T11324, T11488 and T11477
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Community and Public Sector Union Minister Administering the State Service Act 2000 General Conditions of Employment Award
Award variation - district allowances - travel allowances - whether allowances should apply to all employees in remote locations - whether allowances should only apply when employees directed to work in remote locations - award varied - operative date ffpp 17 September 2004 REASONS FOR DECISION [1] On 16 February 2004 an application was lodged by The Community and Public Sector Union (State Public Services Federation Tasmania) Inc., ("CPSU"), pursuant to s.23 of the Industrial Relations Act 1984 ("the Act"), to vary the General Conditions of Employment Award ("the award"). The application sought to vary Clause 24 - Location Allowances. A further application to vary the award in relation to Clause 32 - Travel Allowances - was received from the CPSU on 12 May 2004. An application dealing with the same matters was received from the Minister Administering the State Service Act 2000 ("the employer") on 5 May 2004. [2] A hearing commenced on Thursday 17 June 2004 at the Commonwealth Law Courts, Hobart. It was agreed that the three applications be joined. Mr R Miller appeared for the CPSU and for the Health Services Union of Australia Tasmania No. 1 Branch ("HSUA"), and Mr T Pearce appeared on behalf of the employer. The hearing was resumed on Thursday 12 August 2004, at which time Mr C Lane sought and was granted leave to intervene on behalf of the Australian Education Union (Tasmanian Branch) ("AEU"). BACKGROUND [3] There is a history of disputes dating since 1991 concerning the payment of allowances to employees located on the Bass Strait Islands. It has been the practice of the Department of Primary Industries Water and Environment ("DPIWE") not to pay district allowances and airfares to people who were resident on the islands when they were recruited. In denying the payment of the allowances to those employees, the Department has relied upon the words in the award that say that such allowances may be paid "on the determination of the controlling authority". District Allowance [4] Clause 24 - Location Allowances, provides:
[5] The award provides for differing rates for employees who live in remote locations including Bass Strait Islands, Maria Island and Bruny Island; locations under the Commonwealth Taxation Zone B prescription; and special locations as may be approved by the Tasmanian Industrial Commission. The rates vary from $373 to $2988 per annum. [6] On 4 September 1991 Robinson DP issued a decision in a dispute (T3218 of 1991) concerning the refusal by the (then) Department of Primary Industry to pay the district allowance to an employee on Flinders Island. One of the department's arguments was that the payment was discretionary and it was not their policy to pay the allowance to employees who are recruited from the local community because there can be no "excess costs necessarily incurred". Robinson DP determined that the district allowance should be paid to the employee. He said, inter alia:
[7] Robinson DP ordered, in settlement of the dispute, that the employee be paid the allowances and:
[8] Had the award been varied in that manner, it would have had the effect of removing the perceived discretion and ensuring that all employees in remote locations, as defined, would receive the district allowance. [9] An application in those terms was filed by the union (T3424 of 1991), as was a counter-application by the employer, (T3526 of 1991). The employer's application sought to distinguish between local and non-local recruitment as the determinant for payment of the allowance. For various reasons, those applications were not proceeded with, and DPIWE continued their practice of not paying the district allowance to employees who were local residents when recruited. [10] On 26 February 2004, Abey C, in matter T11180, heard a similar dispute, again concerning DPIWE. At issue was the fact that the Department had not paid location allowances to two employees who were resident on Flinders Island prior to commencing employment with DPIWE. The position of the Department, again, was that the payment of district allowances was based on a policy that, they said:
[11] Commissioner Abey found that on the plain meaning of the words in the award:
[12] Abey C supported the conclusions reached by Robinson DP and ordered that the two employees concerned be paid the district allowance and that:
[13] The CPSU has now sought an order in those terms, with an additional change in the proviso to add the word "partner" before the word "spouse", taking into account the Relationships Act 2003, and other changes which replace gender-specific terms with gender-neutral terms. [14] The application lodged by the employer seeks to have the award varied by substituting the existing opening sentence of clause 24(b)(ii) (Location Allowances) with the following:
and inserting a new paragraph (iii) as follows:
Travel Allowances [15] The payment of travel allowances has also been the subject of disputation before the Commission, with DPIWE presenting the same arguments in respect of their policy of differentiating between employees who were residents of the Bass Strait Islands and those recruited from off the island, with payments being made to the latter only. Clause 32 - Travel Allowances - currently provides inter alia:
(1) with the approval of the controlling authority concerned, an employee may, in substitution for travel to the nearest seaport or airport in this State, travel to any other seaport or airport in this State or to Melbourne; (2) for the purpose of obtaining emergency medical or dental treatment for an employee or dependent member of his family, permanently resident on the Bass Strait Islands, an employee may by way of reimbursement and, with the approval of the controlling authority concerned, be paid the return fare reasonably incurred for travel from his station to the nearest centre in this State or to Melbourne, whereat such treatment can be obtained. Such reimbursement shall be in substitution for one or both of the return fares for the person concerned, more particularly set forth in this paragraph; (3) the above entitlement is not cumulative, each year standing alone; (4) no employee shall be eligible to receive payment for the return fares as set forth above unless such employee has first completed three months continuous service on one or other of the Bass Strait Islands." [16] The CPSU has applied to have the clause varied so that the payment of fares is a non-discretionary entitlement available to all employees employed on the Bass Strait Islands, by removing the words relating to the discretion of the controlling authority and replacing "may" with "shall". [17] The application by the employer seeks to delete subclause (c)(ix) and replace it with:
[18] and to delete paragraph (2) of the proviso and replace it with:
[19] The effect of the changes sought by the employer would be that only those persons who were compulsorily transferred to the islands would qualify for the entitlements. This is different to the current policy position of DPIWE, which is that all off-shore recruits receive the payments, whether appointed or transferred. The Questions to be Determined [20] The questions to be determined, therefore, are: · whether the award should be varied to reflect previous orders of this Commission and thus clearly establish district allowances as an entitlement for all employees working in remote locations, or; · whether the award should be varied so that payment of allowances are made only to employees directed to relocate to the relevant areas, and; · whether reimbursement for fares for travel off the Bass Strait Islands should be an entitlement for all employees stationed there, or; · whether reimbursement for fares for travel off the Bass Strait Islands should be limited to those employees who are directed to relocate to the islands. SUBMISSIONS The Community and Public Sector Union [21] Mr Miller (for the CPSU and the HSUA) said that the CPSU had brought the applications in order to remove the discretionary powers of the controlling authority and the outmoded terminology used in the award, and also to bring it into line with contemporary industrial relations practices and previous decisions of the Commission (T3218 of 1991 and T11180 of 2003). The union placed considerable reliance on those two decisions and contended that the award clauses should be varied in accordance with their spirit and intent. [22] There was difficulty, Mr Miller said, with the employer's proposed wording. If someone is transferred or seconded have they been "directed" in an authoritarian sense? Under the State Service Act there is no longer such a thing as being permanently stationed; no one can say that they are in a position for life. [23] The union submitted that there is nothing in the award and no evidence to show that there are caveats or restrictions on employees accessing the allowance because of original residency. [24] On 2 October 1930 a memorandum from the Office of the Public Service Commissioner, Hobart, to the Honourable, the Chief Secretary, said that the words "if employed on" should be removed from district allowances clause and the words "if residing on" be inserted. The reason for this was:
[25] Later, on 5 February 1931, those regulations were changed and gazetted by Gazette Notice No. 36 as follows:
[26] Mr Miller referred to the Public Service (Conditions of Service) Principal Award No. 4 (1974). At page 3, it provides for district allowances for officers required in the performance of their duties to live on Maria and the Bass Strait Islands.5 [27] Mr Miller tendered a letter from Dr A N Smith, the Secretary of the Department of Primary Industry Tasmania, dated 1 October, 1991, to the Secretary of the Department of Employment, Industrial Relations and Training (which was written as a result of the decision of Robinson DP referred to earlier). The letter includes the following comments in relation to Dr Smith's delegated powers as Head of Agency:
[28] In relation to travel allowances, the union's submission was that the entitlement to fares is there for all staff. The necessity for all is to travel off the islands for social activities, health reasons, family reasons and educational purposes. The costs incurred are the same for everyone. [29] Mr Miller said that the CPSU has members in departments other than DPIWE who were resident on the island at the point of recruitment and who are currently in receipt of airfares. The Department of Education had advised him that they paid airfares for employees, such as part-time teacher-aides and office assistants, on a pro rata basis. He said it was abhorrent that the Minister should attempt to remove the long-standing access to airfares from existing or even future staff. [30] Mr Miller agreed with that part of the employer's claim that provided for full entitlements for part-time employees. He said that the cost for an employee travelling off the islands is the same for a part-time employee as it is for a full-time employee. [31] In Mr Miller's submission, if the Commission were to accede to the employer's application, it would undermine the decisions of Robinson DP and Abey C, which have never been appealed. The Australian Education Union [32] Mr Lane, for the AEU, supported what Mr Miller had said. Further, he submitted that the employer's application in relation to district allowances is unable to be easily comprehended, interpreted or complied with. [33] The employer's proposed clauses say that the entitlement will apply to employees whether permanent or fixed term (temporary). How, Mr Lane asked, can they apply to fixed-term employees when they require that employees reside permanently in that location? [34] Given the fact that the employer had foreshadowed that, if successful in this application, then they would seek to make changes in other awards, there is no doubt that not just teaching support staff, but teachers also, would be affected. In that case, very few teachers would be eligible to receive the allowance because the vast majority of teachers, whether permanent or fixed-term, go to those areas for a limited amount of time, probably three years, and in such circumstances they could not claim to have taken up permanent residency. [35] Mr Lane asked: what does the employer mean by "directed"? Does that exclude those who seek to go to such locations, even if for a long time? Does one need to be ordered to move residence permanently to that location? What is meant by "permanent residence"? The Macquarie Dictionary definition of "permanent" is:
[36] If it does not mean one of those things then the word is a nonsense. [37] Mr Lane submitted that the purpose of the district allowance provided for in clause 24 is clear, it states:
[38] The cost of living is the same for all employees, whether directed, voluntary, permanent, temporary, full-time, part-time; or whether previously a resident or just moved into the area. Mr Lane said that the Commission must act according to section 20 of the Act:
[39] Similar comments apply to the employer's proposed amendments to the travel allowances. Mr Lane said it was another attempt to unjustifiably differentiate between employees, it would create inequity within workplaces, causing problems between employees who were undertaking the same work yet were treated differently. [40] Mr Lane agreed with that part of the employer's proposal that provides the same access for part-time workers. He said that was fair and reasonable, when considering the purpose of the allowance, which does not depend upon whether an employee is part-time or full-time. [41] Mr Lane referred to the two previous decisions of the Commission. He said that the CPSU's applications are in line with the directions issued by both Members of the Commission. They seek to provide equity and certainty, which should be the core elements of any award clause. [42] Section 36 of the Act states:
[43] Mr Lane submitted that the CPSU's application complies with the public interest tests. The increased costs would not harm the economic position of the government agencies concerned and the proposal will not affect the economy of Tasmania or reduce employment. Fair and equitable outcomes are likely to assist government agencies in attracting and retaining good quality employees in such locations. The Minister Administering the State Service Act [44] Mr Pearce, for the employer, said that their applications are for the purpose of giving clarity to what should be the correct application of the award in relation to the district allowances and airfares. The submissions now being put are the same as made before Deputy President Robinson in 1991 and before Commissioner Abey in 2004, and again in other proceedings before the Commission as presently constituted. On the previous occasions the Commission had determined the matter in favour of the union. [45] Mr Pearce said that various other agencies have people located in remote areas such as the west coast and the islands, all of which are bound by various awards that have the same prescription as the General Conditions of Employment Award. He submitted that there had been a benign and beneficial interpretation of the award on the part of certain heads of agencies. The employer would be seeking that the allowances no longer be paid to any new employee and would address the range of options that would be available in respect of existing employees who might be disentitled and who are accustomed to receiving a benefit. [46] Mr Pearce tendered an extract from the Public Service (Conditions of Service) Principal Award No. 4 dated 31 May 1974. He referred to "Mainland Allowance" which reads, in its opening paragraph:
[47] He argued that that provision could in no way be construed to provide an allowance to a person recruited on the mainland to work on the mainland. It was clearly and solely directed at officers transferred from Tasmania to the mainland. The words "permanently stationed" distinguish such an officer from one who might attend the mainland on an intermittent basis. Those words are used in the context of the district allowance [in the current award]. The employer's position is that persons who are resident in remote locations or on the islands and who are successful in gaining employment locally, or those who are existing employees who may visit the islands on an intermittent basis, have no prima facie entitlement to the district allowance. [48] Mr Pearce submitted that the employer's fundamental position is that the entitlements are intended for those who, because of the direction of the employer, have little choice but to take up residence on the islands. Only those who are involuntarily transferred and directed to go there would receive the allowances. He said that central to the question of a disability allowance is how someone acquired the disability: was it by choice or involuntary transfer? Where people have chosen the disability the disability allowance should not apply. Where there is an involuntary transfer, it is the actions of the employer that attract the additional expense and that should be met by way of a compensatory allowance. [49] The application in relation to the travel allowance provisions seeks to remove the discretionary element and to make it specific that the entitlement to the benefits of air travel is to be solely directed to those employees whose employment in the remote location results from a direction of the employer, eg an involuntary transfer or a first year teacher posted to a remote location. [50] In the employer's submission, those persons who exercised their free option to move to and remain in a remote or isolated locality ought not to be entitled to the district allowance or airfares. People choose, for example, to reside on the islands for a variety of reasons, but, for whatever reason, it is an exercise of a choice they have made, having weighed the pluses and minuses including the additional costs. By contrast, an employee who has no choice, but is required to relocate, suffers a disturbance and the social consequences of the move. These people have no choice in relation to the excess costs associated with living in a remote location. The award clause clearly says that the allowance is for the excess costs. [51] Mr Pearce acknowledged that two people would be working side by side, doing the same work, one benefiting from allowances, the other not; the reason being the antecedent nature of how they came to be there. He confirmed that the only basis for the employer's argument was the question of choice. When asked whether there were any industrial precedents around the question of choice as it related to employment provisions and entitlements, Mr Pearce said that he suspected that "they abound". He did not proffer any authorities in support of the proposition. DETERMINATION [52] It is apparent, from the assertions made from the bar table and the history of disputes, that differentiation between employees based on where they live at the time they are recruited is not universal and that most agencies pay the allowances to all employees who are stationed in the relevant areas. [53] Mr Miller said that the CPSU has members employed in other departments who are currently in receipt of the allowances and who were resident on the islands at the point of employment. [54] Mr Lane said that many members of the AEU would be affected, were the allowances to be restricted in the manner sought by the employer. [55] Mr Pearce said that there had been:
[56] Mr Pearce said that new employees would not receive the allowances, from which I infer that the employer would preserve the entitlements for existing employees through a "savings provision". [57] There are a number of "savings provisions" in relation to award conditions, however they have generally been inserted by agreement and as the result of negotiated outcomes, eg where the parties have considered a number of factors, such as weighing immediate gains against lesser conditions for future employees. There is no agreement in the present case. [58] The employer's application removes the perceived discretion of the "controlling authority" (whether or not such a discretion was actually open to them is at least arguable in view of previous decisions of the Commission). In doing so, it has significantly restricted access to the allowances (even more so than has been the case in DPIWE). Mr Pearce made it clear that the payments would be made only when existing employees were compulsorily transferred to a remote area and would not apply to any employees who volunteered for a transfer, or to new employees who had applied for a position in a remote location. Until now, DPIWE has paid the entitlements to: "those persons who have been recruited and relocated by