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T270 and T271 (11 December 1985)

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

T.270 of 1985

IN THE MATTER OF AN APPLICATION BY THE DIRECTOR OF INDUSTRIAL RELATIONS ON BEHALF OF THE CHAIRMAN OF THE PUBLIC SERVICE BOARD TO VARY THE CLERICAL OFFICERS - KEYBOARD AND OFFICE ASSISTANT CLASSIFICATIONS (PUBLIC AND MENTAL HEALTH SERVICES) PRINCIPAL AWARD NO. 6

   

T.271 of 1985

IN THE MATTER OF AN APPLICATION BY THE DIRECTOR OF INDUSTRIAL RELATIONS ON BEHALF OF THE PUBLIC SERVICE BOARD TO VARY THE CLERICAL OFFICERS (PUBLIC AND MENTAL HEALTH SERVICES) PRINCIPAL AWARD N0. 6 and Correction Order

   
 

RE: INCLUSION OF PART-TIME AND CASUAL RATES; INCLUSION OF THE MINISTER FOR PUBLIC ADMINISTRATION AS EMPLOYER; VARIATION TO CLASSIFICATION SCALES

   

FULL BENCH
DEPUTY PRESIDENT
COMMISSIONER R.K. GOZZI
COMMISSIONER J.G. KING

11th December, 1985

 

REASONS FOR DECISION

 

APPEARANCES:

 

For the Public Service Board and the Mental Health Services Commission in relation to T.270 of 1985

- Mr M. Jarman with
  Mr D. Colgrave

   

For the Public Service Board,
the Mental Health Services Commission
and the Director General of Education
in relation to T.271 of 1985

- Mr M. Stevens with
  Mr D. Colgrave and
  Mr A. Charleton

 

For the Tasmanian Public Service Association

- Mr A. Evans with
  Mr G. Philp and
  Ms S. Robertson

   

DATE AND PLACE OF HEARING:

 

22nd November 1985   Hobart

   

T270 and T271 of 1985 are applications by the Director of Industrial Relations on behalf of the Chairman of the Public Service Board to vary two public sector awards of this Commission. The awards are the Clerical Officers - Keyboard and Office Assistant Classifications (Public and Mental Health Services) Principal Award No. 6 and the Clerical Officers (Public and Mental Health Services) Principal Award No. 6, respectively. The primary intention of the applications is to vary the awards to:

- provide rates of pay for part-time and casual employees;

- provide for the Minister for Public Administration as an employer;

- amend the Class I Grade 1 scale and the Administrative and Clerical Officer, Clerical Assistant scales respectively re the introduction of age scales.

As the subject matter of the applications is the same or similar they were joined for hearing purposes at the outset of proceedings on 22 November 1985.

During the hearing a number of amendments to the applications were sought by one or other of the parties to the awards. As they were not opposed the applications to amend were granted.

Mr. Jarman appearing as agent for the Public Service Board and the Mental Health Services Commission in T270 of 1985 spoke to that application and advised the Commission as follows:

- a new title for the award had been agreed by the parties;

- appropriate changes had been made to the Parties and Persons Bound clause to provide for the Minister for Public Administration as the employer;

- other changes to the award to accommodate the proclaiming of the Tasmanian State Service Act on 1 December 1985 have been agreed;

- part of those changes, i.e. new definitions will hopefully become standard definitions for all public sector awards;

- the Salaries clause in the application makes no reference to "Adult" or "Junior" officers;

- age rates for employees aged sixteen (16) to twenty one (21) years have now been included in the Class I, Grade 1 employee scale;

- part-time and casual rates were sought to be included in the award for the first time;

- the rates and conditions proposed for part-time and casual employees were those that currently applied;

- an Hours of Work provision has been included in the application and agreement reached that it should go into the award;

- the totality of the agreement does not offend the National Wage Principles and therefore the award should be varied accordingly.

Mr. Jarman addressed at some length what he considered to be the most significant changes sought, i.e. those affecting what are currently described as "Junior" employees. He advised that while the proposed changes had no immediate effect they did in the view of the Public Service Board correct a current anomaly. Current award provisions prevent an employee aged 16-20 years (currently referred to as a junior) being promoted to a substantive adult position. If the award is varied as agreed by the parties; employees in the current "Junior" age groups will be able to apply for and be appointed to more senior positions on the basis of merit.

The "merit principle" for appointment and promotion it was submitted being one of the cornerstones of the Tasmanian State Service legislation.

He further submitted it was no longer appropriate to refer to employees as "Juniors" when even the laws of the country recognised "18 year olds" as adult.

In response to a question from the Commission he advised that he did not see the inclusion of an hours clause even if it provided less than 38 hours per week as being contrary to the National Wage Principles. It was his submission that 36 & 3/4 hours per week were currently worked by all employees covered by the award. In any case hours of work were provided in various Public Service regulations and as such were already in the award in shorthand form by way of the Conditions of Service clause.

