TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
s29 application for hearing of an industrial dispute

The Community and Public Sector Union (State Public Services Federation Tasmania) Inc.
(T14041 of 2013)

and
Minister administering the State Service Act 2000
(Department of Police and Emergency Management)

Deputy President WELLS	
HOBART, 12 July 2013	

Salary maintenance - principle of award construction – statutory interpretation – ambiguity – ex gratia payment - ministerial direction No. 25 – employment direction No. 25 – surplus employee – potentially surplus employee – internally surplus employee - redundancy – salary maintenance - definition of “normal rate of pay” – allowances included in normal rate of pay – definition of salary – penalties included in salary or “normal rate of pay” – order granted

DECISION

[1]	On 13 March 2013, The Community and Public Sector Union (State Public Services Federation Tasmania) Inc. (CPSU) (the applicant) applied to the President, pursuant to s29(1) of the Industrial Relations Act 1984 (the IR Act) for a hearing before a Commissioner in respect of an industrial dispute with the Minister administering the State Service Act 2000 (MASSA), (the Department of Police and Emergency Management) (DPEM) (the respondent) arising out of an alleged breach of the State Service Act 2000 (the SS Act) and Employment Direction No. 25 (ED25) (formerly known as Ministerial Direction No. 25 (MD25)) regarding salary maintenance for Mr Gilbert Brealey.

[2]	The matter was listed for hearing on 10 April 2013 which proceeded in Hobart in the form of a directions conference.  Ms C Miller appeared for the applicant.  Mr P Baker appeared for the respondent with Ms H Jordon from DPEM.  Directions for the filing and exchange of outlines of submissions, witness statements and other documentation were issued to the parties.

[3]	A hearing was held on 6 June 2013 at the Magistrates Court in Devonport.  Ms C Miller appeared for the applicant with Ms S Miller.  Mr P Baker appeared for the respondent with Inspector G Keating from DPEM.

[4]	This dispute concerns non-payment of 12 months of salary maintenance to the applicant pursuant to ED25.  The applicant submits its member, Mr Gilbert Brealey, was not asked to consent to a reduction of wages pursuant to s38(2) of the SS Act and is entitled to have his remuneration as a Speed Camera Operator (SCO) maintained for a period of 12 months.  The respondent states Mr Brealey is not entitled to salary maintenance and the ex gratia payment they made to Mr Brealey in 2012, which was the equivalent of six months’ salary maintenance, is sufficient.

Background

[5]	In 2011 there were three SCOs in north west (NW) Tasmania.  Mr Brealey held one of those positions for 15 years.  At that time the State Government initiated cost saving measures which included a reduction of employee numbers in the State Service.  It is not in dispute that the abolition of the SCO positions was as a result of DPEM’s budget savings strategy.  The positions were classified as Band 1 under the Tasmanian State Service Award (the Award).

[6]	In December 2011 the respondent met with the NW SCOs and advised them of the likelihood that their positions would be made redundant.  In January 2012 the three NW SCOs prepared a report for the respondent seeking that their positions be retained.  After considering the report, the respondent decided to proceed to abolish the positions.

[7]	In February 2012 the applicant was formally notified by letter of his position being made redundant.  The letter referred to MD25 (now ED25) and contained the following passage:

“As a State Service speed camera operator, you will obviously be directly affected by this decision.  While every effort will be made to find alternative and meaningful work which matches your experience, skills and qualifications, you may wish to consider separating from the DPEM with a Targeted Voluntary Redundancy (TVR).”

[8]	Mr Brealey sought a TVR, along with the other two operators.  Mr Brealey was not provided a TVR and was formally notified of a variation of duties to a Band 1 Utility Officer (UO) position in the NW.  The notification advised “Please note that maintenance penalty rates will be paid to you for a period of six (6) months from the date of transfer…”.  The other NW SCOs were granted a TVR.

[9]	Mr Brealey remains a permanent employment in the State Service as a Band 1 classified employee with a base salary of $46,233pa.  He previously earned an additional $14,000pa (approximate) as a result of working shiftwork as an SCO.

[10]	Both parties agree that Mr Brealey is subject to ED25, as it was issued on 5 August 2011, as a result of the redundancy process.

Evidence

[11]	Witness testimony was taken in evidence, on behalf of the applicant, from Mr Gilbert Brealey, Utility Officer, with DPEM.  The respondent did not call any witnesses and did not seek to cross examine Mr Brealey.

