IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

BACKGROUND:

The two matters falling for decision relate to competing applications for a first award for persons concerned with or otherwise involved in ongoing activities associated with preservation, restoration and public presentation of the historic Port Arthur penal settlement.

On the one hand the Tasmanian Public Service Association has claimed a package of salary and working conditions considered to be appropriate to the duties, responsibilities and working environment of its members. On the other hand, the controlling authority has submitted for approval its own package. This, it was said, represented a fair and reasonable code of salaries and conditions acceptable to management.

Following a series of fairly protracted discussion and argument, some common ground was found. Nevertheless, there remains for arbitration significant parts of each application.

The concept of integrating a mix of persons previously employed as identifiable State Service employees with another group of State employees whose previous identity, award wise, was at best somewhat obscure, has not been an easy one to address for both applicants. To that extent each has demonstrated an objective approach to that particular problem.

Unfortunately the, difficulties confronting the parties concerned with this exercise did not stop at mere identification and classification of employees. In presenting to the Commission a workable first award, it was also necessary to address the wage fixing principles current at that time: in particular that principle which deals with first awards and the requirement to include, as a fundamental part of that principle, existing rates and conditions of employment. Moreover, any departure from the current standards is limited to the 4% salary cap. That 4% has already been applied.

Faced with that daunting prospect (in the absence of an anomalies conference authorisation to exceed the 4% ceiling) I formed an opinion that the TPSA salary and allowance schedule did not entirely satisfy the wage fixing requirements. This conclusion in no way reflects upon the value of the work performed. Given different circumstances and a conscientiously prosecuted work-value case, the somewhat ambitious claims argued by Mr. Geursen may well have met with more success. But rules are rules. To the extent therefore I that both Mr. Jarman and Mr. Geursen intentionally or inadvertently overstepped the 4% barrier in presentation of their respective claims, those transgressions, where they take the form of a claim, are rejected.

The Commission was afforded an unusual mix of submissions from which to distil a reasonable decision on both applications. For his part Mr. Geursen presented arguments that had appeal in some respects because of their intrinsic logic, but failed to persuade because of their obvious failure to meet the constraints of the guidelines.

On the other hand Mr. Jarman argued his case from a more conservative viewpoint which, when tested against standards already set by this Commission, might be regarded as more helpful, but in some respects somewhat eclectic. That is not to say that this dichotomous approach pervaded all submissions and all attitudes expressed during the hearing. On the contrary. In many cases the protagonists were, if not in agreement, certainly not far apart in their respective positions.

Because of the number of matters debated in the context of the two detailed applications, I indicated at the conclusion of the hearing on 12 September that I may bring down an interim decision in which as many matters as possible would be dealt with. I foreshadowed that I may then invite the parties to consider those findings and, in the light of any decision then taken, explore the possibility of further consultation with a view to, hopefully, resolving any outstanding issues. This I propose to do.

For the purposes of disposing of as many matters as possible in the most convenient form, I will first deal with Exhibit D matters in the order that they appear. I have selected Exhibit D, not because it happens to be Mr. Jarman's exhibit, but because it is convenient to use that as it purports to, in many respects, represent at least part of the current situation relating to Authority employees. I do not propose to write a lengthy resume of the arguments for and against each item. Those arguments appear in transcript and have been taken into account in coming to the decision that follows.

Dealing with each item in Exhibit D, my decision is:

1. T ITLE - agreed.

2.  SCOPE - agreed. However, I prefer Exhibit C drafting in this regard.

3.  ARRANGEMENT - agreed. This is a machinery provision.

4.  DATE OF OPERATION - the format to be in accordance with Exhibit D, item 4, save that reference to "National Wage Case flow on of 1987" be deleted and "State Wage Case 1988, together with the appropriate commitment to be substituted.

5.  SUPERSESSION AND SAVINGS - agreed.

6.  PARTIES AND PERSONS BOUND - Delete preamble to "Parties and Persons Bound". The award is binding, without exception, on the controlling authority and the employee organisation in relation to all employees employed by the authority, whether members of an organisation or not.

7.  DEFINITIONS -
Employee )
Part-time employee) As per Exhibit D.
Full-time employee)
Temporary employee (i) as per Exhibits C and D.
                                   (ii) as per Exhibit D
I reject the controlling authority proposal as it could mean that the controlling authority could, at or before the conclusion of a specific engagement, extend or reduce the contract. There can be no reason why at the end of a contract an employee cannot then be offered a further fixed time period. But it must be a new contract. If this does not occur the employee may be regarded as permanent.

Casual employee - as per Exhibit D.
A casual employee may be employed during or outside normal working hours. If overtime is to be attracted (and this is arguable) then the hourly rate must be further debated before this Commission.

Authority - as per Exhibit D.
With the words "Chairman of the" inserted before the words "Port Arthur".

Term appointments
I refer to specific, or discrete contracts of service. Recast to distinguish between "temporary employee". Revamped definition should include the words "subject to Section 85 of the Industrial Relations Act 1984".

I tend to agree with the Association that term appointments, as distinct from specific purpose temporary engagements, are unwarranted except in special cases. However, because of the unusual nature of the work at Port Arthur, it seems to me that situations could arise in which it might be necessary to engage persons having specific skills to perform specific functions for specific periods. These should be distinguished from functions performed by employees of an ongoing nature. For that reason I would allow the reference to "term appointment" to be included.

However, I request further argument or information on the proposed inclusion of Site Supervisor and Interpretation Officers as persons likely to be employed on contract. Moreover, pursuant to Section 32(3)(b) of the Act, I require inclusion of the words "and with the approval of the Industrial Commission" as a precursor to the list of positions to be catalogued as possible contract positions.

Appendix A. would therefore read:

"The positions listed hereunder are specified term appointment positions.

The list as defined may be varied by agreement between the Authority, the employee organisation and with the approval of the Industrial Commission."

Furthermore, as contract employees must be paid salaries and enjoy conditions at least equal to award standards, it would be futile to make passing reference to "Information Officer" for example, without defining the classification itself.

Leading Hand -
I prefer the whole of the definition set out in Exhibit C; but suggest that the preamble to that definition set out in Exhibit D also be included. In this way it will be possible to identify the class of employee who may be designated Leading Hand.

8.  SALARIES
I am of the opinion that the award should indicate that, in cases where it is intended to withhold an increment because the controlling authority has not been satisfied with an employee's conduct, diligence or efficiency, the employee concerned may seek relief via the relevant section of the State Service Act. That is, he should approach the Commissioner for Review and not this Commission, bearing in mind the overlapping jurisdictions of the Office of Commissioner for Review and the Industrial Commission.

As to the actual salary scales, I am reluctant to agree to include the equivalent of the administrative and clerical range up to and including Class XVIII.

This is a first award.  And as such the ground rules for first awards must apply: During the hearing I apprehended a certain laissez faire approach to a number of matters included in the competing claims. Numbered among those matters to which I refer was the question of salaries and contract positions. For that reason I intend to proceed with caution in this regard.

The salary scales shall be those currently applicable. But in case there may be some misunderstanding or misapprehension in this regard, I make it abundantly clear now that the maximum salary to be included in the administrative scale shall be the maximum of the class to which the highest paid administrative officer is assigned. If that happens to be Class XVI, for example, then that shall be the award limit. However, I will give leave reserved to further apply following the handing down of this award should any class of employee or any identifiable employee be aggrieved as a result. Relief will only be granted in circumstances where it can be demonstrated that due to structural efficiency, further adjustments are due on work value grounds.

Mr. Geursen's draft regarding Division B (including definitions) is rejected pro tem; but may be further considered at a later date under the Structural Efficiency Principle. In any case it is likely that the requested structure and definitions were devised before the revised wage fixing principles were promulgated and may need to be further reviewed by the parties.

Meanwhile, current rates only (including the recent 3%) should be included in the award.

HOURS OF WORK
The award shall provide for a 38-hour week, provided that it can be demonstrated that "offsets" have been obtained and are in place. In this regard I require evidence that the offsets are not those associated with the 4% second tier adjustment awarded as a preliminary to these proceedings.

ROSTERED DAY WORKERS
Notwithstanding Mr. Jarman's persuasive submissions in that regard, I entertain residual concern at the prospect of including for the first time the notion of a category of employee to be known henceforth as "Rostered Day Worker".

It is true that there are many persons who do not work rotating shifts but who, none the. less, are required as part of their contract of employment to work their "ordinary hours" either outside the generally accepted spread Monday to Friday, or on any of the 7 days of the week.

Caretakers, cleaners and persons in the hospitality industry readily come to mind. In those circumstances their rates of pay reflect the disability of working "unsociable" hours.

As I understood the controlling authority claim, it is proposed that persons such as Guides (or information Officers and Gatekeepers) would be paid - or are being paid - ordinary rates regardless of starting or finishing time, Monday to Friday. These are regarded as rostered hours. And for ordinary time worked on Saturdays, Sundays and holidays the penalty addition is time and one half for Saturday, double time for Sunday and double time and one half for public holidays.

This arrangement does not appear to be in line with current practice for the payment of "day workers" working on Saturday. Neither does it align with non-continuous shift premiums which attract on Saturday time and a half for the first 2, 3 or 4 hours, depending on the class of employee, and double time thereafter. Continuous rotation shiftworkers, on the other hand, are paid time and a half for Saturdays; double time for Sundays and double time for public holidays.

I am of the opinion therefore that leave reserved should be allowed to further consider the position of "rostered day workers". Specifically, I consider that the overtime proposal needs further consideration.

OVERTIME GENERALLY:

Payment for overtime
Requirement to work overtime
Overtime to be approved
Each day's work to stand alone
Limitation of overtime payment
Eight Hours Break between the work of successive days
Meal breaks during overtime
Provision of meals during overtime

The forgoing claims set out in Exhibit D are approved, save that in the case of time off in lieu of overtime on the basis of an hour off for an hour worked, this option must be employee initiated.

Payment for overtime is to be limited to the same levels and conditions as in the General Conditions of Service Award and provision of meals, when working overtime, needs to be clarified further in relation to organised overtime. In this latter regard the Commission needs to be persuaded why, when notice is given that overtime will be necessary, the Authority is not thereby relieved of its obligation to provide a meal or make payment in lieu thereof. It may be that due to the relative isolation of the location and the distance to be travelled in returning home an employee, in the circumstances described, notwithstanding notice, may need to purchase a hot meal from the hotel. But if that is not the case I fail to understand why an entitlement automatically accrues either before or after working normal hours when prior notice has been given to an employee that extra time is to be worked.

RECALL TO WORK
The provision in Exhibit D appears to be generally in line with State Service standards established under the terms of the General Conditions of Service Award. However, other "State employees" enjoy more attractive recall provisions. For the time being Exhibit D. Clause 11 shall apply, unless it can be shown that different arrangements presently apply.

STAND BY
Delete the proviso to Exhibit D, Clause 12. That particular provision was included in the General Conditions of Service Award as a savings arrangement for Housing Department employees who were previously compensated on a flat money payment basis for stand by. The provision is now redundant.

AVAILABILITY ALLOWANCE
As with stand by allowance, the provision set out in Exhibit D is reasonable if it currently applies to Authority employees. However I see no reason at all for inclusion of the $9.31 per day minimum payment. That, like the stand by minimum, was included in the General Conditions of Service Award as a saving provision to protect the situation of persons then paid availability allowance on a daily as distinct from hourly basis. It too is now redundant.

ANNUAL LEAVE
I am prepared to include in any award to be made an annual leave provision reflecting what currently applies. If any changes are to be made or any departure is proposed from the status quo, these should be considered as a separate exercise and will need to take the form of an application to vary.

COMPASSIONATE LEAVE/MATERNITY LEAVE
Each of these provisions should reflect the current position.

CONTRACT OF EMPLOYMENT
Subclauses (a), (b), (c) and (e) of Exhibit D are approved. Leave is reserved to further apply regarding subclause (d). In this regard I have some difficulty reconciling the notion of a person working regularly for less than 15 hours per week being regarded as a part-time employee, but, none the less, attracting a casual loading.

I am mindful of the fact that this question has been debated in other proceedings. Nevertheless the logic of what is proposed escapes me. It may only be a matter of definition. But on its face it appears that a true casual can be used on an intermittent basis and attract only 20% extra in lieu of sick leave, annual leave and public holidays. But a "regular" part-time employee working regularly, say, 14 hours per week, would be paid exactly the same as an intermittent worker.

This begs the question whether or why a person working regularly - i.e. on certain rostered days each week for an indefinite period - should be regarded as a "casual" and paid the 20% loading. Prima facie I see a difference between "irregular" or "intermittent" employment and "regular" or "recurrent" work1.

GRIEVANCE PROCEDURE
The concept of grievance procedure is of course a desirable inclusion in any award and is endorsed, conceptually, by the Act itself. It was also included in a package of offsets that led to adjustment of salaries by 4% under the Restructuring and Efficiency Principle. However, the procedure laid down in item 1 of Exhibit D appears somewhat laborious and potentially costly. For example, items 1(a) and 1(b) could easily be modified to provide for a representative of employees discussing a matter with a Supervisor in the first instance before moving to the procedure set out in item 1(c).

It seems to me too costly to have a group of employees discussing a particular situation of concern to them at two levels of authority. At some early stage in proceedings the matter should be placed in the hands of a duly elected employee representative while work continues.

FIRST AID ALLOWANCE
On the assumption that this procedure is already observed, the provision is approved.

HIGHER DUTIES ALLOWANCE
Subject to current practices, this provision should be constructed in terms not dissimilar to the General Conditions of Service Award arrangement relating to payment after 5 or more days. It should also reflect the Commission's decision regarding payment for more responsible duties.

PUBLIC HOLIDAYS
I confess I do not quite understand why, in Exhibit D, "Rostered Day Workers" are excluded from the general entitlement to public holidays set out in subclause (i) of Clause 21. Surely the only exclusion should be casuals, including so-called part-time workers employed for less than 15 hours per week?

Rostered day workers are entitled to double-time-and-one-half when rostered to work or required to work on a public holiday. If rostered off on that day they are entitled to an extra day's leave. However, if released for the day, for example on Christmas Day or on Anzac Day, they appear not to be entitled to payment for a day that would otherwise be a working day. They seem to have been deliberately excluded from the general entitlement to nominated public holidays.

INDUSTRIAL CLOTHING
This provision appears to be in line with the General Conditions of Service Award requirement. However, it is noted that the provision is silent on the question of re-issue of "returned" clothing. It is usual to make it an award requirement that any re-issued clothing be cleaned and disinfected before being assigned to other employees.

KILOMETREAGE ALLOWANCES
This provision should, as nearly as possible, be in line with the General Conditions of Service Award.

SICK LEAVE
As mentioned elsewhere in this decision, this first award should reflect current practices regarding salaries and employment conditions. However, because Authority employees are comprised, it would seem, of a mix of ex-State Service employees and those recruited externally, it is possible that different sick leave conditions already prevail.

Nevertheless, transitional provisions of the Port Arthur Historic Site Management Authority Act 1987, while saving the situation of ex-State Service employees, nevertheless includes in the savings provision a qualification to the extent that an award may make other provisions in relation to those employees.

Insofar as sick leave is concerned, it seems to me that sooner or later a common-sense approach should be to treat all employees alike. This could be achieved, I believe, by converting existing sick leave entitlements of ex-State Service employees to equivalent entitlements under a more workable and easily understood arrangement. But such an exercise should be the subject of a separate application.

TRAVEL ALLOWANCE
This provision should reflect current practices.

MEAL ALLOWANCES
Inclusion of such a provision should be in line with existing procedure.

ABANDONMENT OF EMPLOYMENT
The award may include such a provision. This, I understand, was an offset for the 4% wage adjustment awarded during these proceedings.

NOTICE OF TERMINATION
Prima facie the proposed Exhibit D provision is acceptable. However, it is more appropriate for inclusion in the Contract of Employment Clause than by way of separate provision. It is noted that the requirement that required notice is now two weeks and not four weeks as was originally requested.

SUSPENSION OF EMPLOYEES
I do not and indeed will not resile from the view that generally speaking only current rates and employment conditions should be included in a first award. That award, when made, may later be varied on merit, provided any application is in accordance with the guidelines.

