T5032
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Minister administering the Tasmanian State Service Act 1984 COMMUNITY AND HEALTH SERVICES (PUBLIC SECTOR) AWARD
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:
1. Hours of Work - Day Workers In respect of this matter the applicants claim was as follows:
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:
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:
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:
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:
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:
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 -
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:
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 -
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 Appearances: Date and place of hearing: 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:
(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.
(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:-
(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.
(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 |