IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

In these proceedings the Hospital Employees Federation of Australia, Tasmania Branch (HEF) appealed against the decision of Mr Commissioner King, as he then was, in matter T1654 of 1988.

In that matter the Commissioner essentially decided in respect of the Hospitals Award that employees subject to the then -

Division A - Staff Employed in Private Hospitals

Clause 15 - Casual Employees - shall have their shift penalties calculated on the base hourly rate i.e. excluding the 20% loading on the hourly rate.

Division C - Employees In Establishments Providing Care for Aged Persons

Clause 62 - Casual Employees - shall have their shift penalties calculated on the base hourly rate i.e. excluding the 20% loading on the hourly rate.

In his decision Mr Commissioner King also decided that Part-time employees subject to the then Divisions A and C and Intermittent Employees subject to Division D - Employees in Blood Bank Services, working less than 20 hours per week (clauses 32, 76 and 98 respectively) shall also have their shift penalties calculated on the unloaded hourly rate.

The HEF nominated eight grounds of appeal. At the commencement of proceedings the Bench granted Mr Holden leave to amend appeal ground eight to reflect the view of the appellant organisation that the decision of Mr Commissioner King created an inequity vis a vis equivalently classified employees subject to the Hospital Employees (Public Hospitals) Award.

Following opening submissions by Mr Holden we indicated to the parties that our preferred course in these proceedings was to address the appeal ground going to the creation of an inequity.

That is whether or not, so far as the calculation of wage rates is concerned, an inequity was created between persons employed in public hospitals and those persons employed in identical classifications in the private sector.

We informed the parties that our attitude to this issue may obviate the need for further proceedings in the event that we found that in our opinion an inequity had been created.

Accordingly we invited submissions on that issue as a first step in the determination of this appeal.

Mr Holden in a detailed submission emphasised the long established wage rates nexus existing between private and public sector employees subject to the Award. The latest example of the acknowledgement of that nexus stems from the decision1 of Mr Commissioner Watling where in respect of wage rates for private sector nurses covered by Division A of the award he stated at page 2 of the decision, inter alia -

"...nevertheless, the die has been cast as nurses in the public sector have had a long standing nexus with their counterparts in private hospitals for very good and cogent reasons"

Ex. HEF1 at page 2

In that instance Mr Commissioner Watling referred to the President the matter of disparate wage rates between employees subject to those parts of the award that apply to public hospitals and those that apply to the private sector, so that the President could exercise his discretion as to whether or not the matter should be dealt with as an inequity under the Inequities Principle.

Subsequently the President determined that the matter should be referred to an Anomalies Conference for consideration as an inequity. The ensuing conference found that an inequity existed and the matter of disparate wage rates between public and private sector nurses was rectified on that basis.

Mr Holden urged the Bench that in this appeal the issue of differences in pay rate calculation for casual employees between the two sectors should be corrected by the rectification of the inequity which was created by Mr Commissioner King's decision and his argument in this regard was said to be strengthened by virtue of the fact that it is common practice for HEF members to regularly perform part-time work in both public and private hospitals.

Mr Heapy appearing for the Australian Nursing Federation supported the submissions of Mr Holden adding that in his view the Commissioner had made a fundamental error by creating an inequity and for that reason the appeal should be upheld.

Mr Fitzgerald appearing for the Tasmanian Confederation of Industries (TCI) argued that Mr Commissioner King had exercised his discretion and dealt with the issues before him on the merits.

He submitted that the Commissioner's assessment on nexus was correct. Mr Commissioner King stated on page 7 of his decision -

"Much was said in these proceedings about the nexus between public and private sector health awards. I believe the importance or relevance of a nexus diminishes significantly where a party or parties no longer wish it to apply"

We acknowledge that the Commissioner considered that whilst nexus is of importance that in this case, given that the TCI rejected nexus considerations that merit argument "must hold sway over other factors."

It is not a matter for this Bench to interfere with the discretion exercised by the Commissioner. What we are concerned with is in this case his decision did not appear to take into account that the nature of the work performed by employees in the respective sectors is the same and that indeed in respect of every other criteria contained in the Inequities Principle there is nothing that distinguishes the classifications in question.

Whilst we do not quarrel with Mr Fitzgerald's view that for the appeal to succeed it must be shown that the decision was not reasonably open to the Commissioner, in appeal proceedings an appellant cannot be prevented from accessing appeal grounds derived from the very principles of wage fixing determined by this Commission.

In deciding this matter we have given consideration to the possible option of re-directing the question of whether or not an inequity exists back to the anomalies conference procedure to make a finding in this regard. However, we do not believe such an option is open to us given that Section 71(13) provides that we may only dismiss the appeal or uphold it. In the latter case we may either make an award, decision, or declaration; or refer it back to the Commissioner concerned with directions.

Certainly the fact that Mr Commissioner King has subsequently resigned his position of itself presents a considerable difficulty in relation to the last question.

In the result we have decided that in all of the circumstances an inequity has been created by the decision and Mr Commissioner King erred in being too dismissive of earlier decisions of the Commission in relation to both the existence of a long standing nexus and the strength of such a nexus.

In our view organisations are entitled to expect a consistency of approach by members of the same tribunal.

Our comments in relation to nexus ought not to be interpreted in any way as seeming to elevate same to the status of being singularly inviolable. We are not saying that at all.

In fact we wish to make it clear that in the context of the current Wage Fixation Principles the existence of a long standing nexus may be but one of a series of factors to be taken into consideration, any number of which may be far more important.

Therefore for the reasons stated it is our decision to uphold the appeal and revoke the award made in matter T1832 of 1989.

We request the parties to prepare a draft Order giving effect to the consequences of our decision for the perusal of Mr Commissioner Watling who will finalise the matter.

1 T1808 of 1989