T3200
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Tasmanian Public Service Association INLAND FISHERIES COMMISSION STAFF AWARD
Coxswain's Certificate Allowance REASONS FOR DECISION This matter concerns an application by The Tasmanian Public Service Association (TPSA) to vary the Inland Fisheries Commission Staff Award to include a new provision in relation to the payment of a "Coxswain's Certificate Allowance". The matter is one of long standing but first came to the Commission as presently constituted by way of a Section 29 dispute hearing4 on 22 and 30 July 1991. No relief could be provided through that mechanism because of the limitations imposed by the Act in relation to consideration of interpretative matters (Section 43) or matters having the same effect as the making or variation of an award (Section 31). Mr Smyth for the TPSA put forward a number of points of argument, all of which I have considered. I have also carefully considered the counter arguments advanced by Mr McCabe representing the Minister and opposing the application of the TPSA. Among the more salient features which have given rise to this claim are that: 1. There was a meeting between representatives of the Inland Fisheries Commission; the Office of the Industrial Relations, and the TPSA on 11 August 1987 concerning a number of issues, including the subject of "Coxswain's Allowance". Following that meeting a newsletter was prepared by the TPSA over the name of the then secretary, Mr A.H. Evans, and circulated. At page 2 of that newsletter the following is to be found:
2. No other record of the outcome of the meeting of 11 August 1987 can be found, and the controlling authority can neither confirm nor deny the assertion of the TPSA that such an understanding, as has been reported, was in fact reached at the relevant time. 3. The dispute as to whether or not Inspectors employed by the Inland Fisheries Commission qualify for the payment of the Coxswain's Allowance nevertheless lingered on and the TPSA eventually lodged a Section 29 dispute application5 on 10 June 1988. This was followed by a separate application on 8 July 19886 to vary the award. 4. Neither of those earlier applications were made subject of a hearing and both files were closed by the former Commission President shortly before he retired at the end of 1989. 5. The TPSA argue that the Coxswain's Certificate Allowance is not already comprehended within the wage rates fixed for Fisheries Inspectors employed by the Inland Fisheries Commission. Salary comparisons were made between those applicable to Fisheries Inspectors and some other State service employees who are currently in receipt of the Coxswain's Certificate Allowance. 6. Reliance was placed upon the criteria of equity and fairness. 7. Other categories of State servants receive the allowance if they use boats from time to time. 8. Inspectors are required to have the certificate for reasons of insurance, as well as for safety. 9. The Inland Fisheries Commission Staff Award is deficient in some respects when dealing with the questions of allowances. For instance Clause 12 makes no mention of either "First Aid Allowance" or "Coxswain's Certificate Allowance". 10. The allowance claimed is allowable by the Wage Fixation Principles. 11. The controlling authority is not totally opposed to payment of the claim if it can be justified on merit. 12. However the fact that the allowance is not mentioned in the Inland Fisheries Commission Staff Award supports the conclusion that the allowance is comprehended in the wage rate. 13. The General Conditions of Service Award makes it clear that the Coxswain's Certificate Allowance provision applies only to occasional users of boats. 14. The handling of boats is fundamental to the duties of Inland Fisheries Inspectors on a regular basis. Decision There are a number of competing arguments, which if supportable by evidence would decide the present claim. However, the Commission as constituted could not be supplied with clear unequivocal supporting material. Of fundamental importance is the question as to whether or not the award-maker comprehended that, as a matter of course, boat handling is inimitable to the classification of Inspector and therefore included this skill in his assessment of the wage rate. Because the work concerned unquestionably involves use of boats there must be a strong inference that the rate of wage would ordinarily comprehend each and every facet of the work. And this inference is supported by the fact that while the Inland Fisheries Commission Staff Award makes reference to a list of other allowances which are to apply, it makes no reference to the Coxswain's Certificate Allowance. Conversely the list in this award, which refers to the General Conditions of Service Award, does not appear to be as complete as it may be because it makes no reference to (for instance) "First Aid Certificate Allowance". Notwithstanding these persuasive factors the TPSA claim deserves prima facie recognition based upon:
In my view the General Conditions of Service Award provision in relation to payment of the Coxswain's Certificate Allowance would appear to be intended to apply to occasional users of boats and not more regular users. The wording is as follows:
It follows that notwithstanding the fact that, "prima facie", there appears to be an anomalous situation, vis-a-vis certain other award provisions, the only proper solution to the problem depends upon a comprehensive work value assessment of the wage rate applicable to Inland Fisheries Staff Inspectors, and not reliance upon an inappropriate allowance. I find it regrettable that, given the long history of this particular matter, its resolution should again be delayed at this time. Nevertheless there is a Full Bench presently constituted which is considering wage relativities for a wide range of State Service positions in accordance with the structural efficiency principle and as special cases. It is therefore proper and appropriate in my view that I should utilise the provisions of Section 24(4) of the Act and refer this application to the President in order that he may determine whether or not it should be referred to a Full Bench. For these reasons I decline to decide the claim.
A. Robinson Appearances: Date and Place of Hearing: |