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T13202

TASMANIAN INDUSTRIAL COMMISSION

 

Industrial Relations Act 1984
s70(1) appeal against decision

 

Minister administering the State Service Act 2000
(T13202 of 2008)

 

and

 

The Community and Public Sector Union
(State Public Services Federation Tasmania) Inc

 

FULL BENCH:
PRESIDENT P L LEARY
DEPUTY PRESIDENT P C SHELLEY
COMMISSIONER J P McALPINE

HOBART, 7 January 2009

 

Appeal against a decision handed down by Commissioner T J Abey arising out of T13150 of 2008 – Appeal upheld – Decision revoked

 

REASONS FOR DECISION

 

[1] This is an appeal pursuant to s.70(1)(b) of the Industrial Relations Act 1984 (the Act) against a decision of Commissioner Abey in matter T13150 of 2008 where he found that upon application the Minister administering the State Service Act 2000 (the Minister), in respect to the Department of Primary Industry and Water (DPIW) pay the applicant “Lynette Wilson and any dependant member/s of her family, up to three return fares each incurred in each year in accordance with Clause 13, Travel Allowances, Part IV of the General Conditions of Employment Award and existing administrative arrangements applicable in the Department of Primary Industries and Water.”

[2] The Minister has appealed the decision of the Commissioner and relies on the following grounds of appeal:

 

“Commissioner Abey in determination of the Order in Matter T13150 of 2008 made a legal error, gave weight to irrelevant matters, was mistaken as to fact as a consequence the Decision is unjust.

1. Commissioner Abey fell into error by concluding that s.31 of the Act stands alone when the decision of the Supreme Court in Farrell noted ‘that the Act must be read as a whole.’

2. Commissioner Abey’s Decision is contrary to s.31(4) – ‘so as to require any person to contravene or fail to comply with an award.’ The decision directs the employer to contravene the Award.

3. The words in clause 13(c)(ix) are unambiguous and consistent with rules of statutory interpretation the correct approach is to give the words the ‘plain ordinary meaning of the words’. It is therefore not open to Commissioner Abey to seek to impose his interpretation on the clause based upon other Agency practices.

4. Commissioner Abey applied ‘custom and practice’ to over-ride a statutory provision contrary to accepted principles of administrative law.

5. Such other reasons as may be advanced.”

[3] Clause 13(c)(ix) of the General Conditions of Employment Award (the Award) provides:

 

“(ix) Where an employee is stationed on the Bass Strait Islands and enters upon leave of absence the employee shall, three times in every year, be paid the return fare reasonably incurred by the employee for themselves or for any dependent member of their family resident on the Bass Strait Islands, travelling from their station to the nearest seaport or airport on the mainland of this State. Such travel shall include travel via Melbourne when such indirect travel is the most expedient means of travelling to or returning from the nearest seaport or airport on the mainland of this State.

 

PROVIDED that:

 

(1) an employee may in substitution for travel to the nearest seaport or airport in this State, travel to any other seaport or airport in this State or to Melbourne;

 

(2) for the purpose of obtaining emergency medical or dental treatment for an employee or dependent member of their family resident on the Bass Strait Islands an employee shall by way of reimbursement be paid the return fare reasonably incurred for travel from the employee's station to the nearest centre in this State, or to Melbourne, whereat such treatment can be obtained. Such reimbursement shall be in substitution for one or both of the return fares for the person concerned, more particularly set forth in this paragraph;

 

(3) the above entitlement is not cumulative, each year standing alone;

 

(4) no employee shall be eligible to receive payment for the return fares as set forth above unless such employee has first completed three months continuous service on one or other of the Bass Strait Islands.”

Background

[4] The applicant is stationed on Flinders Island (for purposes of the Award a Bass Strait Island) and has been receiving an airfares entitlement for herself and her dependant/s which the Minister now argues is an ‘above the award’ entitlement.

[5] The Minister submitted that the correct entitlement will now be applied which the Minister argues restricts the applicant to no more than a total of three airfares per annum for herself and any dependant/s.

[6] The application before the Commissioner was lodged pursuant to s.29(1) of the Industrial Relations Act 1984 (the Act) alleging that:

 

“DPIW have denied Ms Wilson and her family 3 return fares across Bass Strait from her residence on Flinders Island. We allege this is a breach of clause 32, Travel Allowance (ix) under the General Conditions of Employment Award.

 

In addition State Service employees permanently stationed on the Bass Strait Islands covered by the Nurses Award and the Police Award and their families are entitled to 3 return air fares across Bass Strait in every year.

 

The agency’s failure to cease their own custom and practice by not affording their employees this entitlement clearly is inequitable compared to other State Service employees and we request Ms Wilson receive 3 return fares across Bass Strait for herself and her family.”

[7] The Commissioner said that: “The matter in dispute is whether the reference ‘three times in any year’ refers to each of the staff member and dependent family members, or whether it imposes a cap of three return fares per year, irrespective of who they apply to.”[1]

[8] The Commissioner noted the uncontested evidence of other DPIW and Public Sector employees who had previously worked on Flinders Island revealed that the past practice of the DPIW had been to allow the entitlement of 3 return fares per year to both the employee and his or her dependant/s albeit the Minister now argued that such was an entitlement over and above what the award prescribed.

[9] The Commissioner provided a comprehensive history of the award provision and also considered the same or similar provision in other Public Sector awards. He also noted that “It would seem that the Minister’s position in 2004 was that firstly, the relevant clauses in the various awards were the same, and secondly, if the employer was successful in its application, it would seek to vary the other awards in the same vein.” [2]

[10] It was submitted before the Commissioner, and accepted by the Minister, that the application was not being pursued as an ‘alleged award breach’ but rather as an industrial dispute pursuant to s.29(1) of the Act. We think it makes little difference as an award breach satisfies the definition of an industrial dispute about an industrial matter.

 

The appeal

[11] It was the submission of the Minister that the appeal of the Commissioner’s decision was not about the quantum of the airfares awarded by the Commissioner but that in the Minister’s view the decision was an “attack on the integrity of the award system….”[3]

[12] Further the Minister argued that “….if Commissioner Abey is deemed to have incorrectly interpreted the award then the order that flows therefrom must be inconsistent with the application of the wage fixing principles because it gives to an employee something over and above what the award specifies.”[4]

[13] It was also submitted that the decision raises issues of consistency for State Service employees generally. To this end a review of allowances, “both quantity and reasons why and why not” will occur in 2009.[5]

 

The Minister

[14] It was submitted by the Minister that both parties had agreed before the Commissioner that the application was not being pursued as an award breach but as an industrial dispute. The Minister argued that as no award breach was at issue the application should have been dismissed or alternatively an order made consistent with s.31(3) of the Act.

[15] S.31(3) prescribes:

 

Notwithstanding subsection (2)(b), a Commissioner may make an order requiring that an application be made under section 23 or 43.”

[16] S.23 of the Act is Applications for awards and variations of awards and s.43 is “Interpretation of awards”.

 

[17] We have already noted that an award breach is an industrial matter for purposes of the Act. In our view neither s.23 or s43 are relevant to the application before the Commissioner.

 

Appeal grounds 1 and 2

[18] Appeal grounds 1 and 2 were dealt with together by the Minister.

 

“Commissioner Abey fell into error by concluding that s.31 of the Act stands alone when the decision of the Supreme Court in Farrell noted ‘that the Act must be read as a whole.’

 

Commissioner Abey’s Decision is contrary to s.31(4) – ‘so as to require any person to contravene or fail to comply with an award.’ The decision directs the employer to contravene the Award.”

[19] In respect to appeal grounds 1 and 2 the Minister relied to a large degree on two decisions of the Supreme Court of Tasmania where it was found in R v Tasmanian Industrial Commission ex parte Farrell [2002] TASSC 28 (Farrell) that “the Act must be read as a whole.”  In Farrell and also in Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission [2004] TASSC 142 (7 December 2004) (Blue Ribbon) the Minister submitted that the Commission was found not to have jurisdiction to hear and determine matters which are in fact not award breaches but either custom and practice or over award benefits.

[20] The decision in Farrell was about a former employee pursuing an entitlement not open to him under the Act and the Blue Ribbon decision considered the power of the Commission to make reinstatement orders in respect to employees of a contractor company. We question the validity of the Minister’s submission in respect to those decisions.

[21] In this matter the Minister submitted that s.31 provides the Commission with the power to order that the award be varied pursuant to s.23 or that an application for an interpretation be sought pursuant to s. 43 of the Act. The Minister did not argue that there was no industrial dispute between the parties but that the issue in dispute was “…..basically an over award condition or payment and the Commission has never had wide enough powers to make orders about over award payments.”[6]

[22] In essence the basis of the appeal is simply that the Minister disagrees with the Commissioner’s view as to the entitlement and application of clause 13(c)(ix) of the Award.

