T10058 and T10178
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union PASMINCO ROSEBERY (MINING) AWARD
Interpretation - Clause 2 Scope of the Pasminco Rosebery (Mining) Award and Clause 2 Scope of the Metalliferous Mining and Processing Award REASONS FOR DECISION [1] These are applications by the Automotive, Food Metals, Engineering, Printing and Kindred Industries Union (AMWU) for interpretations of the Scope provisions of the Pasminco Rosebery (Mining) Award (the Pasminco award) [T.10058 of 2002] and the Metalliferous Mining and Processing Award (the MMP award) [T.10178 of 2002]. [2] The matters were joined and heard together. Mr Cooper, appearing for the AMWU, submitted that the application in matter T10178 of 2002 "in part subsumes the initial application" [T.10058 of 2002]. [3] Leave to intervene was granted to the Australian Workers Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). Both the AWU and the CEPU are named as parties with an interest in both awards. I refer to each of the employee and employer organisations by their current nomenclature. [4] The scope provision of the Pasminco award provides:
[5] The scope provision of the MMP award provides:
[6] The MMP award and the Pasminco award are intrinsically linked and, despite the submissions of the Australian Mines and Metals Association (AMMA) that the history was informative but not helpful, I have found it necessary to refer to the history of each of the awards when considering the applications before me. It would have perhaps been prudent for the parties to have reviewed the history of the awards at some stage during their ongoing disputation over a period of some six years. [7] I have relied on the submissions of the parties and the award history files maintained by the Commission in respect to each award. Pasminco Mining (Rosebery) Award - History: [8] In a decision of the Commission dated 8 August 1990, following an application to vary the Mining (Lead-Zinc) Award in respect to the Restructuring Principle [T.2487 of 1990], Commissioner Gozzi recorded:
[9] The date of operation of the Pasminco award was the first full pay period on or after 8 August, 1990, and included therein were rates for the defined classifications. [10] The classification structure in the Pasminco award, as was noted by the Commissioner in his decision, had no relevance to the Mining (Lead-Zinc) Award as it was specific to the Pasminco Rosebery operations and the restructure undertaken at the time. [11] Commissioner Gozzi said in his decision that:
and further when addressing the definitions for the new employee classifications he said:
[12] It seems clear from that decision that the new classification structure had, at that time, application only to Pasminco employees. [13] The decision further provided that:
[14] T.2660 of 1990, determined an interest for the AMWU in the Pasminco award effective from the first pay period to commence on or after 8 August, 1990. [15] T.2670 of 1990, determined an interest for the CEPU, on the same terms and conditions as that applying for the AMWU. [16] The award was varied effective 28 February, 1991, to include the Transport Workers Union (TWU) [T.2693 of 1990], AMMA [T.2725 of 1990], the AWU [T.2676 of 1990] and the Construction, Forestry, Mining and Energy Union (CFMEU) [T.2667 of 1990] as named parties with an interest in the award. The variation also included the Tasmanian Confederation of Commerce and Industry (TCCI), as a party with an interest in the award. [17] The Commission varied the award effective from the first pay period on or after 9 November, 1990, to include a Tool Allowance provision following an application by the CEPU in matter T.2805 of 1990. [18] A further decision of the Commission dated 22 March, 1991, in matters T.2486 and T.2487 of 1990, dealt with the structural efficiency principle and consolidation of the new Pasminco award. That decision said:
and further
[19] As stated in the decision, the Mining (Lead-Zinc) Award was made redundant effective from the date of making the Pasminco award, being 8 August, 1990, however the Pasminco award was not, and has not, been varied to incorporate the classification structure found in the Mining (Lead-Zinc) Award. The classification structure found in the Mining (Lead-Zinc) Award differs to the structure found in the Pasminco award which is as a result of the structural efficiency decision of Commissioner Gozzi. [20] The award has been varied over time to incorporate, amongst other things, State Wage case decisions, change of union names due to amalgamation, test case standards, the supported wage system and changes to other provisions, none of which have any relevance to the determination in this matter. [21] In T.5132 of 1994, the Commission approved an industrial agreement made between Pasminco Mining-Rosebery (the company), the AWU, AMWU and the CEPU. The decision stated that the agreement "reflects a thorough restructuring of the award (in the form of the agreement)". [22] No application followed the approval of that agreement to vary the award to reflect this thorough restructuring. [23] An application was filed by AMMA in matter T.7966 of 1998 for the Commission to provide an interpretation of the Title, Scope and Definitions clauses of the award. The matter was adjourned and finally withdrawn after the hearing of preliminary submissions in September, 1998. [24] The Pasminco award prescribes the same scope clause as did the Mining (Lead-Zinc) Award. The scope clause appears not to have been varied since the creation of the Pasminco award. [25] It states:
[26] The parties and persons bound clause provides:
[27] The award lists all of the organisations for whom an interest has been determined. [28] The definitions provision states that: "Employer - means Pasminco Mining-Rosebery." [29] The classification definitions are identical, other than for the classification descriptor, and all state that a person classified in a particular classification:
[30] The history of the Pasminco award is that it replaced the Mining (Lead-Zinc) Award. The classification structure found in the Pasminco award was based totally on the submissions and considerations relating specifically to the Pasminco Rosebery site. The classification structure, training, skills acquisition and definitions are those that applied, at that time, to the Pasminco Rosebery operation and, as noted by Commissioner Gozzi in his decision, are as a result of structural efficiency changes. There was no submission, consideration or representation by, or on behalf, of any other operator in the industry of mining and processing of silver, lead, zinc, ore. [31] The history of the Pasminco award is relevant to the MMP award as the MMP award provides that where appropriate classifications appear the wage rates and conditions of employment found in the Pasminco award apply to employers falling within the scope of the MMP award. Metalliferous Mining and Processing Award - History: [32]Application T.6140 of 1996 was an application by the AWU to make the MMP award. [33] The TCCI wrote to the AWU on 10 April, 1996, in respect to the above application seeking discussions and requesting that the AWU advise it in writing "which companies in Tasmania it sees being bound by the proposed award." [34] Mr Cooper provided a history of the making of the MMP award. He referred to a letter dated 12 April, 1996, over the signature of Mr Stephen Knott from the AMMA and addressed to Commissioner Imlach, the member of the Commission dealing with the application to make the award, which said that there was no opposition to the award being made in respect to Title and Scope. Mr Knott said that AMMA "will be actively involved in the development and negotiation of this award should you deem it in the public interest that it be made". The letter also stated that AMMA reserved its rights to argue for revocation or variation of any determination made by the Commissioner on the date of hearing, being 22 April, 1996. [35] The MMP award came into effect from 2 May, 19961, by decision of Commissioner Imlach, where he said:
and further
[36] The order was made effective 2 May, 1996, in the above terms and the MMP award included three clauses, being Title, Scope and Operative Date. [37] By decision of the Commission in T.6728 of 1997 there was no opposition to AMMA being named as a party with an interest in the MMP award. [38] In matter T.6811 of 1997 the AMWU was named as a party with an interest in the MMP award. There was no opposition to the application. [39] Matter T.6900 of 1997 was an application by the AWU to be named as a party with an interest in the MMP award. There was no opposition to the application. [40] By letter dated 12 February, 1999, the Commission declined an application by the CFMEU [T.7984 of 1998] to intervene in a matter in respect to the MMP award, saying that for the "CFMEU to gain interest it would need to apply to the Commission in accordance with section 65(A) of the Act". [41] T.8247 of 1999 was an application by the CFMEU seeking to have an interest granted in the MMP award. [42] The CFMEU withdrew its application following an agreement being reached between it, the AMMA and the AWU. [43] By decision and order in matter T.9482 of 2001, the MMP award was consolidated to name parties under the Award Interest clause and to include an Index provision. The operative date for the agreed variations being the date of the hearing, 22 May, 2001. [44] In that decision it was noted that the application sought "to provide a full range of wages and conditions for the industry covered by the scope of the award." Further it said "the parties were not in a position to agree on any further variation to the award as it stood, nor were they in a position to proceed to arbitration on the other matters in the application." [45] My research reveals that there has been no further activity in respect to the MMP award. [46] These are applications for interpretation of provisions in each of the awards. I am of the view that there are more fundamental issues that need to be canvassed before I consider the applications for interpretation. [47] A reading of the decision of Commissioner Imlach, dated 2 May, 1996, in Matter T.6140 of 1996, suggests that it was the proposal of the parties that the MMP award would only come into operation "when all clauses had been settled and the scope clause in the Pasminco Rosebery (Mining) Award had been amended simultaneously to provide for that award to become an enterprise award ...", and further "the order implementing this decision will provide for the award [MMP award] not to commence until the scope of the Pasminco Rosebery (Mining) award is varied appropriately." [48] Mr Cooper referred to a number of awards which had been varied, following amendments to the Act, to be enterprise awards and it seems possible that it was the intention of the parties to the Pasminco award for that award to be made an enterprise award as stated in Commissioner Imlach's decision. [49] To date the parties have not reached agreement on the clauses to be inserted into the MMP award, nor has the Scope clause of the Pasminco award been varied to provide for it to be an enterprise award. [50] Accordingly