T4464 and T4468
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Secondary Colleges Staff Association Tasmanian Teachers Federation and The Minister Administering the Tasmanian State Service Act 1984
Industrial dispute - hours of work - excess hours - subsequent denial of payment to employees - Commission found employees unfairly treated - requested order denied - strong recommendation for payment of monies owed REASONS FOR DECISION These two matters are applications by both the Tasmanian Teachers Federation (TTF) and The Secondary Colleges Staff Association (SCSA) for a hearing to settle an industrial dispute pursuant to Section 29 of the Industrial Relations Act 1984. Both organisations were in dispute with the Minister Administering the Tasmanian State Service Act (hereinafter referred to as the Government). In its application the TTF described its complaint in some detail and alleged that:- "The Government has: (a) retrospectively rescinded a condition of service and as a consequence has altered retrospectively: (a) The rates of remuneration Finally the TTF sought from the Commission the following: "We seek an order from the Commission which sets aside the action of the employer to make such retrospective changes. Further we request that the Commission takes what action it can, and which it deems to be appropriate, to ensure that employees who worked excess hours in colleges from 1.1.93 until the new Teaching Service (Teaching Staff) Award (Order No. 1 of 1993) was handed down (18 June 1993) receive payment for such in addition to the salary back pay resulting from the aforementioned Order." The application by the SCSA was more succinct in the manner in which it described the details of its complaint. It alleged:- "Failure of the Government to honour the unequivocal commitment given by its advocate Mr Clive Willingham in the Industrial Commission on 6 January 1993, not to change the status quo relating to conditions for teachers in respect of the subject of excess hours." Both matters were joined for hearing because they alluded to the same set of circumstances. The Government rejected the assertions made by the two teacher organisations and said it had acted correctly in applying award changes from a common operative date and the matter was then argued at length by each side. The sequence of events preceding this dispute are that on 30 November 1992 a Full Bench of the Commission handed down its decision1 in relation to eleven (11) applications made by the TTF, the SCSA and the Government to vary the Teaching Service (Teaching Staff) Award and the Teaching Service (Directors and Superintendents) Award. Those applications which were decided concerned both wage rates and conditions of employment and were joined for hearing at appropriate times with some being either withdrawn or added after proceedings commenced. All applications however were regarded as constituting part of "special case" proceedings. Briefly put, the Full Bench decided to grant increased wage rates to teachers, directors and superintendents of approximating 11% in accordance with the work value and Structural Efficiency Principle requirements. After having regard for public interest those wage increases were to be phased in, with the first increase to apply from the first full pay period to commence on or after 1 January 1993. Conversely the Full Bench decided a number of conditions of employment matters in a manner which largely favoured the Government's case as opposed to that of the unions and resulted in both actual as well as potential cost savings for the Government. All variations to conditions were to apply from 1 January 1993, with the increased teacher year to also be phased in. Of special relevance to this dispute is the fact that the Full Bench accepted the Government's submission that an "excess hours" provision was unnecessary and refused the claim of the SCSA to insert such a provision in the Teaching Service (Teaching Staff) Award. Payment for "excess hours" has never been an award provision but existed originally as an agreed condition of employment for many years and was also covered in Section 229 of the Tasmanian State Service Act and Standing order No. 1. Subsequent to the handing down of the Full Bench's decision the Secretary of the Department of Premier and Cabinet advised the Commission on 24 December, 1992, that the Government intended to exercise the opportunity available to it under the Economic Incapacity Principle. As a consequence the same Full Bench reconvened on 6 January 1993 to deal with the Government's request. At that time no Orders had been prepared to give effect to any of the matters decided although their preparation had been requested; and it was apparent that the Government's intention was to seek to defer or postpone that part of the decision which increased wage rates for teachers, directors and superintendents employed in the Department of Education and the Arts (the Department). Concern was raised by the two teacher organisations as to the Government's intentions in relation to the implementation of changed conditions of employment whilst wage increases were being effectively stayed, and the Full Bench pressed the Government to deliver an answer in this regard before deciding to proceed to hear the economic incapacity case. On the same day (the 6 January 