T2707 and T2809
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Hospital Employees' Federation of Australia Tasmanian Confederation of Industries DENTISTS AWARD
Wage Rates - State Wage November 1989 - Structural Efficiency Principle - Second Stage - Application Granted - Operative from F.F.P.P. 21 May 1991 REASONS FOR DECISION Applications T.2707 and T.2809 of 1990 were made by the Hospital Employees' Federation of Australia, Tasmania Branch, (the Union) and the Tasmanian Confederation of Industries (TCI) respectively to vary the Dentists Award to reflect the second structural efficiency increase. At the commencement of the hearing on the 15 May, 1990, I received a report from the parties relating to the discussions that had taken place following the hearing on 24 January 1990. I gleaned from the report that very little progress had been made. This lack of progress gave rise to the TCI placing the following claim before the Commission for arbitration: 1. Increase rates of pay in clause 8 in accordance with the second stage structural efficiency payment. 2. Insert the following new clause in clause 13 - Holidays with Pay: (e) by agreement between an employer and employee an alternative day may be substituted for a prescribed holiday. 3. Delete clause 14 and insert the following:
4. Insert the following new subclause in clause 16 - Overtime:
Prior to committing to an agreement, an employee may consult with the union. 5. Delete subclauses a (ii) and (iv) of clause 20 - Sick Leave and substitute the following: (ii) the employee shall as soon as possible and where practicable within one hour of the commencement of the employee's normal working day, inform the employer of his inability to attend for work, and as far as practicable, state the nature of the illness or injury and the estimated duration of the absence; (iv) the employee shall not be entitled in any year to sick leave in excess of seventy six hours of ordinary working time. Provided that during the first three months of employment, sick leave shall accrue on the basis of 6.33 hours for each completed calendar month of service with the employer. 6. Delete subclause a (v) in clause 20 - Sick Leave. Before proceeding to arbitration on any of the abovementioned issues I allowed a short adjournment for the Union and the TCI to further discuss the contents of the claim in an endeavour to ascertain whether or not there were any areas of agreement. When the hearing resumed I was informed by the Union that agreement had been reached on item numbers 1, 2, 4 and 5 (ii) of the TCI's claim. That left items 3, 5 (iv) and 6 to be arbitrated. The Structural Efficiency Principle states:
As can be seen from that Principle the overriding thrust is to provide an opportunity for a fundamental review of the award and to implement measures to improve the efficiency of the industry and to provide workers with access to more varied, fulfilling and better paid jobs. In my view very little attention has been given to the fundamental philosophy underpinning that Principle prior to this hearing. The submissions presented by the employer do, in my view, only relate one part of that Principle which to the uninitiated could be seen as no more than offsets similar to that required for the 4% second tier increase. On the other hand there has been no initiative taken by the Union to present a structural efficiency package to the employers for their perusal nor the Commission during the course of this hearing. It seems to me from the submissions presented that the TCI felt frustrated whilst trying to negotiate a structural efficiency package in all its facets and were of the opinion that they were left with no other alternative but to proceed with an application to try and enhance flexibility by varying certain award clauses. My task in this matter is to determine whether or not employees covered by this award should receive the second structural efficiency increase based on:
Turning now to the questions to be arbitrated i.e. Hours of Work and phasing in of sick leave entitlement in the first 3 months of employment. The TCI argued that the Hours of Work clause was consistent with the Principles as it provided for greater flexibility and they bought two witnesses in an endeavour to establish the need for greater flexibility in this area. The current award prescription for Hours of Work has a different span of hours for work carried out in Hobart as opposed to elsewhere in the State. It also provides that in places other than Hobart the span of ordinary hours includes up until noon on Saturdays. I endorse the prescription presented by the TCI in this matter for the following reasons:
The second part of this arbitration is to determine whether Clause 20 - Sick Leave should be varied to enable new employees to receive or accrue sick leave during the first three months of employment on the basis of 6.33 hours for each completed calendar month of service with the employer. Mr Abey for the TCI submitted that this provision was common to a number of State awards and tendered as an exhibit a decision of a Full Bench of this Commission1 which arbitrated such a clause. The HEF presented minimum rebuttal whilst maintaining that employees should be entitled to the full quantum of sick leave on the day an employee commences employment. In relation to this aspect of the claim I am prepared to grant the application of the TCI and in that respect I support the decision of the Full Bench of the Commission2 where it stated
Having determined these outstanding issues to form part of the second structural efficiency increase I would, nevertheless, express concern that these issues alone would, in my view, be insufficient to warrant the second structural efficiency increase. However, given the submission of the parties that they are prepared to further consider issues such as career paths and training and report back to the Commission in September of this year, I am prepared, with some hesitation, to award the second structural efficiency increase. The award will be varied to contain the agreed and arbitrated award variations. The order giving effect to this decision is attached. I am going to re-list this matter for hearing on 3 September 1991 at which time I would expect the parties to further address me on the question of:
The operative date of this decision will be from the first full pay period on or after 21 May 1991.
R J Watling Appearances: Date and Place of Hearing: 1 T.1165, T.1185, T.1279, T.1223, T.1283, T.1243 of 1988 |