IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

In this matter the Secondary Colleges Staff Association has sought an interpretation of Clause 14 - Recreation Leave Allowance - of the Teaching Service (Teaching Staff) Award.

The request for interpretation arose out of a dispute notification that came before the Deputy President in December 19881. In that matter the Deputy President concluded that the issue then before him might more appropriately be progressed by way of an application for interpretation.

The facts at issue relate to the alleged non payment of recreation leave allowance to temporary teachers whose employment usually commences on the first day of the school year and concludes on the last day of Term 3.

When that occurs, although the persons concerned have been employed only for 40 weeks, a further payment of 8 weeks' salary is made on termination. This latter payment is regarded as proportionate annual leave. However, no recreation leave allowance is paid.

The Association, supported by the Tasmanian Teachers Federation and the Tasmanian Public Service Association, is of the opinion that in the circumstances described recreation leave allowance should be paid. The controlling authority, on the other hand, disagrees.

The applicant, supported by other union parties, relies upon the fact that a temporary teacher, having worked every day in the school year, should accrue an entitlement to recreation leave allowance. Other permanent employees (and indeed temporary employees who, before completion of their "contract" period of 3 terms, are advised that they shall be employed for the following year) are in fact paid recreation leave allowance. This payment is made notwithstanding the fact that they have worked for exactly the same period of time as those who are refused payment of the allowance.

The enabling provision that provides authority for payment of recreation leave allowance is cast in the following terms:

"During a period of recreation leave an employee shall be paid an allowance by way of additional salary, calculated at the rate of seventeen and a half per cent of his/her normal salary, plus where applicable, any allowance of a permanent nature payable to such employee and deemed by the controlling authority to be in the nature of additional salary."

Then follows five provisos that stipulate that the allowance referred to:-

(i) shall be calculated on a maximum period in any one leave year (as defined) of 4 weeks' recreation leave;

(ii) cannot be costed higher than 17.5% of the rate payable to a clerk Class IX (first year of service) as at 1 January immediately following the leave credit for the previous 12 months;

(iii) shall not apply to pro rata recreation leave;

(iv) where (ii) above does not apply, the calculation shall be on the basis of the employee's salary as at the last day of the preceding leave year - i.e. one year and one day prior to the full leave credit falling due;

(v) shall not be cumulative or capable of being aggregated. Any balance of recreation leave allowance due on expiration of the next leave year following the date upon which the allowance was first credited, shall be paid as soon as practicable after that date.

Leave year is defined as: "a period of one year from the date the employee commenced duty or the anniversary of that date".

I do not consider it to be necessary to discuss in any detail the opposing submissions of the advocates representing employee organisations. Nor do I think it necessary to canvass the arguments of the advocate representing the controlling authority.

In my opinion the answer to the matter at issue, apart from one possible area of ambiguity, is obvious. I will first deal with the area of possible contention.

The definition of recreation leave is framed in the following manner:

" `Recreation Leave' means one or other of the periods of annual holidays more particularly set forth in Regulations 251 and 252 of the Tasmanian State Service Regulations 1985."

The foregoing definition invites the prima facie conclusion that certain teaching staff, as distinct from non-teaching personnel, are entitled to recreation leave in three parts, namely two weeks commencing in May; two weeks commencing in August, and around eight weeks commencing at the completion of the Third Term or the school year in December and continuing through until February the following year.

When read in conjunction with the preamble or enabling provision set out in subclause (a) of Clause 14, a literal interpretation could be that payment of 17.5% for recreation leave allowance is authorised either in May, August, or at the end of Term 3, before the actual right to the allowance has accrued. On its face this conclusion is possible because the enabling provision simply states:

"During a period of recreation leave an employee shall be paid an allowance by way of additional salary, calculated at the rate of seventeen and a half per cent of his/her normal salary ...."

However, I am of the opinion this apparent flaw in drafting can be explained by proviso (iii) to the clause which, in simple terms, precludes any pro rated payment being made in circumstances where the right to recreation leave allowance has not yet accrued. Clearly there is no entitlement until a member of the teaching staff, or any employee for that matter, has completed a leave year of 12 months. In the case of teachers that means the period February to February.

However, in circumstances where the right to the allowance has in fact accrued, payment of part, or all of the allowance during the subsequent May, August or December break would not be contrary to the award.

Shortly stated, until the full 12 months has been worked, or a full 12 months' continuous service has been recorded, no entitlement to recreation leave allowance accrues at all.

I turn now to consider the enabling preamble to the clause itself.

As I have already observed, when read alone there appears to be a lapsus calami entitlement to recreation leave allowance by all persons proceeding on recreation leave. But clearly this must be read down to mean all persons who, having completed 12 months' continuous service as part of an ongoing employment contract then take two weeks recreation leave in May or August of the next leave year; or perhaps 8 weeks at the end of that year.

In my opinion no other sensible construction is available, having regard for the fact that:-

(a) Proviso (ii) to the award makes reference to recreation leave accruing "during the previous 12 months";

(b) No recreation leave allowance at all is payable on a pro rata basis. And as a leave year is comprised of a full 12 months' service, clearly no pro rata recreation leave allowance could be paid before a full year had in fact been worked;

(c) In proviso (iv) to Clause 14, the rate of payment is determined as the salary rate applicable at the end of the leave year and applies to payments made in the ensuing leave year; and

(d) Recreation leave allowance is only credited after 12 months' service. Any accrued allowance not paid can only be attracted if it is paid in the following year in which it is earned. If it is not then paid in conjunction with a period of recreation leave, a money payment is made in any case.

The award would be made more clear if the words "on completion of a leave year and ..." were to be inserted to introduce the enabling provision. The provision would then read:

"On completion of a leave year and during a period of recreation leave, an employee shall be paid an allowance by way of additional salary, calculated at the rate of seventeen and a half percent of his/her normal salary plus, where applicable, any allowance of a permanent nature payable to such employee and deemed by the controlling authority to be in the nature of additional salary."

Inclusion of those words or similar language would then explain why recreation leave allowance could be paid during the First, Second and Third Terms of the leave year following the preceding year. Completion of the preceding year would be necessary in order to found an entitlement to recreation leave allowance in any case.

For the purposes of the matter before the Commission, I interpret the award to mean that until an employee has completed a full 12 months' service or a full leave year, there can be no entitlement at all to recreation leave allowance.

The date of operation is determined as 1 May 1989.

L A Koerbin
PRESIDENT

1 T.1791 of 1988