On 11 November 1986 Mr. Commissioner Gozzi in his Interim Decision in matter T.426 of 19861 referred to a number of issues to the President in order for him to decide whether or not all or any matters identified in the interim decision should be referred to a Full Bench.

In his decision2 dated 14 November 1986 the President stated inter alia:

"Having now studied the Commissioner's interim decision I have formed the opinion that the questions raised by him are of sufficient importance to warrant those matters being dealt with by a Full bench".

Also at page 3 of his decision the President stated, in part:

"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 appointment 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."

It was against this background that proceedings commenced before this Bench on 18 December 1986.

During the course of proceedings discussions focused on the many issues emanating from matters referred to the Bench including that part of the President's reference concerning the role of the Commission.

In this regard many of the issues canvassed impinge directly on the understanding the parties have of the role of the Commission as it relates to public sector award making and wage determination and fixation.

These aspects have also been debated at length in other proceedings including the unconcluded Tasmanian Museum and Art Gallery matter3.

It is therefore our intention to address these aspects conclusively as we consider it highly desirable for the parties to be given a once and for all clear direction on these and other related issues as outlined in the President's reference.

To facilitate the reaching of a conclusive end point this Bench has made a Direction To The President4 for him to preside over a working party which will address the wider question of the role of the Commission within the framework contained in the Full Bench reference.

At the conclusion of the working party the President will report to this Bench.

Further, in its Reasons for Decision5 another Full Bench of this Commission dealing with a number of "blanket" public sector applications, decided that those particular applications should be remitted to the President for reassignment and joinder with T.426 of 1986.

As appropriate the working party will also consider aspects arising out of the subject matter of those particular "blanket" applications.

In the meantime, and as a further step in finalizing all matters before this Bench, we have decided to issue this interim decision which will focus on all those issues not referred to the working party.

Specifically those issues are those categorized at pages 1 and 2 of the Full Bench Reference². They are as follows -

1. Application of the Drafting Officers Award to all drafting officers "whether members of a registered organisation or not".

2. Whether existing award references to employees being "classified or graded" should be now altered to read "appointed or promoted", having regard for the provisions of the Tasmanian State Service Act 1984 (TSSA).

3. The correct terminology to be included in relation to progression of trainee drafting officers.

4. Appropriate terminology to indicate the source from which conditions of service applicable to employees are to be ascertained.

5. Whether or not the Drafting Officers Award should contain references to the "Head of Agency" in lieu of or in addition to references to "Controlling Authority".

We will deal with these issues seriatim.

1. "Whether members of a registered organization or not."

Mr. Vines submitted that the Drafting Officers Award should be varied so that it only has application to members of the registered organization respondent to the award. A summary of the main points made is as follows:

- Wage fixing principles and decisions of industrial tribunals require, in the context of the more recent series of principles, that unions give undertakings (not to pursue extra claims) if they are to receive the benefit of National Wage Case decisions.

- The undertaking required by the Commission is in the following terms:

"... provided it is a term of this award that the unions undertake that for a period of 6 months they will not pursue any extra claims, award or overaward, except where consistent with the Principles of Wage Fixation of the Tasmanian Industrial Commission."

Transcript p162.

- Because of that undertaking the TPSA and all other unions have agreed that they and their members will not pursue claims outside of the Principles.

- The undertaking means that members of unions are bound to behave in a certain manner, whilst other employees covered by the award are not so required.

- The union as a party to the award has no control over the actions of non union members.

- Non union members receive the benefits of an award paid for by members.

- Non union members "refuse" to be party to the Wage Fixing Principles.

- The Industrial Relations Act 1984 is built around the concept of registered organizations - it allows no representation of non union members.

- There is no provision which would prevent the Commission from excluding non union members from the award and therefore this issue should be determined on the merits.

- The basic merit of the application is that union members pay subscriptions and give undertakings before they received the benefits of the industrial system. Non union members pay nothing and give no undertaking, yet receive the benefits.

