This matter concerns an application by the Minister for Public Administration (the Minister) to vary the Drafting Officers Award No. 3 of 1986 (the award) to incorporate amendments consequential to the promulgation of the Tasmania State Service Act 1984 (TSSA).

Further variations were also requested to be made to the award including restructuring of salary scales; the removal of specific gender references (already removed in the order giving effect to my decision in T.245 of 1985); and the deletion of certain components considered to be redundant.

The application was initially listed for hearing by the President so that he could ascertain the views of the parties regarding the desirability or otherwise of this matter being referred to a Full Bench.

The President at that hearing directed the parties' attention to a number of issues which might more appropriately be referred to a Full Bench for determination. The significant issues raised related to hours of work; the fact that at least two awards may be affected, the Drafting Officers Award and the Hobart Regional Water Board Staff Award; restructuring of salary scales (the implications here being that in accordance with the principles of wage fixation, major exercises should be dealt with by a Full Bench); the question of the appropriateness of the Minister being the applicant in this matter when he is presently not a party to the award; and also the non-inclusion of the Tasmanian Trades and Labor Council as a party to the award in the draft order.

Having heard the parties and identifying the above issues with them, the President referred the application to me for determination. He considered that if, on hearing the application in toto, I was of the opinion that any part of it is of such importance that it should be dealt with by a Full Bench, then I could, in accordance with section 24(4)(b) of the Tasmanian Industrial Relations Act 1984 refer those matters to him for his determination on whether or not a Full Bench should be convened.

On hearing the parties and following the reading of the transcript, I have concluded that some aspects arising out of the application should indeed be considered by a Full Bench.

Accordingly throughout the course of this interim decision I have identified those matters which I have referred to the President. These matters are also separately listed, for ease of identification, at page 30 of this decision.

Where certain matters have been stood over to allow the parties to provide me with further information, the existing clause in the award will be included in the order that will issue with this interim decision.

INTERIM DECISION ON PROPOSED CLAUSES

1. Title

The title of the award, Drafting Officers Award, remains unaltered.

2. Scope

In relation to this clause Mr. McCabe, appearing for the Minister, undertook to consider implications of the public sector scope and parties and persons bound Test Case decision of the Commission, dated 6 October 1986. He said that he would advise me of his deliberations in writing.

Mr. Vines appearing for the Tasmanian Public Service Association (TPSA) made some observations going to the superfluous use of repetitive phrases throughout the draft order.

I have decided to stand this clause over to allow the parties to make further submissions in respect of the questions raised at the hearing.

4. Date of Operation

Notwithstanding that I have foreshadowed further proceedings in this matter, I am of the opinion that the operative date for the matters herein decided will be the date of this interim decision.

5. Supersession and Savings

The material variation to this clause relates to the inclusion of the TSSA and regulations in lieu of the Public Service Act, 1973 and the Public Works Construction Act, 1880 and the respective regulations.

This clause is self-explanatory and the variation is granted.

6. Parties and Persons Bound

As a consequence of the hearing before the President, Mr. McCabe raised a threshold matter in these proceedings going to the ability of the Minister to be the applicant in this matter, when he is not presently a party to the award.

Mr McCabe submitted that by virtue of sections 24(2) and 25(2) of the Industrial Relations Act, 1984 the Minister can make such applications. These provisions provide that an application to make or vary an award may be made to the Commission by -

"a controlling authority of State employees subject to the award to which the application relates"

Section 3(1) of the Act provides further that:

"controlling authority" means in the case of -

(a) a State employee who is a person employed under the Tasmanian State Service Act, 1984 - the Minister administering that Act."

Mr McCabe submitted that since all employees to whom the award has application are employed under the TSSA, then the Minister administering that Act, being the Minister for Public Administration, may make application to vary the award.

I concur with Mr. McCabe's submission that the application was validly made by the Minister, being the appropriate controlling authority in this instance.

Tasmanian Trades and Labor Council as a party

The draft order did not include the TTLC in the parties and persons bound clause.

Whilst Mr. McCabe indicated that the inclusion or otherwise of the TTLC was of no concern to him, Mr. Vines said that no useful purpose would be served by its inclusion.

It is not my intention, on every occasion that this matter arises, to regurgitate previous submissions on this matter and decisions made. Suffice to say that this question was considered in the recent Test Case decision, already referred to, where it has determined that this matter will be decided in a supplementary Test Case decision.

