IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

INTERPRETATION

APPEARANCES:

DATE AND PLACE OF HEARING:

18.06.86                       Hobart

On 13 May 1986, the Tasmanian Public Service Association submitted the following application for interpretation of Clause 10 B 5 (Standby and Availability) set out in the General Conditions of Service Award, No. 1 of 19861.

"An interpretation placed upon this Clause by the former Public Service Board, the Director of Housing, which has been supported by the Director of the Office of Industrial Relations is that maintenance staff of the Housing Department placed on a roster to deal with emergency calls are on an `availability' (albeit that employees on the roster prior to 1984 are receiving a minimum payment of $25.56).

The Tasmanian Public Service Association submits that this is an incorrect interpretation of the award, for clearly these officers should be on `standby'."

From the outset it was clear that this application was complex and needed to be carefully addressed.

Moreover the issues debated before me occasionally strayed into the realm of merit rather than semasiological consideration of the two provisions regarding availability and standby. For obvious reasons merit consideration of differences between the parties cannot be entertained in matters of this kind.

As to the cases stated, and at the risk of being too simplistic, it could be said that the applicant TPSA maintained that certain Department of Housing employees regularly rostered for duty which involved monitoring telephone calls from the public regarding maintenance requirements of welfare housing were, by definition, on "standby".

In such circumstances it was submitted that those persons were entitled to at least the prescribed 6-hour minimum payment for each rostered day on standby. Other minimum award penalty payments should also apply if those persons were "called out" while on standby.

For the Minister for Public Administration - the nominated controlling authority - it was argued that the persons concerned are not on standby but on availability. For this, it was submitted, the employees are entitled to and were being paid a minimum cash compensation of $25.56 per day.

The amount of $25.56 did not actually appear in the award at the time of hearing due to an oversight. However a suitable correction order rectified this situation retrospectively except for the minimum amount inserted as a savings provision. This was set at $23.05 per day. The figure of $25.56, it seems, was struck as a result of an incorrect application of CPI adjustments.

During proceedings I was taken through the history of the two allowances in question. The period covered by that exercise spanned some 11 years.

Despite certain ambiguities in drafting, it is none the less possible to discover the more likely intention of the tribunal in framing the provisions in question by resorting to careful consideration of the reasons for decision that have been issued on each occasion that these provisions have been revised.

Whether or not the intention of the (then) Public Service Board has been sufficiently transported into the actual drafting, having regard for the language used, may of course be arguable. However in the circumstances I propose to invoke item 6 of the Commission's set of guidelines to interpretation set out in its decision of 20.2.852 in an attempt to ascertain, with a reasonable degree of certainty, what it was the award maker intended.

Item 6 states:

"Where genuine ambiguity exists, resort may be had to the judgment accompanying the award as an aid to discovering its true meaning."

From the material submitted by Mr Philp it is clear that in 1975 the (then) Public Service Board in its 19753 decision stated in part:

"Although it may have been wiser to defer until some other time determination of this claim, we have decided, as already stated, to include in the award a standby clause we consider appropriate to the evidence of Mr Winterborn (a Housing Department witness). But we wish to make it quite clear the clause proposed is not intended to be applied willy-nilly to officers said to be on standby or on availability but about whom no evidence has been called."

p.24 of 1974 (Exhibit p.1)

It is clear that at that time there was a standby roster system in operation at the Housing Department. That arrangement involved certain supervisory personnel taking `after hours' complaints from Housing Department tenants. It was the responsibility of the person on standby to assess the nature of the telephone complaint and if necessary call out a tradesman or contractor to attend to the complaint. Only on rare occasions was it expected that the standby person would have to leave home.

Those actually attending the particular location to make good a repair or electrical fault, for example, would be on availability as distinct from standby.

Since then the two provisions have not changed conceptually, although the method of compensating for the two `after hours' situations has been revised.

Originally there was a flat daily allowance with payment for call out for those on availability.

For those on standby at home there was a flat money allowance with no entitlement at all to overtime even if called out. However call out was known to be unlikely.

