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T2417, T3611, T3709, T4077, T2113, T3690 and T4074 - 8 September

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.23 application for award or variation of award

Tasmanian TAFE Staff Society
(T.2417 of 1990)

and

Tasmanian Public Service Association
(T.2113 of 1989)

and

Minister administering the Tasmanian State Service Act 1984
(T.3690 of 1992)
(T.4074 of 1992)

TECHNICAL AND FURTHER EDUCATION STAFF AWARD

 

COMMISSIONER R K GOZZI

HOBART 22 July 1994

Award - Wage Rates and Conditions of Employment - TAFE Award "Special Case" Applications - State Wage Case October 1989 - Structural Efficiency Principle

REASONS FOR DECISION

In my Reasons for Further Interim Decision dated 27 August 1993 I indicated that the claim by the Tasmanian TAFE Staff Society, now the Australian Education Union Tasmanian Branch (AEU) for a Payment of Salary Clause to be determined for inclusion in the Technical and Further Education Staff Award would be subject to a separate decision. Specifically at page 173 of my decision I stated:

"Payment of Salary

A payment of wages clause was requested to be included in the award as set out in Appendix C. This matter was opposed by the Government.

A separate decision will issue on this matter in due course."

Appendix C sets out the claim by the AEU in the following terms:

"7.0  PAYMENT OF SALARY

7.1  Salary, including allowances, excess hours and overtime, shall be paid during working hours, at intervals not exceeding two weeks, and not later than Wednesday.

When a State Service holiday falls on a normal pay day, salary shall be paid on the last working day prior to such holiday.

7.2  Payment shall be by cheque or direct deposit to an account with a bank or other financial institution nominated by the employee.

7.3  The current pay day, time of payment or method of payment shall not be varied, except following consultation and agreement with the Society.

7.4  On or prior to pay day the controlling authority shall provide to each employee particulars, in writing, setting out full details of the salary, including excess hours, overtime and allowances, to which the employee is entitled. Such statement shall include the following information.

(a)  date of payment,

(b)  period covered by payment,

(c)  annual salary,

(d)  amount of salary at ordinary rate,

(e)  any amount paid as excess hours or overtime, including the number of hours so paid,

(f)  any amount paid as an allowance,

(g)  any payment for any period of paid leave, workers compensation, arrears of salary or any other payment not usually included in the employee's salary which shall contain sufficient details so as to enable the employee to determine how, and for what reason, each amount listed has been calculated,

(h)  the employee's classification,

(i)  all amounts deducted and the purpose for which each amount has been deducted listed separately, and appropriately identified, and

(j) the nett amount of payment.

7.5  The controlling authority may deduct from monies due to each employee such amount as is authorised by the employee, in writing, for the lawful purpose specified in such authority, or pursuant to the provisions of any statute of the State or the Commonwealth.

7.5(a) Except in circumstances beyond the control of the employer and subject to paragraph (b), an employee kept waiting for payment of salary for more than a quarter of an hour after the usual time for ceasing work on the normal pay day shall be paid waiting time at the rate of time and one half after that quarter of an hour with a minimum payment of a quarter of an hour and payment shall continue on that day until the employee is advised that payment will not be made on that day.

Further such payment at the rate of time and one half shall continue during all ordinary hours of work on each succeeding day or days, up to a maximum of 6 hours per day, until such time as payment is made.

(b) Subject to paragraph (c) the provisions of paragraph (a) shall not apply in circumstances whereby payment of salary is not made on pay day but the employer and employee agree to an alternative arrangement for payment.

(c) Should, however, the employer fail to make payment in accordance with the terms of the alternatively agreed arrangement as provided for in paragraph (b), the employee shall be deemed to have been kept waiting for payment since pay day and shall thereby be entitled to payment in accordance with paragraph (a) until such time as payment is effected.

(d) Allowances prescribed by this Award, other than allowances linked to the employee undertaking additional responsibilities shall not be taken into account in the calculation of waiting time rates prescribed in paragraph (a).

7.7(a) Where employment is terminated, all salary due shall, where practicable, be paid to the employee on the day of termination.

(b) If payment on the day of termination is not practicable, the controlling authority shall, on the next working day of the pay office, forward all salary due to the employee to the employee's recorded home address, or in accordance with any other arrangement for payment as may be agreed between the controlling authority and the employee.

(c) Should the employer fail to comply with the provisions of subclause (a) or (b), the employee shall be deemed to have been kept waiting for payment since the conclusion of employment and shall be entitled to payment in accordance with the provisions of subclause (a), until such time as payment is effected.

7.8 Where an employee proceeds on approved leave, all amounts of salary, including excess hours, overtime and allowances, which would otherwise have been paid on a pay day falling within the period of such leave, shall be paid on the last working day prior to the employee proceeding on leave.

Mr Holden submitted that as the award contained no direction as to the conditions that apply to the payment of salaries, an appropriate award provision was necessary. Mr Holden reiterated each of the items in the AEU's claim, as outlined above, with some brief explanation, in some cases, why a particular provision was considered necessary.

