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T3218 - 4 September

 

TASMANIAN INDUSTRIAL COMMISSION

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

The Tasmanian Public Service Association
(T.3218 of 1991)

and

Minister administering the Tasmanian State Service Act 1984

 

DEPUTY PRESIDENT A. ROBINSON

HOBART, 4 September 1991

Payment of District Allowance

REASONS FOR DECISION

This matter concerns an application by The Tasmanian Public Service Association (TPSA) for a conference to settle an industrial dispute in relation to the refusal of the Department of Primary Industry to pay an employee the "District Allowance" which is contained in Clause 8, "Allowances" of the General Conditions of Service Award.

The relevant part of Clause 8 provides as follows:

    "2.  District Allowance

    2.1  The purpose of this General Allowance is to compensate for excess costs necessarily incurred by an employee living in an 'isolated area' and without limiting the foregoing includes partial reimbursement for STD, freight, fuel and depreciation costs.

    2.2  Where a person is stationed permanently in one or other of the following districts he may, on the determination of the controlling authority, be paid an allowance in accordance with the following rates:

       (a)  Category R                                        Rate per Annum
                                                                            $

Remote locaations approved as
such by the Tasmanian Industrial
Commission including Bass Strait
Islands, Maria Island and Bruny
Island:

(i)  Person with dependent
relatives residing with him                       2190

(ii)  Other (no dependants)                     1093"

The facts are not in dispute. Mrs K.S. Beeton was appointed as a temporary clerical officer on 23 October 1989, and has been located at the Whitemark, Flinders Island office of the Department of Primary Industry at all times since her appointment.

Flinders Island is a "Bass Strait Island" in terms of the award prescription.

Despite repeated representations by the TPSA over the past 15 months on behalf of its member the Department of Primary Industry has continued to refuse payment of the "District Allowance" to Mrs Beeton. This refusal is based upon the following:

  • The application of Clause 8.2.2 of the General Conditions of Service Award is subject to the discretion of the Secretary and it is not policy to pay the allowance to "temporary" employees.

  • "Temporary" employees cannot be "stationed permanently".

  • Persons who are appointed by the Department to temporary positions situated on Flinders (and King) Island are invariably recruited from the local community. Accordingly there can be no "excess costs necessarily incurred". STD, freight and fuel costs do not rise, nor does property depreciate as a result of such appointments.

  • Whereas recipients of the District Allowance are required to be permanently stationed, Mrs Beeton is not.

The TPSA argued that the allowance concerned should be paid for a number of reasons including, inter alia:

  • The allowance is payable under the award to persons employed on Bass Strait Island because of the additional costs associated with living in an isolated area.

  • The award clause refers to persons "stationed permanently", and not permanent employees.

  • The allowance applies to persons "living in an isolated area.

  • Because of the provisions of the State Service Act no officer, permanent or otherwise, is stationed permanently because there is an ability for the employer to transfer people in accordance with the State Service Act.

  • Other State Servants, not being permanent employees have been in the past, and are currently paid the District Allowance for living on Bass Strait Islands.

Decision

In my view the wording of Clause 8 of the General Conditions of Service Award contains expressions which are anachronistic and are in need of urgent review.

It is ludicrous for an award such as this to contain an important provision relating to the payment of a significant allowance to certain employees "on the determination of the controlling authority". Such type of expression is a carry-over from the pre-Industrial Commission times when the Public Service Board was both the employer and the wage and conditions fixing authority for the Public Service. That most unsatisfactory system was abolished over six years ago by legislation.

This Commission has the responsibility of determining award rights and obligations of employees and employers and it cannot delegate that responsibility to any single interested party to determine industrial matters.

The role of the Department of Primary Industry, acting as controlling authority, is completely different to the role of this Commission and it can hardly be objective in deciding such issues. This may be explained in its reasons for recruiting local residents of Bass Strait Islands and adopting a policy of not paying the District Allowance to "temporary" employees, even when they have been employed for a considerable period of time.

The Department of Primary Industry relies upon the wording of Clause 8.2.1 of the award to justify its position and in correspondence to the TPSA of 3 July 1990, said that there can be no "excess costs necessarily incurred" by an employee and posed the rhetorical question: "In excess of what?"

I have not the slightest doubt that the "District Allowance" is for living in the district concerned. And living in such district (i.e. Bass Strait Islands) is more expensive than living in other areas of Tasmania which are not so isolated. The award clause even nominates some such extra costs as are necessarily incurred by way of example.

The award then specifies different rates of allowance for persons either with or without dependent relatives living with the employee.

The allowance then forms part of an employee's rate of wage.

In my view the controlling authority has fallen into error in interpreting the award and is manifestly wrong in concluding that employees stationed at Flinders Island should not be entitled to be paid the "District Allowance" on the basis that they are classified as "temporary".

I find also that the employer concerned in this matter has misused a perceived discretion to refuse a payment contained in an award and in doing so has acted harshly and unfairly to its servant.

And as earlier stated I do not believe that the function of determining industrial matters which is given to this Commission by the Industrial

Relations Act 1984 can be transferred to a controlling authority.

Accordingly I decide that in settlement of this particular dispute:

1.  Mrs K.S. Beeton be paid the District Allowance prescribed in Clause 8 of the General Conditions of Service Award from the date of her appointment to a position located on Flinders Island in Bass Strait on 23 October 1989.

2.  That the Tasmanian Public Service Association make immediate application to vary the said award clause to:

(a) Delete the word "permanently" from Clause 8.2.2; and

(b) Delete the words "may, on the determination of the controlling authority" and substitute the word "shall" in Clause 8.2.2.

The file will remain open until such time as I am satisfied that the terms of settlement imposed upon both organisations have been fully met.

 

A. Robinson
DEPUTY PRESIDENT

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

Date and Place of Hearing:
1991:
Hobart
August 23