T502
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
INTERPRETATION
This is an application by the Federated Clerks' Union of Australia to interpret the Mining (Lead-Zinc) Award1 regarding the rate of Rosebery Composite Allowance to which clerical officers employed by West Coast Mines at Rosebery are entitled. The relevant award provision is drawn in the following terms:
The applicant contended that "...where a clerk is paid a rate equivalent to that of a tradesman, the payment as defined in (iii), shall likewise apply to clerks." The respondent employer disagreed with this assertion. Mr Skinner submitted that reference in the relevant clause to "Tradesmen and equivalent" meant persons regarded as equivalent in status to tradesmen. He instanced mine winding drivers and power station operators as but two examples of employees regarded as equivalent to tradesmen. In each case, he argued, those presently enjoying the higher rate of allowance held some "ticket". This ticketing could include a tradesmen's certificate, engine driver's certificate and, where appropriate, a Department of Labour and Industry certificate. In short he submitted that persons regarded as equivalent to tradesman had, through custom and practice, as well as by arbitration, been regarded as artisan-type staff holding some formalized certificate or accreditation being a kind of testamur of acquired skill or knowledge. But this criterion did not apply to clerical personnel. He said there were separate award provisions giving monetary recognition to clerical or keyboard personnel holding certain certificates. And in addition they were entitled to and are being paid the non-tradesman rate of allowance which presently stands at $38.90 per week. Examination of the award provision itself suggests that the allowance bears no relationship whatsoever to acquired skill or qualifications. In fact the amounts payable are said to "incorporate and supersede all previous allowances including disability and site allowances". However some assistance was gained from a copy of an order signed by the then President of a Compulsory Conference convened under the now repealed Wages Board Act 1920 (itself superseded by the Industrial Relations Act 1975 and later by the Industrial Relations Act 1984). This was tendered by Mr. Skinner and was dated 25 July 1973. The President of that particular conference extended the higher-level allowance to the following:
It is clear from the order of President Heagney that clerks were to receive the lowest rate of allowance, and tradesmen, plus certain engine driving classifications including power station engine drivers, were to receive the highest allowance. All others became entitled to the mid-rate of $5.10 per week. *Emphasis mine Since then and for reasons I cannot easily discover, clerical personnel presumably have moved up to the mid rate. It is equally clear that other changes to the award have occurred. For example, contract or payment by results personnel (including, one assumes, contract tradesmen) now receive the lowest rate. In the absence of more detail from which to ascertain the likely intention of the various award-makers over time, I must resort to consideration of the actual words used in order to interpret the award. In this regard it is difficult to accept Mr. Fry's assertion that the adjective "equivalent" when used in the context of the expression "tradesmen and equivalent" [tradesmen] means "a tradesman and persons enjoying an equivalent rate of pay to tradesmen". The award definition defines a tradesman thus:
Of course no engine driver classification is a proclaimed trade, although it was determined as far back as 1973 that certain engine driving and power station engine driving operators should be equated with tradesmen for the purpose of payment of the higher rate of allowance. An obvious interpretation of the words "tradesman and equivalent" would be "a tradesman and all others who have successfully completed a 4-year examinable course of study in a discipline". But the allowance is not payable for qualifications held but for disabilities suffered. Nevertheless the allowance may also embrace other allowances as well. However it does not identify those other allowances and in any case it could not include allowances for qualifications held by clerks. These are separately stated in the award under Division C. In the circumstances I can only interpret the award having regard for the most acceptable or logical dictionary definition of the adjective "equivalent" when used to qualify the noun "tradesman". The Macquarie Dictionary offers a number of meanings to the word including "corresponding in position, function etc." By itself this would be the preferred meaning to be attributed to the words "tradesman" and "[those of] equivalent [position or function]. However that interpretation would not, I believe, embrace engine drivers. One can only conjecture therefore that their alignment with tradesmen has been effected empirically and not in accordance with the strict letter of the award unless it is no more than a carry over from 1973. It follows from the foregoing I am unable to discover from the clause itself or from any other part of the award that the word "equivalent" where used in the context of the term "tradesman and equivalent" means or includes equivalent in salary. Accordingly I declare that as clerical employees are neither tradesman nor hold positions nor perform functions similar to tradesmen, as defined, they are not entitled to the Rosebery Composite Allowance of $43 per week set out in Clause 35 (iii) of the Mining (Lead-Zinc) Award. Observation: Having already concluded that the award is deficient, it would be consistent with the provision of Section 43(1)(b) if I were to now vary the award to clarify the intention. However, as I have no idea what the true intention was, I will leave it to the parties to apply as they might be advised to have the matter dealt with on merit at some future date.
L. A. Koerbin 1 P047 |