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T1287

 

IN THE TASMANIAN INDUSTRIAL COMMISSION


Industrial Relations Act 1984

 

T.1287 of 1988 IN THE MATTER OF AN APPLICATION BY THE ASSOCIATION OF PROFESSIONAL ENGINEERS, AUSTRALIA TO VARY THE PROFESSIONAL ENGINEERS AWARD
   
  RE: 4% SECOND TIER INCREASE
   
DEPUTY PRESIDENT A. ROBINSON HOBART, 19 May 1988
   

REASONS FOR DECISION

   
APPEARANCES:  
   
For the Association of Professional
Engineers, Australia, 
Tasmanian Branch
- Mr R. Rankin
   
For the Minister for Public
Administration
- Mr F. D. Westwood with
  Mr G. Wood (27.4.88)
   
DATE AND PLACE OF HEARING:  
   
27 April 1988
16 May 1988
Hobart
Hobart
 
   

Application was made by the Association of Professional Engineers, Australia (APEA) to vary the Professional Engineers Award on 11 April 1988.

Such application sought an increase in salary rates and allowances of 4% to take account of the National Wage decision of the Full Bench of the Conciliation and Arbitration Commission in relation to the Second Tier.

The matter was first listed before the Commission for hearing on 27 April 1988.

At that time it was a matter of common ground that the APEA and the Office of Industrial Relations had successfully negotiated a Second Tier agreement, subject to confirmation by the employer.

Two documents were put forward detailing both the spirit and intent of the parties towards a common objective of achieving a 4% Second Tier increase which was cost neutral together with the actual items negotiated as cost efficiencies.

Separate details were provided in relation to efficiency cost offsets in relation to -

(a) Professional Engineers employed in the Tasmanian State Service; and

(b) Professional Engineers employed in the Transport Commission.

Such improvements as were negotiated have as their objective:

(a) More efficient use of resources and increased productivity of individual employees through multi-skilling;

(b) The ability to fully utilise all staff by facilitating those on higher classifications undertaking lower classified work and those in lower classifications performing work at a higher level;

(c) The reduction in the incidence of Higher Duties Allowance, together with a rationalisation of other allowances;

(d) A reduction in re-classification, promotions, appeals, etc., leading to more productive and efficient personnel procedures.

The precise details of efficiency offsets agreed upon are contained in exhibits R1 and R2 which form part of the record of proceedings.

Such items fall under the headings of:

A. IN THE STATE SERVICE GENERALLY

1. Hours of Work
2. Overtime
3. Sick Leave
4. Non Cash Payments
5. Camping Allowances
6. Travel Allowances
7. Walking Time
8. Wash-up Time
9. Meal Allowances
10. Abandonment of Employment
11. Uniforms
12. Grievance Procedure
13. Union Meetings
14. Pre-Employment Medicals
15. Special Leave - Guidelines for Approval
16. Payment of Recreation Leave Allowances
17. Leave Without Pay for Accrual Purposes
18. Maternity Leave
19. Public Office Closure
20. Broadbanding

B. IN THE TRANSPORT COMMISSION

1. Cashless Payroll
2. Uniform Working Hours and Cancellation of 10 Minutes Grace Time
3. Sick Leave
4. Classification Review Committee
5. Employment of Additional Professional Staff

The parties also acknowledged the need to revise this award in terms of purely consequential matters relating to the provisions of the State Service Act. In particular variations need to be made to "Scope", "Parties and Persons Bound" and sundry references to Public Service Act and the present non-reference to the Minister for Public Administration.

Such consequential amendments are not to alter existing rights of the APEA or any other party. Whilst the parties had reached an understanding in relation to the elements of a Second Tier increase, they disagreed on the question of appropriate operative date of effect.

The hearing resumed on Monday 16 May 1988, when the Commission was advised that the employer had considered and endorsed the total package on 9 May 1988.

The APEA argued strongly that in all of the circumstances a retrospective date of 31 March should apply to any award variation.

In particular, Mr Rankin relied on the fact that -

1. "Agreement" had been reached with the Office of Industrial Relations on 11 April 1988.

2. Members of the APEA had expressed considerable concern at the delay in finalisation of this matter vis-à-vis the rest of the State Service and industrial action had been seriously contemplated.

3. The employer had taken much longer than expected in endorsing the package.

4. The elements of the package for professional engineers are virtually a mirror-image of that applying to the rest of the State Service.

5. There should be no discrimination against professional engineers working side by side with other State servants.

6. Some jobs requiring identical skills and qualifications may be filled either by professional engineers or draftsmen, for instance.

