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T4042

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.43 application for interpretation of an award

Australian Workers Union, Tasmanian Branch
(T.4042 of 1992)

CLAY AND MUD PRODUCTS AWARD

 

PRESIDENT

21 October 1992

Clause 19 - Hours, subclause (a) Dayworkers

INTERPRETATION

With this application the Australian Workers Union sought an interpretation of subclause (a)(i) of Clause 19 - Hours, of the Clay and Mud Products Award.

The provision is as follows:-

    "(a)   Day Workers

      (i)  The ordinary hours of work per week shall be an average of 38 to be worked between 6.00 am and 6.00 pm on any day Monday to Friday inclusive.

    PROVIDED THAT the provisions of this subclause may be varied by agreement between the employer and the majority of employees in the plant or section or sections concerned."

The union submitted that subclause (a)(i) dealt with three conditions or provisions; first, that the ordinary hours of work shall average 38 per week; second, that the span of ordinary hours shall be 6.00 am to 6.00 pm on any day; and third, that these ordinary hours shall occur on Monday to Friday inclusive. The proviso attached to paragraph (i), it was claimed, allowed those three conditions or provisions to be varied only by agreement between the employer and the majority of employees concerned.

It was explained that the reason for this application had been an attempt by K & D Brick to alter, unilaterally, the start and finishing times of some of its employees. The change proposed would stagger start and finish times in some sections of the plant and allow the company to produce for 2 or 3 hours longer a day.

The union claimed that the proviso meant that any change to working hours, even if those changes were within the constraints of the 6.00 a.m. to 6.00 p.m. span Monday to Friday inclusive, had to be with the agreement of the employees. The union asked, given its understanding of the provision, whether the employer had the ability to change start and finish times without the consent of the employees.

The employer suggested that in these circumstances the award should be considered as a whole in order to determine how the provision in question should be interpreted. It was argued that since the award was silent on the question of start and finish times, as distinct from prescribing the span of ordinary hours, the employer was entitled to fix those times within the constraints of the provisions of Clause 19(a)(i).

Further, it was submitted that the Contract of Employment provision, Clause 13, established that employees were engaged by the week and accordingly the employer, in such a case, was required only to give one week's notice of intention to change start and finish times provided all other specific conditions of the award were observed.

It is clear that the award does not deal specifically with starting and finishing times of ordinary hours on a daily basis. Clause 19 (a)(i) establishes the parameters within which a day worker's ordinary hours of 38 per week may be worked; that is they must be between the hours of six in the morning and six in the evening and on any day, Monday to Friday inclusive. I consider the above parameters are the "provisions" referred to in the proviso to Clause 19(a)(i) and consequently it is those general provisions which may be varied by agreement between the employer and the majority of employees in the plant or section or sections concerned; that is, the number of ordinary hours of work per week, the daily span of ordinary hours and the days on which ordinary hours are worked. Starting and finishing times of a particular day's ordinary hours of work are not addressed in this clause, or, for that matter, in any other part of the award which refers to day workers.

Therefore I am satisfied that the proviso to Clause 19(a)(i), although it establishes the manner in which the general parameters may be varied, by agreement, has no application to changes which might be effected within those general parameters.

The Contract of Employment clause provides for the weekly hire of all employees other than casuals. Accordingly, for the purposes of this award, the employer is required to give a minimum of one week's notice to an employee in order to change a condition of employment such as start and finish times. As an aside, notwithstanding this technical entitlement, it would be expected that an employer would ensure that as much notice of the change as possible was given to employees to enable them to make whatever adjustments were necessary to their arrangements for travel to and from work and for other domestic circumstances.

Having said that I declare, for the purposes of Section 43 of the Industrial Relations Act 1984, that the Clay and Mud Products Award enables the employer to alter start and finish times of day workers within the span of 6.00 a.m. to 6.00 p.m., Monday to Friday inclusive, provided a minimum of one week's notice is given to the employees, other than casuals, who are to be affected.

 

F. D. Westwood
PRESIDENT

Appearances:
Mr. T. J. Edwards with Mr. M. Rayner and Mr. P. Armitage for the Tasmanian Confederation of Industries
Mr. G. Cooper for the Australian Workers Union, Tasmanian Branch

Date and place of hearing:
1992
Hobart:
October 19