TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T4715

Industrial Relations Act 1984
s43 application for interpretation of awards

The Dean of St David's Cathedral

(T4614, T4615, T4616, T4617, T4619,
T4620 and T4621 of 1993)
MUSICIANS AWARD

(T4618 of 1993)
ENTERTAINMENT AWARD

Interpretation - award coverage

INTERPRETATION

These applications, which were joined for hearing purposes, sought a declaration in accordance with Section 43 of the Industrial Relations Act 1984 to determine the application of the Entertainment Award Order No. 1 of 1987 made on 3 June 1987, and the Musicians Award, first made with effect from 15 December 1987, through to Order No. 2 of 1991.

The Commission was told, and it was agreed, that the employee whose entitlements were in question had been employed by St David's Cathedral as organist and master of choristers on the following basis:

As master of choristers the employee performed an additional 13 hours work including preparation of music lessons, information and correspondence for choir boys' parents, attendance records etc. and his own music preparation and practice; making a total of 24-1/2 hours per week. In addition the master of choristers was required to be on call for weddings and burial services.

The Dean of St David's Cathedral, Hobart, on behalf of the Cathedral Council sought three broad declarations:

(1)  that the Cathedral was not an employer within the scope of the Entertainment Award Order No. 1 of 1987;

(2)  that for the period of operation of the Musicians Award Order No. 1 of 1987 until its amendment by Order No. 2 of 1989, the organist/choirmaster was not an employee who fell within the provisions of that award; and

(3)  that since the operation of the Musicians Award Order No. 2 of 1989, the Cathedral was not an employer within the scope of that award;

and further, that the employment arrangements for the organist/choirmaster were not covered by the three classes of employees contemplated by either award.

The Entertainment Award:

The Scope clause of the Entertainment Award as contained in Order No. 1 of 1987 reads as follows:

Mr O'Farrell, for the Dean, submitted that none of the industries referred to in the above scope could be construed to cover St David's Cathedral. The provisions of the Industrial Relations Act Section 40, Regulation 14 and the supporting Schedule 2, were addressed and the Commission was advised that the Entertainment Award, pursuant to those provisions, was prescribed to have general application to the following class of work:

"Work, being musical services, performed by a musician in a cafe, hotel, restaurant, or similar establishment or place."

Mr O'Farrell submitted that this prescription could not be construed to apply to St David's Cathedral.

The Musicians' Union representative, Mr Shelverton, took comfort from the decision of President Koerbin in Matter T1681 of 1988, an interpretation of the Retail Trades Award regarding the classification "Assistant" which, it was claimed, determined that, notwithstanding the absence of a specific classification for an employee, the general application powers of the Industrial Relations Act at Section 40 and Regulation 14, together with the supporting Schedule, should be generously applied so that award entitlements were conferred on any or all employees performing like work not otherwise covered by an award.

I have no doubt that the scope of the Entertainment Award set out above does not embrace the work of the organist/choirmaster of St David's Cathedral.

It is clear to me also that the description of the class of work which is prescribed for the purposes of Section 40 does not include the work of a musician in a church. That is, a church is not "a cafe, hotel, restaurant, or similar establishment or place".

Further, I do not accept the submission that the description of work referred to should or could be read so widely as to cover the work of any musician no matter where employed. In this context it is my opinion that President Koerbin's interpretation in Matter T1681 of 1988 has been misconstrued by the union.

At page 4 of his decision President Koerbin said:

"Stated another way, I am of the opinion that the effect of Regulation 14, or Section 40 of the Act, is to extract from a parent industry award a certain classification (or classifications) and extend to award free employees the wage rate applicable to that work.

That is to say, regard should be had to what is physically being done by the employee concerned. That work should then be tested against the particular classification and/or definition nominated by the Regulation. If the employee concerned is carrying out work, the nature of which is the same or similar to that envisaged by the classification concerned, then provided no other award or agreement applies the employee concerned is entitled to be paid in accordance with the salary rate prescribed for the classification set out in the regulation."

I concur with the views expressed by President Koerbin but draw attention to his carefully worded requirement that the work should "be tested against the particular classification and/or definition nominated by the Regulation".

When that test is applied the work which the Entertainment Award is extended to cover is limited to work in a cafe, hotel, restaurant, or similar establishment or place. In my opinion that specification ensures that the award can and should only be applied to the places of work mentioned, and a church is not one of them, unless it has with it a cafe, hotel, restaurant or something similar and then only in relation to work in the latter establishments.

