IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

The matter before us concerns an appeal, pursuant to Section 70 of the Industrial Relations Act 1984, against a decision of a Commissioner sitting alone.

More specifically, the Tasmanian Public Service Association (TPSA) lodged an appeal against that part of the President's decision in the Inland Fisheries Commission Staff Award going to Clause 11 - Compensatory Allowance in matter TA34 of 1988.

The TPSA had, in its original claim, sought to have inserted in the award an appropriate clause to provide for the payment of two separate allowances to compensate Inland Fisheries Department inspectors for out of hours work and disturbance. They had claimed:

(a) An allowance calculated at the rate of 27.5% of salary in lieu of all overtime duty he may perform and in lieu of penalty payments in respect of work on Saturday, Sunday or public holidays.

(b) An allowance of $1455 per annum as compensation for regular disturbance of leisure time.

In his decision the President granted a new `Compensatory Allowance' as follows;

"COMPENSATORY ALLOWANCE:
Category A	An amount of not less than $1455, or 8% of an employee's substantive salary
Category B	An amount of not less than 9% or more than 11% of an employee's substantive salary
Category C	An amount or not less than 12% or more than 15% of an employee's substantive salary
Category D	An amount of not less than 16% or more than 17.5% of an employee's substantive salary"

This new provision was awarded specifically in lieu of the following items:

"1.	After hours disturbances;
2.	Overtime;
3.	Penalties for work done outside ordinary working hours, however described, and on any day;
4.	On call;
5.	Minimum payments;
6.	Working in extreme weather conditions."

Thus the decision effectively absorbs and replaces the existing allowance of $1455 provided by Regulation 13 of the State Service Act as compensation for duties performed outside normal hours of duty. However, the current practice of allowing an extra week's leave as compensation for weekends and holidays foregone is unaffected.

The TPSA relied upon five stated grounds of appeal, i.e.:

"1. An error was made in that the decision did not take proper account of the evidence presented at the hearing.

2. An error was made in that the allowances awarded failed to provide adequate compensation for the factors for which it is paid in substitution.

3. An error was made in that the allowance was awarded on compensation in part for a factor which was not raised at the hearing on the matter - namely, working in extreme or rigorous climatic conditions on policing or surveillance duties.

4. An error was made in that the decision gave no criteria by which a determination could be made as to an individual Inspector's correct allowance entitlement.

5. Such other grounds that are deemed appropriate."

The appellant asked us to uphold their appeal and grant their original claim for two separate allowances.

The Minister for Public Administration, through Mr McCabe as agent, opposed the appeal and argued that the President's decision should stand.

We have studied the transcript and considered all that which was put to us by the respective parties and as a result have decided to dismiss the appeal.

In the first instance we say that it has not been demonstrated, to our satisfaction, that any error occurred in not taking into proper account the evidence presented at the hearing.

The President had the benefit of hearing from three witnesses at first hand in relation to matters relevant to the claims, and also had before him extensive copies of records containing, inter alia, details of the time and places of work performed by fisheries inspectors.

The transcript demonstrates that the picture presented by such evidence was broadly based rather than concise and explicit. Clearly the emphasis was merely upon the flexibility of working times given the nature of the calling.

It was therefore clearly open to the President to exercise discretion in this regard. And indeed in the circumstances he could do no more than estimate what would be a fair average of hours and days actually worked. It is not enough that we may have decided differently if placed in the same position.

The onus of the TPSA, as appellant to show that some principle was breached or overlooked, or that the facts were misconstrued or misapplied has not been discharged in our view.

Nor do we believe it has been properly demonstrated that the increased benefit granted by way of a new discretionary variable allowance was not reasonably open to him as an option. It follows, therefore, that the TPSA has not demonstrated that the discretionary judgement of the President, in fixing the level of the new allowance, was not reasonably open to him on the evidence.

Whilst they believed the amounts fixed should have been higher, the TPSA ought not to expect us to review the case de novo, given the circumstances which exist.

Turning now to the allegation of the TPSA that an error was made in that the decision gave no criteria by which a determination could be made as to an individual inspector's correct allowance entitlement, we say no such error has been demonstrated.

Rather, such an allegation is no more than speculative supposition at this stage.

In any case the decision makes it clear that if any dispute should arise then recourse may be made to this Commission for resolution.

Finally, the appellant relied upon overturning the decision on the basis that an error was made in that the allowance was awarded in part compensation for a factor which was not raised at the hearing of the matter - namely working in extreme or rigorous climatic conditions on policing or surveillance duties.

The concern expressed by the TPSA was that if they had been forewarned that such a factor was to be incorporated in the other components of their two claims, then they would have fully addressed this question and probably requested inspections of the areas in which work is performed. And as a consequence of the decision's inclusion of climatic conditions they now feel that they have been denied an avenue of making a proper claim in the future.

Whilst in the exercise of its jurisdiction under the Act the Commission is not restricted to the specific claim made or the subject matter of the claim, nevertheless, where the Commission proposes or intends to take into account any matter or information that was not raised before it, the Commission is obliged to notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information. [Section 20 (3) and (4)].

However, the present circumstances rather constitute a plea for the TPSA not to be denied a right to separately present a case in the future, should it be so disposed, than a ground for overturning what after all is an increased benefit to the majority of its members concerned.

We conclude therefore that no eligible organisation should be precluded from raising the question of working in extreme or rigorous climatic conditions in the future.

Appeal dismissed.