IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act, 1984

REASONS FOR DECISION

This appeal was brought by the Tasmanian Teachers' Federation (the appellant) against a decision of the Commission emanating from application T. No. 316 of 1986.

The issue raised by this appeal is whether the Commissioner has been shown to have erred in his decision of 4 March 1986.

HISTORY

An application was made by the Minister for Public Administration to include in the Teaching Service (Teaching Staff) Award a savings provision.

This provision was to cater for an employee who had been transferred within the Education Department to a new position which attracted a salary of $60 per annum below that which he received in his previous position.

The Commissioner decided to insert a Savings Provision in the award and stated the following:-

"I am of the opinion that the actual difference in salary giving rise to salary maintenance, should stand alone and this amount reduce until absorbed as a consequence of salary adjustments to the transferred employee's substantive position."

He went on to say -

"Having expressed that view my decision in this matter is that a savings provision be included in the award; the provision to lapse when the $60 has been absorbed as a consequence of movements, for whatever reason, to Mr. Tomalin's new classification."

GROUNDS FOR APPEAL

The appellant's application contained no formal grounds for appeal which, to say the least, led to a fair degree of confusion in the presentation of the appeal itself.

The Industrial Relations Act 1984 requires grounds of appeal to be presented at the time of lodging the appeal.

Section 71(2) states inter alia:-

"(2)   A notice of appeal for the purposes of subsection (1) shall specify:-

(a) the award, decision, declaration or refusal, against which the appeal is brought;

(b) the organisation, association or person bringing the appeal; and

(c) the grounds for appeal."

After some questioning from the Bench, it is fair to say that the appellant's main ground for appeal was that the Commissioner's decision was wrong in that it was contrary to the Wage Fixation Principles, and in particular Principle 1.

Following further elaboration by the appellant and after examining the transcript of the original hearing, it appeared to us that the appellant was opposed to the $60 (i.e., the difference between the employee's new salary - $28,038 and his previous salary - $28,098) being absorbed by any future upwards movement in the award award rate for the employee's new position, including wage adjustments made for movements in the Consumer Price Index.

We were also of the opinion that the appellant was not opposed to having the $60 absorbed some time in the future, but only if increases in the new salary were brought about by work value or anomaly case adjustments.

Mr Lane, representing the Tasmanian Teachers' Federation was questioned from the Bench as to whether or not he had presented evidence at the original hearing on the Wage Fixation Principles.

He responded by saying -

"If you read the transcript, sir, you will find in fact the Wage Fixation Principles were not something which were taken into consideration by either myself or my colleague, Mr Johnson. I think we both had to admit that we had not, in fact, looked at the Wage Fixation Principles prior to that case being heard and so, in fact, we did not bring it up during the proceedings."

We can only respond by saying that any party who neglects to put all the relevant facts to the Commission at the original hearing, does so at his own peril. No Appeal Bench will allow an appeal that is prosecuted on the premise that a member of the Commission has not taken into account matters not formally before him.

Moreover, the appellant made no application to us for the admission of new evidence. Had such an application been made it would need to be a rare circumstance indeed that would justify approval of that course.

During the hearing we were given an indication by the appellant that discussions were held in private conference during which the Wage Fixation Principles were raised. However, discussions held in private conference do not form part of the record of proceedings and, therefore, will not form part of our considerations in this matter.

Mr Johnson, representing the Minister for Public Administration, was not opposed to the decision handed down by the Commission on 4 March 1986.

DECISION

The onus of proof is on the appellant to demonstrate where the Commissioner concerned erred in making the decision against which the appeal is taken.

Having heard the submissions of the parties, we have come to the conclusion that the appellant has failed to persuade us that the decision of the Commissioner should be disturbed.

In exercising his function as arbitrator, the Commissioner was clearly faced with competing submissions. In our opinion the decision taken was reasonably open to him on the evidence. We therefore fail to see where any error occurred that requires intervention by this Bench.

The Industrial Relations Act 1984, requires that a Commissioner:-

"(a) shall act according to equity, good conscience, and the merits of the case without regard to technicalities or legal forms;

(b)  shall do such things as appear to it to be right and proper for effecting conciliation between the parties, for preventing and settling industrial disputes, and for settling claims by agreement between parties;

(c)  is not bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and

(d)  shall have regard to the public interest."

Among other things this means that a member of the Commission is vested with authority to exercise a wide discretion in arriving at a decision on an application.

This, therefore, is an appeal against the exercise of a discretion by a Commissioner. In determining the appeal, it is not a matter for this Bench to decide whether we consider we would ourselves have exercised that discretion differently.

In this case we would only have been prepared to interfere with the Commissioner's decision had we been satisfied that an error had occurred which resulted in failure to exercise discretion in a proper manner.

On the evidence before us we are unable to find that the Commissioner:-

(a)  allowed extraneous or irrelevant matters to guide or effect him;

(b)  mistook the facts; or

(c)  did not take into account some important material consideration.

For the foregoing reasons we dismiss the appeal.