T466 T467 T472 T473 T474 T478 T479 T481 T482 T490
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 See end of Decision for Awards varied
DECISION
This case has been conducted in a sensitive atmosphere conditioned by employee apprehension, public uncertainty and manifestations of tension between the parties. The Commission itself has not been insulated from criticism and in all probability will attract more following announcement of our decision. However, we will not join issue with those who choose to give public expression to their feelings. The following excerpt may serve to explain why: "Compulsory arbitration tribunals are like coconut shies. Governments build them and are able to hide behind them while the parties hurl at the tribunals their industrial disputations and criticisms of the decisions given. Sometimes the governments also join in to hurl criticism. All the critics barrack only for their own side and the press reports it all with an enthusiasm usually reserved for football matches. This is not a bad thing but it is confusing to the public."
The Government, for its part, is naturally concerned to finalise its 1986/87 Budget, but says it is bedevilled by significant funding difficulties with no foreseeable amelioration of its immediate fiscal problems. This is likely to continue for the ensuing two financial years. It sees itself as having been forced into a position where, after having taken all reasonable steps to raise additional revenue, and having effected all the internal economies open to it, it none the less remains in a position where it needs to find at least a further $7 million this financial year, or the jobs of some 400 employees will be rendered forfeit. The Government has told us that it does not wish to retrench any employee and has relied upon its track record in that regard since first coming to office. However, it feels it has no choice. In a last-ditch effort it has approached this Commission to give merit consideration to its two applications - either of which will, if successful, help to overcome its predicament. Bearing in mind the consequences of our failure to do so, the Commission has been asked to approve a temporary reduction in salaries in the form of a number of options relating to deferral of the recent 2.3 percent State Wage Case decision. Any one of those options, it was said, would produce the required $7 million this financial year. Alternatively, the Government has argued that the same result could be produced were we to give approval for deferral for 12 months of payment of what is commonly referred to as the 17½ percent leave loading, but which is described in most awards affecting State employees as recreation leave allowance. At no stage was it suggested or claimed that what was sought was other than an emergency mechanism to secure sufficient temporary relief from known wage and salary obligations. This is necessary to ensure continuity of employment of the 400 State employees whose jobs were then, and of course, remain, at great risk. But equally important was the stated desire of the Government strategists to obtain a balanced budget this financial year in order to provide at least a reasonable base from which to develop a further strategy to meet another significant funding cut known to be in prospect for the year 1987/88. With few revenue-raising indicators suggesting likely improvement for the next two financial years, the Government has argued that even if either of its applications now before the Commission is successful, there remains to be resolved a number of matters of concern that bear upon the question of achieving its target for 1986/87 and 1987/88. Not the least of these problems is the assumption that an extra $6 million will be saved this financial year from anticipated employment separations through natural attrition. This estimate is but one of a number that have been made in order to contain the total jobs currently imperilled to a figure of approximately 400. While acknowledging that there was a significant cut in Federal funding from all traditional sources including borrowings, but not conceding the extent of that shortfall, the trade union movement's preferred position was that the Government first introduce a system of attrition by assisted early retirement or voluntary retrenchment. It was also made clear by the TTLC, TPSA and TTF that there had now been put upon the Commission a problem of crisis proportion. Not only was there an obvious rift between the Government and the trade union movement generally (with some ACTU interest being demonstrated as well) but there was also at stake the extremely fragile, recently reworked, centralised wage fixing system. That system, although put in place for a further two years in July of this year, none the less remained in situ by the slender margin of a `six-months only' commitment by the trade unions. To interfere with the 2.3 percent recently awarded and agreed to by the Government during the State Wage Case, would, it was suggested, be fatal to the centralised system's continuation even for the residue of the six-month commitment. Should that occur, the system would immediately disappear and be replaced once more by `law of the jungle' activity reminiscent of the early 70's prior to centralised wage fixation, and the early 80's when it was abandoned. On the other hand, if the 17½ percent leave loading was interfered with, this too would signal the beginning of a bitter battle to protect existing, hard-won award conditions. More importantly, it was submitted, if the Government's claim succeeded in this regard, there was every likelihood that this would be seen by private employers as a green light for them to apply, willy-nilly, to seek to reduce award conditions in order to avoid dismissals during difficult or uncertain economic periods. But no one, it seems, came to the Commission to put a case on humanitarian or any other grounds for the sacrificial 400, although we were told many times what would happen if we granted or refused the claims before us. No party called evidence to demonstrate the social or community impact of 400 persons - many of whom would be regarded as enjoying permanent employment - being suddenly thrown out of work. And no one actually identified the persons involved; their age; their family situation; length of service with the Crown; classification; state of health; work performance, or the measure of their indebtedness to financial institutions resulting from