T1360 and T1377 (19 Sept 1988)
These appeals by Tasmania No. 1 and No. 2 Branches of the Hospital Employees Federation of Australia refer to an order signed by Mr. Commissioner King on 5 May 1988. In his decision1 which resulted in the order of which part is now appealed Commissioner King determined that the rate of pay for casuals, part-time employees working less than 20 hours per week, and intermittent employees should be calculated for the purposes of shift work (but not for overtime) in accordance with a formula that produced the following result:
Each appellant relied upon 9 identical grounds of appeal. These were:
Mr. Holden, who acted as advocate for both branches, dealt with each of eight grounds in great detail. The ninth ground, he claimed, should be read as "public interest". Mr. Fitzgerald presented argument in rebuttal of what had been put by Mr. Holden, but in response to questions from the Bench, acknowledged that certain parts of the Commissioner's decision were capable of being read in different ways. However he pointed out that the Commissioner had, in the body of his decision, made it clear what his intention was. And as that intention was reflected in the order, the order should stand. We do not intend referring in detail to each of the grounds of appeal argued by Mr. Holden and responded to by Mr. Fitzgerald. Having carefully read the Commissioner's decision and the application upon which the decision was taken, we have formed an opinion that there is an inconsistency between the order signed by the Commissioner and his stated intention set out at pages 13 and 14 of the decision2. The application, against which an appeal in part has been lodged, among other things sought an order from the Commission requiring casual, part-time employees working less than 20 hours, and intermittent employees to be paid for rostered shifts the ordinary time rate increased by 20%. Except for overtime, the loaded rate was to be applied for all purposes, including the calculation of afternoon and night shift penalties, Saturdays, Sunday and public holiday premiums. However, in his decision the Commissioner expressed the view that the loadings should not be applied in the manner sought. Nevertheless, after acknowledging that some, but not all, hospitals were already applying the loading in the manner requested by the applicants, Commissioner King stated "whatever the situation may be, I believe there is substantial merit in the application. Therefore I will vary the award as requested". We have, in the circumstances, decided to uphold the appeal and have formed an opinion that this matter should be referred back to Mr. Commissioner King for such further action as he sees fit. We have reached this conclusion having regard for the fact that there appears to be an inconsistency between the award he made and his reasons for decision. Having so decided we find it unnecessary to discuss any further grounds of appeal.
1 T.721 and T.999 of 1987 |