T3175
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Technical Colleges Staff Society and Minister administering the Tasmanian State Service Act 1984
Industrial dispute - reclassification of TAFE College Principal REASONS FOR STATEMENT In this matter the Tasmanian Technical Colleges Staff Society (the Society) made application to the Commission in respect of an industrial dispute with the Minister administering the Tasmanian State Service Act (the Minister). The dispute was notified by the Society in the following terms:
When the matter was last before me I directed the parties into conference to resolve the issues in question. I requested to be advised of the outcome of those negotiations with the view of setting down a further hearing date in the event the matter had not been settled. To date I have not been advised and accordingly this file is still open. Therefore in order to provide some guidance to the parties I have decided to issue this Statement. At commencement of proceedings Mr McCabe for the Minister raised a threshold issue which went to the jurisdiction of the Commission to settle the dispute. Mr McCabe said:
Mr McCabe submitted that the subject matter of the dispute related to the making of appointments and that this was not an industrial matter pursuant to Section 3(1)(i) of the Industrial Relations Act 1984. This section of the Act provides that an industrial matter does not include a matter relating to:
In that context Mr McCabe indicated that the dispute related to the decision of the Secretary of the Department of Employment, Industrial Relations and Training (the Department) to appoint persons to positions within the Department. I was informed that four new Director positions for each of the TAFE colleges had been created and that the appointments would be made pursuant to Clause 5 of the Senior Executive Service Interim Industrial Agreement22. That clause provides that:
Mr Holden appearing for the Society submitted that the dispute before the Commission was an industrial matter because it affected the relations between the employer (the Minister) and employees. The principal thrust of the submissions made by Mr Holden were that the Minister is seeking to change the conditions of employment for Principals; positions which are subject to the Technical and Further Education Staff Award. In that context Mr Holden informed the Commission that the Society was notified in writing (Exhibit H1) by the Department that TAFE Principals would be placed in the Senior Executive Service. This was confirmed by Mr Vines appearing for the Tasmanian Public Service Association (the Association) who also referred the Commission to correspondence from the Department addressed to the President of the Society (Exhibit V1) which stated, inter alia:
and later:
Having regard to the foregoing issues it is appropriate that the Commission makes it clear that it does not intend to cut across or interfere with the statutory rights of the Minister or those derived by the Secretary of the Department from the Tasmanian State Service Act 1984. However that is not to say that the Commission should not intervene where the processes invoked under that Act impinge on award issues. In my opinion in matters such as the kind subject to this dispute the focus should be on good industrial relations practice to facilitate the resolution of the problems which can arise when there is interface between what may properly be undertaken in accordance with the Tasmanian State Service Act and award matters. In this instant case the dispute arises because the new Director positions will, in reality, render the Principal classifications in the award if not redundant then at least ineffective. In those circumstances there unquestionably will be an impact on the mode, terms and conditions of employment of those employees designated Principal. In acknowledging this to be the case Mr McCabe said:
In the circumstances to endeavour to prevent the Society, a party and person bound to the award in the same way that the Minister is, from having its concerns dealt with in respect to the impact on the award, on the basis that the matter is excluded from the definition of industrial matter, is in my opinion diverting the focus from the orderly conduct of industrial relations. In any event, and on reflection of the issue in question in this matter, I consider the exclusion of "appointments and promotions" from the definition of industrial matter to go directly to the issues concerning the individual that may or may not be appointed or promoted. Clearly the Commission could not intervene in those circumstances unless the matter related to the qualifications required for advancement. But that is not the issue in dispute. In this matter the TAFE Award classification structure as it applies to the classification of Principal is proposed not to have any further application. In that regard the concerns raised by the Society that the creation of the new Director positions would result in a de facto deletion of the Principal classification from the award is valid. There are statutory award variation processes set out in the Industrial Relations Act 1984 that should be followed. Those processes provide, inter alia, for all of the parties to the award to be heard. It should also be noted, as the Society correctly pointed out, that it has been involved with the Department in structural efficiency negotiations involving this Commission. The action undertaken by the Department appears to have unilaterally cut across those negotiations. In all of the circumstances and in an endeavour to facilitate the resolution of this dispute I am of the opinion that good industrial relations practice would require a review of the processes adopted by the Department in this matter.
R.K. Gozzi Appearances: Date and Place of Hearing: |