TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.23 application for award or variation of award

Tasmanian Technical Colleges Staff Society
(T.2417 of 1990)

and

Minister Administering the Tasmanian State Service Act 1984

TECHNICAL AND FURTHER EDUCATION STAFF AWARD

Structural Efficiency Principle

REASONS FOR DECISION

The Tasmanian Technical Colleges Staff Society (the Society) made application in May 1990 to effect structural efficiency measures in the Technical and Further Education Staff Award. Since that time numerous proceedings have been conducted pre and post the Commission awarding the second instalment structural efficiency adjustment in August 1990.

As well the Commission has embarked on Special Case considerations consequential to the arguable case finding of the President in Anomalies Conference TA.65 of 1990. In the course of those proceedings the representatives for the Minister administering the Tasmanian State Service Act 1984 (the Minister) indicated that the Special Case may be more appropriately processed by the Full Bench¹ which is presently hearing structural efficiency matters for the majority of public sector awards. For convenience I will refer to that particular Full Bench as the State Wage Case Full Bench - Structural Efficiency (SWCFB).

Having regard to the submissions made on behalf of the Minister going to referral of the TAFE Award Special Case to the SWCFB I stated in my Reasons for Decision dated 7 May 1991, among other things that:

"6. A hearing has been set down for 22 May 1991 where the parties are to address the issue of whether or not this matter should be referred, in respect of ongoing proceedings, to a Full Bench ..."

Reasons for Decision 7 May 1991 at page 2

In the ensuing proceedings Mr McCabe appearing for the Minister submitted that I should refer this matter to the President pursuant to Section 24(4) of the Industrial Relations Act 1984, (the Act). That Section of the Act provides for:

"24(1) The hearing of an application made as provided by Section 23, other than an application in respect of a matter to which section 35(1) relates shall be conducted by the Commission constituted by a Commissioner sitting alone.

(4) A Commissioner who conducts the hearing of an application under this section in relation to an award may, if he considers that -

(a) the application directly affects another award; or

(b) the application or part of it is of such importance that, in the public interest, it should be dealt with by a Full Bench, on his own motion or at the request of a party to the hearing.

refer the application to the President in order that he may determine whether or not it should be referred to a Full Bench."

The submission of Mr McCabe in support of why I should refer this matter back to the President in accordance with the foregoing provisions of the Act may be summarised as follows:

(i) the SWCFB determined in its 22 February 1991 decision that Special Cases would be considered by that Bench. The Bench said -

"We expect special case considerations to be accommodated during the hearings convened to deal with each occupational stream."

(ii) as a consequence individual Commissioners had conducted hearings and referred the Special Cases they had been allocated earlier back to the President. The President subsequently determined that those particular Special Cases would be processed by the SWCFB.

(iii) the application in the Technical and Further Education Staff Award (TAFE) has the potential to impact on the Teaching Services (Teaching Staff) Award in so far as the consideration of national benchmark rates of pay are concerned. It was also stated by Mr McCabe that the Special Case proceedings in the Teaching Service (Teaching Staff Award could impact on the TAFE award.

In addition to those issues Mr McCabe said that the Minister is concerned that national benchmark rates of pay should not be considered in isolation. He submitted that :

"...the whole concept of national benchmark salaries, and what that means to us (the Minister) is interstate wage parity, should be considered together with substantial questions by a Full Bench ... to establish the underlying principles which should apply in considering these issues".

Transcript p271

Mr McCabe informed the Commission that benchmark rates of pay are not contemplated in the Wage Fixing Principles nor the Industrial Relations Act 1984. Accordingly he urged that the concept of benchmark rates of pay, given their importance, warranted Full Bench consideration ahead of a single Commissioner dealing with the issue.

A further plank of Mr McCabe's submission was that given the potential cost of national benchmark rates of pay to the Minister, that it would be in the public interest for the issue to be determined by a Full Bench.

Mr McCabe also referred to earlier comments made by Mr Willingham where he gave notice that the question of whether or not this matter should be dealt with by a Full Bench would be raised with the Commission. In that context the issue of the Wage Fixing Principles and the need for consistency was discussed. However I do not consider it necessary to canvass the comments of Mr Willingham here, because, as I have indicated, they were made to alert the Commission that argument would be put at a later date to endeavour to convince the Commission as constituted in this matter to refer the Special Case to the President for him to determine whether it should be referred to the SWCFB or another Full Bench.

Suffice to say that Mr McCabe highlighted that in resolving the issues concerning the various occupational streams there is a need for consistency of approach which should incorporate the consideration of the TAFE Award by the Full Bench. In other words the TAFE Award should be "considered in the light of the overall public sector structure" (transcript p 272).

Mr McCabe expressed concern that if the TAFE award was not considered by the SWCFB, then this particular award may became a pacesetter for the rest of the public sector.

The submissions of Mr McCabe were strenuously opposed by the Society. Mr Holden contended that the Minister was seeking to delay the finalisation of this matter by now seeking a Full Bench reference given that the proceedings have reached a significant stage. He said that this tactic should be resisted by the Commission as in all likelihood it would impact adversely on the success of the structural efficiency process by slowing the proceedings in the SWCFB.

Mr Holden reminded the Commission that the TAFE matter had been processed by an Anomalies Conference and that subsequently a Full Bench had referred the matter to me for determination. He said a referral back to a Full Bench was not sustainable given that matters have now been in train before the Commission for one year. In that period numerous hearings were held resulting in award variations.

