TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
Minister for Employment, Industrial Relations and Training
Minister Administering the Tasmanian State Service Act 1984
Observance of Recreation Day Holiday
REASONS FOR DECISION
These applications, which were joined for hearing at the outset, were made pursuant to Section 24(20)(e) of the Act by both the Minister for Employment, Industrial Relations and Training and the Minister Administering the State Service Act for amendments to be made to nominated public and private sector awards of the Commission to "remove from the holidays provisions of awards any reference to `the first Monday in November (where Hobart Regatta Day is not observed)' and substituting therefore the words `Recreation Day (where Hobart Regatta Day is not observed'.
The applicants' representative, in his submissions, advised that there were two reasons for seeking the changes:
It was submitted further that "Recreation Day" had no historic, cultural or religious significance, it was merely traditionally observed on the 1st of November, but that date was not immutable. It was also said that the Government had no intention (in this matter) of diminishing the number of public holidays presently prescribed in this State and that the change sought was in the public interest.
As to Federal Awards we were advised that there were five awards to which the State was a party and four of those had been varied by consent. The Government was taking steps to ensure that all 65 other Federal awards are similarly varied but the results could not be guaranteed.
The Tasmanian Confederation of Industries (the Confederation) on the one hand expressed support for the application, but on the other confirmed its condemnation of the Government's unnecessary delay in applying for the changes to be made. The matter was first raised twelve months ago the Confederation said.
The Confederation, however, urged the Commission to put aside any objections in the interests of avoiding the "untold confusion" which would result if the application was not endorsed.
There were now good reasons to grant the claim the Confederation submitted, there were economic benefits accruing from a major event, there was no fundamental reason to object and it was entirely appropriate to have the day moveable. The Confederation noted also that at least half the Federal Awards involved referred only to "Recreation Day".
The Tasmanian Public Service Association (the TPSA) opposed the application and complained that there had been no consultation at all by the Government on the subject. Further, the TPSA submitted that the Government's proposal should more properly have been on the agenda for the current State Service award restructuring negotiations. The TPSA said that the present prescription was a tradition which should not be interfered with and it was also suspicious of the Government's intentions.
The other unions present at the hearing also opposed the application except the Australian Nursing Federation, Tasmanian Branch which was not opposed. The further points raised by the other unions related to the confusion being caused by the Government's actions and the disruption to the social life of many.
In response to the opposing submissions the Ministers' representative advised that discussions with the Tasmanian Trades and Labor Council had taken place in April, but to no avail. The advocate for the Ministers also assured the Commission and the parties that there was no hidden agenda: the intention was to do what was proposed and no more.
The Commission has been put in an invidious position as a result of these late applications in that the only real reason given by the Ministers for the change sought was that the Government wanted the "Recreation Day" public holiday to be reallocated to coincide with the final day of a horse racing carnival in Launceston. In the first instance it is questionable whether or not a horse race is a matter of such vital public interest. This one reason by itself may be insufficient to warrant the amendment sought, but the Commission has been constrained by the pre-emptive actions of the Minister in appointing 11 November 1991 as Recreation Day 1991 for the purposes of the Bank Holidays Act 1919. The result to date has been that, under the Bank Holidays Act 1919, 11 November 1991 is a Bank Holiday across the whole of the north of the State, but also because of the long-standing prescription in the Awards of the Commission, the first Monday in November (the 4th) is an award holiday. Such a situation is ludicrous and has been brought about entirely by Government action.
The Commission is not without the view that there could be merit in the proposed change, for reasons other than the one given, but principally because of the time factor, it would be counter-productive to refuse the application now so as to enable a proper canvassing of the subject later.
The Commission acknowledges the point made by Mr Abey that the Government is deserving of much criticism over its mishandling of this whole matter. In the first instance at least twelve months prior application for the change was warranted because of the potential inconvenience to many, especially as the proposal was announced that long ago. The Government should have taken the opportunity of the provisions of both the State and Federal Industrial Relations Acts and sought a joint hearing so that the matter could have been dealt with expeditiously in one session. Further, even though this Commission has dealt with the matter now, it appears there are still over sixty Federal Awards to be processed. In other words there has been concern and disruption caused already and the blame for all that must rest with the Government.
However, the Commission also agrees with another submission of Mr Abey's to the effect that all parties must rise above any recriminations or an "it wasn't my fault" attitude.
For all these reasons therefore the application is granted and the attached schedule of awards will be varied from this date.
Orders will be processed by individual Commissioners within their respective assignments.
Date and place of hearing: