T426 T574 T580 T614 T890-T894 T585-T590 (15 April 1988)
IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 See end of decision for Awards varied
This protracted matter was again before the Commission as constituted on 2 February 1988 when the parties were afforded an opportunity to address the question of employee definitions and other unresolved issues arising out of the proceedings before the President convened in accordance with Section 21(1) and 21(2) of the Industrial Relations Act 1984 (the Act). Casual Employees: As it transpired the parties requested that the definition of casual employee as it already stands in various "key" public sector awards (e.g. Clerical Employees Award) of this Commission, be maintained. Mr Jarman, representing the Minister for Public Administration (the Minister) did however request the inclusion of a proviso, as inserted in the General Officers Award by consent relating to a minimum of 3 hours pay. This was not agreed to by the Tasmanian Public Service Association (the Association) as a variation in these proceedings. Mr Geursen indicated that in the event that the minimum hours of pay provision was to be altered then other employee organizations party to the awards, subject to the applications before us, should be afforded the opportunity to make submissions. Mr Geursen said: "... if it is the view that we should change that definition (the existing one) well then the other (employee) organizations should certainly be part of the process: (In brackets ours) Transcript p.322 We understand that the variation to the General Officers award was made to address particular circumstances in the Community Welfare Agency. We do not wish to interfere with the General Officers Award consent variation and, accordingly, when all public sector awards subject to these variations are varied to reflect what has been determined in this and all other decisions in this mammoth test case, the definition of casual employee, other than for the General Officers Award, will be as follows: "A persons engaged to work on an irregular basis as and when required but does not include any person employed on a part time, full time or permanent basis". Temporary Employees: The outstanding issue requiring determination by this Bench is in essence whether or not temporary employment should be limited in the first instance to a twelve month period, and to require the controlling authority to negotiate an extension to the temporary employment contract in the event that such an extension is considered necessary. The question has been debated at length during the course of these proceedings. Mr Vines said in respect of a twelve month period that: "It's a safeguard for our members, sir, and our potential members, but there's the out in it inasmuch as if agreement can be reached the period can be longer than 12 months". Transcript p.287 The Association submitted in essence that the insertion of a twelve month limitation would tighten the temporary employee definition in such a way that, in the event the employment is ongoing, the employee should have access to Tasmanian State Service Act provisions applicable to permanent employees, such as redeployment and appeal rights to the Commissioner for Review. Both Mr Vines and Mr Geursen made it clear that permanency would not necessarily be pursued for temporary employees after twelve months; however at that time an assessment of the ongoing employment circumstances would be made as to the future employment status of individual employees. The representatives for the Minister strenuously opposed any variation to the present definition. Mr Westwood said: "We do not agree with the proposal put by the Association, that the only way a specific time period for temporary employment can be increased beyond 12 months would be by agreement with the Association. That would be a most cumbersome method of dealing with individual periods of employment in a number of areas". Trancript p.289 Mr Westwood and Mr Jarman submitted in essence that a twelve month limitation would inhibit the employment practices of the Minister and: "... would be totally counter productive to the way in which the Government would want to operate in terms of a certain employment policy." Transcript p.289 We consider that, prima facie, a twelve month temporary employment period appears a reasonable limitation to impose on this type of employment. However, the reality of the need for extensions beyond such an arbitrary period of time is acknowledged by the Association, on the basis that a bona fide case could be made out by the employer, that some temporary employment periods will need to extend well beyond this arbitrary period of time. Of course in some cases, e.g. "specific periods of leave", the length of temporary employment is usually significantly less than twelve months. It would appear from what has been submitted that the Association has some specific concerns about the temporary employment procedures in some agencies. Mr Geursen submitted, in part, that the Association's concern is that the definition of temporary employee has been used "perhaps loosely" by some agencies. If that is indeed the case, then of course particular cases which remain unresolved can be brought before the Commission, in accordance with Section 29 of the Act, in the first instance. We do not regard as an appropriate remedy the variation proposed by the Association for a problem, if that is indeed what it is, encountered in certain identifiable circumstances. To do so would be tantamount to "using a sledge hammer to crack a peanut". Temporary employment has a place in the State Service and used correctly has many obvious benefits for the community as a whole; such as creating employment and giving employees work experience and enhancement, and in some cases the cessation of unemployment benefits. As we have said, if there are problems in some agencies existing provisions of the Act are available for their resolution. Role of the Commission: The parties are aware of how this matter came to be included in these test case proceedings. At page 13 of our Interim Decision dated 1 February 1988 the President's comments are set out in full. In these latest proceedings, the Association indicated its desire to address the Bench on the question. Mr Vines said: "... in relation to addressing the Bench on the question of the role of the Industrial Commission in relation to the role of the Minister for Public Administration, I would be seeking, sir, a further adjournment of this case to allow us to prepare substantial submissions for the Bench". And later "Some of the areas that are decided in that interim decision (dated 1 February 1988), sir, are fundamental to the whole of the test case that has been before the Commission and are, of course, fundamental to the role of this Commission in the light of the role of Minister for Public Administration." (In brackets ours) "We believe, sir, that the issues that have been raised throughout the whole of this case and that obviously have to be considered when putting submission on the roles of the two bodies, are of such importance that we would appreciate further time to consider the issues of the interim decision yesterday." Transcript pp. 317/318 Having regard to the submission of Mr Vines on this issue a final hearing date has been set down for 10.30am on Thursday 12 May 1988. Matters Decided: In addition to all matters determined in these proceedings, all other mechanical award variations, encompassed by the applications before us are endorsed. Consequently, the awards in question will now cite the Minister as the employer party; contain standard employee definitions; and be couched in terms compatible with the Tasmanian State Service Act, 1984. For the convenience of the parties, and the individual Commissioners who are now required to implement the various decisions of this Bench, a summary schedule is appended to this decision, detailing necessary award variations. As the variations now required are essentially of a mechanical nature only, awards can be varied, operative either from the date of this decision or alternatively (at the discretion of individual Commissioners) to coincide with imminent award variations e.g. 4% second tier orders. Awards Varied:
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