In response, Mr. Westwood submitted:

- That the Minister opposes most strenuously the development of awards in a way which might be construed as leading to compulsory unionism.

- Section 34 of the Industrial Relations Act 1984 requires (enables) the Commission to make awards to cover all persons and classes of persons in the State Service.

- The intent of the legislation is the provision of awards to cover all State employees.

- The Commission should deviate from this course "only in very special and serious circumstances". (Transcript p2 dated 19 February 1987).

- The long-term effect, if the TPSA application was successful, would see the Minister making application to the Commission for mirrored awards which would provide coverage for State employees who are not members of a registered organization.

Mr. Westwood acknowledged that in the event of the Commission making "members only" awards, non union members would initially have their conditions of employment and rates of pay determined by the Minister in accordance with Section 38(6) of the TSSA which states:

"(6) The terms and conditions of employment of persons employed under this section other than contract employees shall be those specified in an award relating to persons engaged in the work for which they are employed, or, if no such award is in force, shall be determined by the Minister."

Underlining ours.

On the general question of union membership Mr. Westwood indicated that it is the Government's view that membership of a union should be based on "freedom of choice of the individual, rather than any coercion from either party".6

Decision:

We have purposely detailed the respective submissions of the parties on this particular question as we believe the arguments presented lead to only one logical conclusion.

We consider that no useful purpose would be served by varying public sector awards to cover union members only. To do so would (initially) lead to the Minister regulating employment for the award-free employees in accordance with Section 38(6) of the TSSA. We also consider that to do so would be to, in part, abrogate our all encompassing responsibility as a wage fixing authority for the public and private sectors.

Ultimately, if the Minister sought the making of mirror awards for union members, it would appear that the only end result likely to be achieved would be a proliferation of public sector awards.

In any event Section 34 of the Industrial Relations Act 1984 stipulates that awards be made in respect of all persons or classes of persons.

The submission of Mr. Vines on this issue that union members and non members may be regarded as two distinct classes of persons, and that therefore the Commission could make awards in respect of one class and not the other, is totally inconsistent with what is meant by the reference to "classes of persons" in the Act.

In our view Section 34(b), which enable the Commission to make awards in respect of "classes of employees employed in one or more Agencies...", is the public sector counterpart of Section 33(1)(b) which is the enabling provision for awards to be made in relation to classes of employees in the private sector.

Section 33(1)(b) refers to "classes of employees employed in an occupation in an industry or industries..." and obviously enables the Commission to make awards in respect of occupational classifications that stretch across more than one industry.

Likewise we consider the intent of Section 34(b) is that public sector awards may be made covering occupational-type classifications e.g. clerical or drafting officer classifications, which are utilized by more than one agency or State authority.

Similarly, Section 34(a) is the public sector counterpart of Section 33(1)(a) in that it enables awards to be made covering whole agencies or State Authorities, akin to private sector industry awards.

To go further, as Mr. Vines did, and suggest that by virtue of Section 34(b) the Commission should separate classes of employees into members and non members of unions, is far beyond the intent and purpose of the legislation.

2. Reference to "Classified or Graded"; "Appointed or Promoted"

In Mr. Commissioner Gozzi's interim decision¹ he said at pages 12 to 14:

"Mr. McCabe submitted that the introductory paragraph in the salaries clause should be varied to reflect that employees are, since the introduction of the TSSA, appointed and not classified.

That is, the position is classified and the employee is appointed to that position.

The requested variation is best illustrated by contrasting the existing wording of the introductory paragraph with that which is proposed:

Existing

"An officer classified or graded within a class or grade prescribed by this award shall, subject to satisfying the prescribed requirements, be paid at the salary rate determined for the relevant classification, as hereinafter set forth:-"

Proposed

"An employee appointed or promoted to a position within a class or grade prescribed by this award shall, subject to satisfying the prescribed requirements, be paid at the salary rate determined for the relevant classification, as hereinafter set forth:-"

The thrust of Mr. McCabe's submission was that as all positions, upon reclassification, are advertised and filled on merit; the wording of the proposed clause reflects that change.