In concluding his submission he sought an operative date for the award variations of on and from 1 December 1985. The award changes would then appropriately apply from the same date as the Tasmanian State Service legislation.

Mr. Stevens on behalf of the Public Service Board, Mental Health Services Commission and the Director General of Education in addressing T271 of 1985 adopted the merit submissions of Mr. Jarman going to T270 of 1985.

He also submitted that the date of operation of the agreed changes to the Clerical Officers (Public and Mental Health Services) Principal Award No. 6 should be from 1 December 1985.

Mr. Evans appearing for the Tasmanian Public Service Association also adopted the submissions of Mr. Jarman and relied on them so far as they supported the merit of the agreement reflected in the applications. He highlighted the parties intention to include part-time and casual provisions in the award for the first time. Such award prescriptions would, he submitted, not only protect rates and other current entitlements but also allow for proper regulation within the Commission.

Mr. Evans referred to the current practice of paying appropriate "Junior Officers" on turning twenty-one (21) years of age the fourth year salary rate of the Clerical Assistant Class I scale. It was his submission that as the first three (3) rates in Class I were never used they should be deleted from the award.

(This particular submission was confirmed and endorsed by the employer representatives).

Mr. Evans also advised that much time and effort had been expended in reaching agreement as reflected in T270 and T271 of 1985. He foreshadowed another forty seven (47) similar applications and submitted that the detailed consideration given to the subject matter in this case should pave the way for easier processing of those claims.

It was the Tasmanian Public Service Association's view that the appropriate date of operation for the proposed award changes be 1 December 1985.

Having carefully considered the competent and detailed submissions of the parties we commend the general thrust and intention of the agreement as reflected in the applications. Certain award changes are necessary to all public sector awards consequent upon proclamation of the Tasmanian State Service legislation. The applications as amended during the proceedings appropriately reflect those necessary machinery changes and to that extent are therefore endorsed by the Commission.

The inclusion of part-time and casual provisions in the awards is also ratified by the Commission. It is in our view appropriate that such basic provisions going to the contract of employment should be in awards of this Tribunal. The agreed provisions are no more than those that currently apply by administrative regulation and do not exceed generally accepted standards, we therefore see no conflict with the Wage Fixation Principles of this Commission.

The deletion of any reference to "Adult" or "Junior" from the awards does not conflict with Wage Fixation Principles or offend the "Public Interest". The immediate consequences of the changes are nil. However the consequent situation where an employee under twenty one (21) years of age may in the future be promoted on the basis of merit is accepted as appropriate and proper by the Commission.

The one concern on this aspect expressed by the Commission during the proceedings i.e. the likely or potential negative effects on employment of school leavers was answered as follows:

- only a certain number of positions for employees under twenty one are approved at any point in time;

- any resignation, attainment of twenty one (21) years of age or in the future, "promotion", of such employees allows for replacement;

- in other words the award changes proposed could lead to increased employment prospects for school leavers or employees under age twenty one (21).

There are however two matters which cause the Commission some concern the first being the agreement to delete three (3) salary increments from the Class I, Clerical Assistant Scale contained in the Clerical Officers (Public and Mental Health Services) Principal Award No. 6.

The only basis for the change, as advised to the Commission, being custom and practice. In the absence of more detailed submissions on that part of the agreement we are not prepared to endorse it. In anticipation of the parties wishing to further pursue this matter the Commission's file will be referred to the appropriate Commissioner. The applications will then be relisted at the request of any of the participants in these proceedings.

The second matter of concern is the agreement to include in the award an hours clause providing for current working hours i.e. 36 & 3/4 per week.

We have some reservations about the submission of the parties that the wording of the respective "Conditions of Service" clauses mean that "Hours of Work" provisions in various regulations are already in the awards. We suspect the parties also have doubts or there would seem little point in the agreement to include a clause in the award now.

Section 32(5) of the Industrial Relations Act 1984 reads:

"(5) The Commission -

(a) in making an award in respect of State employees, may, and, if requested to do so during proceedings before it in respect of the making of such an award, shall, have regard to the Tasmanian State Service Act 1984 and

(i) any Administrative Instructions or Employment Instructions issued under that Act; and

(ii) any other Act, concerning conditions of employment; and

(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."

In the absence of any submissions by the parties going to the above we feel constrained to refrain from endorsing the agreement to include an hours of work clause in the award.

We also foreshadow that should the parties wish to take up an invitation to further address this part of the application we would want to hear submissions directed at Principle 5 Standard Hours. In particular we would want to be addressed on the coverage of the awards and whether or not all employees both before and after proclamation of the Tasmanian State Service Act are working 36 & 3/4 hours.

In the light of the above we refrain from ratifying the agreement to include hours clauses in the awards. At the request of any of the parties we are prepared to re-list these applications to hear further submissions on hours of work. Orders reflecting the agreement of the parties as qualified by this decision will be issued by the Registrar. The date of operation of those orders will be 1 December 1985.