T12880
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Community and Public Sector Union Health Services Union of Australia, Tasmania No 1 Branch and Minister administering the State Service Act 2000
RECOMMENDATION [1] On 24 January 2007, Community and Public Sector Union (State Public Services Federation Tasmania) Inc and Health Services Union of Australia, Tasmania No 1 Branch 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 in respect of industrial bans by Community Corrections. [2] An urgent hearing was convened for 9.30am on 25 January 2007, with Mr M Johnston appearing for Community and Public Sector Union (State Public Services Federation Tasmania) Inc, Mr T Jacobson appearing for Health Services Union of Australia, Tasmania No 1 Branch and Mr P Baker appearing for the Minister administering the State Service Act 2000. [3] In T12631 of 2006 I found that Probation and Parole officers, together with Offender Services staff [POs], did not meet the definitional constraints of a health professional. I also observed that the definition was quite arbitrary in nature and that there were a number of categories who in my view, would not meet the same definition, who had been included in the agreement. [4] I identified in particular Youth Justice Workers about which a considerable amount of evidence had been presented in the hearing. I concluded that there was no industrial basis for treating the two categories of employees differently and referred the matter back to the parties for further consideration. [5] Had I expected the matter to end there I would not have made these comments, as they would only serve to add fuel to the fire. I firmly believe that, through no fault of their own, these categories of employees had been disadvantaged as a consequence of administrative decisions unrelated to industrial merit. [6] The Commission had no preconceived view as to what the ultimate outcome might be. It seemed at the time unlikely that that they would be included in the Allied Health Professionals Agreement, but there are other ways of addressing the issues. I note in passing that the Government's main witness advocated a discrete industrial instrument for POs. [7] This matter has been the subject of recent industrial action. Subsequent negotiations showed some promise but the Government has now withdrawn from all negotiations, other than in the context of the 2007 agreement, currently under negotiation. [8] The Government contends that the claim is barred by the No Extra Claims commitment. This commitment, which is fundamental to enterprise bargaining, was addressed at length in the earlier decision. In my view the Government's contention is very narrowly and technically based. POs have been part of the broader health professionals' claim from the very beginning. That they did not `win" was solely a consequence of an arbitrary and technical definitional debate. There are other categories that would have failed the same test, but they happened to "win." [9] This issue should be addressed on its industrial merits rather than narrow, arbitrary and technical grounds. [10] There is no reason in my view that a satisfactory outcome of this matter can give any comfort or encouragement to any other category of employment to pursue a similar claim. I am fortified in this view by the assurances given by the unions in today's proceedings. [11] The Commission has a role to facilitate and encourage enterprise bargaining. Consistent with this role I make the following recommendations in the strongest possible terms: Recommendations 1. The parities enter into immediate negotiations as to the industrial merits of the claim, together with any relevant matters the government may wish to raise. Whether these negotiations are in the context of the 2007 Agreement, or as a separate exercise, is a matter for the parties to determine. 2. That a timetable for the negotiations be established. 3. That the parties give priority attention to establishing an operative date that would apply in the event that agreement is ultimately reached. 4. That work continues as normal for the duration of these negotiations without resort to industrial action of any kind. The file will remain open and the matter will be re-listed on application.
Tim Abey
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