appointment or transfer to the islands by the agency."9 District Allowance [59] There was nothing in the evidence to indicate that the practice of not paying district allowances to local residents has ever been applied other than to residents of the Bass Strait Islands. All of the disputes have concerned Bass Strait Islanders and the decision in of T11180 contains an excerpt from transcript which refers to the policy as applying to the islands, making no mention of other remote districts. [60] The employer's proposed changes would mean that: no local residents in any of the designated isolated areas would receive the allowance; no existing employee who volunteered to work in those areas would receive the allowance; and no person who applied for work in those areas would receive the allowance. [61] It is clear that the rationale behind the payment of district allowances, however called, has always been related to the isolation of the districts. The small amount of history presented showed that district allowances have been in existence since at least 1930. [62] In 1930 the Education Act provided for a "West Coast Allowance" for permanent members of technical school staff if employed on the West Coast [63] In 1931 Regulations provided for employees employed under the Public Service Act "whose place of residence is on the West Coast of Tasmania"10 to draw a district allowance. [64] At that point in time there appears to be no reference to "on the determination of the controlling authority". The Education Act provided for an entitlement if a person was employed on the West Coast. The Public Service Act requirement was simply that a person resided on the West Coast. There is no mention of permanent residency. In the 1931 Regulations of the Public Service Act it is clear that the place of residence was the critical factor. [65] In 1974 the "Controlling Authority" was defined as "the Public Service Board" in the Public Service (Conditions of Service) Principal Award No. 4, which provided the following entitlements
[66] Mr Pearce argued that, because the Mainland Allowance clause cannot be read to mean that a mainland recruit working on the mainland would receive the entitlement, it is support for the proposition that people who have been recruited from an area to work in that area should not be paid a district allowance. His argument is misconceived. It was the requirement to be transferred to the mainland, not the place of recruitment, which generated an entitlement to the Mainland Allowance. The Mainland Allowance was not paid for the reason of isolation, whereas it was the fact of living and working in a remote location in Tasmania, regardless of how the employee came to be there, that generated an entitlement to the District Allowance. The provisions coexisted and were for completely different reasons. [67] It is of note that the wording in the District Allowance at that time was "where an officer is required in the performance of his duties to reside permanently... (my emphasis) The requirement was related to where the employee needed to be based in order to perform their duties and the question of whether or not the employee had chosen that position or that location was irrelevant in terms of qualifying for the allowance. [68] The wording of the District Allowances provision was changed in 1984, when the General Conditions of Service Principal Award was made, from "reside permanently" to being "stationed permanently". It has remained unchanged since then, and the clause in the current award, the General Conditions of Employment Award, reads:
[69] In 1990 Dr Smith, the then Secretary of the Department of Primary Industry, refused to pay the allowance to an employee on Flinders Island. He said, in a letter dated 1 October 1991, that "the District and other similar allowances are clearly intended to compensate employees who are transferred to the Islands from more central or less remote locations", opining that the payment of the district allowance to an employee who was a resident on Flinders Island when first employed, was a "bonus".13 Dr Smith's interpretation has been decisively and, in my view, correctly, rejected in previous decisions of the Commission. [70] I can detect no support for his interpretation in the words of the award, which clearly state at Clause 24(b)(i):
[71] The variation sought by the employer would have the effect of changing the award to bring it in line with the policy adopted by Dr Smith and would be inconsistent with the stated purpose of the allowance. [72] Mr Pearce said that the rationale for the employer's proposed changes was "choice" and that only those employees who had no choice but to relocate (or lose their job) should be paid the allowance. [73] The employer's arguments confuse a location allowance with a relocation allowance. They contend that the allowance should not be paid unless directed to relocate, but the district allowance is not concerned with relocation, it is an ongoing allowance intended, as clearly stated, to be compensation for the disability caused by excess costs incurred as a result of living in an isolated area. [74] In fact, the award, in a separate provision - clause 32(c)(x) - provides an entitlement for employees required to