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C176 Dec 216/91 S Print J7060
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1988 s.99 notification of industrial dispute
Federated Clerks Union of Australia
and
Northern Territory Totalizator Administration Board (C No. 80103 of 1990)
s.113 application for variation
Federated Clerks Union of Australia (C No. 30009 of 1991)
CLERICAL OFFICERS (NORTHERN TERRITORY TOTALIZATOR ADMINISTRATION BOARD) AWARD 1986(1) (ODN C No. 01387 of 1985)
Clerks Northern Territory
COMMISSIONER LEAR SYDNEY, 12 MARCH 1991
Leave - public holiday - award was made by consent and should not be varied without agreement of parties except in exceptional circumstances - cost implications contrary to principles - claim dismissed.
DECISION
The Federated Clerks Union of Australia (FCU) has applied to vary the Clerical Officers (Northern Territory Totalizator Administration Board) Award 1986 (the Award) with respect to public holidays. A dispute notification and an application to vary were filed and were worded differently. If granted, each would have a different result, but the intention was to introduce Easter Saturday as a public holiday in place of the existing Show Day. The two matters were joined in these proceedings.
At the outset, Mr Matarazzo for the FCU sought clarification "whether in the Commission's eyes Easter Saturday is deemed to be a public holiday as per clause 9 of this Award". It was established that he was not seeking an interpretation but "clarification".(2)
Subclause 9(a) of the Award lists eleven public holidays "or any other such day as is generally observed in the locality as a substitute for any of the said days respectively". Though it includes Good Friday and Easter Monday, it does not include Easter Saturday. (There are in fact twelve days recognized as public holidays under the Award, because there is one "additional public holiday" granted because of subclause 9(b).)
Subclause 9(b) is a standard type of provision in many Northern Territory awards but is more complex and was apparently the reason for Mr Matarazzo seeking clarification. The subclause states:
(1)Print G2094 [C176] (2)transcript, p.2
2 DECISION - CLERICAL OFFICERS (NORTHERN TERRITORY TOTALIZATOR ADMINISTRATION BOARD) AWARD 1986
"Where in the Northern Territory or a locality within the Northern Territory an additional public holiday is proclaimed or gazetted by the authority of the Commonwealth Government or the Northern Territory Government and such proclaimed or gazetted holiday is to be observed generally by persons throughout the Northern Territory or a locality thereof, other than by those covered by Federal Awards, or when such a proclaimed or gazetted day is, by any required judicial or administrative order, to be so observed, then such day shall be deemed to be a holiday for the purposes of this Award, for employees covered by this Award who are employed in the Northern Territory or locality in respect of which the holiday has been proclaimed or ordered as required."
It should be noted that the provision in subclause 9(b) refers only to "an additional public holiday".
The (Northern Territory) Public Holidays Act 1981 (the Act) states in section 6:
"ADDITIONAL PUBLIC HOLIDAYS
The Minister may, by notice in the Gazette, appoint a day to be a public holiday in addition to the public holidays specified in Schedule 2 to be observed as such -
(a) in the Territory or such part or parts of the Territory as is or are specified in the notice; and
(b) by all or such section or sections of the community of the Territory as is or are specified in the notice."
It is usual that an "additional public holiday" is declared in the Northern Territory each year on one of the working days between Boxing Day and New Year's Day, but that provision of the Act certainly does not refer to Easter Saturday, nor any of the other days "specified in Schedule 2".
Easter Saturday or, as the Act refers to it "the Saturday following Good Friday" is one of the eleven Public Holidays cited in Schedule 2 of the Act, but none of those days is automatically granted as a public holiday unless it is specifically named in the appropriate Federal award, and Easter Saturday is not named in this Award. (The Award also lists Show Day as a holiday which is not included in Schedule 2 of the Act.) The terms of the Federal award determine the days to be granted as public holidays, not Schedule 2 of the Act.
Therefore, in response to the clarification sought by Mr Matarazzo's threshhold question, Easter Saturday is not currently "deemed to be a public holiday as per clause 9 of this Award". However, any day appointed as "a day to be a public holiday in addition to the public holidays specified in Schedule 2" in accordance with section 6 of the Act will be observed as an "additional public holiday" because of the provisions of subclause 9(b) of the Award.
