T809
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
INTERPRETATION
PRELIMINARY This application for interpretation of Clauses 29 and 49 of the Meat Trades Award came before the Commission on the application of the Australasian Meat Industry Employees' Union. However, it was stated by Mr. Swallow that the applicant was in no doubt as to the correct interpretation of these clauses. No difficulties had been experienced regarding application of the provisions now under consideration. This fact alone, Mr Swallow asserted, was an indication that the employer organisation was out of step with the reality of the factual position extant in the industry. BACKGROUND By was of background it would appear that negotiations are in train in the industry for a reduction in standard hours from 40 to 38 per week. However, during discussions on possible cost offsets the matter of the provision and laundering of protective clothing was raised. Consequent on those discussions it appears that a major difference of opinion now exists between the Meat and Allied Trades Federation and the union. This difference relates to an employer's liability to "provide and launder clothing". No actual situation was put forward to be tested against the award itself. However, Mr. Edwards suggested that for the purposes of argument a hypothetical situation be used. He instanced a shop employing two butchers, an apprentice, one cashier, one sales assistant and one wrapper. This was not presented as a typical case. It was, he said, put forward to illustrate the ambiguity of the current award Clause 29 (Materials) and to a lesser extent Clause 49 (Uniforms). In summary, Mr Swallow submitted that in the appropriate circumstances employers are obliged to supply, up to a prescribed limit, certain items of outer clothing of a particular nature to certain employees. There are annual limits regarding quantity. Alternatively the employer may require an employee to purchase his own outer clothing of the kind described in the award. In such cases the employee is entitled to be paid by his employer a clothing allowance of $3.30 per week. However in either event the employer must launder certain articles in order than an employee can present for work daily in clean outer clothing. This is a statutory requirement and comes into the award consequent on Department of Primary Industry Regulations applicable to the industry. Mr. Edwards claimed that the award is an imbroglio. He submitted that it is contradictory, confusing and incapable of proper application. The correct approach, he said, would be to remedy existing ambiguities by way of an application to vary both Clauses 29 and 49. He argued that in cases where there is both a general and specific provision in an award and those provisions are in apparent conflict, the specific should prevail. In that regard he submitted that the general reference to an employer being required to provide clean outer clothing daily should be written down, or discounted, by the specific requirement to provide butchers with an annual issue of clothing. It was the opinion of the Australian Meat and Allied Trades Federation therefore that having complied with the requirement to make an annual issue of clothing (or having decided to pay a clothing allowance in lieu) that was the end of the matter. Mr. Edwards asserted that an alternative interpretation might be that the annual allocation could be seen to be additional to the requirement to provide clean outer clothing daily. In that circumstance the annual issue would never be used. He also questioned whether an employer might be required to provide clean outer clothing daily when an employee was on leave. Other submissions were made along similar lines. These were generally directed towards the alleged absurdity of the current requirements. Clauses 29 and 49 prescribed the following: "29. MATERIALS The following articles shall be supplied annually to employees free of cost:- (a) Slaughtermen - clean outer clothing shall be supplied daily, 3 suitable knives and approved scabbard. (b) Shop Butchers in Subdivision A1 of Clause 8 - Wage Rates, Division A, shall be issued annually with 3 coats, 3 aprons, 3 caps, 5 bibs, free of cost, such garments to be returned to the employer if the employee leaves that employment during the current year of issue. In lieu of the issue of such clothing, the employer shall pay to these employees an amount of $3.30 per week. (c) All employees, except those classified in Division D and Division I of Clause 8 - Wage Rates, shall be supplied by the employer with clean outer clothing daily. (d) An employer shall provide each apprentice with such tools as are customarily used in the trade, such tools to remain the property of the employer. (e) The following items which shall remain the property of the employer shall be provided to the following employees in all divisions free of cost: (i) Protective clothing, i.e. waterproof aprons, leggings and boots, to employees working under dirty, greasy or wet conditions; (f) (i) An employer shall provide to persons mentioned in Clause 8 - Wage Rates, Division A, subdivision A2, classifications 9 (a) and (b), and to boners employed on piecework, a suitable shield type apron. Such apron shall remain the property of the employer and shall be