IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This appeal, brought by the Tasmanian Chamber of Industries (T.C.I.), is against a decision made by Deputy President Robinson in T558 of 1986, handed down on 24 November 1986.

The original application made by the T.C.I. sought to vary the Marine Boards Award by inserting a new subclause entitled "Temporary Construction Employees" which, if successful, would have meant that temporary employees engaged by the Marine Boards on construction projects would be paid a $43.60 per week service and experience payment on commencement.

The application was rejected by the Deputy President for the following reasons:-

"1.    The proposal does not conform with current Principles of Wage Fixation adopted by the Commission in matters T432 and T435 of 1986.

In particular Principle 9(c), Service Increments, provides:-

"(i) Existing service increments may be adjusted in the manner prescribed in (a)(ii) of the Principle".

(a)(ii) in turn provides:-

"Existing allowances which relate to work or conditions which have not changed may be adjusted from time to time to reflect the movements in wage rates as a result of national wage adjustments."

National wage increases have already been applied to SIPS in this award from time to time.

9(c)(ii) provides:-

"New service increments may only be allowed to compensate for changes in the work and/or conditions and will be determined in accordance with the relevant provisions of Principle 4."

No attempt was made by either party to justify the claim on the basis of compliance with the Principles because of changes in the work or conditions, or otherwise.

What is being sought is an increase in current award wage rates of $43.60 per week for employees with less than 6 months continuous service in the industry for which this award is established.

Such an increase in this award would be contrary to the intent of the Principles as spelt out very clearly in the preamble which says:-

"In considering whether wages and salaries or conditions should be awarded or changed for any reason either by consent or arbitration, the Commission will guard against any contrived arrangement which would circumvent these Principles.

The Principles have been formulated on the basis that the great bulk of wage and salary movements and improvements in conditions will emanate from national wage adjustments and consent arrangements in relation to superannuation. Increases outside national wage and superannuation arrangements - whether in the form of wages, allowances or conditions, whether they occur in the public sector or private sector, whether they be award or overaward - must constitute a very small addition to overall labour costs.

The Commission will guard against any Principle other than Principles 1 and 3 being applied in such a way as to become a vehicle for general improvement in wages and conditions."

Underlining mine

I do not regard an increase of $43.60 per week a very small addition to labour costs.

I also believe the potential for flow-on to be real.

2. I disagree with the argument that service and experience payments are in reality designed to match over-award payments and thereby have no element of service and experience.

If this was true one wonders why clerks in Division 7 have been excluded from receiving SIPS in this award.

Why also would there be three rates instead of just one?

Presumably the over-award payment does not increase after 18 and 30 months service; yet it was argued that SIPS are designed simply to equate with over-award payments.

3. The notion of putting "going rates" into awards is not a proper basis for setting levels of overall remuneration to be paid by all other employers covered by the same award.

Nor is a comparison of a paid rates award with a minimum rates award a legitimate exercise allowable within the principles.

Such a comparison is even more inappropriate when National Building Trades Construction Award rates are hourly rates and marine board employees, i.e. both "temporary" and "permanent", are weekly hire rates.

4. Recent experience has shown that "temporary" employees engaged for one project undertaken by a marine board may be retained in employment for a further indefinite period and give rise to disputation as to how long is temporary and how permanent is permanent. (Ref. T456 of 1986, dispute between Port of Devonport Authority and various unions).

5. The industry covered by the Marine Boards Award is separate and distinct from that of the building and construction industry and they should not be treated as being common industries.

6. The fact that a certain project will be carried out in the near future by a marine authority for a "third party" (who was not represented) is not a persuasive factor for altering the award. To my mind, public interest criteria of Section 36 extends to protecting third parties against having unnecessary and unjustified costs imposed upon them by other consenting parties."

There were four grounds for appeal lodged by the T.C.I. which fell, basically, into two categories:

(i) that the Deputy President erred procedurally;

(ii) that the Deputy President erred as to merit to the extent that his decision to reject the application was not reasonably open to him.

