REVIEW OF TRANSPORT WORKERS (GENERAL) AWARD NO. 10 OF 1961 SCOPE CLAUSE PURSUANT TO S 37D OF THE INDUSTRIAL RELATIONS ACT 1979 (WA)

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

COMMISSION IN COURT SESSION

CITATION : 2024 WAIRC 00832

DELIVERED : FRIDay, 20 SEPTEMBER 2024

FILE NO. : CICS 20 OF 2022

Applicant

AND

(Not applicable)

Respondent

Catchwords : Industrial Law (WA) – Commission’s Own Motion – Transport Workers (General) Award – s 37D of the Industrial Relations Act 1979 (WA) – Variation to the scope clause of private sector award – Donovan clause replaced – Expanded scope provision – Express application to labour hire businesses and group training services – Award scope varied

Legislation : Industrial Relations Act 1979 (WA)

Result : Award varied

Representation:

Case(s) referred to in reasons:

Commission’s Own Motion v (Not applicable) [2023] WAIRC 00801; (2023) 103 WAIG 1752

R.J. Donovan and Associates Pty Ltd v Federated Clerks Unions of Australia Industrial Union of Workers, W.A. Branch (1977) 57 WAIG 1317

Reasons for Decision

THE COMMISSION IN COURT SESSION:

1         In reasons for decision concerning the review of the Restaurant, Tearoom and Catering Workers’ Award scope clause under s 37D of the Industrial Relations Act 1979 (WA), the Commission in Court Session set out the process for identifying awards suitable for a scope review, and for reviewing that award’s scope: Commission’s Own Motion v (Not applicable) [2023] WAIRC 00801; (2023) 103 WAIG 1752 (CICS 5 Reasons). It also set out the reasons for and intention behind the scope variations which were made to that award.

2         The Transport Workers (General) Award No. 10 of 1961 was another of the awards identified as suitable for scope review, as a result of the process described in the CICS 5 Reasons.

3         The Commission gave notice of the proposed variations to the Award, and of the opportunity to be heard in relation to them, in the Industrial Gazette and on the Commission’s website. It also gave notice to the Hon. Minister for Industrial Relations, UnionsWA, the Chamber of Commerce and Industry of Western Australia (Inc) and the Australian Resources and Energy Employer Association, formerly known as the Mines and Metals Association.

4         It directed that the following parties to the Award and other organisations be given notice:

(a) Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch(TWU);

(b) Western Roads Federation Pty Ltd;

(c) Australian Road Transport Industrial Organisation;

(d) Livestock and Rural Transport Association of Western Australia (Inc); and

(e) Baking Industry Employer’ Association of Western Australia.

5         The Commission considered that there was not a sufficient number of employers reasonably representative of the employers who would be bound by the proposed variations. As such, no private sector businesses were directed to be given notice as being a sample of employers which the Commission considered were reasonably representative of the employers who would be bound by the proposed variations.

6         However, notice of the proposed variations was published in the Industrial Gazette and on the Commission’s website.

7         The Minister, UnionsWA and the TWU support the proposed variations.

8         No other individual, organisation or employer has advised the Commission of any opposition to the proposed variations.

Proposed variations

9         The Award’s scope provision is currently defined as applying to:

…all employees following the vocations referred to in the Classifications Clause 4.3 who are eligible for membership in the applicant Union and who are employed in the industries referred to in Clause 12.1. Provided that this Award shall not apply to employees engaged in the timber industry within the South West Land Division nor to employees whose duties involve them in delivering goods or materials solely beyond the West Australian State border.

10      The Minister identified this scope provision as of the type discussed in R.J. Donovan and Associates Pty Ltd v Federated Clerks Unions of Australia Industrial Union of Workers, W.A. Branch (1977) 57 WAIG 1317, sometimes referred to as a Donovan scope clause, whereby named employer parties are typically listed under one or more of the industry headings and it is the industry heading itself that is relevant in determining the scope of the award. The Minister submitted that the industry headings referred to in Donovan scope clauses are often very specific in nature, perhaps better described as ‘micro-industries,’ and that presently, many employees are award free because of the narrow manner in which many industries are defined.

11      Similarly, the TWU submitted that the scope provision leaves gaps in coverage and creates anomalies. It submitted that the gaps be closed by a scope clause mirroring the coverage of the Road Transport and Distribution Award 2020, being a modern award under the Fair Work Act 2009 (Cth). The modern award’s coverage turns on its definition of ‘road transport and distribution industry.’

12      Accordingly, the proposed variations seek to expand the scope provision to apply to employers in the road transport and distribution industry and their employees listed in the classification clause of the Award. One of the consequences of the inclusion of a definition of road transport and distribution industry is that employees in mobile food vending will be covered by the Award, making the Transport Workers (Mobile Food Vendors) Award obsolete.

13      The variations recover the exclusion from coverage of drivers who only perform interstate delivery work.

14      Further variations are intended to:

(a) provide clarification in relation to labour hire businesses and group training services for apprentices or trainees; and

(b) expressly state that the Award does not apply to employees who are covered by another State award, or are subject to the national industrial relations system, to ensure that employers are not subject to more than one award simultaneously in relation to an employee.

15      These purposes are common to the rationale and intent of the variations in the CICS 5 Reasons and the CICS 5 Reasons should be referred to for elaboration about the purpose of the variation.

Conclusion and Order

16      The Commission orders that the Transport Workers (General) Award No. 10 of 1961 be varied in accordance with the Schedule attached to these reasons, with such variations to take effect from the date of the Commission’s order.