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T5032

 

TASMANIAN INDUSTRIAL COMMISSION

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

The Minister administering the Tasmanian State Service Act 1984
(T.5032 of 1994)

COMMUNITY AND HEALTH SERVICES (PUBLIC SECTOR) AWARD

 

COMMISSIONER R J WATLING

HOBART, 17 MAY 1994

Award variation - hours of work/dayworkers - time in lieu/holidays with pay/shiftworkers - referred to President with recommendation to go to Full Bench - sections 35(1) and 24(4) of the Act - sick leave - recall, on call, close call - award varied - operative ffpp 29 June 1994

REASONS FOR DECISION

This application was made by the Minister administering the Tasmanian State Service Act 1984 (MATSSA) for the purpose of having the Commission arbitrate the following matters which will form part of the new Community and Health Services (Public Sector) Award. They are:

    1.  hours of work - day workers;

    2.  time in lieu - holidays with pay - shiftworkers;

    3.  sick leave; and

    4.  recall, on call and close call.

The four subject matters of this application form part of the `Memorandum of Understanding' between the MATSSA and the Health Services Union of Australia, Tasmania No. 1 Branch (HSUA) and the Tasmanian Public Service Association now known as the State Public Services Federation Tasmania (SPSFT), which, in respect to conditions of employment states:

"The parties agree to negotiate on the following conditions of service. Where no agreement can be reached between the parties then the matter shall be the subject of arbitration.

The parties will be seeking to introduce a consistent set of conditions to cover all employees in the health agencies.

.  Review of allowances with respect to appropriateness of absorption into rates of pay.

.  Review of the Hours of Work clause.

.  Review of call back provision.

.  Review of method of payment for public holidays if added to periods of annual leave.

.  Review of payment of wages clause including waiting time provisions.

.  Adopt sick leave provisions currently in the Hospital Employees Award (sic) for all Department of Community and Health Services employees covered by this agreement.

.  Introduction of pro-rata entitlements for temporary employees currently receiving a 20% loading.

The parties will also negotiate on conditions of service outcome(sic) that may arise from any conditions of service negotiations involving the Tasmanian State Service and the Combined Public Sector Unions. This will occur on outcomes that affect conditions of service common to employees of the Crown and may include:

.  Bereavement/Compassionate leave
.  First Aid allowances
.  HDA/MRDA
.  Maternity Leave
.  Mixed functions
.  Annual leave
.  Living away from home allowances"

1.  Hours of Work - Day Workers

In respect of this matter the applicants claim was as follows:

"1. The ordinary hours of work for full-time employees shall be 38 per week.

2.  The ordinary hours of work for full-time day work employees shall be worked in continuous periods not exceeding 10 hours per day exclusive of meal breaks between the hours 6.00am to 7.00pm Monday to Friday inclusive.

Provided that work performed outside the hours of 6.00am - 7.00pm shall be paid at the appropriate rate in accordance with clause .......

3.  On the determination of the employer the weekly hours of work may be worked by day workers in the form of flexible working hours.

4.  Each full-time day worker shall be allowed a meal break of not less than 30 minutes and not more than 60 minutes on each day."

On this question the parties presented an agreed submission in support of this part of the application being referred to a Full Bench for hearing and determination.

Section 35(1) of the Act states in part:

"The powers of the Commission to make an award or to approve an industrial agreement is exercisable only by a Full Bench in respect of the following matters:-

(a)  making provision for, or altering, the ordinary hours of work;...."

Given the provisions of the Act, this matter will be referred back to the President with a recommendation that it be heard by a Full Bench of the Commission.

2. Time in Lieu - Holidays with Pay - Shiftworkers

The Minister's representative sought to include the following clause in the new award. It reads:

"1. A shift worker may where he or she has been granted a day in lieu at ordinary rates for work performed on a holiday with pay have the (sic) that day added to their annual leave entitlement.

2. Where a public holiday falls on a employee's rostered day off the employee shall be granted an additional day in lieu at the ordinary rate which may also be added to the employee's annual leave entitlement.

3. Provided that such days taken with the shift worker's annual leave entitlements or at any other mutually agreed time shall not attract payment as per the employee's projected shift roster but shall be paid at the ordinary rate."

The parties presented an agreed submission that this matter be heard and determined by a Full Bench of the Commission because of the influence it could have on other awards of the Commission.

Section 24(4) of the Act states:

"A Commissioner who conducts the hearing of an application under this section in relation to an award may, if he considers that -

(a)  the application directly affects another award; or

(b)  the application or part of it is of such importance that, in the public interest, it should be dealt with by a Full Bench, on his own motion or at the request of a party to the hearing,

refer the application to the President in order that he may determine whether or not it should be referred to a Full Bench."

