IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

On 13 June 1985  the Full Bench handed down its decision in matter T33 of 1985, Kilometreage Allowance.

Subsequently, on request from the Tasmanian Public Service Association (the Association) the Commission agreed to meet, in conference, representatives of the Association and the Controlling Authorities involved in the original proceedings.

At the conference the Association, represented by Mr Guersen, raised a number of matters including the Commission declining to find in favour of a savings provision to take account of the transition from horsepower to cubic measurement.

The Commission indicated that whilst not providing for a savings clause in the terms sought by the Association, it was of the view that owners of vehicles "badged" 2 litres by manufacturers, should be reimbursed at the 2 litres and above rate. This, notwithstanding that in some cases the exact engine capacity specifications may be slightly less than 2 litres.

The Commission agreed with the view expressed at the conference that the matter of a savings provision, incorporating the concerns of the Association, may be able to be dealt with administratively.

However, on 9 August 1985 the Association wrote to the Commission stating that" Treasury decided they were not prepared to allow such a savings provision to operate administratively".

Accordingly the Association requested that, in keeping with the Commission's stated intention in the proceedings in T33 of 1985 that it "would announce a prima facie finding on merit", the matter with regard to a savings provision should be further considered by the Commission by way of re-opening the original hearing.

The Commission agreed to the Association's request to allow a short hearing to deal with the merits or otherwise of such a savings provision and the matter came before it on 12 September 1985.

Horsepower Savings Clause

To demonstrate the need for such a savings clause, Mr Guersen referred the Commission to employees who are presently in receipt of the 28.77 cents per kilometre rate.

That rate was the rate for vehicles with an engine capacity of "16 horsepower or more". However, as the new rates are based on "2 litres and above" and "less than 2 litres", in some cases officers who have vehicles of 16 h.p. or more and who were attracting the top reimbursement, are now in a situation where their vehicles do not qualify for the "2 litres and above" rate.

In other words, some of those officers who were previously reimbursed the top rate (Rate A "16 h.p. ore more"), which was 28.77 cents per kilometre, now fall in the "less than 2 litre" category, which is 27.12 cents per kilometre. A reduction of 1.65 cents per kilometre.

To support his argument for a savings clause to prevent the reduction in kilometreage reimbursement as outlined above, Mr Guersen referred the Commission to that part of its decision in T33 of 1985 where a savings provision was incorporated for those employees designated "authorised" users and whose rates would have otherwise been significantly reduced.

In including this particular provision for "authorised" users, it was the obvious intention of the Commission to ensure that those users would continue to receive their present rates of reimbursement until the new rates determined by the Commission catch up.

The Commission, having considered the situation regarding the reduction in the rate for "authorised" users and deciding to maintain the respective rates at present levels until the new rates catch up, can see no valid reason why employees in the "required to use" category (who may use e.g. a 16 h.p. 1.8 litre vehicle) should be disadvantaged in respect of rates which they are currently receiving. It was not the intention of the Commission that these employees should be disadvantaged in circumstances where the "new" rates provide for a lower amount than those currently paid.

Accordingly, the previous Rate A (28.77 cents per kilometre) shall be frozen under the 'horsepower savings provision' until the new rates, where they are lower, catch up. Likewise, the 'authorised-user savings provision' shall freeze the old 28.77 and 24.62 cents per kilometre rates for those users until the new rates catch up.

Having thus decided, it appears to us to be appropriate to clarify why we did not find in favour of a savings clause in our earlier decision in T33 of 1985.

Firstly, the savings provision now agreed to appears to us to be a logical extension of the Commission's thinking in regard to providing a savings clause for "authorised" users. There is no basis at all to differentiate in treatment for the "required to use" employee.

Secondly, in the initial proceedings, the savings provision sought by the Association was quite different in nature.

The savings clause sought by the Association at that time, as we interpreted the submission, was for all 16 h.p. and above vehicles to be regarded as 2 litres and above and to receive the highest rate (as adjusted from time to time). The Association wished to maintain that position "until such time as that vehicle was no longer used in the course of their employment and authorised by the department".

As previously indicated, a savings provision of that kind would have meant payment of the new 2 litre and above rate irrespective of whether or not the 16 horsepower or more vehicle was in fact 2 litres and above.

The Commission rejected that proposition.

Having made those observations, the effect of the Commission's decision in these proceedings is to ensure that the "16 h.p. or more" rate of 28.77 cents per kilometre is maintained for those persons already authorised or required to use their vehicles until the new "Less than 2 litres" rate catches up.

Further, we wish to again clarify that it was always our intention, in the case of vehicles badged 2 litres by the manufacturer, for the 2 litre and above rate to the applied.

Distance in Excess of 10,000 Kilometres

In addition to the matter concerning savings provisions, Mr Guersen raised a further issue going to the appropriate rate of reimbursement in circumstances where in excess of 10,000 kilometres has been accumulated during any one twelve month period.

Mr Guersen submitted that a negotiation should take place at that point in time, logistically before the 10,000 km has been reached, to determine -

Quite clearly the thrust of Mr Guersen's argument was that there would most likely not be a problem, as far as the employee continuing to provide his vehicle after 10,000 km has been reached, providing that the 0-10,000 km rate of reimbursement was maintained.

In response to Mr Guersen's submission, Mr Westwood, appearing the Controlling Authorities, opposed the inclusion, in any order the Commission may make, of a clause which would effectively limit the distance travelled in any one year to 10,000 km, with further travel being the subject of satisfactory rate negotiations.

Having outlined, in a deliberately brief way, the opposing views of the parties with regard to distance in excess of 10,000 km, we indicate to the parties that this particular matter falls considerably outside the parameters of the re-opening agreed to by this Commission and which was to deal specifically with the issue of a savings provision.

During the previous proceedings in T33 of 1985 no argument of any kind was directed to the Commission that the relationship between 10,000 km and 16,000 km should be altered.

Accordingly, we do not propose to deal with other matters extraneous to the issue of an additional savings clause except the matter of a guaranteed period for "required users". We are of the view that the parties have applied themselves to this particular task, in keeping with the direction given by use in our earlier decision.

It could well be that the Association may wish to make a fresh application to deal with the specific matter of distance travelled in excess of 10,000 km, in a comprehensive and detailed way.

It is therefore our view that the existing arrangements relating to accumulated kilometreage travelled up to an in excess of 10,000 km should be maintained.

Guaranteed Period

As we will require the parties to prepare a further draft order for our perusal, it is prudent for us to make some comment in relation to the length of time an employee who is required to provide a vehicle should be given, by way of a guaranteed "required to use" period, to ensure that a vehicle so provided by an employee is not summarily dispensed with.

Mr Guersen proposed that an employee providing a vehicle should be given notice of one year if his vehicle will no longer be required.

Mr Westwood submitted that the period of notice should be "something in the order of two months".

We are of the opinion that a minimum of twelve months' notice should be given to employees for whom, having been "required" to provide a vehicle, the requirement is considered no longer appropriate.

The twelve month period of notice should run from the completion of any one financial year. (i.e. minimum notice being "12 months from 30 June next"). In the event of special circumstances arising, which make the giving of the minimum period of notice impracticable, we are of the opinion that, in the first instance, the parties should endeavour to agree on appropriate conditions to apply for terminating the hiring period. If the matter cannot be resolved by agreement then it should be referred to the Commission for determination.

Finally, we will leave it to the parties to prepare a draft order for our perusal. This draft should incorporate the above decided matters as well as the proposed alterations suggested by Mr Westwood with respect to item 2.2 paragraph 5 and item 10 of the previously submitted draft order.