T4287 - 10 June
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Tasmanian Public Service Association GENERAL CONDITIONS OF SERVICE AWARD
Award variation - provision for payment of wages clause - threshold matter - Section 35 of the Industrial Relations Act 1984 certain matters to be dealt with by Full Bench of Commission - Commission found Section 35 interpreted too widely - claim denied - application will proceed on merit REASONS FOR INTERIM DECISION On 11 March 1993 the Tasmanian Public Service Association (TPSA) made application to vary the General Conditions of Service Award by making provision for a "Payment of Wages" clause. At a hearing on 15 March 1993 the Minister administering the Tasmanian State Service Act (the Minister) argued that the application should not proceed to be heard by the Commission as constituted. One of the reasons advanced by the Minister was that a Full Bench1 of the Commission was then dealing with the same subject matter in the context of other conditions of employment and wage structures for much of the State Service, but excluding certain nominated awards. In these circumstances I decided to adjourn the hearing and await the decision of the Full Bench. When this matter resumed on 3 June 1993, Mr McCabe, for the Minister, indicated that the Full Bench's decision of 23 April 1993 supported the case for not proceeding to hear the TPSA claim on merit. He quoted from page 2 of that decision and relied upon the fact that the Full Bench said in part: "In addition, the Commission will ensure that any award or agreement that is proposed to be made or approved, has effectively addressed the issues of conditions of employment, efficiency and productivity, either on an agency or enterprise basis or, where appropriate, on a service-wide basis." As I understand the argument put by the Minister in this matter it was suggested the Public Sector Full Bench decision2 required that conditions of employment affecting State servants may only be dealt with as part of a comprehensive package, regardless of whether a matter relates to an agency, an enterprise or to be service-wide. And such matters should go to a Full Bench. I adjourned the hearing after having undertaken to confer with the President in relation to the Minister's interpretations of the Full Bench's pronouncements prior to the hearing's resumption on 29 June 1993. Having now fulfilled that obligation I am satisfied that the Public Sector Full Bench's decision3 of 23 April 1993 indicated only that it had decided to move away from the service-wide process for dealing with award restructuring, conditions reform and workplace efficiency issues and dismissed all applications before it except for applications T.1844 and T.2264 of 1989 by the Tasmanian Teachers Federation and the Secondary Colleges Staff Association respectively, dealing with the recreation leave allowance provisions of the Teaching Service (Teaching Staff) Award; application T.4103 of 1992 by the Tasmanian Public Service Association, dealing with the Legal Practitioners Award; and application T.4014 of 1992 by the Health Services Union of Australia, Tasmania No. 1 Branch for a Health Industry (Public Sector) Award. The Full Bench also indicated that the parties should now feel free to exercise options which could include arrangements designed to suit individual agency circumstances, whether this be by way of enterprise or agency awards, industrial agreements or enterprise agreements. However, I am satisfied that the decision did not attempt to prevent applications to vary an award being referred to individual Commission members and then dealt with in accordance with the requirements of the Industrial Relations Act 1984 and Wage Fixing Principles. Other arguments going to reasons for not proceeding were raised by the Minister's representative during the course of successive hearing days and I should respond to them also. 1. On 15 March 1993 it was complained that the Commission had responded to the TPSA application too promptly. Given the fact that a serious dispute existed at that time I would have thought that public interest considerations alone justified the early listing of the application. 2. There had been no discussions between the TPSA and the Government concerning the application. The Commission encourages discussion between trade union and employer parties but cannot always be dependent upon such an outcome before choosing to exercise its statutory duty to hear and determine any matter arising from or relating to an industrial matter, and make an award or order. 3. Section 35 of the Act provides that the powers of the Commission to make an award or to approve an industrial agreement is exercisable only by a Full Bench in respect of, inter alia: "modifying or affecting not less than 5 awards" and in this regard Mr McCabe said: "the General Conditions of Service Award is referenced back to the majority of public sector awards". He argued that therefore the Industrial Relations Act requires that, given the wide application of the General Conditions of Service Award, any amendment to it must be the subject of Full Bench scrutiny. I disagree. In my view the Minister has interpreted Section 35 too widely in this instance. The application by the TPSA is to vary only one award, and any decision I make can modify or affect only one award. The fact that other awards of the Commission make reference to the General Conditions of Service Award by choice is a different case to that covered by Section 35(e) because the General Conditions of Service Award must be considered as standing alone. Parties to those other awards have the right to either continue to allow themselves to be affected by any variations to the General Conditions of Service Award, or alternatively to oppose them by reviewing their own award to reflect a different position. Having provided reasons for dismissing arguments advanced for not hearing the TPSA application, I now indicate that all parties should be prepared for the claim to be dealt with on proper criteria on the next sitting day.
A. Robinson Appearances: Date and Place of Hearing: 1 T.2399 of 1990, etc |