IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This matter concerns an application pursuant to Section 29 of the Act to settle an industrial dispute.

More particularly the Secondary Colleges Staff Association notified the Commission that a dispute had arisen concerning "the failure of the Education Department to pay recreation leave loading to temporary teachers in secondary colleges."

The hearing generally focused upon those teachers who are regarded as "temporary" employees because, whilst they are engaged at the beginning of the school year and work the whole of the school year, their services are formally terminated at the end of the third term. As I understood it the majority would be re-engaged (again as temporary teachers), for successive years.

There are however, some teachers who may not start on the first day of the school year, but nevertheless do commence work very shortly thereafter.

Another category of temporary employee relieve for shorter periods of time.

The complaint was that all temporary teachers (in this case employed in secondary colleges) who worked throughout the year and finished up on 15 December 1988, were denied annual leave loading.

The Secondary Colleges Staff Association relied upon the definition "employee", contained in the Teaching Service (Teaching Staff) Award, Clause 7 which provides that:

"Employee means a person permanently or temporarily employed under the provisions of the Tasmanian State Service Act 1984".

The applicant also relied upon the wording of Clause 14 of the same award which provides as follows:

14 RECREATION LEAVE ALLOWANCE

1 During a period of recreation leave an employee shall be paid an allowance by way of additional salary, calculated at the rate of seventeen and a half per cent of his/her normal salary, plus where applicable, any allowance of a permanent nature payable to such employee and deemed by the controlling authority to be in the nature of additional salary.

PROVIDED ALWAYS that such allowance shall -

(i) be calculated on the basis of a maximum period, in any one leave year of four weeks recreation leave;

(ii) in no case exceed $393 per annum on and from the first day of January 1987 in respect of all recreation leave credited on or after that date;

(iii) not apply to proportionate recreation leave accrued by an employee in the leave year of the year of termination of service where such employee voluntarily resigns or whose services are terminated for disciplinary or other good reasons.

(iv) be calculated at the salary rate applicable to the employee concerned, on the day immediately prior to the leave year in which recreation leave is credited."

(my underlining)

Mr Elliott said the employer concerned had already indicated to him that proviso (iii), above, had been relied upon to justify not paying the recreation leave loading.

Mr Willingham, appearing for the Minister for Public Employment, confirmed the belief that the award was being correctly applied in present circumstances. He said that the arrangement entered into with temporary teachers amounted to a fixed term contract and their services were terminated at the end of the year, because the contract of service had expired. And such circumstances constitute "or other good reasons" as stipulated in Clause 14(iii) of the relevant award

The issues raised are complex. Whilst the Teaching Service (Teaching Staff) Award deals with recreation leave allowance, the award does not itself deal with recreation leave, but provides in clause 5, "Supersessions and Savings, (inter alia) that the provisions of the Tasmanian State Service Act 1984 and regulations shall continue to apply.... . And 14(2) of the award specifies that "Recreation Leave' means one or other of the periods of annual holidays more particularly set forth in Regulations 251 and 252 of the Tasmanian State Service Regulations 1985."

Whether or not there is an entitlement to recreational leave loading must be influenced by whether or not there is first of all an entitlement to annual leave.

There are possibly three separate avenues available for resolving this particular dispute, ie -

1. An interpretation of the award

2. The taking of steps to have the award enforced, or

3. Seeking a hearing to vary the award on the basis that a case can be put to justify such changes on proper criteria.

None of those remedies are available through the use of Section 29 of the Act. However, the hearing was useful, I believe, in that the issue was clarified and the remedies made known to the parties.

Accordingly the file is closed

A. Robinson
DEPUTY PRESIDENT