IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

In a "Direction to the President" dated 23 February, 1987, a Full Bench of the Commission decided that the President should preside over such hearings or conferences as he considered necessary for the purpose of investigating and reporting upon unresolved issues raised in the applications then before that Bench.

Those matters were:

1. The question of development of classification standards and whether or not those standards should form part of, or be read in conjunction with, awards relating to State employees.

2. Whether or not the Tasmanian Trades and Labor Council should be cited as a party to awards relating to State employees.

3. Whether or not qualifications held by certain employees should be deemed by the Commissioner for Public Employment to be equivalent to award requirements or to those quaiifications requested by a controlling authority.

4. The definition of a temporary employee and such other issues that arise therefrom.

5. Correct application of the Commission's test case decision regarding scope of awards and identification of parties and persons bound thereto.

6. Such other matters as may be relevant to the foregoing.

Two conferences were convened during which lengthy discussions took place between the parties.

As directed, I submit to the Bench and to the parties my report covering the following:

(a) Classification Standards

(b) Citing T.T.L.C. as Party to all Commission awards

(c) Qualifications

(d) Definitions of "Temporary" and "Casual" employee

(e) Scope of Awards - Parties and Persons Bound

(f) Casual hourly rates

CLASSIFICATION STANDARDS

Discussion on this subject was frank, and eventually fruitful.

There appears to be a general consensus that classification standards should be developed for certain identifiable work levels or bands. These levels or bands would apply to awards that do not have designated positions. The Printing Staff and Boiler Attendants Awards are examples of awards that do contain designated positions. The Clerical and Technical Officers Awards are examples of those that lend themselves to broad banding. The Commission would then consider those "bands" and classification standards assigned to each.

Where there was potential for intra stratum progression within established levels, the task of promoting, advancing by incremental progression or withholding progression would be left to the discretion of the agency concerned, or the controlling authority, and be subject to State Service Act requirements.

However, not all awards may be appropriate to be dealt with in this way.

Award restructuring exercises may in fact require determination by the Commission in any case. That is, the Commission may need to first approve application of the classification standard criterion to individual awards. only those considered by the Commission to be suitable for that kind of configuration may eventually be subject to classification standards. Moreover, current wage fixing restraints would need to be observed at all times.

This could mean that, except in very rare cases, a 4 percent ceiling would apply to changed structures.

In money terms a 4 percent tolerance would limit discretion to the extent of approximately one increment. But even that may need to be subject to offsets for restructuring and efficiency.

The State Service Act could not be viewed as a vehicle for circumventing current wage-fixing principles. If it was, then the principles themselves might need to be abolished. The package now in place must apply equally to all employees or to none. There can be no exceptions. The Bench will need to take this factor into consideration in deciding what is to be done in this regard.

CITING T.T.L.C AS PARTY TO ALL COMMISSION AWARDS

There appeared to be general opposition to the T.T.L.C. being referred to as a party or person bound by all awards made by the Commission. Curiously, however, no objection was raised against the Council being made a party to certain "agreements of convenience". These are agreements made between an employer and an unregistered union affiliated with the T.T.L.C.

The main objection seemed to turn on the fact that the T.T.L.C. is not a union. It is instead an organisation with which other employee associations - registered or unregistered before this Commission - can affiliate.

Nevertheless it was argued that, because the Act gives to the T.T.L.C. a statutory right to be regarded as, or deemed to be, an organisation having the same rights as a registered employee organisation, and in addition having an interest in all awards, there is no real need to restate that position. Although this argument was presented in the context of State Employee awards, it applies equally to private industry and craft awards.

It was submitted that the T.T.L.C.'s unique situation is encapsulated in the Act and can only be changed by Parliament. To include that body among the parties and persons bound is considered to be confusing. Moreover, the T.T.L.C. per se stands in no industrial relationship with employees and employers bound by awards to which it is cited as party. The reasons for this are obvious: First, as already stated, the T.T.L.C. is not a union. Second, as private industry awards generally apply to the industry of the employer, the T.T.L.C. is not registered in relation to any industry; and third, where awards are made covering occupational groups it is again difficult to see how the T.T.L.C., having no constitutional coverage for any occupational group or industry, could possibly have an industrial interest in employees for whom it has no legal right to represent except in an indirect sense.

The T.T.L.C. has itself addressed the problem by agreeing to lodge claims in its own right only if there is agreement to do so by ail parties, or by affected parties, to the award or proposed award in question.

Alternatively it would first seek the approval of the Executive Council of the T.T.L.C.