The claim re Easter Saturday
The FCU has applied to have Easter Saturday included as a public holiday in lieu of Show Day. In support of the claim, the FCU advised that since the inception of the Award in 1986 employees of the TAB (or its agencies) in the Northern Territory covered by the Award have been casuals and have been paid
DECISION - CLERICAL OFFICERS (NORTHERN TERRITORY 3 TOTALIZATOR ADMINISTRATION BOARD) AWARD 1986
ordinary hourly rates for work on Easter Saturday. It was claimed that "Easter Saturday is a more important day than Show Day for religious reasons and/or other family and emotional reasons".(3) Other reasons for the application included:
. the majority of TAB employees were always rostered for long hours on Easter Saturday, but not so on Show Day;(4)
. most casual TAB employees in other States around Australia were paid penalty rates for working on Easter Saturday;(5)
. TAB employees were "prepared to give up something in return for accepting something";(6)
. the Northern Territory TAB is part of the Australia-wide TAB industry;(7)
. the Australia-wide TAB industry is a six day Monday to Saturday industry;(8)
. the Northern Territory Award allows only for the employment of casuals.(9)
It was claimed that the Northern Territory TAB award "stands out like a sore thumb" as "the only award in the Australia-wide TAB industry that pays ordinary rates on Easter Saturday" and that "should the Commission insert this proposed variation into the award this would not create a new standard".(10)
The further claim in support of the application that "the Commission should also bear in mind that Easter Saturday is deemed to be a statutory public holiday according to the Northern Territory Public Holidays Act"(11) has been dealt with earlier in this decision.
Mr Matarazzo produced several exhibits in support of the FCU claim which showed that:
(a) the Northern Territory was the only one State or Territory award covering TAB employees throughout Australia which did not provide for work done on Easter Saturday to be paid for at penalty rates;(12)
(b) there were many Northern Territory awards which deemed Easter Saturday to be a public holiday.(13)
The one exhibit from Ms K. Jackson of the Northern Territory Confederation of Industry and Commerce (representing the Northern Territory TAB) showed that Easter Saturday was deemed a public holiday in eleven (of
(3)transcript, p.6 (4)transcript, p.6 (5)transcript, p.7 (6)transcript, p.7 (7)transcript, p.7 (8)transcript, p.9 (9)transcript, p.9 (10)transcript, p.7 (11)transcript, p.8 (12)exhibit FCU.3 (13)exhibit FCU.4
4 DECISION - CLERICAL OFFICERS (NORTHERN TERRITORY TOTALIZATOR ADMINISTRATION BOARD) AWARD 1986
which only six were Northern Territory awards) out of the 41 awards listed, 35 of which were Northern Territory awards.(14) She claimed that "NT awards do not commonly use Easter Saturday as a public holiday".(15)
Ms Jackson also stressed that the FCU proposal would cost roughly $4000 for the central body of the Northern Territory TAB plus from $6000 to $7000 for Northern Territory TAB agencies and would therefore conflict with the "Conditions of Employment" Principle of the August 1989 National Wage Case decision(16) and "must be processed in national wage case proceedings or before a specially constituted Full Bench".
Generally speaking, the TAB opposed the claim on three grounds - cost impact, inconsistency with most other Northern Territory awards, and that the claim was contrary to the national wage case principles.
Mr Matarazzo rejected the cost impact factor as "a miniscule figure which would have negligible economic impact on the NT TAB". He also claimed:
"I still believe that when the award was made . . . Show Day was chosen because it is not a major race day whereas Easter Saturday is . . . that is still, as far as I am concerned, a major consideration as to why I believe the NT TAB want - are wanting to keep Show Day as a public holiday rather than Easter Saturday."(17)
The fact is of course that the award was operative from 23 January 1986 and was made by consent. It is obvious therefore that the FCU and the TAB must have reached agreement on the terms of the award and both parties would have been aware of the implications of all aspects of the consent award. It is not appropriate now for a representative of one of those two parties, who was not personally involved in the 1985 discussions, to suggest that one party may have taken an advantage over the other party.
Furthermore, subsection (1) of section 112 of the Industrial Relations Act 1988, relating to consent awards, provides that:
"112(1) [Application for approval] If the parties to an industrial dispute or any of them reach agreement on terms for the settlement of all or any of the matters in dispute, they may apply to the Commission for the making of an award giving effect to their agreement."
Nevertheless, the twelve month term of this consent award has long since passed; so that if the two parties were agreed on the proposed change, the variation could possibly be implemented, as it would not conflict with the long-established principle that a consent award would not be varied during its currency, other than in exceptional or unforeseen circumstances. But the parties are not agreed.
(14)exhibit J.1. (15)transcript, p.17 (16)Print H9100 (17)transcript, p.19
DECISION - CLERICAL OFFICERS (NORTHERN TERRITORY 5 TOTALIZATOR ADMINISTRATION BOARD) AWARD 1986
Conclusion
The FCU application seeks to introduce a change which would create cost increases to the TAB with no resultant increases in efficiency of the industry, the proposed change being based largely on a comparison with practices applying in TAB establishments in other States of Australia.
The proposal appears to conflict with the Conditions of Employment principle of the National Wage Case decision and it is certainly contrary to the general concept embraced by the Structural Efficiency principle.
In all of the circumstances, the FCU application is refused.
Appearances:
L. Matarazzo for the Federated Clerks Union of Australia.
K. Jackson for the Northern Territory Confederation of Industry and Commerce on behalf of the Northern Territory Totalizator Administration Board together with K. Boakes.
Date and place of hearing:
1991. Darwin: January 29.
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