T55
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
This application, (previously identified as A980 of 1984 under Part V of the Public Service Act 1973) seeks to delete the current rest period sub-clause from the subject award and replace it with a new provision. In view of the requirements of the Industrial Relations Act 1984, the President referred the matter to a Full Bench for hearing and determination. Mr Philp appearing for the applicant, the Tasmanian Public Service Association (TPSA), indicated the basis of the claim was to remove the effect of a current restrictive proviso to facilitate its application to shift workers and officers on standby. However, until otherwise determined by the Tasmanian Industrial Commission field officers and officers who do not work under close supervision are to remain excluded. Mr Philp also indicated that agreement had been reached with the various Controlling Authorities. The measure of that agreement was reflected in Exhibit P1. Mr Pearce appearing for the Controlling Authorities endorsed the substance of Mr Philp's submission and reiterated that agreement had been reached and that the primary intention of the parties was to extend the provision to shift workers and those on standby. The new provision contained in P1 reads as follows:- "Rest Period After Overtime (a) When overtime work is necessary it shall, whenever reasonably practicable, be so arranged that employees have at least eight consecutive hours off duty between the work of successive days. (b) Employees who work so much overtime between the termination of their ordinary work on one day and the commencement of their ordinary work on the next day that the employee has not had at least eight consecutive hours off duty between those times, shall, subject to this section, be released after completion of such overtime until that employee has had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. (c) Subject to sub-clause (6) of this clause, if on the instructions of the employer, employees resume or continue work without having had such eight consecutive hours off duty, they shall be paid at double their normal salary rates until they have been released from duty for a continuous period of at least eight hours and they shall then be entitled to be absent until they have had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. (d) This sub-clause shall not apply to an employee on standby who is recalled to duty unless that employee is required to work for an actual period of three hours or more on such recall or on each of such recalls. (e) Until otherwise determined by the Tasmanian Industrial Commission, this sub-clause shall not apply to field officers and officers who do not work under close supervision." Considerable debate took place between the parties and members of the Bench, both on and off record, regarding practical application of the clause in actual cases. The debate was not conclusive. This clearly highlights the difficulty that confronts both employers and employees in properly putting into effect this particular provision. In the light of the above, it is pertinent to effect a change to the agreed draft clause so that it can be properly interpreted. We are also of the opinion we should make some observations to assist in its day to day application. It is our opinion, the clause could not be properly interpreted, (given the stated intention of the parties) if the proposed title of the sub-clause were to be included in the award in the form submitted. Given the current format of the award clause containing the subject sub-clause it is our view that a title should not be included and we determine accordingly. From the debate that took place during the proceedings, it was clear that in addition to the above stated intentions of the parties to effect changes, it was also the fundamental understanding of all who appeared that an employee should be provided with a break from work as follows:-
The exceptions to the above are in (d) and (e) of the proposed provision. There is no doubt that from time to time difficulties are encountered in interpretation and application of some award clauses; this provision is clearly one of them. We therefore commend to the parties further discussion to ensure that officers who have to apply the provisions, receive clear instruction on their correct application. It is equally important that employees affected by this provision understand how it is to be applied. Having said that, we are satisfied that what has been agreed by the parties does not offend the National Wage Principles and can be processed in accordance with Principle 11 Conditions of Employment. Moreover as, similarly worded clauses are already contained in current Public Sector Awards it could not be said that the agreement opens new ground or sets new standards. An order reflecting the agreement of the parties and the decision of the Commission is appended as attachment A. |
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