TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s29 application for hearing of an industrial dispute

MRS JAN SAARINEN
(T5327 of 1994)

and

UNIVERSITY OF TASMANIA, LAUNCESTON

Industrial dispute - harsh and unjust treatment - breach of agreement - further decision - arbitrated - payment ordered

REASONS FOR DECISION

This is a further decision in this matter which was a dispute hearing application made by Mrs Jan Saarinen, a lecturer in nursing of Launceston, who alleged she had been treated harshly and unjustly by the University of Tasmania (the University).

In my first decision issued on 5 June 1995, I found that the University had treated Mrs Saarinen harshly and unjustly by breaching a formal agreement (the Agreement) between the University and the (amalgamated) National Tertiary Education Union (the Union) which required the University to provide Mrs Saarinen with an opportunity to compete for a tenured position which she could perceive to have been advertised internally as a result of a review of her previous contract position.

At the end of the first decision I proposed to reconvene the parties for the purposes of hearing further submissions as to what remedy should be applied in consequence. In accordance with my obligations under the Act, I also took the opportunity to request the parties, in the light of the decision, to have discussions aimed at a mutual settlement: unfortunately no settlement was reached and the parties made submissions as to remedies.

Mrs Saarinen submitted that I should restore her to the position she was in when she should have been able to apply for her position advertised internally: this meant I should order the University to give her a three year contract of employment (the same as before) and during that period Mrs Saarinen should be permitted to apply for her position advertised internally. Mrs Saarinen also put some additional or alternative submissions as to remedy including a payment for the period since her employment ceased in December, 1994.

The University said it was very disappointed with my decision and submitted as its primary position (apart from its view on jurisdiction), that if I were going to order a remedy consequent to my original decision I should order the re-constitution of the selection committee, that the University should make the three equivalent internal positions available and provide for Mrs Saarinen to be considered as a bona fide applicant for one of those positions.

The University also outlined other possible remedies but, at the same time outlined difficulties with all of them.

As to jurisdiction, I am satisfied that the subject of this dispute was an industrial matter in that it concerned the terms under which Mrs Saarinen was able to continue her employment or alternatively, it concerned her right as an employee to avail of the terms of the Agreement. There was no dispute between the parties that Mrs Saarinen was an employee covered by the terms of the Agreement. Moreover, the University did not challenge Mrs Saarinen with not being an employee within the requirements of the Act. The Agreement itself being about certain rights for employees, whilst not being registered under the Act, was nevertheless an industrial agreement, hence a dispute over its terms was clearly within the jurisdiction of the Commission.

Further, as to jurisdiction and payment orders, I rely on the comments of the full bench of the Commission in the matter of an appeal against a decision of the Deputy President in a dispute between Fahan School and Miss Harriet Gunn1,

Power to award a sum of money

During the appeal hearing, it was contended by Mr Sealy that the Commission had no power under the Act to order a payment of any sum of money, or alternatively, it was restricted in doing so as outlined in appeal ground 21.

We are of the view that the Commission had jurisdiction to order the payment of a sum of money for the purpose of preventing or settling an industrial dispute.

An `industrial dispute' is defined in section 3(1) of the Act to mean a dispute relating to an industrial matter. `Industrial matter' is defined to mean any matter pertaining to the relation of employers and employees, and includes any matter relating to rates of remuneration, the conditions of employment and the relations between employers and employees (with specified exemptions).

It is clear therefore that the Commission, acting under sections 29 or 30, may be involved in the prevention or settlement of a dispute in which money matters are an issue.

The power given by section 31(1) is to direct by order in writing that anything be done or any action be taken for the purpose of preventing or settling an industrial dispute. That power is unrestricted in its terms, and in our view should not be read down as excluding the power to order that a payment or payments of money be made where such a payment can properly be regarded by a Commissioner as appropriate for the purpose of preventing or settling the dispute.

For these reasons we consider that paragraphs (a) and (b) (i) and (ii) of appeal ground 21 are not sustained. However we acknowledge that the Commission is not empowered to award money in the nature of damages at common law as outlined in appeal ground 21(b)(iii).

As to the University's submissions on the significance of Section 70 of the Act and its relationship with decisions taken under Section 31 of the Act, I rely on the later decision2 of Mr Justice Cox in the Supreme Court matter The Queen v Gozzi, Newtown Timber and Hardware Pty Ltd., ex parte (A96/1994) in particular where the judge said:

"... Here Mr Gurr is not, apparently, supported by a union; but the Tasmanian definition does not require that the dispute be between the employer and employee, merely that the dispute should relate to a matter pertaining to the relations of employers and employees, including terms and conditions of employment. That, in my view, is wide enough to encompass disputes relating to the termination of the employment and consequently of the relationship between this employer and this employee. `Industrial dispute' includes, by definition, a dispute relating to the dismissal or reinstatement of an employee. While one could only dismiss an employee, one could not reinstate a person other than a former employee. The Act consequently contemplated that the Commission would have jurisdiction in respect of disputes involving persons dismissed as employees and who, when no longer holding that status subsequent to dismissal might, in appropriate circumstances, be reinstated. When one adverts to the provisions of s70 it is clear that the Commission has power to order money payments to be made to a person who has been dismissed and not reinstated. Few things could pertain more intimately to the relations between an employer and an employee than the manner in which the latter's services are terminated."

In this latter context, Section 70 refers to certain matters which may be appealed, but the matters covered by this case are not the same and, not being specified in Section 70, may be construed as coming under the jurisdiction of Section 31 without qualification.

The quotation above from The Queen v Gozzi case also confirms the Commission's general jurisdiction in this dispute.

Because of the restrictions placed upon me by Section 3 of the Act in the definition of `industrial matter' which says in part:

"... but does not include a matter relating to - ...

(i) appointments, or promotions, other than in respect of the qualifications required for advancement."

I believe I am unable to order that Mrs Saarinen be given the tenure she would have aspired for had she been able originally to apply for her position clearly advertised internally since I would be appointing her to a new position, all previous contracts no longer existing: moreover, to do that would be to put Mrs Saarinen in a position more advantageous than she had been prior to her application.

For the same reason under Section 3, I believe I am unable to order that Mrs Saarinen be given a three-year contract as sought.

In all the circumstances therefore, in accordance with the powers given to me under Section 30 (1) of the Act so as to settle this dispute and consistent with my decision that the University did treat Mrs Saarinen harshly and unjustly by failing to honour the Agreement in relation to her position at the University, I order that within 21 days from the date hereof, the University pay to Mrs Jan Saarinen of Launceston, a sum equivalent to the amount of money she would have received had she been employed on a three-year contract of employment, under the same terms as her last contract of employment with the University, but at the rate she would have been paid at the date of this decision, together with a further sum equivalent to the amount of money she would have received had she been employed on the same basis between the commencement of the University's academic year in 1995 and the date of this decision.

P A Imlach
COMMISSIONER

Appearances:
Mr S McElwaine, Zeeman Kable and Page for Mrs Jan Saarinen
Mr S Andrews with Mr G Jones for the University of Tasmania
Ms E Floyd, National Tertiary Education Union

Dates and place of hearing:
1995
July 4
Hobart

1 T4774 of 1993
2 File No/s M31/1994