1993) the Government's advocate provided a response to the Full Bench in the following terms:- "Mr Willingham: Thank you, Mr President, and I am pleased to be able to indicate to the commission that I am now instructed to alleviate the concerns that have been expressed. Those concerns, I would hasten to add, that were, in my judgment, unfounded. That's why they were to some extent unexpected. But, to the extent that they were raised before the commission as serious issues, and the commission itself sought reassurance, we give an unequivocal commitment that the employing authority will not change the status quo relating to conditions for teachers until the outcome of our application is determined and whatever orders are to be brought down are brought down. And, so that I can be specific when I refer to the `status quo', I mean those conditions and the details attaching to them that applied in 1992 and, more particularly, into the matters that were, I think, articulated by Mr Lane, and they are the hours of duty as contained in the award currently. Well, clearly, that is not a matter that we could have transgressed, anyway. The subject of contact hours, the subject of the teacher year, the subject of excess hours, the senior staff configuration for post-primary sectors, and the questions of teacher transfers both for the secondary college teachers and for all other teachers; and those I think were the matters that Mr Lane has raised. And, so in respect of that, I just reiterate our assurance that there will be no alteration to the practices that applied in 1992." Transcript pages 4155 and 4156 The hearing then proceeded and became somewhat protracted because of the significance of the subject matter. It was not until 18 May 1993 that the Full Bench handed down its decision to refuse to reduce or postpone the wage increase granted on 30 November 1992 and the Order affecting the Teaching Service (Teaching Staff) Award was signed on 18 June 1993. The Full Bench had contemplated the possibility of varying the operative date of effect of matters earlier decided and had this to say at pages 8 and 9 of its 18 May 1993 decision:- "In our 30 November 1992 decision we determined that the increases in the salaries of teachers should be phased in spanning the 1992/93, 1993/94 and 1994/95 financial years. Against that we provided the Government with the opportunity to implement conditions of employment changes producing cost savings from 1 January 1993. However, as the Government, quite properly, undertook at the commencement of these proceedings not to change conditions of employment pending the outcome of its application to have salary increases deferred indefinitely, some cost savings otherwise available to it have been foregone. We have therefore considered whether in a practical sense there remain grounds for maintaining the same operative date of 1 January 1993 for both salary and conditions matters. In deciding not to alter the operative date for the salary increases we are mindful of the Government's submission which recognised that if its application failed, teachers would not be disadvantaged as the operative date for the increases was not sought to be altered in the event of that particular outcome. The Structural Efficiency Principles requires the consideration of a broad agenda, and it is usual to consider that agenda as part of a package, however there is no requirement for wages and conditions changes to operate from the same date. Were this not to be the case then indeed there would be capacity to use the Economic Incapacity Principle capriciously. Our view is supported by the comments made by the 1986 National Wage Case Full Bench2 which stated at page 49: "As for incapacity applications designed to delay adjustments, such delaying tactics would be discouraged by the fact that the prescribed date for national adjustments would prima facie be the date of operation applying to unsuccessful applications." We acknowledge that this quote refers to the application of national wage increases but consider it is equally useful now that the Economic Incapacity Principle has been widened to include any award cost increases. Accordingly as we have stated previously we have decided against revising the effective date of our decision of 30 November 1992 and orders will apply as from the commencement of the first full pay period to commence on or after 1 January 1993. We therefore renew our request to the parties to finalise the draft orders at an early date. In the intervening period approximately 180 full time teachers were required to work "excess hours" and the majority received payment at the relevant time, although some did not. However when arrears of wages were calculated payments were reduced by the extent to which "excess hours" had been paid or were "owing", except that where the amount of "excess payments" exceeded the amount of arrears of wages, further recovery was waived by the Department. Details of the effects of this action were provided by both the SCSA and the TTF via submissions, exhibits and sworn evidence of a witness. Mr Elliott for the SCSA provided copies of correspondence between his organisation and the Secretary of the Department of Education and the Arts commencing on 11 June 1993 when the SCSA first formally sought information concerning the Department's