It therefore follows that the status quo should be maintained and accordingly the TTLC will be included in the parties and persons bound clause of the award, along with the Minister and the TPSA.

"Members of a Registered Organization Or Not"

Mr. Vines submitted that as Clause 4 of the award includes the following proviso:

"Provided that, it is a term of this award that the unions undertake that, for a period of six months, they will not pursue any extra claims, award or overaward, except where consistent with the Principles of Wage Fixation of the Tasmanian Industrial Commission"

employees who are not members of a union, and therefore not bound by that undertaking, should be excluded from the coverage of the award.

Mr. Vines said:

"...we would have extreme concern that people who are not members of our union, over whom we have no control or no jurisdiction, if you like, can come along and make extra claims, even if it's not through this Commission, if it's outside of this Commission and have an extremely detrimental effect on the operation of this award..."

and later:

"So, my association would strongly oppose the final part of that clause where non members of a union are covered by this award."

Transcript p87.

This matter is of some importance with regard to awards in the public sector, and probably the private sector as well. It also impinges on the Industrial Relations Act, 1984.

I am of the opinion that this whole question should be dealt with by a Full Bench and accordingly I have referred the matter to the President for him to determine if that should be the case.

In the interim the status quo will be maintained in respect of the order that will issue with this decision. Consistent with this will be the use of the words "whether members of a registered organization or not", in lieu of the proposed "...a union or not".

7. Definitions

This entire clause has been recast and in certain parts redrafted to incorporate changes consequential to the implementation of the TSSA.

With the exception of the definitions of "employee"; "part time employee"; "full time employee"; "casual employee", and the definition of "Head of Agency", there was a great deal of discussion on the remainder of this clause.

I am of the view that I should endorse the inclusion of the above standard definition and deal with the remaining definitions as follows -

"(b) `Drafting Officer' means an employee or person who holds an approved certificate from a Technical College, or who holds qualifications deemed by the Commissioner for Public Employment to be equivalent thereto..."

The issue in contention with this definition relates to the words "deemed by the Commissioner for Public Employment to be..."

Clearly the existing wording provides flexibility for the employer to make decisions on whether or not he deems a particular qualification to be the equivalent to the one nominated in the award.

There may be a case however, in the event of dispute, for the Commission to have the ultimate say as to whether a particular qualification should in fact be regarded as equivalent.

So that a standard approach may be adopted with respect to the wording of this particular clause, I have decided, rather than standing the matter over to await further submissions from the parties, to refer the matter to the President for him to determine if the matter should be dealt with by a Full bench.

My view is reinforced when I have regard to the comments made by Mr. Vines where he said -

Existing

"An officer classified or graded within a class or grade prescribed by this award shall, subject to satisfying the prescribed requirements, be paid at the salary rate determined for the relevant classification, as hereinafter set forth:-"

Proposed

"An employee appointed or promoted to a position within a class or grade prescribed by this award shall, subject to satisfying the prescribed requirements, be paid at the salary rate determined for the relevant classification, as hereinafter set forth:-"

The thrust of Mr. McCabe's submission was that as all positions, upon reclassification, are advertised and filled on merit; the wording of the proposed clause reflects that change.

He also indicated that the Minister would be seeking that the proposed wording be included in "most of the public sector awards, if not all of them".

Mr. Vines, on the other hand, suggested that neither of the alternative introductory paragraphs are necessary, as in his view, the subject matter of the introductory paragraph is contained elsewhere in the award.

Having regard to the disparate views of the parties and to the fact that the proposed wording will be requested to be incorporated in other public sector awards, I have referred this matter to the President for him to determine whether or not the matter should be dealt with by a Full Bench.

Drafting Assistants

I was informed by Mr. McCabe that drafting assistants who are juniors are currently paid in accordance with the rates contained in scale 2 of the Junior Officers (Public and Mental Health Services) Award.

Mr. McCabe submitted that those existing rates should be inserted in the Drafting Officers Award thus showing the full salary range, in the one document, for drafting assistants.

I have no difficulty with that proposition and decide accordingly.

Mr. McCabe also requested the deletion of the current proviso which stipulates that progression for a drafting assistant should not be beyond the fourth year of service unless, in the opinion of the controlling authority, the duties and responsibilities warrant such progression.

