IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

HISTORY

On 5 May 1986, the Australian Building Construction Employees' and Builders' Labourers' Federation (Tasmanian Branch) [ABCE & BLF] made application to vary the Building Trades Award, and specifically, Part I, Section III to reflect the November 1985 National Wage Case decision and, to increase specified allowances in Part II, Section III which constitute a reimbursement for expenses incurred (see Exhibits B1 and B2).

The hearing of application T No 398 of 1986 commenced on Monday 19 May 1986. A submission was put to Commissioner Watling by the Tasmanian Chamber of Industries (TCI) that the matter was of such importance that it was in the public interest that the application be referred to a Full Bench in accordance with the provisions of Section 24(4)(b) of the Industrial Relations Act 1984.

This submission was also supported by the Master Builders' Association of Tasmania (MBA) and, Mr Willingham, representing the Minister for Industrial Relations.

Commissioner Watling adjourned the hearing and referred the matter to the President of the Commission who, after examining the transcript, convened a Full Bench as requested.

AGREEMENT

The Commission as constituted was informed that an agreement had been reached between the ABCE & BLF, the TCI, MBA and the Minister for Industrial Relations to vary the award in the terms outlined in the claim, however, no agreement was reached on the operative date.

Mr Edwards, representing the TCI, stated that he supported the claim as it related to the quantum of the increase because of changed circumstances, which he believed to be significant, since the application was originally before Commissioner Watling on 19 May 1986.

He described the changed circumstances as follows:-

1.     A new Federal award made by Mr Justice Alley of the Australian Conciliation and Arbitration Commission on 28 May 1986 titled `The National Building Construction Industry Labourers' (On-site) Award 1986'. The award was operative from 16 May 1986, remaining in force until 30 June 1986, which was the expiry date of the Building Construction Employees' and Builders' Labourers' (Consolidated) Award 1982.

2.     The withdrawal of the Acting Registrar's referral to the President of the Commission of matters pertaining to the validity or otherwise of the provisional registration of the Australian Building Construction Employees' and Builders' Labourers' Federation.

3.     MR EDWARDS

"The third event, and the most significant of all, that has taken place between the last hearing of this matter and today is negotiations that have been conducted in the intervening period with the BLF."

...

"Those negotiations have been extremely fruitful and have, in fact, culminated in the drawing up and signing of an industrial agreement between the Tasmanian Chamber of Industries, the Master Builders' Association and the BLF" (Transcript page 65)

The industrial agreement referred to by Mr Edwards related to the settlement of industrial disputes. He said:-

MR EDWARDS

"We are extremely optimistic that the agreement does finally herald an era for the peaceful and orderly settlement of disputes in Tasmania between the parties to it and are confident that, given the level of commitment to it shown by all parties during its negotiation, that peace should indeed ensue.

Consequently, we withdraw our opposition to the flow-on of the 3.8% increase and to the flow-on of the expense related allowances which have been detailed as per exhibits B1 and B2 in the hearing before Mr Commissioner Watling on 19 May." (Transcript page 74).

Mr Smith, representing the Master Builders' Association of Tasmania concurred with the views expressed by Mr Edwards.

Mr Bacon, representing the ABCE & BLF, drew our attention to the increases granted to builders labourers covered by State awards in the states of South Australia, Queensland and Western Australia which he said reflected the increase in the Consumer Price Index for the March 1985 and June 1985 quarters.

Mr Bacon maintained there had been substantial compliance with the Wage Fixation Principles by the Federation in this State, a view not necessarily supported by the employers who maintained that the ABCE & BLF had prosecuted various claims which they believed to be breaches of the Principles, nevertheless, Mr Edwards stated:

MR EDWARDS:

"I do not however see it as now necessary to call detailed sworn evidence on the matter as may well have been the case had not the discussions between the parties in the intervening period been so successful." (Transcript page 73/74).

Mr Willingham, intervening on behalf of the Minister for Industrial Relations, said:-

MR WILLINGHAM:

"And for the Government's part, it is glad and pleased to lend its support to the arrangements that have been reached and have been put before you today.

On the basis of what has been forwarded to you today, we say as the Government, that we do not oppose the granting of the 3.8% application and indeed we believe it to be in the public interest and further, that we believe that it conforms entirely to the intent and spirit of the Wage Fixing Principles adopted by this Commission." (Transcript page 95).

On the question of the commitment to the Principles, Mr Bacon's submission can best be summarised by quoting from transcript.

MR BACON

"Fifthly, and importantly, the union gives a `no extra claims' commitment in accordance with the Full Bench decision in T No 265 and T No 266 of 1985.

Further, the union notes that your decision of 5 May 1986 in relation to other sections of the award varied this award so as to contain the following provision:

"Provided that it is a term of this award that the unions undertake that they will not pursue any extra claims, award or over award except where consistent with the Principles of Wage Fixation of the Tasmanian Industrial Commission."

