T4726
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Liquor, Hospitality and Miscellaneous Workers Union,
Interpretation REASONS FOR DECISION The Australian Liquor, Hospitality and Miscellaneous Workers Union, Tasmanian Branch (the union) pursuant to section 43 of the Industrial Relations Act 1984, sought:
Clause 2, Scope at the time of hearing was and is now worded as follows:
Clause 6, Parties and Persons Bound, at the time this matter was heard was, and is now, worded as follows:
Mr O'Brien, for the union, submitted that the Parties and Persons Bound clause had been varied on 26 June 1989 by changing the terminology from occupational status to one of industry status, which created confusion and conflict with the Scope clause, despite the fact that the award had been made as an occupational award and no application had been made to vary that. It was argued that the use of the word "industry" in an award which was an occupational award was a defect and that the Act allowed the President, having made a declaration, to vary the award by order for the purpose of correcting any defect in it or to enable the award to have full effect. Prior to 26 June 1989 the Parties and Persons Bound clause was as follows:
In particular the union argued that Clause 2, Scope must be interpreted to mean that the award was made in relation to the occupations specified in that clause and, further, that Clause 6, Parties and Persons Bound should be read with regard to its preamble which was that "Unless otherwise specified" the award shall have application to and be binding upon certain categories of employees and employers. Mr O'Brien submitted that if I considered that the award was an occupational award, Clause 2 should have primacy over Clause 6 which would expose an imperfection in the wording of the latter clause. Consequently I would be able to correct that deficit which was a remedy available having regard to one of the guidelines dealing with interpretations. He also contended that should I find there was some ambiguity created by the new words contained in Clause 6, I was entitled to have regard to the judgments accompanying an award as an aid to discovering its true meaning. It was submitted that a declaration in respect of Clause 6 was essential to give force to a declaration in respect of Clause 2. Mr O'Brien requested that any declaration or order be made retrospective to the variation of the award in June 1989. Mr Sertori, for the Tasmanian Chamber of Commerce and Industry Limited, indicated that his organisation consented to the union's application, given the employers' understanding that the award was originally made as an occupational award and was observed as such. He submitted for similar reasons to those of Mr O'Brien that Clause 6 created an unintelligible position and required correction. He argued that if the award remained as it was it would be unenforceable against employers and employees and accordingly he requested that any declaration or order be made retrospective. I consider that the amendment to the Parties and Persons Bound clause made in June 1989 in which the Commission, of its own motion, varied all Parties and Persons Bound clauses in private sector awards of the Commission, failed to recognise the fact that this particular award had been made as an occupational award. Therefore the emphasis on industry to the exclusion of occupation has imported into the award an ambiguity which has the potential, unless clarified by way of a declaration and order, to confuse and perhaps mislead those required to observe and apply its conditions. I am satisfied that the Miscellaneous Workers Award was made with the intent that it should apply to work performed by private employees, engaged in the occupations listed in Clause 2, Scope, who are not engaged in an industry covered by an award or agreement of this Commission which has provision for similar classes of employees. That much is evident from the words of paragraphs (a) and (b) of Clause 2, Scope, and I so declare. Clause 6, Parties and Persons Bound, is subservient to other provisions of the award by the use of the preamble "Unless otherwise specified" prior to stating what employees, employers and organisations the award shall have application to and be binding upon. I agree with the parties that, without the words "unless otherwise specified" the remainder of Clause 6, given the change to an industry focus, would render the award incapable of application. The conflict between the occupational status provided in the Scope clause and the industry status referred to in the Parties and Persons Bound clause is such that confusion and ambiguity are created. However, I consider that the Scope clause, which determines where and upon what employees and employers the award has application, has primacy over the Parties and Persons Bound clause. Given the preamble to the latter clause, I also consider that the Parties and Persons Bound clause must be read subject to the Scope and other clauses in the award. To that extent, and having regard to the award as a whole, I consider that a defect exists in the new wording of Clause 6, Parties and Persons Bound, which now refers to employers and employees in the industry specified in Clause 2, Scope, which, as has been noted previously, refers only to occupations, not to any industry. Section 43(1A) of the Act states:
Since the only parties to the award are in agreement and urge me to correct this defect, an order will be issued accompanying this decision to restore subclauses (a) and (b) of Clause 6 to their original wording with retrospective effect from 26 June 1989. As to the third part of the union's application in relation to a request for a declaration of the meaning of the word "bank" in Clause 22, Payment of Wages, given the submissions of the parties, I agree that "bank" should mean any bona fide financial institution and I recommend that the parties make application to vary the award with an appropriate definition of "bank" or set out more specifically the financial institutions that are intended to be recognised.
F D Westwood Appearances: Date and place of hearing: |