For the purposes of this application I declare that the Entertainment Award did not and does not have application to the work of the organist/choirmaster at St David's Cathedral.

The Musicians Award:

It was submitted for the Dean that whilst the scope of the Musicians Award as contained in Orders No. 1 of 1987, No.1 of 1988 and No. 2 of 1988 covered the occupation of "musician", the definition of "musical services" could only apply if it was found that a "religious peformance" included a church service.

The definition of musical services reads as follows:

"'Musical services' means work performed in:

(a)  Any class of work in which employee musicians are required to accompany artists; provided that for the purposes of this definition the word 'artists' shall not mean or include a vocalist who regularly sings as an integral part of a group, band or orchestra.

(b)  Grand opera, grand ballet, concerts or religious performances, general theatrical entertainment inclusive of pantomime and variety shows, vaudeville, revue, comic opera, musical comedy,drama, burlesque, minstrel shows, circuses and any other class of work in which employee musicians are required to accompany artists; provided that for the purposes of this definition the word 'artists' shall not mean or include a vocalist who regularly sings as an integral part of a group, band or orchestra.

(c)  All other work performed by musicians."

Although argument was put to show that a religious performance was not a church service and therefore the definition of musical services at paragraphs (a) and (b) was not relevant to the Cathedral, it was conceded that paragraph (c) of the definition of musical services, meaning "all other work performed by musicians" was sufficiently broad to cover the activities of the organist/choirmaster.

However, Mr O'Farrell went on to question whether or not the work of the organist/choirmaster was covered by the definitions of the three classes of employees which were contained in the award. Those definitions were casual employee, regular weekly part-time employee, and weekly employee.

They are as follows:

"'Casual employee' means any employee who is employed on a casual basis and includes any person who is employed for a period not exceeding 5 days at any one time."

"'Regular weekly part-time employee' means an employee regularly engaged in public ball rooms for from 2 to 5 performances each week for a period of not less than 4 weeks duration."

"'Weekly Employee' means an employee engaged by the week for at least 6 calls in a week to be performed within 6 consecutive calendar days excluding Sundays provided that in grand opera, ballet, religious and symphonic concerts a weekly employee shall be engaged for at least 7 calls per week."

Attention was drawn also to the fact that a "call" by definition was an "appearance for either a performance or a rehearsal of not less than 3 hours duration".

Mr O'Farrell submitted that on the agreed facts it was clear that the organist/choirmaster was employed on a regular basis and could not be regarded as casual.

Since a regular weekly part-time employee was specifically defined as an employee regularly engaged in a public ball room, it was claimed that the definition could not be applied to an employee in a church.

As for the remaining definition, since it was agreed that the organist/choirmaster was regularly employed for 5 calls per week, plus other calls on an irregular basis, it was argued that the minimum requirement of six calls in a week was not met, and therefore that definition excluded the employee concerned.

Accordingly it was claimed that the organist/choirmaster employed for 5 calls a week did not fit "squarely within any of the three classes of employees" contemplated by the award. Neither the Wage Rates clause nor any other clauses of the award were said to give any assistance in determining the rate of pay for the employee's work.

The absence of any specific references to the work concerned, or to the terms under which the organist/choirmaster was employed, was said to back up the general thrust of the employer's submission that the award was "never intended to apply to a church organist"1.

Mr O'Farrell then proceeded to argue that from the date of operation of the Musicians Award Order No. 2 of 1989, which he submitted was 10 April 1989, the application of the award underwent substantial change. That order was as follows:

"Amend the Musicians Award by deleting Clause 6 - Parties and Persons Bound - and inserting in lieu thereof the following:

DATE OF OPERATION

The foregoing determination shall come into operation as follows:

It is interesting to note that there is no specific operative date for paragraphs (a) and (b), and, in accordance with Section 37 of the Act, in this case would have effect from the date on which the order was made, that is, 26 June 1989.

Prior to that date the Parties and Persons Bound clause had been couched in the following terms:

It was submitted that the award continued to bind "musicians and people providing musical services" (transcript p.15), but by virtue of new subclause 6(a), the employers who were bound were those engaged in the industry specified in the Scope clause.

Mr O'Farrell said the Cathedral was not engaged in the music industry; it was in the industry of providing religious services. Further, the Cathedral was entitled to rely on the award as amended, regardless of why it was amended. Mr O'Farrell maintained that the Scope and the Parties and Persons Bound clauses were not contradictory because the Scope clause referred to employees engaged in the occupation of being a musician or other musical pursuit, and the Parties and Persons Bound clause required the employer to be in the industry of providing musical services.

