T2225 T2311 T2691 (22 January 1992)
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Confederation of Industries and Australian Social Welfare Union and Health Services Union of Australia, COMMUNITY SERVICES AWARD
Making of new award REASONS FOR DECISION Applications for the making of a Community Services Award were respectively made by the Australian Social Welfare Union, Tasmanian Branch (ASWU) and the Tasmanian Confederation of Industries (TCI). The applications were initially before Commissioner Gozzi who joined them for hearing purposes. As the applications were for the making of a new award, issues relating to the scope of the award were addressed in the proceedings before Commissioner Gozzi. As the parties were not able to agree a suitably worded scope clause the matter was referred to a Full Bench in an endeavour to expedite the finalisation of the scope clause. Following numerous hearings and conferences in the Commission, the parties presented a substantially agreed scope clause (Exhibit ASWU 11). The TCI contended however that the classifications of cleaner, groundkeeper, caretaker, domestic workers, personal or home carer, cook, laundry hand, clerk, driver, shop assistant or registered or enrolled nurse however so titled, should not be excluded from the proposed scope clause and thereby from coverage by the Community Services Award. Mr Fitzgerald for the TCI submitted that it would be contrary to the general thrust of the Structural Efficiency Principle to exclude those particular occupational classifications from the award. He said that an industry award approach would be more structurally efficient as opposed to the fragmentation that would occur if those classifications were excluded from the Community Services Award. In support of the TCI position Mr Fitzgerald, inter alia, referred to a Declaration made by the President in matter T.2334 of 1990. In his Reasons for Decision the President in canvassing the submissions of the parties referred also to those made by Mr Abey who appeared for the TCI. The President stated: "Mr Abey submitted that the making of an occupational award would be contrary to the Wage Fixing Principles which he (Mr Abey) claimed made i t c Tear that we should be heading towards industry awards." and later "I do however agree with Mr Abey that there is a preference towards the concept of industry awards as opposed to occupation or craft awards in the current wage fixing principles."1 We endorse the comments made by the President but also note that the declaration supported the making of an occupational award albeit it was limited to classifications not covered by other awards of this Commission. However, whilst Mr Fitzgerald argued in this case that the exclusion of the classifications we have referred to from the Community Services Award would be contrary to the Wage Fixing Principles, he indicated, when pressed on the issue by the Bench, that the TCI, depending on the circumstances, may make contrary submissions. That is to say it was made clear by him that whilst the TCI opposed the exclusion of the classifications in question, the making of occupational awards in "other" circumstances would not be contrary to the Wage Fixing Principles. Whilst the Bench is in agreement with Mr Fitzgerald that a flexible approach should be adopted, we were concerned to clarify the position of the TCI in this matter. In our opinion the TCI cannot have it both ways. It would be absurd in the extreme if the Bench was to accept that exclusions of certain classifications was contrary to the Wage Fixing Principles on the one hand but within them on the other. In our view each circumstance should be considered on its merits, recognising that in the overall context the thrust of the Wage Fixing Principles supports the making of industry awards in preference to occupational awards. Having made those comments we indicate that the findings in T.2334 of 1990 are not germane in this matter. Certainly additional weight cannot be attributed to those findings because, as Mr Fitzgerald suggested, they were made by the President. In that regard the President sitting alone, as do members when sitting alone, "constitutes the Commission" in accordance with Section 13 of the Industrial Relations Act, 1984. We turn now to consider the further submissions made by Mr Fitzgerald. He informed the Bench that structural efficiency should operate on an industry basis with an enterprise focus. He said that exempting certain occupations within a particular industry would be at odds with structural efficiency particularly in respect to career paths, establishing relativities between certain classifications, training requirements and the actual classification structure itself. Mr Fitzgerald submitted that where employees, mostly performing multifaceted tasks, have the classifications applicable to them removed from the relevant industry award, in this case the Community Services Award, then the efficiency of that industry would be compromised. Mr Fitzgerald informed the Bench that many employees in the social and community services industry undertake tasks not comprehended in their substantive classification. He cited the example of builders working in certain institutions who have a rapport with clients which enable them to assess client needs. Similarly drivers who in addition to driving undertake informal counselling work. He said: "They are not performing just .. driving tasks, they are performing informal counselling duties as well." Transcript p228 Mr Fitzgerald in essence submitted that an integrated structure would best serve the purpose of the industry and employees. Industry because it would facilitate flexibility and employees because it would assist "proper career path development" (transcript p228). It was acknowledged however by Mr Fitzgerald that