Mr Holden submitted that the joining of this matter with the matters before the SWCFB would:

(i) result in later conclusion of the TAFE case;

(ii) place the Society in a position where it has not been deeply involved in issues considered for by the SWCFB;

(iii) probably provide grounds for claiming a denial of natural justice in the event the Society was enjoined at this late stage in those particular Full Bench proceedings. r Holden submitted that the Society was not involved in any conferences directed by the SWCFB, the aim of which was for the parties to develop a single document. At this stage comprehensive award restructuring proposals have been documented by the Tasmanian Government and the Tasmanian Trades and Labor Council (TTLC). The Society had not participated in that process. Instead the Commission directed the parties in this matter to identify all agenda items, rates of pay and career streams in one document. Mr Holden said that course was adopted by the Commission because "clearly the Commission was convinced that all unions involved in this matter are agreeable to it being pursued as it had been previously" (Transcript p 278).

FMr Holden submitted that in all cases where benchmark rates of pay were established for TAFE Awards throughout Australia they had been dealt with separately and without "the need for those awards to be joined with other public service matters". (Transcript p 279).

A further point made by Mr Holden was that all TAFE Award classifications were found to be an arguable Special Case, a factor which has not yet been recognised in the proceedings of the SWCFB.

With regard to public interest Mr Holden said that it would not be prejudiced by this matter continuing before a single Commissioner because "teacher classifications are recognised on a national basis as being a special case ... and that outcomes on behalf of teachers cannot be used by other professions as a basis for flow on". (Transcript p 279).

Mr Holden in Exhibit H21 summarised the reasons why in the opinion of the Society this matter should not be referred to the President in accordance with Section 24(4) of the Act. I have canvassed the issues raised in that Exhibit in this decision but for the sake of completeness I have appended Exhibit H21 to this decision.

Mr Smyth appearing for The Tasmanian Public Service Association (TPSA) supported the submissions of Mr Holden. Mr Smyth also expressed the view that the TAFE matter should not be delayed which may be the case if this matter was referred by the President to a Full Bench. He also said the TPSA did not want the public sector for stream proposals held up in any way.

Reasons for Decisions

In reaching my decision in this matter I have had regard for:

(i) the determination of the SWCFB on 22 February 1991 concerning special cases did not seek to embrace the TAFE Award. Clearly the referral of the TAFE Award stands alone. In that context I do not see it necessary to make a recommendation to the President to refer this matter to the SWCFB or indeed to any other Full Bench.

With regard to the SWCFB, that Bench is considering among other things"occupational stream" matters. The principal "occupational stream" issues do not impinge on the TAFE Award. I have already indicated, in respect of non teaching classifications in the TAFE award that they will be held over pending the conclusion of the SWCFB proceedings.

(ii) I do not see how the TAFE Award proceedings could in some way be regarded as "pace setting" for the Teaching Service (Teaching Staff) Award. The Special Case issues in the TAFE Award are and will continue to be processed in accordance with the State Wage Fixing Principles.

(iii) On the issue of national benchmark I remind the parties that the Special Case in the TAFE award, as in the Teaching Service (Teaching Staff) Award, is being processed having particular regard to the Work Value Principle. The application of that Principle in the form that it is enshrined in the State Wage Fixing Principles will ensure consistency of approach.

In my opinion nothing has been put in the TAFE award proceedings which could be construed as comparative wage justice. To the contrary the Society and indeed the Minister have assured the Commission that what has been accomplished thus far in the award is consistent with the Structural Efficiency Principle.

(iv) The arguable case finding for a Special Case in the TAFE award is in the process of being tested. In that context, benchmark rates of pay to one side, I consider that the proceedings are at a significant stage where the parties have been directed by the Commission to clarify their respective positions of disagreement. These positions will be the "launching pad" for the next phase in the determination of the Special Case in the TAFE award.

Whilst it may therefore be argued that the matters before the Commission have not been substantially part heard, I am reluctant to endorse that view because it may be considered that what has happened in the proceedings thus far is not important to the resolution of this case. Clearly that is not so. The background to the Second Structural Efficiency adjustment and subsequent developments are all interlinked and in that regard I consider that the momentum that has been established in this matter should not now be disrupted.

(v) There is no doubt in my opinion that if the TAFE award was to be referred to a Full Bench following a reference from me to the President, it would take some time for that Full Bench to achieve the momentum that the proceedings currently have.

In balancing the competing submissions in this matter I also have to have regard to the determined approach of the Society for this matter to continue before the Commission. That determination is supported by logic in that right up to now the Society has not been involved in any en masse discussions in determining positions as required of the parties in the SWCFB. I recognise that the President, may if I referred this matter to him, and if he was so persuaded, refer it to a fresh Full Bench. Either way the Society in the context of the ensuing proceedings would most likely have to traverse ground already covered.

In all of the circumstances and having regard to what I have identified in the foregoing reasons for my decision I do not intend to refer this matter in accordance with Section 24(4) of the Act.

In deciding in that way I do not consider that the public interest will be compromised. Mr McCabe argued that having regard to costs or potential cost of national benchmark rates of pay, an issue which still has to be determined, that it would be in the public interest for that issue to be dealt with by a Full Bench.

Whilst I have a thorough understanding of the basis of that submission, it should be reiterated that every decision of the Commission has to have regard for public interest.

Indeed, having regard to my decision in this matter, I anticipate at some stage in the proceedings that comprehensive submissions on public interest will be made by the parties.

R K Gozzi
COMMISSIONER

Appearances:
Mr J McCabe for the Minister Administering the Tasmanian State Service Act 1984 with Miss J Taylor from the Department of Employment and Industrial Relations and Training.
Mr D Holden with Mr M Brough for the Tasmanian Technical Colleges Staff Society.
Mr C Smyth for the Tasmanian Public Service Association.

Date and Place of Hearing:
1991
Hobart
May 22

1  T2399, T2469, T2471, T2475, T2480, T2508, T2511, T2586 and T205 of 1990