I am prepared to accept the submission of the parties as I am convinced the subject matter will raise similar questions for other awards of the Commission namely the Nursing Homes Award and the Hospitals Award.

Indeed the same issue presented itself in a recent hearing of the Nursing Homes Award (T.Nos.3926 and 3987 of 1992) and that has been referred to the President with a request that it be heard by a Full Bench. For reasons earlier mentioned and consistency, this claim will be treated in a like manner.

3.  Sick Leave

The applicant sought to include the following provisions in the new award:

"SICK LEAVE

(a)   An employee who is absent from work on account of personal illness, or on account of injury or accident, shall be entitled to leave of absence on full pay (excluding shift or weekend allowances, overtime or penalties) subject to the following conditions and limitations:

(i)  An employee shall not be entitled to paid leave of absence under this clause for any period in respect of which workers' compensation is being paid.

(ii)  An employee (except in exceptional circumstances) shall within 2 hours of commencement time of normal duty on the day of the sick leave absence, inform the employer of his/her inability to attend for duty, and as far as practicable state the nature of the injury or illness and the estimated duration of the absence.

(iii)  The employee shall prove to the satisfaction of the employer that he/she was unable, on account of such personal illness, injury or accident to attend for duty on that day or days on which sick leave is claimed.

(iv)  The employee shall not except as prescribed in subclause (b) of this clause be entitled in any one sick leave year to accrue sick leave in excess of 152 hours.

PROVIDED that in the first year of service an employee shall only be entitled to 12 hours 40 minutes for each completed month of service.

(b)   If the full period of sick leave as prescribed in subclause (a)(iv) of this clause is not taken in any sick leave year, such proportion as is not taken shall be cumulative from year to year without limitation.

(c)   If an employee is absent on sick leave on a day immediately proceeding or immediately following an accrued day off he/she shall provide a medical certificate in support of such absence.

(d)   (i)  A medical certificate shall be required for each sick leave absence after an employee has taken an aggregate of 38 hours without medical certificates in any one sick leave year.

(ii) A medical certificate shall be required for any sick leave absence of three or more consecutive working days.

(e) A sick leave year for the purposes of this clause shall mean 365 days employment including rostered days off, public holidays, paid annual leave and paid sick leave."

This is virtually identical to the sick leave provision contained in the Hospital Employees (Public Hospitals) Award with the exception that obsolete provisions have been excluded and the period of time in which an employee is required to notify the employer that he or she is not available for duty, has been reduced from 48 hours to 2 hours.

Mr Watson, for MATSSA, supported the application by emphasising the need to have a common sick leave provision for all employees falling within the scope of the new Community and Health Services (Public Sector) Award being an enterprise award.

He argued that the majority of employees under the new award would have no alteration to their sick leave as they were already in receipt of the provisions sought via the Hospital Employees (Public Hospitals) Award. Mr Watson said, if the application was successful, employees would retain all sick leave entitlements and would be transferred to the new system on the anniversary date of their employment or at the end of their triennium, in the case of those employees under that system.

Mr Watson indicated that the employer was prepared to have discussions with the unions about any real or perceived problems associated with the transfer.

He said that the proposal would:

    1.  be structurally efficient by only having one system of sick leave;

    2.  be consistent with the Wage Fixing Principles;

    3.  provide consistency of approach for all employees under the new enterprise award; and

    4.  not be against the Public Interest.

He also added that whilst part-time employees were not specifically mentioned in the clause, nevertheless, the issue of sick leave would be addressed when consideration was given to conditions of employment for part-time employees.

Mr Watson indicated that the employer was prepared to have further discussions with the unions on the question of unpaid sick leave.

Mr Kleyn of the HSUA supported the submissions of Mr Watson.

Mr Aiken of the SPSFT informed the Commission that the organisation he represented had a policy of supporting a "no credit" system of sick leave or the existing triennium system.

Whilst not supporting the application and as a secondary position, Mr Aiken foreshadowed that if the applicants claim was successful, then at some time in the future, the SPSFT may make application to have the sick leave reviewed along the lines of his organisation's policy.

He also emphasised the need, if there was to be any change, to protect employees by introducing what he called an anti-detriment provision in the award.

Having considered the submissions of the parties I have arrived at the conclusion that the application in respect to this matter should be endorsed in the form outlined in attachment `A' to this decision. My reason for doing so is that I endorse the submissions presented by Mr Watson which in turn were supported by Mr Kleyn.

In addition I must say, that it would be totally inappropriate to have two sick leave provisions in an enterprise award not to mention the inefficiency and inconsistency that that may bring.

