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T3930

 

TASMANIAN INDUSTRIAL COMMISSION

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

Tasmanian Teachers Federation
(T.3930 of 1992)

and

The Minister Administering the Tasmanian State Service Act 1984

 

DEPUTY PRESIDENT A ROBINSON

HOBART 13 January 1993

Industrial dispute - refusal to pay recreation leave loading to an employee

REASONS FOR DECISION

This matter concerns an application by the Tasmanian Teachers Federation (the Federation) for a hearing to settle an industrial dispute pursuant to Section 29 of the Industrial Relations Act 1984.

The dispute was with the Minister Administering the Tasmanian State Service Act and concerned the alleged refusal of the Department of Education and the Arts to pay recreation leave loading in December 1991, to a Miss J E Littlejohn who was employed as a full time temporary teacher since February 1990. During her first two years of employment she was located at Ravenswood High School and during 1992 was at Exeter High School.

Sworn evidence was given by Miss Littlejohn that at the conclusion of the 1990 school year she was paid a recreational leave loading in the same way as applied to all other teachers at that time.

She testified that her status had not altered during the following year at Ravenswood. However at the end of that school year, i.e. December 1991, much to her surprise she did not receive any payment in respect of recreation leave loading, notwithstanding the fact that other temporary teachers received the payment.

Miss Littlejohn said that of the other temporary teachers who received the recreation leave loading at the end of 1991 some were transferred to other schools the following year.

It was alleged by Miss Littlejohn that her District Superintendent had indicated to her at the relevant time that she would have a job in the same district for the following year, although there was some uncertainty as to the name of her new school.

When it was first noticed by Miss Littlejohn that her last payment did not include an amount for the loading she arranged for the Bursar to contact the Department's personnel section in this regard. According to her evidence Miss Littlejohn was then told that she would receive the amount concerned in early January 1992.

Notwithstanding these assurances the loading was not included in the first pay received in the new year. And when Miss Littlejohn then personally contacted the appropriate section of the Department the same day she was told she would receive the loading the following pay day. However payment was never received and the matter was then placed in the hands of the Federation.

In the result the failure of the Department to pay the anticipated allowance created some financial inconvenience, if not concerns, for Miss Littlejohn.

In his primary submission Mr Philp said he was authorised by the Federation to offer the withdrawal of an earlier application to vary the award1 if the present matter was settled on the basis of acceptance of certain "new evidence" relating to recreation leave loading for temporary teachers.

However if this was unacceptable the Federation sought from the Commission the making of an Order for payment of the recreation leave loading to Miss Littlejohn pursuant to Section 31 of the Industrial Relations Act 1984.

The Federation's case for payment to Miss Littlejohn was predicated primarily upon two grounds i.e.:

1.  The requirement for equitable and consistent treatment of employees in relation to the payment of recreation leave loading.

2.  The availability of "new information" not previously put to the Commission in other proceedings dealing with the same question.

In elaborating upon the second ground Mr Philp produced exhibits to support the Federation's position that:

(a)  The recreation leave allowance was introduced into both the Public Service (Conditions of Service) Principal Award and the Teaching Service (Teaching Staff) Principal Award of 1974.

(b)  The wording of both provisions then and now are in all relevant respects the same, and more particularly contain the following proviso:

"PROVIDED ALWAYS that such allowance shall -

(i) ...

(ii) ...

(iii) not apply to proportionate recreation leave accrued by an officer in the leave year of the year of termination of service where such officer voluntarily resigns or whose services are terminated for disciplinary or other good reason;"

(c) The Department made it clear in correspondence to the Federation that it still relies upon Public Service Board "Implementation of Awards - Instruction No 10/74" issued on 11 June 1974.

That instruction provides that a proportionate recreation leave allowance is ordinarily payable in the year of termination of services. The wording in this respect is as follows:

"(f)   Pro Rate Recreation Leave

(i)  Subject to paragraph (ii) below a proportionate recreation leave allowance is payable for the pro-rata recreation leave accrued in the leave year of the year of commencement of service.

(ii)  A proportionate recreation leave allowance is not payable for the pro-rata recreation leave occurred in the leave year of the year of termination of service, where such officer voluntarily resigns or whose services are terminated for disciplinary or other good reason. An officer who ceases to be employed under the Public Service Act for any reason other than those stated above, will be entitled to a pro-rata payment. These include age retirement, voluntary age retirement, retirement through ill health, death, retrenchment, etc. A pro-rata payment made in accordance with this paragraph shall be calculated on the salary rate payable on the last day of employment.

NOTE: Retrenchment also includes a full time casual temporary employee who completes a period for continuous employment in excess of 72 calendar days (Regulation 74(1)(b) and is terminated either because the job is completed or his employment authority issued by the Board is cancelled or expires."

(d)  Regulations at the present time permit the granting of pro-rata annual leave after a minimum 20 consecutive working days.

Mr Philp submitted that in his view if this "new information" had been made available to former President Koerbin in the interpretation2 he gave in relation to "Recreation Leave Allowance for Temporary Teacher" on 4 May 1989 the result would have likely been different.

Mr Payne for the Minister Administering the Tasmanian State Service Act opposed the Federation's application on a number of grounds.

It was argued as a threshold matter that the Federation was in effect claiming that the Department was in breach of the award, and this was a matter which should be dealt with under other provisions of the Act.

It was also submitted that it was inappropriate to deal with the current issue whilst the Federation's application to vary the Teaching Service (Teaching Staff) Award in respect of leave loading for temporary teachers is before a Full Bench of this Commission3 Concern was expressed that the Federation was attempting to obtain a general ruling on a broad issue as part of a case which relates to one individual employee.

Mr Payne went on to point out that Miss Littlejohn was notified in writing that she was first appointed to a temporary position from 19 February 1990 to 20 December 1990.

