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T13029

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.23 application for award or variation of award

The Community and Public Sector Union (State Public Services
Federation Tasmania) Inc.

(T13029 of 2007)

General Conditions of Employment Award

and

Community and Health Services Award

 

DEPUTY PRESIDENT SHELLEY

HOBART, 20 December 2007

Award variations - location allowances - retrospectivity - award varied - operative date ffpp 15 July 2007

REASONS FOR DECISION

[1] On 4 April 2007, an application was lodged by the Community and Public Sector Union (State Public Services Federation Tasmania) Inc.(CPSU), pursuant to s.23 of the Industrial Relations Act 1984 (the Act), to vary the General Conditions of Employment Award. The application sought to vary location allowances to reflect increases in the Consumer Price Index from the period March 2005 until March 2007. The application was amended to include the Community and Health Services Award.

[2] A hearing commenced at Hobart on Monday 22 October 2007. At the hearing, Ms C Serra appeared for the CPSU and the Health Services Union Australia Tasmania No 1 Branch and Mr K Grey appeared for the Minister Administering the State Service Act. Subsequent to the hearing further written submissions were provided by Mr F Ogle of the Department of Premier and Cabinet on behalf on the Minister on 5 November 2007 and Mr T Lynch on behalf of the union on 30 November 2007.

[3] At the hearing, Ms Serra told the Commission that the application was for the variation of clause 24(b) of the General Conditions of Employment Award and clause 11(b) of the Community and Health Services Award. Both clauses refer to the district allowances. She submitted that rising prices and cost of living increases warranted the increase. She said that the last increase had been two years ago and that the failure to increase the rates annually was "an oversight". Ms Serra provided copies of relevant extracts from the Australian Bureau of Statistics Consumer Price Index and of the decision in T833 of 1987 in which a Full Bench of the Commission set out the formula to be followed when adjusting allowances.

[4] Mr Grey said that expense-related allowances were varied by decisions in matters T12766 and T12767, with the exception of the district allowances.

[5] Ms Serra submitted that the increases should be applied retrospectively so that employees could be back-paid for the year that the increase was not applied. She said that people in remote areas should not be disadvantaged because of an oversight on the part of the unions.

[6] Section 37(5) of the Act provides:

"The Commission may, in an award, give retrospective effect to the whole or any part of the award -

(a) if and to the extent that the parties to the award so agree; or

(b) if, in the opinion of the Commission, there are special circumstances that make it fair and right to do so."

[7] Mr Grey submitted that there were no special circumstances.

[8] The matter was adjourned to allow the parties to have further discussions on the question of retrospectivity with a view to reaching agreement. No such agreement was reached.

[9] Mr F Ogle, Director, Public Sector Management Office, informed the Commission, by way of written correspondence that the retrospective application of the increases was strongly opposed.

[10] Mr Ogle submitted that, since the Full Bench decision in 1987, the procedure has been for the relevant union to lodge applications with the Commission based on the movement of the CPI for the preceding 12 months. The relevant figure used for the adjustment is the weighted average of the eight capital cities for the March quarter, which the Australian Bureau of Statistics (ABS) publishes in April. He provided a history of the operative dates of recent adjustments to expense related allowances. He said that the long-established procedure for adjusting the allowances is that the relevant union makes an application to vary after the publication of the relevant index by the ABS. Since 1987 the operative date has been the first full pay period on or after the date of decision.

[11] Mr Ogle said the reasons the application for retrospectivity was opposed were that:

"1. the retrospective application of increases in expense related allowed has not previously applied;

2. No special circumstances have been put to the Minister to consider regarding why the District allowance was not varied in matters T12766 and T12767 of 2006;

3. the application to vary the expense related allowances in T12766 and T12767 was made on 23 August 2006 when the relevant CPI figure was available from April 2006;

4. as at the date of this correspondence the Minister is yet to be advised of an application from the unions to vary the expense related allowances for 2007, when the appropriate CPI figure has been available since April 2007; and

5. it would be manifestly unfair to impose retrospective effect on one party due to the inaction of another."

[12] Mr Ogle said that:

"The Minister is conscious that there are a range of employees who are not receiving the allowances that could be available to them. In order to address this situation the Minister is prepared to consider options including assuming responsibility for regular and timely adjustments of these allowances. This offer will be made to the relevant unions during negotiations concerning the Public Sector Unions Wages Agreement 2008."

[13] Mr Lynch, in written submissions dated 30 November 2007, said that the CPSU acknowledged its role and responsibility in the process for varying the expense-related allowances.

[14] He said that the formula for varying the district allowance has remained unchanged for some 20 years, based on the ABS CPI figures and that the Minister's opposition to retrospectivity meant that a presumably budgeted-for increase was being withheld from affected employees. The Minister had made no effort to instigate an application.

[15] Mr Lynch submitted that special circumstances existed because the CPSU had approached the Public Sector Management Office (PSMO) in July of 2007 seeking a conference regarding the adjustment of the district allowances, who had advised that there were some issues requiring recalculation which they would follow up. The CPSU made further enquiries on 1 October 2007 and were advised that those issues were no longer relevant and that the CPSU should now make the application.

FINDINGS

[16] In 1987 the Full Bench of the Commission, in Matter T833 set out a formula for the regular adjustment of expense related allowances, including district allowances. The relevant unions have made applications to vary the allowances, applying the formula and the Commission has awarded the increases from the first full pay period on or after the date of decision.

[17] The fact that the Commission has, in the past, applied the increases from the first full pay period on or after the date of the hearing does not mean that the Commission must always do so.

[18] Section 37(5)(b) enables the Commission, in the absence of consent, to apply the increase retrospectively, if "in the opinion of the Commission, there are special circumstances that make it fair and right to do so."

[19] The Macquarie Dictionary defines "special" as:

"...6. distinguished or different from what is ordinary or usual:...7. extraordinary; exceptional in amount or degree..."

[20] The failure on the part of any of the parties to the award to make application to the vary the award in a timely manner is certainly not without precedent and in my view falls into the category of a not uncommon representative error or oversight and would not therefore be a special circumstance. In addition, I note that past applications for expense-related allowances have been made many months after they would have been available (that is, after the date of publication of the CPI figures).

[21] The Commission, in the exercise of its jurisdiction, is required to act according to "equity, good conscience and the merits of the case". Mr Ogle, for the Minister submitted that "it would be manifestly unfair to impose retrospective effect on one party due to the inaction of the other." I agree with that proposition. Therefore I am not prepared to order full retrospectivity.

[22] Mr Lynch, for the unions, advised that the CPSU first approached the Public Sector Management Office in July of 2007. From what has been put to the Commission, it was at that point that the employer had a role in delaying the making of the application. It would be unfair to further disadvantage those employees who are entitled to District Allowances in relation to the period of the delay to which the employer contributed.

[23] It is not clear from the submissions exactly what date in July they were advised about the "issues" identified by the PSMO. I have decided, in the circumstances to make the increase retrospective to mid-July 2007.

[24] The orders reflecting this decision, with an operative date from the first full pay period to commence on or after 15 July 2007, are attached.

 

P C Shelley
DEPUTY PRESIDENT

Appearances:
Ms C Serra for The Community and Public Sector Union (State Public Services Federation Tasmania) Inc.
Mr K Grey for the Minister administering the State Service Act 2000

Date and place of hearing:
2007
October 22
Hobart