T3218 - 4 September
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Tasmanian Public Service Association and Minister administering the Tasmanian State Service Act 1984
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
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 TPSA argued that the allowance concerned should be paid for a number of reasons including, inter alia:
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:
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 Appearances: Date and Place of Hearing: |