In respect to translation I am of the view that employees, who are not currently having their sick leave calculated in the form determined by this decision, should be transferred to the new system on the anniversary date of their employment along with any accrued sick leave credits.

The Order giving effect to this part of the decision will follow in due course and will be operative from the first full pay period to commence on or after 29 June 1994.

4.  On Call and Close Call

The Ministers application in respect to `on call' and `close call' varies little from that which employees currently receive.

Whilst the HSUA and the SPSFT did not support the amendments, nevertheless, they presented little evidence to convince me that the claim should be rejected.

I endorse the submissions of the applicant and the proposed amendments as set out in attachment `A' as it is appropriate in all the circumstances and clarifies existing provisions. This proposal is consistent with the Wage Fixing Principles and in particular the Structural Efficiency Principle.

5.  Recall

The applicant sought to amend the current `call back' provision by renaming to `recall' and changing its contents to read as follows:

"1.   An employee who is recalled to work overtime without prior notice thereof shall be paid as follows:-

(i)  In respect of the first recall a minimum payment of 3 hours at the appropriate overtime rate.

(ii)  In respect of subsequent recalls occurring up to three hours from the commencement of the first recall for which a minimum payment has been attracted, in accordance with (i) of this sub-clause no extra payment shall accrue until the time actually worked exceeds three hours.

(iii)  Payment for all recalls occurring outside the three hour period from the commencement time of the first recall for which a minimum payment has been made shall be calculated at the appropriate overtime rate for actual time worked.

(iv)  The appropriate overtime rate for the purposes of this clause shall be calculated as follows:

(a)  For all employees whose salary is less than the maximum salary payable for the base grade classification for the category of employee recalled at the employees annual salary rate exclusive of all allowances, and

(b)  For all other employees at the maximum salary payable for the base grade classification for the category of employee recalled exclusive of all allowances.

2.   For the purposes of this clause time reasonably spent in travelling to and from work shall be regarded as time worked.

3.   For the purposes of determining the first recall period each continuous On Call period shall stand alone. Provided that where a continuous On Call period exceeds 24 hours each 24 hour On Call period shall stand alone.

4.   Where an employee is recalled to work within three hours of commencing normal duty, the employee shall be paid at the appropriate overtime rate for that period up until the commencement time of the normal duty, but the employee shall not be obliged to work for the full period if the work for which the employee was recalled is completed in less time.

5.  Where an employee as part of their normal duties returns to work for short periods to perform specific duties such as the checking of equipment or machinery, security or caretaking-type duties and the like that employee shall be excluded from the provisions of this clause."

In support of the application Mr Watson relied on:

    1.  the Full Bench decision1 which concluded that the Commission would ensure that any award or agreement that was proposed to be made or approved, had effectively addressed the issues of conditions of employment, efficiency and productivity, either on an agency or enterprise basis;

    2.  the Commission's decision (T.4014 of 1993 dated 25 February 1994) which stated -

"To finalise the making of this new award there is a need for the parties to continue their discussions on conditions of employment with a view to achieving one set of conditions which can be universally applied to all persons falling within the scope of this award."

    3.  the Memorandum of Understanding and the agreement contained therein to review the `call back' provisions;

    4.  the `call back' provisions contained in certain awards of the Commission and decisions of the Australian Industrial Relations Commission relating to nurses (Print Nos.J6124 and J8402);

    5.  the need for new salary structures and conditions of employment to be seen and treated as a package.

Mr Aiken for the SPSFT was opposed to the application and introduced two witnesses in an attempt to establish -

    (a)  the disabilities associated with `call back',

    (b)  how the use of `call back' could be reduced by appropriate management methods, and

    (c)  how certain areas of work had been redesigned in an endeavour to eliminate unnecessary `recall' to work of employees.

His submission also supported the retention of the existing award provision.

Mr Kleyn from the HSUA presented strong submissions in opposition to the application and called on the Commission to place in the new award the `call back' provisions that currently exist in the Hospital Employees (Public Hospitals) Award.

There was not one provision in this part of the employer's application that was endorsed by Mr Aiken or Mr Kleyn.

Having considered all the arguments put by the parties and the evidence of the witnesses, I find that I am required to exercise a discretion between two competing submissions.

