IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

INTRODUCTION

The Commission commenced this test case as a result of certain matters being canvassed before the Full Bench dealing with applications T.143 - 150 of 1985.

Those particular applications were made by the Director of Industrial Relations to vary nominated awards, to include the Tasmanian Museum and Art Gallery as a controlling authority.

In the Commission's interim decision in that matter dated 13 February 1985 the Full Bench said, inter alia:

"The Tasmanian Public Service Association (TPSA) urged the Commission to make an all embracing statement on how award coverage for agencies not previously designated as such under State Services legislation should be given award coverage.

We indicated to the TPSA at the relevant time that the decision to create a new separate award for the Tasmanian Museum and Art Gallery and its employees was based solely upon the evidence and material before us and that we were only considering the applications before us as they related to one area of employment.

To do otherwise would deny the opportunity to other registered organisations with a proper interest to express their views on this vital question before the Commission."

and later -

"Turning now to the philosophical argument of the parties concerning award coverage generally, we observe that it is apparent the parties before us need to have proper opportunity to test their proposal that, in the wider context, there should not be a "proliferation" of new awards to cater for groups of people within the State Service who were previously award-free or covered by private sector awards or agreements. Instead, they say, there should be an extension of existing awards to those employees to bring about uniformity of conditions and allow equal scope for promotion within the State Service.

So long as such a test case is advertised as such and all other interested registered organisations are able to participate (as of right or by leave) we support the concept of such a hearing and lend our weight to it.

Underling ours    Decision pp4-5 and 17-18

Subsequent to the issue of that decision applications were lodged to vary the Technical Officers (Public and Mental Health Services) Award (S135) and the General Officers (Public and Mental Health Services) Award (S086).

Those applications, T.278 of 1985 and T.292 of 1985 respectively, sought to incorporate into the above awards changes occasioned by the proclamation of the Tasmanian State Service Act 1984 (TSSA).

As the above awards have wide application in the State Service we were of the view that the ensuing hearing would provide a timely opportunity for the broad issues raised in the Museum matter to be canvassed.

We considered that this would best allow all those provisionally registered organisations with a proper interest to express their views before the Commission.

Accordingly applications T.278 of 1985 and T.292 of 1985 were advertised as a test case.

When proceedings commenced we joined applications T.270 and T.271 of 1985 relating to the now titled Clerical Employees Award (S081) and Keyboard Employees and Office Assistants Award (5080).

We did this so as to provide broad parameters within which a comprehensive test case could be conducted.

At this stage, there are two other preliminary matters that should be mentioned. Firstly, as detailed later in this decision, the Minister for Public Administration (the Minister) was granted leave to, in effect, replace applications T.278 and T.292 with revised applications T.375 and T.374 respectively. The residue matters that relate to the latter two applications have been referred to the appropriate Commissioners for determination. Secondly, all other matters pertaining to applications T.270 and T.271 have been determined in the decisions of the Commission dated 11 December 1985, 28 April 1986 and 11 August 1986.

THE TEST CASE

As stated, this matter had its genesis in the Museum case. In those proceedings the parties made it clear to the Commission that they wished to apply existing public sector awards to award free employees; where in their opinion it appeared appropriate to do so.

For the purpose of background only, the following excerpt from the Museum transcript serves to illustrate that point:

"Mr. Jarman:

T.145 - The General Officers' (Public and Mental Health Services) Principal Award. This particular award would apply to the Museum attendants. At the moment the Museum attendants are paid in accordance with the Insurance Board Award. It would mean that these officers would be reclassified in accordance with the General Officers' Award and that they would receive the same benefits as the remaining staff, with respect to the General Conditions of Service Award.

We take this step, if the Commission pleases, because of my former comments about the nature of the operation. That is, that the Tasmanian Museum and Art Gallery is a statutory authority; has been cited under the Tasmanian State Service Act; and it is deemed therefore that these employees are public sector employees and should be appropriately covered by a public sector award.

I believe the Commission itself, has in fact made comment on such matters in one of its recent decisions, where it questioned the appropriateness, or otherwise, of having so-called public sector employees covered by private sector awards, if you like."

Underlining ours     Museum Transcript pp.5-6

Similarly, in these proceedings Mr. Jarman reiterated the approach that he submitted should be adopted to award regulation in the State Service. That is, there should be rationalization of awards and uniformity in conditions of employment wherever possible.

Mr. Jarman said:

"And we say this because that is the course the Government has embarked upon. It commissioned a consultant, which was responsible for the Cartland Review. The Cartland Review in fact targeted on the duplication, the number of awards which was considered too many, and operative within the public sector.

And Cartland's thrust was to recommend rationalization and uniformity in conditions of employment wherever possible. And Government is intent on pursuing that course."