intentions in relation to recovery of excess hours payments because there had been no consultation in this regard. On 9 July 1993 the Secretary of the Department confirmed that teachers would receive the back-pay to which they were entitled on 14 July 1993. The SCSA took exception to that part of the Departments letter which alleged that "one of the elements of the (Full Bench's) decision was that senior secondary teachers would no longer be paid excess hours for extra classes. In common with the rest of the decision, this provision is backdated to January of this year." The 30 November Full Bench Decision in fact dismissed the SCSA claim for an "excess hours" provision to be included in the award for the first time. Not being subject to any Order this could not have been backdated to January as alleged. The SCSA said it firmly believed that colleges entered into contracts with teachers on behalf of the Department for them to teach and be paid for excess hours, and supporting exhibits were produced. It claimed inequitable treatment of some teachers who took extra classes but received less back-pay than those who took the normal number of classes. Some of the first mentioned group received no arrears of wages. The SCSA also took exception to the fact that "without warning, and without consultation", the Secretary of the Department advised by letter dated 8 July (received 13 July), that "consequent upon the decision of the Tasmanian Industrial Commission in the Teachers' Special Case, the Secondary College Standing Order No. 1 has been withdrawn effective from the date of implementation of the new Teaching Service (Teaching Staff) Award. Standing Order No. 1 detailed the procedures by which excess hours are earned and paid. Mr Elliott said he did not think it was legally possible to withdraw a standing order retrospectively. He further submitted that whilst the Department had claimed to have abolished the relevant standing order, it had not abolished State Service Act Regulation 229 which provides that:- "Payment shall be made to a teacher who works hours of duty in excess of normal hours of duty in a TAFE college or secondary college and who has received approval to undertake those hours under regulations 176 or 277 at a rate calculated in accordance with (a formula)." The position put by the SCSA was that the Full Bench decision of 30 November 1992 did not have any material effect until Orders were made, and teachers "excess hours" payments should not have ceased until 18 June 1993 at the earliest when Orders were handed down. Transcript was extensively quoted by Mr Elliott to support his contention as to what were the common undertakings reached and articulated by advocates and some members of the Full Bench which heard the case concerning the practical effects caused by delays attributable to the running of the economic incapacity case. Against that background Mr Elliott submitted that the Government's unequivocal commitment of 6 January that the employing authority would not change the status quo relating to conditions for teachers until the outcome of the Government's application was determined and Orders brought down was clear and unambiguous. He said it would be "a particularly grubby piece of work" if the words used were taken to mean something contrary to what was understood at the relevant time. He said that nothing was said or implied by the Government that the status quo in respect of conditions of employment matters would be maintained until a decision and Orders were issued but that the conditions would then be varied retrospectively. The SCSA also claimed comfort and support for their argument from the Full Bench's comments at pages 8 and 9 of its 18 May 1993 Decision (earlier quoted) which were to the effect that some cost savings otherwise unavailable to the Government had been foregone, and that the Wage Fixing Principles did not require that new provisions relating to wages and conditions necessarily apply from the same date. It was further argued that teachers who worked excess hours suffered double jeopardy because they had imposed upon them increased hours of attendance retrospectively and then had payment for the "excess hours" worked taken from them. It was further claimed by the SCSA that some part-time teachers were put on "excess hours" illegally. This was because Standing Order No 1 only provides for full-time teachers to be employed on "excess hours". Instances were cited where part-time teachers had been put on "excess hours" rather than raise their fraction. The SCSA said this practice gave rise to a possible situation where two or more part-time teachers could be doing the same work (and same hours) and be receiving different rates of pay. Accordingly, it was claimed, some were paid the correct fractional load, others a combination of fractional load plus "excess hours", and worse, they have now lost payment for those "excess hours". It was further alleged that some teachers had taught more than 20 hours in a week, which exceeded even the new award provision prior to its promulgation. The complaint of the SCSA extended to the fact that some teachers did not teach excess hours as part of a regular load, but irregularly to cover for colleagues' absences. If the colleges concerned had used relief teachers instead, as do the primary and high schools, then