T694
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
INTERPRETATION
This is an application for interpretation of the definition of `Library Attendant' contained in Clause 7(j) of the Miscellaneous Workers Award.1 The applicant Federated Miscellaneous Workers' Union, Tasmanian Branch, has expressed concern that the action of the Secretary for Labour in advising certain video shop employers that the classification of Library Attendant does not apply to them has resulted in a number of employees not being paid the correct award rate. The union wishes to have that situation redressed. And in that regard it has requested the Commission to confirm the opinion held by the F.M.W.U. that, subject to certain qualifications, employees employed in or in connection with video libraries are subject to the terms and conditions of this award. I will deal with the matter of the Department of Labour and Industry's actions before moving to consider the substance of the application itself. At the outset I am of the opinion that under the terms of the Act the function of the Secretary for Labour is policing or ensuring observance of awards and orders of this Commission. The Commission makes awards and determines their contents. The contents of an award includes classifications, wage rates, scope (or incidence of application) and such other matters as may appear to the Commission to be appropriate for inclusion in a regulatory-type instrument. None of these requirements is put upon the Secretary. However, prior to promulgation of the Industrial Relations Act 1984 some of these matters did in fact fall within the Secretary's powers. As a consequence of this application coming before the Commission, the Secretary wrote to the Commission pointing out: "T694 of 1987 - Interpretation of the classification `Library Attendant' The Department has been aware for some time of the `problem' created by simply lifting the classification of `Library Attendant' from the Insurance Award and inserting it unaltered into the Miscellaneous Workers Award. Photocopies of correspondence to the S.D.&A.E.A. and T.C.I. are attached. While I believe it was not intended, and have do doubts that it is not appropriate, it seemed that this classification, by virtue of the definition contained in the award, was capable of covering persons employed in the video hire establishments. Employees of such establishments are considered `award free' unless there is a substantial amount of the employee's time spent actually selling video products. Where selling does occupy a substantial amount of an employee's time, the Retail Trades Award is applied by virtue of Section 49(3) of the Industrial Relations Act 1984. As Section 49(3) provides no practical guidance as to when it comes into operation, for administrative purposes, `substantial amount of time' is regarded as being at least 25% of an employee's time per day. Point 4 of Annexure A of the Application reads: `The Secretary for Labour and his staff advises enquirers that they doubt that the said award applies to the operation of video libraries where the employment occurs.' That statement does not sufficiently reflect the Department's view that neither the definition nor the conditions of employment prescribed in the Miscellaneous Workers Award could be regarded as appropriate and that it is neither practicable nor desirable to attempt to enforce compliance with that award." I am of the opinion that the foregoing constitutes an incorrect assumption of authority. Moreover, reference by the Secretary to letters sent by him to the Tasmanian Confederation of Industries, and Shop Distributive and Allied Employees' Association, not only suggests prima facie partisanship, but surely goes beyond the scope of the Department's inspectorial function. Moreover this is the second occasion this year that a situation created by the Department has necessitated Commission intervention. The Issues The classification of `Library Attendant' was included in this award by agreement between the F.M.W.U. and the Tasmanian Chamber (now Confederation) of Industries. Apart from the Australian Mines and Metals Association (Incorporated) (Tasmanian Branch), no other employer or employee organisation objected to this award being established as an occupational award. Nor was there any objection to its contents. Furthermore, the classification of `Library Attendant' had earlier been included in the Insurance Award2 at the request of the parties. This occurred prior to this Commission assuming jurisdiction over that award. At that stage there was no objection from the Department of Labour and Industry or from any other person. The only change that took place on promulgation of this award was that the Insurance Award3 became confined to the insurance industry. The `extended' part of the Insurance Award ceased to operate. But the Miscellaneous Workers Award4, being an occupational or craft award operated in all industries where no industry or Federal award applied or where no registered agreement was in existence. The point in issue in the instant matter is whether or not employees of video outlets are award free or whether they are subject to this or another award of this Commission. On face value the definitions of `Library Attendant', `General Attendant' and `Cleaner' are possibly the only classifications that might apply in video hire outlets. Where video hire is only incidental to product retailing, the appropriate industry award would generally apply. However, where the chief and principal purpose of a video outlet is the operation of a franchised video dealership, or the owner operates a business that promotes, catalogues, hires, and occasionally sells video tapes and recordings, there can be little doubt that the definition of `Library Attendant' is wide enough to embrace this function. The definition reads: "(j) `Library Attendant' means a person employed in or in connection with a library of any kind who may be required to control access to material kept in the library and supervise access of persons to material kept in the library. For the purpose of this definition a library shall be any place, public or private, where books, magazines, newspapers, films, tapes, sound recordings, video recordings and/or other published material is kept available for public or private use." Mr O'Brien fairly stated the situation at page 46 of transcript, when he said: "If the business was a shop engaged for selling, and this was a minor ancillary part of that, then we would, I guess, be conceding that that business was primarily engaged in selling and could then fall outside the award coverage, although the Retail Trades Award might not be sufficient to cover that area. Conversely, we are equally attracted to the view that insofar as the Retail Trades Award is not capable of covering part of an operation to the extent that the operation is award-free, that this award would apply to that area because the exclusion within the award would only arise in relation to that part of the operation which was covered by an award, and the operation would otherwise be engaging employees who would fall within the definition of being engaged in, or in connection with, the duties as outlined." Mr Abey, on the other hand, submitted that the main test to be applied would be that regarded as the `reasonable man' test. In short, how would a reasonable man view the situation of a video outlet being categorized as a library for the purposes of this award? Mr Abey readily conceded that public and private libraries may contain video recordings for public and private use. But he contrasted that situation with that of a video outlet. If a video shop could be described as a library, so too could a book shop as both hold either books or ideo recordings for public consumption. But a book shop, he argued, is never regarded as a library. The answer to this question can be discovered by applying a number of simple tests to the definition. They are: 1. Question: What are the chief and principal purposes of the business? Answer: Video outlets. 2. Question: Are employees employed in or in connection with a library? Answer: Yes. The definition of `library' includes "... any place, public or private, where ... films, tapes, sound recording, video recordings and/or other published material is kept available for public or private use." The Concise Oxford Dictionary offers a number of options for consideration. It defines "lending library" as being a library that envisages books being taken away with or without payment"; "public library" is referred to as "free lending of books the cost of which is met from rates"; and "circulating libraries" are defined as "those where books are let out for profit". There can be no doubt that an employee of a video outlet, the chief and principal purpose of which is to hire out video tapes, is employed in or in connection with a library as defined for the purpose of this award. The words "in or in connection with a library of any kind" are capable of such wide construction that no difficulty is experienced in holding that an employee issuing and receiving video tapes meets the definition of library attendant. 3. Question: Is the work of library attendant, work in or in connection with the industrial pursuit or industry for which the organisation holds provisional or absolute registration? Answer: Yes. The classification of Library Attendant is specifically referred to in the union's registered Constitution. Accordingly I declare that an attendant, employed in or in connection with a library, as defined in Clause 7(j) of the Miscellaneous Workers Award, who is mainly required to control or supervise access to material stored in a video library, the chief and principal purposes of which are to hire video recordings, is, subject to the exclusions set out in Clause 2 of this award, subject to and bound by the terms of the Miscellaneous Workers Award. I further declare that this interpretation shall apply from 1 August 1987.
L A Koerbin |