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Dec 590/90 S Print J3026
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1988 s.107 reference by the President
The Amalgamated Metal Workers' Union
and
Metal Trades Industry Association of Australia and others (C No. 20311 of 1990)
The Federated Engine Drivers' and Firemen's Association of Australasia and
Metal Trades Industry Association of Australia and others (C No. 20357 of 1990)
The Building Workers' Industrial Union of Australia
and
Addis (Australia) Pty Limited and others (C No. 20358 of 1990)
The Amalgamated Society of Carpenters and Joiners of Australia
and
Metal Trades Industry Association of Australia and others (C No. 30421 of 1990)
Association of Draughting, Supervisory and Technical Employees
and
Metal Trades Industry Association of Australia and others (C No. 30428 of 1990)
Australasian Society of Engineers
and
Metal Trades Industry Association of Australia and others (C No. 20401 of 1990)
The Federated Ironworkers' Association of Australia
and
Metal Trades Industry Association of Australia and others (C No. 20384 of 1990)
Metal trades employees Metal and engineering industry
JUSTICE LUDEKE DEPUTY PRESIDENT KEOGH COMMISSIONER COX SYDNEY, 15 JUNE 1990
Conciliation and arbitration powers - jurisdiction - training - claim that employers agree to establishment of a National Metal and Engineering Industry Training and Career Development Board - no objection in principle to establishment of board but Commission's jurisdiction challenged - ACTU and Commonwealth intervened in support of Commission's jurisdiction - Bench rejected submission that matter was not industrial as training has long been an element in employment relationship - also, claim that employers increase employees' gross weekly wages by 10% constituted a taxing provision rejected - Commission has jurisdiction to adjudicate unions' claims.
DECISION
These matters came to the Full Bench on reference by the President under s.107 of the Act. The issue for determination concerned several union logs of claims that employers in the metal and engineering industry agree, amongst other things, to the establishment of a National Metal and Engineering Industry Training and Career Development Board. That particular claim took the following form:
"NATIONAL METAL AND ENGINEERING INDUSTRY TRAINING AND CAREER DEVELOPMENT BOARD 1. The employer shall increase each employee's gross weekly wage by 10 per cent. 2. The employer shall establish and continue to participate in jointly with its employees and their unions a National Metal and Engineering Training and Career Development Board. 3. Leave shall be reserved to an employer to apply to the Commission for exemption from clause 1 on the grounds that: (i) the employer has become a participant in the establishment and continuing activities of a National Metal and Engineering Training and Career Development Board ("the Board") which requires such employer to make contributions in respect of each employee of an amount equivalent to 10 per cent of such employee's gross weekly wage; and (ii) participation by the employer in the establishment and continuing activities of the Board is in conjunction with such employer's employees and their union.
4. The activities of the Board shall be directed towards facilitating award-based skill-related career paths which provide an incentive for employees to continue to participate in skill formation by providing for the portability of skills acquired by employees. 5. Such a Board will be responsible for but not limited to the development of: (i) training and skill standards; (ii) curricula development; (iii) accreditation techniques; (iv) training guidelines (for both on and off the job training). In addition, the Board will be responsible for, but not limited to the development of: (v) national industry recognition of education and training arrangements; (vi) consistent standards in training throughout the industry including both on and of the job training; (vii) procedures directed at the recognition and establishment of accreditation standards for both on and off the job training; (viii)procedures directed to the removal of barriers to allow for the progression of employees through an award-based skill-related career structure by the completion of metal and engineering industry training courses nationally."
The logs had been served by most of the unions having members in the metal and engineering industry. Although the Australasian Society of Engineers (ASE) served a log containing a clause in the form of the clause set out above, it did not support it. The Electrical Trades Union of Australia (ETU) as an intervener, the ASE, the Electrical Contractors' Association of Australia Limited, the Electrical Contractors' Federation of Victoria and the Australian Chamber of Manufactures (ACM) had no opposition in principle to the establishment of a board such as that proposed, but submitted that the Commission had no jurisdiction to award the clause sought.
Submissions supporting the exercise of jurisdiction were put on behalf of:
The Amalgamated Metal Workers' Union The Federated Engine Drivers' and Firemen's Association of Australia The Building Workers' Industrial Union of Australia The Amalgamated Society of Carpenters and Joiners of Australia Association of Draughting, Supervisory and Technical Employees The Federated Ironworkers' Association of Australia
Metal Trades Industry Association of Australia and the Engineering Employers' Association of South Australia also argued that it was within the Commission's jurisdiction to award a clause of the nature sought. The Australian Council of Trade Unions and the Commonwealth intervened to adopt and support the submissions that the Commission's powers enabled it to award the clause.