the payment could not have been recovered by the Department. Examples by way of exhibits were provided. The SCSA also adverted to concerns of their members in relation to some of the repercussive effects of the Department's decision to retrospectively recoup payment of "excess hours" worked. These involved issues related to both taxation and superannuation. Others were probably errors such as confusing sick leave or extra fractional load with "excess hours". Mr Lane for the TTF supported the submissions of the SCSA and advised the Commission of similar problems where for instance some of his members received different rates of payment for exactly the same work. The Commissioner was reminded by the TTF of its jurisdictional capacity to deal with this particular dispute and reference was made to Section 29 (1) and Section 3 of the Act which deal with hearings to settle disputes and the definition of "industrial dispute" and "industrial matter". The TTF argued that by virtue of the actions of the employer in this particular case in retrospectively rescinding a condition of service; by deducting wages from employees without their written authorisation; and by failing to pay employees their correct salary meant that they have impinged upon areas defined as industrial matters. In explaining this statement Mr Lane said the employer appears to have no statutory or award authority for acting in the way that they have done. Reliance was placed upon Section 49(1) of the Act which provides:- "Subject to this section, where an employee is employed by an employer in work for which a rate of remuneration is fixed by an award, industrial agreement or registered enterprise agreement, he is entitled to be paid by his employer in respect of that work remuneration at the rate so fixed." Similarly the TTF relied upon that part of Clause 15 of the award - Payment of Wages - which provides that, inter alia: "wages due to an employee shall be available". and later:- "The employer may deduct from wages due to the employee such amount as is authorised in writing by the employee" The TTF said the decision of the Department to deduct "excess hours" payments from arrears of wages due to teachers contravened Section 51(3) of the Act which provides as follows:- "51(3) Where, by virtue of an award, an employee is entitled to be paid any sum by his employer, that employer is guilty of an offence if that sum is paid otherwise than in money without any deductions other than those that may be authorized by the employee." Mr Lane also took issue with statements made by the Secretary of the Department in a letter dated 9 July and provided to both teacher organisations. In common with Mr Elliott he referred in particular to that part of the correspondence which stated that:- "I am writing to confirm that on 14 July 1993, teachers will receive the back-pay to which they are entitled under the terms of the Tasmanian Industrial Commission's recent decision. You will recall that one of the elements of the decision was that senior secondary teachers would no longer be paid excess hours for extra classes. In common with the rest of the decision, this provision is back-dated to January of this year. He too argued that the statement is quite erroneous because, in his view, the Full Bench made it clear that the employer had to forego certain entitlements because of the action they took in staying the application of conditions of employment matters. Mr Lane also referred to a further paragraph of the same letter which makes a distinction between the recovery of some parts of excess hours payments but not other parts. The relevant paragraph says: "The Department has calculated the back-pay in this instance, and senior secondary teachers who have been working excess hours will only receive the difference between their entitlement under the new Award and the salary actually paid to them. In a small number of cases, the new Award is less than the salary plus excess hours, and these teachers will, of course, receive no additional back-pay. Overpayments in these instances, however, are not considered to be overpayment recoverable by the Department." Mr Lane submitted that either the total "excess hours" payments were recoverable because they ceased to exist in January, 1993, or no "excess hours" money was recoverable because "excess hours" were not stopped until 18 June, 1993, when Orders were signed. It was further submitted that teachers did not simply volunteer to "work excess" hours but were compelled to do so and were assured that they would be paid for such extra work because they were aware of the existences of Standing Order No 1, and many of them would have also been aware that such payment was provided for in State Service regulations. The TTF requested that the Commission in deciding this matter have regard for Section 20(1) of the Act, which provides as follows: "20(1) In the exercise of its jurisdiction under this Act, the Commission - (a) shall act according to equity, good conscience, and the merits of the case without regard to technicalities or legal forms; (b) shall do such things as appear to it to be right and proper for effecting conciliation between parties, for settling industrial disputes, and for settling claims by agreement between parties; (c) is not bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and (d) shall have regard to the public interest." Mr John Spiranovic who is Assistant Principal at Alanvale College gave sworn evidence as a witness called by the SCSA. Mr Spiranovic testified that, inter alia, the Department continued to authorise the payment of "excess hours" in 1993 and that these payment came from a variety of different funds. He said that the quota of teaching staff allotted to Colleges at the beginning of 1993 was not sufficient to staff all classes on the basis of existing teacher loads. The witness gave details of a new system for the payment of "excess hours" in colleges introduced by the Schools Resource Unit of the Department early in 1993. This consisted of a new colour sticker system and an allocation of stickers needed to be attached to claim forms. He gave examples of alleged inequitable treatment of some teachers in relation to the hours worked and the payment and/or recovery of payments either made or owing. The evidence of Mr Spiranovic was that during the relevant period under review teachers were both instructed to work "excess hours" and he personally told teachers that they would be paid for working "excess hours". In this regard the following exchanges are to be found at page 41 of transcript. Ms Moran: "Now here I'd like to ask you a question that's been raised in the hearing this morning; 1993 came - was there any change? Were teachers specifically or otherwise informed that they would be paid excess hours?..." Mr Spiranovic: "On the existing teaching conditions at - at the beginning of 1993 we still didn't have enough staff to cover all our classes. We expected to get the quota and we wrote the letter to the department asking for those teaches to be paid as the existing practice, and those payments came through, throughout Term 1 of 1993." Ms Moran: "So the process operated as it had in previous years; did anyone give those teachers any specific guarantees that they would be paid?..." Mr Spiranovic: "In a staff meeting I - I told the teachers that a number of staff would have extra loads and we discussed the - the instructional load or teaching load for all teachers and told them that excess hours were available for payment for that extra work." In responding to the case put by each of the two teacher unions Mr Willingham for the Government commenced by referring to transcript of proceedings in the Commission on 6 February, 1993, which were essentially "for mention" and the setting of further dates of hearing. Particular reference was made to that part of the Government's submission which said at page 58: "... - while our request for a date in February may be disappointing to the bench, if the Commission's decision is that it does not uphold our submissions in respect to economic incapacity, then the date of operation of the decision is unaffected, and therefore the people affected by the award variations are at no particular disadvantage." It was therefore argued that at that early stage of proceedings the Government's position was that if their economic incapacity application was unsuccessful then it was assumed the operative date of the Full Bench's decision of 30 November, 1993 would remain effective from 1 January, 1993. Mr Willingham also drew attention to a comment from the President that the Full Bench's decision (of 30 November 1992) was a package, and that subsequent comments on transcript from another member recognised that the costings of the package needed to take into account savings available to the Government through the non application of excess hours payments in 1993. My observation is that these observations were made before the Government gave its unequivocal commitment to maintain the status quo as to conditions of employment, and tended to focus upon and be in response to public comments being made at that time in relation to the financial impact of the Commission's decision. The Government's submission in the present matter also drew attention to further quotes from the same transcript which, it was claimed, demonstrated that the unions too freely acknowledged that both elements of 30 November 1992 decision - wage rates and conditions matters - formed an integral package. At page 62 of present transcript Mr Willingham said: "In our submission, Deputy President, Mr Lane's words admirably placed into proper perspective what was being sought by the unions and why it was being sought by the unions. Wages and conditions were inextricably bound together; both move or neither move." He said that the unions had been keen to ensure that if the Government's application to reduce or postpone wage increases was successful then changes to conditions of employment should not precede what happened to wages. Whilst the package was to be indivisible then, now the unions want the wage increase applicable from 1 January to stand alone for a considerable time but for conditions matters which formed part of the package to have a later operative date. Mr Willingham's response to the TTF's raising of Sections 49 and 51(3) of the Act (i.e. entitlement to award rates of remuneration and payment to be made without unauthorised deductions) was to argue that these matters are beyond the Commission's capacity to decide. He also pointed out that the Commission's powers to make an Order pursuant to Section 31 of the Act needed to be read down because of the limitations imposed by Section 31(2). In this regard the Act provides that: "31(1) Subject to this section, where the Commissioner presiding at a hearing under section 29 or a conference under section 30 is of the opinion, after affording the parties at the hearing or conference a reasonable opportunity to make any relevant submissions and considering the views expressed at the hearing or conference, that anything should be required to be done, or that any action should be required to be taken, for the purpose of preventing or settling the industrial dispute in respect of which the hearing or conference was convened, that Commissioner may, by order in writing, direct that that thing is to be done or that action is to be taken. 