T5208 and T5229
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Education Union, Tasmanian Branch The State Public Services Federation Tasmania GENERAL CONDITIONS OF SERVICE AWARD
Award variation - show day holiday REASONS FOR DECISON These applications, which were joined, were made by the Australian Education Union (the AEU) and The State Public Services Federation Tasmania (the SPSFT): they sought amendments to the General Conditions of Service Award (the GCOS Award) to ensure that a Show Day holiday would be made available to all employees covered by the Award. Eventually the actual words of the amendments sought were: · In Clause 7 - Definitions add: "Show Day" means not more than one local show day on an employee's ordinary working day, in the area in which the employee is employed; or any other such day which, in the absence of such a local show day, is agreed on by the employees and employer. · In Clause 10 - Holidays add: Provided always that all employees shall be entitled to one local show day observed on an employee's ordinary working day other than a Saturday or a Sunday, in the city, town or district in which the employee is employed; or any other day which, in the absence of such local show day, is agreed on by the employee and the employer," Provided further, that in 1994, employees in the area which previously received a show day holiday for the Devonport Show shall receive a holiday in lieu of that day. " The catalyst which brought on the applications was the decision of the Devonport Agricultural and Pastoral Society (the Society) not to hold the Devonport Show in 1994 and further, in 1995, to hold the Devonport Show on a Saturday. These decisions meant that there was no legal basis for State Government employees in particular, working in the Devonport area, to be entitled to .a Show Day holiday in 1994 and 1995 and presumably for the foreseeable future. However, most relevant private State awards and Federal awards contain provisions similar to the amendments sought. The Minister submitted, as a threshold issue, that the Commission should not proceed to hear these applications because (the AEU having pursued a Federal award) the very same matter was already before the Australian Industrial Relations Commission for determination and a dispute had been found. The Minister also made submissions on two other threshold issues. The first that Section 75 of the Tasmanian State Service Act (the TSS Act) provided for holidays declared under the Bank Holidays Act 1919 to be State Service holidays. The Minister pointed out that, whilst the GCOS Award provided for holidays, Section 3(6) of the TSS Act (as amended in 1993) provided that the GCOS Award provisions were subject to the TSS Act provisions. Section 75 states: "75 - (1) Every bank holiday observed throughout the State under the Bank Holidays Act 1919 shall be a State Service holiday throughout the State Service. (2) Whenever the Governor, by notification pursuant to the Bank Holidays Act 1919, appoints a special day or part of any specified day to be observed as a bank holiday or bank part holiday, either throughout Tasmania or in any city, town or district in Tasmania., that day or part of that day so appointed shall be kept as a holiday or part holiday in all offices of the State Service situated within the locality mentioned in the notification. (3) The Governor may at any time appoint any specked day or specified part of a day to be kept as a holiday or part holiday in the offices of the State Service or in the offices of the State Service in any part of Tasmania. (4) The Minister or the Head of an Agency may require an Agency or part of any Agency to be kept open in the public interest for the whole or any portion of a holiday, and may require the attendance and service of any employee of the Agency during any such holiday. (5) Where an employee has been required by the Minister or the Head of the Agency in which the employee is employed to be in attendance at that Agency during any holiday, the employee shall be granted a holiday on such other occasion as the Minister or Head of the Agency determines. " and Section 3(6) states: "If a provision of this Act is inconsistent with an award, the award is to be read subject to that provision." The Minister submitted that consequently any attempt by the Commission to fix a holiday outside those prescribed in the Bank Holidays Act 1919 was contrary to the TSS Act. The Minister also pointed out that Section 42 of the Industrial Relations Act (the Act) complemented Section 3(6) of the TSS Act in these matters. Section 42 states: "An award has efect subject to the provisions of any Act dealing with the same subject matter." The second further threshold issue raised by the Minister was that the fixing (or declaring) of holidays was not primarily an industrial matter for the Commission to deal with. The Minister said that the Commission's jurisdiction was established immediately a holiday had been declared, not before. The Minister also claimed that the applicants, by pursuing these matters, were breaching the no extra claims provisions in the State Service Wage Arrangements Agreements. In response to the Minister's threshold submissions the AEU pointed out that it was representing not only teachers in these matters, but also the Health Services Union of Australia, Tasmania No. 1 Branch and the Tasmanian Trades and Labour Council covering many employees not just teachers, who were also deprived of the Show Day holiday in the same way as some teachers. In that context, the AEU submitted, arguments as to the Federal situation were irrelevant. The AEU argued that the problem involved merit primarily, but the employer had chosen deliberately not to consider merit and relied on the act of omission by the Society and had simply refused to take any action to resolve the matter. The AEU questioned the merit of one-seventh of the teaching force not having a holiday when all the rest did and also pointed out that many of its members who were not teachers were also affected by the Show Day issue. The AEU said, in any case, the Tasmanian Industrial Commission was bound under its own Act to hear the applications and judge them on their merit: the AEU was relying on the Act to protect its members as it had every right to do. The AEU refuted the submission of the Minister in relation to Section 75 of the TSS Act (in conjunction with Section 3(6) of the TSS Act) and said, "So we would argue that while it is true that every bank holiday shall be a state service holiday the reverse is not stated anywhere to be true, that is, that every state holiday shall be a bank holiday. That's not stated anywhere, therefore it is totally reasonable, in our