T2971
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Federated Miscellaneous Workers Union of Australia, INDEPENDENT SCHOOLS (NON-TEACHING STAFF) AWARD
Award - conditions of employment REASONS FOR DECISION This was a continuation of a matter in which, commencing in February 1991, the Federated Miscellaneous Workers Union of Australia, Tasmanian Branch (the FMWU) sought amendments to what was then known as the Boarding Schools and Student Hostels Award (the prior Award). Consequent to previous hearings of this application and inspections on 1 October 1991 a number of amendments were made to the prior Award including a new name, the Independent Schools (Non Teaching Staff) Award (the new Award), which name reflected the amended scope of the prior Award. Finally, the parties returned to the Commission with further draft award amendments which included items agreed between the parties as part of the second Structural Efficiency Principle (SEP) review and some items proposed by the Tasmanian Confederation of Industries (the Confederation), but not accepted by the unions involved, the FMWU and the Federated Clerks Union of Australia, Tasmanian Branch (the FCU). I believe it is acceptable to the parties and fair to say that, quite apart from the outstanding items not agreed, those items which were agreed were sufficient in themselves to warrant the granting of the second SEP increase. In particular the agreed items included: · the change of title and scope variation already referred to; · a new graded wages structure which was matched with detailed provisions in the definitions clause and included the second SEP increase and the August 1991 State Wage Case decision increase of 2.5%, all to operate from the first full pay period from 20 September 1991; · a provision allowing, by agreement, for time off to be taken in lieu of payment of the penalty for working Saturdays, Sundays or Public Holidays; · a provision whereby an employer may direct an employee to carry out certain duties; · an enterprise flexibility clause whereby agreements may be made between employers and employees. The parties also advised that a Minimum Rates Adjustment (MRA) process had been agreed and the first MRA was to commence from the first full pay period on or after 1 January 1992. There were a number of items proposed by the Confederation not agreed on which the parties requested arbitration: · the inclusion of two definitions for part-time employees, one applying to School Services Employees and the other to all other employees. The FMWU sought for one definition only to apply to all employees (that proposed for School Services Employees); · a provision whereby part-time School Services Employees were to receive an additional 10% payment: the FMWU sought for the additional payment to be made to all part-time employees. · the provision of one 33 1/3% additional payment for casuals who were School Service Employees and the provision of another 20% additional payment for all other casual employees. The FMWU sought for the same percentage additional payment (33 1/3%) to be payable for all employees. · the inclusion of a special provision for annual leave and payment therefore for School Services Employees permitted to take school or term holidays each year. The FMWU sought for this provision to be made available to all employees; · the inclusion in the definition of a Grade lb Administrative Employee of references to the work of a shop assistant and driver. The FMWU sought for these references to be deleted; · the inclusion in the definitions of three categories of matron (assistant matron, matron and senior matron); the FMWU sought only two categories of matron (assistant matron and matron); · a provision in the Payment of Wages clause whereby, on mutual arrangements being made between an employer and an employee, all other provisions of the clause would not apply. The union sought the deletion of the provision. In so far as the agreed items are concerned I endorse the amendments proposed. I am satisfied that the parties have addressed the Wage Principles and abided by them. As to the matters sought to be arbitrated I decide as follows: 1. Two definitions for part-time employees The Confederation sought for two definitions of part-time employees to be included in the new Award: this was on the basis that in the industry covered by the new Award there are two categories of part-time employees required to be specified owing to the nature of the industry (a) the traditional concept of part-time worker, where less hours per day are worked, but work is carried out every working day; in other words, the work is carried out for the whole twelve months of the year and (b) because of the school term holidays shut down, a different type of part-time employee who is required to work full-time each day but only during the school terms; in other words, the work is carried out full-time, but during school terms only. The FMWU sought for one definition for all part-time employees based on the traditional concept. I accept that there ought to be two definitions for part-time employees covered by the new Award because: · such a prescription truly and fairly would reflect the circumstances and the requirements of the industry; and · not to so prescribe could lead to confusion and discrimination against some part-time employees who could be terminated (and in some cases already have been the Confederation advised)at the end of each School term and denied entitlements they would normally expect to receive, for example, accumulated annual leave and sick leave. However there will be one definition only for part-time employees in the new Award, but, it will provide for the two types of part-time employees mentioned above on an "and/or" basis. 