T10080
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Liquor, Hospitality and Miscellaneous Workers Union - and Minister Administering the State Service Act 2000
Industrial dispute - employment status - permanent employee or fixed term contract - State Service Act - award provisions - reduction in hours of work - application dismissedREASONS FOR DECISION [1] On 4 March 2002, the Australian Liquor, Hospitality and Miscellaneous Workers Union, Tasmanian Branch (ALHMWU) (the applicant) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Minister Administering the State Service Act 2000 arising out of the reduction in the hours of work of Michael Fairbrother by the Department of Education. [2] The matter was set down for hearing (conciliation conference) at "Lyndhurst", 448 Elizabeth Street, North Hobart at 11.00am Friday 15 March 2002. [3] Mr P Tullgren, together with Ms J Archer, appeared for the ALHMWU. Mr P Gourlay, together with Mr P Cleaver, appeared for the Minister Administering the State Service Act. [4] From the outset both parties indicated that negotiations aimed at settling this dispute had been unsuccessful. Whilst the parties indicated a willingness to participate in a private conference, the issue between the parties was intractable and there was little or no prospect of a conciliated settlement. As a consequence the Commission took the unusual step, with the consent of the parties, of proceeding immediately to hearing. [5] Subsequent to the hearing I wrote to the parties seeking copies of correspondence that had not been tabled during the hearing. In accordance with s.20[4] of the Act, the parties were provided with an opportunity to make written submissions in relation to this correspondence. [6] Importantly, the Commission is asked to decide a question relating to the legal ability of the Department of Education to take the action in relation to Mr Michael Fairbrother that it did. This is not necessarily the same issue as the industrial fairness or otherwise of the Department's actions. Background [7] Mr Fairbrother commenced employment as a part-time Groundskeeper on 13 November 1995. The initial appointment was at West Somerset Primary School on the basis of 22.5 hours per week. His status was that of a temporary employee. [8] With effect from 24 June 1999 Mr Fairbrother was transferred to a position at Wynyard High School with the same hours of work. [9] On 1 May 2001 Mr Fairbrother's status was changed to that of a permanent employee pursuant to s.17 of the State Service [Savings and Transitional Provisions] Act 2000. [10] With effect from 16 May 2001 Mr Fairbrother was transferred on a temporary basis to Parklands High School. At the same time his hours of work were increased to 80 per fortnight, ie it became a full-time position. [11] This transfer was formalised by a letter dated 15 May 2001 which reads as follows:1
[12] During the hearing there was reference to a meeting at Parklands High where this pending transfer was apparently discussed. However as no evidence was called in relation to this meeting, it is not something that I can take into account. I do, however, accept that a meeting involving Mr Fairbrother and the School Principal took place. [13] On 5 December 2001, the Department wrote to Mr Fairbrother in the following terms:
[14] Following receipt of this letter the ALHMWU became involved on Mr Fairbrother's behalf. As a consequence it was agreed that Mr Fairbrother's hours of work would remain unchanged pending further discussions. The Department maintains that this extension was on a "without prejudice" basis and subsequently produced an e-mail to the union, which tends to support this position. [15] This status quo position was further extended by the Department until 8 March 2002, pending a further meeting with the union on 28 February. This meeting failed to find a resolution and Mr Fairbrother reverted to a 45-hour fortnight on 8 March. He has however continued to work at Parklands High. [16] Mr Tullgren contends that the Department acted without power and contrary to the award by unilaterally reducing Mr Fairbrother's hours of work from 80 to 45 per fortnight. Further, the linking of Mr Fairbrother's hours of work to performance related issues, as he suggests is inherent in the 15 May letter, is contrary to the State Service Act. [17] Mr Gourlay, on the other hand, submitted that Mr Fairbrother at all material times was a permanent part-time employee. He accepted a temporary transfer, which also embraced a substantial increase in hours for a fixed term. At the end of the fixed term [21/12/01 and subsequently extended to 8/03/02] the arrangement came to an end and Mr Fairbrother reverted to his substantive classification of a permanent part-time employee. [18] It is appropriate at this stage to indicate that I feel disadvantaged by the absence of witness evidence from either side. This is essentially a dispute about the nature of Mr Fairbrother's contract of employment. In such circumstances verbal understandings/ undertakings etc are often as important as the written word. However both sides indicated that they were content to allow the Commission to determine the matter on the basis of submissions and documents tabled. State Service Act 2000 [19] Relevantly, s.37[3] reads as follows: "(3) The appointment of a person as an employee is to be - (a) as a permanent employee; or
[20] Mr Tullgren contended that an employee must be one or the other, either a permanent employee or a fixed term employee. He said:2