Mr Shelverton informed the Commission that the original 1924 Musicians' Award of the federal jurisdiction included the position of organist, but that it had been deleted some time ago with the gradual modernisation of the award. The award referred to employees employed in grand opera, grand ballet, concerts or religious performances which Mr Shelverton said were still part of the industry and contained in the current award. He argued that religious performances covered work of religious significance conducted in a church or elsewhere.

It was claimed that it was the general practice that employees would be engaged on a casual or weekly basis and move between the two without "dropping out" of the award.

With regard to the declaration of the making of an occupational award for musicians, Mr Cushion, who was appearing with Mr Shelverton, said the award had been given that status to ensure that all performers would be entitled to the benefit of an award. He said that, unless specifically fitting the "regular weekly part-time employee" definition, a musician was either weekly or casual.

Mr Shelverton tendered a document entitled The Cathedral Ordinance and drew attention to Clause 5[4] and 5[5] which formed part of the purposes of the Cathedral. They were as follows:

Musical training in purpose 5[4] was regarded by Mr Shelverton as encompassing the work of the organist/choirmaster in training the choir which accounted for three of his calls. The Commission was told that as part of the organist/choirmaster's duties he ran camps for choir boys which was also part of that training.

In reply to the submissions of the union, Mr O'Farrell questioned the capacity of an employee to move between weekly and casual employment, given the requirement to give notice in accordance with Clause 28, Terms of Engagement. It was maintained that the organist/choirmaster was employed on a weekly basis of 5 calls, and he was paid a set fee for any additional calls. Mr O'Farrell said "He (the organist/choirmaster) was paid a set yearly salary and given extra amounts for services which he performed from time to time when he was called"2.

Mr O'Farrell argued that the Church Ordinance should not be used for determining award application. The document simply set out what were the purposes of the Cathedral.

Finding

Whilst finding difficulty with the use of the expression "religious performance", Mr O'Farrell conceded that the work of the organist/choirmaster at St David's Cathedral was capable of being covered by the Scope clause of the Musicians Award and the definition of musical services as contained in the award, at least until the issue of Order No. 2 of 1989.

His main argument was that the terms under which the organist/choirmaster was employed were not catered for in the definitions and other provisions of the award.

Without a careful examination of the award provisions referred to by the parties, it would appear at first glance that Mr O'Farrell was right on that point. On the facts presented and the material agreed upon, notwithstanding the submissions on custom and practice regarding the movement of employees between casual and weekly employment, it seemed clear that the organist/choirmaster was not engaged as a weekly or a regular weekly part-time employee. However it is necessary to resort to other provisions in the award for some guidance.

Mr O'Farrell drew the Commission's attention to Clauses 14 Payment of Wages, 20 Special Allowances, 23 Sunday and Public Holidays, and 24 Terms of Engagement, which, without an appropriate definition to cover the organist/choirmaster, he claimed, supported his contention that none of the provisions applied to that position.

However, notwithstanding Mr O'Farrell's submissions, in my opinion subclause (f) of Clause 24 Terms of Engagement, provides direct assistance in the matter. It states:

I consider this subclause clearly establishes that the organist/choirmaster, being engaged in an occupation covered by the Scope clause, and providing musical services in accordance with the definition, and not being a weekly or regular part-time employee, should be deemed to be engaged as a casual employee. The words in subclause (f) can have no other meaning and the organist/choirmaster should have been treated, for award purposes, as a casual employee, and I declare accordingly.

I turn now to the request for a declaration that the Cathedral was not an employer within the scope of the Musicians Award after the making of the amending Order No. 2 of 1989.

The Musicians Award was first made with effect from 15 December 1987, following the declaration by the President in accordance with Section 33(2) that employees engaged in certain occupations (musicians etc. of various types), if employed by private employers in any industry, were occupations in respect of which an award could be made (See decision in matter T902 of 1987). The award purported to cover all work performed by musicians regardless of the industry of the employer, unless other awards (federal) applied. This was consistent with Section 38(a) of the Act dealing with the effect of an award.

