T721 and T999
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
Application T.721 of 1987 was lodged with the Registrar on 25 March 1987, at the same time as a similar application T.722 of 1987, which sought to vary the Hospital Employees (Public Hospitals) Award. Initial hearings of T.721 of 1987, took place on the same dates as T.722 of 1987, i.e. 5 and 27 May 1987. However, on the latter of the above dates, agreement was reached between the parties that the application would not be relistdd until after a decision in the public sector matter. That decision was released on 4 September 19871. On 21 October 1987, a revised application T.999 of 1987, was lodged with the Registrar and joined for hearing purposes with T.721 of 1987, on 26 February 1988. On that day the Hospital Employees Federation of Australia, Tasmania No.2 Branch (HEF No. 2) submitted an exhibit (Exhibit HEF No. 1) which summarised the position reached between the parties following the public sector decision. The exhibit reads: "T.721/999 OF 1987 Annual Leave T.C.I. agree the award should be varied in a similar manner to the Hospital Employees' (Public Hospitals) Award as contained in Order No. 9 of 1987. Holidays T.C.I. agree the half-day holiday should apply in the Ulverstone area, but oppose an extension of the half day holiday to areas where no holiday is proclaimed for Cup Day. Payment of Wages T.C.I. position is as follows: Division A O.K. Casual and Part-time Employees T.C.I. claim weekend penalty rates should be calculated on the flat rate (without 20% loading), and will argue accordingly notwithstanding past nexus. H.E.F. will argue the principal involved in the calculation of rates of pay for persons who receive a 20% loading, is that the loaded rate is their ordinary rate of pay." I will deal with the matters in the same order and under the same headings as contained in Exhibit HEF No. 1. ANNUAL LEAVE Agreement has been reached in relation to appropriate variations to the annual leave provisions contained in the Hospitals Award (the Award). The agreement reflects the same variations which have been executed in the public sector award in matter T.722 and T.769 of 1987. As I have already considered the merit of the variations in the public sector, I will vary the Award as requested. HOLIDAYS Application T.721 of 1987, seeks to vary the public holiday provisions in the Award, by providing for a Cup Day holiday in all locations throughout the State. Currently a Cup Day or half day holiday is observed by proclamation in prescribed locations, for Cup race meetings in Hobart, Launceston and Devonport. The additional wording sought to be included in the Award reads: "'Cup Day (half day)' means not more than one half day holiday which shall be observed on the day specified in accordance with the proclamation of the local 'Cup Day' holidays, appearing in the Tasmanian Government Gazette in accordance with the provisions of the Bank Holidays Act 1918, having regard to municipalities. In municipalities where no 'Cup Day' holiday is proclaimed another day in lieu shall be allowed. The day in lieu shall be determined by consultation between the employer, the union and the employees involved." The catalyst for the claim, is an interpretation of the Holidays provision in the Award2, by the President and a decision by Cabinet to extend the Cup Day holiday to public servants in North West Municipalities. The President in T.628 of 1986 concluded: "Therefore in accordance with the requirements of Section 43(1)(a) of the Act, I declare that on the proper construction of Clause 13 of Section III of Part II of the Hospitals Award, all employees (other than shift workers, casual employees and part-time employees engaged to work less than 20 hours per week) who are employed in establishments providing care for aged persons, are entitled to one half-day 'Cup Day Holiday' per annum. Where, .as in this case, no 'Cup Day' as such occurs in the Ulverstone Municipality it would not be inconsistent with this clause for the gazetted bank half holiday to mark the occasion of the Ulverstone Trotting Club Mid-Week Meeting to be observed in lieu of the prescribed 'Cup Day' half holiday." The above declaration relates only to employees who work in the Ulverstone Municipality. Although the Tasmanian Confederation of Industries (TCI) did not agree with the President's interpretation it was not appealed. Neither was an application to vary the holidays clause, based on a merit argument, lodged by the TCI. In a letter dated 21 September 1987, to the Secretary of the HEF No. 2 (Exhibit HEF No. 3) the Minister for Health, in part, said: "Dear Mr Rees I refer to representations to me by your predecessor, Jim Simmonds, for the provision of a half-day holiday for public servants in North West Municipalities. I am pleased to advise that Cabinet has now confirmed the earlier commitment given by me to the effect that a half-day would be provided." In spite of its stated, "non acceptance" of the President's interpretation, the TCI has agreed that the Award should be varied to make it clear that employees in the Ulverstone Municipality get a Cup Day holiday. In fact, it is agreed that a half-day holiday should apply for the Ulverstone Trotting Club Mid-Week Meeting in lieu of a Cup Day. As this holiday is now in place and has been observed, on at least one occasion, by employees covered by this Award, I endorse the agreement of the parties. Obviously no increase in costs for private hospitals, etc., will result from my acceptance of a now existing situation. I do not intend to vary the Award with regard to this aspect as the current wording provides for substitution. However, as highlighted by the President's interpretation the Holidays