T4579
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Minister administering the Tasmanian State Service Act 1984 TEACHING SERVICE (TEACHING STAFF) AWARD
Appeal against decision in matter T.4431 of 1993 - Teaching Service (Teaching Staff) Award - District allowances - operative date - appeal upheld - Order quashed - new Order - operative date of ffpp 6 July 1993 REASONS FOR DECISION This appeal was brought by the Minister administering the Tasmanian State Service Act 1984, specifically the Minister for Public Sector Management, against a decision dated 26 August, 1993, of Deputy President Robinson in matter T.4431 of 1993 which varied the Teaching Service (Teaching Staff) Award in respect of District Allowances. The Order arising out of that decision granted a retrospective operative date from the first full pay period to commence on or after 16 June, 1993. It is the aspect of retrospectivity that the appellant seeks to appeal. The grounds of appeal are as follows:
It can be seen from the transcript that the advocate for the Tasmanian Teachers Federation (TTF) in the original hearing sought an operative date from the first full pay period to commence on or after 16 June, 1993, as that coincided with the operative date of similar applications which varied the General Conditions of Service Award.1 The Minister's representative in the original hearing presented a submission to the Commission suggesting that if the application was successful it should be operative from the first full pay period to commence on or after the date of decision. However, as a preliminary point in the hearing of the original application (T.4431 of 1993) which commenced on 6 July, 1993, the Minister's representative presented submissions on a threshold matter. The Deputy President sought answers from the Minister's representative to a question which could not be answered without instructions. After hearing from the TTF the Deputy President indicated that he was going to adjourn the proceedings for a few weeks. He said -
The matter was adjourned to a date to be fixed. When the hearing resumed on 29 July, 1993, the question of the operative date was raised again. The applicant again requested that the operative date be from the first full pay period to commence on or after 16 June, 1993. The Deputy President stated-
The response from the TTF, in justifying the existence of special circumstances, was that the adjournment, which had caused some delay, was not related to the subject matter of the application and that that should constitute a special circumstance. The Minister's representative then indicated that the Government had not sought the adjournment. These were the main issues going to the question of the operative date which were raised during the course of the hearing. On page 9 of his Reasons For Decision, the Deputy President, under the heading of Date of Operation, summarised the submission of the TTF and response of the Minister. He then stated that the original application was lodged with the Commission by facsimile on 16 June, 1993. However, it should be noted that the employer was of the view that, whilst the application was received by facsimile in the Commission on 16 June 1993, it was in fact after the close of business on that day. The Deputy President went on to say -
He then said that, in his opinion in this matter, there were special circumstances that made it fair and right to give retrospective effect to the award variation. Section 37(5) of the Act states -
In Ground 4 the appellant directed our attention to the fact that the original decision did not specify the special circumstances which made it fair and right to award retrospectivity to the date upon which the application was lodged. After examining the transcript and the decision we are of the view that the Deputy President erred in that the reasons which he considered might have made it fair and right to award a retrospective date of operation were not clearly specified in his decision. The Deputy President made a number of observations which showed that he had taken into account certain submissions put to him as to the operative date, and that he considered the Minister's threshold argument had been responsible for the delay in concluding the matter. However, in our opinion that is not an acceptable alternative, especially given the requirements of Section 37(5) of the Act which are set out above, to setting out as clearly as possible, indeed specifying, the precise reasons for reaching the conclusion that a retrospective date of operation was warranted in this case. Accordingly, we have arrived at the conclusion that the appeal should be upheld on this ground alone and we see no need to address the other grounds. Therefore, we quash the Order arising out of application T.4431 of 1993 as it relates to the operative date only. Given our decision in this matter and the fact that no submission was made during the course of hearing this appeal as to what the operative date of the original decision should be if the appeal was successful, we conclude that there are no special circumstances that would have us determine that the operative date should be anything other than the first full pay period to commence on or after 26 August, 1993, which is the date of Deputy President Robinson's decision and we decide accordingly. The Order giving effect to this decision will follow in due course.
Appearances: Date and Place of Hearing: |