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Tasmanian Industrial Commission

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T577

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

T.577 of 1986 IN THE MATTER OF AN APPLICATION BY THE TASMANIAN CHAMBER OF INDUSTRIES FOR INTERPRETATION OF THE BUILDING TRADES AWARD AND THE FURNISHING TRADES AWARD RE PERIOD OF NOTICE TO BE GIVEN ON TERMINATION OF EMPLOYMENT AFTER ONE DAY - DETERMINATION OF APPROPRIATE AWARD - APPLICATION OF SECTION 53 CONSIDERED
   
PRESIDENT 28 MAY 1987
   

INTERPRETATION

   
APPEARANCES:  
   
For the Tasmanian Chamber
of Industries
- Mr. T. J. Edwards
  with Mr. G. Lockhart
   
For the Federated Furnishing
Trades Society of Australasia,
Tasmanian Branch
- Mr. J. W. Gill
   
For the Building Workers' Industrial
Union of Australia
(Tasmanian Branch) and
the Operative Plasterers and
Plaster Workers' Federation
of Australia, Tasmanian Branch
- Mr. M. Cordwell
   
For the Amalgamated Society
of Carpenters and Joiners
- Mr. M. Dowd
   
DATES AND PLACES OF HEARING:  
 
28.01.87 Hobart
13.03.87 Hobart
   

This application by the Tasmanian Chamber of Industries sought interpretation of the scope or application of the Building Trades1 and the Furnishing Trades2 Awards in relation to the business carried on by Challenge Kitchens.

Interpretation of the two awards had been sought because of the following facts, recited by Mr. Edwards, and later confirmed in evidence led from Mr. Lockhart. The agreed facts are:

  • Mr. Lockhart, a director of Challenge Kitchens Proprietary Limited, on 28 October 1985 employed a Mr. Gary John Clark in his business known as 'Challenge Kitchens', situated at 46 Grove Road, Glenorchy.
  • Mr. Lockhart employed Mr. Clark as a Utility Worker, as defined within the terms of the Furnishing Trades Award.
  • After only one day's work it was determined by Mr. Lockhart (and not contested by Mr. Clark) that his work standard was below that which could be deemed an acceptable level and the employment was terminated.
  • Mr. Lockhart, on advice from the Department of Labour and Industry, applied the provisions of clause 13(d) of the Furnishing Trades Award - specifically that neither notice nor payment in lieu was required and acted accordingly.
  • Subclause (d) of Clause 13 is couched in the following terms:

    "Employment for the first week of service at any time shall be from hour to hour at the weekly rate prescribed by this award."

  • Following termination of his employment, Mr. Clark then approached the Department of Labour and Industry. After an investigation by a Mr. Armsby the Department determined that Challenge Kitchens should pay Mr. Clark one week's pay in lieu of notice. This was because in their view the Building Trades Award had application to the employment contract.
  • Ultimately a summons issued and the matter proceeded before the Court of Petty Sessions. However, on the application of Mr. Lockhart's solicitors, the matter was adjourned to allow this case to proceed before the Commission.

The purpose of this interpretation is to discover which award had application to the employment of Mr. Clark at the time of his dismissal.

It was the T.C.I.'s contention that the scope clause of the Furnishing Trades Award had application to the work performed by all Challenge Kitchen employees. Furthermore, the Chamber (now the Tasmanian Confederation of Industries) believed that had Mr. Clark's work been satisfactory on completion of a probation period, he would have been classified as a 'Furniture Maker Grade A.'

Mr. Edwards submitted that the conclusion reached by the Department of Labour and Industry that the Building Trades Award had application to the work performed by Mr. Clark was incorrect. He assumed that the Department had reached this erroneous conclusion because it believed that both the Furnishing Trades and Building Trades Awards had application. And as the Building Trades Award contained the most generous termination provision, the Department had incorrectly determined that provision should be applied pursuant to Section 53 of the industrial Relations Act 1984. Section 53 states:

"Where an employee performs 2 or more classes of work to which different awards apply he shall ... be deemed to be employed under such of those provisions as confer on him the greatest benefit."

However the T.C.I. maintained that this section had no relevance in deciding this matter.

The hearing was then adjourned to enable inspections to be carried out at the workplace in question. On resumption, Mr. Edwards reaffirmed the Chamber's conviction that the employer's business fell within the purview of the Furnishing Trades Award.

Mr. Lockhart, Manager and Director of 'Challenge Kitchens Pty. Ltd.', gave sworn evidence as to the nature of his business and of the duties performed by ex-employee Clark.

He described the business as primarily that of a manufacturer of furnishing items. Employees worked exclusively within the factory premises. Installation of prefabricated furniture was carried out by self-employed sub-contractors, and not by company employees.

Evidence indicated that production of prefabricated kitchens' entailed cutting particle board and assembling that pre-cut material into boxes, attaching doors and bench tops to suit the design of 'kitchens' chosen by customers. This involved machinists in cutting the sheets to size, and semi-skilled utility workers in edge-stripping, drilling holes and screwing the boards together. In performing those duties employees used panel saws, edgebanders, buzzers, thicknesses and hand tools including drills and screwdrivers. All of this work is covered by the Furnishing Trades Award.

Mr. Lockhart informed the Commission that the only work carried out by Mr. Gary Clark when he was employed on 28 October 1985 was in the assembly of the cupboards - specifically fixing a front timber edge-strip to a bench top, and a splash-back to the rear of a bench top which had been fabricated and covered with laminex by other employees. He indicated that the work assigned to Mr. Clark could be described as that of a utility worker. It was pointed out that this classification was contained in the Furnishing Trades Award.

