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Tasmanian Industrial Commission

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T1360 and T1377 (19 Sept 1988)

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

 

Industrial Relations Act 1984

   
T.1360 and T.1377 of 1988 IN THE MATTER OF APPEALS BY THE HOSPITAL EMPLOYEES FEDERATION OF AUSTRALIA, TASMANIA NO. 2 AND TASMANIA NO. 1 BRANCHES RESPECTIVELY AGAINST A DECISION OF COMMISSIONER KING IN MATTERS T.721 AND T.999 OF 1987
   
  RE: HOSPITALS AWARD, DIVISIONS A, C AND D
   
FULL BENCH:
PRESIDENT L.A. KOERBIN
DEPUTY PRESIDENT A. ROBINSON
COMMISSIONER R.J. WATLING

19 SEPTEMBER 1988

   

REASONS FOR DECISION

   
APPEARANCES:  
   
For the Hospital Employees' Federation of Australia,
Tasmania No. 1 and
Tasmania No. 2 Branches
  - Mr. D. Holden
   
For the Tasmanian Confederation
of Industries
  - Mr. W. Fitzgerald
   
DATES AND PLACE OF HEARING:  
   
06.9.88                         Hobart
14.9.88
   
   

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:

For day work: The ordinary weekly rate for a full-time employee, plus 20%.

For afternoon and night shift, Saturday, Sunday and Holiday shifts: The ordinary weekly rate, plus 15%, 50% and 100% respectively, in addition to which a further loading representing 20% of the ordinary weekly rate would be added.

Each appellant relied upon 9 identical grounds of appeal. These were:

1. The Commissioner misdirected himself as to where the onus of proof lay.

2. The Commissioner misdirected himself in that he reduced current standards without the onus of proof being discharged.

3. The Commissioner misdirected himself in the translation of his decision to the order issued by the Commission.

4. The Commissioner misdirected himself in that he disregarded a long-standing nexus with the Hospital Employees (Public Hospitals) Award.

5. The Commissioner misdirected himself in that he has created different standards of employment in a single industry without good and proper reasons.

6. The Commissioner misdirected himself in that rather than prevent and settle industrial disputes, his decision is more likely to incite and provoke an industrial dispute or disputes.

7. The Commissioner misdirected himself by drawing attention to the requirements of the Tasmanian Industrial Commission's Wage Fixation Principle, when no improvement in standards was being sought.

8. The Commissioner misdirected himself, in that his decision will encourage casualisation of employment in private nursing homes.

9. Such other reasons as the Commission deem appropriate.

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
2 Ibid