31(2) A Commissioner shall not make an order under this section -
It was further submitted by the Government that it had acted within the spirit of the undertaking which it gave on 6 January, 1993, as it said at that time that it had no intention of changing conditions of employment until such time as the salaries question was known. To again quote Mr Willingham at page 72 of transcript on 19 July 1993: "We said in fact, Deputy President, that we had no intention of changing conditions of employment until such times as the salaries question was known" Decision There are two fundamental elements to this particular dispute. Firstly there needs to be considered whether or not the Government's action in requiring secondary college teachers to work "excess hours", that is to take extra classes and exceed 18 hours of instructional time, and then later withdraw payment by offsetting it against salary increases due was legally correct. Secondly, even if such action was allowable on the basis of strict interpretation of the law, are the teachers concerned and their respective organisations justly entitled to feel aggrieved and wronged because good industrial relations practise and the concept of "a fair go all round" have not been followed. I shall deal with each element in turn but suggest in a constructive sense that any prudent employer of labour would be wise to take advice from a range of sources when dealing with issues such as the present one which affects both its employees and the delivery of an important public service such as education. In the first instance it is relevant to point out that the Full Bench handed down its Decision3 to vary the Teaching Service (Teaching Staff) Award and the Teaching Service (Directors and Superintendents) Award concerning both wage rates and conditions of employment on 30 November 1992 and at the same time made it clear to the parties that they were expected to prepare draft Orders to give effect to the Decision at an early date. The unions concerned complied with the Full Bench's request for Draft Orders well in advance of the Government which did not provide such drafts until after the economic incapacity case was finalised. The effect of this was that whilst the economic incapacity case was proceedings the decision as a whole was stayed and there therefore existed no right for employees to receive a wage increase or for the employer to increase the hours of duty or contact hours for teachers until after Orders were signed on 18 June, 1993, at the earliest. Yet prior to 18 June the Government did arbitrarily increase both hours of duty and contact hours for some teachers now the subject of the dispute. Whilst the Government's case in this dispute relies in the main upon two decisions of the Full Bench (30 November 1992 and 18 May 1993) and the Order which followed, to justify its action, the TPSA and the SCSA have relied upon the State Service Act and regulations, the Industrial Relations Act, and the new award. It appears to me to be clear that, in this matter at least, the two Acts (and regulations) are complementary and not mutually exclusive. The right to payment of "excess hours" was derived from regulation 229 which, on the evidence before me, appear to still have full effect, notwithstanding the belated withdrawal of Standing Order No 1. It is important to point out that whilst the Decision of the Full Bench of 30 November, 1992 refused to accede to the application of the SCSA to make "excess hours" an award provision it left in tact other regulatory provisions which exist under the Tasmanian State Service Act. Accordingly it was not true for the Department to have said on 9 July, 1993 that "in common with the rest of the decision, this provision is backdated to January of this year". The Department's reasoning in this regard is clearly flawed because not only did the Full Bench not in fact proscribe the continued payment of "excess hours' but it could not have done so in law. This is because where there is a conflict between an award made under the Industrial Relations Act and the provisions of the Tasmanian State Service Act and Regulations, the latter prevail. Therefore where an entitlement exists under the provisions of Tasmanian State Service Act and regulations it cannot be impinged by a decision of the Commission as seems to be implied because of relevant provisions of both Acts. In this regard Section 42 of the Industrial Relations Act provides that: "An award has effect subject to the provisions of any Act dealing with the same subject matter." That provision had effect from 1 March this year and replaced the provision which said previously that: "42 - Except as provided in section 3(6) and section 81(12) of the Tasmanian state Service Act 1984, an award has effect subject to the provisions of any Act dealing with the same subject matter and, in particular, and without affecting the generality of this section, is subject to the provisions of - (a) the Apprentices Act 1942; And 3(6) of the Tasmanian State Service Act had previously provided that: "Where there is an inconsistency between a provision of this Act and an award in force in Tasmania, the provisions of this Act shall be read subject to that award." However from 1 March, 1993, this was also amended and now provides that: "If a provision of this Act is inconsistent with an award, the award is to be read subject to that provision." Thus through this mechanism the Government may override any award provisions applicable to its employees employed in the State Service except where they are subject to the provisions of a Federal award. Employees covered by State awards employed by a private employer are not similarly affected. This amply illustrates that any rights which previously existed, or indeed which still exist, by virtue of the Tasmanian State Service Act were unaffected by the Full Bench's refusal to grant the claim for "excess hours." The unions claimed that I should recognise their right to award payments granted to them without unauthorised deductions (Industrial Relations Act 49(1) and 51(3) and award clauses) but the Government countered by arguing that I was being asked to enforce existing rights which were beyond jurisdiction. Whilst not referred to specifically I have assumed the Government was inferring that Section 92 - Proceedings for Offences - provide the only proper mechanisms for relief of the kind sought. I do not agree. Section 92 provides: "Proceedings for offences against this Act shall be heard and determined by a magistrate." I agree that complaints as to alleged offences need to be prosecuted in accordance with Section 92 of the Act. However whilst the Courts and the Commission each have separate functions which are not to be confused, each are bound by the same Act. However, my role in settling this industrial dispute pursuant to Sections 29 and 31 of the Act not only allows me to have proper regard for specific rights and obligations imposed by other provisions of the Act but compels me to give appropriate weight to such provisions in the proper exercise of the discretion which I have. Accordingly I acknowledge that teachers had a right to payment awarded to them and such payment should be made without unauthorised deductions. In this instance the Government has decided that the only legal entitlement that employees had to payment was the minimum amounts prescribed by award during the period between 1 January 1993 and 18 June 1993. Clearly it regards any other payments already made (or claimed) to have been "over award" and therefore not of right. It has also decided that payments made for "excess hours worked" could be offset against arrears or wages properly due. From all that has been put to me there exists at least an arguable case to say that: (a) "Excess Hours" payments made during the relevant period were due and payable by virtue of rights which exist under the Tasmanian State Service Act and regulations. (b) Even if "Excess Hours" payments made to teachers during the period under review could be categorised as money paid under a mistake of law it would not ordinarily be recoverable. If this assumption is true then - (c) The deduction of "Excess Hours" payments made was not authorised to be made and is contrary to the requirements of 49(1) and 51(3) of the Act. Finally I feel it would be inappropriate to comment on what was only briefly mentioned during proceedings before me in relation to an alleged breach of contract concerning arrangements entered into between colleges and teachers for the payment of "excess hours". Whilst certain evidence was given by a witness which was supportive of the establishment of a prima facie case in this regard I consider that that type of matter would more appropriately be dealt with by a court of competent jurisdiction. I turn now to the second element to the dispute, being that even if the Government's action may have been technically correct, were teachers unfairly treated in all of the particular circumstances of this case? A good deal must turn upon the Government's unequivocal commitment given to the Commission and both teacher unions on 6 January, 1993 and whether or not that commitment was breached as to spirit and intent. The Government's unequivocal commitment has already been reproduced at pages 3 and 4 of this decision. One of the most critical parts of that commitment was where Mr Willingham said on behalf of the Government: "We give an unequivocal commitment that the employing authority will not change the status quo relating to conditions for teachers until the outcome of our application is determined and whatever orders are to be brought down are brought down." Whilst at first glance the literal meaning of those words may be taken to mean two different things i.e. that the status quo (as to conditions of employment) would be changed only prospectively or once a decision is made and Orders issued changes could occur