T4436 - 17 August
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Tasmanian Public Service Association and Minister administering the Tasmanian State Service Act 1984
Industrial dispute - pro rata recreational leave - "temporary" teacher aides and some school-based administrative employees - usual quantum of recreational leave arbitrarily reduced by the employer - Commission recommends parties make application to vary award - employees affected to retain provisions of ruling of Public Service Board - appropriate adjustments should be made REASONS FOR DECISION This matter concerns an application by the Tasmanian Public Service Association (TPSA) for a hearing to settle an industrial dispute pursuant to Section 29(1) of the Industrial Relations Act 1984. The dispute was between the TPSA and the Minister administering the Tasmanian State Service Act 1984 (hereinafter referred to as the employer) and concerned the action taken by the Department of Education and the Arts (the Department) to arbitrarily reduce the recreational leave entitlements of temporary teacher aides as well as some part-time administrative staff in schools who are either temporary or permanent. Whilst there were some exceptions it seems that the vast majority of "temporary" teacher aides and some school-based administrative staff who were similarly appointed have traditionally worked for the whole of each successive school year even though they had no guarantee of being re-engaged subsequently. The varying staff requirements of schools and colleges from year to year have dictated the actual number of such persons to be re-hired and I accept that this reality was well understood. However, notwithstanding the "temporary" nature of the employment I was assured by the TPSA, and it was not denied, that although not quantified, a sizeable number of this group of employees have had over 20 years of "continuous employment" and many qualify for long service leave. The employer would categorise the situation as years of successive re-engagements and this distinction has also been a matter of dispute between the parties in years past. Another feature of the employment of the persons concerned is that for some their weekly number of hours of work may vary from time to time. Apart from this category of "temporary" employees, permanent part-time school-based office staff have also had their usual quantum of recreational leave arbitrarily reduced apparently through some revised method of calculation which was neither explained nor understood. The genesis of this dispute is that whereas four weeks (20 days) recreational leave has traditionally been paid to temporary part-time teacher aides and clerical staff when they worked for the full school year, the Department, supported by State Service Regulation and Administrative Instruction, have recently reduced the recreational leave entitlement to 16 days per annum. The TPSA was able to clearly demonstrate that the Department's action in this regard reverses a Public Service Board decision made in 1981 which said that: "The Board resolved that periods of leave without pay for school holidays do not break continuity of service and that part-time employees' period of service shall be continuous from the time engagement commences until it terminates irrespective of periods of leave granted without pay." Exhibits produced by the TPSA confirmed that the Public Service Board continued to adhere to that ruling in subsequent years, and that the Department (as the then employer) on 20 December 1983 advised all kindergartens, schools, colleges and branches that, inter alia: "2. Temporary Employment All part-time Office Assistant and Teacher Aide vacancies are advertised as "subject to review at the end of each school year". Particularly in the case of Teacher Aides this is essential so that there is the flexibility to vary budgets and programmes to meet constantly-changing needs. Access to permanent officers' sick leave should not be construed as altering in any way the temporary, year-to-year nature of the positions. 3. Annual Leave Employment has been deemed to be continuous since the first working day of 1983, i.e. vacations are now regarded as periods of enforced leave without pay. Hence, annual leave has increased from three to four weeks." and later: "As the 'leave year' over which annual leave is accrued runs from 1st October to 30th September, this year's leave is made up of the period 1st October to 23rd December 1982 at the rate of three weeks annually; and 21st February to 30th September 1983 at the rate of four weeks annually. Thus the entitlement as at 1st October 1983 was 17 working days for employees working 20 or more hours weekly, and 12 working days for others. In future, all employees who have worked the full year will have an entitlement of four weeks annual leave." It should be understood that the same memorandum dealt with other matters including the abolition of a loaded rate of pay for employees who worked less than 20 hours weekly. In the present case the employer has emphasised that particular attention was paid to advising both new and "previous" employees that their "temporary" employment was not merely from year to year but from term to term, i.e. they were not employed at a time coincident with the observance of school holidays. This arrangement enabled the aggregation of a series of term engagements, resulting in a lesser recreational leave entitlement for employees who worked each of three school terms in a year. And presumably employees who worked for less terms would be similarly affected. Much of the argument from both parties centred upon whether or not part-time teacher aides and school-based clerical staff, who are subject to this dispute, fell within the definition of "temporary employee" which is contained in a number of relevant awards as well as an Administrative Instruction. The Keyboard Employees and Office Assistants Award, serves as an example. It provides that: "'Temporary employee' means a person engaged by the controlling authority who either: (a) is engaged to relieve a full-time or part-time employee for specific periods of leave; or (b) is engaged temporarily for specific duties over a fixed time period determined by the controlling authority. PROVIDED that engagement of an employee under (a) and (b) above shall require of the controlling authority that the period of engagement be specified as to the number of hours, days or weeks to be worked; with the further proviso that where the period of engagement is specified as 5 consecutive working days or less the terms of employment shall be the same as those defined for casual employees." The question as to whether the current practices and circumstances surrounding the employment of "temporary" teachers and other school-based staff properly fall within the above definition should, in my view, more appropriately be decided by utilisation of mechanisms provided by Section 43 of the Industrial Relations Act upon the making of an application to the President. However, it would seem to me unlikely that even the resolution of this particular aspect would wholly satisfy the need for a final resolution to this dispute because I believe the problem goes far deeper for reasons which I shall explain. Simply put, we have a situation in which a significant group of public sector employees feel aggrieved because of the manner in which they have had a fundamental and basic condition of employment altered to