T2495 and T2686
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Federated Miscellaneous Workers Union of Australia MISCELLANEOUS WORKERS AWARD Federated Miscellaneous Workers Union of Australia HAIRDRESSERS AWARD
Classification of employee REASONS FOR DECISION These applications came before the Commission as the result of the failure of the Federated Miscellaneous Workers' Union, Tasmania Branch (FMWU) and the management of Dockside Fitness to reach an agreement as to whether an award of this Commission had application to the employer. The union submitted that the Hairdressers Award had application to the employers; but, if the Commission did not confirm that view, its secondary submission was that the general attendant classification in the Miscellaneous Workers Award had application. The Scope clause of the Hairdressers Award is as follows:
The Scope clause of the Miscellaneous Workers Award is:
1. Caretaker
The FMWU contended that the scope of the Hairdressers Award, specifically the words "Proprietor of a Health and Physical Culture Studio", adequately covered the business of Dockside Fitness. Mr O'Brien tendered dictionary definitions of the words "health", "physical", "culture" and "studio" in support of his contention together with an extract from the Telecom Yellow Pages which referred, in the index, to Health Studio being covered by the general term of Health and Fitness Centres. The two witnesses for the FMWU gave evidence as to the nature of their duties, which, in the main related to the union's secondary submissions that, if the Hairdressers Award was found not to have application, the "general attendant" classification contained in the Miscellaneous Workers Award should apply. Mr. Evans, for the Secretary for Labour, advised the Commission that despite the possibility that officers of the Department might have given conflicting advice as to whether or not the Hairdressers Award had application to Dockside Fitness, the Department's official view was that the award did so apply. The witness for the employer, the Managing Director of Dockside Fitness, Mr. M. J. Stephens, informed the Commission that he had been advised by his partners that his organisation was award free and that they had been so advised by the Department of Labour and Industry. Whilst rejecting the suggestion that his business was a "studio", the witness observed that "Health Studio" was "a fairly old term". In response to the Unions' primary assertion, (that the Hairdressers Award had application), the Tasmanian Confederation of Industries (TCI) claimed that, "the Union was actively pursuing and negotiating with the employers for a new award for the industry and that from an equity point of view, the merits of proceeding with (this) application (were) very questionable." (Transcript: page 72). Mr FitzGerald argued that the employer had received advice that it was effectively award free and that if the employer had known that it was covered by the Hairdressers Award, the range of services and the times those services were offered would have been markedly different. In his opinion this equity argument could not be rejected or ignored. (Transcript: page 88) Dictionary definitions were tendered to demonstrate that the words "health and physical culture studio" could not be construed to mean a health and fitness centre. It was submitted that the award, which first included "health and physical culture studio" in its scope in 1974, could not have been intended to cover "health and fitness centres" since they did not "get off the ground until the early 1980's." (Transcript: page 87) Mr FitzGerald further claimed that the phrase "health and physical culture studio" was not in ordinary English usage at present, although it might have been in the past, and in accordance with the "rules of interpretation" the Commission was limited to deal only with its ordinary, current meaning. In this context Mr FitzGerald referred to the South Australian principles for award interpretation and certain principles laid down in an early interpretation in this Commission, subsequently modified. The TCI dismissed the possibility of the "general attendant" classification of the Miscellaneous Workers Award having application to Dockside Fitness claiming that the primary function of the employees in question was that of a weight training instructor. Mr FitzGerald submitted that the FMWU applications should be rejected outright, or, because of the equity considerations, I should refrain from making a declaration. Consideration of the issues: As the first part of the union's doubled-barrelled application, I have been asked to declare that the Hairdressers Award has binding application in respect of employees of establishments such as Dockside Fitness. I agree with the union's observation at page 53 of transcript that the term "health and physical culture studio" is the key factor in this matter. If the term is found to be capable of embracing a health and fitness centre, then the Hairdressers Award must be held to apply to the employer in question, viz. Dockside Fitness. The words "health", "physical", and "culture", in my opinion, can clearly be interpreted as having, generally, the same meaning as "health and fitness". Consequently all that remains to be decided is whether the word "studio" can be construed to mean a "centre". The dictionary definitions of "studio" which were referred to were:
None of these dictionary definitions specifically relates to the premises in which "health and physical culture", or "health and fitness" activities are pursued; although the last mentioned definition might be capable of some manipulation. I agree that the phrase "health and physical culture studio" is not in common usage now and I accept the view that "health and fitness centres" of today are a far cry from their forebears of gymnasiums and turkish baths. Although it is interesting, albeit inconclusive, that the Telecom Yellow Pages Fast Find Index records the classification of Health Studio under the heading of Health and Fitness Centres. However out of date the terminology in question might be, I am convinced it is a term which was used colloquially to describe those centres. That those "studios" appear to have evolved, or to have been transformed into the health and fitness centres of today does not negate the original usage of the term and it does not mean the term, in its award sense, cannot be used now in relation to the developing nature of the industry. It is unfortunate, but not in my view fatal to the union's claim, that the award makers were less than precise by not reflecting the changing terminology of the industry in the scope clause in 1982 when they varied other parts of the award specifically to refer to health and fitness centres. Notwithstanding its lack of clarity and precision, I am satisfied that the Scope Clause is capable of covering Health and Fitness Centres. I reject the submission that, because the parties generally were negotiating a new award for the industry, I should refrain from making a declaration in this matter. Both employers and employees are entitled to know whether or not an award has application to them and it would be inappropriate, perhaps inexcusable, to allow the existing uncertainty, which has been created, to continue. I reject also the submission that, because some of the advice the employers received indicated they were award free, I should refrain from making a declaration on the ground that the employer, if given contrary advice, would have arranged the centre's activities and services in a different manner. Again, if the award does have such application, then, in fairness to the employees and indeed to other employers in the industry, it is incumbent on me to make the appropriate declaration. Equity considerations have to be applied to both the employer and employee. Having given the parties ample opportunity to resolve this question in a way which might well have limited the impact on the employer I now find that the Hairdressers Award has application to Health and Fitness Centres such as Dockside Fitness. The appropriate declaration is attached. It follows that the General Attendant classification contained in the Miscellaneous Workers Award does not have application. Both files are now closed.
F. D. Westwood Appearances: Date and Place of Hearing: |