Transcript pp.7-8

Mr. Jarman also indicated that it was the intention of the Minister to create uniformity within the public sector going to classifications and classification scales.

To accommodate those changes, Mr. Jarman said it would be desirable to vary existing scope and parties and persons bound clauses.

Accordingly the originally proposed new scope clauses for the Technical and General Officers Awards were drawn by the applicant in the widest possible terms. Those clauses were couched in the following terms:

"5 Scope

Subject to any exceptions and or conditions contained herein, this Award shall apply to the employment of persons employed under the provisions of the Tasmanian State Service Act, 1984."

(Note The Technical Officers Award Scope Clause concluded with the words - "or the Tasmanian Development Act 1983.").

As we have already indicated the above scope clauses were revised in applications T.374 and T.375 in the following terms:

T.374 of 1985 - General Officers Award:

"2 Scope

This award shall apply to employees, as herein defined, who occupy positions involving duties not covered by classification scales contained within other State Service Awards.

PROVIDED THAT this award shall, not extend to or provide coverage for classes of persons specified in Schedule 2 of Statutory Rule No. 218 of 1985, Tasmanian State Service Order (No. 2) 1985."

T.375 of 1985 - Technical Officers Award:

"2 Scope

This award shall apply to employees, as herein defined, who occupy positions involving duties of a technical nature.

PROVIDED THAT this award shall, not extend to or provide coverage for classes of persons specified in Schedule 2 of Statutory Rule No. 218 of 1985, Tasmanian State Service Order (No. 2) 1985."

Having regard to the thrust of Mr. Jarman's submission; that is to create uniformity within the State Service, the above scope clauses facilitate that objective.

However several important matters raised in this test case require consideration.

It is readily accepted by the parties that there are classes of State employees whose rates of pay and conditions of employment are derived from private sector awards and agreements.

State employees falling within this category may be regarded as award free; notwithstanding that in many instances they are represented by an appropriate employee organisation.

It is clear from what has been put to us, that it is the intention that those State employees, subject to the exclusion provided by Statutory Rule 218 of 1985, be classified within existing public sector awards.

In those circumstances the Commission would not be able to fully exercise its statutory responsibility with regard to determining wages and conditions for particular employees. Employees would merely be brought under an appropriate public sector award which most likely would contain different rates of pay and conditions for the same work.

That type of "transfer" is not envisaged by the present wage fixing system; at least not without presentation of a properly documented case to the appropriate wage fixing authority.

Comments on the Wage Fixing Principles by the Australian Commission in the last National Wage Case touch on this point.

The following comments are made at pages 36-37 of 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

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 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.

An additional matter of some importance concerns employee representation. Whilst we are not going to discuss this aspect in detail in this decision, there can be little doubt that the strategy outlined by the employer's representatives will impinge on that important issue. Clearly many organizations with a genuine interest could be aggrieved by the arbitrary changing of award coverage thereby cutting right across the established and proper procedures.

We turn now to consider some of the specific issues as they relate to the applications before us.

Scope

As indicated earlier in this decision revised scope clauses for the General and Technical Officers Awards were submitted.

This resulted from a recognition that the originally proposed scope clauses were so wide that it could be easily construed that the categories of State employees discussed in this decision could be classified as general or technical officers.

In this regard Mr. Jarman said:

"You are saying that if the scope of the awards in question are opened then they could be seen to have application to persons other than those who are currently employed under the provisions of those awards."

Transcript p.13

Mr. Jarman submitted that the revised scope clauses, because they specifically excluded those State employees specified in Schedule 2 of Statutory Rule 218, should overcome the concern of the unions involved in this matter.

Mr. Evans, appearing for the TPSA, said in support of Mr. Jarman's submission on this point, that there was no intent or desire on the part of the TPSA to use the Technical and General Officers Awards as vehicles for a wide ranging foray into the employees of the State by recruiting members who may more appropriately have their award coverage provided for by other awards.

Notwithstanding the comments made by Mr. Evans in support of the revised scope clauses, Mr. O'Brien, intervening on behalf of the Federated Miscellaneous Workers' Union (FMWU), indicated that his organization still had concerns. He said:

"And it goes to the question of the intrusion or potential intrusion of the proposed award into areas which had hitherto been covered by private sector awards and they are - or were not adequately covered by any award but were, membership wise represented by my organization."

12.5.86 Transcript p.25

Earlier in this decision we commented on the potential ramifications that may flow from the kind of observation made by Mr. O'Brien.

This is particularly the case when regard is had for the virtually unrestricted definitions of "technical" and "general" officers.

It appears to us that even the proposed revised scope clauses would not in themselves prevent the classification of employees referred to in Statutory Rule 218 under the Technical or General Officers Awards.

If State employees were to be classified in the manner alluded to above, rates and conditions other than those currently applicable would then apply. As we have indicated, we would not condone that process without the matter being brought properly before the Commission and considered on merit after hearing the views of all parties who have a genuine interest.