and by applying the decision of Commissioner Imlach, which claims to reflect the proposal of the parties, the MMP award could have no application until those two requirements are actioned and as such is not an operative award of the Commission. The order needs to be read in conjunction with the decision of Commissioner Imlach of 2 May, 1996. It would seem that the proviso found in the Scope clause of the document reflects the decision of the Commissioner. There has been no challenge to the decision. [51] Even if the award was considered to be an operative award of the Commission, which I consider it is not, and the rules of interpretation were to be applied, it is unlikely that the proviso found in the award could have any application to an employer in the industry of metalliferous mining, dredging, sluicing or other means of obtaining metallic minerals and/or the treatment of those minerals unless an employee satisfied the criteria of one of the classification definitions found in the Pasminco award. Those classification definitions, according to the decision of Commissioner Gozzi in Matter T2487 of 1990, did not have any relevance to the Mining (Lead-Zinc) Award, which the Pasminco award replaced, as they were classifications specific to the Pasminco Rosebery site. I note the submissions of the AMMA which suggest that the Mining (Lead-Zinc) Award applied only to the company, this perhaps was not the understanding of Commissioner Gozzi. Mr Cooper also seemed to indicate that he considered it to be the industry award. [52] I reject the argument of the AMMA that it did not think it necessary to appeal the decision of Commissioner Imlach arguing that the inclusion of the proviso was not a matter before him and therefore should not have been included in the award. That may well be the case, but to ignore the issue which has been, and continues to be, the cause of disputation in the industry is a ridiculous stance to adopt. Whether or not the decision was appealable is arguable, but to elect to ignore its implications in the knowledge that it would be the cause of disputation was ill advised. The AMMA also argued that the award making process was not a valid process and again chose not to seek to vary or appeal the final document but submitted that the Commission should take that view into account in determining these applications. I have nothing before me to indicate whether the award making process was valid or not so I reject that submission. I do concede however that the process is unusual and possibly inappropriate. [53] The AMMA submitted that these applications are some kind of test case; in my view that is more an admission that the parties have been in dispute about the issue for some time, a dispute they have been unable to resolve rather than the applications having any test case status. Whilst the AMMA has adopted the view that the Pasminco award rates of pay have application only to employees of the company, resulting in all other employees in the mining industry being award free, no application has been made to give certainty to that view other than an earlier application for interpretation which was withdrawn. I find it amazing that none of the parties appear to have read the unchallenged decisions of two members of the Commission which were the basis for the awards being made; those decisions are quite explicit in their content and intent and, in fact, reflect the proposals put by the very parties who appear in these proceedings. [54] It was submitted by the AMMA that the Mining (Lead-Zinc) Award had application only to the Pasminco Rosebery site and as such was an enterprise award, further the definition of employer in the Pasminco award refers only to the company although the scope clause refers to employers. This is an anomaly not pursued by any of the parties to the award. [55] What does all of this mean? [56] I am of the view, having considered the history of the MMP award and the unchallenged decisions related to its creation, that it is not an award of this Commission and therefore has no application to any party. I am not sure how the MMP award which "would only come into operation when all clauses had been settled" and was "not to commence until the scope of the Pasminco Rosebery (Mining) Award is varied appropriately"2 can have an operative date that pre-empts the variations required for it to be operative. There has been no challenge to what seems to me to be another anomaly. [57] Whilst it may have been the intention of the parties that the Pasminco award be the industry award, although that is not clear and is subject to some conjecture, there was not at the time, nor has there been since, an application to include in the Pasminco award the classifications previously found in the Mining (Lead-Zinc) Award if indeed that was the industry award. [58] Accordingly, and relying on the relevant decision of the Commission, the classification structure found in the Pasminco award is a result of the structural efficiency changes at the Pasminco operations. It is unlikely therefore that those classifications would apply in any other enterprise unless those employees were required to access the Rosebery Skills Acquisition Programme on which the classification structure is based. However, that programme refers to employees of the company and addresses site specific modules for training. [59] It seems likely therefore that employers and employees in the mining industry in Tasmania, other than Pasminco Mining-Rosebery, are not party to any mining specific industry award in the State. [60] The applicant seeks an interpretation of the Scope clause of the MMP award which states:
[61] Despite the fact that I have found that the MMP award has no application, I now address the interpretation application. [62] The principles adopted generally in this jurisdiction for interpretation of an award provision are those found in a decision of President Koerbin, a former President of this Commission, in T.30 of 1985, (the Koerbin decision). [63] Those principles are as follows:
[64] Mr Cooper provided a number of definitions found in a number of dictionaries in respect to the words found in the relevant clause. I do not refer to them as I am of the view that none of the words in the clauses are capable of being misconstrued. In fact I doubt that there is any disagreement between the parties as to what the words mean, it would seem that it is the proviso found in the Scope clause that is the cause for disputation. That requires a reference to the decision which approved the making of the award, albeit prospectively and subject to certain requirements to be met. Nevertheless I have considered the authorities provided but do not refer to them here but note they mostly address the approach adopted in respect to an application for interpretation. [65] I now consider the application in accord with the principles referred to above: 1. I have addressed the interpretation in accord with the specific facts as found in decisions of the Commission related to the making of the award. 2. In considering the request for an interpretation of the provision I have made no finding as to the merit, or otherwise, of the clause. 3/4. The words prescribed are, in my view, intelligible and have been given their ordinary English meaning. Likewise they have been given their true meaning. 5. In the absence of any challenge to the decisions of the Commission in the making of the MMP award I am not satisfied a drafting mistake has occurred. 6. There is no ambiguity in respect to the words found in the provision. However it has been necessary to refer to the history and judgements accompanying the making of the award. 7. It is my view that the relevant award provision is clearly expressed. [66] The proviso states that until such time as the MMP award is finalised in respect to wages and conditions, or the proviso is removed, that employers falling within the scope of the award and who employ persons in the classifications as defined in the Pasminco award, shall observe the Pasminco award "in all respects." [67] It follows then that an employer, ignoring for the moment the restrictive definition of employer in the award, falling within the scope of the Pasminco award who employs persons in classifications other than those found in the Pasminco award are not required to observe the Pasminco award in all respects. [68] Whilst the classification definitions provide some discretion in respect to what an employee may be required to do, there is no discretion as to their classification being determined by reference to the Rosebery Skills Acquisition Programme. It would seem from the decision of Commissioner Gozzi that the skills acquisition programme applies only to employees of the company as it was his decision that it had no relevance to the Mining (Lead-Zinc) Award and determined not to include it in that award. [69] The decision of the Commission states that it was the intention of the parties that the MMP award would not come into operation until such time as all of the clauses are agreed or determined and the scope clause in the Pasminco award is amended to make it an enterprise award. Those two requirements were to be simultaneous. This fundamental requirement provided in the decision approving the application has yet to be complied with and seems to have been overlooked or ignored by all of the parties to the award. [70] As these requirements have yet to occur, the MMP award could not have any application at this time according to that decision (T6140 of 1996) which purports to reflect the intention of the parties. [71] I am not satisfied that a document which claims to be an award, but which does not contain relevant and applicable wage rates and conditions other than, in this case, a reference to another award in which the prescribed conditions are unlikely, subject to satisfying certain criteria, to have any application to employers and employees in the industry, can be an appropriate or enforceable award for employers and employees within its scope. [72] In light of Mr Cooper's submission that the application for an interpretation of the scope clause in the Pasminco award is in part subsumed by the application for an interpretation of the scope clause in the MMP award, I do not consider it is necessary to provide an interpretation of the Scope clause of the Pasminco award. I note however that the scope clause refers to employers in the industry but the only named employer is the company. Also, by reference to the decision of Commissioner Gozzi when making the award, the classification structure therein is specific to Pasminco and was not relevant to the Mining (Lead-Zinc) Award which it purported to replace. [73] It would seem to me that the issues I have raised require some urgent attention, to that end I propose to chair a conference of those parties with an interest in both awards in an attempt to review the current situation and address any issues related thereto. A more appropriate process for the making of awards should also be a consideration at that time. [74] A conference of the parties will be held on Wednesday 13 November, 2002, at 9.30am.
P L Leary Appearances: Date and place of hearing: 1 T6140 of 1996 |