submission, for a public sector award to prescribe a holiday for public servants which is not a bank holiday and such an award provision would not infringe the Tasmanian State Service Act in our view. If we turn to subclause (3) of section 75 it allows the Governor to appoint any specified day or specified part of a day to be a State Service Holiday, but it does not bar any other authority or preclude them from granting the public service a holiday and again we would argue if such a holiday were to be incorporated in a state award, it would not contravene this section of the act." (Transcript p.44) The AEU also dismissed the Minister's reference to the State Service Wages Arrangements Agreements saying that nothing new was being sought by the applications merely the preservation of rights previously enjoyed and available to the employees affected. After a brief adjournment the Commission dismissed the threshold arguments of the Minister saying: · as to the Federal applications by the Unions that there was no valid argument put forward to prevent the Commission hearing the application; · that the State Service Wages Arrangements did not preclude these claims because they sought only to retain an entitlement that had existed for many years; · the Commission was satisfied the applications related to an industrial matter. As to the arguments in relation to Section 75 of the TSS Act and Section 42 of the Act the Commission was of the view that such could only be tested properly after the hearing of merit considerations as well and hence a response to those arguments would be considered after the hearing had proceeded to that point. The hearing resumed. The AEU submitted that it was custom and practice in many regions for employees to be granted a Show Day holiday in places which were not particularly in the area of the Show in question, for example, the people of St Helens took the Launceston Show Day as a holiday. Because the Society decided not to stage a show in 1994 the AEU approached the employer (and eventually applied for the Award amendment) to allow its Devonport area members to avail of the Burnie Show Day in the same way as other towns or areas, eg Ulverstone and Penguin. The Minister had declined to intervene on the grounds that the Award did not provide for such a situation. The AEU submitted that it was insufficient for the Minister to rely on a mere technicality in the face of a clear anomaly and inequity whereby some employees were entitled to a show day holiday and some others (ie those covered by the GCOS in the Devonport area) were not. The AEU relied upon Section 20 of the Act in this context which required the Commission to act on the merits of the case and not to be constrained by technicalities or legal forms. The AEU submitted that in this matter the Minister was not treating all State employees in the same way in that some in the Devonport area were covered by awards which contained terminology similar to the claimed amendments and hence were entitled to the Show Day holiday. (The Miscellaneous Workers (Public Sector) Award and the Hospital Employees (Public Hospitals) Award). Both the SPSFT and the TTLC supported the submissions of the AEU. The Minister, in response to the unions' primary submissions, argued that to increase the quantum of leave available would be against the prevailing community standards and, in the context of the provisions of the TSS Act and the Bank Holidays Act, the Commission would be contravening its own legislation at Section 42 if it endorsed these claims. The Minister relied, tenuously we consider, on a recent Federal Full Bench decision1 which specified a minimum of ten public holidays plus one other local holiday as a national standard. That decision also said that, "where a holiday existed in the past, but was eliminated in a state or territory, the holidays continued observance would not be enforced by the Commission." The Minister said that, in the latter context, the unions' claims were "...classic forum shopping in anyone's language" and should be rejected for that reason. Amongst other matters the Minister quoted from a decision in 1981 in the Federal arena2 and one short reference encapsulated his submission. "In refusing the application His Honour was of the view that it was not part of the Commission's function to create holidays, that is for governments, state and federal, and not for the Commission to decide whether certain events are to be recognised on a national, state or local basis by the proclamation of a public holiday." The Minister returned to the issue of Section 75 of the TSS Act and Section 42 of the Act and, whilst acknowledging that the Commission had power to deal with holidays, submitted that it was stopped from doing so in this case because Section 75 already covered the area. Notwithstanding the Minister's strong submissions we have decided that the GCOS Award will be amended as requested. On the grounds of equity primarily we are of the view that it is unfair for some State employees in the Devonport area to be deprived of a Show Day holiday when, to our knowledge, all other State employees were and will be entitled to such a holiday. In this context we reject the Minister's arguments that the AEU was seeking an increase in the quantum of paid holidays. For these reasons we do not consider that the federal decisions referred to by the Minister are sufficiently relevant to the circumstances of this case. We are also satisfied that the Commission's jurisdiction to determine which day shall be observed as a paid holiday for award purposes is not limited by the need for such a day to be determined first as a Bank Holiday although that has been the normal practice where normal circumstances prevail. We consider further that we are not acting contrary to either Section 75 of the TSS Act or Section 42 of the Industrial Relations Act 1984. In our opinion Section 75 of the TSS Act does not provide the Governor with the exclusive power to fix a paid holiday for State servants, therefore Section 42 does not apply in this matter. In our opinion on grounds of merit, equity and good conscience state servants in the area once covered by the Devonport Show Day holiday should be entitled to a paid holiday to make up for the paid holiday lost because of the decision of the Society to not conduct a show in 1994 and subsequently to transfer their show to a Saturday. We have already indicated that the fixing of paid holidays is an industrial matter and, therefore, in all the preceding context we are not constrained in amending the Award as we have indicated. The necessary order is attached. Appearances: Date and Place of Hearing:
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