This fact, it was submitted, makes it clear that the T.T.L.C., while maintaining a statutory right to become involved in any award matters, none the less prefers not to exercise that right willy-nilly.

It appears that unlike the situation of the Tasmanian Confederation of Industries, which is also statutorily registered in respect of all private industry awards, the T.T.L.C. would be incapable of gaining registration in its own right pursuant to Section 62(1)(b). On the other hand, the T.C.I. could meet the requirements of Section 62(1)(a).

QUALIFICATIONS

The main debate relating to qualifications appeared to revolve around who should determine prerequisite qualifications for appointment or promotion.

The Commission cannot deal with any matter (including disputes) relating to appointments and promotions, except qualifications required for advancement.

However, it is arguable that this apparent prohibition is intended to only exclude the Commission from dealing with matters that previously fell within the province of the Public Service Promotion and Appeals Board. If this is not the case it would mean that the Commission would be unable to properly assess the work value of a job, as qualifications required to perform classes of work are fundamental components of work value.

If this presumption is incorrect there would be nothing to preclude a head of agency paying professional rates to non graduates, for example. If the value of work is not determined having regard for standard work-value criteria, such as qualifications required, responsibility assumed, experience gained and the conditions under which the work is to be carried out, responsible salary and wage fixation, using well settled industrial methods, would simply collapse.

Traditionally and logically this is and should remain the task of an independent industrial tribunal. The Commission has both micro (in the case of single awards) and macro (in the context of all awards) responsibility. If there is any change contemplated then the Bench will need to decide whether it will allow the traditional standard-setting function of this tribunal to become the prerogative of executive bodies.

Should that occur, public interest considerations aside, there would emerge a system whereby an administrative body would assume this role without real or de facto accountability for the effect of its decisions on other tribunals, agencies or the public at large. Alternatively the task could be expected to be assumed by a miscellany of agency heads. Few, if any, of those heads would be experienced in the principles of wage determination. Furthermore, it could not be assumed that the centralised wage fixing system deliberately established and administered by independent tribunals having regard for the parlous economic circumstances of the nation, would survive. Nor would that system be rigidly adhered to if public sector wage fixation was to become the prerogative of administrative bodies or agency heads. This is not a criticism of those persons, simply a fact of life.

Having reviewed the issues discussed, it is possible to conclude that either the Commission or the Commissioner for Public Employment should determine qualifications. Where the Commission exercises this function it should establish both qualifications and rates for the job.

On the other hand, where the C.P.E. determines the prerequisites, the Commission should decide the rate of pay for the job having regard for, among other things, qualifications determined by the C.P.E. There would be no appeal from a determination by the C.P.E., except by inference, in the event an award variation was sought by an aggrieved organisation. In those circumstances a further appeal would lie to a Full Bench.

Qualifications "deemed" equivalent

Where an award makes reference to "equivalent" qualifications it would appear that the Bench may have to decide whether "equivalent" means just that or something else. For example, if a desired qualification is a degree in a particular discipline and the equivalent qualification is not stated as a degree in an equivalent discipline, it would be difficult to hold that the so-called equivalent qualification was what it purported to be. It has been held that experience is not the equivalent of a degree and vice versa.

It would be expected that classification standards, if approved by the Commission, would address the three questions of essential, desired, and where appropriate, equivalent qualifications.

The Commissioner for Public Employment might be expected to approve equivalent qualifications if not determined by the Commission. He would also play a major role in determination of essential qualifications. However, the Commission could be expected to decide the rate for positions that fell outside proposed classification standards, taking into account in such cases the level of qualifications required to perform the work.

DEFINITIONS OF "TEMPORARY" AND "CASUAL" EMPLOYEES

There was no agreement on any definition put forward. That is, none was considered suitably definitive to meet the wishes of the respective parties.

The Tasmanian Teachers' Federation put forward the following definitions for discussion:

The T.T.F. expressed concern that any person currently employed for less than 20 working days per annum is ineligible for pro rata leave on termination.

The T.P.S.A. tacitly agreed with the T.T.F. proposals, but indicated a preference for no definition to be included in awards at this stage.

The Minister was of the opinion that the whole exercise was unnecessary as the situation was already addressed under Section 38 of the State Service Act.

However Section 38 of the State Service Act appears to encourage coverage rather than discourage establishment of award rates and conditions for employees of this category.

Whatever definitions may result from this exercise, it seems clear that there ought not be one set of definitions for teaching personnel and a different set for non-teaching staff.

