T860
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
This application for interpretation of the Hospital Employees (Public Hospitals) Award was filed by the Minister consequent on proceedings before the Commissioner for Review having been suspended for that purpose. The applicant seeks a declaration from the Commission conforming his view that: "1. Kitchen Hands are positions within public hospitals that require the performance of kitchen hand functions thus providing general assistance to cooking staff. 2. That as kitchen hands are part of the class of employees in the award designated `Kitchen Staff', the controlling authority cannot move positions from this class of employees to another class within the award. 3. That Tradesman Assistants directly assist tradesmen. 4. That Tradesman Assistants are part of the class of employees in the award designated `Maintenance Staff and Tradesmen', and therefore Tradesman Assistants are `maintenance staff' ". The set of circumstances giving rise to the application were as explained by the Commissioner for Review in his decision of 16 July 1987. On that day, and at the request of the Director-General of Health Services, he adjourned appeal proceedings then standing part-heard, in order that the Commission might be invited to interpret the award. The Interpretation requested would be part of a process to discover whether or not it would be intra vires the Commissioner for Review's function to classify Kitchen Hands allegedly primarily assisting tradesmen [Cooks], and for that reason, reclassify those Kitchen Hands as Tradesman Assistants. Both classifications currently appear in the award. The applicant maintained that it would not be open to the Commissioner for Review to classify Kitchen Hands in the manner claimed. On the other hand, the No. 1 and No. 2 Branches of the Hospital Employees Federation submitted to the Commissioner for Review, and repeated that submission before the Commission, that reclassification was not only possible but, subject to certain qualifications, entirely appropriate. Of course the Commission cannot address itself to the intrinsic merits of the arguments presented by the protagonists. It must instead confine itself to the language used by the award-maker, and from that attempt to ascertain the purpose of the particular provisions in respect of which certain issues have arisen. Before proceeding to a consideration of the actual matters of concern to the parties, I should acknowledge that I am of the opinion that the procedural steps taken by the applicant in seeking an interpretation were quite legitimate and, in the circumstances, entirely appropriate. However, I restate my ongoing concern at the number of points of disagreement over award provisions that come before the Commission by way of applications for interpretation. Many could and should be made the subject of applications for award variation. There can be no question that the Parliament intended that the Commission and only the Commission be empowered to interpret its own awards. However that may be it must also be kept in mind that interpretation proceedings prima facie do not necessarily embrace that time-honoured precept of natural justice usually referred to by the popular terminology "what is right and fair". Interpretation decisions, or declarations, (to borrow the precise terminology of Section 43) simply postulate, as the term suggests, declaratory statements as to how the award is to be interpreted. The ratio decidendi of such declaratory statements are not and cannot be influenced by merit. That care is a matter for the Commission otherwise constituted. In the instant case the Commission has been informed that appeals now standing adjourned before the Commissioner for Review seek reclassification of a significant number of Kitchen Hands employed in the public hospital system. He has been asked to reclassify those Kitchen Hands to Tradesman Assistants. Both classifications appear in the award. The employees concerned, through their agent have, I understand, argued and indeed led oral evidence for the purpose of persuading the Commissioner that they are currently inappropriately classified as Kitchen Hands. They argue that they should be reclassified as Tradesman Assistants. The latter classification carries a marginally higher salary rate than the former. The essence of the argument appears to be that as Kitchen Hands are said to be giving direct assistance in a kitchen controlled by cooking staff, they are therefore directly assisting a cook and satisfy the award requirement for promotion to Tradesman Assistant. As cooks now enjoy the status of tradesmen, a fortiori, it is argued that a person carrying out significant kitchen duties relating to cooking is a tradesman's assistant and not a kitchen hand. The classification of Tradesman Assistant is expressed in the following terms: TRADESMAN ASSISTANT
PROVIDED THAT no person shall be employed under this classification unless he directly assists a classified tradesman. The classification of Kitchen Hand appears in the award in the following terms:
Both Mr Imlach and Mr Rees agreed that not all kitchen hands could meet the requirements for reclassification to Tradesman Assistant. There were two main reasons for this: firstly, not all performed duties of a nature sufficient to qualify for reclassification, as they are primarily concerned with cleaning, washing floors, washing up and duties of a general nature. Secondly, other kitchen hands carrying out duties more in line with those necessary to meet the test laid down by the proviso, might none the less be rendering direct assistance to a non-tradesman cook. Moreover, Mrs Gregg argued that kitchen hands per se appear in the Kitchen Staff section of the award. And, as Tradesman Assistants appear in the Maintenance and Tradesmen section it was neither intended nor permitted to reclassify across various sections of the award. In this regard she tendered a good deal of useful documentary material detailing some of the evolutionary processes leading to the current award configuration. The main purpose of this documentation was to demonstrate that Tradesman Assistants and Kitchen Hands have always occupied separate sections in the award. She also submitted duty statements or position descriptions indicating the nature of the duties performed by some Kitchen Hands and their direct line of supervision. If the case turned on those positions only it would be difficult to hold that persons covered by the various jobs specified in the material presented could fit the description of Tradesman Assistant. But as the Commission cannot concern itself with merit, a finding of that kind would need to result from an examination of the facts relating to individuals. Such an exercise may not necessarily involve Section 43 proceedings. In order to answer the questions asked by the applicant it is necessary to, among other things, consider the award structure as a whole. In this regard the scope of the award is extremely wide and embraces permanent and temporary employees previously engaged under the Hospitals Act to work in public hospitals. They may be part-time or full time, but must occupy a position covered by this award. Clause 8 (Salaries) makes it clear that subject to satisfying the prescribed requirements a person classified or graded within a classification or grade shall be paid the salary rate determined for the relevant classification to which he or she is designated. I can discover no prohibition whatsoever against persons being confined to the various award sections regardless of the work they perform. It seems to me that the nature of the work to be performed determines the classification to be assigned to the individual, subject only to any award requirement such as qualifications and matters of that kind. While it might be unusual for persons to be classified out of the award section into which they logically fall by the nature of the duties they perform, one could well imagine that it might be possible for a waitress or a catering maid, for example (Section VII - Domestic Staff) to be also found in a kitchen. I think that they award-maker has probably sectionalized the award primarily for ease of location. I doubt that the sections have been deliberately inserted for the purposes of fencing-in occupational groups with the intention of confining those classifications to the specified sections and those sections only. Nevertheless I concur with Mrs Gregg that kitchen hand duties are logically to be regarded as those functions within public hospitals that require the performance of general duties in or about a kitchen. I also agree that persons performing those duties would give general assistance to cooking staff. Just as a builder's labourer is found around a building site and gives general assistance to building tradesmen, that assistance is, as is suggested, only general assistance. Some builders' labourers perform specific functions while others carry out general duties. For example, whereas a general labourer would carry out a multitude of unskilled or semi-skilled work, a concrete floater on a building site might perform the specific tasks of placing and floating off wet concrete. Collectively the group of assistants are known as builders' labourers, or were once so designated. In a kitchen or a laundry the same situation would or could apply. Certain "in-house" titles could be prescribed for groups falling within the generic description of kitchen hand or laundry hand. A tradesman's assistant is, I think, a different person altogether. Although it is difficult to construct a precise definition of a tradesman's assistant, the proviso appended to the classification clearly requires the employing authority to apply certain tests before assigning that classification to an employee. Just what those tests might be would depend upon the extent of assistance given to the tradesman and the nature of the work itself. For example, a tradesman's assistant rendering direct assistance to a painter might, under direct supervision, prepare walls, mix paint, apply an undercoat and perhaps one finishing coat, leaving the tradesman to effect the specified or required finish. An electrical tradesman's assistant may work at a higher level than a painter's assistant because of the nature of the work and the danger inherent in working near live conductors. A motor mechanic's assistant would be doubt need to familiarize himself with rapidly changing technology in motor car manufacture and maintenance while working directly with a tradesman. It must be understood that the assistance given to a tradesman must be direct and not general. A plumber's assistant would be expected to be able to work with P.V. pipes and no doubt be competent to cut and glue low-pressure