[21] This of course must be read in conjunction with other sections of the Act. [22] For example, s.37[3] provides for the Minister to change the employment status of an employee from fixed term to permanent. By inference, it would be beyond power for the Minister to unilaterally alter someone's status from permanent to fixed term. [23] Sections 38[3], [4], [5], [6] and [7] relate to the protections applicable to permanent employees who accept fixed term appointments. In summary, such employees retain all accrued rights, and may return to their substantive position with no loss of salary at the expiration of the fixed term. [24] Clearly, the Act contemplates permanent employees accepting fixed term appointments and then reverting to their permanent status at the conclusion of the fixed term. One of the issues to be determined in the instant case is, whether there was genuine consent to the change, and if so, what was the basis of the consent. [25] A further issue to be determined is whether Mr Fairbrother was "appointed" to the full-time position in accordance with s.37, noting that s.37[2] allows the Minister to delegate the power of appointment. [26] Section 38[1] states that "The terms and conditions of employment of employees are to be those specified in an Award ...". [27] In this case the relevant award is the Miscellaneous Workers [Public Sector] Award. The relevant provisions of the award are covered later in this decision. [28] Section 34[1] states in part:
[29] A number of questions arise from this section, particularly subsection {e], which enables a Head of Agency to assign duties and vary those duties. [30] The Department contends that under this section, a Head of Agency may determine the duties, the physical location and the hours during which an employee is to perform such duties. [31] Mr Tullgren submitted that the power under this section was limited to the matter of duties. There was no specific power to temporarily transfer employees other than voluntary transfers between Agencies [s.41], compulsory transfer between Agencies [s.42], secondment [s.46], and redeployment [s.47]. He said that where a particular procedure is designated to achieve something, other procedures are thereby excluded [see R v Wallis] 3. [32] Mr Tullgren further submitted that the alteration of hours of work could only be done in accordance with award provisions. [33] Section 48 deals with the inability of employees to perform duties. Mr Tullgren made the point that whilst this section provided for a range of measures to address the inability of an employee to efficiently and effectively perform duties assigned, a reduction in hours was not one of those options. [34] Mr Tullgren referred to the 15 May letter and in particular the following passage:
[35] He submitted that there was no power under the Act to reduce hours based on performance criteria, and as such, the conditions inherent in the 15 May letter was "beyond power". The Award [36] Clause 7 defines a part-time employee as follows:
[37] Whilst a full-time is not defined, Clause 17 - Hours of Work can only reasonably read as meaning an employee, who on average, works 38 hours per week. [38] Clause 17A[g] reads:
[39] Mr Tullgren's contentions can be summarised as follows:
[40] Mr Tullgren sought an order in the following terms:
[41] Mr Gourlay referred to Appendix A of the award and in particular Attachment A: Utilisation of Resources. He said that the groundskeeping allocation at Parklands High was one full-time employee and hence Mr Fairbrother's appointment was "an above award situation". [42] It followed "that that can be changed or varied in that Mr Fairbrother can be transferred as a permanent employee or as the new State Service Act refers to, ... the head of agency has the power to, the functions and powers of heads of agencies under section 34[1] - 34[1][e] - is to assign duties to each employee within that agency and to vary those duties"4. Financial Considerations [43] The following exchange took place at page 20 of the transcript:
Findings [44] There can be no doubt that prior to 15 May 2001, Mr Fairbrother had the status of a permanent part-time employee. Neither party argued that he became a fixed term employee subsequent to 16 May 2001. Having closely examined the factual circumstances relating to this period of employment, I find that Mr Fairbrother was not appointed as a fixed term employee within the meaning of s.37[3][b] of the State Service Act. [46] This leaves only two possibilities, namely:
[47] I accept Mr Tullgren's contention that it is not open to an employer to unilaterally reduce the hours of work of a permanent, full-time employee. Such an action would amount to a constructive termination. [48] I do not accept that the reference to assigning and varying duties in s.34[1][e] can be read to embrace the power to alter hours of work, if such action is found to be contrary to the award. [49] I am unable to make a finding as to whether this head of power goes to the matter of transfer. On the information available to me, the Act is silent on the question of intra agency transfers as in the case of Mr Fairbrother. It does not, however, necessarily follow that intra agency transfers are contrary to the Act. In Wallis, Dixon J. said:
[50] In my view an intra agency transfer is not the same as voluntary or compulsory transfers between Agencies. It is beyond comprehension that the Department of Education would not have a well-established policy procedure for internal transfers and such a policy would not in my view be contrary to the Act. It would appear that Mr Fairbrother had been subject to such internal transfers in the past. [51] I do not accept that Mr Fairbrother's physical location at Parklands High, both prior to December 2001 and subsequently, has any bearing on his employment status. [52] On the basis of the information available to me, I accept Mr Gourlay's submission that Mr Fairbrother's continued presence at Parklands at 40 hours per week, for the period 22/12/01 to 8/03/02, was on a without prejudice basis pending negotiations with the union. [53] I accept Mr Tullgren's contention that linking hours of work to performance criteria is contrary to s.48 of the State Service Act. There is of course a logical reason why reducing hours is not one of the options available. If there are performance related issues, reducing hours does not address the performance issue. It simply reduces the amount of time in which the same issue/s can manifest itself. I hasten to add that this is a generalised observation and not directed at Mr Fairbrother. Apart from the odd oblique reference, there was nothing put to me which would enable a conclusion one way or the other. [54] It follows that if Mr Fairbrother was offered a permanent full-time contract of employment, with the continuation of the hours of work component linked to performance, then I would conclude that such a contract would be contrary to the Act, or in Mr Tullgren's words:5
[55] The question to be determined is whether the letter of 15 May falls into this category. [56] Mr Tullgren contends that, because there is no statutory or award basis to accommodate a temporary increase in hours [to full-time], then it is not open for the parties to agree on such an arrangement. I do not accept this contention. I agree with Mr Tullgren to the extent that it is not open for parties to enter into an agreement that is contrary to the award or statute. However in circumstances where a course of action is not proscribed, then I can see no barrier to parties entering into such an arrangement, provided the consent is genuine. [57] It would not be open for an employer to unilaterally change the status of an employee from permanent part-time to permanent full-time. Such an action could well amount to a constructive dismissal in the same manner as the reverse. There is, however, no barrier to the parties genuinely agreeing on such an arrangement, even if it is for a limited duration. [58] The first part of the 15 may letter is quite explicit. It refers to a temporary transfer at full-time hours for the period 16 May to 21 December 2001 inclusive. The second part of the letter dealing with the performance review is less clear. The question is, did Mr Fairbrother consent to this arrangement? [59] On this question Mr Tullgren said:6
[60] As stated earlier, it is a matter of regret that neither Mr Fairbrother nor the employer gave evidence, which may have shed some light on this question. [61] It was in my view open to Mr Fairbrother to refuse to accept this new role if he found the terms unacceptable. He chose not to and there is no evidence that his acceptance of the position was in any way conditional. I therefore conclude that, on the balance of probabilities, Mr Fairbrother did consent to the arrangements outlined in the 15 May letter. [62] Leaving aside the issue of linking hours of work to performance [which is not an option under s.48], a fair reading of the 15 May letter would have quite reasonably created an expectation in Mr Fairbrother's mind that employment on a full-time basis would be ongoing. It is quite understandable that he would have been disappointed when this did not materialise. [63] It is, however, important to note that the letter uses the expression:
[64] This expression at least contemplates the possibility that the arrangement would not continue, even if Mr Fairbrother's performance was exemplary. [65] The expression above is quite different in character to a hypothetical expression such as:
[66] I therefore conclude that the action taken by the Department was not contrary to the State Service Act or the award. [67] There is one further aspect that causes me some concern. The use of fixed term contracts, whether they be statute or common law based, should be for an identifiable purpose. Examples would include a specific task or project, coverage for extended leave of absence [eg parental leave], or for the term of a specific funding vote. [68] Such contracts should not, in my view, be used by an employer simply as a means of keeping all options open. I am not suggesting that this was the case in relation to Mr Fairbrother, but it does concern me that the arrangement was unilaterally brought to an end, apparently without reason. Certainly the letter of 5 December throws no light on the rationale for the Department's decision. During the hearing there were vague but inconclusive references to performance issues and also, in response to a question from the Commission, an oblique reference to a funding issue. [69] There should, in my view, be a transparent and rational explanation as to why the arrangement came to an end. From what was put to me Mr Fairbrother has every right to be disappointed with the outcome. Had I been dealing with the industrial merits of the case I would have explored these issues further. It may well be that there is a perfectly rational explanation for the Department's decision, but it certainly was not put to me. [70] The only question for me to determine is whether the Department acted within power. I have already found that it did, and I therefore decline to make the order sought by the applicant. [71] The application is dismissed.
Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit A3 |