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Tasmanian Industrial Commission
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Industrial Relations Act 1984
s.70 Notice of Appeal

Minister Administering the Tasmanian State Service Act 1984
(T.2603 of 1990)




HOBART 14 January 1991

Appeal against decision in matter T.1526 of 1988 - Appeal Upheld - Directions Issued


This matter concerns an appeal by the Minister Administering the State Service Act against a decision of a Commissioner sitting alone, pursuant to Section 70 of the Act.

The background circumstances are that a Full Bench of the Commission dealt with a number of specific items associated with an application by the Federated Miscellaneous Workers' Union of Australia, Tasmanian Branch (FMWU) for the making of a new Miscellaneous Workers (Public Sector) Award. And in a Supplementary Decision of 23 November 19891 that Bench decided to insert the classification of "Crossing Guard" in the award.

In doing so that Bench came to the conclusion that it would refer to Commissioner Imlach the task of investigating and deciding the appropriate wage rate and conditions of employment which should apply to such classification. This reference is to be found at page 2, i.e.:


As indicated at the hearing the classification of "crossing guard" will be inserted in the Award. However, we leave to Commissioner Imlach the task of investigating and deciding the appropriate wages and conditions that should apply."

"Crossing Guards" are employees who, in accordance with instructions issued by the Department of Roads and Transport, are responsible for the safe conduct of school children at pre-selected points.

Such employees work only on school days and attend road crossings for short periods of time in the morning and afternoon of approximately 45 minutes on each occasion. They had previously been award free and were treated as being casuals paid $10.10 per hour.

In his decision Commissioner Imlach decided, inter alia, that "Crossing Guards" should be regarded as part-time employees and not casuals. He also decided that:

1. The weekly award rate for crossing guards for a 38 hour week shall be $327.20.

2. The present award prescriptions will apply in full to crossing guards except:

(a) the part-time provisions will be varied (for crossing guards only) so that the 10% additional payment will be prescribed in lieu of annual leave (including school holidays), sick leave and public holidays.

(b) the minimum period of work will be varied (for crossing guards) to one hour.

3. The award will further provide for school holidays and public holidays to count as continuous service for crossing guards.

4. To give full effect to the decision of the Full Bench that provision should be made in the new award for crossing guards the scope clause will be amended to include them.

5. A definition of crossing guard will be inserted in the new award.

The Minister appealed the decision on the following grounds:

1. The Commissioner erred in that he handed down an award granting a rate of pay for the crossing guard classification which is not in keeping with:

(a) the original application in matter T.1526 of 1988;

(b) the submission of the parties;

(c) any matter or information raised by the Commissioner.

2. The Commissioner erred in handing down an award granting rates of pay and conditions for the classification of crossing guard in which he incorrectly applied the First Award and Extension to Existing Awards Principle.

3. The Commissioner erred in that he granted excessive rates of pay and conditions to the classification of crossing guard without the benefit of sufficient substantiating evidence or grounds.

4. The Commissioner erred in that, contrary to the wishes of the parties, he deemed the occupation of crossing guard to be of the nature of part-time employment rather than casual employment.

5. The Commissioner's decision is contrary to the public interest in that:

(a) He failed to give proper weight to the implications of excessive wage and condition increases for crossing guard classifications, and

(b) he set a minimum start period of one hour per engagement.

6. Such other grounds that are deemed appropriate.

The charter given to the Commissioner by the Full Bench to determine the appropriate wages and conditions to apply to "Crossing Guards" must of course be read down so as to be subject to the strict requirements of the Wage Fixation Principles and public interest criteria pursuant to Section 36 of the Act.

The Commissioner was also bound to properly consider the evidence and material placed before him by the respective parties and give it appropriate weight. And if the Commissioner proposed or intended to take into account any matter or information that was not raised before him during the course of the hearing, he was 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) of the Act).

Whilst the circumstances confronting the Commissioner were complex we conclude that he fell into error in two fundamental and important respects.

In the first instance the Commissioner accepted the argument of the Minister that he was dealing with a case which fell under the "first awards" part of the Wage Fixation Principles which provides that:

"In the making of a first award, the long established principles shall apply i.e. prima facie the main consideration is the existing rates and conditions."

However the Commissioner than wrongly concluded that he was "not bound to adhere exclusively to that subparagraph" and proceeded to make a personal assessment of what he considered to be appropriate wage rates and conditions of employment.

This was against prevailing circumstances where the Minister argued essentially for preservation of existing wage rates and conditions (although differently expressed) and the FMWU argued both that the circumstances constituted the "extension of an existing award", and that the claimed rate by the FMWU was no less than $318.70 which applies to other existing classifications of Cleaner, Groundskeeper and Kitchen Assistant.

Both parties had also agreed that crossing guards should continue to be regarded as "casual" employees.

Whilst the principles of the Commission relating to the making of "first awards" specified the application and adherence to a prima facie consideration, we conclude that little or no weight was given to such an important principle and insufficient reasons were given for being so dismissive of this long established principle.

Whilst the broad subject matter before the Commissioner was that of wage rates and conditions of employment for the classification concerned, the only evidential material before the Commission related to:

1. Existing rates and conditions applying in Tasmania, i.e. $10.10 per Hour.

2. Rates and conditions being applied in the States of Victoria ($9.25 per hour); South Australia (non-paid school students); New South Wales $6.50 per hour as at September 1989); Queensland $8.59 per hour); and Western Australia ($6.96 per hour).

The Commissioner somehow came to the conclusion that the:

"...hourly rate currently being paid to crossing guards does not fit in with the strict requirements of the guideline ...because they are not related to any award whatsoever.

In this context the interstate rates are no help as in those States where money is paid there is no award prescription."

And then the Commissioner concluded:

"I take the words of the principle to mean existing AWARD rates and conditions."

We disagree with that conclusion not only because the literal meaning as expressed in the principles is clear and unambiguous, but also because the purpose and order or priorities established by the principle relating to the making of first awards would be negated if existing rates and conditions were to be ignored.

Accordingly we find that the Commissioner substantially erred in this respect; uphold the appeal; and decide that:

1. An award be made in the terms of existing wage rates and conditions applying to crossing guards as at 1 July 1990 but that any wage movements made subsequently and affecting other classifications covered by the Miscellaneous Workers' (Public Sector) Award may also be made to apply to "Crossing Guards" if justified on merit.

2. The definition of "Crossing Guard" and revised scope clause stand.

3. "Crossing Guards" be employed as casuals deemed to be engaged and paid on hourly hire.

4. The minimum period of engagement for "Crossing Guards" be one hour per morning or afternoon period of duty.

In accordance with Section 71(13)(b)(ii) of the Act we direct this matter back to Commissioner Imlach to:

1. Rescind Order No 2 of 1990 varying the Miscellaneous Workers (Public Sector) Award.

2. Issue a new Order giving effect to our decision.


Mr M McCabe, Mr B Madden and Mr P Korn for the Minister Administering the Tasmanian State Service Act.
Mr K O'Brien for the Federated Miscellaneous Workers Union of Australia, Tasmanian Branch.

Date and Place of Hearing:
12 September 1990

1 T.1525 of 1989