In short, I support the overall thrust of the case presented by Mr Watson. My reasons for doing so are as follows:

    1.  the first `recall' with a minimum payment of three hours at the appropriate overtime rate exceeds the current provision contained in the Hospital Employees (Public Hospitals) Award which provides for "a minimum payment of four hours work";

    2.  it is not appropriate for an employee who is recalled to work, during a period for which that employee has already attracted a minimum `recall' payment, to receive an extra payment until the time actually worked exceeds three hours, especially given there is no requirement to remain at work for a minimum period during the first `recall';

    3.  it is highly desirable to identify in a `recall' provision -

      (a)  how the first `recall' period is determined for each continuous `on call' period,

      (b)  the arrangements where an employee is recalled to work prior to the commencment of normal duties, and

      (c)  whether or not time reasonably spent in travelling back to work on `recall' would be regarded as time worked.

    4.  I am satisfied that an employee who, as part of their normal duties returns to work for short periods to perform specific tasks, should not be subject to this `recall' provision. Having said that, I would also expect that type of working pattern to be clearly identified in the employees position description and the employee to be classified at an appropriate level within the professional, technical, administrative and clerical and operational stream.

For those reasons I accept clauses 1 (i) (ii) (iii), 2, 3, 4 and 5.

In respect to clause 1 (iv) i.e. the method for calculating the appropriate overtime rate for the purpose of `recall', I neither support the submissions of the employer nor the employee organisations and I hereby determine that the following subclause should be included in the `recall' clause:

"(iv)  The appropriate overtime rate for the purpose of this clause shall be calculated as follows:

(1)   Professional Employees

For a professional employee classified at Level 1 of this category, on the employees annual salary rate exclusive of all allowances.

For all other professional employees, on the maximum salary payable for a Level 1 employee (as defined) exclusive of all allowances.

(2)   Technical Employees

For a technical employee classified at Levels 1 and 2 (as defined) of this category, on the employees annual salary rate exclusive of all allowances.

For all other technical employees, at the maximum salary payable for a Level 2 employee (as defined) exclusive of all allowances.

(3)   Administrative and Clerical Employees

For an administrative and clerical employee classified at Levels 1, 2 and 3 (as defined) of this category, on the employees annual salary rate exclusive of all allowances.

For all other administrative and clerical employees, at the maximum salary payable for a Level 3 employee (as defined) exclusive of all allowances.

(4)   Operational Employees

For an operational employee classified at Levels 1 through to 7 (as defined) of this category, on the employees annual salary rate exclusive of all allowances.

For all other operational employees, at the maximum salary payable for a Level 7 employee (as defined) exclusive of all allowances."

In arriving at this conclusion I have taken into consideration:

    1.  the disability associated with being recalled to work;

    2.  the need for an equitable remuneration;

    3.  the fact that salaries for certain levels within the professional, technical, administrative and clerical and operational streams comprehend a management component; and

    4.  the responsibility on management to implement appropriate protocols for establishing and maintaining an effective and efficient `recall' system, thus minimising abuses by the employer and employees.

    5.  that the new `recall' clause and this subclause should not be seen in isolation as it is part of a package linked with the new classification standards and salary structures.

The new `recall' clause will be in the form set out in attachment `A'.

Operative date:

Mr Watson vigorously argued that the operative date for the `recall', `on call' and `close call' clauses should be 1 December 1993, being the date on which the parties agreed to implement the new salaries and classification standards arising out of the Memorandum of Understanding.

The Commission questioned how the operation of those clauses could be adjusted retrospectively given that employees, from 1 December 1993, who were `on call' or `close call' or `recall' to work were already paid in accordance with the provisions contained in their current award. Mr Watson responded by saying, if after a recalculation was made using the new provisions there was any adjustment to be made in favour of the employer, then any employee who was entitled to receive back pay after being classified in the new award classification structure, would receive that back pay less the amount of "overpayment" for `call back', `close call' or `on call'.

The question of a retrospective operative date for these provisions was vigorously opposed by Mr Kleyn and Mr Aiken.

On the matter of retrospectivity the Act states -

"...The Commission may, in an award, give retrospective effect to the whole or any part of the award-

(a)  if and to the extent that the parties to the award so agree; or

(b)  if, in the opinion of the Commission, there are special circumstances that make it fair and right to do so."

As there was no agreement between the parties and as I am not convinced special circumstances exist to make it fair and right to grant the retrospectivity, I hereby determine that the operative date for `recall', `close call' and `on call' will be the first full pay period to commence on or after 29 June 1994.

An Order giving effect to this decision will follow in due course.

 

R J Watling
COMMISSIONER

Appearances:
Mr M Watson with Mr J Bone for the Minister administering the Tasmanian State Service Act 1984.
Mr T Kleyn for the Health Services Union of Australia, Tasmania No. 1 Branch.
Mr P Aiken for the State Public Services Federation Tasmania.

