IN THE TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T2603

Industrial Relations Act 1984

SUPPLEMENTARY DECISION

APPEARANCES:

DATE AND PLACE OF HEARING:

1990.
Hobart:
May 15, 29.

This matter is a continuation of a claim by The Federated Miscellaneous Workers Union of Australia, Tasmanian Branch (FMWU) for a new award, the Miscellaneous Workers (Public Sector) Award (the new Award), which was made, but two outstanding items were referred to me by the Full Bench for settlement.

One item, that relating to a claim by the FMWU for the insertion in the new Award of a classification of chief cook was later sought to be withdrawn without prejudice to the FMWU's right at a later stage to pursue it: permission to withdraw was granted.

The other item related to a claim by the FMWU for a classification of crossing guard to be inserted in the new Award with some of the conditions in the new Award to be designated as applying to that classification. The Full Bench decided that the classification would go into the new Award, but referred to me the decision as to the rates of pay and conditions to apply.

Both sides in this matter attempted to inform the Commission as to the general statistics on crossing guards employed in Tasmania. I believe the key facts may be summarised as follows:

• there are about 80 persons including relievers;

• they are employed during school terms only and not on public holidays;

• most are paid for about 1.5 hours work per day (or for two forty-five minute periods);

• the present hourly rate of pay is $10.10; and

• the main duty is to ensure the safety of school children at school road crossings during the peak hours

Mr K O'Brien appeared for the FMWU and submitted that his application was based correctly upon subparagraph (b) of the Wage Fixation Principle "First Awards and Extensions to Existing Awards". He said that his claim was for an extension of an existing award and hence the rates applicable should be assessed on "the value of work already covered by the Award."

In the latter context Mr O'Brien submitted that the cleaner's rate in the new Award was the most appropriate and that the value of the duties were not vastly different between the two classifications.

As to the application of the current conditions in the new Award to this classification Mr O'Brien submitted that they all should apply except for the following:

Mr J McCabe appeared, with Messrs P Korn and B Madden, for the Minister Administering the State Service Act. He submitted that subparagraph (a) of the Wage Fixation Principle "First Awards and Extensions of Existing Awards" was the correct basis for considering the appropriate rates and conditions to be applied to this new classification and hence the rates applicable should be the "existing rates" in other words $10.10 per hour.

He contended that this matter was still part of the settlement of the original first award application pointing out that the Full Bench had merely handed it on for completion.

He argues that the rate of pay should remain at that already being paid to the crossing guards, $10.10 per hour. In support of this Mr McCabe relied upon the June 1986 National Wage decision, at pages 45 to 47, where the Bench discussed the matter of first awards and appropriate wage rates.

Mr McCabe also advised, with the aid of an exhibit1, that these employees were regarded as "casual", their conditions had been set by the Department, there was no award coverage for the same type of employees in other parts of Australia where they were employed by different authorities (eg in New South Wales through the Police Department and in South Australia where school children do the work - unpaid) and the rates of pay varied from $6.50 to $9.23 per hour. He said there was no relationship between crossing guards and any other classification in the new Award.

As Mr McCabe acknowledged in his own submissions the relevant Wage Guidelines say I should accept "prima facie" the status quo as to wages and conditions in a new award: this implies to me that if the prima facie circumstances do not lead simply to that conclusion (that wages already being paid should not be changed) then some other criteria will be needed to decide the question.

I accept Mr McCabe's arguments as opposed to Mr O'Brien's in that I consider subparagraph (a) of the Wage Fixation Principle "First Awards and Extensions of Existing Awards" does apply in this case, but having gone that far I believe the circumstances in this case are such that I am not bound to adhere exclusively to that subparagraph.

The hourly rate currently being paid to the crossing guards does not fit in with the strict requirements of the guideline, I believe, because they are not related to any award whatsoever. In this context the interstate rates are of no help as in those States where money is paid there is no award prescription. I take the words of the principle to mean existing award rates and conditions.

Because of the wages and conditions already specified in the new Award, the complicated formula proposed by Mr McCabe to maintain the current hourly rate, the claims and counter claims by both sides in this matter as to what wages and conditions should apply or not and what I have said in the previous paragraph, I consider that I am not bound strictly by the words of the Principle and I will decide the matter on its merits. In doing so I do not wish to denigrate in any way the genuine and strenuous attempts by the parties, particularly Mr McCabe, to put to me a great number of proposals aimed at coping with the transfer of a previously "unregulated" group into the new Award.

During the course of the hearing the parties made it clear they considered the crossing guards to be casual employees and they wished them to continue to be so considered. I beg to differ. There is no doubt in my mind that the award definitions (which were not sought to be changed) can only be read to say that the crossing guards are part-time employees, not casuals. This decision is given on that basis.

Taking into account what I have said before I have decided:-

1. The weekly award rate for crossing guards for a 38 hour week shall be $327.20.

2. The present award prescriptions will apply in full to crossing guards except:-

(a) the part-time provisions (clause 22) will be varied (for crossing guards only) so that the 10% additional payment will be prescribed in lieu of annual leave (including school holidays), sick leave and public holidays.

(b) the minimum period of work (clause 20) will be varied (for crossing guards) to one hour.

3. The Award will further provide for school holidays and public holidays to count as continuous service for crossing guards.

4. To give full effect to the decision of the Full Bench that provision should be made in the new Award for crossing guards the Scope clause will be amended to include them.

5. A definition of crossing guard will be inserted in the new Award.

I have deliberately set the weekly wage for a crossing guard above that of a cleaner because I consider the primary duty of ensuring the safety of children of more value than cleaning duties. The amount is, however, not inconsistent with the ambit of all the weekly wages prescribed in the new award.

It will also be obvious that the hourly rate for an employee who is eligible for the top service payment equates to the hourly rate currently being paid, but this is not contrary to the reasons for this decision when consideration is given to the extra payments which will become due under other provisions of the new Award.

The operative date of this decision will be as on and from 1 July 1990.

On order reflecting this decision is attached.

P A Imlach
COMMISSIONER

1 Exhibit B1