In support of a payment of salaries clause in the award Mr Holden informed the Commission that some years earlier the Commission included more extensive provisions in the Hospitals Award and the Hospitals Employees (Public Hospitals) Award.

The Commission queried Mr Holden as to any problems that may have existed in respect to payment of salaries to employees subject to the award in this matter. In particular the parties were referred to a decision of the Deputy President in T.1886 of 1989. I indicated that it was my intention to include that particular decision "in these proceedings" (transcript p.2222). This followed my earlier observations where I stated:

"I think it was the Deputy President who looked at the inclusion of a clause like this in one of the teaching awards, there was a dispute, and I think he said, amongst other things that in order to establish the need for such a clause it should be demonstrated that there have been problems with the payment of wages and salaries, that there had been delays and errors, and that they haven't been attended to. And I think he was persuaded in the end to include something in the Teaching Service Award (sic)."

Transcript p.2221

Mr Holden responded in the following terms:

"Well Mr Commissioner, if I can say, I think I could embarrass the department if I were to bring along witnesses in terms of payment. People have been performing/acting higher duties from the beginning of this year and thousands of dollars are owed to individual employees, so much so that they wanted to take industrial action 2 weeks ago and the Society has held discussions with Mr Leo and convinced those people to hold off very temporarily until the next pay day because they are absolutely sick and tired of the system and the total absence of any provision has not afforded them any protection at all; and in fact, it is at the stage that if payment is not made the society will actively encourage these people to take industrial action, because we have been promised beyond doubt payment on the next pay day.

In fact, Mr Brough tells me it should have been paid, so I am assuming it has been paid, because the attitude of the particular people involved was extremely hostile when I spoke to them, and I understand that they have given Mr Brough a particularly hard time, too. And I understand that this is not unusual. There is a tendency for it to happen at the beginning of each year. Now, what we are saying is that it just isn't good enough, and whilst there can be no provision in the award there is very little we can do about it."

Transcript p.2221/22

To further demonstrate the need for a Payment of Salary provision, Mr Holden tendered Exhibit H122. This was a letter to the General Manager (Training) concerning late payment of "acting allowances". The letter cited concerns about delay in that payments were outstanding and also that in some cases personal hardship and debts had been experienced because of failure to pay these allowances on time.

Mr Holden submitted that the Exhibit was tendered to show that there was a problem. Also it was contended by Mr Holden that:

"...that problem exists year in year out, however the Society does not believe it needs to prove there is a problem to seek the inclusion of a payment of wages clause in the award."

Transcript p.2324

Mr Holden submitted that the AEU believed that a payment of wages clause was fundamental and central to any contract of employment in any award. He referred the Commission to the comments of the Deputy President in his decision1 where he said:

"The payment of an employee's correct wages at the time payment falls due constitutes one of the most fundamental elements of any contract of service."

Reasons for Decision p.6

In response to the AEU's submissions Mr McCabe appearing for the Minister administering the Tasmanian State Service Act 1984 (the Government) informed the Commission that the proposed Conditions of Employment Award for the public sector contained a payment of wages clause which would provide uniform coverage for the majority of State employees. He said:

"We would see that payment of salary clause being picked up on a uniform basis."

Transcript p.3967

Mr McCabe submitted that nothing had been put by the AEU in the proceedings which convinced the Government that TAFE teachers should be treated any different to other State employees or that they had any claims to a special payment of wages clause. He informed the Commission that to the best of his knowledge the proposed clause by the AEU was a "direct lift" (transcript p.3967) from the Teaching Service (Teaching Staff) Award.

Additionally Mr McCabe submitted that there was adequate provision for payment of salaries in Tasmanian State Service Regulation 226. No elaborating detail was provided. However Regulation 226 provides a general authority to pay and does not appear to go beyond that.

Decision

Having regard to the submissions of the parties I am persuaded by the AEU to endorse the inclusion in the award of a payment of salaries provision. Clearly there have been payment of salaries problems over a significant period of time and I do not think it unreasonable to create an award provision which allows employees redress against the employer in certain circumstances. Persuasive also was the AEU's contention, as stated by the Deputy President in T.1886 of 1989, that a payment of wages clause was fundamental to any contract of employment.

In deciding in favour of a payment of salaries provision, I am mindful of not creating, if at all avoidable, a whole range of different award requirements with which the Government would have to comply. In that regard I noted Mr McCabe's submission concerning a clause which would provide uniform coverage. In that context Mr McCabe was referring to the then proposed Conditions of Employment Award which was contemplated when the public sector four stream proposals were being discussed. That exercise has of course lapsed, unfortunately, but notwithstanding I am attracted to a uniform provision if possible.

To that end I will leave it to the parties to prepare a draft award provision for my consideration. In the event that this is not able to be achieved by the parties, in due course, the Commission will issue an order to give effect to this decision.

 

R K Gozzi
COMMISSIONER

Appearances:
Mr D Holden for Australian Education Union, Tasmanian Branch
Mr J McCabe, Mr J Dinely and Mr P Hanlon for the Minister Administering the State Service Act 1984

Date and Place of Hearing:
1993.
Hobart:
October 29
November 4

1 Reasons for Decision T.1886 of 1989 dated 19 March 1990 at p.6