T2941
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Hospital Employees Federation of Australia HOSPITAL EMPLOYEES (PUBLIC HOSPITALS) AWARD
Award interpretation REASONS FOR DECISION In this matter the Hospital Employees Federation of Australia, Tasmania Branch (HEF) sought an interpretation of Clause 12 V (a) (iv) of the Hospital Employees (Public Hospitals) Award. The relevant subclause is as follows:
The union submitted that the Higher and More Responsible Duties Allowance provisions were unclear on the question of whether or not an employee can gain access to service increments after having completed a total of twelve months broken service. The specific case in question involved an employee at the Launceston General Hospital who, on 17 occasions between 1984 and 1990, had acted in a particular higher position. In respect of those occasions, the employee had been paid an allowance, in accordance with the award, equal to the difference between the employee's substantive salary and the minimum salary of the higher position. The total number of hours worked in the higher position on those occasions exceeded the number of normal hours a full time day worker at the hospital would work in a full year. The employee sought payment for all time in excess of the normal year's work at the rate applicable to an employee in the second year of service, that is, payment was sought which would recognise the second increment of the higher classification. The HEF endeavoured to introduce elements of merit and equity into its submissions. In that respect the union was reminded of the generally accepted rules of the Commission applying to interpretation matters and it did not proceed with those submissions. In addition, the HEF proposed an award variation to remedy the perceived problem. The parties were informed of my reluctance to vary an award as a result of interpretation proceedings and that reluctance is now confirmed. The Tasmanian Public Service Association (TPSA) supported the submissions of the HEF. For the employer it was argued that the use of the word "continues" in the subclause clearly meant that the work in question must be continuous for a period of twelve months. The employer relied also on the proviso which enables an increase to be refused if, in the employer's opinion, during the previous twelve months the employee has been regarded as being less than satisfactory in conduct, diligence and efficiency. Selected extracts were quoted from the transcript of the proceedings which resulted in the Higher and More Responsible Duties Allowance provisions being inserted into public sector awards of this Commission1, including the following exchange, at page 41, between the then President, Mr. Koerbin, and Mr. Geursen appearing for the TPSA.
Custom and practice, it was asserted, was set out in the State Service Personnel Manual at item 12.5.9, Higher Duties Allowance Increment, which required the period of acting in the higher position to be "for a continuous period exceeding twelve months". Whilst the Manual is no more than a guide to the employer, it was acknowledged to be prepared and issued after consultation with affected employee organisations. I accept the employer's submission that the dictionary definition of the word "continues" suggests that the period of work concerned must be continuous for twelve months in order to attract an increment. I also consider the statement attributed to Mr. Geursen in the original proceedings, concerning custom and practice, is a significant indicator. Although I consider the subclause could have been worded more precisely, I am satisfied that the required "period of more than twelve months" has to be continuous rather than an aggregation of broken periods and I so declare. I will issue an order to that effect if any of the affected organisations make such a request in accordance with subsection (4) of Section 43 of the Act.
F. D. Westwood Appearances: Date and Place of Hearing: 1 T.760 of 1987 |