T10620
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Health Services Union of Australia, Tasmania No. 1 Branch DISABILITY SERVICE PROVIDERS AWARD
Award variation - application amended - Leave and Holidays with Pay - application approved - operative date ffpp 1 April 2003 REASONS FOR DECISION [1] This amended application was lodged pursuant to s.23 of the Industrial Relations Act 1984, by the Health Services Union of Australia, Tasmania No. 1 Branch (HSUA). [2] Mr Brown for the HSUA and the Australian Municipal, Administrative, Clerical and Services Union, sought to vary the Disability Service Providers Award, Part VI - Leave and Holidays With Pay, Clause 5 - Holidays With Pay as set out in Exhibit HSUA.1. [3] He submitted that the variation sought to remove ambiguities that occurred at the time when the Welfare and Voluntary Agencies Award1 [which shortly after became the Disability Service Providers Award] was restructured under the Wage Fixing Principles, and to ensure that the clause was clear in regards to employee entitlements. [4] Mr J O'Neill, from the Tasmanian Chamber of Commerce and Industry Limited, in support of the application and the submissions of Mr Brown stated:
[5] The only area of difference between the parties was the issue of the operative date. OPERATIVE DATE [6] Mr O'Neill submitted that the agreed variation should take effect from the first full pay period commencing on or after 1 July 2003. He said there was some employers within the industry who were interpreting the award strictly in accordance with the plain English meaning of the words. He said the award in its current construction does not provide for a day off in lieu for an employee where a holiday falls on their scheduled day off, and this was clear from Part VI, Clause 5(c) of the award that states:
[7] Mr O'Neill contended that the clause did not provide for a day off in lieu where a scheduled day is being observed. He said there were some in the industry that have been interpreting the award strictly on that basis. Given that Regatta Day falls on 10 February, the Eight Hour Day on 10 March, Good Friday 18 April, Easter Monday 21 April, ANZAC Day 25 April and the Queen's Birthday falling on 9 June, employers strictly following the current award provision would be up for additional costs. This was so, he said because:
[8] Mr Brown opposed the submissions of Mr O'Neill and suggested that the operative date should be from the first full pay period following the decision. He said, in terms of time frame, the HSUA had been dealing with this for well over 12 months and there had been numerous attempts to seek an agreement with the industry. Insofar as the cost on the industry, it was his contention that it would be very little and certainly not warrant the operative date claimed by Mr O'Neill. [9] Mr Brown also submitted that it was an issue predominantly for full time employees and there were very few full time workers within this industry. [10] Mr Brown said, in regard to part time employees, the part time employees would only get paid if in fact they were on a scheduled day off. If a part time employee was not rostered for the full roster pattern then they probably did not have scheduled days off in any case. He said for a part time employee who worked only on a Thursday and a Friday, the concept of scheduled days off was effectively irrelevant. He said, for those employees who work every day in a roster pattern, the scheduled days off provision would apply, however, it would only apply on a pro-rata basis under the new provision. But, he submitted, there would be very few part time employees who would have their scheduled day off on a day that was a holiday with pay. [11] Mr Brown argued that the cost impact would not be great as the numbers involved would be extremely small. [12] Given the submissions of the parties and the degree of consent, I approve the variation to the award in the manner sought by Mr Brown. However, on the question of the operative date of the Order giving effect to this decision, I would have to conclude that I am unable, with any certainty, to establish the economic impact on the industry by granting one claim over another, as the submissions of the parties lacked sufficient supporting evidence. Given those circumstances, I am of the view that it would be best to grant a prospective operative date. This will allow time to make any changes to rosters, if indeed that is necessary. [13] The Order giving effect to this decision is attached and will be operative from the first full pay period to commence on or after 1 April 2003.
R J Watling Appearances: Date and place of hearing: 1 HSUA.2 - Order No. 4 of 1993 (Consolidated) Welfare and Voluntary Agencies Award |