 

Community and Public Sector Union (State Public Services Federation Tasmania) Inc

[23] The Community and Public Sector Union (CPSU), on behalf of the applicant, relied on its submissions in the hearing below but noted that it had amended its application, without objection, to seek an order pursuant to s.31(1) of the Act that the Agency (DPIW) “continue a practice they had applied under the award for over 50 years.”[7]

[24] Further it was submitted that the CPSU is able to request a hearing in relation to an industrial dispute and that the matter in dispute relates to “the unrest of our members and their employment conditions.”

[25] Ms Tyson for the CPSU said that the order by the Commissioner did no more than continue a condition of employment which had been afforded the applicant and other employees for over 50 years.

[26] It was argued that the issue to be determined by the Commissioner was an industrial dispute to be dealt with under the jurisdiction of the Commission. Further it was said that the words in the relevant clause are unambiguous and that the Commissioner had applied them correctly. The CPSU noted that the application was not an application for an interpretation of the award provision.

[27] In respect to appeal ground 1 Commissioner Abey did not make the finding, as claimed by the Minister, that s.31 stands alone. He did no more than consider the application before him which was an application relating to an industrial dispute about an award entitlement to fares to and from one of the Bass Strait Islands.

[28] He considered the words in the relevant provision and determined that the applicant, Ms Wilson, had an entitlement as claimed. An order pursuant to s.31 of the Act was made in settlement of the industrial dispute.

[29] There is nothing remarkable about what the Commissioner did or about the process he followed. His actions are consistent with the regular practice of the Commission in settling industrial disputes and is in accord with the provisions of the Act.

 

Appeal ground 3

 

“The words in clause 13(c)(ix) are unambiguous and consistent with rules of statutory interpretation the correct approach is to give the words the ‘plain ordinary meaning of the words’. It is therefore not open to Commissioner Abey to seek to impose his interpretation on the clause based upon other Agency practices.”

[30] It was submitted by the Minister that “…initially the words of the clause must be given the plain and ordinary meaning and if they are capable of such a construction there is no justification for giving any other different meaning……………the clause is capable of a construction on its plain and ordinary meaning…even though the words may be clumsy and inelegant they are still plain and ordinary.”[8]

[31] The issue before the Commissioner as to what entitlement the clause provided was an argument about the meaning and use of the words “and” and “or”.

[32] The CPSU submitted that the word “or” can be inclusive and is not always exclusive as was submitted by the Minister. Further that the custom in regard to travel allowance is so well known by everyone that it is “ludicrous for the agency to have a different stance on this issue….”[9]

 

Appeal ground 4

 

Commissioner Abey applied ‘custom and practice’ to over-ride a statutory provision contrary to accepted principles of administrative law.”

[33] The Minister argued that the Commissioner had erred by applying custom and practice rather than what the award prescribes.

[34] The parties, in general terms, addressed the appeal grounds together, accordingly we also consider them together.

 

Is the application one seeking an interpretation of clause 13(c)(ix) of the Award?

[35] S.43 of the Act provides:

 

“The Secretary, an employer or an organization with members subject to an award may apply to the President for a declaration on how any provision of that award is to be interpreted.”

[36] During the formal appeal hearing it was established that the issue being appealed was the Commissioner’s view as to the application and meaning of the entitlement provided by clause 13(c)(ix) of the Award.

[37] It was argued by the Minister that the Commissioner had made an incorrect ‘interpretation’ of that provision.

[38] The application before the Commissioner was not an application for an ‘interpretation’ pursuant to s.43 of the Act.

[39] The issue in dispute was the entitlement to Ms Wilson under the relevant Award clause. The history of the industrial dispute was unchallenged being that Ms Wilson had been receiving an entitlement to three fares for herself and three fares for each of her dependant/s each year but her employer now applies the award to place a cap of three fares in total per annum for herself and her dependant/s. As the Commissioner noted:

 

“The former construction is that which has been applied to Mrs Wilson since 2004. The latter is the construction the employer intends to apply in the future.”[10]

 

Was the Commissioner able to make an order pursuant to s.31(1) of the Act?

[40] There was much discussion in the proceedings below about the Commission’s jurisdiction and powers. The extent of that jurisdiction was considered by Blow J in Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission [2004] TASSC 28 (26 February, 2004) where he said:

 

“The language of the relevant provisions of the Act could hardly be wider. I refer in particular to s31(1) which requires the Commissioner presiding at a hearing under s29, if he or she is of the opinion “that anything should be required to be done, or that any action should be required to be taken, for the purpose of…settling the industrial dispute in respect of which the hearing was convened”, to “direct that that thing is to be done or that action is to be taken.” I also refer particularly to the requirement of s20(10)(a) that the Commission “act according to equity, good conscience and the merits of the case without regard to technicalities or legal forms”; to the requirement of s20(1)(b) that the Commission “do such things as appear to it to be right and proper…for preventing and settling industrial disputes”; and to the flexible procedural provisions to be found in ss21(1),(2) and 20(3), ………….”

