T6226
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Community & Public Sector Union and Minister for Public Sector Administration
Industrial dispute - alleged breach of an award - translation to be phased in as opposed to being immediate - no breach found - application rejected REASONS FOR DECISION This application, lodged by The Community & Public Sector Union (State Public Services Federation Tasmania) (the applicant), pursuant to section 29 of the Industrial Relations Act 1984, was for the purpose of settling an industrial dispute between the applicant and the Minister for Public Sector Administration (the employer) over the alleged breach of the Administrative and Clerical Employees Award, in respect of two employees - one in the Department of Education, Community and Cultural Development and the other in the Department of Treasury and Finance (the complainants). Before dealing with the specifics of this case there is a need to reflect on the recent amendments to the Administrative and Clerical Employees Award. On 6 February 1996 a Full Bench of the Commission issued an Order by Consent arising out of application T5741 of 1995. That Order, which was operative on and from 7 March 1996, introduced a new 12-level salary range and a classification standard for each of those levels. A provision was also included enabling employees to be translated from the old award structure to the new. The employer translated the two employees at the centre of this dispute to the next highest salary point above that which they were receiving. From there they would move in stages to the top of the new salary level to which they were allocated. Ms Strugnell, for the applicant, presented full and comprehensive submissions in support of her contention that the complainants, who had received notice from the employer of their substantive classification level, were not in receipt of the salary specified in the award for the classification to which they were appointed. Evidence was given under oath which established to my satisfaction that the complainants were appropriately classified, at a level within the award, for the work they were undertaking. Mr Pearce, for the employer, did not contest the work undertaken by the complainants nor the classification level assigned to them. However, he vigorously contested the allegation that the employer was in breach of the award. He strongly maintained that the employer had followed the agreed procedures for translation arising out of the Order of the Full Bench (T5741 of 1995). He said it was never envisaged that employees would be translated immediately to their new level, but it would be a phased translation with employees reaching their new level over time. In respect to the complainants, Mr Pearce maintained that they were still progressing to their new level via a phasing process and, as a result, it could hardly be said that the employer was in breach of the award. Mr Pearce took the Commission to the transcript of the Full Bench hearing (T5741 of 1995), dated 1 February 1996, to demonstrate his contention. He also directed my attention to other documentation (Exhibit P.1) which clearly indicates the intention of the parties; that is, the translation was to be phased in with some employees reaching their appointed classification level sooner than others. Mr Pearce, in a further attempt to convince the Commission that the translation process was to be a `phased' process as opposed to being `immediate', that is on and from the operative date of the Order, took comfort from the explanatory notes contained in Annexure A of the Administrative and Clerical Employees Award where it stated inter alia:
The word `progress', in my view, means progress by annual increments and not on and from the operative date of the award. Having considered all the submissions of the parties during the course of this hearing and the Order arising out of matter (T5741 of 1995), I have arrived at the conclusion that the translation process to the new award structure clearly envisaged that employees will move to the next highest salary point above that which they were receiving and then progress in stages to the top of the new level to which they have been appointed. Given all the foregoing, I am not prepared to accept that the employer is in breach of the Administrative and Clerical Employees Award. The complainants, being the subject of this application, are not entitled, in my view, to receive the salary assigned to their respective classification level until such time as the phased translation process has taken them there.
R J Watling Appearances: Date and Place of Hearing: |