IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This appeal is against the decision of Commissioner Watling in TA.41 and T.1222 of 1988, dated 18 October 1988, to insert the following new provision in Clause 22 - Terms of Employment of the Dentists Award:

"In the case of casual employees (as defined) the employer shall provide them with a written advice stating the date(s) and starting and finishing times for each period of employment. Employment shall be terminated (other than in the terms of the written advice mentioned herein) by one hour's notice in writing on either side or by the payment or forfeiture of one hour's wages as the case may be; provided that this shall not affect the right of the employer to dismiss an employee without notice for neglect of duty or misconduct in which case wages shall be paid up to the time of dismissal only."

The grounds of appeal are detailed as follows:

"1. The appeal is directed at that aspect of the Commissioner's decision which imposes an obligation on an employer to advise a casual employee in writing the date(s) and starting and finishing times for each period of employment.

2. The Commissioner erred in that he imposed an unnecessary obligation on employers without any evidence of the need to do so.

3. The Commissioner erred in that he imposed an obligation in respect of casual employees which goes beyond that required for weekly and part-time employees.

4. The Commissioner erred in that his decision, without any evidence of the need to do so, imposed a requirement which to the best of our knowledge does not exist in any other Award of the Commission.

5. The Commissioner erred in that he relied upon a decision (T.1604 of 1988) which was not referred to in the proceedings. Indeed T.1604 was issued subsequent to the last hearing day of the matter in question. In not affording the parties the opportunity to be heard in relation to the matter, the Commissioner offended Section 20 (4) of the Act.

6. Such other grounds as the Commission deems appropriate."

We propose to address number (5) only of the grounds of appeal for reasons which will become obvious.

Section 20 (4) of the Industrial Relations Act 1984, reads:

"Where the Commission, in deciding any matter before it, proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Commission shall, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to the matter or information."

Commissioner Watling in addressing that part of the claims, the subject of this appeal, in TA.41 and T.1222 amongst other things said:

"I have sympathy with the claim and I agree with the sentiments expressed by the President of the Commission when handing down his decision arising out of application T.1604 of 1988 where he stated:

"Any employer of staff is obliged by law to keep proper records. Employment is a contract and parties to that contract have both common law and statutory rights. It is simply not to the point to suggest that an employee knows his classification and his terms and conditions of employment. These should always be set out in a duly executed instrument of appointment establishing the employment contract. Any alteration to that contract should also be documented in writing."

The Commissioner then goes on to deal with the merit and draws conclusions in line with those expressed by the President.

Having regard to appeal ground five we accept Mr Abey's submission that the Commissioner erred in taking into account a matter not raised before him, without affording the parties, the opportunity of being heard in relation to it.

An important factor in our considerations was that the decision of the President was not issued until after the completion of the proceedings before Commissioner Watling, thus the parties had no opportunity at all to address the Commission on the President's findings. We are of the view the parties should have been given that opportunity.

The appeal is therefore upheld.

This appeal is concerned only with that aspect of the Commissioner's decision "which imposes an obligation on the employer to advise a casual employee in writing the date(s) and starting and finishing time for each period of employment".

As other aspects of the relevant subclause should be retained, we quash only that part of Commissioner Watling's order specifying the above.

A revised order is attached.