It may of course be necessary to accommodate special environmental and agency circumstances in the one definition. This could be achieved by inclusion of a series of provisos; or perhaps resort could be had to some explanatory or interpretative language. But such variations should be more cosmetic than fundamental.

There being no consensus on this the Bench will need to determine the issue on merit. In the event, all permanent part-time, temporary part-time, full or part-time casual or intermittent State employees will need to be identified and provided for by standard award prescription.

Casual Hourly Rates

Fundamental to this question was the matter of an appropriate "loading" for day and shift work casuals. It was said that a 20 percent loading may be inadequate for casual shift workers. However this matter may be capable of being isolated, and dealt with by way of separate application. Nevertheless it was raised during discussion.

SCOPE OF AWARDS - PARTIES AND PERSONS BOUND

The only consensus on this matter was a demonstrable joint concern regarding award application.

The term "award interest" appears to remain an enigma. My own researches have failed to establish the origin of the expression. The Department of Labour and Industry is also uncertain as to its origin. Personal enquiries to the President of the Victorian Industrial Relations Commission have likewise proved to be unsuccessful.

If the term is generally not understood, it might be wise for the Bench to ensure that in the process of award making, Sections 33, 34 and 38 are complied with in a more meticulous way. This could be achieved by giving careful attention to framing the scope and incidence provisions for each award.

However the Commission now has a statutory responsibility to determine "award interest" after receiving advice from the Registrar that he has registered an association as an organisation.

Section 62(10) of the Act states:

Having regard for the foregoing and Section 3(3) of the Act (definitions), the inevitable conclusion is reached that the Commission cannot make an award binding upon an organisation if that organisation does not have members employed in the industry or occupations covered by the award.

In the case of State employees the award must in some way identify the occupations of those employees, as the industry of private employers cannot apply to State employees.

In any case the over-riding consideration seems to be that the organisation's claimed membership (the Act is silent on the question of proof of membership) is consistent with its rules or constitution as amended from time to time.

It would appear therefore that whereas an award may apply to all employees in an industry, or a class, or occupational group of employees - State or private - it may not necessarily apply to all organisations claiming those persons as members if the constitutional test is not met in every respect. Even then there is a discretion vested in the Commissioner concerned [Section 63(10) (iii)] to decline to give an organisation an award interest notwithstanding its constitutional competence to represent a particular classification or class of employee.

This seems to require a clear statement of intent to be included somewhere in an award that certain organisations1 are bound by, or have an interest in, that award; but that all employees2 employed in classifications and working in the industry or occupation3 to which the award applies are entitled to the benefit of the award, whether members of an organisation or not4.

It is arguable that a "parties and persons bound" provision would make more sense to practitioners than a schedule setting out only those organisations having a registered award interest. On the one hand, a "parties and persons bound" clause would spell out in unambiguous terms the identity of all persons upon whom the award was binding. On the other hand, a schedule of organisations having an interest in the award would not necessarily do this.

The "common rule" aspect which would inevitably be raised in debate on this subject is, I think, extraneous to the question of scope and application. Awards are "extended" by regulation and not by any action of the Commission. Moreover, no such regulation could be made until the scope of an award had been determined and its area of intended application identified as required by the Act5.

In short, an award provides for the classification of employees having regard for the nature of work covered by the award. It covers work done in a private industry or an agency. To extend that award into unrelated industries or agencies in circumstances where some work is performed for which no existing award cover is provided, requires extension by regulation.

Extrapolation of this kind may apply in whole or in part. It may or may not involve an employment condition. And it may apply only for a period certain in time. No employer or employee organisation appears to have any right to be heard on the question of whether the award should be extended or not extended. And no one can be heard on the issue of when or whether an extended award should revert to its original area of application.

The presumption is that the Minister administering the Act has the sole responsibility for initiating action in this regard.

In summary it would appear that great care and attention needs to be given to determination of an appropriate "Scope" clause and the framing of a suitable provision identifying those organisations having an interest in the award. However, all persons bound by its terms must also be identified. "Organisations" and "persons" are not synonymous in this context.

INDUSTRIAL ROLE OF THE CONIISSION VIS-A-VIS THAT OF THE MINISTER FOR PUBLIC ADMINISTRATION IN ADMINISTERING THE STATE SERVICE ACT

The only matter yet to be addressed following debate on the contents of this report is that which arises from the invitation extended to the parties to address the Bench on the prima facie competing industrial roles of the Commission and the Minister administering the State Service Act.

LA Koerbin
PRESIDENT

1 s63(10)(c)
2 s34
3 s33(3)
4 Ibid s34
5 Ibid s33(3) s34