TASMANIAN INDUSTRIAL COMMISSION

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

Australian Liquor, Hospitality and Miscellaneous
Workers Union, Tasmanian Branch
(T4596 of 1993)
(T4597 of 1993)
(T4598 of 1993)

CLEANING AND PROPERTY SERVICES AWARD

Interpretation - Call Back, Hours of Employment, Minimum Start

INTERPRETATION

T4596 of 1993:

This application by the Australian Liquor, Hospitality and Miscellaneous Workers Union (the union) sought a declaration to clarify the application of Clause 10, Call Back, of the Cleaning and Property Services Award. That provision is as follows:

The union contended that the clause as worded required the employer to apply the call back provisions to any employee required to return to work after completion of the employee's normal work period. In particular the union wanted to establish that these provisions were applicable in respect of extra time worked by an employee that was additional to that employee's constant number of hours on any nominated day or per week which had been determined in accordance with Clause 22 of the award.

The employer's representative supported the union's position and indicated that an agreement had been reached as to the meaning of the words, and as to the manner in which the provision should be applied.

I am satisfied that the proposed wording accurately describes the meaning and intent of Clause 10 as it relates to part-time employees. Accordingly I hereby declare, pursuant to Section 43 (lA) (a) of the Industrial Relations Act 1984, that the words "Any employee" at the commencement of the Clause 10, Call Back, include part-time employees, as defined in Clause 22, Part-time and Casual Employees. Further, where an employee, after leaving work other than for a meal break is required, by the employer, to return to work, the second period of work constitutes a call back in accordance with Clause 10, Call Back, unless:

(a) the second period of work has been agreed between the employer and the employee to be part of the employee's constant number of hours per week in accordance with Clause 22 (Part-time and Casual Employees), subclause (b); or

(b) the second period of work has been notified as a change to the employee's constant number of hours in accordance with Clause 22 (b) (i); or

(c) the second period of work has been agreed to be performed as a specific variation to the employee's constant number of hours under Clause 22 (b) (ii), and that such agreement was reached prior to the day on which the second period of work was performed.

It is suggested that the parties seek to vary the award in due course to provide more explicitly for these circumstances.

T4597 of 1993:

In similar circumstances to the previous matter (T4596) the parties requested me to declare, in accordance with Section 43 (1A) (a) of the Act, how subclause (b), Ordinary Hours of Employment, of Clause 22, Casual and Part-time Employees, should be interpreted.

Subclause (a)(i) defines a part-time employee as:

In subclause (a)(ii) a casual employee is defined as:

Subclause (b) is as follows:

Mr O'Brien submitted that the employer in terms of subclause (b) was required to specify the constant number of hours per week to be worked by a part-time employee at the time the employee was engaged and to establish the employee's entitlements and obligations under the contract of service. It was necessary to do so to avoid the possibility that the employee was casually employed.

The employer agreed with that submission.

I hold the view that no other logical meaning can be given to the words in the first sentence of subclause (b) above, and in accordance with Section 43 (1A) (a) I declare that the provision should be interpreted to mean that a part-time employee's constant number of hours per week must be determined at the commencement of the employee's period of regular employment.

In order to ensure that full effect is given to the meaning of the provision, and at the request of both parties present at this hearin , in accordance with the power available to me by virtue of Section 43 (1A)(a), I also propose to vary Clause 22(b) to make it clear that a part-time employee's constant number of hours per week are to be determined at the commencement of employment. The appropriate order is attached.

T4598 of 1993:

As with the two previous applications (T4596 and T4597), the parties requested a declaration to clarify the meaning of subclause (d) Minimum Start of Clause 22, Part-time and Casual Employees. The award is currently expressed as follows:

The parties contended that where a shift is broken in the manner permitted by Clause 22(b) that each part of the broken shift is a separate engagement for the purposes of subclause (d), Minimum Start. Consequently each part of the broken shift would be a separate engagement and subject to the minimum start provision of two hours.

In my opinion the requirement that there be a minimum period of two hours employment for each separate engagement clearly prevents an employer from engaging an employee for less than two hours in any one period. Therefore I agree with the submissions of the parties.

Accordingly, pursuant to Section 43(lA) (a) of the Act, I declare that subclause (d), Minimum Start, of Clause 22, Part Time and Casual Employees, means that part-time and casual employees must be engaged for a minimum period of two hours for each separate engagement and that the words "separate engagement" refer to each of the two periods which an employee may be required to work in a shift.

It is suggested that the parties seek to vary the award in due course to provide accordingly. Order

F.D. Westwood
PRESIDENT

Appearances:
Mr K. O'Brien for the Australian Liquor, Hospitality and Miscellaneous Workers Union, Tasmanian Branch
Mr M. Sertori for the Tasmanian Chamber of Commerce and Industry Limited

Date and place of hearing:
1993:
Hobart
October 13
November 4