However that may be, I find it difficult to accept the archaic concept of suspension being included in an award at all. It is, I believe, an anathema and represents an outdated relic of a rigid but long since abandoned colonial bureaucracy. It is obsolete. No such provision applies in the private sector. Alleged misconduct must be dealt with summarily. There is no justification for delaying an enquiry into a particular incident. Natural justice demands that an employee accused of misconduct must be given an opportunity to be heard in relation to the allegation against him as soon as possible. He is then either adjudged guilty or innocent. If he is found guilty he may be dismissed or disciplined. If he is innocent that is the end of the matter.

I am of the opinion that the parties should give close attention to this question before perpetuating an age-old procedure that appears to have little to recommend it other than to provide an employer with too much time in which to make up his mind.

NEW APPOINTMENTS AND PROMOTION SALARY INCREMENTS
These are standard type provisions and may be included in the award. The proviso to the proposed New Appointments Clause seems unnecessary. Surely this cannot be intended to mean that there can be circumstances in which an employee is appointed or promoted to a position on grounds other than on merit. I cannot imagine how any other type of appointment or promotion would occur.

SUMMARY
In summary I have decided that the eventual declaration of salaries and employment conditions applicable to Authority personnel should be achieved in two stages.

Stage 1 should, as nearly as possible, simply restate what is now being observed. In this regard any award should include the 4% second tier adjustment and the more recent 3% State Wage Decision of September 1988.

Stage 2 should arise out of this interim decision.

Any variation to, or improvement upon, salaries and conditions should be the subject of an identifiable claim lodged by either or both parties. Or it may take the form of an agreement which, of course, would need to withstand scrutiny by this Commission. But whatever vehicle is used, that document must purport to either include a new provision or vary an existing one.

The proceedings thus far have been protracted and convoluted. The Commission has not been informed exactly what rates and conditions apply at the moment, although there is less confusion regarding salary rates than employment conditions.

To have acceded to the competing claims in whole or in part, and to proclaim the result of that arbitration in the form of a first award would be difficult, if not impossible, to sustain under the guidelines.

On balance I prefer a neater and more orderly approach if that can be arranged. For that reason I have not dealt with the merits of many exchanges that took place between Messrs. Geursen and Jarman in prosecution of their respective applications. In particular I felt that Mr. Geursen was postulating certain proposals that, because of their philosophical content, were difficult to rule upon within the framework of the wage fixing principles. That is not to say that none of the matters of concern to him were necessarily incapable of prosecution for that reason. But it does mean that hard evidence consistent with the appropriate principle would need to be led before any ruling one way or the other could be given on merit.

To a lesser extent the same observation could also apply to Mr. Jarman's "Rostered Day Worker" proposition.

I mention this in passing in case Mr. Geursen in particular forms an opinion that the Commission has not considered his exhibits and submissions in the same depth as those of Mr. Jarman. To form such a conclusion would be incorrect.

The short position is that the ground rules are known and are accepted regarding first awards. I am not about to interfere with that situation. Once an award is made it is capable of being varied. It will be time enough then to consider the merits of any changes sought by either party.

Having now published my preliminary findings I request that the parties prepare a draft award for my perusal. In doing so I also request that the parties avoid shorthand references to, say, the General Conditions of Service Award, or State Service Act and Regulations. I would much prefer to embody in the one document all salary rates and employment conditions applicable to those employees who will become subject to the award and who are already affected by the two orders signed by me on 15 and 16 September 1988 respectively.

I will issue a final decision on promulgation of the award. But this will not occur until after I have heard any further submissions that might be forthcoming from the parties and upon which I may need to make a ruling. However, any further submissions should not take the form of an appeal against matters already decided. Nevertheless some clarification of matters raised by me may be acceptable, and indeed, desirable.

When the interim award is issued the parties will be invited to apply as they may be advised in relation to any other matter or matters of concern to them. In that context it seems to me that the Structural Efficiency Principle may well be an appropriate vehicle to be called in aid. But I do not hold that that should necessarily be so. Nevertheless the parties need no reminding of the reason why the 3% adjustment was awarded.

The parties are now invited to confer in the light of this interim finding and prepare a draft award setting out current rates and conditions.

L.A. Koerbin
PRESIDENT

1 cf. 46 SAIR (1979) @ 739
47 SAIR (1981) @ 345
48 SAIR @ 220