clause is not clear in its intention. I therefore direct the parties to confer with the aim of producing an appropriate and clearly worded clause. The claim for the extension of the Cup Day holiday to all employees covered by the Award is vigorously opposed by the TCI. The main grounds of opposition are stated as: · the President's interpretation was wrong, however, as an interpretation, it carries no weight in a merit argument; · while the TCI accepted that a nexus existed between public and private sector health awards, that nexus in relation to conditions is becoming transparent and flimsy and could not sustain this claim; · the Bank Holidays Act 1919, the source of the Cup Day holiday for public sector employees, has no application in the private sector, except for trading banks and the retail industry; · a Cup Day or Half Cup Day holiday should only apply in areas where a Cup Day is held, there is no justification on any grounds to do otherwise; · to extend a Cup Day holiday to locations remote from a centre which holds a Cup Day would be absurd; · the cost implications of extending the holiday would be significant; · the granting of the claim would be contrary to the Wage Fixing Principles and the public interest provisions of the Industrial Relations Act 1984. I accept the submissions of the TCI that the granting of this claim would be contrary to the Wage Fixation Principles and the public interest. Cost considerations alone are sufficient to warrant such a conclusion. On the merit, it is difficult to reconcile a claim that an employee at Queenstown, for example, should get a half day holiday for the Devonport or Hobart Cup. The natural justice, inequity arguments advanced by the HEF, of course, cause me some concern. However, it is a fact of life in the industrial relations arena, that there are differences between conditions applying to one group of employees compared to another. For example, most public sector employees receive Easter Tuesday as a holiday while most private employees do not. These situations should be rectified, as far as is possible, however, there are significant reasons why now is not the appropriate time. Maybe, in a more appropriate economic climate, the whole question of holidays, for public and private sector employees, should be addressed and rationalised. A piecemeal approach will resolve nothing. This part of the application is dismissed. PAYMENT OF WAGES T.999 of 1987, seeks an extensive Payment of Wages clause, in Division A - Staff Employed in Private Hospitals., Division C Employees in Establishments Providing Care for Aged Persons and Division D - Blood Bank Services, of the Award. The new provisions are to replace those already contained in the above identified divisions. The claim if granted would provide the same conditions as have recently been included in the Hospital Employees (Public Hospitals) Award. The TCI accepted that Division A should be varied in accordance with the claim, however, its extension beyond Division A is opposed. The Royal Australian Nursing Federation (RANF) opposed the application so far as it relates to nursing staff. Its final position being, that it did not oppose the application as long as it applied only to non nursing staff. In addition to some difficulty with the content of the proposed clause, the RANF opposed any change in the Award until after the Nurses (Public Hospitals) Award had been varied. In addressing this matter, Mr Grant said: "Commissioner, the nexus which exists in the private sector operates, in that when conditions are changed in the Hospital Employees and Nurses (Public Hospitals) Awards, the practice has been to then apply those changes into the private sector and that has been, for a good reason, for a long period of time." Transcript p133 Having carefully considered the submissions of all parties, it is my decision to grant the application so far as it relates to Division A - Staff Employed in Private Hospitals. The balance of the application as it relates to Divisions C and D is refused. It is my view that in the face of opposition an applicant must demonstrate substantial grounds justifying its claim. The applicant has done no more in this case, than seek a flow-on of what has been accepted in a counterpart public sector award. Even the RANF submitted that: "Mr Grant: We are content with the award provision as it currently stands in the private sector. The employers, from our point of view, provide information required of them and we do not seek, at this time, to impose any strict requirements upon the private employers. In fact, some of those provide in advance of what the award provision requires. If we had some difficulty, we would take it up with the employer in due course." Transcript pp134/5 My decision on this part of the claim does not mean that I do not support the principle that employees should be provided with all necessary information on their pay slips. I go further and indicate support, for any helpful information which can be conveniently produced, being supplied. However, in the absence of evidence indicating that there are current problems, which need to be addressed, I cannot grant this claim. The application and submissions clearly demonstrate a reasonable approach by the HEF's in this matter. I therefore urge the TCI to review the situation over a period of time, with the view to providing as much information on pay advices as is practical. CASUAL AND PART-TIME EMPLOYEES Application T.721 of 1987, seeks in the various divisions of the Award, the addition of the following paragraph in the provisions relating to casual employees: "Casual employees shall have their wages for working shifts which attract a penalty payment calculated by first adding