T2814 and T2815
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Tasmanian Public Service Association and The Minister Administering the Tasmanian State Service Act and Port Arthur Authority GENERAL CONDITIONS OF SERVICE AWARD
Kilometreage REASONS FOR DECISION These two matters seek the adjustment of kilometreage allowances currently contained in the General Conditions of Service Award and the Port Arthur Authority Award. Such application relies upon an earlier Full Bench decision1 which established a formula for future adjustments based upon six monthly movements in the Hobart private motoring sub-group of the CPI figures released by the Australian Bureau of Statistic Catalogue No. 6401.0. And the application follows the release of the September quarter figures. Since the making of the original decision there has been a history of regular adjustments following the release of the March and September CPI figures. On this occasion there is no objection to the further application of the Full Bench formula from the Minister Administering the Tasmania State Service Act and it is accepted that neither public interest or wage fixation principles would be offended. However the parties are not agreed as to an appropriate operative date of any award variation. The Tasmanian Public Service Association lodged both applications immediately the relevant figures became available on 14 November 1990, and seeks retrospectivity to that date. And the TPSA has drawn attention to the expressed view of the Full Bench2 at page 42 of its decision in this regard. The Full Bench said: "We are of the view that subsequent percentage increases should be calculated on a six-monthly basis, after each March and September quarter index number becomes available from A. B. S. The operative date for the consequential increases to be the first full pay period commencing on or after the "availability" date." However, Mr Willingham for the Minister relies upon the Act and has pointed out that there is neither agreement of the parties nor the existence of special circumstances which would make it fair and right to grant retrospective effect. In this regard the Act is quite specific and provides in Section 37 (5): "(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." Under ordinary circumstances the decision of a Full Bench would be binding if its decision was firm and clear, and not at odds with a provision of the Act. In this instance the Act properly gives a discretion to the Commission to judge circumstances as they exist from time to time. And the Commission as presently constituted has dealt promptly with the present applications dated 14 November, received at the Registry on the 15 November, and referred to me on 19 November 1990. Furthermore the view expressed by the Full Bench as to "availability" date of CPI figures is in itself vague, as acknowledged by the use of inverted commas with no further explanation. I have decided that on the evidence before me there are no special circumstances which would justify retrospectivity, and in accordance with Section 37 (5) of the Act I grant the claim with effect from the beginning of the first full pay period to commence on or after 22nd November 1990. Orders are attached.
A Robinson Appearances: Date and Place of Hearing: 1 T.33 of 1985
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