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T2165

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

T.2165 of 1989

IN THE MATTER OF AN APPLICATION BY THE MINISTER ADMINISTERING THE STATE SERVICE ACT 1984 FOR THE MAKING OF THE LEGAL PRACTITIONERS AND APPRENTICE-AT-LAW AWARD

   

COMMISSIONER R.K. GOZZI

HOBART, 28 February 1990

   

REASONS FOR DECISION

   

APPEARANCES:

   

For the Tasmanian Public Service Association

- Mr R Hunt

   

For the Minister Administering the State Service Act

- Mr C Willingham

   

DATE AND PLACE OF HEARING:

 

12 February 1990   Hobart

 

This application, made on behalf of the Minister Administering the Tasmanian State Service Act 1984, (the Minister) is to integrate into one award the Legal Practitioners Award and the Apprentice-at-Law Award.

I concur with the parties that there is no impediment to the merging of these awards and that this can be done by the application of the "First Awards" wage fixing principle.

In endorsing the application for the making of the new Legal Practitioners and Apprentice-at-Law Award the following objectives will be facilitated:

the integration of these awards is an appropriate first step in the structural efficiency process,

it is in the interests of good housekeeping for public sector awards, and, in any event, there is no good reason to maintain two separate awards.

In prosecuting this application Mr Willingham for the Minister drew to the attention of the Commission an apparent error in the application of the November 1989 State Wage Case Decision1 increase of 3 per cent operative from the first full pay period to commence on or after 23 November 1989.

On investigating this matter, a Correction Order has issued to increase the salary of the Apprentice-at-Law classification from $12867 per annum to $13387 per annum. That salary level, operative from the above State Wage Case decision, increases the existing salary level ($12867) by a further $520 per annum. The $12867 per annum figure already has an increase of $130 per annum included in it. Therefore by taking the $520 per annum plus the $130 per annum an increase of $650 per annum is produced. This equates to the appropriate amount of increase provided by the State Wage Case i.e. $12.50 a week x 52 weeks = $650 per annum.

As there are no Apprentices-at-Law currently employed in the State Service, the correction to the order originally issued will not require any further administrative action to be taken.

The draft order for the making of the Legal Practitioners and Apprentices-at-Law Award, presented by Mr Willingham as an amendment to the "Statement of Particulars" contained in the original application dated 29 September 1989, also utilises gender neutral language and in that context the now combined awards differ in an acceptable manner.

In respect to a variation to the existing definition of "Employee" by the deletion of reference to "permanently or temporarily" employed, whilst I understand the rationale advanced by Mr Willingham, I consider that the definition change should be canvassed in respect to public sector awards generally.

That is the present definition was included in awards, at the request of the parties in the first instance, consequent to Full Bench proceedings.

I do not favour a fragmented approach to this issue and recommend to the parties that this issue and other basic "tidying up" type modifications to awards be made in conjunction with the finalisation of structural efficiency exercises for public sector awards.

The final issue to be considered in this matter relates to the continuation of reference to Head of Agency or in this case "Head of the Department" in the award.

The standing of the Head of Agency in an award in respect of industrial matters was comprehensively canvassed in what may be referred to as the Drafting Officers Award case2.

Specific reference to the issues raised in that case may be found at pages 15 to 19 of the 22 May 1987 Interim Decision.

In this instant matter I queried the parties, in essence, whether or not the reference to Head of the Department in clause 11, Progression of the award I have agreed to make is appropriate given the acknowledgement by the participants in the Drafting Officers Award case that the Head of a Department can stand in no industrial relationship to State employees. That is the Controlling Authority is the employer and as a consequence it is the controlling authority i.e. the Minister, as the employer, who stands in that industrial relationship.

In that context the Head of Department is the controlling authority's agent and as such the Head exercises those powers delegated to him by the employer.

Having regard to the foregoing I am of the opinion that reference to "Head of the Department" in the Progression clause, whilst administratively proper, does not have any relevance in the award.

Further, it should also be noted that in the event of a dispute on whether the Head of Department should have issued a "certificate" as contemplated by Clause 11 (ii) - Progression then the Commission could only make a binding order, (if that was required) on the controlling authority.

Given the above circumstances I have decided to request the parties to prepare an appropriate amendment to clause 11 Progression for my consideration.

The order, when approved by the Commission, will issue in due course and will operate from the date of this decision.

Also as the Apprentice-at-Law Award has now been merged with the Legal Practitioners Award, the former award is rescinded in accordance with Section 32(7) of the Industrial Relations Act 1984.

The rescission Order operative from the date of this decision, is attached.

 

R.K. Gozzi
COMMISSIONER

1 T2146, T2147, T2152 & T2167 of 1989
2 T426, T574, T580 and T614 of 1986