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TA6

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

No. TA.6 of 1985 IN THE MATTER OF A REFERRAL FROM ANOMALIES CONFERENCE NO. 2 : APPLICATION TO VARY THE WELFARE AND VOLUNTARY AGENCIES AWARD
   
  RE: INSERTING A NEW SUBCLAUSE FOR SHIFTWORKERS AT ST. GILES HOME, LAUNCESTON
   
COMMISSIONER R.K. GOZZI HOBART, 27 September 1985
   

REASONS FOR DECISION

   
APPEARANCES:  
   
For the Hospital Employees' Federation
of Australia, Tasmanian Branch No. 2
- Mr. J. Simmonds
   
For the Tasmanian Chamber of Industries - Mr M. Sertori
   
DATE AND PLACE OF HEARING:  
   
27 August 1985 Launceston  
     

Anomalies Conference No. 2 concerning, inter alia, application TA.6 of 1985 (TTLC 5/85) was convened by the President and held on 16 August 1985.

The Conference concerned hours of work for shiftworkers employed at St. Giles Home, Launceston.

The particular matter addressed at the conference was whether or not an anomaly exists between the conditions in respect of paid crib time applicable to shiftworkers covered by the Hospitals Award and the absence of such provision for shiftworkers referred to in Division B of Part II, Section II of the Welfare and Voluntary Agencies Award.

The core members of the conference, with the exception of the Tasmanian Chamber of Industries (T.C.I.) were in agreement that an anomaly exists, and that the President should resolve the matter in accordance with this Connnission's Anomalies Procedure.

In the absence of unanimity by the core members (an essential requirement in the context of an anomalies conference progressing to the stage where the President can determine the existence of an anomaly or otherwise), as a result of the position adopted by the T.C.I., the matter was referred to me.

When doing so, the President made the following comments -

    "I would have no difficulty with this particular matter, but I think that I have heard enough from all sides. I remain unconvinced that the President, if he wishes or intends to follow the spirit of the Federal system, has the moral capacity to be able to ignore direct opposition from a significant member. In this case, I would regard Mr. Edwards as a significant core member because he, under normal circumstances, would be representing the private employer. I, therefore, unhesitatingly find that beyond question there is an arguable case. I have already said that I would have no difficulty in disposing of it myself but for the opposition of the core member. I have no alternative but to refer the matter to Commissioner Gozzi and ask him to dispose of it as quickly as he is able."

    Transcript TA.6 (TTLC 5/85)

Background

Shiftworkers at the St. Giles Home (alone) have their conditions of employment regulated by Part II, Section II, Division B of the Welfare and Voluntary Agencies Award.

Whilst Clause 1 of Division B, Shiftwork, contains various shiftwork provisions, the clause is silent with respect to nominal hours of work.

Accordingly, Division B employees derive their hours of work from Clause 1 of Division A .

In respect of that particular clause, Mr. Simmonds, appearing for the Hospital Employees' Federation of Australia, Tasmanian Branch No. 2 (H.E.F.) indicated that the clause prescribed for shiftwork exclusive of a paid meal break.

To rectify this deficiency Mr. Simmonds sought the addition of a new subclause (c) to Clause 1 of Division A, to provide for the inclusion of a paid 20 minute(or in the case of Registered Nursing Staff, a 30 minute) meal break for each 8 hour shift worked. The most significant parts of the proposed sub-clause are as follows:

    "The ordinary hours of shiftworkers shall not exceed

    8 in any one day; nor
    48 in any one week; nor
    88 in any fourteen consecutive days; nor
    160 in 28 consecutive days.

    Subject to the following conditions shiftworkers shall work at such times as the employer may require:

    (i) a shift shall consist of not more than 8 hours inclusive of crib time;

    (ii) except at the regular changeover of shifts an employee shall not be required to work more than one shift in each 24 hours;

    (iii) 20 minutes (30 minutes in the case of registered nursing staff) shall be allowed to shift workers each shift for crib which shall be counted as time worked."

Mr. Simmonds indicated that the above provisions now sought for shiftworkers at St. Giles are virtually identical to the provisions contained in the Hospital Employees' (Public Hospitals) Principal Award.

For obvious reasons Mr. Simmonds did not base his argument for inclusion of the foregoing provisions in the Welfare and Voluntary Agencies on comparative grounds with the Hospital Employees' (Public Hospitals) Principal Award. Instead, he made the following comments

    "But as far as this particular matter is concerned, the argument is that there has existed a nexus between the wages in particular and the conditions in general in this section - Section 1 (of the Welfare and Voluntary Agencies Award) and the Hospitals Award."

    Transcript p.4. (in brackets and emphasis mine.)

