IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

On 14 October 1986, the representative of the Minister for Public Administration, Mr. Jarman, advised us that Cabinet had instructed the office of Industrial Relations to seek to withdraw the applications currently before us.

Such application to withdraw was supported by the Tasmanian Public Service Association.

We were also informed that the Federated Miscellaneous Workers' Union which had earlier intervened, no longer has an interest in these matters.

After hearing the parties we indicated on transcript that we would reserve our decision on the request to withdraw the applications and issue a written decision in due course.

We now address that question.

Whereas the withdrawal of applications would be of little moment under normal circumstances, the reasons advanced in this instance go to the objectives of the industrial Relations Act 1984, and the award making role of this Commission.

Because the matters raised are of such fundamental importance we feel obliged to respond in some detail.

Before doing so however, we believe it is necessary to briefly advert to the fact that on 13 February 1986 we issued a Reasons for Interim Decision concerning our refusal to adjourn sine die in these same matters. Of equal relevance is our Reasons for Decision issued on 6 October 1986, in the matter of a "Test Case" in relation to coverage of public sector awards generally and to consider scope and persons bound clauses in public sector awards, T.270, 271, 278, 292 of 1985 and T.374 and T.375 of 1986.

In the matter of 13 February 1986, we decided against the application to adjourn sine die and commented as follows at pages 16 and 17:

"The reasons advanced to us for an adjournment sine die amount to no more than a rejection of our earlier decision to make a new, separate award in respect of the Tasmanian Museum and Art Gallery and its employees.

We have already indicated that we regard the circumstances peculiar to the operations of the Tasmanian Museum and Art Gallery more than sufficient to warrant the creation of a separate, new award and believe we have a statutory duty under the Industrial Relations Act 1984 to decide the content of awards as well as to whom they shall properly apply.

The predisposition of the parties to close their minds to the proper role and function of this Commission, pursuant to the Industrial Relations Act 1984, and the principles adopted by this Commission compared to the separate and distinct function of Heads of Agency and others pursuant to the State Services Act amounts to no more than a nihilism.

Within the context of the present matter, we have been at pains all along to stress that we have no difficulty in understanding and accepting those functions which properly belong to other bodies and individuals once our award-making role has been fulfilled."

Again in the "Test Case" decision of 6 October 1986, we commented at page 11:

"We are in no doubt that this Commission has a primary function under the Tasmanian Industrial Relations Act 1984 (the Act) to ensure that our awards have meaning in the context of who it-is that they seek to cover; and the extent to which employees so covered should be remunerated.

This can only be properly accomplished if we are made aware of employees' duties and responsibilities. We do not see this function as impinging in any way upon that of the employer who has the right to reclassify employees where this can be sustained within wage fixing principles and within award parameters set by this Commission."

We stated that we believed our view was consistent with that of the Full Bench of the Conciliation and Arbitration Commission in its comments made at pages 36-37 in the June 1986 National Wage Case Decision, Print G3600:-

"ACPA sought the addition of a clause to make clear that the reclassification of a single position is not restricted by Principle 4, provided that normal and proper standards of grading are applied.

This is a difficult area. In general we believe that the Principles should be applied to all wage increases and not even the reclassification of single positions would be exempt. We are particularly concerned that wholesale reclassifications of positions can and have in fact been occurring, particularly in the public sector, without changes in the nature of the work. These reclassifications may simply be a means of avoiding the strictures of the present guidelines."

Underlining ours

In our decision we went on to add:

"Further, it is also clear to us that in the exercise of this Commission's statutory functions, particularly with regard to award making and the determination of wage rates and conditions of employment, we should not simply confine ourselves to providing a very wide award framework within which State employees may be classified unless a case can be made out supported by proper evidence."

We then proceeded to decide that both the General Officers (Public and Mental Health Services) Award and the Technical Officers (Public and Mental Health Services) Award should be varied as to their scope in such a way as would "save" wage rates and conditions of employment of State employees who were either award free or occupied a position not carrying a State Service position number as at 1 December 1985 .

We also expressed the opinion that only appropriate and relevant awards should be utilised in the public sector. to facilitate this we considered it desirable and necessary to place the following prescription, where appropriate, in public sector awards of the Commission:

"PROVIDED FURTHER THAT this award shall not be binding in respect of, or applicable to, employees for whom coverage by this award is specifically excluded by another award of the Tasmanian Industrial Commission."

Turning now to the submissions presented to us on 14 October 1986, going to the question of withdrawal of the present applications, we will comment on each aspect presented to us, seriatum.

