T4431
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Teachers Federation TEACHING SERVICE (TEACHING STAFF) AWARD
Award variation - Clause 9 - Allowances - (b) District Allowances - threshold matter - argument heard on whether the Commission should proceed with application - request by MATSSA not to proceed denied - award varied - ffpp to commence on or after 16 June 1993 REASONS FOR DECISION This matter concerns an application by the Tasmanian Teachers Federation (TTF) to vary the Teaching Service (Teaching Staff) Award by increasing "district allowances" contained in Clause 9(b) by 1.2%. Mr Philp for the TTF based the claim upon the acceptance of a formula for such adjustments which was established by a Full Bench of this Commission in matter T.833 of 1987 and its continued usage since that time, and more recently in similar increases which were granted by the Commission in matters T.4402, T.4403 and T.4404 of 1993 which varied the General Conditions of Service Award. The TTF also relied upon the fact that the Commission's Wage Fixing Principles allow cost-related allowances to be adjusted from time to time, and argued that to grant the application would be consistent with public interest criteria prescribed by Section 36 of the Act. The Minister administering the Tasmanian State Service Act (the Minister) opposed the application and raised threshold argument as to why I should refrain from further hearing or determining this matter pursuant to Section 21(2) of the Industrial Relations Act 1984, which provides, inter alia, that: "Without prejudice to the generality of subsection (1), the Commission may, in relation to a matter before it - (a) ... (b) ... (c) at any stage of those proceedings, dismiss a matter or a part of a matter, or refrain from further hearing, or determining, the matter or part if the Commission is satisfied - (i) that the matter or part is trivial; (ii) that further proceedings are not necessary or desirable in the public interest; or (iii) ... (iv) that, for any other reason, the matter or part should be dismissed or the hearing of those proceedings should be discontinued, as the case may be;" Mr Pearce told the Commission that the TTF is the State branch of the Australian Teachers' Union (ATU) and the latter had served a letter of demand and a log of claims on the Minister and others as part of the necessary process of ultimately securing the establishment of a Federal award. The Commission was apprised in some detail of the progressive steps being taken by the ATU in this regard and more particularly that proceedings had commenced in the Australian Industrial Commission1 on 2 June 1993 before Senior Deputy President McBean and subsequently adjourned without the finding of a dispute. It was said that certain findings had subsequently been made by the High Court in relation to the genuineness of logs of claims originally served and as a result a further demand and log of claims was served on the Minister on 22 June 1993. Although one exhibit was provided much of the information was not detailed by the Minister or supported by evidence to be evaluated by the Commission as constituted, but was taken to be mentioned so as to be sufficiently illustrative of a general picture. Of more direct relevance was that part of Mr Pearce's submission at page 6 of transcript where he said: "Relevant to these proceedings, Mr Deputy President, we say that as at the date of the Letter of Demand and the log of claims of the 24th of April the State Branch of the Australian Teachers' Union - the Tasmanian Teachers Federation - having authorised the federal executive to carry out its wishes as to the obtaining of a federal award has effectively given notice of its intention to reject the jurisdiction of the Tasmanian Industrial Commission in favour of the Australian Commission. In so doing, we submit that that has, and until the federally-based log is ultimately determined, it has effectively severed, if not legally, then ethically and morally, any rights to have this commission determine issues on its behalf or on behalf of its members. At best, during the interim period of this forum-hopping exercise, the best that the TTF could expect of its award and jurisdiction is a status quo award affording rates and conditions in place at the time of their decision to cut their ties. Certainly we will vigorously oppose this or any future application of the organisation which seeks an extension of benefits beyond those currently prescribed." The Minister's position relied upon the authority of a decision of Sheldon J. of the NSW Industrial Commission given on 19 April 1974 re Motor Transport (Female Salaried Officers) AILR 24/5/1974 287 at p.3. The report of this case provides that: "287 - TRANSPORT OFFICERS Motor Transport (Female Salaried Officers - Salaries) Award - Equal Pay - Reference by Chairman of Conciliation Committee of application by Public Service Association of N.S.W. for variation of the award. Having pointed out that in respect of the female officers, the subject of this equal pay application, an application had been made by the Australasian Transport Officers Association to cover them in respect of the same subject matter by a Commonwealth Award, his Honour said it would not be proper for the Commission to proceed with the hearing at this stage nor would it be consonant with the Commission's practice to do so. He stood the matter over to be restored to the list on two days notice by either party. The P.S.A. (the applicant before the N.S.W. Commission) had informed the Commonwealth Commission that it challenged the application to it both on jurisdictional grounds and under s.41(1)(d) of the Commonwealth Act. His Honour said he had been informed that hearing dates in the near future had been fixed for the hearing of that challenge. The advocate for the P.S.A. had submitted that the N.S.W. Commission should nevertheless proceed with this hearing and should only desist if a restraining order was made by the Commonwealth Commission. After deciding that it would not be proper to proceed with the matter, his Honour said that the Commission on its own initiative must act in conformity with the Federally structured system of arbitration operating in Australia of which it is a part. Under that structure by virtue of s.109 of the Australian Constitution a validly made Commonwealth award