relocate their place of residence to another district (not necessarily in a remote area). The provision entitles an employee to reimbursement for any additional accommodation costs associated with relocating (separate to excess costs as outlined in the district allowance). It is significant that this provision specifically refers to employees required to relocate on appointment or transfer to another district, whereas the district allowance makes no reference to a requirement to relocate, it simply requires that the employee be permanently stationed in a remote area. [75] I have no doubt that the district allowance is a disability allowance. Disability allowances are payable to employees as a consequence of work in circumstances, such as danger, hardship or inconvenience. Industrial tribunals have awarded allowances for demonstrated disabilities, provided that the disabilities were not taken into account when fixing wage rates for classes of work. [76] As submitted by Mr Miller, when the rates payable to employees of government agencies were set they did not have allowances, such as remote district allowances. built into them. The rates are the same for an employee located in Hobart as they are for an employee located on Flinders Island. Therefore, if an employee works in an area that attracts a disability allowance, they should be paid that rate in addition to the normal rate for the job. The fact that an employee may have "chosen" the job, or the location, makes no difference. Whether an employee chooses to work in an isolated area, or is directed to do so, the costs of living in that area are no different, and that is the stated purpose of the district allowance. [77] The argument that was put by the employer, that, in effect, if an employee applies for a job on the Bass Strait Islands, as opposed to having been compulsorily transferred there, they have "chosen" that disability and should not be paid the allowance, is clearly not an industrial reality. Taken to its logical conclusion, it would mean that an employee who had applied for a job on a building site should not be paid the various disability allowances that apply to work of such a nature, because they had "chosen" that type of work. Or that any employee who applied for work in a remote location should not be paid a remote district allowance (often intended to attract people to work there) because they had chosen to go there to work (which, in fact, is what the employer is claiming). Despite Mr Pearce's stated suspicion that authorities "abound" which support the proposition that "choice" is an element in determining industrial entitlements, it is noteworthy that no such authorities were put before me. [78] The award variations sought by the CPSU (and as ordered to be sought by Robinson DP and Abey C) would result in the relevant wording reading:
[79] This is clear and unambiguous and is consistent with the stated purpose of the allowance. It is also consistent with the principles that underpin disability allowances. [80] Mr Lane's submissions to the effect that the CPSU's application is consistent with the public interest, in that the increased costs would not harm the economic position of the government agencies or affect the economy of Tasmania, are accepted. Any increased costs would be minimal given that the harsher application of the existing clause is by no means universal. [81] There is merit in Mr Lane's submission that attracting and retaining good quality employees in the remote areas of Tasmania is in the public interest. I add that would particularly be so in the case of the education and health sectors. It was foreshadowed by Mr Pearce that, if the employer's application were successful, it would flow on to other awards and that they: "would severally seek to at a latter stage and in the not-too-distant future make application to vary those other awards in the same manner."14 [82] The Act, at section 36(c) provides that the Commission take into account "any other matter considered by the Commission to be relevant to the public interest." As previously stated, the employer's application would have the effect of denying the allowances to all employees choosing to work in remote areas, whether they were new employees or existing employees volunteering to be transferred there. I am of the view that this would not be in the public interest, particularly at a time when it is public knowledge that remote communities are experiencing difficulties in attracting qualified people to work there. [83] For the reasons outlined above, I have decided that Clause 24 - Location Allowance - of the General Conditions of Employment Award should be varied in line with the CPSU's application. No arguments have been advanced that persuade me to depart from the views expressed in previous decisions of this Commission as to the purpose of the allowances. There is no valid reason to differentiate between employees as has been proposed; to do so would be unfair and contrary to the industrial principle that employees in like situations should be treated in like manner. Where the employees originated from, and how they came to be there, are irrelevant considerations in terms of an allowance to compensate for the disability of being stationed