Nexus Between Hospitals Award/Welfare and Voluntary Agencies Award

Mr. Simmonds submitted that the nexus between these two awards "can be established historically".

In order to demonstrate the basis of the nexus, Mr. Simmonds referred to Exhibit S1 which was an extract of certain parts of the Award of the Hospitals Industrial Board, as it then stood, as notified in the Tasmanian Government Gazette on 13 July 1977.

The thrust of Mr. Simmonds' submissions in regard to S1 was that prior to employees at St. Giles Home being regulated as to their conditions of employment and rates of pay by the Welfare and Voluntary Agencies Award, they were subject to -

    (i) The Award of the Child Care Industrial Board, and before that:

    (ii) The Award of the Hospitals Industrial Board.

In the Award of the Hospitals Industrial Board, the category of shiftworkers employed at St. Giles were those employees identified in Section C of Clause 1, Part I, and in that section the rates of pay for Nursing Assistants are identical to the rates of pay for Nursing Assistants in Clause 1(f) of Part VII.

Again with respect to the rates of pay for the classification of Registered Auxillary Nurse, the rates of pay in Section B of Clause 1, Part I, are identical rates to those for the same classification in Clause l(e) of Part VII.

Mr. Simmonds said -

    "That identity was not fortuitous. It did exist and it existed prior to that. I simply went to the last copy of what was the Award of the Hospitals Industrial Board that was made prior to the separation of what became the Child Care Industrial Board."

    Transcript p.6

When the Child Care Industrial Board was superseded by the Welfare and Voluntary Agencies Award, the relationship established with the Award of the Hospitals Industrial Board was maintained.

I was advised by Mr. Simmonds that the nexus between the Welfare and Voluntary Agencies Award and the current Hospitals Award is also in tact.

Taking the Nursing Assistant classification contained in the two awards referred to above as an example, the rates of pay prescribed are identical. Mr. Simmonds, in my view quite correctly stated -

    "That identity which existed when they were under the Hospitals Industrial Board has been maintained and it is still there today."

    Transcript p.8

Principle 6(a)(i) Anomalies

It is, in my opinion, totally correct for Mr. Simmonds to rely on the establishment of an historic nexus between the two respective awards and therefore seek the rectification of the obvious anomaly that does in fact exist.

There can be no doubt that shiftworkers at St. Giles Home should receive the benefit of shiftwork provisions in the terms sought, including in particular the provisions relating to crib time being counted as time worked.

In my view, the application by the H.E.F. easily meets the considerations imposed by Principle 6(a)(i) - Anomalies - of the Principles of Wage Fixation.

This particular Principle makes it abundantly clear that the Commission

    "...must be satisfied that any claim under this Principle will not be a vehicle for general improvements in pay and conditions and that the circumstances warranting the improvement are of a special and isolated nature."

Having satisfied myself that the matter in question is indeed an anomaly requiring remedy, I am further fortified in my view when regard is had for the fact that Mr. Simmonds stated categorically that the claim will not be used as a vehicle for general improvements in conditions and pay and that the circumstances in this case warranting the improvement are of a special and isolated nature.

Mr. Simmonds said

    "...the matter was not of earth-shattering importance to the public of Tasmania. It was a claim that was not going to be a vehicle for general improvements in pay and conditions and, to use the wording of the Anomalies Principle, the circumstances warranting the improvement are of a special and isolated nature. They are so special that they only affect twenty-seven people...".

    Transcript p.10

In his submission Mr. Simmonds also canvassed other matters to support his submission that the Commission should grant the variation sought.

One particular matter related to funding arrangements for the operation of the St. Giles Home. Exhibit S2 indicates that St. Giles Hone is an "Approved Nursing Home" in accordance with the Nursing Homes Assistance Act 1974.

The salient point of Mr. Simmonds' submission on this particular aspect was that the homes listed in Exhibit S2 "are homes for the aged, and thus come under the purview of the Hospitals Award...".

Whilst the direction of Mr. Simmonds' submissions, in this regard are obvious in the context of what has been considered in this decision, I am inclined, in the absence of exhaustive argument, not to make further cement on this particular aspect. As I see it, not a great deal turns on it in view of the conclusions I have already reached earlier in this decision.

As the matter before me, referred by the President as an arguable case, turned out to be what amounted to a consent matter when regard is had to the altered position adopted by the Tasmanian Chamber of Industries, I simply incorporate in this decision the acknowledgement made by the T.C.I.

Mr. Sertori said -

    "As the anomaly that is put forward centres around this question of historical nexus and work performed, within that context and as we do not take up our stated reserve rights, we no longer oppose the claim as it seeks to establish an anomaly in light of Principle 6(a)...".

    Transcript p.13

An order reflecting my decision in this matter is attached.

 

R.K. Gozzi
COMMISSIONER