Mr. Jarman at page 358:

"Our position in the Tasmanian Museum and Art Gallery matter has been that there is no need for a single award for Tasmanian Museum and Art Gallery employees."

Our comment:

We as an independent and impartial body have conducted a hearing, taken evidence and carried out inspections and subsequently issued our interim decision confirming that there are circumstances which support the making of a separate award for the Tasmanian Museum and Art Gallery.

The evidence before us was that our view coincided precisely with findings of the Public Service Board in this regard, when it existed.

Any party is entitled to have a different view to us; and indeed challenge our decision in a court of competent jurisdiction if it is believed some grounds for challenge exist.

For our part however nothing has been put forward to change our view.

Mr. Jarman at page 358:

"To reinforce our previous submissions and to conform with the views of the Commission, we say that to remove the need for an award for Tasmanian Museum and Art Gallery employees is to eliminate duplication."

Our comment:

We decided on 31 July 1985 (at page 83 of transcript) that there is a need for a separate award .for the Tasmanian Museum and Art Gallery.

Once made that award would certainly not simply duplicate existing awards.

Mr. Jarman:

"To remove the need for an award for Tasmanian Museum and Art Gallery employees does not offend the Wage Fixing Principles."

Our comment:

The need for a separate award has not been removed. What is intended by the parties is that no separate award be made in this instance so that they may utilise existing awards which never involved consideration of the Tasmanian Museum and Art Gallery as a party or person bound.

Such a procedure as is proposed would give maximum ambit for the setting of wage rates by reclassification .

The evidence before us is that such extensive ambit is unjustified.

We have already commented at page (4) and added the view expressed by the Australian Conciliation and Arbitration Commission at pages 36-37 of Print 63600 to our own in regard to reclassification of positions and the principles of wage fixation.

We also draw attention to our remarks and our decision made on 13 February which, we conclude are either not understood or are being ignored. In our Reasons for Interim Decision we said at page 12:

"From the evidence we were given at the hearing, we are left in much doubt that the salary review which we discovered to have been conducted and implemented some 6 months previously, was within Wage Fixing Principles."

At that time we also noted with concern that salary rates had already been reviewed shortly before by "administrative action" without regard to the Principles and increases of up to $5,597 per annum had been granted .

And the applications before us at that time would have the effect of increasing the salary ranges even further, without any evidence of justification. At pages 11 and 12 we said:

"3) Despite our entreaties to the parties, no evidence could be produced to the Commission supporting an extension to the range of existing classifications which would result if the applicant's proposal was accepted. In this regard it is noted that currently the highest paid Administrative and Clerical Officer is Class XIII, but if the claim is successful, the top of the range will become Class XXI.

As another example, the highest paid Technical Officer (General Scale) is currently Class VI. The scale would be extended under the applicant's proposal to Class XIX. These examples are not isolated.

4) That part of the claim which relates to the extension of wage scales is all the more extraordinary when considered against the background of a complete salary review by the Public Service Board which resulted in increases of up to $5,597 per annum, occurring, we believe, around January 1985 barely six months before applications for an extension of the scales was made."

If any proof is needed to show that the previous exercise of increasing wages through reclassification was done without regard to proper wage fixing principles it can be demonstrated by reference to transcript of 31 July 1985. The Commission had brought to the attention of the parties an article in the Public Service Association journal "Service" which referred to a salary review for Museum and Art Gallery staff. At pages 44 and 45 transcript reports:

"Mr. Jarman:

With respect, there has been no adjustment made to the salaries or conditions of the attendants. We are talking about those persons who were award free.

Deputy President:

They have not had any adjustments? Mr. Jarman:

No, that is correct. Other than those of course which would normally be expected under national wage movements.

Deputy President:

What about this article to which I referred? You indicated that there had in fact been a review .

Mr. Jarman:

If I did not clarify it then, I will clarify it now. There had been a review, but any adjustments made to salaries have been made to those persons who were award-free. The attendants have not had their salaries or conditions adjusted outside of the terms of the Principles.

Deputy President:

But the others have?

Mr. Jarman:

No, because as I said to you previously Mr Deputy President, those persons were award-free. It was the controlling authority's responsibility at that time to manage its work-force as it saw fit.

Deputy President:

Bound by the Principles or not?

Mr. Jarman:

If you are award-free how can you be bound by the Principles?

Deputy President:

Are you saying that regard was not had to the Principles?