retrospectively. A better understanding of the meaning and effect of the Government's commitment can be achieved from the following: (1) The following part of the same statement of commitment goes on to elaborate by saying: "And so that I can be specific when I refer to the `status quo', I mean those conditions and the details attaching to them that applied in 1992 and, more particularly, into the matters that were, I think, articulated by Mr Lane, and they are the hours of duty as contained in the award currently. Well, clearly, that is not a matter that we could have transgressed, anyway." The remainder of the quote specifically includes "excess hours" as one of the other matters which were subject to the same preservation of the status quo as applied in 1992. However on the balance of evidence presented I am left to conclude that not only did the Government transgress the hours of duty in some instances during the relevant period but also transgressed its commitment because teachers could only have been worked more than the hours of duty contained in the award at the relevant time if they were paid for "excess hours". (2) It is my view that in a practical sense some conditions of employment such as "hours of duty" and "excess hours" could not have been effectively altered retrospectively. Other matters such as perhaps the length of the "teacher year" may be less affected by a decision and Order made nearly midyear. This was recognised by the Full Bench in its 18 May decision4 and also illustrates the clear understanding it had of the Government's unequivocal commitment. This was earlier referred to and says in part: "In our 30 November 1992 decision we determined that the increases in the salaries of teachers should be phased-in spanning the 1992/93, 1993/94 and 1994/95 financial years. Against that we provided the Government with the opportunity to implement conditions of employment changes producing cost savings from 1 January 1993. However, as the Government, quite properly, undertook at the commencement of these proceedings not to change conditions of employment pending the outcome of its application to have salary increases deferred indefinitely, some cost savings otherwise available to it have been foregone." (3) Whilst it is with the benefit of hindsight, the Government's commitment of 6 January, 1993 was not qualified in any way by words which would indicate a freedom to retrospectively alter any of the specified conditions of employment following the giving of a decision and the issuing of an Order. I believe any such intention should have been stated at the time the commitment was given. One of the further elements of this case which has persuasive effect is that sworn evidence was given by an Assistant Principal to the effect that: (a) Teachers were required to work "excess hours." (b) Head office authorised the continued payment of excess hours in he same manner as applied in 1992. (c) Teachers were promised that when they worked "excess hours" they would receive additional payment for such work. (d) The promise of payment was not qualified in any manner and there was no suggestion that payment may be discounted against any other entitlement whatsoever. Again if that was the intention the employer had a clear duty to say so at the proper time. I found the witness who testified to these facts to be truthful and reliable and I accept his evidence in this regard. Another aspect of this dispute which has some importance and exacerbates other factors is that there was no proper consultation with employees or their respective organisations? in relation to the decision to reverse undertakings given to employees, or to lessen expectations reasonably held. Good industrial relations and personnel practice requires good communication and consultation at an appropriate level if disputes such as the present one are to be avoided. However it was not until 9 July, 1993 that the Department eventually advised the SCSA and the TTF of its decision to deduct "excess hours" payments (or credits) from arrears of wages which were to be paid on the Wednesday of the following week. This was despite a number of requests for information much earlier. In conclusion I believe that in the resolution of this particular dispute considerations of equity, justice and the merits of the case without regard to technicalities or legal forms must prevail. And on the evidence and other material before me I find that on balance teachers employed in the Department of Education and the Arts who worked, what has been known as, "excess hours" but were subsequently denied payment in addition to other entitlements have been unfairly treated. It follows that it is my strong recommendation that teachers who worked "excess hours" between 1 January 1993 and 18 June, 1993, now have those payments made to them at an early date. Such payments to be in addition to salary and other entitlements as per the appropriate award. Given the circumstances which have arisen in this dispute it may be that, at some appropriate time in the future, an application to again review the question as to whether or not "excess hours" provisions should be made part of an award would be allowable for consideration on merit. However I do not make such an Order at this time.
A Robinson Appearances: Date and place of hearing: 1 T.2457 of 1990, etc. |