TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Health Services Union of Australia
Tasmania No. 1 Branch
(T.3147 of 1991)

Tasmanian Public Service Association
(T.3148 of 1991)

and

Minister Administering the Tasmanian State Service Act 1984

Industrial dispute - leave calculations for shiftworkers

REASONS FOR DECISION

This dispute is essentially about calculating the rates of pay for shiftworkers when proceeding on leave.

On 29 May 1991, the following, Department of Health, Corporate Services, Management Circular was issued. It states:

"In 1990 the Department raised with unions a proposal to amend the current method used to calculate shift workers' annual leave entitlements. Meetings between union officials and Departmental representatives in March and April of this year included discussion on the same subject as a method for easing Departmental budgetary pressures.

The Department has written to the unions (TPSA, HSU and ANF) seeking comment or counter proposals on a range of issues including the proposal to amend the method in which shift workers' annual leave entitlements are paid. As the annual leave issue is no closer to resolution than it was some 12 months ago, the Department has no alternative but to address the problem administratively.

The Department has been aware for some time that shiftworkers have been receiving overaward payments when proceeding on annual leave. The award provides annual leave entitlements of five weeks or thirty five consecutive days for shiftworkers. The annual leave entitlement is supplemented through the addition of 12.5 days per annum which are granted to shiftworkers in lieu of penalty rate payments for work performed on public holidays or when public holidays fall on rostered days off.

For some time now shiftworkers have received projected shift roster payments for the whole 51.5 consecutive days (35 consecutive days, plus 12.5 days in lieu of public holidays, plus 4 rostered days off) leave per annum available when the awards state that projected shift roster penalties should only apply to the annual leave entitlement of 35 consecutive days.

The Government can no longer afford these overaward payments when substantial wage increases will be paid to nurses during 1991, and when other increases may flow to hospital employees as a result of award restructuring and special case applications before the Tasmanian Industrial Commission.

The Department has determined that as from the date of this circular shiftworkers will receive payment for leave entitlements as per award provision, to be calculated in the following manner:-

(i) In addition to their five weeks or 35 consecutive days annual leave payment at ordinary rates shiftworkers will receive an amount of 17 1/2% in the form of a loading, or payment at projected shift roster rates for the annual leave period, whichever is the greater.

(ii) Days that are granted to shiftworkers in lieu of public holidays (12.5 per annum) and added to the annual leave entitlement are to be paid at the ordinary rate.

In conjunction with point (ii) above public holidays worked are to be paid at the ordinary rate.

Any application for annual leave approved prior to the date of this circular shall be paid as per projected shift roster for the full 51.5 days period.

The awards covered by the provisions of this circular are as follows:

Nurses (Tasmanian Public Sector) Award
Hospital Employees (Public Hospitals) Award
General Conditions of Service Award."

In response to that Circular, the Health Services Union of Australia Tasmania No. 1 Branch (HSU) and the Tasmanian Public Service Association (TPSA) made application pursuant to section 29 of the Industrial Relations Act 1984 (the Act) for a hearing to settle the dispute between the applicants and the Minister Administering the Tasmanian State Service Act 1984 (MATSSA) arising out of the issuing of the Circular.

The unions requested the Commission to order the MATSSA to withdraw the Circular whilst at the same time requesting me not to enter the merit of the issue itself. Nevertheless, in support of this request to issue an Order, the unions' main submissions can be summarised as follows:

(1) that shiftworkers under the Hospital Employees' (Public Hospitals) Award would be deprived of significant amounts of money when proceeding on leave;

(2) the actions taken by the employer denies an award provision and hence contravenes the award;

(3) if, as the employer suggests, the amount of money was an overaward payment, then they had no legal power to remove it;

(4) the actions of the employer was contrary to the Tasmanian State Service Act 1984 and the Industrial Relations Act 1984;

(5) as there is currently an application before the Commission (T.2659 of 1990) dealing with the same subject matter the employer should not alter employees conditions of employment.

On the other hand, Mr Jarman representing the MATSSA stated that:

(1) a review of certain employment conditions and in particular the method for calculating leave payments for shiftworkers was necessary because of the present level of costs incurred in the delivery of health services throughout the State.

(2) the reduction in leave payments for shiftworkers did not constitute a breach of award entitlements as the amount being withdrawn was an over award payment.

(3) the unions were given an opportunity to negotiate the issue with the Department of Health, and they were informed that their refusal to do so would leave no alternative other than to remove the overaward payments administratively.

(4) the previous method of calculating leave payments contained an element of double counting which cost the Government $1.8 million per annum and of this amount two thirds could be attributed to over award payments to nurses.

My role in the resolution of this matter is restricted as it is not possible for me to arbitrate the main issues in dispute because of limitations of the Act and the section under which these applications have been lodged with the Commission. A hearing pursuant to section 29 of the Act does not permit me to either make a finding on a breach of the award or declare how the offending clauses should be interpreted.

Simply put, the unions' primary position is that the employer is in breach of the award, however, the employer is of the opinion that the award is being observed and the action he has taken is to withdraw certain overaward payments.

That being the case I present three options which may assist the parties to resolve the issue in dispute.

The first is:

Either the unions and/or the employer make application pursuant to section 43 of the Act seeking an official interpretation of the Hospital Employees' (Public Hospitals) Award. The purpose of this would be to ascertain whether or not it is open to read the award in such a way that would see shift workers being paid at ordinary time rate of pay for the disputed 16.5 consecutive days when proceeding on leave.

Second:

If the unions are of the opinion (and from the strength of their submissions they are) that the employer is in breach of the Industrial Relations Act 1984, Tasmanian State Service Act 1984 and the award, then they do have recourse to have this matter tested in a court of competent jurisdiction.

Third:

There is currently an application before the Commission (T.2659 of 1990) made by the agent for the MATSSA. That application seeks to amend the Hospital Employees' (Public Hospitals) Award by inserting a number of new clauses therein to clarify, and put beyond doubt, (a) the method of applying payments to shift workers for work on public holidays and (b) payments as per projected shift rosters for leave accrued. This is a ready made avenue to have the issue in dispute tested on merit.

If requested by the MATSSA or his agent, application T.2659 of 1990 could be reconvened to hear all parties and interveners on that application.

I would strongly recommend to the parties that they adopt one or more of the previously mentioned options, which, at the very least, would resolve a number of aspects of this dispute in a sensible and rational manner.

I am not prepared to issue an Order on the employer as requested by the unions given the fact that I am not able to deal with the merit of the matter in dispute.

R J Watling
COMMISSIONER

Appearances:
Mr D Rees with Ms G Crotty for the Health Services Union of Australia Tasmania No. 1 Branch.
Mr P Mazengarb with Mr P Aitken for the Tasmanian Public Service Association.
Mr M Jarman with Mr M Watson for the Minister Administering the Tasmanian State Service Act 1984.

Date and place of hearing:
1991
July 25
Hobart