IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

Applications T.965 and T.1015 of 1987, lodged by the Tasmanian Public Service Association (TPSA) and the Hospital Employees' Federation' of Australia, Tasmania No. 1 Branch, (HEF No. 1) respectively, seek the inclusion of a public holiday clause in the General Conditions of Service Award (the Award).

Whilst in proceedings before us considerable debate ensued going to the intent of the applications, it is our conclusion that the applicants seek to include in the Award, for the first time, a public holiday clause which details current entitlements. Certainly no substantial or compelling arguments were put which would prompt our serious consideration of changes to existing holiday entitlements.

The basis for the applications was described by the TPSA as follows:

"MR VINES: ... the whole basis of this application is to endeavour as far as possible to have our members' terms and conditions of employment outlined in a single document or in a single instrument."

(Transcript p. 3)

However, there is no doubt that the Government's decision to transfer the Boxing Day or 26 December 1987 holiday to 25 January 1988 was the catalyst for the lodging of the applications.

In addressing this aspect the TPSA submitted:

"MR VINES: The other thing, sir, that has prompted us to lodge this application is the fact that - to lodge it at this time, I should say - is the fact that the Government has made a decision, or Cabinet has made a decision to change the Boxing Day public holiday for 1987 whereby our members will no longer, or for this year won't receive the 26th of December as a public holiday. They will, in fact, have to take a day's annual leave for that particular day and in lieu of that they will be granted I think it is the 25th of January so that a four day weekend can be provided for the Bi-Centennial celebrations. Whilst we support the concept, sir, of giving an extended weekend for the Bi-Centennial, we don't support the actions whereby the employer without any consultation with the relevant employee associations can go around changing the terms and conditions of employment of our members. ... So what we are trying to do, Mr President, is to have public holidays being a basic condition of employment inserted into awards so that in future the operation of that condition of employment can only be altered with the approval of this Commission and clearly only after all of the relevant parties have had an opportunity to be consulted on it and to put their various arguments as to the merits of the employer's proposals."

(Transcript p. 4)

It was submitted by the TPSA that the real difficulty confronting it, in this situation, was that the people making the rules relating to holidays and the employer of its members are one and the same. However, if these applications are successful it will ensure that in relation to any changes to holidays in the future, the employer is subject to the scrutiny of the Commission.

It was further submitted that the granting of the applications would see a basic condition of employment included in the appropriate award. Public holiday clauses are a standard provision in private sector awards of this Commission and in Federal awards, some of which are binding on State sector employees.

It was also highlighted during the proceedings that significant State awards relating to the public health sector contain public holiday clauses.

The HEF No. 1 supported the merit submissions of the TPSA and sought the granting of their applications.

The primary position of the Minister for Public Administration (the Minister) in this matter is one of opposition to the applications. It was his submission that there is adequate legislation and regulations covering public holiday entitlements for public sector employees and there was therefore no need for an award provision.

However, it was conceded that should the Commission decide to include a provision in the Award, it should do no more than reflect existing entitlements and not in any way attempt to circumvent the desire of the Government to make arrangements for special days or events.

The Minister is totally opposed to any changes to existing entitlements and reminded the Commission of the well established role of Government and Industrial Tribunals in such matters. That role was succinctly described as follows:

"MR WESTWOOD: The declaration of holidays, the determination of what shall be a holiday is a matter for the Government and for the executive. The determination of what the rate of pay ought to be for those particular holidays and for determining whether or not certain holidays shall be paid is for the Industrial Tribunals, ..."

(Transcript p. 44)

The Minister referred the Commission to a number of excerpts from decisions of members of the Federal jurisdiction which he claimed endorsed or supported the basic position detailed above.

The Minister further submitted that the granting of these applications in whole or in part and as a consequence, increasing employee entitlements, would be contrary to the Wage Fixing Principles of the Commission. It would also be contrary to the public interest provisions of the Industrial Relations Act 1984.

