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TA34

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T1421

Industrial Relations Act 1984

 

TA.34 of 1988 IN THE MATTER OF AN APPLICATION REFERRED FROM THE ANOMALIES CONFERENCE TO VARY THE INLAND FISHERIES COMMISSION STAFF AWARD and Correction Order
   
  RE: 4% SECOND TIER ADJUSTMENT IN SALARIES AND ADJUSTMENT IN ALLOWANCES FOR INLAND FISHERIES INSPECTORS
   
PRESIDENT 1 June 1988
   

REASONS FOR DECISION

   
APPEARANCES:  
   
For the Tasmanian Public Service Association - Mr. N. Buchanan
  with
  Mr. N. Wilson
  Mr. C. Thompson
   
For the Minister for Public Administration - Mr. J. McCabe with
  Dr. R. Sloane
   
DATES AND PLACE OF HEARING:  
   
2.5.88
3.5.88
Hobart
   

This matter comes before the Commission consequent on referral from an Anomalies Conference. In that matter an arguable case was found regarding certain claims by the Tasmanian Public Service Association relating to Inland Fisheries Inspectors.

When the matter came on for hearing, Mr. Buchanan (TPSA) identified the specific claims being prosecuted as:

1. 4% adjustment to salaries under the restructuring and efficiency principle;

2. Inclusion in the award of the present allowance of $1455, payable in accordance with State Service Regulation 13. The allowance in future to be regarded as compensation for after hours disturbances and the requirement to regularly work at unreasonable hours.

3. An allowance of 27.5% on salary in lieu of penalty payments for working after hours, weekends and on public holidays.

Evidence was led from three witnesses representing approximately 30% of the persons affected by the claim. They were Mr. V. Spencer (Senior Fisheries Inspector), Mr. V. Causby (Assistant Senior Fisheries Inspector), and Mr. N. Moroney (Inspector).

Evidence adduced through witnesses was directed at items 2 and 3 of the claim. It is therefore convenient to deal with item 1 (restructuring and efficiency) before moving to a consideration of the merits of items 2 and 3.

RESTRUCTURING AND EFFICIENCY:

Mr. McCabe facilitated disposal of this matter by indicating that the controlling authority would not oppose a 4% salary adjustment being awarded by the Commission provided that the same package of offsets agreed to in matters T.1216 and T.1233 of 1988 (generally regarded as the main test case for most, but by no means all, state employees) was applied to Inspectors. In this regard the Commission notes that those offsets already apply to all other employees subject to this award.

Mr. Buchanan agreed to this course, but requested that the same operative date as was applicable to other Inland Fisheries Commission staff be awarded with respect to this item. In short, he requested an operative date of the first pay period commencing on or after 23 March 1988. That date was opposed by Mr. McCabe. Due to the difficulties that that situation created for the Commission, having been faced with what was tantamount to an agreement, off-record discussion took place in the hope that a mutually acceptable date of operation could be agreed upon. This was unsuccessful.

The alternative to agreement can only be arbitration in which instalments not exceeding 2% now, and 2% not earlier than 1 July 1988, may be awarded.

After formal proceedings had concluded, further consultation occurred between the parties in this regard. In the event, agreement was reached by the TPSA and the controlling authority that the operative date of any restructuring and efficiency adjustment should be the date of decision.

Accordingly, this part of the claim is granted, subject to the same package of offsets as is currently applicable to other Inland Fisheries staff being applied to Inspectors. This means that basic rates for Inspectors will therefore be adjusted by 4% with effect from the first pay period commencing or after the date of decision.

INCLUSION IN AWARD OF EXISTING ALLOWANCE PAYABLE BY REGULATION:

Subsection (5) of Section 32 of the Industrial Relations Act requires the Commission to have regard for the Tasmanian State Service Act 1984 and any administrative or employment instructions issued under that Act, or any other Act that deals with conditions of employment for State employees, if requested to do so.

Regulation 13 of the Tasmanian State Service Act states:

"A person holding the position of an officer in the Inland Fisheries Commission under Part III of the Fisheries Act 1959, may be paid an allowance of $1355 [now $1455] as compensation for duties performed outside normal hours of duty."

Expressed as a percentage of the respective salary rates for the various classes of inspector, including the Senior Inspector, this amount represents 7.6% for the lowest level of Inspector, reducing to 6.1% for the Senior Inspector. Stated another way, it represents a payment for approximately 2.9 hours per week for the base grade or general Inspector, and 2.3 hours per week for the Senior Inspector.

No other overtime or penalty rate is payable for weekend, holiday or after hours duty.

Evidence led during proceedings established that Inspectors now work per annum an average of 30 weekends and 4 public holidays.

According to Inland Fisheries Commission management, satisfactory enforcement coverage could be achieved if Inspectors worked between 10 and 25 weekends, plus 4 public holidays.

It is also clear that the substantive salary rates payable to Inspectors are not "loaded" to compensate for extra hours worked. The rates payable are, by any standard, not excessive, although fair enough for base rates.

