IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

On 11 December 1985 the Commission as presently constituted issued a decision in matters T.270 and T.271 of 1985 ratifying certain amendments to the now titled Keyboard Employees and Office Assistants Award (S080) and the Clerical Employees Award (S081). However, two matters also agreed between the parties, but not endorsed by the Commission at that time, were stood over with an invitation to the parties to put further information to the Commission should they so desire. One of those matters was the inclusion in the awards of a working hours clause, providing for a 36 3/4 hours working week.

Applications T.270 and T.271 were subsequently joined with T.333 and T.338 of 1986 for the Commission to further deal with the hours question. Other miscellaneous matters in respect of the Clerical and Keyboard Award applications were determined in the decision of Commissioner Gozzi dated 28 April 1986.

It was agreed during proceedings on 16 April 1986 that the question of the inclusion of an hours provision in the awards would be debated at a hearing on 6 May 1986.

Further adjournment was sought on that day. Submissions were finally heard on 22 May 1986.

While agreement had been reached that an hours clause should be included in the awards prior to the decision of 11 December 1985, it became obvious as time passed that further negotiations were presenting the parties with some difficulties. On 22 May 1986 we were advised that the Minister for Public Administration still sought the inclusion of a suitable hours clause in the awards. However the Tasmanian Public Service Association (T.P.S.A.) advised that while negotiations had been fruitful there was a matter of principle preventing that organisation reaching agreement.

The Tasmanian Teachers' Federation (T.T.F.) was opposed to the concept of hours provisions going into public sector awards.

A summary of Mr. Stevens' submission on behalf of the Minister for Public Administration, the applicant in this matter, is as follows:

- it was the Minister for Public Administration's view that all public sector awards should contain an hours of work clause;

- current hours of work provisions for employees covered by these awards are found in the Tasmanian State Service Regulations 1985;

- the overall position being, that some public sector awards contain hours provisions, others make reference to the Tasmanian State Service Regulations 1985 and others are silent on the matter;

- the Minister is on this occasion seeking a clear and unambiguous ruling on the principle of whether or not hours clauses should be included in all public sector awards; and if so, the appropriate wording that should be used;

- the inclusion of a provision for a 36 3/4 hour working week in awards would not violate the Wage Fixing Principles as it is not a reduction in working hours but simply a reflection of the current practice;

- the Industrial Relations Act 1984 clearly provides the Commission with jurisdiction to hear and grant an application of this type;

- Section 32(5) of the Industrial Relations Act 1984 requires the Commission to have regard for relevant regulations concerning conditions of employment. However, there is no embargo on the inclusion in awards of conditions currently contained in regulations.

Mr. Evans appearing for the T.P.S.A. conceded that his organisation may have acted in haste in originally consenting to an hours of work clause going into public sector awards. In any case following a thorough review of the situation since the Commission's decision of 11 December 1985 he now opposed such an inclusion.

The main grounds for that opposition are:

- the inclusion of an "Hours of Work" clause in these awards would alter the role the awards play in establishing the contract of employment for employees affected;

- it was not demonstrated by the Minister that there are any deficiencies or defects with the current regulations;

- the logical end result of inclusion in all public sector awards of an hours clause would be award determination of all major conditions for State employees, a not necessarily desirable situation;

- while Section 32 of the Industrial Relations Act 1984 gives the Commission certain discretion in dealing with such claims, that discretion has in the past been exercised in favour of applications only when they are agreed;

- in the absence of agreement the Commission's discretion should be exercised against the applicant;

- current regulations are worded in such a way as to accommodate the operation of flexitime, an award hours provision could not be worded in the same way;

- it would not be desirable that complex flexitime provisions be included in awards;

- current regulations provide flexibility for supervisors working with "day labour" to vary their daily working hours;

- differing working hours applying in some Departments make it almost impossible to include an hours clause which would reflect the current position.

Mr. Lane for the Tasmanian Teachers' Federation in opposing the application relied on similar arguments to those advanced by the T.P.S.A. Its primary position could best be summarised by the following excerpt from transcript:

"Mr. Lane: Before proceeding further, I want to make it perfectly clear that the Teachers' Federation is not opposed per se to any or every move to include conditions of service within awards. However, we would need to be convinced that there was a real need for this to be done. In proving the need for such an inclusion, or change, we would have to be shown that either the regulations don't cover the matter in question or the provisions contained within the regulations were unsatisfactory or inadequate in some way.

At present, as far as hours of work are concerned in this matter, we have yet to be convinced."

We were advised by Mr. Stevens during the hearing of these applications that the Minister for Public Administration held the view that certain conditions of employment should be contained in awards rather than regulations. As a position of principle we share that view and indicate that an "Hours of Work" clause should be one of the basic provisions of an award rather than a regulation. However we are required to consider this application within the parameters of our enabling Act. We therefore give appropriate consideration to its provisions and in particular Section 32(5) (a) and (b); the relevant parts of which read:

"5 The Commission -

(a) in making an award in respect of State employees, may .....

(b) where, pursuant to paragraph (a) it has regard to the Acts and Instructions referred to in that paragraph, shall, if he is satisfied that those Acts or Instructions provide adequately or appropriately for such a condition, determine not to include provisions in the award in respect of that condition in relation to those employees."

There is little doubt that whether we are considering an agreed or contested application, we must in our determination, consider the subject matter within the context of the above. Therefore if we are satisfied that the current regulations provide adequately or appropriately for the working hours of employees covered by these awards we must find against the applicant.

Each case can however only be decided on individual merit. In this particular instance there was no evidence or even submissions put to us which suggested that current regulations were inadequate or inappropriate. In fact it was conceded that the Minister was not aware of any current problems either with the application of the provisions or their interpretation.

There was also nothing put by the Minister to suggest that current provisions were inadequately worded and likely to give rise to problems in the future. The unions however, submitted that current regulations going to working hours had stood the test of time.

We believe we must properly recognise the reality of the present situation, in that differing working hours applying already would be extremely difficult to replicate as an award provision.

In all of these circumstances, we are therefore left with little option but to dismiss that part of these applications which seek to include hours provisions in the awards.

Orders emanating from Commissioner Gozzi's decision of 28 April 1986, relating to applications addressed in this decision are attached hereto and operate from the date of his decision.