He also indicated that the Minister would be seeking that the proposed wording be included in "most of the public sector awards, if not all of them."

Mr. Vines, on the other hand, suggested that neither of the alternative introductory paragraphs are necessary, as in his view, the subject matter of the introductory paragraph is contained elsewhere in the award.

Having regard to the disparate views of the parties and to the fact that the proposed wording will be requested to be incorporated in other public sector awards, I have referred this matter to the President for him to determine whether or not the matter should be dealt with by a Full Bench."

This matter was debated at length7 during the Full Bench proceedings.

An agreed position was reached at page 145 of transcript where Mr. Vines said:-

"I think, sir, that there are 2 things that are in here. The person is either in the job or about to go into the job so the only 2 words that we should need to use are wither the words `promoted', in those future aspects, or else `occupies' and variations on the word `occupy'.

Underlining ours.

On reflection, however, we cannot see how the word "promoted" can be used alone without the accompanying "appointed or...". Clearly the word "promoted" is inappropriate when referring to first appointees.

The question also arises as to whether such a general term as "occupy" could and should be utilized in general award prescriptions.

We have formed the opinion that the concept of "occupying a position" is too vague, and may be open to misinterpretation if used as an award prescription.

Whilst in this particular case there does not appear to be a precise answer to the question of appropriate terminology, we have come to the conclusion that, on balance, "appointed or promoted" is the most appropriate for use throughout public sector awards of this Commission.

It is acknowledged that positions within the State Service may also be filled by secondment, transfer or temporary employment, but we consider that in general terms the TSSA is primarily based on the premise that positions are normally filled by appointments and promotions. Indeed this is evidenced by the sole use of these two terms in Section 4(1) which prescribed the merit principle, the corner-stone of that Act.

The introductory paragraph to Clause 8 originally proposed by the Minister is therefore endorsed.

3. Progression Provisos - Trainee Drafting Officers

This issue also concerns terminology changes consequential to the operation of the TSSA.

The position is similar to that outlined in respect of item 2 above except that in these particular circumstances the Minister wishes to vary progression clauses to indicate "appointment" or "promotion" in lieu of "advancement".

We are firmly of the view that the word "promotion" is the only one needed for progression provisos. Such provisos normally relate only to existing employees and hence the use of the word "appointment" is superfluous; especially when one considers the wide definition of "promotion" in the TSSA. Additionally, the word "advancement" connotes a meaning somewhat different to what is contemplated by "promotion" (as defined by the TSSA) and the latter term should therefore be used in lieu of the former, where it currently appears in public sector awards of this Commission.

4. Terminology - Conditions of Service Clause

The main thrust of the submission made by the TPSA was that the wording of the "Conditions of Service" clause should be as clear as possible so that employees can readily understand the meaning of the clause. Of course no one would disagree with Mr. Vines on that point. Obviously concise clear wording for award clauses is a desirable objective.

Whilst the wording of this particular clause in the draft order in the Drafting Officers matter is clear, we agree that the alternative wording suggested by Mr. Vines would have the effect of tightening the clause in an appropriate manner.

Accordingly we have decided that where the general "Conditions of Service" clause appears in public sector awards of this Commission, those clauses shall be varied to read:-

"Unless otherwise prescribed in this award conditions of service shall be as prescribed in the General Conditions of Service Award, provided that where conditions are not prescribed therein, the Tasmanian State Service Act 1984 and Regulations thereof shall apply."

5. References to "Controlling Authority" or "Head of Agency"

This matter has now been canvassed on several previous occasions8 and initially arises from the desire of the Minister to have included in awards a definition for Head of Agency to bring into being, it was submitted, necessary terminology changes consequential to the promulgation of the TSSA.

Additionally references to Heads of Agency in awards were sought in relation to functions inevitably delegated by Controlling Authorities.

When this matter was raised in matter T.533 of 1986 (re: Overtime) a Full Bench of this Commission expressed some concerns with the submissions that reference to Heads of Agency in awards of this Commission was appropriate and indicated that a Head of Agency stands in no industrial relationship to State employees and is only the agent of the Controlling Authority.

