T2399 T2508 T2511 T2516 T2586 T2605 T2467 T2469 T2470 T2471 T2472 T2473 T2474 T2475 T2476 T2477 T2478 T2479 T2480 T2481 T2504 T2506 T2587 T2594 - 6 August 1990
IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
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REASONS FOR INTERIM DECISION APPEARANCES:
These matters commenced as a result of hearings scheduled by the Commission1 to enable the parties to report progress on their negotiations for the second adjustment available under the structural efficiency component of the State Wage Fixing Principles. The first structural efficiency adjustment was awarded with effect from the first full pay period commencing on or after 23 November 1989. When these matters first came before the Commission, the Full Bench was comprised of Deputy President Robinson, Commissioner Gozzi and Commissioner Watling. Deputy President Robinson, who entered hospital on 21 June, was replaced by President Westwood with effect from the hearing on 27 June. Matters TP.82 and T.2399 became the vehicles upon which most organisations relied until the hearing of 27 June, when an application was lodged by the Hospital Employees Federation2 Other organisations involved in the proceedings lodged their applications subsequently. It should be noted that the Tasmanian Teachers Federation application3 which commenced being heard with other public sector matters, was listed and heard separately by the same Full Bench as from 27 June 1990. During the course of the proceedings on 15 May, it became clear to the Commission that negotiations between the parties needed some direction from the Commission. As a result, the Minister administering the State Service Act, and the organisations involved, were ordered into conference to enable the Minister to table all agenda items relevant to the structural efficiency exercise, including any supplementary items developed by various agencies, by no later than 5.00pm on 25 May 1990. The parties were then to proceed to negotiate all matters on the agenda and develop a position on each agenda item. The parties were required to report back to the Commission at 10.30am on 12 June 1990, at which time they were to be prepared, if necessary, to argue their respective cases. The Commission also recommended that other public sector parties not subject to application T.2399 should engage in a similar exercise. At the report back hearing of 12 June 1990, which went into the following day, the Tasmanian Public Service Association (TPSA) indicated that no agreement had been reached with the employer, as did the Hospital Employees Federation (HEF), the Association of Professional Engineers, Australia (APEA), and the Tasmanian Salaried Medical Practitioners' Society (TSMPS), in varying degrees. Whilst the representatives of the TPSA and the Minister indicated they were prepared to commence submissions to enable the Commission to arbitrate on all matters, neither considered arbitration at that stage to be their preferred position. As a result, an adjournment was granted until 27 June, to allow further discussions, and the parties were put on notice that the Commission would be prepared to hear submissions in relation to an appropriate operative date for the second adjustment. In addition, the Commission indicated it would be prepared to arbitrate, if necessary, on any matters which formed part of the structural efficiency exercise. When the parties came before the Commission, Mr. Vines advised that although a position of total agreement had not been reached, he believed such a position could be reached within a few days. He sought an adjournment of sufficient time to allow such a package to be negotiated and put to his members. The HEF, through Mr. Warwick, indicated that his organisation's members were concerned about the agenda items which the Minister had proposed; his instructions were that negotiations should continue but not in respect of conditions of employment. An adjournment was granted until 16 July 1990, with a further tentative hearing date set down for 20 July 1990. At the resumed hearing on 16 July 1990, Mr. Bacon, for the Tasmanian Trades and Labor Council (TTLC), tendered a document entitled "Structural Efficiency Adjustment - Tasmanian Public Sector" and dated 16 July 1990 (Exhibit 3). The document, predicated on a statement of principles, detailed the structural efficiency measures to be implemented in the various awards. The principles and issues are described below in summary form: Principles:
Issues: 1. Allowances 1.1 Higher Duties Allowance and Mixed Functions Allowance - Agreement to examine same in the light of changes effected by way of award restructuring, particularly as a result of any broadbanding. 1.2 Travelling Allowance - Provisions to be standardised to an event-based system. 2. Employment Conditions 2.1 Protections - Agreement to apply consistent mechanisms and rights, for all employees, which are to be balanced against benefits. 2.2 Appeals - Agreement that the appellate jurisdictions of the Commissioner for Review and the Tasmanian Industrial Commission will be rationalised to eliminate any overlap and duplication. Current employee appeal rights will be recognised. 2.3 Permanent Part-Time - Agreement that permanent part-time positions may be created subject to appropriate consultation and provided career opportunities are not reduced, particularly for women. 