enterprise flexibility provisions which are an integral component of the August 1991 State Wage Case Structural Efficiency Principle, would facilitate work place flexibilities notwithstanding that more than one award could have application in one or more workplaces. A further plank in Mr Fitzgerald's submission was that the scope of the Miscellaneous Workers Award provided that: "(a)... (b) This award shall not apply to a private employee who is engaged within an industry where an award or registered Industrial Agreement applies containing a classification of employee embracing the same or similar work as envisaged by the scope and definitions set out in this award. (c)..." Mr Fitzgerald recognised that this provision has application to where existing awards apply but said that it did not preclude future or still to be made industry awards. We concur with Mr Fitzgerald on that issue and agree that this provision in the Scope clause of the Miscellaneous Workers Award does not create an exemption in favour of that particular award for occupations to be covered by awards that may be made in the future. Further we have no difficulty with the logic of the submissions made by Mr Fitzgerald were we to deal with the issues before us in isolation. In this case however the parties have been involved in negotiations and proceedings on the question of scope over a very long period of time. In that regard the Bench endorsed a process which would facilitate a settlement of the scope clause and would provide for a phased approach to the rationalisation of other award scope clauses which prima facie permit coverage in certain sectors of this industry, i.e. the Hospitals Award and the Welfare and Voluntary Agencies Award. Accordingly following conferences with the Commission Mr O'Brien outlined the steps agreed by the parties that they would pursue in an endeavour to resolve this issue. He said: "The course of action to facilitate the progress of the matters is for a phased approach to achieve these objectives. Firstly, the making of the Community Services Award with an extremely descriptive scope; the wording will be devised to eliminate any confusion for award users and is not intended to cut across any awards already in force. To that end there may have to be exclusion provisions at the scope clause of the proposed Community Services Award. Secondly, the three unions and the Confederation of Industries will meet and will draft appropriate exclusion provisions, and obviously we' ll have to meet in relation to the first point. Thirdly, it's agreed that as a consequence of this the HEF will withdraw application T.2691 of 1991. And fourthly, necessary steps will be taken to clarify the scope of the Welfare and Voluntary Agencies Award so it does not cut across any other award of the Commission. And we note the comments about the Hospitals Award. And fifthly, if necessary, a variation to the scope clause of the Hospitals Award will be attended to. That's my understanding of the agreement between the parties and they should, I think, indicate if they have any problem with those ... that description of the position agreed to by the parties. Again, we thank the Commission for its assistance. We would be seeking to adjourn this matter today to give effect to that course of action which necessitates further negotiations." Transcript p158 Whilst the negotiation process we envisaged did not appear to have included the TCI to the extent we would have expected, Mr Fitzgerald following a short adjournment on 23 September 1991 indicated that: " ... essentially we (TCI) have no real difficulty with the scope clause as proposed in ASWU Exhibit 11 apart from the wording nature of it ..." In brackets ours Transcript p187 Mr Fitzgerald then informed us of a number of concerns including his opposition to the exclusion from the proposed scope clause of the classifications we have referred to in this decision. In our opinion and having regard to the very diverse nature of the Community Services industry, Exhibit ASWU 11 conforms with the thrust of what the Bench intended. However we do not intend to exclude "personal carer" from the proposed scope clause as we agree with Mr Fitzgerald that the interpretation made in matter T.1919 of 1989 by the then President Mr L A Koerbin precludes the work performed by employees classified as such from the definition of "domestic" contained in the Miscellaneous Workers Award. With regard to the occupation of "home carer" we have decided to defer consideration of whether or not this classification should be excluded or included in the Community Services Award. This does-not mean we endorse the view of the FMWU that the work of home carers is comprehended in the definition of domestic. We consider however that it would be appropriate to have this matter tested in interpretation proceedings as soon as possible. If it is found that home carers do not fall within the definition of a classification within an existing award then it is the intention of the Bench to include home carer in the Community Services Award. That matter would then be finalised by Commissioner Gozzi. Similarly matters relating to the actual content of the award have also been referred to Commissioner Gozzi for determination. Having regard to the foregoing we now make the Community Services Award in respect of Title and Scope. Accordingly it will be open to any registered organisation to seek an interest in the award as provided for by the Industrial Relations Act, 1984. The order [correction order], operative from the date of this decision is attached. With regard to application T.2691 of 1990 we confirm that leave to withdraw that application was granted to the Health Services Union of Australia, Tasmania No 1 Branch on 23 September 1991.
Appearances: Date and Place of Hearing: 1991 |