[12]	Mr Brealey states that on 22 February 2012 the NW SCOs met with the respondent and were told the SCO duties would cease as of 1 May 2012; that full redundancies were available if anyone wanted to take one; and that they should ask about these individually.  Immediately after the meeting Mr Brealey says he enquired about a TVR.  He was told only two redundancies were on the table, as a Band 1 UO position had been found in the NW and that one of the SCOs must accept that position.  Mr Brealey says he did not receive the formal letter advising of the redundant positions, dated 15 February 2012, until sometime after the 22 February meeting.

[13]	Mr Brealey said as a result of a number of conversations with Mr Tony Martin (former Manager Employee Relations) it became obvious none of the NW SCOs wanted the UO position as they would suffer a considerable pay cut.  Mr Brealey said that during a conversation Mr Martin indicated that Mr Brealey was being considered for the UO position.  It is Mr Brealey’s opinion that he was transferred to the UO position because his TVR package would have been more costly than the other SCOs.

[14]	Mr Brealey states that despite he and his wife deciding the best option for their family was to access a TVR and move to the mainland, he had no other option but to accept the UO position because a TVR would not be offered if he refused to take the UO position.  Mr Brealey confirmed he received a letter dated 30 March 2012 advising his duties had been varied with salary maintenance to be paid for six months.  A further letter of 4 April 2012 from Helen Jordon confirmed the UO position.

[15]	Mr Brealey testified it was not until November 2012, after discussing the issue with co-workers, that he became aware that he was entitled to 12 months of salary maintenance.  He confirmed he contacted the CPSU and that enquiries then commenced about the amount of salary maintenance he should have received.

Submissions

The applicant

[16]	The applicant asserts that the respondent is obligated under the Act and ED25 to provide 12 months of salary maintenance to Mr Brealey following the SCO positions being made redundant and Mr Brealey being redeployed to a position with a lower salary.

[17]	The applicant submits that the redeployment of Mr Brealey to the UO position resulted in a loss of salary and that he was afforded salary maintenance of $595.15 per fortnight for a six month period but seeks an order for the payment of a further six months of salary maintenance pursuant to the intent of ED25.

[18]	The applicant contends that the definition of “salary” under the SS Act states “includes wages” and also states “salary level means, if the salary is within a range of salary, the maximum salary in that range”.   Further, the applicant submits that s47(7) of the SS Act states, when dealing with a permanent employee who is redeployed after they are surplus to requirements, “An employee…is to be paid, for a period of 12 months from the day on which the employee is assigned those duties, a salary not less than the salary which the employee was paid before being so assigned those duties.”

[19]	The applicant states the respondent has breached S38(2) of the SS Act by not seeking Mr Brealey’s consent to a reduction in wages.

[20]	The applicant submits that under these provisions of the SS Act that salary  includes shift allowances and penalties as part of the wages and therefore they form part of any entitlement to 12 months of salary maintenance.

[21]	The applicant submits Mr Brealey was a “surplus employee” pursuant to ED25.

[22]	The applicant referred to cl3.7 and 3.8 of ED25 which state:

”3.7	Where a reclassification of duties is not practicable a Head of Agency may offer lower classified duties to a surplus employee on a without prejudice basis.  Where an employee accepts a lower classified position than their substantive level that will result in a lower salary they must provide their consent in writing…and the salary must be maintained for a period of 12 months from the date of transfer at their “normal rate of pay”…

3.8	Where a surplus employee is reassigned duties at their substantive level and has been receiving an allowance for performing higher duties or more responsible duties for a period exceeding 12 months they shall continue to receive that allowance as part of their “normal salary” up to the defined end date for that allowance.  Where the end date of the allowance is unclear it shall continue to form a part of their “normal salary” for a period of 12 months …”

[23]	The applicant says that whilst neither cl3.7 or 3.8 of ED25 fit Mr Brealey’s situation precisely, they assert that the intention of ED25 was to compensate an employee for a period of 12 months for loss of salary they endured as a result of their substantive position being made redundant.  The applicant contends this interpretation is confirmed when the “normal rate of pay” definition in ED25 is considered.

[24]	The applicant seeks to rely on an email exchange with Mr Chris Mulcahy, a Principal Consultant with the State Service Management Office (SSMO), who was one of the drafters of ED25.  Mr Mulcahy states in his response email:

“As discussed the general rule under MD25 is that where a person’s duties are targeted and they are redeployed under MD25 and they accept a lower paid role there is provision for salary maintenance for a period of 12 months. (my emphasis)

However my understanding from Police and Emergency Management is that this particular employee matter is not covered by MD25 as it was a standard operational change.

