T11489
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Community and Public Sector Union and The Minister administering the State Service Act 2000
Industrial dispute - modes terms and conditions of employment - reimbursement of airfares - order issued REASONS FOR DECISION [1] On 12 May 2004, The Community and Public Sector Union (State Public Services Federation Tasmania) Inc. ("the applicant"), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984 ("the Act"), for a hearing before a Commissioner in respect of an industrial dispute with the Minister Administering the State Service Act 2000 ("the respondent") arising out of the alleged refusal of the Department of Primary Industry, Water and Environment ("DPIWE") to pay CPSU members Wilson, Haneveer and Cobham, resident on Flinders Island, appropriate airplane fares off the island [2] A hearing commenced at the Commonwealth Law Courts, 39-41 Davey Street, Hobart. On Thursday 17 June 2004 at 9.30 am. Mr R Miller appeared for the applicant and Mr D Bracken and Mr G Mason appeared for the respondent. BACKGROUND [3] This application concerns the refusal of the Head of Agency of DPIWE to reimburse airfares of three employees based on Flinders Island. [4] Reimbursement of airfares is provided for at Clause 32 of the General Conditions of Employment Award. Subclause (2)(ix) relevantly says:
[5] The applications for payment of airfares were rejected on the basis that, in the opinion of the respondent, the payments are discretionary and the policy of the Department is that only those persons who have been posted to the Bass Straits Islands should have airfares reimbursed. DPIWE therefore will not pay airfares for those persons who were already resident on the islands at the time of their appointment. SUBMISSIONS The Applicant [6] Mr Miller, for the applicant, referred the Commission to two previous decisions of the Commission - T11180 of 2003 and T3218 of 1991 - saying that he placed considerable reliance upon the context and content of those decisions. [7] In T3218 [which concerned a claim for payment of a district allowance for an employee based on Flinders Island] Robinson DP said:
[8] Mr Miller said that the decision of Abey C in T11180 enforced and bolstered the decision of Deputy President Robinson. At paragraph 22 the Commissioner said that there was no basis for distinguishing between categories of employees based on place of residence at the time of recruitment and that if the allowance had been intended to apply only in circumstances where an employee was relocated then the clause would have said so. [9] Commissioner Abey said:
[10] In Mr Miller's submission, whilst the district allowance is not the matter at issue those two decisions are directly relevant to the present case. The agency's belief that it can deny the payment of airfares is erroneous, based on the Commission's decisions in relation to district allowances. [11] Deputy President Robinson had directed the parties to have the words ["may on the determination of the controlling authority"] removed from the award. There is some confusion as to why that did not occur in 1991. Commissioner Abey supported that. Such an application is now before the Commission [as a separate applicaton]. [12] The order sought is that the employer be directed to pay to the employees airfare costs as detailed in the award for the remainder of their employment with the agency while they are stationed on Flinders Island. The Respondent [13] Mr Bracken, for the respondent, submitted that the award clause in relation to airfares is discretionary:
[14] He said that the "controlling authority" is the Head of Agency, via a delegation. The department's policy is that only those persons who actually incur disadvantage by being posted to a remote location should have an entitlement to compensation through the payment of airfares. Employees who are already on the island are not paid it. The employees concerned were already living on the island at the time they applied for those positions. The policy was based on advice received from the Office of Industrial Relations. This advice was received 20 years ago and has been consistently applied ever since. FINDINGS [15] It is most surprising that the agency has not acted to universally apply the award provisions in respect of entitlements which accrue to employees by virtue of the fact that they are permanently based on the Bass Strait Islands. It is apparent that the practice of the agency continues to be that employees who were resident on the islands at the time of their appointment do not receive the entitlements provided for under the terms of the award unless specifically ordered by the Commission. Those employees who were resident on the Tasmanian Mainland and who are relocated to a Bass Strait Island are, it seems, always paid the entitlements. [16] Two points arise, one, this practice is clearly discriminatory. The award does not differentiate between categories of employees in this manner. If it had intended to do so, it would have said so. As succinctly stated by Abey C in T11180 of 2004 [which concerned the same agency]: "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." [17] The second point is, as has already been said in more than one decision of this Commission, the Commission is unable to delegate its statutory powers as conferred in the Industrial Relations Act 1984. The Commission, under the Act, is required to make awards that regulate wages and conditions of employees. The wording relied upon by the agency is an anachronism described by Robinson DP as "a carry-over from the pre-Industrial Commission times when the Public Service Board was both the employer and the wage and conditions fixing authority for the Public Service. That most unsatisfactory system was abolished over six years ago by legislation." It is of concern that the agency continues to ignore this view, very strongly expressed in previous decisions, ie that it is not open to the Head of Agency to apply award clauses on a discretionary basis. As said by Abey C: "...the words in the award are clear and in my view cannot be read down to support the policy position of the Department. Indeed Ms Steenhuis' submission relied solely on the discretion open to the agency, rather than the words of the subclause". Mr Bracken's submission in this case did exactly the same thing. [18] It is now over 20 years since that system referred by Robinson DP was abolished. It is most unfortunate that the award was not varied in the terms directed by him in 1991, to remove the offending words. In February 2004 Abey C issued an order in identical terms. Such an application is presently before the Commission, but postdates the dispute applications dealt with here. Whilst I recognise that both those disputes related to the District Allowance, the wording relied upon by the employer in claiming a "discretion" in relation to the award provisions, ie "on the determination of the controlling authority", is identical. I reiterate the sentiments expressed by Abey C; I am surprised that the agency has not observed the spirit and intent of previous decisions of this Commission. [19] I agree with and intend to follow the decisions issued by this Commission over a period of thirteen years in relation to employees on the Bass Strait Islands, and to order that the entitlements be paid. [20] I am not prepared to issue an order in the precise terms sought by the applicant. The award clause says that the employee shall be paid the fares "reasonably incurred" for himself or his dependents up to three times per year; the clause also says that the entitlement is "not cumulative, each year standing alone." Therefore, I have decided to order that, on production of receipts for the relevant period, any airfares paid by the employees are to be reimbursed. [21] I find that the relevant period for Mark Cobham is from 8 August 2000, for Lynette Wilson, 1 December 2003 and Sally Haneveer 29 August 2000. [22] The entitlement is in respect of travel incurred when the employee is on leave of absence. At the hearing Mr Miller was directed to provide documentary evidence of any airfares paid by the three employees. Receipts for air travel were received by the Commission on 6 August 2004 and forwarded to the respondent, who was given seven days in which to notify the Commission if there was any objection to those documents being taken into account. As at Monday 16 August 2004 there was no agreement between the parties as to whether the receipts provided complied with the award in respect of the requirement that the travel is related to leave of absence. I have not been asked to make a determination on that aspect and leave it to the parties to continue to have discussions. ORDER I hereby order, pursuant to section 31 of the Industrial Relations Act 1984 that, in full and final settlement of the dispute referred to in T11489 of 2004, that the Minister Administering the State Service Act pay to Mark Cobham, Lynette Wilson and Sally Hanover any return fares for themselves and dependent members of their families incurred when proceeding to the mainland of Tasmania on leave of absence during the relevant periods of employment PROVIDED THAT no more than three airfares are claimed for any twelve month period and PROVIDED THAT there is evidence of the travel having taken place. Such claims are to be settled no later than 8 September 2004.
P C Shelley Appearances: Date and place of hearing: |