It is to be noted that the FMWU and the AWU made specific references to disparity in existing conditions for employees subject to the General Officers Award and those enjoyed by employees covered by awards in which they have a registered interest.

Mr. O'Brien who was, at that stage, also appearing for the AWU, referred to the example given by Mr. Hanlon, where the Agriculturists Award (private sector) was said to apply to certain State employees, but that as a consequence of a reclassification exercise:

"...a person found that their award conditions were regulated by the General Officers Award and, whilst there were no change in duties, that there had been a very minor change in the level of remuneration, change in the representational position, so far as organisations were concerned."

Underlining ours     12.5.86 Transcript p.26

In regard to that particular type of circumstance, Mr. O'Brien said that the FMWU was consulting with the Office of Industrial Relations with a view to coming before the Commission with a document reflecting wages and conditions appropriate to certain State employees who are members of the FMWU.

We commend that approach and indicate that as a general rule we would wish appropriate awards to be made to provide for State employees who are award free.

Whether employee organizations seek to be made party to existing public sector awards is a matter, in the first instance, for each of the parties who have a genuine interest, and ultimately, for this Commission. What we are anxious to convey is that we do not support the automatic variation of existing conditions of employment or rates of pay by simply classifying employees under existing public sector awards.

We do however support an orderly approach to ensuring that all State employees are covered by appropriate public sector awards; whether they be existing awards or yet to be made awards. The latter course of action would be in accordance with Section 34 of the Tasmanian Industrial Relations Act 1984, which goes to the power of the Commission to make awards in respect of public sector employment.

In order to facilitate and progress the course we have outlined we are of the view that unless the scope of particularly the General and Technical Officers Awards are limited in some way, State employees, notwithstanding the exclusions referred to in Statutory Rule 218 of 1985, could nevertheless be administratively classified under the terms of those awards which were never intended to cover such employees.

Examples were given where this has happened. The concerns held by some unions were ably put by Mr. Hanlon in the following exchange when he said in respect of a farm hand:

"The example I was giving you was about a farm hand who was employed in the sorting, collection of seed, and that person was appointed into a...Public Service position but the person's duties didn't alter..."

Commissioner Gozzi

"And does that give you some concern?"

Mr. Hanlon

"Of course it does. There is no obligation for the person to change their organization at all. We have equal rights to represent that person as any other organization whose constitution allows them to so do.

So that what we have is not an argument between the Public Service Association and ourselves, but the system of recruitment. If we go to the Agricultural Department and say there is a non-unionist in their employment and there is a preference to employment clause in the Agricultural Award, they say to us that it is the persons choice. We ask for the enforcement of that clause and they say to us (and we have correspondence from the Director of Industrial Relations saying) that that only applies on appointment.

Yet here we have a case where the employee is told, by their supervision, that the appropriate organization for covering people covered by that award is the Public Service Association."

Deputy President

"Told by whom?"

Mr. Hanlon

"By their immediate supervisor. I mean, we will go to the Director and the Director can say, 'Well that isn't the Government policy'. But unfortunately, the day-to-day reality of the situation is, people are asked to change their organization into the appropriate one and bearing in mind that the person who is the supervisor is, or is likely to be, a member of the Public Service Association covered by the particular award.

That is as good an example as has happened. We would not stand in the way of any employee receiving a dollar increase, but that also raises the question, what job was he doing under the Technical Officers Award which was previously covered by the Agricultural Award?

Underlining ours      Transcript pp.76-78

Whilst we consider that the proposed revised scope clauses are a bona fide attempt to address the expressed concerns of all those organizations represented in this case, we are of the opinion that the following proviso should also be included in both the General and Technical Officers Award Scope Clauses.

"PROVIDED ALSO THAT until further order of the Tasmanian Industrial Commission, the conditions of employment for any State employee (as defined in the Industrial Relations Act, 1984) whose position in the State Service does not at the time of making this award bear a State Service position number, or whose rate of pay and/or conditions of employment are derived from a current private sector award or agreement, shall be those observed immediately preceding 1 December 1985 for persons employed at that date; and shall remain unchanged until altered by the Commission. Those conditions shall also be observed in relation to employees of this class employed by agencies after 1 December 1985.

Notwithstanding the foregoing, changes in conditions of employment and rates of pay which have been granted by the Commission subsequent to the aforementioned date, shall apply.

NOTE : The intention of this proviso is to "save" the situation extant at present until such time as the Commission, either on the application of the Director of Industrial Relations on behalf of the Minister or some other organization, makes an award or awards covering day labour staff who are now State employees."

Accordingly State employees who have currently applied to them private sector awards should in the future be provided for in relevant properly made public sector awards.