I agree that sections 3.7 and 3.8 do not adequately cover circumstances where an employee is transferred at level.  I will take that anomaly into account in the current review of MD25 and ensure that recurrent allowances form part of normal salary as provided in the MD’s definitions section”.

[25]	The applicant says that the TVR Agreements documentation dated 5 February 2013 assists in showing that shift allowances should be treated the same as higher duties allowances (HDAs) or more responsible duties allowances (MRDAs).  Section 11, page 9 under the heading of Definition Of Salary – Years of Service it states: 

“…Where an employee has, during 50% or more of pay periods in the twelve months immediately preceding the date on which he or she is to be voluntarily separated, been paid an allowance for shiftwork or a mixed function allowance…shall be included in the rate of salary;...

The following allowances and payments to be excluded for the purpose of salary, as they are essentially irregular in nature or expense related.  These include:

-	Overtime/recall (unless of a regular nature or paid as a regular wage related allowance);…”

[26]	The applicant asserts the terms ‘shift penalty’ and ‘shift allowance’, in the context of the Tasmanian State Service, are interchangeable.  To support this position they rely on the Health and Human Service (Tasmania State Service) Award which provides for a “shift allowance” to be received by an employee on afternoon and night shifts.  The applicant contends this is the same allowance that Mr Brealey received for his shift work from the same employer.  It is an amount of money that is paid for working shifts outside normal working hours.  Therefore any reference the respondent makes to there being a difference between “shift penalties” and “shift allowance” cannot be sustained.

[27]	The applicant submits the definition of ‘wage’ is an important one in the context of the definition above and says the Workers Compensation and Rehabilitation Act 1998 assists in establishing a definition of ‘wage’ particularly because it is industrial legislation of the State Government.  Section 96A of this Act sets out a table describing remuneration that is ‘wages’.  The applicant contends this table includes “Allowances” as “An allowance paid to a worker in particular circumstances or for a particular skill (not relating to a cost incurred by the worker)…”.  The table also includes a specific reference to “Shift Allowance”.

[28]	The applicant contends McAlpine C’s decision in Welch v MASSA T13660 of 2010, which found six months of salary maintenance was sufficient when the employee went from shift work to day work, is distinguishable from the circumstances of this case.  Mr Welch’s substantive position was not made redundant as there was only a change in Mr Welch’s mode of employment.  The applicant states McAlpine C in his decision chose not to align Welch with the circumstances relating to Department of Health and Human Services (DHHS) redundancies, where 12 months of salary maintenance was offered, reasoning that Welch’s substantive position had not been made redundant.

[29]	The applicant says at the time of McAlpine C’s decision ED25 did not exist and that ED25 would have provided the Commissioner with the clarity he was seeking in paragraph 54 of that decision and further at paragraph 56 where he said:

“It is unfortunate that there is not a common approach across Government Departments to enable consistent logic to be applied to matters such as salary maintenance.  It appears each department is at liberty to formulate such payments as they see fit and in doing so create inconsistencies.”

[30]	Further, the applicant states Welch took account of the specific circumstances of that case and should not be a definitive statement or precedent applying to all salary maintenance cases.

[31]	The applicant submits that whilst the Award has primacy over the SS Act, the Award does not cover reassignment of duties, salary maintenance, or redeployment. Therefore, there is no issue in relation to the jurisdiction of this Commission to deliver the order sought.

[32]	The applicant submits that shift allowances and penalty rates formed a significant part of Mr Brealey’s salary, that these are not expense related allowances and it was income Mr Brealey expected to maintain in his salary but for his substantive position being made redundant.  The applicant contends that if “normal rate of pay” was not to include shift penalties or allowances then that would have been spelled out in the definition.

The respondent

[33]	The respondent contends that Mr Brealey was transferred “at level”, that is, he was employed as an SCO at Band 1 classification and was transferred to the UO position which was also a Band 1 classification.  The respondent also states that the NW SCOs were advised that every effort would be made by the respondent to redeploy them within DPEM but where this was not possible TVR packages may be available in certain instances.

[34]	The respondent contends that nine SCOs statewide accepted a TVR between March and 1 May 2012.  Concurrently two UO positions were identified – one in the western district (Mr Brealey’s position) and one in the southern district.  The respondent submits Mr Brealey and one other employee had their duties varied and were appointed to the UO vacancies.  As such, s47 of the SS Act has no application in this matter as Mr Brealey was never considered surplus to Agency requirements and was never referred for redeployment.