in a remote area. [84] The parties were in agreement concerning that part of the employer's application that made the district allowance available to part time employees with no proportionate reduction. The award will be varied accordingly. Travel Allowances [85] In relation to the reimbursement of return fares for employees stationed on the Bass Strait Islands, no history was put before me, although the evidence did show that the provision has been in place for at least thirty years. The Public Service (Conditions of Service Award) Principal Award No. 4 (1974) at clause 4 - Allowances (9) - is expressed in the same terms as the provision in the current award (excepting that the entitlement is for travel twice a year, rather than three times). The purpose of the allowance is straightforward; it is to reimburse employees for the costs of travelling off the Bass Strait Islands when proceeding on leave. [86] The fares are payable to employees for themselves and their dependent family members when travelling off the islands for leave or, by substitution, for emergency medical or dental treatment. Three such claims can be made in every year. I think it probable that the reason that three claims can be made is to accommodate teachers whose leave periods are determined by the school terms. [87] The district allowance applies to all the designated isolated areas, whereas the return fares provided for in Clause 32(c)(ix) are only available to employees stationed on the Bass Strait Islands, with a proviso that restricts payments to employees who have completed three months of continuous service on the islands. The fact that payment of the return fares is restricted to employees on the Bass Strait Islands leads me to conclude that the allowance is paid because of the particular difficulties associated with travel for employees living and working on the islands and is in addition to the disability of the excess costs outlined in the district allowance. [88] I have concluded that the reimbursement of the cost of fares is a disability allowance, intended to compensate employees stationed on the Bass Strait Islands for the costs and difficulties associated with travel for social, recreational, medical and other reasons, when compared with employees who live and work on the mainland of Tasmania. Those costs are no less for employees who already reside on the islands, or for employees who volunteer to go to the islands, or for people who apply for jobs on the islands, than they are for employees who are compulsorily transferred to the islands. [89] As already discussed, the public interest test requires the Commission to take into account "any other matter considered by the Commissioner to be relevant to the public interest". I think it very much in the public interest that the public service be able to attract and retain good quality employees on the Bass Strait Islands. The provision of the travel allowance is a significant incentive to encourage people to consider working on the islands, including employees already resident there who might otherwise consider leaving in order to seek work in a more central location. The employer's proposed restriction of the reimbursement of the costs of fares to those who are compulsorily transferred to the islands is likely to result in fewer people volunteering to work there and would adversely affect both recruitment and retention rates. [90] In summary, section 20 of the Act requires the Commission, in the exercise of its jurisdiction, to act according to "equity, good conscience and the merits of the case" and to "have regard for the public interest." The allowances are disability allowances and the reasons for their existence are clear. Historically, the allowances have been applied (almost) universally; if an employee was stationed in the specified areas, they qualified (some exceptions to the universal application having resulted in disputes being brought before the Commission). The union's application, made in response to previous orders of the Commission, would result in changes that add clarity to the relevant clauses and are consistent with the stated reasons for the allowances. The reason advanced by the employer in support of their application lacks merit, that is, that the payments should be related to choice. Further, if the award were to be varied in that manner it would be unfair because it would result in inequities within the workplace. Also, it would not be in the public interest because it would detract from the ability to attract and retain employees in remote locations. [91] It is not usual for this Commission to arbitrate in respect of existing award entitlements. No compelling industrial, historical, public interest, or other arguments have been put to me that persuade me that the award should be varied so as to significantly restrict access to existing entitlements. ORDER The General Conditions of Employment Award will be varied according to the application lodged by the CPSU, with the changes referred to above. The operative date will be the first full pay period on or after the date of this Decision. The Order giving effect to this decision is attached.
P C Shelley Appearances: Date and place of hearing: 1 Decision T11180 PN11 |