reasonable expectations of permanent employment until retiring on superannuation. Those persons and their families therefore stand to be the biggest losers in the short term. But in the wider time-frame the public as a whole loses because of the gigantic defeat likely to be suffered by the disciples of good industrial relations. Holding one side or the other accountable for this unfortunate state of affairs will not restore the status quo. Only time, coupled with a genuine effort by the parties, will meet that essential objective. We only hope that with the handing down of our decision the acrimony and disputation that preceded it will be put aside and priority given to salvaging what remains salvageable in the interests of the community at large. For our part, we must now take an industrial relations decision that will no doubt become the real litmus test for the probity of the parties. Their capacity to accept our decision will determine whether, over time, the equilibrium between management and labour in this State can be restored and strengthened. If not, systems such as the one within which we now operate may be rendered meaningless and of no effect. Were this to happen the ordinary working man and the community in which he lives (and, indeed of which he forms a part) cannot expect to enjoy the luxury of having everyday industrial relations issues decided impartially, in open hearing, and after each has been allowed to put his point of view. This case must be decided by us and our decision must be understood in the context of the climate in which we, by dint of circumstance, have been required to arbitrate upon it. Whilst we are cognisant of and understand totally the context of the substantial submissions of the parties, we have decided not to publish in detail the arguments so well presented by them. And in that regard we express some concern at the justifiable disappointment the advocates will no doubt feel at not being told to what extent their well-researched and presented arguments were either accepted or rejected by this Bench. We have, we hope, correctly anticipated that, because of the urgency of the matters before us, the parties would prefer that we put aside those ordinary and legitimate expectations in order that our considered findings may be made known as soon as practicable. A great deal of comment was made going to the extent and the parameters of public interest in this matter and in that regard we say that, overwhelmingly, the decision we have now taken focuses squarely on that aspect because we believe the public interest is at risk. In the limited time available to us we have done our best to apply our minds to the centralised system of wage fixation, the principles upon which it rests and the underlying philosophy of those principles. We have also attempted to come to grips with the difficulties of the Government, and in doing so we neither make judgment, nor attempt to apportion any blame for its immediate predicament. It would be quite wrong for us to do so. Judgments of this kind are traditionally made by the people at the appropriate time. For our part we have taken a decision about people; ordinary working people and their families whose immediate future rests upon that decision. Accordingly we decide the matter on industrial relations and humanitarian grounds. We believe the present situation is unique. We must assume that the persons at risk are people who have a reasonable expectation of long-term employment followed by ultimate retirement on superannuation. In such circumstances we believe larger-than-usual financial commitments can sometimes be entered into in good faith. Furthermore, easy-to-obtain credit union loans can be availed of because long-term planning is considered possible. The capacity to do these things is unquestionably an advantage attaching to security of tenure. If that situation changes unexpectedly those long-term commitments and expectations cannot be reversed overnight. Moreover when the unexpected occurs trauma and despair may result. On those rare and hopefully isolated occasions that a tribunal is faced with a crisis situation of this magnitude it would be unrealistic not to respond in a positive and responsible way. We accept that neither the Government nor the respective employee organisation are or can be accused of being unfeeling or uncaring. But it seems they cannot or will not now depart from their committed positions, notwithstanding our substantial attempts to conciliate the parties. We therefore decide the issues as follows:
Accordingly we will suspend, for a period of twelve months only, operation of the recreation leave allowance provision in the awards nominated in each of the applications (including Application T490) in order that the $7 million needed by the Government can be funded from this source. Let there be no misunderstanding by anyone who reads this decision, or who took part in, or who observed the proceedings leading up to this finding. There was not at any stage before this Commission an application to address the philosophy, morality, concept or principle of leave loading or recreation allowance, however described. For any employee or employer organisation or any member of the public to suggest that the decision we now take is the thin end of the wedge or the beginning of the end of this particular award provision would not only be incorrect, but mischievous. In this regard, although the circumstances were different, we draw attention to the decision of the Western Australian Relations Commission which dealt with a deliberate application directed at the principle of leave loading.
The first area of concern relates to shift workers who invariably enjoy more than a 17½ percent loading when proceeding on recreation leave. Although not addressed on the point, we assume the Government's calculation must have been based upon the notion of a standard 17½ percent formula. We are of the opinion that shift workers should continue to be paid as per projected roster, less an amount calculated on the basis of 17½ percent of four weeks' pay: In short, they should be treated the same as day workers for the purposes of their contribution. Should difficulty be experienced in this regard the matter may be settled by recourse to the Commissioner concerned.
Orders giving effect to our decision will be signed by members within whose assignments the respective awards fall, with recourse to a member or members of this Bench if required.
Awards Varied: |