T8838
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Australian Workers' Union, Tasmania Branch FARMING AND FRUIT GROWING AWARD
Interpretation - Clause 2 Scope of the Farming and Fruit Growing Award REASONS FOR DECISION [1] This is an application by the Australian Workers Union, Tasmania Branch (AWU), made pursuant to s. 43(1) of the Industrial Relations Act 1984 (the Act) for an interpretation of Clause 2 - Scope, of the Farming and Fruit Growing Award (the F&FG award). [2] Clause 2 Scope states:
[3] The application was initially listed before President Westwood on 31 March, 2000, at which time appearances were recorded by the Tasmanian Chamber of Commerce and Industry (TCCI) and the Tasmanian Farmers and Graziers Employers Association (TFGEA). Mr Flanagan represented the AWU and Mr D Durkin was also present and recorded an appearance. [4] Following some time in conference, chaired by the then President, the matter was adjourned to allow the parties to have some discussion about the application and for the AWU to consider its position. [5] The matter was relisted on 24 January, 2001, together with matter T8763 of 1999, which is an application made by the AWU to recover claimed underpayment of wages. T8763 of 1999 is not able to be progressed as the determination of that matter relies on an interpretation of the F&FG award which is the application the subject of this decision. [6] The matter was again adjourned. [7] The hearing recommenced on 29 April, 2002, and appearances were recorded on behalf of the AWU and the TFGEA. There was no representation by the employer party to the dispute in matter T.8763 of 1999. [8] The matter was again adjourned and directions were issued in the following terms:
[9] At the relisting of proceedings on 11 June, 2002, Mr D Durkin appeared representing Westlake Bulk Spreading and Westlake Bulk Fertilisers (Westlake) who is the employer in the alleged underpayment of wages claim in Matter T8763 of 1999. [10] Section 33(1) of the Act provides:
[11] Section 38 of the Act states:
[12] The AWU presented an "Agreed Statement of Facts" which said: *Mr Scott Westlake conducted a business of spreading fertiliser under the trading name of Westlake Bulk Spreading. *Fertiliser cannot be purchased directly from the manufacturer. Fertiliser can only be purchased through a distributor such as Roberts, Websters and Tasag etc. *The business had two principle activities those being (a) the handling and spreading of fertilisers and (b) measuring seed and fertiliser, and spreading the mixture. *The income of the business was derived from two principle sources:
*The business operated 5 items of machinery those being 2 tractor spreaders, 2 truck spreaders and a loader. *The clients to the business were principally farmers. *The activity of the business was to spread the fertiliser or fertiliser/seed mixture on the farm using the machinery referred to above. At no stage did Westlakes actually own the fertiliser or fertiliser/seed mixture. [13] In respect to the statement Mr Durkin said "the agreed facts are slightly different to those that were outlined by my friend, but nothing much turns on it so I don't at this point aim to break that up into yes's and no's but basically we have a common agreement that principally, Westlakes Spreading and Westlake Bulk Fertilisers, two individual businesses, were principally involved in the one exercise of taking grain from bulk stores and delivering that to the farm and at no stage did they own the fertiliser; the fertiliser was either owned by the seller, example Roberts, one of the large suppliers, or the owner, if it wasn't them, would have been the farmer. There's no disagreement on that." [14] The AWU argued that the F&FG award identifies a classification or occupation for the work in question, that work being the spreading of fertiliser and seed mixture and the relevant classification is that of a mechanical plant operator. [15] Mr Flanagan relied on the facts in the agreed statement and submitted that the employer was subject to the Scope provision of the F&FG award and that the employees operated equipment as found in the classification structure of the F&FG award. He claimed that the relevant classification was that of Mechanical Plant Operator, Level 1 which provides:
[16] It was submitted that the employer referred to in the classification descriptor was the farmer not the contractor. [17] Mr Durkin appearing on behalf of the employer argued that Westlake was in the business of the storage and distribution of fertiliser and not in the business of farming. As such the employer was respondent to an award of this Commission known as the Fertiliser Industry Award made by application of the AWU in Matter T5756 of 1995. [18] He submitted that on investigation it was decided that the Fertiliser Industry award was the appropriate award as it had been established in respect of the "industry of the manufacture and/or distribution of fertiliser" which is the business of the employer. [19] It was submitted however that the Fertiliser Industry award was silent as to wages and conditions and existed in name only. [20] There is no doubt that the Fertiliser Industry award, if indeed it is an award, is in title and scope only and provides no conditions of employment or rates of pay. [21] I have researched the history file of the Commission in respect to the award and note that by a decision of President Westwood the Fertiliser Industry award was made, by consent, in 1995. [22] The history file is scant on relevant information and there is no transcript of proceedings other than a file note and some handwritten notes. [23] The decision issued when making the Fertiliser Industry award states:
and further:
[24] The scope of the Fertiliser Industry award is in respect to the manufacture and/or distribution of fertiliser which includes coverage for distribution rather than just to cover the manufacturing business previously conducted by Pasminco. Nevertheless I am of the view that it is not an award as intended by the Act, it does not include any position descriptions or classifications to attract s.38(a)(i) which provides:
[25] I note that the definition of award in the Act only refers to it being made in accord with the Act. However s.37 (where relevant) requires:
[26] As there are no provisions in the Fertiliser Industry award that are capable of application, implementation or enforcement it is my view that the Fertiliser Industry award is a meaningless document in its present form. There are simply no provisions capable of application. [27] Nevertheless the history as to the reason the Fertiliser Industry award was made is relevant to the application before me for determination. The decision issued when making the Fertiliser Industry award refers to the fact that the fertiliser division of the Pasminco operation was award free. It was also stated in the decision that "Other businesses involved in the industry were identified to acquaint the Commission with the potential coverage of a new award." It would seem from that statement that the intent was that any new award would provide coverage for the fertiliser industry. [28] Notes found in the file indicate that the industry was unregulated and award free. [29] By his acceptance of the submissions of the AWU the decision of President Westwood would indicate that the industry was then, and still is, award free. [30] The F&FG award, the subject of this application, was made in Matter T226 of 1985 by a preliminary decision made on 17 January, 1986. The F&FG award, made by consent, replaced the Agriculturists award and by that decision also varied, by consent, the scope clause to reflect:
[31] By further decision issued 30 August, 1991, with a prospective operative date to be determined, the scope clause of the F&FG award was varied "having considered the submissions of the parties and their degree of unanimity I am prepared to endorse the new title and scope of the Agriculturists Award in the same terms as that presented by the applicant." [32] The F&FG award was varied as follows:
[33] Since that time there have been some minor changes to the scope clause of the F&FG award which are not relevant to this application before the Commission. [34] The AWU argued that the F&FG award had application to employees and employers in the fertiliser industry however reference to the submissions presented on behalf of the AWU in 1995, for the making of the Fertiliser Industry award, claimed that the industry was then award free. There has been no variation to the scope clause of the F&FG award to embrace the fertiliser industry. Accordingly the F&FG award, which was made many years before the Fertiliser Industry award, did not apply to employees and employers engaged in the fertiliser industry otherwise there would have been no need for the making, by application of the AWU, of the Fertiliser Industry award. [35] The TFGEA argued that if the AWU was successful in its application it would have an effect on a number of other fertiliser spreading companies. It was submitted that the F&FG award scope clause made no reference to fertiliser and that there may also be an impact with employees and employers party to the Silviculture and Afforestation Award. [36] The scope clause of the F&FG award states that it is established in respect to the industry of farming and/or fruit growing and then proceeds to describe the specific type of activity and work performed. It is drawing a long bow indeed to claim that the scope of the F&FG award has application to an employer in the fertiliser industry, no mention of the industry is found in any part of the award. Awards of this Commission are made in respect to an industry. Accordingly it is necessary to first determine the industry in which the employer is engaged and which award, if any, has application to that industry prior to considering an appropriate classification. [37] In respect to the decision referred to by the AWU, Re: Peter Robert Saunders and Park Homes Pty Ltd [No.T13 of 1988] the question to be determined was whether the work was performed "in connection with the erection....... of buildings or structures" or within the definition of "construction work" as found in the relevant award. [38] His Honour Justice Gray of the Federal Court said:
[39] His Honour also said when considering the approach to adopt in interpreting a provision of an award:
[40] The provision in the F&FG award is in different terms to that referred to above and I am of the view that the words therein do not allow or intend any extension of their normal meaning. If anything the words found in 2(a), (b), (c), (d), (e), (f), and (g) of the F&FG award describe the type of work likely to be undertaken in the industry. The classification structure can only be considered in concert with the industry description and not in isolation. [41] Likewise the dictionary definitions provided by the AWU are accepted for what they are but do not assist the claim that the F&FG award covers employees engaged in the work of spreading fertiliser or fertiliser/seed mixture. [42] Mr Flanagan referred to a decision of President Koerbin in matter T30 of 1985 which he referred to as the seminal decision in respect to the interpretation of awards of the Tasmanian Industrial Commission. [43] That decision made the following observations:
[44] I now consider the application before me against those principles.
[45] I am of the view that the F&FG award does not have application to employees and employers where the major and substantial work performed is in the fertiliser industry, this it would seem was the view of the AWU in 1995 when pursuing an award for that industry. [46] Whether a particular employee has an entitlement under the F&FG award will depend on the specific employment circumstances which apply to that individual. [47] In determining this application reference has been made to one particular employer (Westlake), however the determination is in respect of the fertiliser industry and not Westlake in particular. It was a claim against Westlake alleging underpayment of wages which generated the application. [48] As an aside to this application the parties to the Fertiliser Industry award will be asked to show cause why that award should not be set aside. There has been no action on its terms and conditions for many years and as such the document serves no useful purpose. The Commission will set down a hearing, on its own motion, to determine the future of the document titled the Fertiliser Industry Award.
P L Leary Appearances: Date and place of hearing: |