returned upon termination of service. In the event of such apron not being returned the employer shall have the right to deduct the cost of such apron from moneys due to the employee. (ii) All employees engaged on duty in boning rooms shall be supplied by the employer with suitable protective footwear. (g) The clothing provided under this clause shall be in good repair and shall be worn by the employee and must be kept in clean condition. Employees shall make every endeavour to keep the clothing and equipment supplied in good order and condition. (h) The provisions of the Public Health Act and its amendments shall apply to the materials provided in accordance with this clause." "49. UNIFORMS - RETAIL SHOPS Employees mentioned in classifications 11, 12, and 13 of Clause 8 - Wage Rates, Division A, subdivision A1, Retail Shops, shall be issued by the employer with two suitable uniforms per annum free of cost, such garments to be returned to the employer if the employee leaves that employment during the current year of issue." I am of the opinion that Mr Swallow's explanation regarding the need to accommodate health requirements in the award has resulted in certain prima facie drafting absurdities. I would accept his explanation that under the now superseded Industrial or Wages Board system matters at issue were agreed upon (or occasionally arbitrated) and the result reduced to writing. However decisions of the Boards were engrossed without necessarily giving due care or attention to the overall award configuration of which those items were to form part. I also agree with Mr. Edwards that not all employees, including those excluded by subclause (c) of Clause 29, are eligible for particular clothing issues or clean outer clothing daily. Nevertheless I accept the fact that it would be possible to conclude from a strict interpretation of the subclause that other unrelated employees, whose employment is more or less incidental to the industry, could have an entitlement. But when put to the practical test an obvious nonsense would result. For example, it would be out of step with reality to conclude that stationary engine drivers and carpenters are to be provided daily with clean coats, aprons, caps and bibs. Obviously the award must be considered in toto, and in proper context with the industry in order to determine the apparent intention of Clause 29. In my opinion a reasonable interpretation would be as follows: Clause 29 - Materials 1. The preamble refers to articles, including clothing, to be provided annually. But the clause also deals inferentially with daily laundering. 2. Slaughtermen are to be supplied with or paid an allowance in lieu of approved out clothing which must in any case be "supplied" clean each working day. 3. Shop butchers: In retail shops an employer has an obligation to supply or pay an allowance in lieu of an annual limit of 3 coats, 3 aprons, 3 caps and 5 bibs. These remain the property of the employer during the year of "issue". All "issued" outer clothing shall be kept clean by the employer so that each employee to whom the clothing is "issued" may start each working day with clean attire. This is a health regulation. 4. The quantum of clothing to be supplied is that which the employer is obliged to provide by the award, and includes protective clothing, however described. The annual issues or occasional issues do not have to be new, but they must be clean and in good, serviceable condition. 5. Each employee must wear the clothing provided, and must keep it in good order, fair wear and tear excepted. This does not necessarily mean laundering. However the employee is expected to act responsibly by taking proper care of the clothing on issue to him. 6. In any case the appropriate Health Acts and Regulations shall be observed. 7. The apparent paradox regarding annual issue vis-à-vis daily issues can be explained in this way: An employee may be issued with the maximum number of items prescribed. It then becomes his responsibility to arrange with his employer to have sufficient clean items in his possession each working day in order to comply with health requirements regarding the wearing of clean outer clothing daily. Alternatively the employer may keep the items and issue clean clothing up to the annual limit each day. Either construction appears to me to be possible from the language used. 8. I agree with Mr. Edwards that reference in subclause (c) of Clause 29 to "all employees" could result in an absurdity if applied literally. In my opinion it can only mean all employees entitled to, or required by law to be provided with clean outer clothing daily or stipulated protective clothing. Clause 49 - Uniforms This is self explanatory. It refers to uniforms. The employer is not responsible for laundering uniforms unless caught up by Clause 29(c). But if 29(c) applies, then an employer would also be required to supply clean uniforms daily. From the language used I do not believe it to be possible to construe the clause in that manner. CONCLUSION If requested to make a formal declaration embodying the foregoing, I am required by the Act to do so. Any such declaration, however, would be prospective and not retrospective. This may assist the parties in their negotiations regarding a shorter working week.
L. A. Koerbin |