T4826 T4591 T4820 T4827
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Minister administering the Tasmanian State Service Act 1984 Australian Education Union, Tasmanian Branch TECHNICAL AND FURTHER EDUCATION STAFF AWARD
Appeals against order in matters T.2417, T.3611, T.3709, T.4074, T.2113, T.3690 and T.4077 - Technical and Further Education Staff Award REASONS FOR DECISION The item considered in this decision was one of a number raised in the appeal applications arising out of an order, dated 24 December 1993, issued by Commissioner R K Gozzi in matters T.2417, T.3611, T.3709, T.4074, T.2113, T.3690 and T.4077 in the Technical and Further Education Staff Award (the Award). For the purposes of hearing, all the abovementioned appeal applications were joined. Appeal application T.4820 of 1994 was withdrawn and, except for the subject matter of this decision (specified as appeal ground 3 in application T.4826 of 1994) consideration of which was adjourned, all other items contained in appeal applications T.4591 of 1993, T.4827 of 1994 and T.4826 of 1994 were decided upon by this full bench in a decision issued on 28 March 1994. The appeal T.4826 of 1994 was lodged by the Minister administering the Tasmanian State Service Act (the Minister). In this one outstanding item the appeal ground was stated as follows:
The Minister maintained that neither he nor the Australian Education Union, Tasmanian Branch (the AEU) made any specific claim for penalty payments to be prescribed in the Award. The Minister claimed that under the Commission's own precedents, without a specific claim before him, the Commissioner erred in providing for penalty payments in the Award. The Minister submitted that any references made about penalty rates by the Commissioner in the decision appealed against applied to the excess hours situation and did not apply to penalty payments arising from work performed outside of ordinary hours. We do not accept the Minister's submission on this point. We are satisfied that the reference to penalty payments made by the Commissioner in his finding in the last paragraph of page 135 of his decision is related to work performed outside of ordinary hours. More precisely, the Minister claimed that the penalty payment provision decision appealed against introduced a provision into the Award without any formal application being made for it. However, the Minister, in his submissions and in answer to questions from the bench acknowledged on a number of occasions that the subject matter of penalty payments was before the Commission in the hearing. These references may be found in particular at pages 89, 106 to 107, and 139 of transcript. The AEU bmitted that having rejected the concept of applying penalty credits for evening work in the context of the annual teaching load it was quite proper for the Commission to provide for other methods of remunerating work done outside of ordinary hours, e.g. by way of penalty payments. The AEU also submitted that because of the cross-reference to the General Conditions of Service Award (the GCOS) in the Award there was no doubt that a provision for penalty payments for work outside the ordinary hours had applied in the Award for some time. This fact, coupled with the AEU's specific claim in its application for the GCOS catch-all provisions meant that the appeal ought not be upheld as the matter was properly before the Commission. Formerly by State Service Regulation, but, latterly by the Award's provision, a teacher's annual teaching time in hours is set; this is called the teaching load. When a teacher exceeds his or her teaching load prior to the end of the year that extra work is called "excess hours". The concept of "excess hours" is peculiar to the teaching area, especially TAFE Colleges where a significant amount of additional teaching occurs in the evenings. Where the additional evening teaching is undertaken and counted as ordinary time, it follows that a teacher's annual ordinary time working hours, that is, the teaching load, will be completed before the end of the teaching year. It has been established that when this latter event occurs, all hours of ordinary time worked after that event will be treated as "excess hours" and paid for according to a predetermined formula. It is a peculiar form of overtime which attracts its own peculiar penalty payment. The excess hours system operates separately and in a complementary way to ordinary overtime which continues to apply to all work performed outside the ordinary hours of work. We consider and accept (despite the claim that the provision had not been applied) that the GCOS Award already provided for such penalty payments, and, in the light of the AEU submissions in that regard, there was a detailed claim on the subject-matter before the Commissioner. On the basis that the subject matter was before the Commissioner, both as contained in the applications and specifically discussed in submissions, we consider that it was reasonable for him to provide an appropriate means for remunerating work done outside normal hours, that final piece in the jigsaw that is the teachers' hours of work situation when the ordinary hours had been established (including two evening periods per week), the teaching load and excess hours provisions had been set and penalty crediting had been abolished. We confirm the reference to penalty payments in the words of the Commissioner's finding at page 135 of the decision appealed against clearly related to work done outside the ordinary hours of work and that the Commissioner's order was in conformity with his decision. The appeal is dismissed.
Appearances: Date and Place of Hearing: |