their detriment by the arbitrary actions of their employer. The employees have a strongly held view that their mode of work has not changed over the years and that the vast majority of them continue to be employed as before. Admittedly they receive a different piece of documentation which in effect says they are employed from term to term rather than from year to year. But the reality is, in their view, that they continue to work throughout the whole of the school year as before. Those of them who are not classified as permanent do not get paid during school closures, but neither did they in the past. The employees also see the employer's action of, in effect, "dismissing" them immediately before every school holiday and "re-engaging" the vast majority of them as from the commencement of the next term as demonstrating their continued need in the workplace. The employer's arbitrary action is therefore regarded as a subterfuge, and no more than a budget driven negative cost-cutting exercise which pays no heed whatsoever to industrial fair play or the rules of natural justice. The employer has detailed to the Commission the various regulatory provisions which enabled it to arbitrarily reverse the previously constituted Public Service Board's ruling which deemed employment to be continuous during school vacations and regarded them as periods of enforced leave without pay. It has also said that the employees have no basis for complaint on merit. My role is to endeavour to settle an industrial dispute to the extent that the legislature allows me. The Industrial Relations Act quite properly places limits upon the remedies available to a member of the Commission when dealing with an industrial dispute in accordance with Sections 29 and 31 of the Act and I cannot, and ought not, be permitted to make an order that: "makes an award or varies or creates a provision of an award." [Section 31(2)(b)] Accordingly, I make no finding as to the merit of what should be the appropriate level of recreational leave entitlement for those employees now subject of this particular industrial dispute. However, I believe it is within the charter given to me by this assignment to draw attention to the mechanisms in place which have been used by the employer in this instance and to judge whether or not there has been industrial fair play. In this regard I see the crux of the dispute as being that a most fundamental right given to a particular group of employees by the old Public Service Board and enjoyed by them for a period of about 10 years has been reduced by the employer without there being any acceptable due process in which they or their representative organisation could be involved in a democratic way. I stress that the question therefore is not whether the employer's action was unlawful, but rather whether or not through the process of change used by the employer employees were afforded "a fair go all round". In this instance it is the employer alone who is the law-maker as well as the interpreter of his own (industrial) laws. Whilst the Tasmanian State Service Act applies this situation is nevertheless analogous with the well-established constitutional principle that there should be a separation of powers between the legislature, the executive and the judiciary. The circumstances surrounding this particular industrial dispute contrast with the processes which apply in both the private sector and the public sector where Federal award coverage is in place. In those other areas a dispute of this kind simply could not arise because before an award can be varied the process requires the notification of other interested parties and then the matter is subsequently heard in public and decided through the process of conciliation and/or arbitration before an independent and impartial third party. In the alternative the parties may seek to have registered an agreement. Those processes also allow for an aggrieved party to appeal to an industrial tribunal differently constituted. Whilst however those persons subject to this particular industrial dispute have not been given the same opportunity to defend their position in this matter,? the employer has pointed to the rights available to any employee to appeal to the Commissioner for Review on the grounds that such employee believes he or she has not received fair and equitable treatment pursuant to Section 66 of the Tasmanian State Service Act. I point out that the same right does not extend to registered organisations such as the TPSA whose application is before me. In any case the employees concerned have elected to be represented by their union before this Commission. It is pertinent to point out that if the parties to this industrial dispute had differently approached the matter and exercised the option of entering into an enterprise agreement pursuant to the recently introduced Section 61 of the Industrial Relations Act, then one of the minimum conditions of employment which would need to be included would be a standard of annual leave not less favourable than is specified in any award. This is to be found in Section 61F(2): "Conditions of employment fixed by an enterprise agreement for conditions other than wages must not be less than - (a) in the case of annual leave the lowest amount of paid annual leave specified in any award;" It is therefore my view that the only way in which this particular industrial dispute can effectively be resolved is for the merit of the case pertaining to recreational leave entitlement to be properly considered following the making of an application for a hearing at which each of the parties concerned may be heard and then for an award to be made, if justified, on proper criteria. It is my considered opinion that in the absence of such a process the dispute will not go away and the unfortunate consequences may be continued disenchantment with the processes being adopted to regulate industrial conditions in the Tasmanian State Service, loss of morale, low productivity, absenteeism, or even the taking of industrial action in one form or another. In conclusion therefore I recommend that in the resolution of this particular industrial dispute the following should occur: 1. Both the TPSA and the employer make application to the Commission for an award provision to deal with what, if any, recreational leave entitlements should apply and which they each believe is sustainable on all relevant criteria. Such application would address the circumstances which apply in this industrial dispute, and may also address alternative measures such as the payment of some allowance. 2. Until such time as the question of recreational leave entitlement is determined by this Commission the quantum of recreational leave which applied to persons employed by the Department at schools before this dispute arose continue to apply. This should be taken to mean that the granting of paid recreational leave to part-time office assistants and teacher aides should be carried out in a manner which is consistent with the ruling of the Public Service Board on 24 December 1981 and confirmed in Exhibits TPSA5, TPSA7, TPSA8, TPSA9 and TPSA10. 3. It follows that where previously held recreational leave entitlements have been altered, then appropriate adjustments should be made at an early date. The file relative to this dispute will be kept open for a period of time to allow further recourse to the Commission if necessary.
A. Robinson Appearances: Date and Place of Hearing: |