|
TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
s.29 application for hearing of industrial dispute
Police Association of Tasmania
(T12218 of 2005)
and
Commissioner of Police
|
COMMISSIONER T J ABEY |
HOBART, 8 September 2005 |
Industrial dispute - alleged breach of the Police Award - recommendation
RECOMMENDATION
[1] On 18 August 2004, the Police Association of Tasmania (PAT) 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 Commissioner of Police (COP) arising out of the alleged breach of the Police Award.
[2] When this matter came on for hearing (conciliation conference) on 5 September 2005, Mr M Kadziolka, with Mr R Wierenga and Mrs A Smith, appeared for the PAT. Mr T Martin, with Mr J Beach, appeared for COP.
[3] This matter involves a dispute as to the application of Clause 15 Overtime.
[4] Clause 15.1.3(b) reads:
"15.1.3 Overtime shall be all time worked:
...
(b) before the rostered commencing time and after the rostered finishing time on a rostered day;
...
..."
[5] Clause 15.3.1 reads:
"15.3.1 A member other than a member not eligible for overtime prescribed in paragraph 15.1.8 recalled to work overtime after finishing work (whether notified before or after leaving work) shall be paid for all time worked with a minimum of four hours at the overtime rate."
[6] The substance of the dispute relates to a circumstance whereby an officer is recalled to work after finishing work, and such recall continues until the commencement of the next shift.
[7] Mr Kadziolka asserts that in every case whereby an officer is recalled to work overtime after finishing work on the previous shift, an entitlement to a minimum payment as for four hours' worked arises, notwithstanding that the period of recall may be less than four hours and run consecutively with the commencement of the next shift. Mr Kadziolka relied on correspondence from Tasmania Police dated 1 May 1998 to support this position.
[8] Mr Kadziolka claimed that this position changed on or about June 2005, whereby at an operational level, claims for a four hour minimum payment in circumstances outlined above were rejected by the Department, and officers asked to resubmit claims for hours actually worked. He relied on correspondence from the Commissioner of Police dated 16 June 2005 as evidence of this change.
[9] Mr Kadziolka said that the Association had attempted to invoke the Dispute Settlement Procedure outlined in Clause 27 of the Award. This attempt, according to Mr Kadziolka, was unsuccessful.
[10] Various options were canvassed during the conciliation process. Whilst the Commission was not asked to make a formal finding on the matters in dispute, I do offer the following observations.
[11] As a matter of award construction, a specific provision will usually override a general provision. In this context the Call Back provision should stand-alone.
[12] Notwithstanding the above rule of award construction, the strict application of the call back provision may, in limited circumstances, give rise to a situation whereby the payment of a four hour minimum is a disproportionate remedy for the degree of inconvenience and dislocation involved.
[13] In all the circumstances I make the following recommendation:
Recommendation
1. That the provisions of Clause 27 Consultation and Dispute Settlement Procedures be immediately invoked.
2. That the parties enter into immediate consultations on all issues relating to the matters in dispute.
3. That the status quo, which existed prior to this dispute, be reverted to. The status quo shall mean that any claims submitted for a four hour minimum period of engagement, shall be accepted, provided the requirements of Clause 15.3 are met.
4. That the requirement to work overtime be administered on a non-discriminatory basis.
5. That the parties approach these discussions with an open mind and with an acknowledgement that some form of award variation may well be an appropriate outcome.
6. That parties report back to the Commission at 9.30am Monday 31 October 2005.
Tim Abey
COMMISSIONER
Appearances:
Mr M Kadziolka, with Mr R Wierenga and Mrs A Smith, for the Police Association of Tasmania
Mr T Martin, with Mr J Beach, for the Commissioner of Police
Date and Place of Hearing:
2005
September 5
Hobart
| 