Mr. Jarman:

I am saying that regard was not had to the Principles at that time.

Deputy President:

But they were in existence at that time.

Mr. Jarman:

I am sure they were. We have been asked by the authority to seek awards for its employees."

Since that time two things have happened:

1) The Commission has made it quite clear that it will only set maximum wages scales based upon proper criteria.

2) The parties reaction has been to seek to withdraw the applications before the Commission so as to pursue other avenues of award coverage, where the high level of wages scales being sought are in other awards.

As Mr. Jarman put it to us on 14 October 1986:

"Appropriate public sector award mechanisms are in place which can accommodate without variation the existing classifications and conditions applying to Tasmanian Museum and Art Gallery employees."

"To remove the need for an award for Tasmanian Museum and Art Gallery employees does not, we submit, have any adverse affect in the public interest. In fact, to the contrary.

The removal of duplication and excess in the public sector is in the public interest."

Our comment:

The need for a separate award exists and cannot simply be removed for the sake of expediency.

Section 36 of the Industrial Relations Act 1984 provides that the Tasmanian Industrial Commission is to be satisfied with regard to public interest in the area of awards and agreements.

"36(1) Before the Commission makes an award under this Act or before the Commission approves an industrial agreement under section 55, the Commission shall be satisfied that that award or that agreement is consistent with the public interest."

We are not satisfied that refraining from making a separate award for the Tasmanian Museum and Art Gallery is within public interest .

We go so far as to say that what has been referred to in transcript and already quoted as "appropriate public sector award mechanisms" by the Minister's representative would appear to be no more than a mechanism by which awards are to be extended to employees who were previously award free without the concurrence of the statutory award making authority, and indeed it seems, against the express view of such statutory body.

Mr. Jarman:

"The Department of Public Administration's longer term objective is to develop appropriate uniform remuneration practices in consultation with relevant agency managements and employee organizations.

Where such revision results in proposed changes to existing awards or their use, then those matters will be brought before the Commission to be dealt with in the proper manner."

Underlining ours

Our comment:

We point out that remuneration of employees i.e. wages rates is an "industrial matter" within the definition contained in the Industrial Relations Act 1984 .

Section 3(1) provides:

"In this Act, unless the contrary intention appears

"industrial matter" means any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes -

(a) a matter relating to -

(i) rates of remuneration, whether as wages rates or piecework rates, or variations to those rates or additions to those rates, or extra or special payments;"

(underlining ours)

We point out therefore, that remuneration matters are clearly the responsibility of this Commission and no other agency of Government.

If it is intended that the old Public Service Board system continue and the Department of Public Administration deal with remuneration matters for State Service employees then we recommend legislative changes to appropriate Acts .

Apart from legal aspects we also perceive the likelihood of significant long term industrial relations problems if the foregoing stated objectives of the Department of Public Administration are pursued.

Mr. Jarman:

"Cabinet, in its instruction to the Office of Industrial Relations, has indicated that a task force will be convened by the Commissioner for Public Employment. This task force will report to Cabinet on options for achieving rationalization of public sector awards and I stress at this point that rationalization means removal of duplication and excess.

It has also been requested - that is the task force has also been requested - to seek the views of relevant public sector unions on their preferred approach to rationalization."

Underlining ours

Our Comment:

We, of course, recognise the right of the employer to form a view as to any award matter, and indeed will welcome any submissions being put to us for consideration at some future date .

However the ultimate responsibility for any changes going to the question of what has been referred to by the parties as the rationalisation of public sector awards rests with this Commission.

Having regard to all the circumstances we fail to see the relevance of the exercise to be carried out by the task force in relation to the decision which we already have taken to create a separate award for the Tasmanian Museum and Art Gallery.

Decision:

We decide against granting leave to withdraw applications T143-T150 for the following reasons:

1) The Tasmanian Museum and Art Gallery's operations and work requirements are of a distinctive nature and differ from ordinary public sector agencies operating under different awards.

The fact that it operates 7 days per week is but one example of the differences which exist .

2) To place the Tasmanian Museum and Art Gallery under existing awards which contain substantially higher salary levels than currently apply is not justified on merit or within the Principles of Wage Fixation adopted by this Commission.

3) On the evidence before us as already dealt with the granting of the application would be against the public interest. In saying this we point out that the adoption of the Principles and the continued compliance with them to our satisfaction is very much apart of public interest considerations.

This matter will now be listed for continued hearing to finalise the award early in 1987.

Adjourned sine die.