Proliferation of Awards

We have no difficulty with the concept of award rationalization where appropriate.

In responding to the submission of Mr. Jarman we are cognizant that his remarks urging award rationalization were clearly directed towards eliminating duplication. To the extent that this can be done without violence to the Principles of Wage Fixation, and Section 36 of the Industrial Relations Act or to the award making discretion of this Commission, we support his submissions.

Private Sector and Public Sector Awards

During the course of the proceedings there was much debate on the applicability of private sector awards to State employees.

As has already been discussed in this decision there are many State employees whose rates of pay and or conditions of employment are derived from private sector awards.

This arrangement of utilising certain private sector awards to cover State employees has been in place for some very considerable time and has only become the subject of closer attention as a consequence of the proclamation of the Tasmanian Industrial Relations Act 1984 (the Act) which provides that the Commission may make awards in respect of public sector and private sector employment.

It is clear that the Act makes an obvious distinction between public sector awards which are to cover State employees, and private sector awards which are to cover employees engaged in the industry or occupation of a private employer. We consider the distinction to be mutually exclusive, as this is evidenced by Sections 33, 34 and 38 of the Act. Having regard to these respective sections we are of the opinion that Regulation 14 is not consistent with the overall objectives of the legislation.

Having reached that conclusion it is inescapable that some new award processes will have to be initiated.

In our opinion it is preferable to establish appropriate awards, reflecting wages and conditions that currently prevail, albeit that this may be at the cost of some proliferation. Of course an option not canvassed in these proceedings, but which has been discussed at one time or another, is to put into place a Crown Officers Award.

We acknowledge that what we have said in this decision in relation to award free employees, and making appropriate award arrangements for them, has been recognized by the Minister. Mr. Willingham said:

"...the Government has always recognized that there are a substantial group of people who would be better served by being included in specific awards which are tailor made to suit them and therefore public sector awards as opposed to private sector awards. We have embarked on that course right from early last year and we are continuing it now and I have no doubt that with the effluxion of time then those matters will be picked up.

It was interesting that Mr Brown said that in the exercise that we are conducting currently with the Miscellaneous Workers' Union, that we are finding little pockets of people everywhere and it sometimes seems that our own employing agencies don't know who they have got and where.

Mr Evans and his organization on a similar matter - 3 months after the event we were still finding little pockets of people that nobody really quite knew about. It is perhaps an alarming admission to make but they are the facts.

The difficulties that have been experienced in processing these matters were quite unforeseen. I am sure I can echo Mr Evans' sentiments on this matter that if we had foreseen the problems, for instance, that were going to come about some of the matters that have been before you, we would have never made the applications if we would have done anything.

Can I also say that in respect of the people who are (I am not going to use the expression that Commissioner Gozzi has used) but those people who might be considered by some people to be inappropriately covered by private sector awards, that currently there is a capacity (and I would acknowledge that it's a temporary capacity) to be covered properly by section 38 of the State Service Act. And that is a holding mechanism as I would see it by which we can properly look after these employees until such times (if that is the intention of the parties) that appropriate public sector awards are made, or some provision is made to fit these people into appropriate existing public sector awards."

Transcript pp.117-118

We find no difficulty with the application of Section 38 of the TSSA, and the consequential application of awards currently being relied upon, and indeed recommend such a course as an interim measure. However we note that there are some thirty classes of persons, quite apart from any pockets "that are being discovered", who are specified in Schedule 2 of Statutory Rule No. 218; and as we have said, appropriate award coverage should be expedited for them.

Other Limitations to Scope Clauses

As we are of the opinion that only the appropriate and relevant awards should be utilised in the public sector, we consider that it is perhaps both desirable and necessary to place the following prescription, where appropriate, as a further proviso 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."

Parties and Persons Bound

There was a great deal of discussion on the inclusion in awards of this Commission of a clause titled parties and persons bound.

Whilst we have a strong view on this matter, we are aware that certain legislative changes to the Act are currently in train and that this may have a bearing on the conclusions we might otherwise reach.

Accordingly we have decided to stand this issue over for further consideration when the amendments to the Act have been promulgated.

This means that we will issue a supplementary decision in due course, after giving the parties, in light of the proposed amendments, a further opportunity to address us on this particular issue.

Conclusion

It was generally appreciated that the matters before us are involved and have a certain complexity associated with them.

Whilst some issues are inextricably entwined we have endeavoured to provide the direction and guidance asked of us by the parties in respect of all of the matters required to be considered by the Commission.

We are mindful that what we have said will require the parties to embark on some detailed discussions regarding implementation of this decision.

To the extent considered necessary by the parties, the Commission would be available, upon request, to take part in any such discussions.

Orders

We will leave it to individual Commissioners to process the necessary award variations and issue appropriate orders reflecting the changes we have herein determined should now apply.