renders inoperative a State award covering the same persons in the same field. "It follows that this Commission should await a determination by the appropriate Commonwealth authority as to whether or not these officers can legally or should on the merits be covered by a Commonwealth award in relation to equal pay. If that question is answered affirmatively and such an award is made, then, apart altogether from the Commonwealth Act, this Commission is, as stated above, prevented under s.109 of the Australian Constitution from making an operative award. If that question is answered negatively, this Commission will be bound to proceed with the application now before it and of course will be ready to do so." Industrial Commission (Sheldon, J.), 19/4/74." Mr Pearce also provided to the Commission a copy of the ATU letter of demand and log of claims which was served on the Minister and directed attention to those parts of the claim relating to "allowances". The Minister's position was that the present matter is sufficiently similar to that which was before Sheldon J. in the case quoted for me to similarly refrain from further hearing the TTF application at this time. Mr Pearce said that: "the Commission should signal to both the TTF and any other organisation contemplating jurisdictional change, that such moves must necessarily be to the detriment of organisations which might otherwise seek to continue to rely upon the maxim of 'business as usual'". Under questioning from the Commission it was confirmed that no dispute finding had yet been made by the Australian Industrial Relations Commission in relation to the claims contained in the ATU log. However, the Commission was also told by the Minister that in the event of any future dispute arising which involved the TTF then, notwithstanding anything else, jurisdiction could still be invoked pursuant to Section 29 of the Industrial Relations Act 1984, if the Commission chose to use its discretion in this regard. Without prejudice to the Minister's preferred position that I should either refrain from further hearing or dismiss the application of the TTF Mr Pearce said that if I ruled against the threshold issue and proceeded as to merit, then the Minister would raise no objection other than as to oppose any retrospectivity of effect because of the delays which had occurred. The TTF responded by denying that the TTF is the State branch of the ATU. Mr Lane for the TTF accepted that whilst there are many similarities between the TTF and the ATU (Tasmanian Branch) they are nevertheless different entities, and therefore the actions of one are not necessarily the actions of the other. It was explained that the ATU (State branch) contains members who belong to the TTF, but it also has members who belong to the Tasmanian TAFE Staff Society, which the TTF does not. In addition to having different membership, the TTF has a different council and a different executive even though some members of the TTF executive are also members of the ATU State executive. However some members of the ATU State executive are members of the TAFE Staff Society executive. It was stated that legally the TTF and the ATU are separate entities. Mr Lane said the ATU has served a Federal log of claims following a unanimous decision of the ATU Federal conference in January 1993, and the log does cover teachers in all States and Territories, including Tasmania. And whilst the Federal conference delegates representing the ATU (Tasmanian Branch) must have supported the decision they were not representing the TTF. He also rejected the Minister's assertion that the present application was in any way motivated with building up the State award before transference to a Federal award. Mr Lane said the Minister's position as to State jurisdiction was totally inconsistent in suggesting I refrain from dealing with the present application by the TTF but should continue to deal with any dispute notifications involving the same parties. He then sought to rebut the argument of the Minister that the decision of Sheldon J. (19/4/1974) established authoritative precedent to be followed in present circumstances. Mr Lane cited to the Commission an alternative decision in which the NSW Industrial Commission (Bauer J.) exercised his discretion in favour of making an award in spite of pending Federal proceedings. This matter was reported in the AIL Review of 12 August 1986 at 287, and was re: Crown Employees (Home Care Service of NSW - Home Aides and Handypersons) (State) Award - Industrial Commission (Bauer J.) (Nos. 2108 and 2181 of 1984) 8/5/86. The text of the report relied upon was as follows: "287 FIRST AWARD Industrial Commission (Bauer J.) - Application for consent award - Award-free area - Application in Federal Commission - Whether Commission should adjourn pending Federal proceedings - Show good reason - Discretion of Commission. Bauer J. granted an application for an award by consent by the Public Service Association of New South Wales. The Crown Employees (Home Care Service of N.S.W. - Home Aides & Handypersons[sic] (State) Award was made in spite of opposition from the FMWU & FMWU (N.S.W. Branch) on the grounds the persons sought to be covered were not yet covered by any award. Background These award proceedings from one stage in the litigation taking place over constitutional and award coverage of the Home Care Service. The PSA has constitutional coverage, and Bauer J. had earlier made an award by consent covering the two other classifications employed by the Service - Co-ordinators & Assessors. The N.S.W. Social Welfare Workers Union is currently seeking to amend its rules to allow full coverage of Home Care Service. The FMWU (N.S.W.) has no coverage but in October 1985 sought to amend its Constitution Rule, while the FMWU has clear coverage of home aides and handypersons and had in fact filed an application for an ward[sic] in the Federal Commission for these two groups. The PSA opposed thisny application in the Federal Commission and was conducting an argument under sec. 41(1)(d) of the Federal Act. The FMWU argued that the PSA application should be adjourned pending the outcome of the award proceedings in the Federal Commission. Alternatively, they argued any award should be interim. The position of both unions in the Federal Commission proceedings would be materially affected by the outcome of