IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This matter concerns an application by the Hospital Employees' Federation of Australia, Tasmanian Branch No. 1 (H.E.F.) to vary Section 1 of Part II - Conditions, of the Welfare and Voluntary Agencies Award (the Award) by including in that part of the Award new clauses pertaining to Higher Duties and Mixed Functions.

Mr. Imlach, appearing for the H.E.F. tendered exhibit HEF 1 which

detailed the proposed inclusions in the Award, on the following terms:-

"19. HIGHER DUTIES:

As Assistant Director who, for a period of 5 days or more, is required to perform the duties of a Director, shall be paid, for the full period he or she is performing such duties, the rate prescribed for the Director.

20. MIXED FUNCTIONS:

An employee, other than an Assistant Director, engaged continuously for two hours or more on duties carrying a higher rate than his or her ordinary classification shall be paid the higher rate for the whole of that day's work. If the employee works for less than two hours he or she shall be paid the higher rate for the time so worked, provided always that -

(i) A Child Care Assistant-in-Charge who is required to take charge of a Centre in the absence of the Director and/or Assistant Director shall be paid at the rate of the Director.

(ii) A Child Care Aide-in-Charge who is required to take charge of a Centre in the absence of the Director or Child Care Assistant-in-Charge shall be paid at the rate of a Grade II Child Care Assistant-in-Charge".

Mr. Imlach indicated that the claims arose from "on the job representation".
He also said -

"I discovered that employees in child care centres who are required to take charge of the centre in the absence of a superior employee or a supervisor, or whatever are not paid - or it is not recognised anywhere that they should be paid a higher rate of pay for taking on those extra responsibilities. So I undertook to put in an application to amend the award accordingly..."

Transcript p.1

Higher Duties

The intent of this clause is to provide an award prescription for the payment of a higher duties allowance to employees classified as Child Care Assistant Class III (Assistant Director)

I was informed by Mr. Imlach that a higher duties payment would only be made in the event that the Assistant Director performed the duties of the Director for a period of 5 days or more. In this respect the wording of the proposed clause is specific.

Whilst I support the payment of a higher duties allowance in appropriate circumstances, the parties in these proceedings were not able to put unequivocal evidence before the Commission to substantiate the claim on behalf of Assistant Directors.

In my opinion insufficient information was provided in these proceedings in respect of the actual make up of the substantive rate of pay for Assistant Directors.

I was told that there is already a component in the rate of pay which recognises the fact that Assistant Directors, from time to time, are required to relieve the Director.

I do not intend to canvass the respective submissions in full, but I stress that the parties fully understand the reservations held by the Commission and they have agreed that this particular aspect should be further investigated.

The following comments highlight my concerns and also reflect the attitude of the parties to them.

Commissioner,

" ...I've got no difficulty with what you want to do, but from my point of view, I'd like to be certain that what we are doing is based correctly.

In other words if previous classifications were determined and a level of a rate of pay was established having regard to certain factors, then I think we ought to address ourselves to that situation."

Transcript p.50

Mr. Imlach

"...I'm quite happy for the matter to be investigated but I again confidently predict that when we finish the investigation the award as it stands will be inadequate in relation to the facts in the industry..."

Transcript p.51

and later

Commissioner (to Mr. Sertori)

"...I don't see how you can ask the Commission to endorse what really amounts to double counting, unless you can very clearly demonstrate what was envisaged in the first instance when the rate and the classification was struck."

Mr. Sertori

"No... I accept that wholeheartedly and I'm not attempting to achieve that sort of end. I think frankly we're in a situation where the higher duties provision being sought is perhaps one that needs to -between the parties - to be directed along the line that we examine specifically the role of the Assistant Director, if we can, define that with a view to inserting a suitable provision in the award - a definition in the award.

Now that definition will draw attention to the renumeration the Assistant Director gets; and why that remuneration is there; and how that remuneration relates to the Assistant Director, on perhaps a short-term basis that we claim, relieving the Director.

Transcript p.57

Having regard to the foregoing comments, I am of the opinion that the parties should further direct themselves to the matters that have been raised and to the suggestion advanced by Mr. Sertori.

Accordingly in rejecting that part of the H.E.F. application dealing with Higher Duties, the way is left open, to either party, to present further submissions on the basis indicated above.

Mixed Functions

Again, as with the claim for Higher Duties a great deal of discussion took place. Whilst the wording of the proposed clause was amended by agreement between the parties, different views are held in respect of the method of application of the proposed Mixed Functions Clause.

Mr. Imlach is very clearly of the opinion that whenever a higher classified employee is required to be relieved in the terms .specified in the clause, then the mixed functions provision should apply.

Mr. Sertori, on the other hand, drew my attention to the bar imposed on employees, to gaining the benefits of the proposed mixed functions clause, in the event that they do not hold appropriate qualifications which permit them to carry out the higher classified duties.

The parties are aware that I expressed some concern that employees, not qualified in the context of the Definitions clause contained in Part II of the Award, may be required to assume responsibilities and carry out duties, at a higher level; notwithstanding that the Award definitions appear to preclude them from performing that work.

Mr. Sertori's comments echo some of my concerns -

"I accept that a person holding qualifications deemed equivalent by the employer is an overriding factor, however that establishment has to take into account that if they are going to recognise qualifications that in no way meet the criteria of Director, (a) they are demeaning the role of Director, and (b) they may be running amok of the requirements of State and Government laws."

Transcript p.71

After very careful thought I have come to the conclusion that notwithstanding the points made above, the Mixed Functions clause should be inserted in the Award. In reaching this decision I am mindful of the fact that it is not the responsibility of this Commission to assume the role of management. Obviously, it is up to the employer to decide whether or not to designate a particular employee to perform the higher classified work.

In deciding in favour of the inclusion of the clause, a persuasive argument was that many of the establishments already adopt the concept of mixed functions. I stress though that this should not mitigate against the seriousness of the restrictions imposed by the definitions on certain employees.

In granting this particular condition of employment, I have had regard to the Principles of Wage Determination, and I am of the opinion that the granting of the H.E.F. claim will not result in any untoward cost or flow on implications.

Also I am strongly of the opinion that the Commission's affirmative response to this application is in the Public Interest. One of the primary considerations, as there are no economic issues off any consequence involved, is that the granting of the clause will maintain industrial harmony and legitimise, in the context of the award, what is already current practice.

Nevertheless, the parties have a responsibility to, as Mr. Sertori said, "get their house in order".

In the anticipation that this will be done expeditiously, the operative date for the Mixed Functions clause will be the date of this decision.

The order reflecting my decision will issue in due course.

R.K. Gozzi
COMMISSIONER