No formalised qualifications are required, but it is obvious that an enforcement officer, who, among other things, is sworn in as a Special Constable, must be selected carefully for the position he is to occupy.

The lot of an enforcement officer is not an easy one if the job is to be performed fairly in accordance with the Act and Regulations governing that work. An Inspector works alone and in fairly isolated conditions for a great deal of his time. Tact and discretion are essential requirements of his day-to-day policing duties. An Inspector is, to a large extent, the `shop window' of the Inland Fisheries Commission, which itself is responsible for management of a valuable tourist asset. In addition it provides a discrete community-piscicultural breeding resource to the commercial section of the Tasmanian freshwater fish and fishing industry.

At present salaries payable to Inspectors range from $17857 per annum to $20604 per annum; Assistant Senior Inspector $21568 per annum to $22085 per annum, and Senior Inspector $23469 per annum to $23985 per annum.

In terms of perspective, remuneration at the lower level classification of Inspector more or less equates with Clerk Class I/II respectively.

Assistant Senior Inspector aligns marginally above a Clerk Class III, while the Senior Inspector equates approximately midway between the first and second increments of a Class V Clerk.

Having regard for the duties and responsibilities of the respective positions and the conditions under which those duties are performed, I conclude that the rates payable reflect the work value of the positions only. There could be no inbuilt component for excess hours worked and the non-application of overtime provisions for duties carried out on Saturdays, Sundays and public holidays.

The only additional compensation to be discovered is 5 days' additional leave in recognition of the number of weekends and public holidays foregone.

On the other hand, shift workers are paid penalty rates for afternoon and night shifts worked on weekdays and for working rostered duty on weekends and holidays. All overtime is paid for at double time. They too enjoy an additional week's recreation leave.

If only 10 rostered Saturdays and Sundays were worked and paid for at standard weekend penalty rates for shift workers the extra payment would amount to the following:

10 Saturdays @ half time =

5 extra days

10 Sundays @ single time = 10 extra days
    15

Putting aside for the moment the reason why an extra week's leave is granted, 10 Saturdays (applying a shift penalty of 50%) would, in any case, account for the extra leave already allowed: i.e. 10 x ½ = 5, leaving 10 Sunday penalties; i.e. 10 x 1 = 10 - to be paid for. Expressed as a percentage, 1 week/52 weeks = 1.9% of the total working year. Public holidays excluded, extra premiums for 10 Saturdays and 10 Sundays equals 3 weeks, or 5.77% of working time. Therefore the current allowance of $1455 over-compensates by approximately 0.3% to 1.8%, using the controlling authority's figures of 6.1% to 7.6% as the equivalent value of the current allowance.

But the IFC considers that Inspectors should work between 10 and 25 weekends, plus 4 public holidays.

Therefore, assume 20 Saturdays and 20 Sundays, plus 4 public holidays were worked. The equation would be:

Saturdays: 20 x ½1 = 10
Sundays: 20 x 1 = 20
Public holidays:

4 x 1*

= 4
      34 days

Thirty-four days, or 34/260 working days = 13% (approximately).

No provision is made for penalties otherwise payable for time worked before or after normal working hours.

Clearly, in the circumstances described, the present $1455 allowance paid as a flat rate would be inadequate compensation.

The evidence led supports the TPSA assertion that some Inspectors work considerably more weekends and excess hours (i.e. unsociable hours before or after 8 a.m. and 5 p.m.) than do others. Equity demands therefore that fair compensation can best be awarded in either of two ways:

(a) By payment for time actually worked on Saturdays, Sundays, public holidays and outside working hours; or

(b) By a sliding scale of compensatory allowances to be paid to individuals, having regard for the general workload put upon each employee and the circumstances in which the work is carried out.

Option (a) would, of course, be entirely fair but impracticable, as Inspectors generally work unsupervised. Moreover, if payment on that basis was to be settled upon, the potential for disputes would arise regarding the necessity to work on the days upon which overtime might be claimed.

Option (b) would need to be a fair average and take into consideration time off or passive time taken at the discretion of the individual. Naturally there would need to be a general or blanket approval and directive for that to occur wherever possible.

The annual allowance to an individual could be reviewed at regular intervals. Any review would necessitate, among other things, examination of properly vouched-for diaries. These appear to be kept in an unsatisfactory state at the moment, although there is no suggestion of impropriety.

I have therefore decided to determine this matter on the basis of Option (b).

If this is properly applied, the $1455 allowance will be automatically subsumed. However, the award variation will ensure that no Inspector receives less than that currently payable pursuant to Regulation 13 which should thereafter be rescinded.

DISCRETIONARY ALLOWANCE:

The allowances to be applied to individuals shall be payable at the absolute discretion of the controlling authority and may be reviewed at any time, depending upon circumstances. Generally the basis of the allowances to be determined should be reviewed annually.

Each inspector shall have his salary adjusted by an all-purpose percentage allowance which shall be payable on all approved leave other than leave without pay or long service leave.

The minimum extra payment shall, in any case, be not less than $1455 per annum or 8% on designated salary, whichever is the greater.

