IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This interpretation has been requested by the Secretary for Labour and is founded upon Section 43(1) of the Act, which states:

"At any time while an award is in force, the President may, on the application of the Secretary or an organization with members subject to the award -

(a) declare retrospectively or prospectively, how the award should be interpreted; ..."

No specific case was referred to against which the provisions of the award might be tested. The Commission must therefore either decline to interpret the award for the reason that the request lacks substance, or proceed to give a general exposition of the likely intention of the award-maker without making a positive declaration or issuing an order.

The Commission has laid down a set of guidelines relating to interpretation procedures. These have been adhered to and appear to be working quite well. However, none of the guidelines envisages interpretation being given in circumstances where there is no evidence of disagreement either between organisations, an employer and an organisation, or the Secretary for Labour and/or an employer or an organisation.

The apparent oversight regarding reference to the Secretary for Labour is explained by the fact that the capacity for the Secretary to unilaterally seek an interpretation was included after the Principal Act was proclaimed. The amendment was intended to facilitate consistency in interpretation and advice given by DLI inspectors from time to time to members of the public. For that reason I believe the following additional guideline could now be added:

"Where the Secretary for Labour can demonstrate that he is of the opinion that there is a genuine ambiguity in an award and/or advisory staff are generally divided in opinion as to the correct interpretation of that provision, the Secretary may request the President to interpret the award for the purpose of removing that ambiguity in order to ensure advisory consistency."

In the light of this, I propose to consider both the Secretary's request, and Mr. Sherry's submissions regarding their respective views how the relevant parts of the award should be interpreted.

In this regard the Commission has been invited to declare:

"(1) Whether, or not, an apprentice greenkeeper is entitled to an "Industry Allowance", pursuant to Clause 24;

(2) If yes, is the allowance simply a weekly allowance, or is it pro-rata to hours worked, and

(3) Confirm that as an "all purpose" allowance the allowance is taken into consideration in calculation of overtime payments and payments for Saturday, Sundays and public holidays."

In presenting the case for the Secretary, Mr Newton recited something of the award history of apprentice rates and industry allowance. The latter provision, it seems, first came into the award in 1978, when greenkeeping was not, I imagine, a proclaimed trade in Tasmania. If it was, there was no award provision inserted until 1979. At that point an apprentice was entitled to a set of percentages of a nominated money amount which was slightly above the award rate for a Head Greenkeeper.

In 1983 the award was again varied to prescribe for apprentices entitlement to set percentages of the total wage payable to a Qualified Greenkeeper. At that stage "total wage" for a Qualified Greenkeeper was comprised of 3 components, namely basic wage, margin for skill and industry allowance.

In 1985 the award set out both percentages as well as equivalent monetary amounts for apprentices. Reference was again made to the total wage of the Qualified Greenkeeper, but the money rates then included in the award clearly did not include pro rated components of the industry allowance to which the Qualified Greenkeeper was, and remains, unquestionably entitled.

Mr. Sherry read from a decision of the then Deputy Chairman of Industrial Boards given on 7 November 1979. This related to inclusion of industry allowance in the Licensed Clubs Award. The relevant part of that decision made it clear that the question of apprentices being entitled to industry allowance was raised during proceedings but not determined in any positive way. Moreover, no evidence was produced to show that this matter has ever been made the subject of separate proceedings.

There is no question that the money amounts now aligned to the percentage of the alleged total wage do not reconcile with a total wage comprised of the amount assigned to Classification 6 - Qualified Greenkeepers, together with the amount prescribed in Clause 24 - Industry Allowance. Therein appears to lie the nub of the problem. Industry allowance quite clearly must be added to the first-mentioned wage rate for a qualified Greenkeeper. This means that a Qualified Greenkeeper must be paid not less than the sum of the two components to which I have referred.

It is equally clear that the award positively identifies an amount of $343.80 as the base rate upon which the various percentage entitlements (relating to years of service as an apprentice) are calculated.

But the Commission cannot read into or construe an award provision in a way that the language used or the award configuration itself will simply not allow.

It seems to me that if an apprentice Greenkeeper is to be entitled to all or part of the industry allowance payable to a Qualified Greenkeeper, the relevant award clauses should make that clear. This could be easily achieved by resort to an appropriate form of words in the nature of a separate proviso to the industry allowance provision or to the wage rates for apprentices. Furthermore there is no doubt that a 20-year-old ex apprentice, on completion of his indentures, is entitled to "adult rates" including, of course, industry allowance. The award says so.

To take this matter further would be to intrude into the realms of merit. According to the now well-settled conventions relating to interpretation, merit is not a consideration in cases of this kind.

If "total wage" in the context of the Qualified Greenkeeper's wage is intended to include industry allowance, then the only conclusion open is that award Clause 2 is erroneous or incomplete. At the moment all that this clause refers to is the Qualified Greenkeeper's "base rate" of $343.80 per week. It ignores completely the industry allowance add on. If the award-maker intended that the percentages set out in Clause 2 should be applied in the same ratio to determine an entitlement to industry allowance, then there is nothing in the award to suggest that this is the case. (Nor is there anything to suggest that an apprentice is entitled to the whole of the allowance.) To interpret the provision any other way would mean that the money amounts assigned to the nominated percentages of the base rate for a qualified Greenkeeper would be confusing and meaningless if there was to be further pro rated add ons for industry allowance.

Merit considerations aside, on the balance of probabilities I can only conclude that notwithstanding the preamble to Clause 24 of the award, on the proper construction of Clause 2, the rate of wage to which an apprentice is entitled is the rate set out in that clause. The rate for a 20-year-old on completion of indentures is that payable to a qualified greenkeeper and would, in those circumstances, include the full industry allowance.

I make no declaration or order on this matter. Any remedial action is a question for the parties themselves.

L. A. Koerbin
PRESIDENT

5 June 1989