Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T1318

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

T.1318 of 1988 IN THE MATTER OF AN APPEAL BY THE MINISTER FOR PUBLIC ADMINISTRATION AGAINST A DECISION OF THE DEPUTY PRESIDENT IN MATTER T.1060 OF 1987
   
  RE: FIRE BRIGADES AWARD - SECOND TIER INCREASE
   
FULL BENCH:
PRESIDENT L. A. KOERBIN
COMMISSIONER J. G. KING
COMMISSIONER R. J. WATLING
21 JUNE 1988
   

REASONS FOR DECISION

   
APPEARANCES:  
   
For the Minister for Public
Administration
  - Mr. F. D. Westwood with
    Mr. C. Willingham and
    Mr. G. Lowe
   
For the United Firefighters Union
Tasmanian Branch
  - Mr. N. Devine with
    Mr. J. Chivers
   
DATE AND PLACE OF HEARING:  
   
9.6.88                          Hobart  
   

In this matter, the Commission, sitting in its appellate jurisdiction, is asked to review a decision of Mr. Deputy President Robinson to grant an agreed restructuring and efficiency package from a date earlier than that proposed by the controlling authority. In that matter the Minister for Public Administration found himself to be a non-consenting party to the date determined by the Deputy President.

The grounds relied upon by the appellant were:

"1. That Deputy President A. Robinson erred in awarding a 4% second tier increase retrospective to 2nd December 1987, by his failure to give appropriate weight to the submissions of employer in respect of retrospectivity.

2. That the Deputy President erred by failing to give the employer reasonable notice that time was of the essence in reaching agreement and that he would arbitrate a retrospective date of operation.

3. That the Deputy President erred by failing to apply correctly the Wage Fixation Principles of the Tasmanian Industrial Commission.

4. That the Deputy President erred by finding that an agreement was in place on 2nd December 1987.

5. That the Deputy President erred by ignoring the legal status of the Minister for Public Administration as the employer.

6. That the Deputy President erred by finding that the agreement between the State Fire Commission and the United Firefighters Union for a "satisfactory proposal" was sufficient to bind the Minister for Public Administration as the employer.

7. Such other grounds as are deemed appropriate."

The Deputy President's reasons for granting retrospectivity were set out in some detail. In summary these boiled down to the fact that the representative of the State Fire Commission, together with the representative of the Office of the Director of Industrial Relations - both acting as agent for the controlling authority - had agreed to a package of offsets in exchange for a 4% salary increase as early as December 1987.

One "agent" indicated to the Deputy President that he should determine an operative date for the increase, provided that that date was not before 16 February. That was the date on which Cabinet approved the agreement. It would appear from the decision that the agent then indicated to the Deputy President that the State Fire Commission had agreed to the package on 2 December 1987. On the other hand, the other agent indicated that the operative date should be from the date of the Deputy President's decision.

In his published decision of 26 April the Deputy President, after examining the detail of the agreement, concluded that to all intents and purposes the agreed package of offsets that had been negotiated were either in place already on 2 December, "or capable of immediate implementation." He said that the only impediment to this was "the employer's internal procedure of submitting the whole of the package to further processes to get final approval."

Accordingly, by decision given in transcript, he determined the matter on 23 February by awarding a 4% adjustment with effect from the first pay period commencing on or after 2 December 1987.

We note that the format of the Fire Brigades Award is confusing as it still purports to represent the award as one applicable to private industry. Moreover, it cites the State Fire Commission as party to the exclusion of the Minister for Public Administration. It is therefore understandable that one of the "agents" might, in good faith, suggest that the Deputy President determine the matter at this discretion but in any case not earlier than 16 February. Such an expression of opinion would be possible if he genuinely believed that he was representing the State Fire Commission in those proceedings. Indeed, he was not. The State Fire Commission is not a registered employer organisation and as such does not have access to proceedings before the Commission except perhaps in special circumstances.

Even more surprising was the fact that the representative of the Office of the Director of Industrial Relations who, being aware of the true position, also appeared as agent for the controlling authority but did not attempt to correct what appeared to be a clear misunderstanding of the position.

Mr. Devine's arguments in defence of the decision taken by the Deputy President were well presented. In other circumstances we may have found ourselves supportive of the merit of those submissions. But the indisputable fact remains that all employer and employee organisations, as well as all members of this Commission, are obliged to faithfully and consistently apply the current wage fixing principles in determining industrial matters.

In this case the position is quite clear. There was no agreement as to operative date. Although the package of offsets was agreed and the quantum of salary adjustments to be applied in exchange for the offsets was also agreed, the date of operation was not.

Subparagraphs (b) and (c) of item 1 of the Principles states, under the heading of "Second Tier":

"(b) Subject to agreement between the parties concerned, and processing of such agreement in accordance with appropriate principle, increases not exceeding 4% ceiling may be approved from a date to be fixed by the Commission.

(c) Failing agreement between the parties concerned, the Commission will arbitrate in accordance with the relevant principle or principles, and in such cases, the Commission will award no more than 2% to operate from a date no earlier than 1 September, 1987 and no more than a further 2% to operate from a date no earlier than 1 July, 1988.

(d) The Commission will not award retrospectivity in relation to any second tier increases."

We think subparagraph (b) refers mainly to agreements to be registered, but even if that subparagraph can be construed to also include award variations, clearly it must be read down by subparagraph (d).

The fact that there was no agreement as to operative date is not in dispute. The Deputy President was, in our opinion, faced with two alternatives: He could have either arbitrated a two-stage adjustment, each of 2%, operative from two different dates - the second date being no earlier than 1 July 1988; or he could have arbitrated 4% from 1 July 1988.

Arguably he could have awarded 4% from the date of his decision, although it would be difficult to reconcile such a decision with subparagraph (c) above.

Notwithstanding the circumstances of this case, we are of the opinion that it was not open to him to award a retrospective adjustment of 4% in the absence of agreement. Such a decision appears to fly in the face of both subparagraphs (c) and (d).

Accordingly the appeal must be allowed.

As we are of the opinion that a measure of confusion existed during proceedings regarding representation on behalf of the controlling authority, we have decided to take the unusual step of referring the question of operative date back to the Deputy President.

After hearing further submissions in this regard it will be open to him, in the absence of agreement, to decide whether the second tier adjustment should operate from the beginning of the first pay period commencing on or after:

(a) 16 February 1988 (as suggested by one controlling authority representative); or

(b) 23 February 1988 (being the day on which the Deputy President indicated his intention to determine the matter in a certain way); or

(c) 26 April 1988 (being the date upon which the Deputy President published his reasons for decision).

In allowing the appeal we indicate that we have a great deal of sympathy for members of the UFU. Furthermore we consider it necessary to make some criticism of the controlling authority's handling of this matter and express our concern that issues of such importance could have been shelved by Cabinet for so long. Disputes about industrial issues do not go away by one party indulging in procrastination in one form or another. Often the opposite is the case.

We believe the controlling authority had a duty not only to employees but also to this Commission to take whatever steps were necessary to bring the matter to a speedy conclusion. This could have been achieved either by conciliation or by arbitration. Our observation applies equally to the processing of any legitimate application made by a duly registered organisation on whose behalf a claim is made.

The appeal, as we have said, is allowed, but not for the reasons that the delay occasioned by Cabinet was reasonable or appropriate. The appeal is allowed because the controlling authority did not agree to the operative date determined. The decision of the Deputy President was therefore outside the Guidelines.