the 20% loading to their hourly rate, and then having the penalty payment added. In the case of overtime penalty payments, the above method of calculation shall not be used. Overtime payments shall be calculated by adding the overtime penalty to the normal hourly rate payable to a full time employee employed in the same classification." Similar provisions are sought for part-time employees, working less than 20 hours per week who receive a 20% loading, and intermittent employees under Division D - Blood Bank Employees. The basis for the claim, is an interpretation by the President in T.530 of 1986, where he concluded as follows: "Accordingly, I conclude that part-time and casual shift workers working less than 20 hours per week are entitled to be paid afternoon and night shift premiums on the loaded rate. I am also satisfied that the award provides no impediment to payment at the 'loaded rate' for Saturday and Sunday rostered shifts provided those shifts are not in the nature of overtime." The interpretation related to Division C - Employees in Establishments Providing Care for Aged Persons, of the Award. The HEF's also relied on a decision of O'Mara J.3 relating to the Metal Trades Award. However, this decision, as in the case of the President's decision in T.530 of 1986, is an interpretation and is therefore of limited or no value in this case. The additional wording sought by the applicants accepts that casual or part-time employees, being paid a 20% loading, should not receive that loading while engaged on overtime work. I agree with that position and therefore endorse that part of the application. In relation to the balance of the claim, no merit decisions which may have addressed this issue were presented by the parties and apart from reliance on some sections of the award, which supported the parties respective positions, no substantial merit submissions were presented. The Award provides an additional payment of 20% of the ordinary weekly rate to employees who are casual and in certain circumstances to part-time and intermittent employees. The Award clearly defines the reasons for the payment as being "payment in lieu of annual leave, sick leave and public holidays". If one accepts the logic of the payment, it follows that if an employee is engaged for say fifteen (15) ordinary hours per week, he must be paid 20% for those fifteen ordinary hours to ensure he is not disadvantaged against the full-time or permanent part-time employee. Therefore, if a casual or part-time employee receiving the 20% payment works part of his ordinary hours on a shift which otherwise attracts a penalty he must receive both the 20% and the shift penalty. Where the same employee works, as and when required, he must attract the 20% loading whenever he is working ordinary hours. Otherwise at the end of a year, when he might otherwise take annual leave, he is disadvantaged vis-a-vis the full-time employee. In relation to the argument that a penalty cannot be added to a penalty, I believe the 20% payment to be compensation for the non availability of normal award rights, i.e. annual leave, sick leave and public holidays and therefore not a penalty in the normal sense. / However, on the basis that casual employees should be treated no better, or no worse, than full-time employees, I believe the calculation of the actual rate should be on the following basis: 20% loading calculated on the hourly rate payable to a full-time employee, plus the shift penalty rate, also calculated on the hourly rate payable to a full-time employee. The two components should then be added to the hourly rate to establish the actual rate payable. No particular reference was made to the Wage Fixation Principles or the public interest when the parties were addressing this claim. However, it is my understanding that some establishments are paying rates in accordance with the application others are not. Certainly in the public sector shift penalties are paid in addition to the 20% loading. In the absence of submissions going to the cost of this application, if granted, I can only assume that it would not be significant. In any case, it could be said that by granting the application I would be doing no more than clarifying the existing award provisions. Whatever the situation may be, I believe there is substantial merit in the application, therefore, I will vary the Award as requested. The date of operation of the Commission's order in this matter causes me some concern. It was agreed between the parties that its date of operation should be from 26 February 1988. In addressing this aspect on 28 February, Mr Holden said: "Mr Holden: So the simple situation is that whilst Mr Fitzgerald on behalf of the TCI will be putting submissions in opposition to some aspects of our claim, he is agreeing to the annual leave request. He is going to argue the other three matters, and in terms of the award, whatever is decided will go into the award from today. But we won't seek actual retrospectivity in practical application of any matter." Transcript p109 If retrospectivity is not going to be claimed by the employees on any matter contained in the order, one wonders what is achieved by a retrospective date. I hasten to say that I understand Mr Holden's concern at the time taken to bring these matters to a conclusion. However, a retrospective date on the basis agreed, does not achieve anything. I am also concerned that the RANF did not, on the record, give the same assurance as did the HEF's. In all the circumstances the date of operation of the Commission's order will be the first pay period commencing on or after the date of this decision.
J.G. King 1 T.722 and T.769 of 1987
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