As indicated earlier the award, as an occupational award, and as made originally, had application to the organist/choirmaster. Nothing has altered to affect that situation apart from the Order No. 2 of 1989, varying the Parties and Persons Bound clause which, in Mr O'Farrell's submission, changed the way in which the application of the award was determined from one which relied solely on the occupation of the employee to one, with a second and equal requirement, specifying the industry of the employer. Mr O'Farrell considered the employer was entitled to rely on that amendment.

The Scope clause in question establishes that the award shall apply to work performed by private employees engaged in the occupation(s) of musicians and instrumental performers and other persons who receive remuneration for musical services. The Parties and Persons Bound clause indicates who the award shall have application to unless otherwise specified. The two groups, in the Parties and Persons Bound clause, relevant to this exercise are:

(a)  all employers who are engaged in the industry specified in Clause 2 - Scope, and

(b)  all employees ... for whom classifications appear in the award and who are employed in the industry specified in Clause 2 - Scope.

The Scope clause was and is as follows:

It seems clear to me that no "industry" is specified in Clause 2 - Scope. The Scope clause refers only to the occupation(s) of private employees. At the time of making the award, Section 33 (1)(a) and (b) of the Industrial Relations Act provided for that express distinction. It stated:

(The power to make an occupational award was removed from the Act with effect from 1 March 1993.)

The lack of a reference to an industry in the Scope clause, in my opinion, indicates that the Parties and Persons Bound clause was varied in a manner which was not consistent with, nor appropriate for that type of award. In fact the new Parties and Persons Bound clause made a nonsense of the Scope provisions and I consider the situation must be clarified.

Section 43 (1A) of the Act provides as follows in respect to dealing with an interpretation application:

In order to determine an appropriate remedy in this matter, it is necessary to consider the reasons for the making of Order No. 2 of 1989. It is a matter of fact that no application was made to the Commission to effect a change in the award's status from occupational to occupational-cum-industry and no submissions on the subject were put to the Commission. The order flowed from the consideration of the interest of registered organisations in all awards of the Commission and the development of an appropriate common format for expressing a Parties and Persons Bound clause. The format adopted appears, in this case, to have overlooked the special requirements of occupational awards which are few in number in the private sector.

Since the provision in question, that is the Parties and Persons Bound clause, was inserted on the Commission's own motion, I do not believe it would be appropriate to direct any of the parties to apply to vary the award to clarify a situation which was not of their making. Consequently, in order to remedy what I consider to be a defect in the award I intend, in accordance with Section 43 (1A) (a), to vary the award as set out later in this decision, to remove the confusion regarding its occupational status with effect from the operative dates determined in Order No. 2 of 1989.

In deciding to vary the award in the manner proposed, I have had regard to Section 37(5) of the Act and, for the reasons already mentioned, I consider there are special circumstances which make it fair and right to determine a retrospective date of operation for the amendment.

That course of action being decided it follows that my earlier declaration in respect of the Musicians Award continues to have effect.

In summary I declare that

(1)  the Entertainment Award Order No. 1 of 1987, as amended, was not and is not an award having application to the work of an organist/choirmaster as an employee of St David's Cathedral;

(2)  the employee occupying the position of organist/choirmaster of St David's Cathedral was an employee entitled to be covered by the provisions of the Musicians Award, with effect from the first full pay period to commence on or after 15 December 1987; and that in accordance with paragraph (f) of the Terms of Engagement clause of that award, the said employee shall be deemed to have been engaged as a casual employee; and

(3)  the entitlement referred to in paragraph (2) above was not affected by the issue of the Musicians Award Order No. 2 of 1989, which was effective from 26 June 1989.

An order to this effect is attached.

In addition, paragraphs (a), (b) and (c) of Clause 6 - Parties and Persons Bound of the Musicians Award, are to be varied to provide, with effect from 26 June 1989, that the Award shall have application to and be binding upon:

(a)  all employers (whether members of a Registered Organisation or not) who employ persons in the occupations specified in Clause 2 - Scope;

(b)  all private employees (whether members of a Registered Organisation or not) for whom classifications appear in this award and who are engaged in the occupations specified in Clause 2 - Scope;

(c)  the following organisations of employees in respect of whom award interest has been determined:

An order to that effect is also attached.

F. D. Westwood
PRESIDENT

Appearances:
Mr M. O'Farrell for the Dean of St. David's Cathedral
Mr D. Shelverton with Mr D. Cushion for the Musicians' Union of Australia, Hobart Branch

Date and Place of Hearing:
1993
Hobart
October 12

1 Transcript p.13
2 Transcript p.37