T6642
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Community and Public Sector Union
Industrial dispute - threatened or impending termination of employment REASONS FOR DECISION This application by The Community and Public Sector Union (SPSFT) sought the assistance of the Commission to restrain the corporate body known as Tasmania Development and Resources (TDR) from proceeding with the process it had announced, known as "spill and fill" for restructuring the Authority. The CPSU informed the Commission that TDR proposed to establish a completely new organisation structure. All positions in the new structure would be advertised and current TDR employees would be free to apply for any or all positions for which they felt suitable. The new structure would see the loss of 37 positions compared with the existing structure. Employees had been briefed by management about the proposals and had been invited to apply for a voluntary redundancy in line with the Government's redundancy policy. A number of employees had so applied. Those employees who were not selected for a new position would be released in accordance with their contract or, if they were state servants, would be placed on the unattached list in accordance with the Tasmanian State Service Act 1984. The programme was to advertise the senior levels first and progress downwards to the lower levels of employment. The seven senior management positions had been filled by direct selection. The CPSU submitted that it was not opposed to the restructuring but it considered the process the Authority had adopted was unfair. A document entitled Staffing the New Organisation - "everything you need to know" was tendered as an exhibit. The document set out the Board of TDR's new strategies, its proposed new structure and method of recruitment ("spill and fill"). Staff who were unhappy with the recruitment process and who felt the process was unjust or unfair could apply to a three person independent panel to have their grievance heard. All new staff would be required to sign a new contract of employment which would preserve all existing conditions of employment. Staff would be deemed to be redundant if a voluntary redundancy or early retirement application was accepted or if all opportunities to gain selection for a new position with TDR were exhausted. An implementation timetable was attached suggesting that the process would take twelve weeks to complete. The TDR contended that the recruitment strategy was the fairest and most painless method of restructuring. Whilst acknowledging some employees would be distressed, it was considered better to get the process concluded as quickly as possible to reduce the period of uncertainty and to enable the TDR to get on with its work in accordance with its new strategies and objectives. The TDR agreed to meet with the CPSU to examine issues such as "threatened termination, grievance procedures and salary maintenance". The CPSU subsequently reported some satisfaction from the discussions but was concerned that the TDR was determined to pursue the "spill and fill" approach to recruitment. It restated its wish to have the Commission restrain the TDR from continuing with the "spill and fill" process. Given my concern about the proscriptive nature of paragraph (i) of the definition of "industrial matter" in the Industrial Relations Act which declared that "appointments, or promotions, other than in respect of qualifications required for advancement;" are excluded from matters which are "industrial matters" the CPSU sought the opportunity to address the Commission on that point. Mr Grueber for the CPSU took the Commission through the definitions of "industrial dispute" and "industrial matter" and the application of Section 29. He submitted that the effect of TDR's proposed "spill and fill" essentially was to terminate the contracts of employment of all employees, "to void the current status" of employment and then to restate them in perhaps a similar, but potentially a different, form. He referred to a number of precedents in particular R v Portus ex parte ANZ Bank (1973) 127 CLR 353 in relation to what constituted an "industrial matter" and the limitation on the Commission's authority to regulate the relationship of master and servant and matters which are truly material to that relationship. It was Mr Grueber's view that since the Act specifically dealt with termination and reinstatement of employment as industrial matters the dispute was capable of being dealt with as an industrial dispute. He argued that as a general principle the definition of industrial matter did not include managerial prerogative and he submitted that such managerial prerogative matters were set out in paragraphs (c) through to (i) of the definition of "industrial matter"; although it was not an exhaustive list. Notwithstanding that submission, Mr Grueber contended that the concept of management prerogative should be restricted to a narrow scope. He added that the Commission should stand ready to respond to the need to regulate the relationship between employers and employees whenever that need became apparent. Once satisfied that jurisdiction existed, there was no fetter on the power of the Commission to make orders to settle the dispute even if the orders affected managerial prerogative. Mr O'Farrell for the TDR expressed the opinion that the expression "spill and fill" was not an accurate description of the process which was, he said, more precisely "fill and spill". He said that the appointment of an individual was the trigger for the "spill". He argued that the Commission did not have jurisdiction to hear a matter which related to the appointment of employees because that was an excluded matter. Mr O'Farrell submitted that the Commission could deal with a matter in these circumstances on the actual termination of someone's employment or when it became inevitable that someone's employment would be terminated by reason of the spill and fill process. It was submitted that the spill and fill process had commenced in relation to the level 7 and level 8 positions (the top levels) and any delay in the process would not be appropriate. The TDR had been expecting further consultation with the union which had not taken place and it would be unfair on the organisation and on the employees to delay the restructuring. It was claimed that TDR had delayed the process by a week to have discussions with the CPSU. Applications for positions in levels 5 and 6 would not close until 5 working days after the position descriptions were available and effectively the process had been slowed down by 2 weeks. The TDR was not willing to delay any further. I have considered the arguments of both parties and am persuaded that the application and the remedy sought are within the jurisdiction of this Commission. The application deals, obviously, with the relations between the employer and its employees and the mode, terms and conditions of employment as provided in the definition of industrial dispute in the Act. The definition of an industrial dispute specifically includes a dispute relating to termination of employment and section 29(1) allows an organisation to apply for a hearing in respect of an industrial dispute that has arisen or the applicant considers is likely to arise. The appointment of individuals to new positions is not the issue. The employees, through the CPSU, have indicated their concern over the process of recruitment and termination, in whatever order, and regard it as unfair. They ask simply that the TDR be required to prepare and release position descriptions for all of the new jobs in the new structure. Thus enabling existing staff and the union, the opportunity to assess those positions against the current positions to determine what positions are new and conversely to establish what positions should continue to be occupied by current employees. I consider that is a reasonable request and it disappoints me that the TDR has deemed it necessary to proceed, in haste, with its current proposal. It should be made clear that I am concerned that the TDR has taken such a cavalier approach to the restructuring of its staffing needs. An approach which seems to me to indicate to its employees, at least a substantial number of them apart from the employees appointed to the seven senior positions prior to the spill and fill process, that they do not have the confidence of management and/or that their value as employees is not regarded very highly. Although I was told on many occasions that management was sympathetic to its employees and wanted to do all it could to alleviate any distress employees might be suffering. Despite my many requests that the TDR step back from the "spill and fill" process to accommodate the wishes of the CPSU and its members, representatives of management have steadfastly refused. Accordingly, having found jurisdiction for the hearing of this dispute, in accordance with Section 31(1) of the Industrial Relations Act 1984 I hereby order that the corporation known as Tasmania Development and Resources in relation to any or all its employees employed as of this date, must not take any further action, or further engage in any action that will alter or affect in any way, or threaten to alter or affect in any way the mode, terms or conditions of employment of any current employees of Tasmania Development and Resources. Such order to remain in force until 31 January 1997. In the interim, position descriptions for all new positions in the restructured Authority are to be prepared and made available to The Community and Public Sector Union (State Public Services Federation Tasmania). At any time prior to 31 January 1997 this application will be re listed at the request of the applicant for further consideration by the Commission.
F D Westwood Appearances: Date and Place of Hearing: |