T2586
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Health Services Union of Australia, TASMANIAN AMBULANCE SERVICE AWARD and Correction Order [7.12.92] and Correction Order [11.3.93] and Order No. 3 of 1993
Award variation - SEP - quantum of annual leave REASONS FOR DECISION The Tasmanian Ambulance Service Award was varied in respect of the second instalment structural efficiency adjustment operative from 11 November 1992. Arising out of the decision in that matter the issue relating to the quantum of annual leave specified in Clause 5 - Supersession and Savings for Southern Region Ambulance Officers employed prior to 17 September 1984 was referred to the President for consideration by him as to whether or not a Full Bench should be constituted to determine that outstanding matter. In accordance with the functions and powers available to the President the matter was referred to this Full Bench to be dealt with pursuant to Section 35(1)(c). The specific issue requiring determination is whether or not Clause 5(b) - Annual Leave (Southern Region) should be retained in the award. That clause provides as follows:
Ms Cox appearing for the Minister administering the Tasmanian State Service Act traversed the history of the ambulance service leading to the introduction of the Ambulance Act in 1982 which created the present Tasmanian Ambulance Service. She indicated that at that time three regional boards were established, the southern region, northern region and the north western region. The Bench was informed that in the period 1981 to 1982, ambulance officers on shift work in the southern region developed the 4 x 4 roster system, i.e. where employees work 4 days on duty followed by 4 days off duty. Ms Cox said:
The quantum of annual leave introduced at that time for southern region ambulance officers was 8 weeks or 56 consecutive days on the premise that entitlements to annual leave had to be based on the pattern of the 4 x 4 shift roster system. That is, four consecutive working blocks for annual leave (32 consecutive days), one working block for working Saturdays, Sundays and public holidays (8 consecutive days) and two consecutive working blocks in lieu of statutory holidays (16 consecutive days). The foregoing entitlements based on working blocks meant that each working block was considered to comprise 4 shifts on duty and 4 shifts off duty making a bracket of 8 consecutive days; this notwithstanding that the Memorandum of Industrial Agreement defined a working block to consist of 4 consecutive duty days. Ms Cox advised the Bench that the annual leave entitlement calculated on the foregoing premise resulted in 6 consecutive leave days over and above the award entitlement of 50 consecutive days; which was made up of 28 consecutive days annual leave, 7 consecutive days for regularly working Saturdays, Sundays and public holidays and 15 consecutive days in lieu of the 11 statutory public holidays. Ms Cox inferred that the 56 consecutive days leave in the southern region resulted because of the inexperience of the Southern Ambulance Board in dealing with roster matters. More significantly, Ms Cox submitted that neither The Ambulance Employees' Association of Tasmania, as it was then, nor its members in the northern or north western region, attempted to seek the leave provisions applying to southern regional ambulance officers. She said:
To illustrate that the additional leave provisions were excessive, Ms Cox referred to 28 private sector awards which were reviewed to ascertain leave provisions for shift workers. The results, Exhibit M2, showed that 100 per cent of those awards provided for 28 consecutive days annual leave; 85.7 per cent provided an additional 7 days leave for regularly working on Saturdays and Sundays. The awards surveyed also contain leave provisions for public holidays ranging from 11½ days in 7.14 per cent of awards to 3.6 per cent where 9 public holidays are allowed. The consequential annual leave periods therefore vary between 44 days and 50½ days. In the public sector award areas annual leave provisions referred to the Bench included the following:
Additionally Ms Cox highlighted the fact that the Tasmanian Ambulance Service Award only provided for 28 consecutive days annual leave, plus 7 consecutive days for regularly working Saturdays and Sundays and 11 days in lieu of public holidays, making 50 consecutive days in all. This contrasted with the 56 consecutive days for long serving ambulance officers in the southern region only by virtue of the provisions in subclause 5(b) of the award. Ms Cox submitted that it was not the employer's intention to change prevailing standards for leave. She said:
It was also submitted by Ms Cox that it was not in the public interest to have different standards of annual leave apply to the same category of employees. Further that continuation of the existing annual leave provisions for ambulance officers in the southern region employed prior to September 1984 would be contrary to the intent of the Structural Efficiency Principle. In that context Ms Cox referred specifically to those parts of the principle concerning the requirement of the Commission to "guard against contrived arrangements", and to ensure that "working patterns and arrangements enhance flexibility and the efficiency of the industry" and for the need to address "cases where award provisions discriminate against sections of the workplace". In response Mr Nielsen appearing for the Health Services Union of Australia, Tasmania No. 1 Branch (HSUA) alluded to the fact that the HSUA (in previous proceedings in this matter The Ambulance Employees' Association of Tasmania) did not pursue a Special Case and accordingly wage rates were adjusted by the increases available under the SEP, i.e. two instalments of 3 per cent each. The thrust of the submissions was that in the circumstances it would be inappropriate to vary the annual leave arrangements for the ambulance officers in question. Also it was implied by Mr Nielsen that the matter of annual leave should be considered in negotiations for a 38-hour week. However, the most detailed part of the HSUA's case related to the evidence of Clinical Instructor Jenkins who indicated that he was involved in the redrafting of the then 40-hour week award which was based on an 8-hour day where the annual leave entitlement was 7 weeks and 1 day (288 hours). He stated as a principal concern the disparity, depending on how the roster fell for individual ambulance officers, in the hours that would have been worked in the roster cycle during a period of annual leave. The variation could be as great as 48 hours in any 4 week period. Mr Jenkins said in his evidence that such a wide disparity was "totally unfair" [transcript p.23]. In addition to that, the system of taking leave when the 4 x 4 roster was first introduced was that annual leave commenced on the first day of a working block and finished at the end of a working block. This arrangement did not permit the flexibility to place ambulance officers resuming after annual leave anywhere in the roster. Accordingly gaps or overlaps in the roster were created. Mr Jenkins in his evidence also referred to the circumstances where 7 weeks 1 day annual leave totalled 288 hours leave, based on a 40-hour week. Whereas when that amount of leave is taken from 365 days in the year, i.e. 365 - 50 = 315 days, the average hours at work equated to 285.825 hours. Therefore, it was stated, that there was a 2.175 hours shortfall in leave due. Having regard to the foregoing factors agreement was reached with the then Ambulance Board that leave would be taken in 7 blocks. The annual leave arrangements were further adjusted to take account of rostered days off before commencing a block of leave. The effect of doing this established a continuous period of 56 consecutive days leave. That arrangement meant that the hours variation referred to above was eliminated. This enabled the employer to achieve rostering flexibility in that all leave commenced at the end of a Sunday shift and ambulance officers could be rostered on any shift on return to work from annual leave. Mr Jenkins said:
The actual calculation of 56 consecutive days leave arises from the concept of 7 blocks representing a period of 52 consecutive days plus 4 consecutive days added on for rostered days off from a previous roster period. Ms Cox established in cross-examination of Mr Jenkins that 56 consecutive days leave could in fact extend to 60 consecutive days in the event the ambulance officer was rostered in a pattern where the first four days after return from leave were in fact days off. The following exchange between Ms Cox and Mr Jenkins is relevant:
Ms Cox questioned Mr Jenkins as to why the 1981 agreement was not sought to be included in the award on behalf of all ambulance officers. It was put to the Bench by Mr Jenkins that the issue was contemplated to be raised with the Minister in the event negotiations for a 38-hour week were commenced. Finding From the evidence of Mr Jenkins it is clear that the annual leave arrangements for southern region ambulance officers were the product of negotiation when the 4 x 4 roster was introduced. At that time it appears recognition was given by the employer to the hours variations as discussed earlier in this decision resulting in an acceptance that additional annual leave would alleviate what was perceived as an inequity. This was that hours worked by any one individual in a designated roster period before proceeding on annual leave and subsequently on recommencing work could vary significantly from those of another ambulance officer with consequential impact on the total number of rostered days off available to any one employee. This factor and the need for rostering flexibility resulted in the additional annual leave being agreed to by the employer. The rationale of all of this is open to question, however the fact remains that the provision was included in the supersesssion and savings clause of the award. It is this aspect, i.e. the deletion of a condition which is contained in a savings provision that has caused us the most concern. However on balance we conclude that as the matter was legitimately raised in the SEP negotiations and came forward as a non-agreed item, to be arbitrated, there was at least tacit acceptance by the AEAT, as it then was, that the arbitration process may not produce a decision in favour of its position. Indeed in examining this issue we have decided that there is no compelling circumstance, on merit, to retain the extra leave provisions for ambulance officers employed in the southern region prior to 17 September 1984. Accordingly, it will be deleted from the date of this decision. The order is attached.
Appearances: Date and Place of Hearing: |