During proceedings considerable debate occurred going to the Commission's ability to grant the applications, having regard to the provisions of the Industrial Relations Act 1984 and other Acts and regulations which have a bearing on the subject of public holidays. We do not propose to canvass that debate in this decision, however, we acknowledge that so far as that debate was relevant to the determination of these applications we have taken into account the views expressed by the parties.

As indicated earlier in this decision we believe the primary intention of the applications is to include in the Award existing public holiday entitlements. On that basis we have no doubt about the Commission's ability to grant the applications should we be satisfied on the merit.

The entitlement to public holidays for public sector employees covered by these applications is derived from the Tasmanian State Service Act 1984, which makes reference back to the Bank Holidays Act 1919. The Government quite clearly therefore is the appropriate Authority to determine or proclaim public holidays, not only for public sector but also for private sector employees.

However, there are good reasons why public holidays should be included in awards of industrial tribunals. One such reason is that neither the State Service Act nor the Bank Holidays Act 1919 deals with the question of whether such holidays are to be with or without pay.

Private sector awards of this Commission contain public holiday provisions as do awards of the Federal jurisdiction having application in this State.

We are therefore prepared to include in the Award a public holiday clause. That clause will reflect the current entitlements of employees bound by the Award.

Having so decided, the effect of the inclusion of such a clause in the Award without the right to substitute days would nullify, for public sector employees, the Government's decision to transfer the Boxing Day 1987 holiday to 25 January 1988. The Government in those circumstances would have to make application to vary the Award to seek a provision enabling its decision to stand, or alternatively, make some other arrangement in relation to 25 January 1988. However that may be, we note that the proposal is to reduce the number of standard holidays in 1987 and presumably increase by one the number of paid public holidays to be observed in 1988. We wonder what accounting problems may result, having regard for the number of extra days added to shift workers' leave each year. We also question the calculation of casual rates for the same reason.

We also question whether a named traditional holiday can be cancelled and replaced by another differently identified day, to be observed on an ad hoc basis.

Nevertheless, in considering this aspect, we are of the view that we should not, in these circumstances, differentiate between what will take place in the private sector and what is proposed for public sector employees.

The right to transfer a holiday for private sector employees is given by the Bank Holidays Act 1919. In relation to public sector employees bound by Federal awards the right is given in most cases by a proviso in the public holidays clause, although it is generally qualified to the extent that the agreement of the parties is necessary.

We therefore believe that a proviso should be included in the new clause which reads:

"But if any other day be, by State Act of Parliament or State proclamation, substituted for any of the above mentioned holidays, the day so substituted shall be observed."

If our assessment of the situation is correct, we believe the underlying concern of the applicants in this matter is the Government's decisions over recent years to force the taking of more than three days' annual leave over the Christmas, New Year break. If that assessment is accurate we encourage discussion between the parties to endeavour to reach an amicable on-going arrangement. Failing such an arrangement being achieved, we invite applications which could be used as vehicles in this Commission to resolve that issue.

Recreation Leave Allowance Ceiling

Applications T.967 and T.1016 of 1987 seek to amend Clause 8M Recreation Leave Allowance, subclause (b) by deleting the figure $393 and inserting in lieu the figure $429.

The figure $393 represents the current maximum amount of annual leave allowance that can be paid to an employee.

The Minister's initial position in relation to this matter was one of expressing no opposition to the claim. However, following an invitation from the Commission the parties addressed alternative methods of increasing the allowance other than by adjusting it in accordance with CPI movements, which we believe would not accord with current Wage Fixing Principles.

Having considered the various options we believe the most appropriate method of adjustment is to tie the calculation of the maximum to an existing salary level. Such an approach will ensure that the maximum recreation leave allowance figure does not receive a disproportionately greater increase than is represented by general wage movements. Additionally it will remove the necessity for a separate application being lodged to adjust the allowance, each time there is a National or other general wage adjustment.

Adjustment on the above basis does no violence to the Wage Fixing Principles.

We direct the parties to prepare a draft order reflecting the intent of this decision and furnish it to us as soon as is practicable. The date of operation of the order will be the first pay period commencing on or after the date of this decision.