T4794
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 State Public Services Federation Tasmania INLAND FISHERIES COMMISSION STAFF AWARD
Award interpretation - Inland Fisheries Commission Staff Award - compensatory allowance INTERPRETATION The State Public Services Federation Tasmania (SPSFT) applied for a declaration in accordance with Section 43 of the Industrial Relations Act 1984 as to how Clause 11, Compensatory Allowance, of the Inland Fisheries Commission Staff Award should be interpreted. The clause is as follows:
For the SPSFT, Mr Grey sought to argue that the employer was misapplying the provision by selecting different categories of allowance to be paid to the Commission's inspectors, of whom there were nine. He submitted that the most significant measure to be used in deciding the category to be applied, all other things being equal, should be the number of weekends and public holidays worked each year. The employer, Mr. Grey said, had gone back on an undertaking to allocate an allowance appropriate to the number of weekends worked. Now, he said, all inspectors worked on 25 weekends each year and the means by which the controlling authority determined an appropriate allowance was related to the number of disturbances, call outs, etc. affecting each inspector. The employees believed they should all be paid the top rate of 17.5 per cent. Mr McCabe, for the employer, submitted that there was no need to interpret the clause; he said the words were clear and capable of being read without any hint of ambiguity. The essence of Mr McCabe's submission was that the argument advanced by the applicant was directed more to how the provision should be applied to achieve the employee's objectives rather than to what the words in the award meant. He claimed the provisions allowed the controlling authority to assess the work of inspectors and determine their appropriate category and, in accordance with the guidelines used for interpretation purposes, there was no justification for attempting to read into the words used a meaning which was different from that suggested by their ordinary English usage. Mr McCabe was of the view that in accordance with Section 43(1) (a) I should declare that the provisions of the award were clear in their intent and meaning and that no order was necessary. I agree with the proposition put forward by Mr McCabe that the clause in question is clearly worded. It gives the controlling authority (the Minister administering the Tasmanian State Service Act) the discretion, having considered all the factors referred to in the preamble to the clause, to determine what category of allowance should be selected from the four set out in the clause, provided that no inspector should receive less than $1455 per annum or 8%, whichever is the greater. The concerns of the Federation and its members are related more to the way in which the employer is exercising the discretion allowed by the clause than to an interpretation of the clause. If these concerns remain they should be addressed by other means. Section 43 enables the Secretary of the Department of Employment, Industrial Relations and Training, an employer or any registered organisation with members subject to an award to make application to the President for "a declaration on how any provision of that award is to be interpreted". As a result of such an application, Section 43(2) directs the President either -
As indicated to the parties, I consider this application seeks a review of the practices adopted in applying the provision rather than an interpretation, and as such appears to go more to issues of merit than to what the words actually mean. However, since the Act requires me to interpret the provision, I declare that Clause 11, Compensatory Allowance, of the Inland Fisheries Commission Staff Award should be interpreted as meaning that the controlling authority, i.e. the Minister administering the Tasmanian State Service Act 1984, or his delegate, has the power to determine which of the four categories of allowance set out in the clause should be paid to an Inspector to compensate for "after hours disturbances, unpaid overtime, penalties for work done on weekends, public holidays and outside the ordinary spread of hours, on call, minimum payments for call out and working in extreme or rigorous climatic conditions on policing or surveillance duties". The clause gives no indication as to what weighting should be attached to any of these factors. That assessment, as the provision is currently worded, rests with the controlling authority.
F. D. Westwood Appearances: Date and Place of Hearing: |