2. Additional payment for part-time employees The Confederation sought for part-time Classroom/Curriculum and Administrative employees not to be paid an additional 10% on the basis that such would be an extra and unnecessary cost. The Confederation proposed, however, that part-time School Services Employees, because of their coverage under the prior Award, should continue to receive an additional 10% in wages. The FMWU sought for the additional 10% payment to be made to all part-time employees. I am not satisfied that part-time employees under the new Award should be paid an additional amount of money simply because of that status. I do not accept that, in the Award, part-time employees have been deprived in any way. The work offered is part-time in nature because of the requirements of the industry. I believe the new Award should reflect that situation as far as possible. The new Award will be amended, therefore, so that only employees eligible for the part-time payment under the prior Award will continue to receive it: all other employees and all new employees will not be eligible. 3. Casual loading In the same way as for part-time employees, the Confederation sought separate provisions for casual School Services Employees as compared with all other employees. The difference was that the former were to be paid an additional 33 1/3% in lieu of annual leave, sick leave and public holidays whereas for the latter it was to be 20% on the same basis. The 33 1/3% was actually the same as provided for the same School Services Employees (under other names) in the prior Award. The Confederation sought a lesser and a more common standard for those "new" casual employees brought under the jurisdiction of the new Award, 20%. I believe it would be unfair to impose an additional payment of 33 1/3% for casual employees in lieu of annual leave, sick leave and public holidays taken off work with pay where 20% is the general standard percentage applying. The new Award will be amended to provide for an additional 20% payment for all casual employees. 4. Special annual leave provisions for some School Services Employees The FMWU sought for this provision to be made a available to all employees. In effect, this provision enables an employer to elect to have an employee at work full-time for approximately 38 weeks in a year and then pay that employee two thirds of his/her weekly pay for another 10 weeks, leaving the remaining 4 weeks of the year unpaid for. The Confederation wished to restrict this provision to those only to whom it applied under the prior Award. This unusual provision, albeit an arbitrary one for the employer, reflects the circumstances and custom and practice in the industry. On the grounds that employees, other than School Services Employees, would be completely denied this benefit if they were given term leave without pay and the fact that the availability of this provision is at the discretion of the individual employer anyway, I accept the FMWU's submission. This provision will be made available, at the discretion of the employer, for all employees who do not work during term leave. 5. Definition of Administrative Employee Grade 1b I believe the Confederation sought to nominate the classifications of shop assistant and driver in the Administrative Employee group not because that was the appropriate group for them, but so as to avoid the application of some of the provisions i n the prior Award which may have applied to them had they been included in the School Services group, namely the 10% additional payment for part-time employees, the 33 1/3% additional payment for casual employees and the special (elective) annual leave provision for employees stood down from work during school term breaks. Due to the amendments I have decided I believe the reasons for the Confederation's fears in this regard have been removed and, therefore, reference to the classifications will be deleted from the proposed definition. 6. Matron classifications I endorse the Confederation's proposal for three classifications of matron on the basis that, on the evidence submitted (backed up by the inspections), there is a difference in the duties and roles of some matrons employed in some schools and a treble grading is necessary: the new Award will be amended to so provide. 7. Payment of Wages The Confederation sought a provision which, in effect, negated all the other provisions in the Payment of Wages clause. Whilst it was argued that similar provisions are found in other areas I am not prepared to endorse it in this case because the clause in question has quite a number of separate and different prescriptions which ought not all be subject to local review as it were. Moreover, the subject of payment of wages is an extremely sensitive issue with employees and I believe, therefore, it should be prescribed without qualification. The amendments to the Award, both those agreed between the parties and those I have decided, apart from the separate dates of operation for the agreed wage increases, will operate from the first full pay period commencing on or after 24 March 1992. An order is attached.
PA Imlach Appearances: Date and place of hearing: 1992.
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