T11483
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Dimity Jane Calvert and Minister Administering the State Service Act 2000
Industrial dispute - alleged refusal of employer to pay 'District Allowance' -General Conditions of Employment Award - Bass Strait Islands - order issued REASONS FOR DECISION [1] On 10 May 2004, Dimity Jane Calvert (the applicant) applied to the President, pursuant to Section 29(1A) 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 (Department of Primary Industries, Water and Environment (DPIWE)) arising out of the alleged refusal of the employer to pay district allowance. [2] This matter was listed for a conciliation conference on 16 June 2004. Mrs Calvert was self-represented. Mr D Bracken and Mr G Mason represented the Minister. [3] It quickly became apparent that the matter would not resolve through the conciliation process. As a consequence I alerted the parties to the provisions of s.31(1) of the Act, which reads: "31. (1) Subject to this section, where the Commissioner presiding at a hearing under section 29 is of the opinion, after affording the parties at the hearing a reasonable opportunity to make any relevant submissions and considering the views expressed at the hearing, that anything should be required to be done, or that any action should be required to be taken, for the purpose of preventing or settling the industrial dispute in respect of which the hearing was convened, that Commissioner may, by order in writing, direct that that thing is to be done or that action is to be taken." [4] The case for the applicant rested squarely on an earlier decision of the Commission in T11180 of 2003. The position of the Minister was equally clear-cut in that the Department was bound by a policy position, which would not accommodate the claim of Mrs Calvert. Accordingly both parties were offered the opportunity to put forward any further evidence or argument, either at the time or at a subsequent hearing. Both parties indicated that they were content to allow the Commission to determine the matter without presenting any further material. [5] Mrs Calvert was employed as a customer service officer with Service Tasmania on Flinders Island from 16 November 1998 until 16 June 2003. She was a resident on the island prior to accepting employment with the Agency. Mrs Calvert seeks the payment of the "Location Allowance" relevant to employment on the Bass Strait Islands as specified in Clause 24(b) of the General Conditions of Employment Award: The purpose of this General Allowance is to compensate for excess costs necessarily incurred by an employee living in an 'isolated area' and without limiting the foregoing includes partial reimbursement for STD, freight, fuel and depreciation costs. (a) Where a person is stationed permanently in one or other of the following districts he may, on the determination of the controlling authority, be paid an allowance in accordance with the following rates:
..." [6] Mrs Calvert asserted that she incurred additional costs as a consequence of living in that location, including the costs mentioned in the above clause. The employer did not contest this assertion. [7] Mrs Calvert sought payment of the allowance retrospective to the commencement of her employment. [8] Mr Bracken submitted that payment of the allowance is discretionary. He said that the department's policy was to pay the allowance only to employees who are posted to a remote location and incur additional costs as a consequence. As Mrs Calvert was a resident on the island at the time of engagement, she did not fall within the policy parameters of the agency as to the payment of the allowance. Finding [9] This matter is effectively a re-run of T11180 of 2003 in which two employees of the DPIWE stationed on Flinders Island sought payment of the allowance. The circumstances of that case were virtually a parallel of the instant matter, save that the two employees in the earlier matter were still employed on the island at the time of hearing. [10] In the earlier matter the Commission as presently constituted analysed in some detail the basis and rationale for the allowance and in particular referred to an earlier decision of Robinson DP,1 which dealt with essentially the same issue. [11] I concluded as follows: "The purpose of the allowance as described in subclause (b)(i) "is to compensate for excess costs necessarily incurred by an employee living in an 'isolated area' and without limiting the foregoing includes partial reimbursement for STD, freight, fuel and depreciation costs". On the plain meaning of these words there is no basis for distinguishing between categories of employees based on place of residence at the time of recruitment. In my view, had the allowance been intended to apply only in circumstances whereby an employee is relocated, the clause would have clearly said so. To that extent I agree with the finding of Robinson DP in the earlier matter." [12] These observations apply equally in the instant matter. [13] It is a matter of regret that the parties did not follow through to finality the direction of Robinson DP in relation to an award variation, and thus bring clarity to the application of this award provision. It would however be unfair to foist the consequences of this lack of action on employees, who, in my view and for reasons stated in the earlier decision, should have a clear entitlement to the allowance. [14] I note that there are proceedings currently before Shelley DP, which should bring clarity to the application of this clause, one way or the other. It is unlikely, however, that the outcome of these proceedings will have any impact on Mrs Calvert's position. [15] I adopt my reasons for decision in T11180 in that the circumstances of this case cannot be distinguished in any material sense. [16] I have decided that the allowance should be paid retrospective to the date of engagement. ORDER Pursuant to s.31 of the Industrial Relations Act 1984 I hereby order that the applicable District Allowance in Clause 24 Location Allowances of the General Conditions of Employment Award, be paid to Dimity Jane Calvert for the period of employment commencing on 16 November 1998 and ending on 16 June 2003.
Tim Abey Appearances: Date and Place of Hearing: |