At page 4 of transcript in T.533 the President said, inter alia:

"...it's the controlling authority who bears the responsibility (for decisions taken under an award). The controlling authority is the employer, the nominal employer. The head of agency is really only the controlling authority's agent and, he has such powers as the controlling authority is pleased to give him, from time to time,

and later at page 6:

President:

"I would have thought Mr. Jarman, that simple test as to whether or not we should include "Head of Agency" in this award or not, might be to consider what would happen in the event there was a Section 29 notification - a dispute in other words between an employee or a group of employees employed in an agency and the Commission found it necessary to make an order directing that something be done. Would the Commission in those circumstances make a valid order addressed to the head of agency, or would the Commission not have to make the order binding upon the controlling Authority?"

Mr Jarman:

"...I would probably say that the order would need to be made on the employer, or the controlling authority."

President:

"I'm just wondering why we should put something in an award if perhaps legally it has no practical effect or may be the controlling authority may not in fact wish to have the head of agency given "statutory powers" that are not given to him under the terms of another Act..."

In subsequent proceedings in T.533 of 1986 Mr. Westwood appearing for the Minister indicated that the proposed definition of "Head of Agency" and award references thereto should be deleted and replaced by "Controlling Authority".

Mr. Westwood:

"We've been fortified in taking this action because of advice that the use of `controlling authority' can be put in without affecting the Minister's ability to delegate. There was some confusion earlier in the piece about the capacity of the Minister under the State Service Act to delegate generally. There are specific references to delegation but not to the more general activities of the employer.

Our legal advice now assists us in saying that in fact the Minister has a general power of delegation in any event, under the Act, as that was the intent and purpose of the whole of the State Service system.

That being the case there's no need for us to specifically define head of agency or a principal manager, nor does it leave in the award any ambiguity as to just who has the power, which I think was a concern of the Commission."

President:

"Yes, it was, Mr. Westwood.

It seemed to us that we were being asked to confer certain powers upon a head of agency that the statute didn't permit."

In subsequent proceedings before this Full Bench, Mr. Westwood submitted that the problem of terminology would be resolved, having regard to the matters discussed in T.533, if reference is made in awards to "Controlling Authority" when speaking of public sector employer functions.

That position is endorsed by us for the reasons alluded to in the quoted exchange.

Accordingly we have decided that public sector awards as appropriate will be varied to reflect that the Controlling Authority is the nominal employer.

The new definition for awards where the Minister for Public Administration is the Controlling Authority will be as follows:-

"Controlling Authority" means : The Minister administering the Tasmanian State Service Act 1984."

We have refrained from going further by not including in the definition reference to Head of Agency.

As has already been indicated the Head of Agency does not stand in any industrial relationship with State employees.

In our opinion the Minister although he can delegate certain functions to heads of Agency he cannot delegate controlling authority status to a Head of Agency or any other person.

In the ultimate the Minister cannot divest himself of the responsibility for decisions made by Heads of Agency under delegation.

CONCLUSION

This interim decision concludes a number of machinery matters which will enable variations to be made to other public sector awards on the basis of what has now been determined.

So as to avoid a piecemeal approach, we are of the opinion that terminology and definition variations herein should be made to the nominated public sector awards when all matters currently before this Full Bench are finally concluded.

1 T.426 of 1986 Interim Decision dated 11 November 1986.
2 T.426 of 1986 Reference To A Full Bench dated 14 November 1986.
3 T.143-150 of 1985
4 T.426, 574, 580, 614 of 1986 Direction To The President dated 23 February 1987.
5 T.574, 580, 614 of 1986 Reasons For Decision dated 5 February 1987.
6 T.426, 574, 580, 614 Transcript page 3 dated 19 February 1987.
7 T.426 of 1986 Transcript pp108-145, 18 December 1986.
8 Including (i) T.553 re Overtime, 9 December 1986; and (ii) T.270 & 271 etc. Scope and Parties and persons Bound Test Case.