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Tasmanian Industrial Commission
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T2707 and T2809



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

Hospital Employees' Federation of Australia
Tasmania Branch

(T.2707 of 1990)

Tasmanian Confederation of Industries
(T.2809 of 1990)




21 May 1991

Wage Rates - State Wage November 1989 - Structural Efficiency Principle - Second Stage - Application Granted - Operative from F.F.P.P. 21 May 1991


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:

14. Hours of Work

(a) The ordinary hours of work shall be an average of 38 per week to be worked on one of the following bases:

    (i)  38 hours within a work cycle not exceeding seven consecutive days; or

    (ii) 76 hours within a work cycle not exceeding fourteen consecutive days; or

    (iii) 114 hours within a work cycle not exceeding twenty-one consecutive days; or

    (iv) 152 hours within a work cycle not exceeding twenty-eight consecutive days.

(b) The ordinary hours of work prescribed herein may be worked Monday to Friday between the hours of 7.30 a.m. and 9.00 p.m. and Saturday between the hours of 8.30 a.m. to 12 noon.

(c) Ordinary working hours may be extended beyond 8 hours but not so as to exceed 10 hours on any day, Monday to Friday.

(d) In any arrangement of ordinary hours where the ordinary working hours are to exceed eight on any day, the arrangement of hours shall be subject to agreement between an employer and the majority of employees affected.

(e) For all work performed as part of ordinary hours between 6.30 p.m. and 9.00 p.m. Monday to Friday, payment shall be made at the rate of time and one quarter.

4.  Insert the following new subclause in clause 16 - Overtime:

(e) By agreement between an employer and employee, an employee may take time off in lieu of overtime at the penalty equivalent.

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:

"Structural efficiency adjustments allowable under the National Wage Case decision of 7 August 1989 will be justified in accordance with this principle if the Commission is satisfied that the parties to an award have co-operated positively in a fundamental review of that award and are implementing measures to improve the efficiency of industry and provide workers with access to more varied, fulfilling and better paid jobs. The measures to be considered should include but not be limited to:

  • establishing skill-related career paths which provide an incentive for workers to continue to participate in skill formation;

  • eliminating impediments to multi-skilling and broadening the range of tasks which a worker may be required to perform;

  • creating appropriate relativities between different categories of workers within the award and at enterprise level;

  • ensuring that working patterns and arrangements enhance flexibility and the efficiency of the industry;

  • including properly fixed minimum rates for classifications in awards, related appropriately to one another, with any amounts in excess of those properly fixed minimum rates being expressed as supplementary payments;

  • updating and/or rationalising the list of respondents to awards; and

  • addressing any cases where award provisions discriminate against section of the workforce.

Structural efficiency exercises should incorporate all past work value considerations."

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:

(a) the submissions presented, and

(b) what could be described as a very loose ongoing programme to review job classifications and employee education and training.

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:

1.  I see no valid reason in this day and age for having a different span of hours for employees working in Hobart in this industry compared to other areas of the State:

2. The clause provided for greater flexibility for hours of work and is consistent for the whole industry: and,

3. Very little or no evidence was presented by the Union which would have me do something other than adopt the clause proposed by the TCI.

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

" we have arrived at this conclusion because it is not unreasonable that an employee should be required to have a small equity, in terms of service, with the employer before he/she is eligible to take the full quantum of sick leave ".

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:

(a) the establishment of skill related career paths;

(b) the elimination of impediments to multi-skilling;

(c) the creation of appropriate relativities between different categories of employees; and

(d) other appropriate matters associated with the Structural Efficiency Principle.

The operative date of this decision will be from the first full pay period on or after 21 May 1991.


R J Watling

Ms G Crotty and Mr D McLane for the Hospital Employees' Federation of Australia, Tasmania Branch.
Mr S Clues and Mr T Abey with Drs. T Canning, G Ford and J Allan for the Tasmanian Confederation of Industries.

Date and Place of Hearing:
January 24
May 15

1 T.1165, T.1185, T.1279, T.1223, T.1283, T.1243 of 1988
2 Ibid