The opening submissions presented by Mr Abey in this appeal can be summarised as follows:

(i) the original application was a consent matter and, in the view of the parties, non-controversial. It fell within the Wage Fixation Principles, and as such, submissions were cursory to say the least and did not address the numerous aspects which the Deputy President raised in his ultimate decision;

(ii) whilst recognising the onus was on the applicant to present a full and comprehensive case, and that it stands or falls on the submissions presented, nevertheless, it should be tempered with common sense and reason;

(iii) in the ultimate decision, the Deputy President raised matters which in the appellant's opinion were not addressed during the original hearing. Moreover, the Deputy President did not give the parties an opportunity to comment on those matters in accordance with the requirements of section 20(4) of the Industrial Relations Act, 1984;

(iv) the Deputy President asked no questions on any of the matters subsequently raised by him in his decision;

(v) the Deputy President when later examining the transcript formed the view that fundamental issues remained unanswered which led him to the conclusion that the application should be rejected;

(vi) whilst it was open to the Bench to conclude:-

(a) that the applicant in the original hearing had a chance to present a case and should have anticipated the issues addressed in the decision; and

(b) that it was not the role of the Commission to present the applicant's case, nor that of the respondent;

nevertheless, it would be entirely inappropriate to draw those conclusions;

(vii) in the original case, neither the respondent nor the Commission raised any issue of contest during the proceedings.

LEAVE TO INTRODUCE NEW EVIDENCE

It was Mr Abey's contention that as the Deputy President introduced new material in his decision, it was impossible to examine the decision properly unless he was permitted to introduce new material in the appeal hearing.

He sought leave of the Bench under section 71(8) of the Act to present such material and argument.

He maintained that the issues raised in the Deputy President's decision were wide-ranging and went to such things as:-

(a) the Wage fixation Principles;

(b) the concept of significant cost;

(c) the prospect of flow-on;

(d) the matter of comparing a minimum rates award with a paid rates award;

(e) whether or not the Marine Boards Award was a paid rates or minimum rates award;

(f) the scope of the award;

(g) the conceptual nature of SIPS;

(h) public interest.

The Bench, having adjourned to consider the application for leave to introduce new material, gave the following ruling:

"We are of the unanimous opinion that the Deputy President, having found that the application then before him did not satisfy the current Wage Fixing Principles, and, in particular, Principle 9(c), the appellant's case should stand or fall on that issue.

If the claim fell outside the guidelines, other issues, whether discussed or not, are not relevant to the determination of this appeal.

For that reason we decline to admit new material."

It goes without saying had we found the claim fell inside the guidelines, then the parties would be given an opportunity to address the remaining five reasons highlighted by the Deputy President for rejecting the original application.

GUIDELINES

It was admitted by the parties that no submission was presented by them at the original hearing on the Wage Fixation Principles leaving us to conclude that they did not see the need to do so.

One of the major criticisms made by the T.C.I. about the original decision was that the Deputy President raised matters which, in it's opinion, were not addressed during the original hearing (including the Wage Fixation Principles) and that he did not give the parties an opportunity to comment in accordance with the provisions of section 20(4) of the Industrial Relations Act.

It is true to say that no party chose to address the Commission on the Wage Fixation Principles but all were afforded an opportunity of doing so had they thought it appropriate.

The fact that they did not do so does not preclude the Deputy President from reaching the conclusion he did.

It was also put to us during the appeal hearing that so long as the claim did not offend the Principles it should have been ratified, thus obviating the need to identify the precise principle under which the claim was being processed.

This proposition we reject as Principle 2 clearly states that -

"Any claims for improvements in pay and conditions other than those provided by Principle 1 must be processed in accordance with Principles 3 - 12."

There is no doubt that the original application was made for the purpose of establishing a new service and experience payment. If successful, this would give to temporary employees engaged by the Marine Board on construction projects an extra amount of $43.60 per week on commencement.

Such an application must obviously be tested against Principle 9(c). It was therefore reasonably open to the Deputy President to reach that conclusion. Moreover, no submission was put to us which persuaded us that the Deputy President erred in finding that the original application was outside the Wage Fixation Principles.

Therefore, we are not prepared to overturn the original decision. The appeal is dismissed.