This is a further interim decision addressing those outstanding issues arising from:

"A Direction To The President By Full Bench Pursuant To Section 21(1) And 21(2) Of The Act, To Confer With The Parties And Report Back In Relation To The Above Matters"

In accordance with this direction the President's Report to this Bench was issued on 5 August 1987, resulting in a continuation of proceedings in these matters on 30 November 1987; following an earlier adjournment on 11 November 1987 to enable Mr Vines, appearing for the Tasmanian Public Service Association (TPSA), to consult with members of his organisation affected by the subject matters of the President's Report.

By consent of the parties a significant part of the proceedings on 30 November were conducted off record. Nevertheless, in order to further process this matter, and as promised, the Commission now determines the following issues:

Classification Standards:

The primary thrust of the discussions centred on the desirability or otherwise of including classification standards in awards of the Commission.

Whilst the general view of the parties was that some awards could incorporate classification standards, it was recognised that in some instances, e.g. the Administrative and Clerical Awards, the task would be more difficult as salary levels could conceivably be attained by employees in those awards without qualifications.

The Commission endorses the general proposition that notwithstanding foreshadowed difficulties with this task in some award areas, the parties should present appropriate classification standards for professional awards commencing, in the first instance, with classification standards for Scientific Officers.

This specific exercise will enable further conclusions to be drawn in respect of extending this practice further.

The general view of the Commission is that over time classification standards could be included in those awards considered appropriate.

TTLC Respondency:

This particular issue has been thoroughly canvassed.

Eventually the matter was adjourned on the basis that the TTLC would advise the Commission if that organisation considered it should continue to be cited as a party to Commission awards.

However, that has not been the case. In the circumstances and because the TTLC can access the Commission by statutory right, the Commission has decided to consent to the majority view of the parties represented at these proceedings to delete the TTLC as a party and person bound to awards of this Commission.

Qualifications:

The President, in his Report To Full Bench, dealt with this particular issue in some detail and his comments are reiterated in this decision.

He said:

"The main debate relating to qualifications appeared to revolve around who should determine; prerequisite qualifications for appointment or promotion.

The Commission cannot deal with any matter (including disputes) relating to appointments and promotions, except qualifications required for advancement.

However, it is arguable that this apparent prohibition is intended to only exclude the Commission from dealing with matters that previously fell within the province of the Public Service Promotion and Appeals Board. If this is not the case it would mean that the Commission would be unable to properly assess the work value of a job, as qualifications required to perform classes of work are fundamental components of work value.

If this presumption is incorrect there would be nothing to preclude a head of agency paying professional rates to non graduates, for example. If the value of work is not determined having regard for standard work-value criteria, such as qualifications required, responsibility assumed, experience gained and the conditions under which the work is to be carried out, responsible salary and wage fixation, using well settled industrial methods, would simply collapse.

Traditionally and logically this is and should remain the task of an independent industrial tribunal. The Commission has both micro (in the case of single awards) and macro (in the context of all awards) responsibility. If there is any change contemplated then the Bench will need to decide whether it will allow the traditional standard-setting function of this tribunal to become the prerogative of executive bodies.

Should that occur, public interest considerations aside, there would emerge a system whereby an administrative body would assume this role without real or de facto accountability for the effect of its decisions on other tribunals, agencies or the public at large. Alternatively the task could be expected to be assumed by a miscellany of agency heads. Few, if any, of those heads would be experienced in the principles of wage determination. Furthermore, it could not be assumed that the centralised wage fixing system deliberately established and administered by independent tribunals having regards for the parlous economic circumstances of the nation, would survive. Nor would that system be rigidly adhered to if public sector wage fixation was to become the prerogative of administrative bodies or agency heads. This is not a criticism of those persons, simply a fact of life.

Having reviewed the issues discussed, it is possible to conclude that either the Commission or the Commissioner for Public Employment should determine qualifications. Where the Commission exercises this function it should establish both qualifications and rates for the job.

On the other hand, where the C.P.E. determines the prerequisites, the Commission should decide the rate of pay for the job having regard for, among other things, qualifications determined by the C.P.E. There would be no appeal from a determination by the C.P.E., except by inference, in the event an award variation was sought by an aggrieved organisation. In those circumstances a further appeal would lie to a Full Bench.

The conclusions reached by the President (as underlined above) are endorsed by this Bench.

We would add however, that in respect of professional awards it is a function of this Commission, when determining the appropriate rate of pay, to decide and include in the awards, the qualifications required.

Qualifications Deemed Equivalent -

This aspect was also thoroughly canvassed in the Report To The Full Bench.

As stated by the President in his Report, we endorse the view, that reference to `equivalent qualifications' in awards means just that.

When the stage is reached where classification standards are included in awards, the Commission will decide the question of what qualifications are either `essential, desired and where appropriate, equivalent qualifications' which are necessary to perform the work.

Definition of Casual Employees:

This matter was stood over for the parties to place submissions before the Bench.

Scope of Awards and Parties and Persons Bound -

In the President's Report the questions of scope or awards and parties and persons bound was considered under the one heading.

For the purpose of pulling the threads together we also repeat, in this decision, the entire section of the President's Report on those particular issues:

"The only consensus on this matter was a demonstrable joint concern regarding award application.

The term "award interest" appears to remain an enigma. My own researches have failed to establish the origin of the expression. The Department of Labour and Industry is also uncertain as to its origin. Personal enquiries to the President of the Victorian Industrial Relations Commission have likewise proved to be unsuccessful.

If the term is generally not understood, it might be wise for the Bench to ensure that in the process of award making, Sections 33, 34 and 38 are complied with in a more meticulous way. This could be achieved by giving careful attention to framing the scope and incidence provisions for each award.