In 1983 the standby provision was rationalised to bring it more into line with the "standard" provision then in force in public hospitals.

The language was altered somewhat as a consequence, and a flat payment of 6 hours' pay calculated at the individual's hourly rate was prescribed. This was to compensate for the inconvenience of being unable to leave a particular area (in the case of Housing Department personnel, an individual's home) while on rostered standby.

Later the availability provision was also varied to allow compensation in the form of an hourly payment for each hour "on call" to perform emergency `after hours' work after having been called out.

Thus the original intention of the availability and standby (or close call) philosophies of the early seventies was continued, although the method of compensation, and the award drafting, had changed somewhat over the years.

However, from the examples given by Mr Philp no significant changes to work practices occurred at the Housing Department during the same period. Nevertheless it does appear that not all personnel now rostered are necessarily supervisory staff; rather there is a mix of supervisory and clerical officers monitoring calls in accordance with an `after hours' roster.

But this is not a matter for the Commission to take into consideration in interpreting the award. Equally, I am unable to have regard for the fact that some rostered staff have allegedly been issued with "bleepers" while on `after hours' duty. These are management matters and are not referred to explicitly or implicitly in the clause.

Mr Pearce, for his part, adopted the "reasonable man" or objective approach. That is, how would a reasonable man understand the two provisions? In this regard he stated that as the rostered employees were mainly required to answer telephones and attend to after `hours calls' as required, this function was more in line with the availability provision than standby. This conclusion does have a measure of attraction. But when regard is had for the respective changes that have occurred to the two provisions over the years, the "reasonable man" approach then loses some of its attractiveness.

On balance I think the only logical construction to be put upon the availability provision is that it is intended, generally speaking, to compensate individuals occasionally directed to hold themselves available for call out to return to work to perform some emergency duty of a kind which that person would ordinarily perform during ordinary working hours. That person need not necessarily remain in one position but must be available to return to work without delay or within a reasonable time of being recalled.

I believe that too much reliance upon reference to monitoring telephone calls can be confusing. It may mean that the employee could be required in return to work to monitor calls and perhaps attend to any work requirements arising out of those calls.

Or, and in the same context, the employee may need to remain at home as an alternative to remaining within reasonable telephone contact. This is fairly easy to understand in some circumstances. Not all employees have the telephone connected at home. Sometimes they are recalled byway of a radio-controlled vehicle issued by the employer to the employee on "availability". In other situations a message is delivered to the person's home if he is unable to be contacted by telephone or radio.

When the availability requirement is contrasted with the standby provision three major differences are apparent. They are:

1. The employee concerned must be rostered for this duty;

2. Although unlikely to be called out, nevertheless the employee must be at home at all times; and in any case

3. The employee must be immediately available for recall to duty if required.

I would tend to agree that in the circumstances said to exist at the Housing Department both provisions might appear to have some application.

However, having regard for the reasons given over the years for including and, from time to time, varying the two provisions in this award, I am compelled to conclude that Mr Philp's assessment is to be preferred to that postulated by Mr Pearce. Notwithstanding this conclusion, I am none the less of the opinion that the availability allowance provision is in need of some repair in order to avoid further disputation because of its ambiguity. But this is best left to the parties. In deciding to make no alteration to the availability provision I have relied upon item 5 of the Guidelines4 which states:

"If a drafting mistake has been made in not properly expressing the intention of the award maker, then the remedy lies in varying the award to accord with the decision given."

But as I am required to make a declaration on the facts presented, I do so in the following way.

On the facts presented as they relate to employees of the Housing Department, I declare that those persons who are required to participate in an `after hours' emergency roster, approved of by the controlling authority or administrative authority, and who, in the course of performing rostered duties, are required to stand by at home on immediate recall (whether actually called out or not) are entitled to compensation in accordance with the provisions of Clause 10 5.B of the General Conditions of Service Award.

I further declare that the foregoing interpretation shall operate retrospectively to 3 January 1986.

L A Koerbin
PRESIDENT

18 September 1986

1 S085
2 T.30 of 1985
3 p.24 of 1974
4 Op.cit.