Subsequently she was given a further contract as a temporary employee from 20 February 1991 to 20 December 1991. Her contract expired on 20 December 1991 and she was given a new contract and appointed to a different school and commenced on 17 February 1992.

Decision

There were a number of important issues raised in the course of this matter which need to be addressed. In the first instance the Controlling Authority categorised the application of the Federation as an award enforcement issue and said that it should not be heard pursuant to Section 29 of the Act.

The precise terms of the application stated that:

"A dispute exists between the Tasmanian Teachers Federation and the Department of Education and the Arts regarding the refusal of the Department to pay recreation leave loading in December 1991 to Miss J E Littlejohn, Exeter High School who has been employed by the Department of Education and the Arts since 19 February 1990."

Nothing in that wording alleges a breach of an award; nor was there any submission or other material put to the Commission during proceedings which was designed to require the Commission to make a formal finding of breach of an award. Rather the Federation relied upon considerations of equity and consistency of treatment of one individual over others; the need for proper adherence to established procedures and practices; recognition of an employee's status; and an alleged failure by the Department to honour promises and expectations created.

If I accepted this threshold submission as to jurisdiction the only alternative remedy left would be for this dispute to be prosecuted in a Court of competent jurisdiction pursuant to Section 92 of the Act. Since the Minister for Industrial Relations is responsible for the administration of the Act pursuant to Section 87A it may have required him to bring a prosecution against the Minister Administering the State Service Act. Even though the Federation may not agree this would seem to be a less than desirable process for the resolution of the matter, especially when regard is had for the fact that Section 91 of the Act provides that in proceedings for offences against the Act the allegations contained in the complaint shall be deemed proved in the absence of proof by the defendant to the contrary.

It goes without saying that whilst the rights at law could be settled by a Court, the Courts are not given the responsibility of creating the rights and obligations of parties to an award or settling industrial disputes. This is the express function of the Commission.

The fundamental issue is the question as to whether the application of the Federation was capable of being dealt with in accordance with Section 29 of the Act.

Section 29 of the Act provides that:

"29 - (1) An organisation or a private employer may apply to the President for a hearing before a Commissioner in respect of an industrial dispute that has arisen or the applicant considers is likely to arise.

(2) Where an application under subsection (l) has been made to the President, he shall, unless he believes that it would not assist the settlement or prevention of the relevant industrial dispute, convene a hearing before a Commissioner."

"Industrial dispute" means a dispute relating to an industrial matter and "Industrial matter" is widely defined by the Act and means "any matter pertaining to the relations of employers and employees", and inter alia, "the privileges, rights and functions of employers and employees".

I conclude that there was an industrial dispute between the Federation as a registered organisation and the Minister as employer.

And I further conclude that given all of the circumstances peculiar to this particular matter it was proper and appropriate to conduct a hearing which is the main thrust of Section 29 and should not have been confused with the distinctly separate issue of what remedies are available subsequently.

A further issue raised by the employer was that since a similar claim is currently before a Full Bench, in relation to temporary teachers and their right to recreation leave loading, the dispute as notified should not proceed to be heard.

It is unfortunately not exceptional for industrial disputes to arise in circumstances where matters of substance relating to similar facts are either listed for hearing or already in the process of being heard by the Commission as differently constituted. In such circumstances the Commission needs to respond as best it can and has a duty to deal with each issue at it arises.

Parties are of course entitled to expect that in these circumstances other proper processes will be the only means by which major items of merit will be settled.

In the present case the employer's concerns were fully comprehended whilst the dispute hearing was allowed to proceed.

I believe it is relevant to point out that the subject matter of payment of recreation leave allowance to temporary teachers which is currently before the second of two Full Benches were filed with the Commission in February 1989, and given that four years have now elapsed it is therefore not surprising that disputes which arise are notified and require attention from time to time.

In my view the point has been reached where the parties concerned should seek to have some priority given to the claim in respect of leave loading being given priority of listing so that there can be a resolution to this long standing issue without further delay.

I am constrained from giving a ruling upon the wider issues raised by the Federation in the dispute before me which concerns one individual teacher. More particularly the material categorised by the Federation as "new information" was in my view designed more to persuade the controlling Authority that it should continue to acknowledge and follow past Public Service Board Instructions than to persuade the Commission as presently constituted to give a general ruling.

The fact that an interpretation of the award has been given and the broad subject matter is also before a Full Bench of the Commission clearly precludes me from considering the general merit issue.

It follows that my present charter is very much circumscribed.

However it seems to me to be a matter of regret that Miss Littlejohn was given verbal assurances concerning her rights to recreation leave payment in respect of 1991/92 which were then not honoured and this created for her some unwarranted difficulty.

The Department made no attempt to to refute the claim made by the Federation that Miss Littlejohn's individual circumstances had not changed from the previous year when she was paid a recreation leave allowance, and that other similarly placed temporary teachers were paid such allowance in 1991 when she was not.

Nor was any explanation forthcoming concerning what was presented as a change to an established practice in relation to payment of recreation leave loading.

In all of these circumstances I point out that the well-established convention in industrial relations is that pending the arbitration of an industrial matter which is also the subject of a dispute no precipitous action should be taken by either party. And in the interim the status quo which previously existed should be maintained and I so recommend.

On this basis the file is now closed.

 

A Robinson
DEPUTY PRESIDENT

Appearances:
Mr G Philp with Mrs E Powell for the Tasmanian Teachers Federation.
Mr G Payne with Mr P Radcliffe for the Minister Administering the Tasmanian State Service Act 1984.

Date and Place of Hearing:
1992
Georgetown
September 3

1 T No 1884 of 1989 and T No 2264 of 1989
2 T No 1818 of 1989
3 Ibid