Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T693

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

T.693 of 1987 IN THE MATTER OF AN APPLICATION BY THE FEDERATED MISCELLANEOUS WORKERS' UNION FOR INTERPRETATION OF THE MISCELLANEOUS WORKERS AWARD

RE HOURS OF WORK

 

PRESIDENT 10 July 1987

INTERPRETATION

APPEARANCES:
For the Federated Miscellaneous
      Workers' Union
     Tasmanian Branch
- Mr. K. O'Brien
For the Tasmanian Confederation
      of Industries
- Mr. T. J. Abey
DATE AND PLACE OF HEARING:
15.05.87                        Hobart

 

This is an application by the Federated Miscellaneous Workers' Union for interpretation of Clause 16 (a) (Hours of Work) of the Miscellaneous Workers Award1, insofar as reference is made in the clause to the maximum ordinary hours that may be worked on any one day; the method of working those hours, and the days upon which ordinary hours may be worked.

No specific set of facts was referred to that would enable the Commission to interpret the award in relation to a factual circumstance.

Ordinarily I would decline to interpret an award without there first being a specific matter in issue. However, in view of the fact that the Department of Labour and Industry, in its wisdom, "jumped the gun", as it were, by seeking Crown Law advice, notwithstanding Section 43(1) and (7) of the Act, I appear to be left with no choice but to attempt to proceed to interpret the award officially - at least to the extent that that is possible.

In doing so I must record my disappointment that this has become necessary. At the time resort was had to Crown Law, the Secretary for Labour was authorized under the Industrial Relations Act 1984 to himself seek an interpretation from this Commission. However he chose not to do so. Furthermore, on being advised of the time and place for hearing of this application, the Secretary declined to enter an appearance but forwarded instead the Crown Law Opinion. This necessitated my raising the issue during proceedings bearing in mind Section 20(4) of the Act.

I will select as a vehicle the hypothetical situation of a cleaner and attempt to answer the questions raised by the applicant in the context of that classification. In doing so however, it must not be assumed that all remaining classifications under this award work on the same days or under the same conditions. Clearly they do not.

The applicant argued that with the exception of caretakers and janitors, the award requires the ordinary weekly hours of employment to be worked in one or two periods (not exceeding in the aggregate 8 hours per day exclusive of a meal break) on Monday to Friday. Any work done on Saturday and Sunday would, it was argued, be regarded as overtime.

The Tasmanian Confederation of Industries, in reply, submitted that with the specific exception of caretakers and janitors, other employees could be required to work ordinary hours at ordinary rates on any five days of the week. But broken shifts, for which a premium payment is prescribed, may only be worked on Monday to Friday.

This is a new award which in many respects was intended to "clone" the Insurance Award.2 It became, instead, something of a hybrid of the Insurance and Cleaners Awards3.

When the award was made by me it was clear to all that the occupational, as distinct from industry, award then being made would largely apply to those already bound by the general application or "common rule" regulation. This latter process "extends" some existing industry awards to unrelated and, in some cases, quite inappropriate industries that do not have a discrete award in which all classifications, including in this case, Cleaners, are to be found.

The T.C.I. was a consenting party to this award. Neither the F.M.W.U. nor the T.C.I. suggested that conditions then applicable regarding hours of work (other than introduction of a 38-hour week) would change. Except for the classification of Vehicle Cleaner and Domestic, this award contains all the classifications found in the now largely redundant Insurance Award.4

Perusal of the Insurance Award makes it clear that persons subject to that award are day workers who work their ordinary hours on Monday to Friday. Clause 16 of that award states:

"16. HOURS

(a) The ordinary hours of duty shall not exceed 40 per week exclusive of meal hours and shall be worked between the hours of 8.30 a.m. and 5.30 p.m. Mondays to Fridays, both inclusive."

In its 21 April 1987 Reasons for Decision published as a precursor to promulgation of the present award, the Commission observed that:

"In my earlier findings I indicated certain reservations about a 38-hour week provision being included in this award before the `parent' Insurance Award was varied. At that stage I was of the opinion that to do so may well have been tantamount to the tail wagging the dog.

However it was explained to me that this award, when made, will embrace the majority of persons now subject to the extended Insurance Award. This means that in future the Insurance Award will only apply to the insurance industry and not have general application."