However, the Commission now has a statutory responsibility to determine "award interest" after receiving advice from the Registrar that he has registered an association as an organisation.

Section 62(110) of the Act states:

`After the Registrar registers an organization under this Part -

(a) the Registrar shall forward to the President the application for registration that was lodged with him by the organization and a record of his findings in relation to that application;

(b) the President shall, on receipt of the application and record, refer them to a Commission sitting alone for the purpose of his making a determination under paragraph (c); and

(c) that Commissioner shall determine which awards the organization has an interest in by satisfying himself that -

(i) the membership of the organization consists of or includes members who are employers or employees in the industry or occupation to which the awards stated in its application pursuant to subsection (1)(a)(vii) relate or who are State employees to whom those awards relate;

(ii) that membership is consistent with the organization's rules or constitution a copy of which has been lodged with the Registrar pursuant to subsection (1); and

(iii) the organization being granted an interest in an award or awards would not prejudice the orderly conduct of industrial relations in Tasmania.'

Having regard for the foregoing and Section 3(3) of the Act (definitions), the inevitable conclusion is reached that the Commission cannot make an award binding upon an organization if that organization does not have members employed in the industry or occupations covered by the award.

In the case of State employees the award must in some way identify the occupations of those employees, as the industry of private employers cannot apply to State employees.

In any case the over-riding consideration seems to be that the organization's claimed membership (the Act is silent on the question of proof of membership) is consistent with its rules or constitution as amended from time to time.

It would appear therefore that whereas an award may apply to all employees in an industry, or a class, or occupational group of employees - State or private - it may not necessarily apply to all organizations claiming those persons as members if the constitutional test is not met in every respect. Even then there is a discretion vested in the Commissioner concerned [Section 63(10)(iii)] to decline to give an organisation an award interest notwithstanding its constitutional competence to represent a particular classification or class of employee.

Extrapolation of this kind may apply in whole or in part. It may or may not involve an employment condition. And it may apply only for a period certain in time. No employer or employee organisation appears to have any right to be heard on the question of whether the award should be extended or not extended. And no one can be heard on the issue of when or whether an extended award should revert to its original area of application.

The presumption is that the Minister administering the Act has the sole responsibility for initiating action in this regard.

In summary it would appear that great care and attention needs to be given to determination of an appropriate "Scope" clause and the framing of a suitable provision identifying those organisations having an interest in the award. However, all persons bound by its terms must also be identified. "Organisations" and "persons" are no synonymous in this context."

Having regard to the above comments of the President which explore the issues in considerable detail we conclude that in respect of Scope of Awards this should clearly stipulate the application or incidence of the award.

This is irrespective to whether or not the award has application to a particular organisation.

That is to say the scope of the award determines whether the work performed is covered by the award. This can best be accomplished by specific reference to all of any of the following:

(a) In the case of private industry employers and employees, the industry covered by the award.

(b) In the case of (separate) private or State employees the work performed by employees occupying specific classifications (i.e. occupational awards).

(c) In the case of certain Agencies the work performed by State employees in identified classifications in those Agencies.

The next step of course is for the award to be made binding on an organisation. Apart from some awards having general or common rule applications, in order to obtain a bona fide interest a organisation must have members employed in the industry or occupation covered by the award.

Therefore scope bears a direct relationship to those bound by the award but only to the extent of an employee organisation's membership validly employed in the industry or occupation.

Extrapolating that position our conclusion is that in respect of those organisations with a determined interest in awards (or in the present circumstances those with a provisional interest) the terms of the award obviously must reflect that interest.

Accordingly, having regard to Section 38 of the Act, in the context of parties and persons bound, it is clear, as an award `has effect according to its terms, and unless and to the extent that those terms expressly provide otherwise...', the award `extends to and binds' organisations. If this were not the case registration and recognition only of organisations (as defined in the Act) would be meaningless.

Therefore, the determination of interest of an organisation in an award is properly reflected in the Parties and Persons Bound clause. After all, as we have stated, that is one of the terms of the award.

Industrial Role of the Commission Vis-à-vis that if the Minister for Public Administration in Administering the State Service Act:

The matter of an application to vary the Drafting Officers Award first came before the Commission in October 1986. Subsequently Commissioner Gozzi issued an interim decision in November 1986.

As a consequence of his decision the President, following a referral to him in accordance with Section 24(4) of the Act, determined that a Full Bench should be convened.

In the President's Reference To A Full Bench dated 14 November 1986 he stated, inter alia:

"In addition, pursuant to Section 25(4) of the Act I will refer to the Bench the general question of the role of the Commission in relation to determination of salaries, salary scales, qualifications for appointments or promotion, disputes and conditions of employment affecting State Employees, as defined. In this way it may be possible to establish clear guidelines for expediting rationalisation (if that be a desirable consequence) of awards covering State employees."

As the parties will be aware, this particular question has been the subject of wide ranging discussion and debate.

The parties agreed that the invitation extended by the Commission for this matter to be clarified in the minds of the parties would quite properly be taken up by them in proceedings before the Full Bench in due course.

In the event, this question is still to be addressed by the parties. We would now indicate, as these proceeding are about to conclude, that the parties have a final opportunity to put, in succinct terms, their views on, as stated in the President's Report:

"... the prima facie competing industrial roles of the Commission and the Minister administering the State Service Act."

Matters T.585-590 of 1986 and T.890-894 of 1987:

These applications were formally joined with the applications subject to these proceedings.

All variations to award will be finalised at the conclusion of matters currently before this Bench.