[41] And further:

 

“Having regard to the purpose of the relevant provisions in the Act, the ordinary meaning of s31(1), the history of the relevant legislative provisions, and the other matters I have referred to, I think that Parliament intended s31(1) to operate very widely in its scope, and to enable orders to be made imposing requirements to take positive action upon such persons or entities as commissioners think appropriate according to the circumstances of particular cases, provided only that there must be some industrial character to any thing required to be done or action required to be taken.”

[42] We are satisfied therefore that the Commissioner was correct in his view that he was able to issue an order pursuant to s.31(1) to settle the industrial dispute before him.

[43] It is clear that the Minister disagrees with the Commissioner’s view of the entitlement available under the relevant award clause; accordingly it is that part of the decision which is under appeal.

 

Findings

[44] In our consideration of the appeal we need only to address the words as they are prescribed in clause 13(c)(ix).

[45] We agree with the Commissioner that the wording of the provision is ‘inelegant’ and ‘clumsy’ and that it is unambiguous.

[46] The use of the conjunctive ‘or’ denotes a choice of one option over another whereas the use of the conjunctive ‘and’ denotes inclusiveness.

[47] The relevant clause uses the conjunctive ‘or’ which, in our view, provides an option that the available three fares per annum are for the use of the employee or her dependant/s resulting in a total of three fares only per annum for the employee and her dependant/s. Had the clause used the conjunctive and our view would be that the employee and her dependant/s would have been entitled to three fares each per annum.

[48] We disagree with the application of the provision as found by the Commissioner and are of the view that a plain reading of the words result in an entitlement to a total of only three fares per annum to the employee and her dependant/s in any one year regardless of who accesses the entitlement.

[49] We reject appeal ground 1. The Commissioner did not make the finding claimed by the Minister, accordingly there can be no error.

[50] We reject appeal ground 2 as irrelevant. However we are of the view that a benefit over and above an award or legislative entitlement causes no breach and could not therefore offend s.31(4).

[51] We uphold appeal ground 3 as we disagree with the Commissioner’s determination of the entitlement under the relevant award clause. In our view the Commissioner erred in his consideration of the words therein.

[52] We uphold appeal ground 4. The Commissioner erred as it was not necessary or appropriate to rely on custom and practice to make his determination. There is no ambiguity in the relevant award prescription.

[53] We uphold the appeal and revoke the decision of the Commissioner.

 

Observations

[54]  We have revoked the decision of the Commissioner however in so doing we register concern that the industrial dispute remains unresolved.

[55] The position of the Minister creates a glaring inconsistency amongst employees employed by the Minister on the same Bass Strait Island and this anomaly needs to be resolved as a matter of some urgency. Further the position of the Minister is inconsistent with submissions put in earlier proceedings in the Commission [T11324] which the Commissioner noted as follows: “It would seem that the Minister’s position in 2004 was that firstly the relevant clauses in the various awards were the same and secondly if the employer was successful in its application it would seek to vary the other awards in the same vein.”[11]

[56] Whatsmore the Minister has been applying the award prescription incorrectly for many years and has now decided to reconsider that position. We acknowledge that the Minister is able to do so. However it may have been more appropriate to seek an award variation to maintain consistency with other public sector employees in the same location should the Minister’s stated position in 2004 remain that the relevant award clauses should or do provide the same entitlement to all public sector employees stationed on the Bass Strait Islands.

[57] The determination of this appeal has highlighted the inequity and absurdity of the current position.

 

 

 

 

P L Leary
PRESIDENT

 

Appearances:
Ms J Fitton and Mr P Baker for the Minister administering the State Service Act 2000

Ms K Tyson and Mr M Di Pretoro for the Community and Public Sector Union (State Public Services Federation Tasmania) Inc

 

Date and place of hearing:
2008
October 20
Hobart


[1] Decision T13150 of 2008 para 5

[2] Supra para 27

[3] Transcript p 2, line 37

[4] Supra p 7 line 42

[5] Transcript p 17, line 36

[6] Transcript p 13, line 43

[7] Supra p 18, line 34

[8] Transcript p 15, line 29

[9] Supra p 19, line 37

[10] Decision T13150 para 6

[11] Decision T13150 para 27