is clear, in our opinion, that in the wording of his declaration, the President gave what he considered appropriate weight to the parties' intentions as disclosed in the Gozzi proceedings. In so doing, in our view, he acted consistently with the thrust of those amendments in giving them the best effect permitted in the changed circumstances and in a manner that was open to him, both at law and on the evidence. In short, we believe the President's declaration, in Ms Robinson's words, "endeavours to make sense of that proviso under an entirely different set of circumstances". In all the circumstances we find that the Union's submissions fail to make out the ground of appeal that "... the President did not give sufficient weight to the proceedings (and) the decision before Commissioner Gozzi".43 Accordingly, we confirm the President's declaration and dismiss the appeal.
B R Johnson Appearances: Date and Place of Hearing: 1 T6257 of 1996 at p.5. |