7. Many cost offsets are of a general nature, where operative date is not crucial - such as maternity leave which is largely prospective in effect and not likely to involve professional engineers in any case.

8. The Commission should exercise its jurisdiction according to equity and justice.

9. Whilst the preferred date of application so far as the APEA is concerned is 31 March, without prejudice to that position, the 4% increase should apply no later than 11 April 1988, which was the date of the application.

Mr Westwood for the Minister for Public Administration argued that, in accordance with the Wage Fixation Principles, no retrospectivity should apply and the date of my decision should be the operative date of effect for award increases.

- He expressed disappointment at the APEA's suggestion that agreement had been reached on all matters with the Office of Industrial Relations, whereas the only agreement had been to refer the package to the employer.

- At the hearing on 27 April the understanding was reached that the employer's decision would be relayed to the Commission by telephone and there would in all likelihood be no need for a further hearing.

- The APEA should have understood from previous negotiations that endorsement of the package would be sought at the next available meeting of the employer body. Circumstances precluded the employer body from actually considering the matter until 9 May, and that was not unreasonable.

- The APEA contributed to the delay in reaching agreement because its members would not make a decision to accept elements of the package until very late.

- Whereas members of the TPSA had been enduring the offsets since 31 March, the same could not be said in respect of APEA members.

- Justice and equity means following the same set of Principles by all groups.

Decision

The detailed package presented to the Commission as a consent matter varied very little from that which was accepted by a Full Bench in its decision of 15 February1 dealing with a multitude of other public sector awards. In fact most of the efficiency cost offsets are precisely the same as those accepted by the Full Bench.

I am satisfied as to the genuineness of the total package and that the cost implications permit a granting of the claim for 4% increase in salaries, pursuant to the Second Tier's element of current Wage Fixation Principles.

I have also had proper regard for the requirements of Section 36 of the Act, and am satisfied that to grant the claim does not offend public interest.

For all of these reasons salaries contained in Clause 8 of the Professional Engineers Award will be increased by 4%, with rounding off to the nearest whole dollar. Where the calculation produces 50 cents in the result, the next highest dollar shall be taken.

The parties were made aware of and accepted that there is a need to update the award by virtue of the requirements of the State Service Act. This will be carried out by separate Order, which the parties are requested to prepare.

Operative Date

The Act provides in Section 37(4) and (5) as follows:-

    "(4) Subject to this section, the provisions of an award have effect on and from the date on which the award is made or on such later date or dates as the Commission determines and as is or are respectively specified in the award.

    (5) The Commission may, in an award, give retrospective effect to the whole or any part of the award -

      (a) if and to the extent that the parties to the award so agree; or

      (b) if, in the opinion of the Commission, there are special circumstances that make it fair and right to do so."

In this instance the parties are not agreed, so it falls to me to determine whether or not there are special circumstances that make it fair and right to award a retrospective date of effect. Of particular concern to the APEA and its members is the fact that they are a comparatively small group who work in large Government agencies where their colleagues will receive the same increase for basically the same reasons, yet from an earlier date.

Prima facie such discrimination is unfair.

The APEA also allege that their members' position was further exacerbated by delays which occurred subsequent to reaching an agreement in principle, subject to the employer's approval.

However, I am satisfied on the evidence that in this instance it was made perfectly clear at the outset of negotiations that any understanding reached with the office of Industrial Relations were to be subject to final approval of the employer.

Whilst it is understandable that delays of any kind to employees expecting a wage rise will be the cause of disappointment and frustration, I am not convinced that the interval concerned in this instance would of itself constitute a special circumstance. This is particularly so since the members of APEA undoubtedly contributed to the whole process by their desire to hold out for the best deal they could get.

Despite the fact that the Industrial Relations Act gives members of the Commission a discretion in deciding operative date of effect of award provisions, a set of Wage Fixation principles are in operation by all tribunals and all parties. The Wage Fixation Principles of 24 April 19872 specify that:-

    "The Commission will not award retrospectively in relation to any second tier increases."

Thus I am bound not to award retrospectivity in this instance.

Whilst any party is entitled to rely upon the strict letter of the requirements currently in place, the notions of fair play and justice should still apply, therefore both the spirit and intent of the Wage Fixation Principle and the Industrial Relations Act should be observed at all times by each and every organisation.

The date of effect of the 4% salary increase together with all of those items put forward in Exhibit R1 and R2 as efficiency cost offsets shall be the first full pay period to commence on or after 19 May 1988.

Order is attached.

 

A. Robinson
DEPUTY PRESIDENT

1 T.1135, T.1136, and T.1151 of 1988
2 T.712, T.665, T.691 and T.675 of 1987