TCFUA appeal secures right of entry

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TCFUA appeal secures right of entry

The TCFUA has won access to a fabric treatment factory after the AIRC Full Bench found the Textile Award was ‘in force’ for the purpose of s285B(1)(b)of the Workplace Relations Act 1996 despite an earlier finding that the Rubber Award was more relevant to the majority of employees.

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9/03

 

The TCFUA has won access to a fabric treatment factory after the AIRC Full Bench found the Textile Award was ‘in force’ for the purpose of s285B(1)(b)of the Workplace Relations Act 1996 despite an earlier finding that the Rubber Award was more relevant to the majority of employees.

The Full Bench said an award was in force 'where employees work who are members of the [relevant] organisation, if the employer is bound by the award and it governs the terms and conditions of employment of any employees who perform the work. The application of another award to the work in question is not relevant.'

Background

The decision dealt with an appeal by the Textile, Clothing and Footwear Union of Australia against a decision by Commissioner Grainger in which he declined to make an order under s285G of the Workplace Relations Act.

The decision arose out of a dispute between the TCFUA and National Coating Company Pty Ltd concerning the right of certain TCFUA officials to enter the company’s North Bayswater premises.

The company’s business is to treat curtain fabrics with a polymer coating, however, in preparation for coating, several employees are engaged to sew together the varying lengths of the fabric to form 1,000 metre long rolls.

The TCFUA assisted a National Coating’s employee sort out a pay dispute and the employee subsequently joined the union. A TCFUA organiser advised the company he wished to enter the premises to exercise powers under s285B. The company refused access saying it believed it was covered by the Rubber, Plastic and Cablemaking Industry General Award 1998. National Coating is a member of the Australian Industry Group which is respondent to both the Textile Award 2000 and the Rubber Award. The TCFUA filed a dispute notification later on the same day.

The focus of the proceedings at first instance was whether the Textile Award was ‘in force’ (within the meaning of s285B(1)) at the North Bays waterfactory. The TCFUA contended that it was and the company argued that the relevant award was the Rubber Award.

Commissioner Grainger found that while the NUW’s eligibility rules applied to the preponderant polymer coating activity at the factory, the employees who performed the butt sewing work fell within the scope of the TCFUA's eligibility rules. The TCFUA failed to secure an order allowing access under s285B and s285C, but the Commissioner did recommend that the company permit TCFUA officials to enter the factory to hold discussions with any of National Coating’s employees who wished to participate.

On appeal the TCFUA contended that whether the Textile Award was ‘in force’ (within the meaning of s285B(1)) was not the issue and that Commissioner Grainger erred in principle in adopting the approach he took to the determination of the matter before him.

Further, it submitted that in taking the scope of the Rubber Award into account he had regard to an irrelevant consideration.

Findings

The Full Bench said two errors were manifest in the decision subject to appeal. The first error was an error of principle. The dispute before Commissioner Grainger concerned whether a TCFUA officer holding a s285Apermit was entitled to access the North Bayswater factory to investigate suspected award breaches. A permit holder’s right to enter premises to investigate suspected award breaches is dealt with in s285B of the Act.

This section provides that it only applies if there is a breach of 'an award, an order of the Commission, or a certified agreement, that is in force'. The Full Bench found the question of the application of the Rubber Award to the work in question was irrelevant to the issue to be determined and whether or not it was 'undesirable for the work in question to be covered by more than one award was not a matter for determination in the matter at first instance'.

The second error amounted to a failure to exercise jurisdiction. It said the Commissioner did not deal with the terms of s285B at all and seemed 'to conflate' the requirements of s285B and s285C. 'In conclusion, it seems to us that the Commissioner either misconstrued the nature of the matter before him or failed to determine the dispute in respect of s285B. Both amount to a failure to exercise jurisdiction.'

The Full Bench said the errors it identified in the Commissioner’s decision warranted correction on appeal. It granted leave to appeal, upheld the appeal and quashed the Commissioner’s decision. It remitted the dispute to Vice President Ross for determination pursuant to s45(7)(c).

The Full Bench also noted that on appeal the TCFUA contended that the Textile Award was ‘in force’ for the purpose of s285B(1)(b). It concluded that the Textile Award was ‘in force’ within the meaning of the section and that the requisite power existed to grant the relief sought by the TCFUA.

'An award is "in force" "where employees work who are members of the [relevant] organisation", if the employer is bound by the award and it governs the terms and conditions of employment of any employees who perform the work. The application of another award to the work in question is not relevant.'

See: Textile, Clothing and Footwear Union of Australia and National Coating Company Pty Ltd, FB of AIRC PR936292, (15 August 2003).

 

 

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