TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Health Services Union of Australia, Tasmania No. 1 Branch
and
The Community and Public Sector Union
(State Public Services Federation Tasmania) Inc.
(T12736 of 2006)

and

Minister Administering the State Service Act 2000

Industrial dispute - breach of agreement - order issued

REASONS FOR DECISION

[1] On 19 July 2006, the Health Services Union of Australia, Tasmania No. 1 Branch (the HSUA) and The Community and Public Sector Union (State Public Services Federation Tasmania) Inc., (the CPSU) 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 Minister Administering the State Service Act 2000. The dispute arose out of the inability of unions to reach agreement with the Minister regarding the 2006 increase to be applied to Allied Health Professionals under Clause 12.3 of the Tasmanian Public Sector Allied Health Professionals Industrial Agreement 2005.

[2] The matter was listed for hearing at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 2 August 2006 (Conciliation Conference) and 16 August 2006.

[3] Mr T Jacobson, Ms K Ransley and Ms T Rogers appeared on behalf of the HSUA; Mr T Lynch and Ms J Van Tienen appeared on behalf of the CPSU; and Mr J Milbourne for and on behalf of the Minister.

[4] Neither of the parties gave sworn evidence, they both offered submissions from the bar table.

BACKGROUND

[5] It was agreed by both parties that the final agreement in its current form was the result of 18 months of intensive negotiations.

[6] The dispute centered around the interpretation of how the salary nexus is calculated for this year. The situation arose because of a realignment of health professional classifications in Western Australia, one of the components of the nexus calculations. In the Western Australian agreement, the old level 3/5 year 6 which was at the top end of the non-promotable classification had been subordinated by an additional level 4/6 year 6 which became the top end of the non-promotable classification. The applicant asserted the issue at point is the salary at the top end of the non-promotable classification. The applicant further asserted the industrial agreement from which the original Western Australian classification was taken no longer applies to those particular health service employees.

[7] The respondent argued the quantum to be factored in to the nexus calculation should the equivalent of the old level 3/5 year 6 translated to the scheme which would be 4/6 year 5.

[8] The applicant asserted the salary nexus calculations were clearly defined in the Agreement. He cited clause 12.2;

"The nexus salary arrangement provided for in this Agreement is based on the determination of a single national average salary derived from an averaging of the salary rate applying at the top of the non-promotable classification level for specified Allied Health Professional classifications in all other Australian States and Territories.

That national average salary rate is then compared to the salary rate applying at the top of the non-promotable classification level in Tasmania........"

[9] The applicant further asserted that the Agreement was explicit in defining the top of the non-promotable classification level as being the basis for future increases. He cited clause 12.3 of the Agreement;

"For the life of this Agreement, an annual review of salary rates applying at the top of the non-promotable classification level will be undertaken by reference to specific Allied Health Professional classifications in all other Australian States and Territories as prescribed in the Implementation Guidelines ..........."

[10] Mr Milbourne for the respondent adduced although the original classification levels were those relating to the top of the non-promotable category at the time of the initial calculation, it was the actual levels which were the contributors to the nexus calculations.

[11] At PN57:

"....The basic principle of the agreement was the highest point prior to promotion but in specifying what the initial nexus was the actual classification levels were specified in the classification - in the guidelines that went with the agreement."

[12] The applicant cited transitional arrangements in Western Australia which saw those at the old level 3/5 year 6 attain level 4/6 year 6 if not immediately, in a very short space of time as a result of the new conditions being backdated. Mr Milbourne argued that individual translations were not relevant, it was the overall principle which was the issue.

FINDINGS

[13] In the first instance I agree with Mr Milbourne that the matter is about the basic principle behind the nexus calculations and that individual translation arrangements for a particular situation should have no bearing on that.

[14] I turn to the original Agreement. Clauses 12.2 and 12.3, in the plain English interpretation of these clauses I can educe no other meaning than the nexus calculations are based on "the salary rates applying at the top of the non-promotable classification level".

[15] The transcript of the original Agreement application gives no inference that any other method of nexus calculation was to be utilized. None of the exhibits presented offer an agreed alternative calculation process to that of using "top of the non-promotable classification level" as the base.

[16] The respondent's argument that it was the individual classification levels which were the basis for the nexus calculation and not the fact that they were all at the top of the non-promotable level is incongruous. The respondent's argument is at the least capricious. Using a benchmark position, being the divide between two significant modes of career advancement is, in my view, eminently logical.

[17] The calculation to establish the nexus salary level and hence ongoing increases in that salary is based on the averaging of the salary rate applying at the top of the non-promotable classification level for specified Allied Health Professional classifications in all other Australian States and Territories, I so find.

ORDER

Calculations for the nexus salary level nominated in the Tasmanian Public Sector Allied Health Professionals Industrial Agreement 2005 shall be based on the determination of a single national average salary derived from the averaging of the salary rate applying at the top of the non-promotable classification level for specified Allied Health Professional classifications in all other Australian States and Territories prevailing at the time of calculation, I so order.

James P McAlpine
COMMISSIONER

Appearances:
Mr T Jacobson, Ms K Ransley and Ms T Rogers appeared on behalf of the Health Services Union of Australia, Tasmania No. 1 Branch
Mr T Lynch and Ms J Van Tienen appeared on behalf of The Community and Public Sector Union (State Public Services Federation Tasmania) Inc.
Mr J Milbourne for and on behalf of the Minister Administering the State Service Act 2000.

Date and Place of Hearing:
2006
August 2, 16
Hobart