[35]	The respondent states that as s47 has no application and Mr Brealey was transferred “at level”, with no resultant loss in base salary, no salary maintenance was payable, however the respondent acknowledged the loss of pay with the change from shiftwork to day work and made an ex gratia payment to Mr Brealey which was the equivalent of six months of the shift and weekend penalties he would have earned as an SCO.

[36]	The respondent submits that Mr Brealey was dealt with in accordance with ED25 as it provides the process for a surplus employee.

[37]	The respondent made submissions referring to s31(1) and (2) of the IR Act relating to the power of the Commission to make an order that is not inconsistent with the provisions of any Act dealing with the same subject matter and referred to s3 and s17 of the SS Act relating to the status of Employment Directions.  Whilst the respondent referred to these parts of legislation their submissions did not come to a conclusion on the issue.  I took the submissions to infer that this Commission could not make the order sought by the applicant as ED25 is issued pursuant to s17(1) of the SS Act and any such order would either create a new entitlement or would be inconsistent to other entitlements already existing.

[38]	The respondent asserts that cl3.7 and 3.8 do not apply as Mr Brealey was not in receipt of a HDA or MRDA and they had transferred him “at level” with no resultant reduction in base salary.  Correspondingly, the respondent submits that the provisions of s38(2) of the SS Act cannot be invoked.

[39]	The respondent submits that the applicant’s assertions that salary includes “shift allowances and penalties” as part of wages is not supported other than it was the “overall intention of the ED”.  The respondent says the rules of statutory interpretation are clear and there is no ambiguity in the clauses which the applicant seeks to rely on.  The respondent contends that the Award defines “normal salary rate” to mean “an employee’s normal salary exclusive of all allowances”.

[40]	Shift work provisions are contained within Part VII of the Award.  The respondent asserts that the Award defines the shift payment as a “penalty on the normal salary rate” and that allowances are contained within a separate part of the Award, namely Part IV – Expenses and Other Allowances.  Therefore, the respondent states the shift payment is a penalty and not an allowance, and consequently the argument that shift allowances and penalties form part of the definition of salary under ED25 must fail.

[41]	When asked by the presiding member to address the meaning of “remuneration” as part of the definition of “Normal rate of pay” in ED25, Mr Baker for the respondent stated:

“And I can only reiterate what I said previously and that was that we were at some length to ensure that penalty payments were not part of the parcel of the total remuneration package.  Our position was – and I accept the position that the words perhaps are not as clear as what they could be, but we were of the view that allowances that form part and parcel of – I was going to use the word salary - …

But the level of remuneration includes all those allowances excluding the penalty payments.  I suppose that was – that was it in a shorthand version…

But I think it really comes back to – and I accept he doesn’t quite marry into 3.6 and 3.7…Which is why we are having another go at the document.”

[42]	The respondent submits the applicant’s assertions in relation to s38 and s42 of the SS Act are misguided in that Mr Brealey was not formally declared surplus to Agency requirements and/or was not compulsorily transferred between Agencies.  Therefore, there was no requirement to have Mr Brealey consent to any of the actions as contemplated in those sections of the SS Act.

[43]	The respondent submits the circumstances in Welch are not dissimilar to the circumstances of this case in that Mr Welch was ceasing working as a shift worker and moving to day work and remaining on the same classification and salary level.  The respondent relies on Welch as a precedent and used it to form the compensation package for Mr Brealey, stating that McAlpine C said at paragraph 58:

“Although I am not comfortable with the lack of transparency behind the department’s decision to deem 6 months salary maintenance as adequate, given Mr Welch is still employed I concede that it is not an unreasonable compensation package.”

[44]	The respondent says it exercised discretion in providing Mr Brealey with six months of salary maintenance, predicated on the Welch decision and that such decision of McAlpine C was clear and unambiguous and was not appealed by the applicant in that matter.  Accordingly it was appropriate for the respondent to rely on that decision and in the absence of any other legislative requirement, the actions of the respondent were fair and reasonable in making the ex gratia payment.

[45]	The respondent submits there has been no breach of the legislation and accordingly the applicant’s application should be dismissed.

Findings

[46]	The issues to be determined in this matter are whether Mr Brealey, in the circumstances, should have been paid 12 months of salary maintenance as envisaged in ED25 and the SS Act, and whether the respondent in breach of either of these industrial instruments.

[47]	The respondent implied in its submissions that the order sought by the applicant in this matter could not be granted as the Commission did not have the power to do so.  This Commission is precluded under s31(2) of the IR Act from making an order:

“(a) that is inconsistent with the provisions of any Act dealing with the same subject-matter; or 

(b) that makes an award or that varies or creates a provision of an award.”

[48]	The applicant alleges a breach of the SS Act and ED25 and seeks assistance to remedy an industrial dispute.  The Award is silent on the issue of salary maintenance and variation of duties.  Section 47(7) of the SS Act provides for 12 months of salary maintenance for employees who are redeployed after being declared “surplus to requirements”.  There is no subject matter within the IR Act, the SS Act or the Award that deals with the exact same subject matter as we are dealing with in this case.  In any event even if it could be shown to be the same subject matter, it is my view that the order sought by the applicant would not be inconsistent with any existing provisions.  

[49]	If the respondent is submitting that the Commission is dealing with the same subject matter as already exists in an Award or an Act then Mr Brealey would clearly fit the circumstances of that entitlement and would be entitled to the period of salary maintenance contained within that entitlement.  Further, the applicant is not seeking to create a new award entitlement.

[50]	Accordingly, I find that the order sought by the applicant is not contrary to s31(2) of the IR Act and the Commission does have jurisdiction to deal with this matter.

[51]	Under “Application” at cl2 of ED25 it states it “applies to permanent employees in the State Service who have been (a) identified as surplus employees performing duties that are no longer required;…”.

[52]	ED25 provides that a “surplus employee”:

“means an employee who is performing targeted duties that are no longer to be performed and includes an employee who has been accepted for redeployment by the Head of the State Service.  Includes a potentially surplus employee when mentioned elsewhere in this Employment Direction.”

[53]	Further, ED25, “Targeted duties”:

“means duties performed by an employee which form part of an activity, program or function that has been determined by a Head of Agency to be no longer required and that they will cease to be performed either immediately, or in due course.”   (my emphasis)

[54]	I find that, on the evidence of correspondence and meetings held between 19 December 2011 and 30 March 2012, Mr Brealey was a surplus employee pursuant to the definition under ED25.  The respondent varied Mr Brealey’s duties when they transferred him to the UO position on 30 March 2012 and they did so as a result of their budget savings strategy and pursuant to the internal vacancy procedures of ED25.  It was not an “operational change” as was indicated by the respondent to SSMO.

[55]	I now turn to the authority contained in Welch.  Whilst the circumstances of Mr Welch have some similarities to Mr Brealey’s situation they diverge considerably as Mr Brealey’s substantive position was abolished, whereas in Welch the matter dealt with a change of the mode and terms of employment.  ED25 was created to provide a procedure for the circumstances in which Mr Brealey found himself.

[56]	Further research of the transcript in Welch provided very little information to substantiate the quantum of six months of salary maintenance.  McAlpine C stated at paragraph 58 that he was “…not comfortable with the lack of transparency behind the department’s decision to deem 6 months…as adequate”. 

[57]	I agree with McAlpine C that it is appropriate that a consistent approach be applied across all Government agencies when it comes to entitlements such as salary maintenance.  ED25 together with the SS Act have the clear intent that where an employee’s remuneration is reduced through no fault of their own, salary maintenance should be offered for a period up to 12 months.

[58]	ED25 contains a definition relevant to this matter being “Normal rate of pay”.  It is defined as:

“…the total rate of remuneration that an employee would have received if they had continued to perform the targeted duties including recurrent allowances (except expense related allowances).  It includes higher duties and more responsible duties allowances where they have been in place for more than 12 months and which would otherwise have continued beyond the date of the acceptance of a lower classified position.” (my emphasis)

[59]	There are many definitions for ‘wages’ and ‘salary’ contained within the IR Act, the SS Act, the Award, the TVR documentation and finally in ED25.  The Concise Australian Legal Dictionary (Lexis Nexis) 4th Edition provides a definition for ‘wage’ as:

“A monetary amount that an employer agrees to pay to an employee for the employee’s services.”

[60]	The respondent’s assertions that the shift allowance is a penalty and not an allowance is not borne out on a further reading of the Award.  Turning to Part VII of the Award cl1 reads:

“(a)	Saturday work

The rate to be paid to an employee regularly rostered for duty (other than overtime work) on a Saturday, is to be time and a half of the employee’s normal salary rate, but such rate is to be in substitution for, and not cumulative upon, the shift allowances more particularly set out in Clause 2.” (my emphasis)

[61]	It is clear on the reading of the opening clause of shiftwork provisions in the Award that the payment made to Mr Brealey when he was employed as an SCO was a shift allowance and was part of his wages.  This is further supported by the definition of ‘wage’ in the Workers Compensation Act 1998 and in the TVR Package documentation which was created in support of the budget savings strategies and ED25 processes.  These allowances formed part of remuneration for redundancy purposes.

[62]	Accordingly, I find that “Normal rate of pay” as contained in ED25 encompasses the total remuneration that an employee was receiving at the time of their substantive position being made redundant which includes base salary together with regular allowances (not expense related allowances) and penalties paid to them, which do include shift allowances.

[63]	I note ED25 at cl3.9 of Attachment 1 states:

“Lower classified duties may also be offered on a fixed-term basis for a period not exceeding 12 months provided the surplus employee’s existing salary is maintained during that period…”

[64]	Likewise, cl3.11 of Attachment 1 states:

“Where an alternative employment opportunity is identified outside of the State Service, Agencies may provide appropriate financial support to the employee including salary maintenance payment for a period of up to 12 months to facilitate the permanent relocation of that employee.”

[65]	Mr Brealey was transferred “at level” and therefore could not be construed as being transferred to lower classified duties.  He also was not in receipt of HDA or MRDA.  However, I am of the view this does not preclude the operation of salary maintenance as contained in cl3 of attachment 1 of ED25.  Clauses 3.7 and 3.8 refer to a “normal rate of pay” or “normal salary”.  Clauses 3.9 and 3.11 clearly refer to salary maintenance for a period of up to 12 months.  When the definition of “Normal rate of pay” is read in conjunction with cl3, the intent is clear.

[66]	The email of Mr Mulcahy states that the wording of cl3.7 and 3.8 “does not adequately cover circumstances where an employee is transferred at level.  I will take that anomaly into account in the current review of MD25 and ensure that recurrent allowances form part of normal salary as provided in the MD’s definitions section”.

[67]	Accordingly I find that as Mr Brealey was a surplus employee for the purposes of ED25 and that he suffered a diminution of wages as a result of him occupying “targeted duties” he is entitled to salary maintenance at his “Normal rate of pay” for a period of 12 months.

[68]	I turn now to the alleged breach of s38(2) of the SS Act.  Section 38 provides:

“Terms and conditions of employment of employees

(1)	The terms and conditions of employment of employees are to be those specified in an award relating to persons engaged in the work for which they are employed or, if no such award is in force, are to be determined by the Employer.

(2)	The salary of a permanent employee is not to be reduced – 

(a)	Without the employee’s consent; or

(b)	Unless in accordance with section 10, 47 or 48…”

[69]	Section 10 of the SS Act deals with reducing an employee’s wage as a result of disciplinary action.  Section 48 deals with an employee with an inability to perform their duties and s47 relates to redeployment of an employee that is deemed surplus to Agency requirements.  The respondent submits that Mr Brealey was never deemed surplus under the SS Act and therefore s47 has no application.  Sections 10 and 48 have no application in this case as Mr Brealey was not subject to a disciplinary process or an ‘inability’ process.  This leaves only s38(2)(a) which provides that the salary of a permanent employee is not to be reduced without the employee’s consent.  Read in context with the definition of “wages” in the SS Act and the definition of “Normal rate of pay” in ED25, it is clear a reduction in wages, of the type suffered by Mr Brealey, requires the employee’s consent.  Therefore, I find the respondent breached s38(2) of the SS Act by not seeking Mr Brealey’s consent to reduce his “total rate of remuneration” as a result of their budget saving strategy.

Order:

Pursuant to s31(1) of the Industrial Relations Act 1984 I order the respondent pay to Mr Gilbert Brealey a sum equivalent to a further six months maintenance of his salary as a Speed Camera Operator, within 28 days of this decision.

N Wells
DEPUTY PRESIDENT

Appearances
Ms C Miller for the applicant
Ms S Miller for the applicant (6 June 2013 only)
Mr P Baker for the respondent (MASSA)
Insp. G Keating for the respondent (DPEM) (6 June 2013 only)
Ms H Jordon for the respondent (DPEM) (10 April 2013 only)

Date and place of hearing:
April 10, 2013
Hobart
June 6, 2013
Devonport