COMMISSIONER WATLING:

What do you mean you `note it'?

MR BACON:

Well, it is there. It might become clearer, Mr Commissioner, when I go on that there has been some doubt expressed by the other parties, both privately and before you on the last occasion, about whether the Tasmanian Branch would give an unqualified commitment as required by this Commission and a point of noting that as well as giving the commitment is to emphasis that there is no doubt about that and the union does it without any qualification whatsoever." (Transcript pages 45/46).

Having considered all the relevant submissions and the agreements that have been reached between the parties, we grant the claim and a `no extra claims' commitment clause will be inserted in the award.

In arriving at our decision we have taken particular note of the dispute settling agreement that has been reached between the Federation, the TCI and the MBA.

The only other matter left for us to decide is the question of the operative date.

Mr Bacon submitted that the operative date for the 3.8% increase should be from 4 November 1985 and the increase in allowances which constitute a reimbursement of expenses incurred should be from 19 December 1985.

His main argument in support of these dates was that other sections of this award and other State awards had been varied in a similar manner and operated from the dates he requested.

However, he suggested that if the Commission did not feel disposed to accept those dates then consideration should be given to other dates, the first of which he suggested was 14 April 1986, which was the day the ABCE & BLF was deregistered by Federal legislation.

The second date was 5 May 1986, being the date that this application was lodged by the union and the third was 19 May 1986 which was the first hearing date before Commissioner Watling.

The fourth date suggested was 28 May 1986, which was the date that the new Federal award was established for builders labourers in the states of Victoria, New South Wales and the Australian Capital Territory.

On the other hand the Tasmanian Chamber of Industries argued vigorously that the operative date should be from the first full pay period to commence on or after 1 July 1986, which was the day the Full Bench considered this matter.

This position was also supported by Mr Smith of the MBA.

Mr Edwards urged the Commission to "apply the historic and firmly entrenched principles applicable to the setting of an operative date".

He continued:-

MR EDWARDS:

"The Industrial Relations Act 1984 has a prima facie position in Section 37 that indicates that an award made by the Commission should have prospective operation unless (a) there is agreement or (b) there are special circumstances surrounding the prosecution of the claim.

In this case there is no agreement on any degree of retrospectivity and thus Mr Bacon must seek comfort from some special circumstances, or circumstances, and we firmly say that no such circumstances exist in this case." (Transcript page 76).

Mr Willingham indicated that it was the Government's position that the operative date should be the date of decision. He added:-

MR WILLINGHAM:

"But at this moment in time we would argue that date of decision should be the operative date in accordance with the custom and practice and the traditions of this wage fixing tribunal, unless it could be argued that special and extenuating circumstances exist. It is my understanding that the Commission has always adopted that attitude and prima facie, we would suggest that that should be the attitude now.

We would suggest that the onus for Mr Bacon, or the onus should be on Mr Bacon to demonstrate to the Commission that those special extenuating circumstances exist." (Transcript page 98).

In all the circumstances we consider it appropriate that the operative date for these variations be the first full pay period to commence on or after 30 June 1986.

METHOD OF CALCULATION

Having examined the rates contained in the agreed documents and specifically the hourly hire rates, we have gleaned that they have been calculated by the use of a formula which does not appear in this award.

We are taking this opportunity to give the parties notice that any future variations to this award will be carried out by using the figures contained therein unless an appropriate formula is inserted for the purpose of computing the hourly hire rates.

We are of the view that it is absolutely essential that the parties to, and persons bound by this award should be able to calculate the rates without reference to a different award of another tribunal.

DEREGISTRATION

During the course of submissions all parties made reference to the deregistration of the ABCE & BLF and in particular

(a) the respondency of employers to the Federal award, and

(b) the Builders Labourers' Cancellation of Registration (Consequential Provisions) Act 1986, which precludes the ABCE & BLF and its members from being bound by the provisions of the Federal award.

In view of the submissions it would be remiss of us not to make some comment on this matter.

The Builders Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act 1986 was referred to on a number of occasions. Section 4 of that Act states inter alia:-

"Effect on Federation of cancellation of registration

4.     (1)  Sub-section 143(5) of the Conciliation and Arbitration Act does not apply in relation to the Federation or its members but sub-sections 143(4) and (6) of that Act apply.

(2)  Any award that would, but for this sub-section, apply to the Federation or its members does not have any effect in relation to the Federation or its members.

(3)  A non-registered association is not capable of being a party to, and shall not be permitted to intervene in, a proceeding before the Commission and is not capable of being a party to an award made by the Commission.