3. Hours of Duty Guidelines for the process of implementation of changed span of hours will be agreed and circulated by 30 August 1990. [An attachment to the exhibit catalogues the employer's intentions on the matter which will be subject to negotiation: to be concluded no later than 30 August 1990.] 4. Holidays The employer's wish to have the Tasmanian State Service observe community standards in respect of public holidays was noted by the parties. 5. Leave 5.1 Sick Leave The parties noted that the initial objective was to abolish all current credit and accrual-based sick leave arrangements and replace them with a "no credit" scheme to achieve productivity from decreases in absenteeism. The criteria for such a scheme to be developed by 30 August 1990. If such a scheme is considered to be incapable of implementation or inappropriate, negotiations are to proceed with the objective of establishing, if possible, a service-wide scheme with uniform annual entitlements and accruals. 5.2 Special, Emergency and Bereavement Leave Agreed that those employees who do not have special leave as part of their entitlements will have up to three days for bereavement, special and emergency leave purposes. Such leave will be subject to conditions to be issued by the employer. Employees currently enjoying conditions providing up to five days special leave will have access to the fourth and fifth days for specific emergency situations only, to be outlined in the conditions to be issued by the employer. 5.3 Recreation Leave Agreed that the present provisions for an additional week's accrual in certain circumstances would not be available to employees occupying positions in the "Senior Executive Service" (SES) or above, with further guidelines to be issued to standardise the application of the provision across the State Service. 6. Salary and Overtime Eligible employees may elect, subject to Agency exigencies, to take time off in lieu of overtime. Such time off to be available on an hour-for-hour basis. 7. Redundancy Agreement in principle, to negotiate a package. (It was noted that the package on voluntary early retirement and redundancy had been agreed.) 8. Other Conditions 8.1 Private Plated Cars Agreed to introduce private usage component of - $750 p.a. for 6-cylinder vehicle $500 p.a. for 4-cylinder vehicle CPI to be applied annually. 8.2 Consultative Mechanisms Agreed that unions continue to co-operate in Agency restructuring to facilitate finalisation of that process. Agreed that unions will co-operate with the interim establishment of the SES and the legislation to establish formally the SES. With respect to the Keyboard and Office Assistants Award, it is the employer's intention that it will be among the first to receive attention in the process of award restructuring and that it is the employer's strong desire and intention that such action will be undertaken prior to any legislation being introduced with respect to the SES. 8.3 Department Specific Agenda Items Agreed that such items are to be treated as enterprise agreements during the restructuring and broadbanding process. 8.4 Operative Date Agreed that the operative date should be the second pay period in July 1990, and the date of effect of any increases resulting from special cases should be no earlier than 1 January 1991. Exhibit 3 was supported by the TTLC, the TPSA, the APEA, the Police Association, the United Firefighters Union (UFU), the Tasmanian Prison Officers Association (TPOA), and the Minister. The Federated Miscellaneous Workers Union (FMWU), and the Federated Engine Drivers' and Firemen's Association (FEDFA) sought additional time to respond as they had been unable, in the time available, to consider the Exhibit. Mr. Warwick, for the HEF, submitted that the document was unacceptable to his organisation, and sought to have certain concerns resolved initially by way of private conciliation. Mr. Vines tendered a document entitled "Award Restructuring Development and Implementation Proposal" (Exhibit V.4) which outlined the Association's proposed new award streams, viz.:
The document set out the mechanics of implementing the proposal by -
(a) four to deal with classification criteria and translation in respect of the four streams (b) one to develop training programmes and mechanisms for skill recognition, and (c) establishing a working group to develop strategies for a Service-wide review of positions and workplace-based job redesign in the context of new broadbanded classifications. Exhibit V.4 also established a timetable for implementation and monitoring of the proposal. Mr. Pyrke, for the APEA, rejected V.4 stating that it was inappropriate for engineers, and he tendered his Association's preferred classification structure4. He alluded to his organisation's application for awards, in which the APEA has an interest, to be granted special case status. The Police Association, the UFU, and the TPOA referred to the different circumstances applying to their members who occupy positions in "ranked" structures which might not sit easily with V.4, and also alluded to their "special case" applications: no firm commitment was given to Exhibit V.4 by those organisations. Mr. O'Brien and Ms. Moncrieff sought additional time to respond. Mr. Warwick, for the HEF, supported Exhibit V.4. Mr. Willingham was not prepared to accept the TPSA's complete proposal as set out in Exhibit V.4. However, he stressed the Government's absolute commitment to the ongoing process of structural efficiency and suggested that very little separated the parties, apart from the number of award streams, and he considered an agreed position could well be achieved by the end