the State Award application. Decision In reaching his decision his Honour rejected the submission of the FMWU that precedent could be drawn from in Re Motor Transport (Female Salaried Officers - Salaries) Award in which Sheldon J. referred to the Commission's practice to refrain from hearing matters also before the Federal Commission. Bauer J. held: 'There are clearly cases where the balance of convenience would call for the New South Wales Industrial Commission to refrain from hearing matters being dealt with by the Australian Commission. Whether the rationale for that deference is based on comity or an acknowledgement that, at times, other competent tribunals are in a better position to determine competing rights, does not matter. But good reasons must be shown over and above the fact that a Federal award, if made, would have pre-eminence over a State award by reason of sec. 109. The decision of Sheldon J. applies to the particular set of circumstances then confronting the Commission and is distinguishable for the reasons set out herein.' Further, 'It seems to me that, when parties are competing to use the existence of an award of this Commission in other tribunals which may be influenced by the existence of that award and no other good reason is established, this Commission should proceed to make or declare to make that award adhering as closely as practicable to its usual principles and procedures.' His Honour also rejected the argument of the FMWU that the award should be interim in nature, on the ground that no case had been made out. Re Crown Employees (Home Care Service of N.S.W. - Home Aides & Handypersons) (State) Award. Industrial Commission (Bauer J.) (Nos. 2108 and 2181 of 1984) 8/5/86." It was submitted that the Commission has a statutory discretion to hear or not to hear a matter by virtue of Section 21 of the Act. However, as illustrated by the case just cited by the TTF the exercise of such discretion is dependent upon the facts of each case. Mr Lane said the case used by the Minister (marked P1) is distinguishable from both the case quoted by the TTF (TTF2) and the present case concerning a "district allowance" claim. As an example the present case involves no union demarcation issue; and the TTF is not seeking a new award in the State jurisdiction while a Federal dispute exists. The TTF has long been a party to a State award which has been maintained as active. Additionally, there is no Federal award in relation to Tasmanian Teachers and, according to the TTF, there is not likely to be such an award in the near future, if at all. Accordingly, if the Minister's position advanced in this matter was successful Tasmanian teachers would be denied access to an industrial tribunal for the regulation of terms and conditions of their employment. The TTF argued that such a situation would be contrary to public interest. Decision Two reported cases from the NSW Commission have been referred to by each of the parties to support their opposing positions as to how I should exercise the discretion given to me pursuant to Section 21 of the Act to either refrain from hearing or to dismiss the present application. Each of those cases relied upon a separate and distinctive set of circumstances, neither of which parallel those existing now. Accordingly, I accept that the present set of circumstances are materially different to the cited cases earlier quoted and hold to the view that each case must be judged on individual circumstances. The assertion of the Minister was that the TTF is the State branch of the ATU. However this was denied by the TTF, and its association with the ATU was explained as something quite different. The Commission is not assisted by a party making uncorroborative assertions on questions of fact and is entitled to be supplied with supporting evidence if such a submission as was made on behalf of the Minister is to be successful. In present circumstances therefore I believe it would be dangerous to decide against the TTF on the assumption that it was party to a Federal hearing. Even if it was a party to a Federal log of claims, the only evidence I have is that the Commonwealth's industrial powers have not been yet invoked by the necessary finding of a dispute in two or more States. I accept that some organisations may run the risk of a contrary ruling if they are shown to be guilty of merely "forum shopping". But by the same token it would be a serious matter to deny an applicant the right to proceed on merit unless there was good reason for doing so. In the prevailing circumstances therefore I do not regard the application for adjustment of an existing cost-related allowance as trivial. Nor do I believe that further proceedings are not necessary or desirable in the public interest or that at this time there exists any other good reason for dismissing the TTF application. Moving to the next question, I point out that the merit of the TTF claim was not contested. The applicant has illustrated compliance with a Full Bench decision2, Wage Fixing Principles and public interest. For all of these reasons the application to vary the district allowance is granted and the award will be varied to reflect the amounts put forward in Exhibit TTF1. Date of Operation The TTF argued that the award variation should apply from the first full pay period to commence on or after 16 June 1993, which would coincide with the date on which similar allowances were paid to other State servants covered by the General Conditions of Service Award. The Minister disagreed and suggested the date of decision would be more appropriate given the circumstances which delayed the finalisation of the case. The application was lodged with the Commission by facsimile on 16 June 1993 and the first day of hearing was 6 July 1993, at which time the Minister first introduced threshold material which was the catalyst to the requirement for an adjournment and resultant delays in disposing of what would have normally been a relatively simple matter. Accordingly I am of the opinion that in this matter there are special circumstances that make it fair and right to give retrospective effect to this award variation and decide that it shall have effect from the first full pay period to commence on or after 16 June 1993. The Order is attached.
A. Robinson Appearances: Date and Place of Hearing: 1 C.30986 and C.30987 of 1993 |