On 12 April 1990, Deputy President Keogh published an order(1) which varied the Metal Industry Award 1984 - Part 1. The order was made by consent and the variations gave effect to changes which had been negotiated in accordance with the Commission's Structural Efficiency Principle. The principal theme of the changes was a commitment by the parties to co-operate in increasing the efficiency, productivity and international competitiveness of the metal and engineering industry and to enhance the career opportunities and job security of employees in the industry.
The training of employees was recognized by the parties as a key element in achieving these goals: a new provision titled clause 6C Training was introduced into the award. The opening words of this clause are as follows:
"6C - TRAINING
(a) The parties to this award recognise that in order to increase the efficiency, productivity and international competitiveness of industry, a greater commitment to training and skill development is required. Accordingly, the parties commit themselves to:
(1)Print J2043
(i) developing a more highly skilled and flexible workforce; (ii) providing employees with career opportunities through appropriate training to acquire additional skills, and (iii) removing barriers to the utilisation of skills acquired."
There follows a comprehensive prescription of such matters as the development of training programmes by employers, the development of vocational skills by recourse to accredited educational institutions and the role and responsibilities of training committees.
As we have indicated, there was no objection in principle to the establishment of a board such as the board sought by the unions; the difference was that ACM considered that the board should be constituted by agreement and if that was not possible it should be established by legislation. Having made this statement of policy, ACM submitted that a clause such as that claimed was beyond the Commission's jurisdiction. ACM was not so much concerned with the wording of the clause as with the concept, and it was put that the concept emerging from this clause was too general. The clause was too indirect in the sense of being remote from matters that are normally described as matters arising between employers and employees. While acknowledging that in due course the board in exercising its functions would have direct benefits for employees and their employers, it was said that the clause affects no employee and affects employers only in the sense that the employers have to fund it. It was pointed out that the clause does not guarantee training or even the opportunity for training, and was not a provision that directly confers benefits on employees and on employers. According to ACM, an employer's relationship with the proposed board would be as a member of the industry rather than because of the employer's obligations to its employees.
It is apparent that in drafting the clause the unions had regard for the claim in respect of superannuation which was considered by the High Court in Re the Manufacturing Grocers' Employees Federation of Australia and another; Ex parte the Australian Chamber of Manufactures and another(2). Counsel for ACM relied on the Court's observations in that case to support the submission that the clause was beyond the Commission's jurisdiction. He drew attention to the fact that in Manufacturing Grocers, the union's proposal was based on the existence, outside the provisions of the award, of superannuation funds to be administered by their own trustees; this was to be contrasted with the clause under consideration, which only proposed the establishment of a board some time in the future. Counsel relied on the following passage from the Court's judgment:
"... it is sufficient to say that a matter must be connected with the relationship between an employer in his capacity as an employer and an employee in his capacity as an employee in a way which is direct and not merely consequential for it to be an industrial matter capable of being the subject of an industrial dispute."(3)
It was submitted that the matter raised by the claim has no direct bearing on the relationship of employer and employee, but was merely consequential, and therefore it could not be said to be an industrial matter.
We are unable to accept this submission. Training employees has long been an element in the employer-employee relationship. Although some employers have never found it necessary to accept this responsibility, there are many who provide training for new employees or who require employees to undergo training to prepare for the job or for appointment to new jobs. The training of an employer's apprentices has always been a feature of the metal and engineering industry, as it is in other industries. Training has mutual benefits for both employer and employee, as those opposing the clause acknowledged.
(2)(1986) 160 CLR 341 (3)(1986) 160 CLR at p.353
The recent consensual variations of the Metal Industry Award - Part 1 reflect the concern of the industry's employers and employees that training should be at the forefront of the drive to enhance efficiency, increase productivity and strengthen the industry's international competitiveness. We are satisfied that the claim that employers should establish and participate in a Training and Career Development Board is part of the process of implementing the training objectives set by the parties and is a claim about a matter pertaining to the relationship between employers and employees.
It was also argued on behalf of ACM and those supporting its submissions that the claim that employers increase employees' gross weekly wages by 10 per cent was in the nature of a taxing provision, but we do not consider this is so. The claim is in the conventional form of a demand for increased wages and does not bear those characteristics of a tax recently discussed by the High Court in Air Caledonie International v The Commonwealth(4). A third objection to approval of clause 34 was that the Commission was being asked to establish the board and provide its charter. This, it was said, was a matter for legislation if the parties fail to reach an agreement, but not a matter for which the Commission should accept responsibility. This may be a relevant argument going to the exercise of discretion under s.111(1)(g) of the Act; it is no reason for holding that the Commission lacks power.
The final submission was that the proposed clause is analogous to social or political legislation. This may be so, but again this has little to do with the question of the Commission's jurisdiction to make an award dealing with the subject.
In our opinion, the Commission has jurisdiction to adjudicate upon the claims raised in the unions' logs.
(4)(1988) 63 ALJR 30 ** End of Text **
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