of the week. The hearing adjourned on the basis that the Government would review its position on Exhibit V.4 and that the HEF and the Minister would continue their negotiations. At the commencement of the final day, Mr. O'Brien advised that his organisation wished to be a party to Exhibit 3. Mr. Willingham then tendered Exhibit W.2 which is attached to this decision, being the Minister's proposal in relation to award restructuring development and implementation. Mr. Vines confirmed that Exhibit W.2 represented the agreed position between the TPSA and the Minister and that it therefore replaced the association's previous proposal outlined in Exhibit V.4. He submitted that Exhibit 3 and Exhibit W.2, when taken together, more than met the requirements of the structural efficiency principle. He said he believed that negotiations with the Government in that last week had enabled the parties to agree on a process which would ensure the introduction of significant changes to awards in the Tasmanian public sector. The changes would provide enormous benefits both for employers and employees in terms of more efficient working practices and more rewarding jobs for employees, including the provision of far better career paths and opportunities for training and skill enhancement. Mr. Vines, in response to a query from the Bench, stated that it was unnecessary to provide formally in Exhibit W.2 for the Commission to monitor progress, adding that the parties recognised they could bring disputed matters to the Commission at any time. Mr. Pyrke submitted that the interests of the APEA would be served best by the Association becoming party to the agreement contained in Exhibits 3 and W.2. He stressed that Exhibit P.1 represented the APEA's preferred objective but that the working parties' examination of work and management practices would clarify the situation. Unequivocal endorsement of Exhibits 3 and W.2 was forthcoming from Mr. Nielsen on behalf of the Ambulance Employees Association; Mr. Devine from the United Firefighters Union, and Mr. Hughes for the Tasmanian Prison Officers' Association. Ms. Moncrieff, for the Federated Engine Drivers' and Firemen's Association, having tendered her organisation's preferred classification structure5, eventually confirmed acceptance of Exhibit W.2. The FMWU similarly agreed to Exhibit W.2 with the qualification that a separate negotiating group would be established to review the Miscellaneous Workers (Public Sector) Award6 and that the agenda items currently on the table between the FMWU and the Government, together with the matters referred to in Exhibit 3, would be the primary agenda to be discussed by this negotiating group. These qualifications were agreed by the Government. The HEF, through Ms. Crotty, gave in-principle support to Exhibit W.2 which was contingent upon the document Exhibit 3 being clarified in respect to its intent in relation to Section 3, Span of Hours; Section 5.1 Sick Leave; Section 2.2 Employment Conditions Appeals. After a lengthy private conference the parties agreed to amend Section 3, Span of Hours, in a manner which was acceptable to the HEF, and understandings were reached on the other matters in contention which satisfied the HEF to the extent that Ms. Crotty was able to agree to the amended Exhibit 3. The HEF's support for Exhibit W.2 was confirmed. Mr. Kadziolka for the Police Association requested time to enable him to seek instructions from his members on the restructuring Exhibit W.2. His application was set aside until 31 July, at which time he was able to inform the Commission that Exhibit W.2 was acceptable to his organisation. In response to a question from the Bench regarding the Association's foreshadowed application for a "special case", Mr. Kadziolka indicated that the Tasmanian Trades and Labor Council had not been requested officially to take any action on the Association's behalf, but that situation would be corrected immediately. It was noted that the Electrical Trades Union, Printing and Kindred Industries Union, and the Heads of Tasmanian Government Organisations Association (HOTGOA), although parties to awards involved in this case, were not represented at any of the hearings; however, the ETU and the PKIU, through the TTLC, and the HOTGOA, have informed the Commission in writing that they endorse, in principle, the documents Exhibits 3 and W.2. CONSIDERATION OF THE ISSUES Exhibit 3 which addressed, in the main, conditions of service which the Government considered required attention, caused us and indeed the other parties, the most concern. Not because of the issues which have been canvassed (we consider that the National Wage Decision and Principles of August 1989, subsequently adopted by this Commission, clearly allows such matters to be dealt with in structural efficiency exercises), but because of the all too obvious lack of co-ordination between the parties and lack of understanding as to the precise meaning of some aspects of the document. The conciliation and negotiation process which took place under the auspices of the Commission finally enabled all the parties to accept the document which had been presented to the Commission as an agreement. As to the Government's Exhibit W.2 detailing the method of developing and implementing the award restructuring process, it appeared that only the TPSA had been involved in its preparation. The other parties seemed to be given their first opportunity to examine the proposal when it was handed up as an Exhibit on the last hearing day. If public-sector-wide packages are the desired objective of the employer, more attention must be given to providing for all affected organisations to be involved and sufficient time must be allocated to allow for the dissemination of information and the conduct of the negotiation process. It is noted that the agreed document Exhibit 3, is principally a statement of the Government's intentions and that some organisations have expressed the view that they would oppose any attempt by the Government to implement any change to matters such as:
In the event that these matters, and indeed any others in the packages before us, present the parties with difficulties which at the worst could develop into matters of active disputation, then we give notice now that they are to be brought before the Commission for arbitration. Turning to the merit of the finally agreed packages, we are satisfied that they provide a worthwhile blueprint, including timeframes:
However, it concerns us that the Government appeared, until the eleventh hour, to place so little importance on the need to vigorously address the subject of award restructuring. That the Government's own proposal should first surface on the final day of hearings suggests to us that the Commission will have to impose on the parties a strict monitoring programme to ensure that the general objectives of award restructuring, described in Exhibit W.2, are achieved in accordance with the endorsed timetable, or earlier. Given the strict monitoring and control mechanisms we have imposed, and notwithstanding the qualifications expressed by most organisations in relation to Exhibit 3, we consider that the two packages, taken as a whole, satisfactorily meet the requirements of the State Wage Fixing Principles for the second structural efficiency increase. Accordingly the applications before the Commission are granted with effect from the first full pay period commencing on or after 18 July 1990. AWARDS TO BE VARIED The awards to be varied fall into two categories, namely, those for which the decision will be the second and final structural efficiency increase and those that have been designated as `special cases' for which this increase will be interim only. The awards falling into the first category are: Agricultural Officers The awards falling into the second category, i.e. interim: Architects The Police Award7 will be the subject of a special case hearing by an Anomalies Conference in the near future. This award will be regarded as falling into the second category, subject to the finding of the Conference. QUANTUM OF INCREASE We hereby determine that the previously mentioned awards shall be varied in the following manner: For salaries below $21,897 - the increase shall be $650 p.a. In respect of those awards containing weekly wage rates, the adjustment shall be -
MONITORING PROCESS In order to monitor progress with the matters contained in the Agreements, this Bench will reconvene in September 1990, or earlier at the request of any of the parties, to enable the results of the deliberations of the working group on sick leave, special leave and span of hours to be reported. The Bench will also reconvene in February 1991, or earlier at the request of any of the parties, at which time the parties will be expected to present the Commission with a report on the issues of appeals and protections, and the deliberations of the groups examining the six award streams. SPECIAL CASES There remains a relatively large number of special case matters which have been given that status after being tested by the Anomalies Conference process in accordance with the State Wage Fixing Principles. Each of these matters has been found to be an "arguable" case which will allow all or some classifications in an award (depending on the reference from the Anomalies Conference) to access increases greater than the basic second increase structural efficiency adjustments available under the Principles of $10, $12.50, or $15 per week, or 3%. As part of the agreement (Exhibit 3) between the parties, 1 January 1991 is the earliest any increases arising out of special cases will be available. In a statement by the State Wage Case Full Bench dated 27 March 1990, the Bench made it clear, amongst other things, that "special cases" will form part of the structural efficiency review, which means that once that review is completed and the file closed the special case provision cannot be accessed. In order to provide the parties with some assistance in this area we provide the following comments for the conduct of special case matters: (i) Where the whole award is to be restructured and the whole award has special case status - The outcome of the review will be implemented in the existing award. Subsequently those outcomes will be translated into the appropriate new award stream. The salary translation will be on a point to point basis. In any case however the Commission will wish to be apprised of, and endorse, the transition process prior to the rescission of the award. (ii) Where the whole award is to be restructured, but not all classifications have special case status - The outcome in these cases will be applied to existing award classifications. The remainder of the process is as for (1) above. (iii) In respect of all special case applications, these have now been allocated to the appropriate Commissioner for hearing and determination. However, the special case applications for the teaching service awards will remain before this Bench for hearing to finality.
1 TP.92 |