IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

REASONS FOR DECISION

APPEARANCES:

This is the first application to come before the Commission for interpretation pursuant to Section 43 of the Act. It is appropriate therefore to make some preliminary observations regarding the manner in which questions of interpretation should be addressed by applicants and the Commission.

These then are some of the more important guidelines to be understood by those wishing to bring before the Commission disputed matters relating to interpretation of award provisions.

In the instant case the Commission is asked to declare that Social Trainers employed by the Mental Health Services Commission are, by reason of Clause 13 (Conditions of Service) of the Social Trainers' Principal Award No. 2, entitled to be paid First Aid Allowance. The rate for this allowance and conditions precedent to payment of the amount stated are to be ascertained by reference to the terms of sub-clause D. of Clause 4 of the General Conditions of Service Principal Award.

Clause 13 of the Social Trainers' Principal Award reads:-

"Conditions of Service

Except where otherwise specifically determined by this principal award, the conditions of service of employees shall be in accordance with the provisions of the General Conditions of Service Principal Award of this Board." (i.e. Public Service Board as it then was).

Sub-clause D. of Clause 4 of the General Conditions of Service Principal Award is couched in the following terms:-

"First Aid Certificate Allowance

An officer holding a current St John Ambulance First Aid Certificate, or a certificate deemed by the controlling authority to be equivalent thereto, who is nominated and required by the controlling authority to perform first aid duty shall be paid an allowance of $338 per annum."

Mr Simmonds conceded that the Mental Health Services Commission had not actually nominated individual Social Trainers to assume the role of "First Aid Attendant". However he submitted that as these officers were required to hold a First Aid Certificate or its equivalent in order to carry out their prescribed duties, it followed that they were required by the controlling authority to perform first aid duties.

He maintained that this requirement, when considered against the controlling authority's written acknowledgement that -

"The Commission recognises that Social Trainers are required as part of their training to obtain a St John Ambulance First Aid Certificate";

and the Commission's further admission that -

"However in view of the fact that Social Trainers are required, as part of their normal duties to look after the health and physical well-being of clients while in their care, the Commission does not believe the provisions of Clause 4.D contained in the General Conditions of Service Principal Award apply to these direct care staff" (Exhibit S.2),

substantially met the requirements of the sub-clause.

Mr Martin, on the other hand, argued that as acquisition of a First Aid Certificate and, among other things, "look after the health and physical well-being of clients", was what qualified Social Trainers were paid to do, the allowance could not, and should not, be attracted in those circumstances.

He than referred me to certain transcript excerpts; and the Reasons for Decision relating to the case presented by the Public Service Association for inclusion of a first aid provision in the General Conditions of Service Principal Award. Mr Martin submitted that on the authority of the clearly-stated objectives of the applicant TPSA in seeking the allowance, and the published Reasons for Decision of the Public Service Board in granting the application, it was palpable that the claimant service organisation in this matter, in order to succeed, would first need to demonstrate that Social Trainers -

(a) held a current St John First Aid Certificate or its equivalent; and

(b) were personally nominated as First Aid Attendants (sic.); and

(c) were in any case required to act in that capacity in relation to other employees.

Mr Jarman, intervening in the public interest on behalf of the Minister for Industrial Relations, endorsed the views expressed by the controlling authority, He reminded the Commission that Social Trainers were by no means the only occupational group required to hold first aid qualifications as an essential part of their basic training. He instanced the case of Police and Ambulance Officers whom he asserted were required to hold similar accreditation. Neither group attracted a first aid allowance simply because they were required to have a demonstrable knowledge of first aid. This, he submitted, was simply a part of basic training for certain occupational groups.

However, in his reply Mr Simmonds reminded me that Prison Officers holding current St John Certificates are in fact paid the appropriate First Aid Allowance.

DECISION

It will be apparent from the foregoing that despite having been earlier cautioned about transgressing against the ground rules, all parties to a greater or lesser degree found themselves addressing the Commission partially in accordance with settled doctrine relating to matters of interpretation, and partly on grounds clearly going to merit.

No advocate endeavoured to come to grips in any meaningful sense with the actual language used by the award make to describe the conditions under which First Aid Allowance could be paid. In fairness however it is true to say some attempt was made to address the verbs "nominated" and "required"; being two essential pre-requisites to eligibility for payment of the allowance to an appropriately qualified individual.

In my opinion the arguments of the applicant, respondent and intervener stood or fell on the correct construction of those words. There was no issue between the parties that the persons in respect of whom the claim was made held the appropriate qualifications.

It seems to me therefore that in order to answer the question posed by Mr Simmonds one need look no further than the Macquarie Dictionary. This is claimed by its authors to be an updated lexicon of "Australian English in the context of world English".

Among other meanings attributed to the verb "nominated" it may be construed to mean: "Proposed as a proper person for appointment or election to an office", or "to appoint for duty or office".

The verb "required" of course has a number of connotations. These include: "To have need of"; "to call on authoritatively"; or "enjoin (a person) to do something"; "to place under an obligation or necessity". Other examples in similar vein are also given.

On careful reading of the entire clause in question it becomes clear that in order to qualify for payment of a First Aid Certificate Allowance the following tests must be applied and met in their entirety. They are:

1. The officer must be a person permanently or temporarily employed under the provisions of the Public Service or Mental Health Services Act; and

2. Hold a current St John Ambulance First Aid Certificate or its deemed equivalent; and

3. Must be named by the controlling authority as a proper person to perform first aid duty*; and

4. The officer must in any case be aware he has been both nominated for, and required to, perform first aid duty.**

* "First aid" is defined in the Macquarie Dictionary to mean `emergency aid or treatment given to persons suffering from accidents etc. until the services of a doctor can be obtained".

** Although a good deal of discussion in this case centred around persons nominated as First Aid Attendants, no such reference appears in the sub-clause in question.

Argument and documentary evidence submitted during proceedings established that Social Trainers:-

(i) are officers, by reason of being persons permanently or temporarily engaged under the provisions of the Mental Health Services Act 1967; and

(ii) do, or did, at some time or another hold current St John First Aid Certificates or the equivalent; but

(iii) have not been specifically nominated to perform first aid duty; although

(iv) required (admitted by the Mental Health Services Commission) to, inter alia, "look after the physical well-being and health of clients in their care".

I have no doubt that from time to time accidents or emergencies of some kind occur and are dealt with by Social Trainers and others. However that may be I am unable to conclude that Social Trainers can fairly claim to have been nominated and required to hold themselves in readiness to perform first aid duty of an emergency nature.

In coming to this conclusion one need only apply the ordinary canons of construction to the language used by the draftsman in framing the clause in question.

When tested against the original reasons given by the applicant in seeking inclusion of the provision in the first instance, and in the light of the reasons for decision accompanying the award, I have no hesitation in declaring that, on the evidence presented to me by the applicant Hospital Employees Federation, Tasmanian Branch No. 2, the respondent Mental Health Services Commission, and the intervener, Social Trainers employed as such by the Commission are not presently entitled to be paid First Aid Allowance in accordance with sub-clause D. of Clause 4 of the General Conditions of Service Principal Award. In order to qualify all the tests established by that clause would need to be met.

It follows from the foregoing I have discovered no ambiguity in either the Social Trainers Award or the General Conditions of Service Award in need of immediate remedial variation flowing from this application.

The award is interpreted accordingly.

L A Koerbin
PRESIDENT