(4)  Subject to sub-section (5), the Commission does not have any powers under the Conciliation and Arbitration Act in relation to -

(a) an industrial dispute in so far as that industrial dispute resulted from -

(i) an act done by a non-registered association or by persons who are members of a non-registered association; or

(ii) an act done by an employer as defined by section 4 of the Conciliation and Arbitration Act in relation to a non-registered association or in relation to persons who are members of a non-registered association; or

(b) an industrial matter as defined by section 70A of the Conciliation and Arbitration Act in so far as that industrial matter relates to a claim made by a non-registered association or by persons who are members of a non-registered association.

(5)  Nothing in this section prevents the Commission from exercising powers under the Conciliation and Arbitration Act in relation to an industrial dispute in so far as that industrial dispute involves members of an organisation of employees registered under that Act who are also members of a non-registered association.

(6)  A person or an organisation or association of employees is not entitled to be represented by an officer, employee, agent or member of a non-registered association in any proceedings before the Commission or the Registrar other than an application by the non-registered association under paragraph 5(1)(b) or an application by the non-registered association for registration under section 132 of the Conciliation and Arbitration Act."

Mr Edwards stated that in his view the State award would now have application to builders' labourers employed in Tasmania, with the possible exception of State Government employees, as he was of the view that the Federal award could not apply to the ABCE & BLF or its members.

Mr Willingham stated:-

MR WILLINGHAM:

"It is our view that this jurisdiction quite clearly can and should pick up the coverage for all those builders' labourers who were previously covered by the National award and to that extent I support both the submissions of Mr Bacon and Mr Edwards." (Transcript page 95).

Mr Smith, representing the MBA, was of the view that the members of the ABCE & BLF were clearly covered by the State award.

Mr Bacon presented two exhibits to support his contention that his members were not covered by the Federal award. The first of these was a telex sent by the Federal Minister for Employment and Industrial Relations to the Minister for Industrial Relations, Western Australia (Exhibit B6) which said in part:-

"Employers have no obligation under the award in relation to employees who are members of the BLF or who may have resigned from the BLF until their resignation formally takes effect after the mandatory three-months period of notice. In these circumstances, such persons are covered by the appropriate State award. Non-members are covered by the Federal award where they come within its scope.

The effect of this provision is therefore that, while employers may technically still be respondent to the award, there are few employees who are covered under the award."

The second exhibit was a document under the name of Mr J P O'Shea, First Assistant Secretary, Department of Employment and Industrial Relations, Central Office, Industrial Relations and Arbitration Inspectorate Division to all State and Territory Directors (Industrial Relations) (Exhibit B7) which concluded in part:-

"As from 14 April 1986 the employment conditions of members of the Federation are subject to awards of the respective State Industrial Tribunals within the terms of their common rule application subject to any specific legislation which might be enacted by a particular state. Employees in either of the Territories who remain or become members of the Federation would appear to be award free as from 14 April 1986 or the date of the commencement of their membership as the case may be."

We do not find ourselves at odds with the foregoing observations.

We take this opportunity to remind the parties that registration under the Industrial Relations Act 1984 entitles organisations to the following rights:-

"65 - Subject to this Act, registration under this Part entitles an organisation to the following rights:-

(a) to make application to the Commission pursuant to this Act;

(b) to be notified of the hearing of an application in respect of an award in relation to which it has satisfied the Registrar that it has an interest;

(c) to appear in proceedings before the Commission with respect to an industrial matter affecting the members of the organisation;

(d) to lodge an appeal as provided in Part VI;

(e) to intervene as provided in section 27(2);

(f) to notify the President as mentioned in section 30(3);

(g) to enter into an industrial agreement;

(h) for its officers to enter premises or land as mentioned in section 77."

Therefore, the Tasmanian Industrial Commission has the capacity to hear and determine matters affecting builders labourers who are employed within the scope of the Building Trades Award.

FEDERAL AWARD RESPONDENCY

We have also noted the comments made by Mr Edwards and Mr Smith, that an application would be made in the future to the Australian Conciliation and Arbitration Commission seeking the withdrawal of Tasmanian respondents to the Building Construction Employees' and Builders' Labourers' (Consolidated) Award 1982.

This, we believe, would be an appropriate course of action to ensure that all matters are finally and clearly resolved, particularly having regard to some of the issues raised by the Master Builders' Association of Tasmania.

BUILDERS' LABOURERS EMPLOYED BY THE STATE GOVERNMENT

We were informed by Mr Willingham that agreement had been reached between the ABCE & BLF and the Government and this would be processed via Section 55 of the Industrial Relations Act 1984 and he concluded this part of his submission by stating:-

MR WILLINGHAM

"For the time being and in anticipation of a favourable decision on Mr Bacon's application, until such time as the agreement of which I have spoken can be brought back before the Commission, we would exercise section 38(6) of the State Service Act, to ensure that those employees are not disadvantaged as a result of the Building Trades Award moving to reflect the 3.8." (Transcript page 98).

We note this course of action.

ORDER

The consent orders [Part I] [Part II] in the form requested by the parties are attached to this decision.