Page 12 of decision

And at pages 16 and 17 of the same decision the Commission noted that it could not, under the current wage-fixing principles, alter existing conditions applicable to employees to be covered by the new award. The Commission said:

"This award is made by consent and must be seen in that light. It will contain a number of provisions which, on their face, may appear to be more generous than would otherwise have been awarded had these matters been left to the Commission to determine. ...

Ordinarily I would have declined to include such provisions, whether by consent or otherwise, had it not been for the fact that the reality of the situation is that these conditions already have application by reason of the Cleaners Award and the general application provisions of the Insurance Award. And whereas no employer party submitted any reasons to justify these provisions, all agreed that they could not now be withdrawn, having regard to their consent background and the history of coverage for the majority of classifications that will now become subject to the terms and conditions of this award."

However convoluted the final drafting became, the fact remains no change was intended regarding hours of work other than those changes which necessarily flow from introduction of a 38-hour week.

Examination of the Insurance Award discloses that prior to promulgation of the Miscellaneous Workers Award the great majority of employees (including cleaners) now covered by this award, were subject to the "hours of work" provision under the former award. In those circumstances their ordinary week was Monday to Friday, with premium payments or other penalty rates being attracted for any work done on Saturdays, Sundays and public holidays.

However at that time the Cleaners Award5 was, and remains, an award tailored to the needs of "contract cleaners". Nevertheless that particular award provides some assistance in determining this matter. Paradoxically it contains an almost identical hours of work provision to that which appears in the Miscellaneous Workers Award and is the subject of this application.

There seems to be little doubt that in framing a suitable provision to cater for a 38-hour week, the parties simply "borrowed" the then Cleaners provision. In doing so they may have overlooked the fact that the award being made was in reality little more than a reworked version of the Insurance Award and bore little relationship to the Cleaners Award.

In the result a literal interpretation of the hours-of-work provision that was finally included with the consent of the parties will, in all probability, produce a result unacceptable to all. This conclusion is inevitable having regard for the fact that at no stage was there any suggestion that the hours-of-work provision should be changed, other than to accommodate a 38-hour week situation along with certain cost offsets. Indeed had change been contemplated an immediate inequity would have resulted with respect to those persons who were to remain covered by the Insurance Award.

However, there can be no doubt that in applying the normal canons of construction to the language used, the following interpretation is possible:

(a) Subject to (c), the ordinary weekly hours of 38 per week may be worked on any day of the week between the hours of 6.30 a.m. and 6 p.m.

(b) Except for caretakers and janitors, no employee shall work for more than 8 ordinary hours per day without payment of overtime or some other penalty addition after 7½ hours. But on week days, that is Monday to Friday inclusive, ordinary hours may be worked in one or two periods.

(c) Resident caretakers and janitors may only work their ordinary hours over 6 days within the same spread of hours as the rest, namely 6.30 a.m. till 6 p.m.

(d) Various premiums are payable if work commences or finishes outside the 6.30 a.m. to 6 p.m. spread.

(e) Extra premiums are attracted for broken shifts.

(f) Other penalties and premiums also apply but need not be elaborated upon at this point.

(g) Reference is made to "shifts" being worked, but no definition of shift work appears in the award. Nor is there any authority to work shifts as distinct from day work.

(h) It would be difficult to conclude that an employee, including a caretaker or janitor, would attract only ordinary time for rostered work on a Saturday. I think that he would qualify for time-and-one-half and/or double time, having regard for Clause 25(e).

(i) All employees attract double time for work of any description carried out on Sundays.

In summary the award provisions is, I believe, an imbroglio. This needs to be put right by the parties taking enough time to ensure that the hours of work and related provisions correctly reflect the original intention of those who agreed upon the format of this award.

For that reason I refrain from making a declaration in relation to a matter that is obviously erroneous and not supportable when regard is had for the award as a whole. However, if requested to do so, I am compelled by statute to comply. Nevertheless, should this occur, the parties should understand that if I am required to make an absurd declaration because it may accidentally advantage one side or another, it will be open to me to:

(a) Make a declaration effective from a significantly prospective date; and/or

(b) Vary the award to restore the status quo vis-a-vis the Insurance Award.

Meanwhile, I suggest that the parties confer in the light of the foregoing. They would be well advised to consider reworking the hours of work and Saturday overtime provisions having regard for the classes of employees catered for by this award and the circumstances in which those persons discharge their respective functions.

 

L.A. Koerbin
PRESIDENT

1 P139
2 P040
3 P018
4 Ibid
5 Ibid