T13649 Statement
TASMANIAN INDUSTRIAL COMMISSIONIndustrial Relations Act 1984
and Australian Education Union
STATEMENT The Industrial Relations Act 1984 provides for: "… the establishment of a Tasmanian Industrial Commission having jurisdiction to hear and determine matters and things arising from, or relating to industrial matters, including among other aspects ... the settling of disputes …" The significant wording here is "industrial matters". "Industrial dispute" means a dispute in relation an industrial matter. "Industrial matter" means any matter pertaining to the relationship of employers and employees and, without limiting the generality of the foregoing, includes - (a) a matter relating to - (i) ... conditions of employment (b) a breach of an award or a registered agreement As far as I can establish for this matter to come to this Commission in its current form, is unique. The applicant argued that the matter at hand goes to the core of the employment relationship between employer and employee as a result of the threat by employees to withdraw their labour for specific periods. And as such rightly falls within this Commission's jurisdiction. It was argued that the respondent breached the award and the agreement by not following the dictates of the Dispute Resolution Clause in that negotiations had not been exhausted before the proposed industrial action was to take place. The applicant tabled a decision by FOGGO C of the AIRC C2006/2742 Australia Post and CEPU with respect to the intended stopwork meetings by the union in opposition to the then proposed WorkChoices legislation. The Commissioner found in favour of the employer in part. The applicant also argued that the proposed action by AEU members was not in the public interest because of the impact on the operations of the various establishments, the impact on students learning programs and duty of care matters with regard to supervision of students during the stoppages. The respondent from the outset unwaveringly argued that their proposed actions were fundamentally political and had no industrial basis. It was argued that the decision to implement the post year 10 education system by the Government was purely political and as such required a political response. Despite the AEU's participation in developing awards and agreements as well as participation in a "work group" [my words] which look at addressing the AEU's implementation concerns the union was adamant that their members insisted on rolling back the Government's Tasmania Tomorrow initiatives as their desired, if not demanded, political outcome. The respondent argued that the applicant's depiction of the disruption expected by the proposed action was exaggerated. It was suggested that the impact would be minimal and what was being sought was the publicity that such action would generate in support of the AEU's position. CONCLUSIONS The fundamental issue at hand is the AEU's opposition to the Government's Tasmania Tomorrow initiatives. The negotiations under the auspices of the "work group" do not address this fundamental issue, but more operational aspects of the implementation. The current dispute does not arise from these negotiations. It follows that although these negotiations are not concluded the respondent is not in breach of the award because the two matters are independent. The authority cited by the applicant is informative, but the powers of both jurisdictions are somewhat different. In the AIRC jurisdiction the Commission is mandated to make an order where "unprotected industrial action" is contemplated, this Commission is not faced with such a scenario. The current matter is not addressed by any of the categories in the definition of "industrial matter". The question of the employee/employer relationship is addressed in State Service Act 2000, Section 9 - The State Service Code of Conduct, which I will address later. s31 of the Industrial Relations Act provides for the Commission to make orders arising from a hearing: "…. for the purpose of preventing or settling a dispute …" One must ask the question should the Commission accede to the Applicant's request and order a cessation of the proposed action, would that action in any way go towards resolving the fundamental issue, the answer is no it would not. It is clear from the respondent's position that their proposed action is for "show", to be seen to be in opposition to Tasmania Tomorrow. ORDER I cannot accede to the Minister's request to make an order to have the stop work meetings halted for want of jurisdiction. It follows this matter cannot proceed. However, I must make comment on the AEU's position. In using it's members' status as employees of the State to initiate a political agenda is a dangerous precedent. The argument put by them in this matter, that of pursuing a "political" agenda could well be turned against them in some future dispute. To those employees who may be involved in the proposed stopwork meetings I suggest you seriously consider that your actions, as individuals, may breach your contract of employment with respect to the employee/employer relationship by absenting yourself from work. Your individual political agenda is not a valid reason to absent yourself from work. Your individual actions, in my view, would breach the State Service Act 2000, Section 9 - The State Service Code of Conduct, subsection (2) "an employee must act with care and diligence in the course of State Service employment". In conclusion I strongly recommend to the AEU that they reconsider their intentions and advise their members to discontinue their proposed action.
J P McAlpine
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