No Inspector in receipt of a discretionary allowance shall be entitled to any additional allowance or leave in lieu related to the following:

1. After hours disturbances;

2. Overtime;

3. Penalties for work done outside ordinary working hours, however described, and on any day;

4. On call;

5. Minimum payments;

6. Working in extreme weather conditions.

The only occasion that overtime or extra compensation might fairly be considered would be in circumstances where an Inspector is directed to take part in a search and rescue operation. If that occurs, and it can be shown that other employees such as police, or Lands, Park and Wildlife Rangers are being paid, it would not be unreasonable for Inspectors to also attract overtime.

In those circumstances any all-purpose allowance otherwise payable should be suspended for the period that ordinary overtime is paid.

Reference to sever climatic conditions as a component or consideration for payment of an all-purpose allowance needs to be properly understood. It should not encourage non-inspectorial staff at (say) Liawenee to seek a similar allowance. The situation I have in mind is the severe conditions under which Inspectors sometime carry out surveillance duties at the site of creeks, rivers, lagoons or lakes; the conditions under which they eat and sleep during the period of the surveillance, and the number of occasions it can be assumed an Inspector will, in that context, be exposed to the rigours of winter in the highlands or other remote areas.

The current practice of allowing an extra week's leave as compensation for weekends and holidays foregone, should continue.

The allowances to apply shall be selected from the following:

"COMPENSATORY ALLOWANCE: (in lieu of items 1 - 6 on page 10)
   
Category A An amount of not less than $1455, or 8% of an employee's substantive salary
   
Category B An amount of not less than 9% or more than 11% of an employee's substantive salary
   
Category C An amount or not less than 12% or more than 15% of an employee's substantive salary
   
Category D An amount of not less than 16% or more than 17.5% of an employee's substantive salary"

So that there can be no misunderstanding on implementation of this decision, it is intended that the controlling authority determine for each individual Inspector the rate and category of allowance to which he is entitled. The actual rate can be selected as the minimum or the maximum in that category. Or it may be an intermediate rate. For example, in Category B an Inspector could attract an allowance of 9%, 10% or 11%. However, this option should not be regarded as an incremental range. That is not the intention.

The evidence supports the conclusion that:

1. Inspectors appear to work their ordinary hours at times not necessarily considered compulsory. Some rationalisation of working times seems to be required.

2. They generally work without supervision.

3. Rightly or wrongly, an Inspector decides for himself whether to turn out to investigate an alleged incident, or leave it until some time later, or to ignore it altogether.

4. Taking more time off in lieu of excess hours worked is clearly a possibility.

5. Time claimed to have been worked by some Inspectors appears to be excessive and unnecessary, but none the less bona fide, as no overtime has been attracted as a consequence.

6. At least one Inspector appears to have different duties some of the time to those of other Inspectors.

It is obvious therefore that in order to be fair to both the controlling authority and the inspectorial staff, a system of personalised and reviewable allowances is appropriate. However, bearing in mind that the claim was for 27.5% plus continuation of the $1455 existing allowance (amounting to approximately 6.1% to 7.6%), the effect, if granted, would have been for payments exceeding 30% for all inspectorial staff. In fact, excluding the restructuring and efficiency 4%, after allowing for absorption of the $1455, the maximum additional allowance is of the order of 9.9% (i.e. 17.5% minus $1455 = 9.9% approximately).

Other factors aside, the maximum allowance proposed represents significant compensation for working on Saturdays, Sundays, public holidays and after hours for which no time off has been allowed.

It follows that I reject any notion of Inspectors being shift workers (as in the case of the Police Award). I also dismiss as inappropriate any comparison with a police officer in a one-man station. Police officers have regular daytime duties. They are subject to, and required to turn out to all after hours disturbances. They also relieve on a roster basis in the districts assigned to an adjacent station or stations. This means most one-man station officers must be familiar with at least two and sometimes three districts. They must also take after hours calls in those outer districts. Among other things, this involves a great deal of extra travel and call outs. It also necessitates them acquiring a thorough knowledge of the residents and geography of the areas surrounding their own allocated districts.

In my opinion the allowances now determined if properly applied are reasonable and will fairly compensate for additional hours worked and the times at which those hours are spent on duty. Should any dispute arise as to an Inspector's entitlement, it may be referred to the Commission for determination as a last resort. Nevertheless, I am confident that common sense will prevail and a reasonable scale of allowances will be struck for all Inspectors currently entitled to more the $1455 per annum.

The new allowance proposed has been determined on work value grounds in accordance with Principle 6(a)(ii) and 6(b)(ii), having first been processed as an "arguable case" before an Anomalies Conference.

Although I am somewhat concerned at the impact of the restructuring and efficiency 4%, plus the potential cost of upgrading the existing $1455 per annum allowance, the fact remains that only 9 persons are affected. In dollar terms the cost should not be high, although the impact on the IFC salaries vote will not go unnoticed.

Both the 4% salary adjustment and the revised allowances shall take effect from the beginning of the first pay period commencing on or after 1 June 1988.

 

L.A. Koerbin
PRESIDENT

1 Shift rate penalties