T5083
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Health Services Union of Australia and Tyenna Wholistic Health Inc.
Industrial dispute - alleged alteration to contract of employment REASONS FOR DECISION This matter concerns an application for a hearing pursuant to Section 29 of the Industrial Relations Act 1984 to settle an industrial dispute. In its application the Health Services Union of Australia, Tasmania No 1 Branch (HSUA) described the details of the dispute as:
The employer concerned was Tyenna Wholistic Health Inc. (Tyenna) which provides accommodation and support services for up to four clients at Huonville. The service falls within the scope of the Welfare and Voluntary Agencies Award which covers the following industries:
The HSUA's complaint was clearly predicated upon the assumption that four named "carer" employees were already part-time employees in the terms of the award and that the employer was seeking to change their contract of employment to that of casual. Clause 48 of the award - Casual and Part-time Employees - provides as follows:
The Commission was provided with details of times worked by the four HSUA members made the subject of the union's complaint. These figures showed that in the period from 14 November 1993 to 29 May 1994 fortnightly hours of work fluctuated constantly with no two successive fortnightly hours of work being the same. In all but one or two isolated instances the fortnightly hours of work were less than the hours prescribed for a full-time employee in the award concerned. Mr Stringer asserted that his members should properly be considered to be part-time employees because they had been engaged to regularly work for less hours per day or week than those prescribed for a full-time employee and had not been engaged to either relieve a full-time or part-time employee nor were they engaged for specific duties for a period not exceeding 8 weeks. According to Mr Stringer there had been a history of disputes in relation to the mode of engagement of similar categories of employees in the past but these problems were resolved by the reaching of an understanding between the HSUA and a former officer of the Tasmanian Chamber of Commerce and Industry (TCCI). This alleged understanding was that the award definitions provided in clause 48 - Casual and Part-time Employees, would be strictly applied and explained to each employee. Tyenna denied that it had attempted to change the contract of service relating to four HSUA members. In this regard Mr Gates as agent said Tyenna had established a four bed home for eligible clients at Huonville which was staffed by four full-time permanent employees and supplemented by a number of relief workers who were engaged and paid as casuals. All such workers received written advice to this effect and copies of such letters were produced as evidence. The following is the basic text of all of the letters:
Mr Gates explained that initially the hours of relief workers were not great. However due to one resignation and staff absences due to workers compensation and sick leave the hours of relief workers increased during the early months of 1994 and were shared around. Now that those difficulties were being overcome it followed that the hours for relief workers would gradually return to normal. It was argued by Mr Gates that the HSUA was seeking preferential treatment for its members over other relief workers but that this was not justified. He also said that award provisions relating to part-time and casual employees were being observed and he knew nothing of any private agreement or understanding relating to this question. The Commission as constituted offered every encouragement to the parties to have the dispute resolved through the conciliatory process. Regrettably however the parties were not sufficiently receptive to this suggestion for such a mechanism to provide a viable remedy and therefore arbitration became necessary. On 3 January of this year Tyenna made it quite clear to these particular employees the nature of the arrangement entered into and whilst it used the term "relief" worker the four employees concerned as well as others were paid 20% loading which applies to casuals. On the evidence before me there was nothing produced to show that the employer was seeking to change the original contractual arrangement in respect of these employees. For these reasons the complaint of the HSUA is dismissed and I decide that the dispute be settled on this basis.
A Robinson Appearances: Date and Place of Hearing: |