Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T3152

 

TASMANIAN INDUSTRIAL COMMISSION

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

Tasmanian Public Service Association
(T.3152 of 1991)

and

Minister Administering the Tasmanian State Service Act 1984

 

DEPUTY PRESIDENT A. ROBINSON

HOBART, 16 August 1991

Coxswain's Certificate Allowance

REASONS FOR DECISION

This matter concerns a dispute notification by the Tasmanian Public Service Association expressed in the following terms:

"The Inland Fisheries Commission has refused to pay its Inspectors the Coxswain's Certificate Allowance in accordance with Clause 8A of the General Conditions of Service Award. In support of this decision it has claimed that the Inspectors are required as a normal part of their duties to hold the prescribed certificate. The PSA claims that this reasoning is not in accordance with the conditions specified in the award which in some instances exclude the payment of the allowance. Accordingly, the allowance should be paid to the Inspectors."

A preliminary hearing was held on 22 July 1991 and then adjourned until 30 July.

Arguments put during the course of the hearing went to both the question of interpretation of the Inland Fisheries Commission Staff Award and the General Conditions of Service Award and the question of merit.

The Act provides in Section 31 that, inter alia:

"31 - (1) Subject to this section, where the Commissioner presiding at a hearing under section 29 or a conference under section 30 is of the opinion, after affording the parties at the hearing or conference a reasonable opportunity to make any relevant submissions and considering the views expressed at the hearing or conference, that anything should be required to be taken, for the purpose of preventing or settling the industrial dispute in respect of which the hearing or conference was convened, that Commissioner may, by order in writing, direct that that thing is to be done or that action is to be taken.

      (2)  A Commissioner shall not make an order under this section -

    (a) that is inconsistent with the provisions of any Act dealing with the same subject-matter; or

    (b) that makes an award or that varies or creates a provision of an award.

      (3) Notwithstanding subsection (2)(b), a Commissioner may make an order requiring that an application be made under section 23 or 43."

Section 43 of the Act provides that, inter alia:

"43 - (1) At any time while an award is in force, the President may, on the application of the Secretary or an organisation with members subject to the award -

    (a) declare, retrospectively or prospectively, how the award should be interpreted; and

    (b) where the declaration made pursuant to paragraph (a) so requires, by order, vary any provision of the award for the purpose of remedying any defect in it or of giving full effect to it."

It is clear that given the failure of the conciliatory process to produce a resolution to the present dispute the remedies available to the Commission as presently constituted are very much circumscribed.

I now note that the TPSA has subsequently lodged a further application pursuant to Section 23 of the Act to vary the Inland Fisheries Commission Staff Award to include provisions in relation to the Coxswain's Certificate Allowance.

In the circumstances it would be inappropriate for me to comment upon the issues which will be subject to further proceedings differently constituted.

This file is therefore closed.

 

A. Robinson
DEPUTY PRESIDENT

Appearances:
Mr C. Smyth for the Tasmanian Public Service Association.
Mr J. McCabe for the Minister administering the Tasmanian State Service Act 1984.

Date and Place of Hearing:
1991:
Hobart
July 22, 30