TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29(1) application for hearing of industrial dispute

Liquor, Hospitality and Miscellaneous Union – Tasmanian Branch
(T13772 of 2011)

and

The Minister administering the State Service Act 2000

COMMISSIONER JP McALPINE
HOBART, 10 MAY 2011 

Industrial dispute - failure to pay correct salary - higher duty roles - substantive position - expectation of continuing in clerical stream - recommendation issued

RECOMMENDATION

[1] On 5 April, 2011 the Liquor Hospitality and Miscellaneous Union - Tasmanian Branch applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with the Minister Administering the State Service Act, 2000.

[2] The matter was listed for hearing (conciliation conference) at the Commonwealth Law Courts, Edward Braddon Building, 39-41 Davey Street, Hobart, Tasmania on 5 May 2011.

[3] The dispute centres on the alleged failure of the Education Department to pay an employee, Elaine Wiggins the correct salary under the Tasmanian State Service Award.

[4] Ms Wiggins is a long term State Service employee. Originally she worked as a Support Service Worker. In April 2008 she accepted a fixed term position in the clerical stream as "Celcat Administrator". Subsequently she has been appointed to consecutive fixed term clerical roles up to the present. From June 2009 she has frequently undertaken "Higher Duty" roles in the clerical field.

[5] Correctly, each letter of appointment stipulated Ms Wiggins would revert back to her substantive position on conclusion of the assignment. However in February 2009 during a period where a major translation exercise was being progressed throughout the State Service Ms Wiggins was informed that her substantive duties aligned with Band2 R1-1, a clerical classification. Subsequent letters of appointment for fixed terms directed that, on completion, Ms Wiggins would revert back to her substantive position of Celcat Administrator classified as Band2 R1-1.

[6] This form of words was maintained until Ms Wiggin’s letter of appointment to carry out higher duties dated 1 March 2011. This particular letter directs that she revert to her substantive position on completion of the work. When seeking clarity Ms Wiggins was informed that the intent was for her to revert back to her role as a Support Service Worker and not as the Celcat Administrator as she expected.

[7] In the conciliation conference the respondent did not challenge the information above. It was conceded that Ms Wiggins was competent in her various clerical roles as well as exhibiting an ability to perform at higher levels.

[8] Ms Wiggins has an expectation of continuing in the clerical stream fostered particularly from the content of the various letters of appointment since February 2009.

[9] The Act at s.20 - Commission to act according to equity and good conscience, states:

(1)  In the exercise of its jurisdiction under this Act, the Commission -

(a) shall act according to equity, good conscience, and the merits of the case without regard to technicalities or legal forms;

(b) shall do such things as appear to it to be right and proper for effecting conciliation between parties, for preventing and settling industrial disputes, and for settling claims by agreement between the parties;

(c) is not bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and

(d) shall have regard for the public interest.

[10] It appears to me that Ms Wiggins’ expectation of maintaining a clerical role within the agency is legitimate. From the correspondence over the last three years she has enjoyed full-time employment. This situation is expected to continue up to June 2011, if not beyond.

[11] Ms Wiggins is a permanent State Service Employee. Considering the intent of s.20 and in view of the documentary evidence I strongly recommend that the Head of Agency formally confirm Ms Wiggins’ substantive position as a full-time Band2 R1-1 before the cessation of her current fixed term assignment.

James McAlpine
COMMISSIONER

Appearances:
Mr P Tullgren for Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch
Mr T Kleyn with Mr M Bowerman for the Education Department

Date and Place of Hearing:
Hobart
2011
May 5