TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Tasmanian Teachers Federation
(T.4564 of 1993)

and

Minister administering the Tasmanian State Service Act 1984

Industrial dispute - refusal to pay waiting time to an employee

REASONS FOR DECISION

This matter concerns an application by the Tasmanian Teachers Federation (TTF) for a hearing to settle an industrial dispute pursuant to Section 29 of the Industrial Relations Act, 1984 (the Act).

The dispute was with the Minister Administering the Tasmanian State Service Act and concerned the alleged refusal of the Department of Education and the Arts (the Department) to meet the obligations imposed on it by clause 15 - Payment of Wages - of the Teaching Services (Teaching Staff) Award.

The essential facts are that Mr F Piscioneri, a music teacher at Rokeby High School, received his usual salary and wages advice on both 7 and 21 April, 1993, but only discovered on 30 April 1993 that the actual transfer of funds into his and his wife's personal joint account had not been effected by electronic fund transfer.

As soon as he became aware of this situation Mr Piscioneri notified the Department and they accepted that an error had occurred and immediately rectified the situation by ensuring that the full amount of wages due were in fact electronically deposited. This occurred on the same afternoon as Mr Piscioneri's contact with the Department.

The TTF sought either the making of an Order pursuant to Section 31 of the Act or in the alternative a recommendation which would require the payment to this employee of any time he had been kept waiting for payment of wages in accordance with the relevant award clause.

The relevant parts of Clause 15 provides as follows:

"(e)(i) Except in circumstances beyond the control of the employer and subject to subclause (e)(ii), an employee kept waiting for payment of wages for more than a quarter of an hour after the usual time for ceasing work on the normal pay day shall be paid waiting time at the rate of time and one half after that quarter of an hour with a minimum payment of a quarter of an hour and payment shall continue on that day until advised that payment will not be made on that day.

Further such payment at the rate of time and one half shall continue during all ordinary hours of work on each succeeding day or days, up to a maximum of 6 hours per day, until such time as payment is made.

(ii) Subject to subclause (e)(iii) the provisions of subclause (e)(i) shall not apply in circumstances whereby payment of wages is not made on pay day but the employer and employee agree to an alternative arrangement for payment.

(iii) Should, however the employer fail to make payment in accordance with the terms of the alternatively agreed arrangement as provided for in subclause (e)(iii), the employee shall be deemed to have been kept waiting for payment since pay day and shall thereby be entitled to payments in accordance with subclause (i) until such time as payment is affected."

In the context of this particular industrial dispute I am of the opinion that Mr Piscioneri was not in any practical sense "kept waiting" for payment of wages after ceasing work on the normal pay day or subsequently.

The evidence is that he was totally unaware of the fact that funds had not been transferred to his account as usual on each of two pay days until 30 April, and was therefore not waiting to be paid.

The failure of the system of electronic transfer of funds certainly should not have occurred and cannot be condoned because the employer has an obligation both under the award and as part of the contract of employment to reward its employee for services rendered by making correct payments of money to him at regular set intervals.

Clearly the failure by an employer to pay an employee in full and on time has the potential to create financial difficulty for such person but fortunately in this instance there was no evidence of any financial detriment caused by the Department's error, which apparently was to transfer Mr Piscioneri's salary to the account of another employee with the same surname.

The Concise Oxford Dictionary (sixth edition) defines the verb "wait" as:

"Defer action or departure for specified time or until some expected event occurs, be expectant or on the watch".

In my view the circumstances which existed in this particular case are not consistent with the dictionary definition of "wait", in the context of waiting to be paid.

Nor do the circumstances illustrate any harsh or unfair treatment of Mr Piscioneri even through any unintended action which would have detrimental repercussive effects upon this particular individual. In fact the opposite is the case because the Department acted with commendable haste in rectifying the situation immediately it became aware of the facts.

For these reasons the TTF request for the making of an Order or recommendation for the payment of waiting time in settlement of this industrial dispute is refused.

A Robinson
DEPUTY PRESIDENT

Appearances:
Mr G Philp with Mrs J Poate for the Tasmanian Teachers Federation
Mr R Hunt for the Tasmanian Public Service Association
Mr C Willingham and Mr G Payne for the Minister administering the Tasmanian State Service Act 1984

Date and Place of Hearing:
1993
Hobart
September 14