Date and place of hearing:
1994
April 19, 20
Hobart

ATTACHMENT `A'

SICK LEAVE

(a)   An employee who is absent from work on account of personal illness, or on account of injury or accident, shall be entitled to leave of absence on full pay (excluding shift or weekend allowances, overtime or penalties) subject to the following conditions and limitations:

(i)  An employee shall not be entitled to paid leave of absence under this clause for any period in respect of which workers' compensation is being paid.

(ii)  An employee (except in exceptional circumstances) shall within 2 hours of commencement time of normal duty on the day of the sick leave absence, inform the employer of his/her inability to attend for duty, and as far as practicable state the nature of the injury or illness and the estimated duration of the absence.

(iii) The employee shall prove to the satisfaction of the employer that he/she was unable, on account of such personal illness, injury or accident to attend for duty on that day or days on which sick leave is claimed.

(iv) The employee shall not except as prescribed in subclause (b) of this clause be entitled in any one sick leave year to accrue sick leave in excess of 152 hours.

PROVIDED that in the first year of service an employee shall only be entitled to 12 hours 40 minutes for each completed month of service.

(b)   If the full period of sick leave as prescribed in subclause (a)(iv) of this clause is not taken in any sick leave year, such proportion as is not taken shall be cumulative from year to year without limitation.

(c)   If an employee is absent on sick leave on a day immediately proceeding or immediately following an accrued day off he/she shall provide a medical certificate in support of such absence.

(d)   (i)  A medical certificate shall be required for each sick leave absence after an employee has taken an aggregate of 38 hours without medical certificates in any one sick leave year.

(ii)  A medical certificate shall be required for any sick leave absence of three or more consecutive working days.

(e)    A sick leave year for the purposes of this clause shall mean 365 days employment including rostered days off, public holidays, paid annual leave and paid sick leave.

RECALL, ON CALL AND CLOSE CALL

(a)   An employee who is recalled to work overtime without prior notice thereof shall be paid as follows:-

(i)  In respect of the first recall a minimum payment of 3 hours at the appropriate overtime rate.

(ii)  In respect of subsequent recalls occurring up to three hours from the commencement of the first recall for which a minimum payment has been attracted, in accordance with (i) of this subclause no extra payment shall accrue until the time actually worked exceeds three hours.

(iii)  Payment for all recalls occurring outside the three hour period from the commencement time of the first recall for which a minimum payment has been made shall be calculated at the appropriate overtime rate for actual time worked.

(iv)  The appropriate overtime rate for the purpose of this clause shall be calculated as follows:

    (1)   Professional Employees

      For a professional employee classified at Level 1 (as defined) of this category, on the employees annual salary rate exclusive of all allowances.

      For all other professional employees, on the maximum salary payable for a Level 1 employee (as defined) exclusive of all allowances.

    (2)   Technical Employees

      For a technical employee classified at Levels 1 and 2 (as defined) of this category, on the employees annual salary rate exclusive of all allowances.

      For all other technical employees, at the maximum salary payable for a Level 2 employee (as defined) exclusive of all allowances.

    (3)   Administrative and Clerical Employees

      For an administrative and clerical employee classified at Levels 1, 2 and 3 (as defined) of this category, on the employees annual salary rate exclusive of all allowances.

      For all other administrative and clerical employees, at the maximum salary payable for a Level 3 employee (as defined) exclusive of all allowances.

    (4)   Operational Employees

      For an operational employee classified at Levels 1 through to 7 (as defined) of this category, on the employees annual salary rate exclusive of all allowances.

      For all other operational employees, at the maximum salary payable for a Level 7 employee (as defined) exclusive of all allowances.

(b)   For the purposes of this clause time reasonably spent in travelling to and from work shall be regarded as time worked.

(c)   For the purposes of determining the first recall period each continuous on call period shall stand alone.

PROVIDED that where a continuous on call period exceeds 24 hours each 24 hour on call period shall stand alone.

(d)   Where an employee is recalled to work within three hours of commencing normal duty, the employee shall be paid at the appropriate overtime rate for that period up until the commencement time of the normal duty, but the employee shall not be obliged to work for the full period if the work for which the employee was recalled is completed in less time.

(e)   Where an employee as part of their normal duties returns to work for short periods to perform specific duties such as the checking of equipment or machinery, security or caretaking-type duties and the like that employee shall be excluded from the provisions of this clause.

1 T.Nos. 2399, 2467, 2469, 2470, 2471, 2472, 2473, 2474, 2475 2476, 2477, 2478, 2479, 2480, 2508, 2511, 2586, 2605, 2504, 2506, 2516, 2587 & 2594 of 1990 and T.Nos. 3200 and 3119 of 1991