P.V. piping under direct supervision. In each case the tradesman is responsible for the work done by his "personal assistant". A tradesman-cook's assistant might be difficult to define. However he or she would not be a kitchen hand rendering general assistance in a kitchen. The classification of "cook's offsider" would be more descriptive of a tradesman-cook's assistant. He or she would need to give direct assistance to a cook, who could not be expected to be in a kitchen over the whole time span needed to prepare and serve three meals per day. In such cases cooks' offsiders or assistant cooks, to use the more popular term, sometimes prepare and serve entire meals such as breakfast or, on weekends, lunches. But to enjoy that status an employee would need to be able to demonstrate that he or she has particular skills and is required to use those skills in rendering direct assistance to a journeyman-cook. This conclusion is inevitable, I believe, having regard to the fact that while cooks and kitchen hands have always featured in the award, it is only the cook who in recent years has served an indentured apprenticeship in order to gain "extra" skills, including skills in management. The award does not permit a non-tradesman cook to be paid as a tradesman even if that person is cooking. Furthermore a person directly assisting a non-tradesman cook could not be reclassified as a tradesman assistant. On balance it seems to me that Mrs Gregg's assertion that in order to be a tradesman's assistant, direct (that is one-to-one) or personal assistance must be given to a tradesman, is a reasonable interpretation in the circumstances of this case. However, I cannot accept her further contention that tradesman assistants must be confined to the maintenance staff, although custom and practice would tend to suggest that this might be the main incidence area. Her argument falters, however, when regard is had for the fact that so-called maintenance staff and their personal assistants must also carry out new or construction work for which an extra disability allowance can be attracted. However attractive the argument presented by Mrs Gregg in this regard, it must be remembered that Section 43 proceedings are not concerned with merit. As I can discover no provision in the award that limits the Tradesman Assistant classification to maintenance work, it follows I cannot accept Mrs Gregg's assertion that such a limitation is inherent within the award framework. That may well have been the original intention, but in order to maintain that situation it would require a specific prohibition to be included in the award itself. No such injunction appears. Nevertheless I am of the opinion that on the proper construction of the award proviso that "no personal shall be employed under this classification [Tradesman Assistant] unless he directly assists a classified tradesman", it would be difficult for any or many Kitchen Hands to automatically qualify for reclassification merely because cooks are now tradesman. But this would, as I have said earlier, require individual findings of fact. The Macquarie Dictionary defines the verb "assist" in a number of ways, including "to be associated with as an assistant". "Assistant" is defined as "one who assists a supervisor in some office or work; helper". It gives by way of example the function of an assistant manager. The word "directly", although an adverb, is used in this case an adjective to describe the kind of assistance to be given. A number of alternative meanings are given, including "absolute; exactly; precisely." It is therefore possible to conclude that a Tradesman Assistant might be defined as - "a person who gives direct assistance to a tradesman". I think that the assistance given must be personal to the tradesman concerned, and must be direct assistance and not general. It seems to me, therefore, that a Tradesman Assistant in a kitchen would need to be working as the tradesman-cook's direct assistant. In more common parlance this used to be the work performed by a cook's offsider. No such classification appears in the award, although it was referred to in proceedings leading to cooks gaining recognition as tradesmen. It was also pointed out during that case that non-tradesman cooks who did not submit themselves for a trade test could not be classified above kitchen hand. No mention was made in those proceedings of non-tradesman cooks being classified as tradesmen's assistants. And while that decision2 was concerned solely with cooks who were tradesmen and cooks who were not entitled to that status, it did recognise that whereas cooks per se had upgraded their classifications, non-tradesman had not. On balance, therefore, a person giving direct assistance to a tradesman cook (as distinct from a non-tradesman) would need to have upgraded his skills beyond those of kitchen hand. This could only be determined on the facts of individual cases. But a general upgrading of kitchen-hand skills would not, under the terms of the award, qualify those persons as tradesman assistants as suggested by the Commissioner for Review in his statement. A much more stringent personal test would be required to satisfy the "directly assisting" requirement set out in the award. Accordingly I declare that:
The foregoing declaration shall operate from today's date.
L A Koerbin 1 Underlining mine | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||