Mr. Lockhart asserted that Mr. Clark had performed only one particular function and not two different operations.

In support of the Chamber's contention that Challenge Kitchens is an employer engaged in the industry covered by the Furnishing Trades Award, Mr. Edwards cited Clause 2 of the award which states:

"This award is established in respect of the industry of:

manufacturer, repairer or installer of -

(a) Furniture or furnishings;
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) ...

and covers the work and persons performing such work more partricularly detailed in Clause 33 - Scope of Division A."

and

"33.   SCOPE OF DIVISION A

This award shall cover the following work and persons performing such work:

Furniture

1. Any person employed in wholly or partly preparing, packing, manufacturing, or repairing any article of furniture (including built-in furniture) or in repairing any new or second-hand article of furniture usually made or partly prepared by cabinet makers, chairs and couch makers, upholsterers, wood carvers, french polishers, wood turners, and wood machinists . ...'

The industry engaged in by Challenge Kitchens, Mr. Edwards asserted, clearly fits within the ambit of these provisions.

He submitted that an article manufactured as joinery (such as doors or window frames), usually formed part of the overall building itself. This work would not ordinarily fall within the scope of the Furnishing Trades Award. However, although there is no definition of the noun 'furniture' in the Furnishing Trades Award, Mr. Edwards was of the opinion that the cabinets manufactured by Challenge Kitchens would clearly fit within the meaning generally understood by that term.

Mr. Edwards argued that the only classification included in Section VI of the Building Trades Award that could have any application to Mr. Lockhart's business might be the carpenter/joiner classification.

But in this regard Clause 1 'Definitions' in Section VI of Part II of the Building Trades Award states:

"'Carpenter or joiner' means an employee engaged in mixed industry upon maintenance, construction or shop work as those terms are defined in this clause."

But as Mr. Lockhart's business cannot be interpreted as a 'mixed industry', and the work of his employees cannot be described as the work of carpenters and joiners but more as cabinet making, there remains no other classification in Section VI of the Building Trades Award that could have application.

He argued that after only one day's work, Mr. Clark's employment was, in accordance with the relevant Furnishing Trades Award, terminable by the giving of an hour's notice, not by the giving of a week's notice as would have been required under the provisions of the Building Trades Award.

He asked that the Commission decide accordingly with retrospective effect to 28 October 1985, being the date upon which the award was made.

Mr. Dowd, representing the Amalgamated Society of Carpenters and Joiners, supported the Department of Labour and Industry's contention in determing the Building Trades Award was the appropriate award for employees of Challenge Kitchens.

He referred to the scope of the award as applicable to nominated trades, referring in particular to sub-clause (f) 'manufacturing joinery', as having particular application to the work of employees at Challenge Kitchens. The fact that the terminology of the award did not refer to the trade as being 'a trade engaged in by a private employer' (as required by the Act) was anomalous, he said, and should be rectified at a later stage to conform with the Act.

In support of his belief that joinery was the trade of the employer, Mr. Dowd presented a number of exhibits detailing dictionary definitions of the word/s 'joiner' and 'joinery'. In this regard he also referred to the definition of 'Carpenter and joiner' contained in the Building Trades Award, Part II, Section VI, Clause 1. He argued that the interpretation of 'mixed industry' did not stand alone, but applied to separate areas of work.

Mr. Dowd drew attention to the definition of 'Shop work' contained in Section VI of the Building Trades Award. This is expressed as:

"'Shop work' means any carpentry or joinery work performed by a carpenter or joiner in a workshop not located on an 'on site' building project."

The A.S.C. & J. was therefore of the opinion that the work undertaken by Challenge Kitchens would fall under this particular definition as the operation could be regarded as joinery work performed in a workshop.

Mr. Gill, representing the Federated Furnishing Trades Society of Australasia, Tasmanian Branch, supported the submissions of, and the evidence led by by Mr. Edwards.

I am of the opinion that the chief and principal purpose of the enterprise in question is the fabrication, either in pre-cut sections for assembly by clients or prefabrication and assembly, of kitchen furniture such as cupboards, benches and similar equipment. The equipment used in producing these products is mainly, if not exclusively, that described in Clause 8 of the Furnishing Trades Award.

Moreover, I believe Mr. Clark could have been classified as an Assembler (1st or 2nd Class) or a Utility Officer on the one day he was employed.

I do not agree that the Building Trades Award has any application to Challenge Kitchens, although I have no doubt a carpenter and joiner would be capable of performing many of the functions carried out by the company. But Challenge Kitchens is not, to my mind, a mixed industry in the context of the term as used in Section VI of the Building Trades Award. Furthermore the company does not use its own labour to install made-to-order kitchen furnishings. This is done by external contractors.

The employee concerned did not perform two or more classes of work to which different awards applied. Of this there can be no doubt. It follows from this that Section 53 of the Industrial Relations Act can have no application.

In those circumstances Mr. Clark's employer, Challenge Kitchens, was under no obligation to give him a week's payment on termination after one day's work. Mr. Clark, being employed by the company under the terms of the award, was only entitled to one hour's notice of termination during his first week of service.

As this matter relates to the circumstances of Mr. Clark's employment I decline to interpret the award retrospectively to a date antecedent to his employment.

Accordingly I declare that:

The circumstances of Mr. Clark's employment with Challenge Kitchens were such as to entitle him to one hour's notice of termination in accordance with the terms of Clause 13(d) of the Furnishing Trades Award.

I further declare that at the time of his employment and subsequent dismissal the Building Trades Award did not apply to the work carried out by Mr. Clark or to company who employed him.

 

L.A. Koerbin
PRESIDENT

1 P011
2 P033