Mr. McCabe said that this particular proviso is not actually invoked. He said:

"...in fact drafting assistants progress through to the fifth year of service, which is saying that it is (the proviso) really superfluous."

(In brackets mine) Transcript p33

From what I have been told it appears that this particular proviso has not been relied upon for many years and that it is redundant.

I have therefore decided to delete it.

The proviso providing for the payment of the appropriate rate of salary for juniors appointed to positions classified above Class I conforms with standard practice and is approved.

Trainee Drafting Officers

I endorse the inclusion of junior rates in the award based on scale 1 of the Junior Officers (Public and Mental Health Services) Award. This reflects the existing rates of salary for juniors employed in the above positions.

However, where in the provisos dealing with trainees the words "appointment or promotion" are used in lieu of the word "advancement", which is the current terminology, I consider, from the point of view of establishing uniformity in public sector awards that this matter should be dealt with and decided upon by a Full Bench. I have referred this matter to the President to determine if he considers that this should be the case.

Drafting Officers

Mr. McCabe submitted that the salaries prescribed for the existing Class I and Class II levels should be amalgamated into a new Class I/II salary range.

The proposed Class I/II contains the same salary rates as the existing Class I and II scales with the exception that the existing Class I, 5^th year of service and thereafter salary rate has been deleted.

Mr. McCabe said that the reason for the re-arrangement of the salary scale is to remove the artificial barrier which currently exists between Class I and Class II.

I agree with Mr. McCabe where he said:

"Under the present award the progression clause, Clause 12 provides for a Class I drafting officer to be advanced to Class II after 12 months of service on the maximum salary of Class I.

The qualifications clause, however, contains a clause that says that, the requirements for a Class II are that an employee shall have the requirements for a Class I and in addition needs to have served for 3 years in Class I."

Mr. McCabe went on to explain that some agencies have been promoting eligible drafting officers to Class II after 3 years of service in Class I. Other agencies have required their Class I drafting officers to work their way through the first four years of the Class I scale before advancing them to Class II.

Mr Vines indicated that it was his understanding that prior to the introduction of the TSSA, drafting officers Class I effectively progressed to Class II. However with the operation of the TSSA a Class I could not automatically be promoted to a Class II because the Class II position would now be required to be advertised.

In these proceedings I questioned Mr. McCabe on the applicability of the principles of wage fixation and in particular how the amalgamation of the scales would sit with the guidelines.

Mr. McCabe convinced me that in accepting his argument no additional costs to the employer are involved and that the guidelines would not be transgressed in any way, I was assured that what is being sought only formalizes in the award a practice that has been in place for a considerable time. Mr. McCabe said:

"... it has been practice for some time, that a Class I, Drafting Officer, goes through the first four rungs of Class I - the first four years and then is, automatically, progressed to Class II. And, that has been standard practice in the service for some time. So the fifth year of service, and thereafter, hasn't been used."

Transcript p.47

Further Mr. McCabe persuaded me that the Class I, 5^th year of service and thereafter rate of salary has not been observed for fourteen years and should not be continued in the award.

Exhibit M2, tendered by Mr. McCabe, is a circular memorandum dated 24 August 1972 from the then Public Service Commissioner which in essence stipulated that "officers would be advanced to Class II after four years of service in Class I."

I concur with Mr. McCabe that the award should reflect what has in fact been observed for the past fourteen years.

In deciding in favour of that claim I indicate to the parties that I am not at ease in providing the a "Class I/II" classification in the award.

In my view the retention of Class I/II, albeit that there may be some administrative problems to overcome (e.g. computer files and related documentation) if it was made Class I only, the proposed classification title should only be continued for a limited period and until such time as the "problems" can be properly identified and sorted out.

I therefore request that the parties address this matter and advise me of the outcome of their examination. It is my intention to ultimately have five salary classes in the award for drafting officers instead of what currently amounts to six.

Drafting Officer Class V

The existing salary scale is as follows:

Mr. McCabe proposed, because Grade 1 and Grade 2, first and second year of salary rates are identical; that the Grade 2 third year of service and thereafter rate became the first year of service and thereafter rate. The claim is expressed as follows:

From close scrutiny of the transcript it would appear that the salary rate of $31397 is paid to those drafting officers designated as senior level chief drafting officer.

Apart from being informed that there are currently three employees on that salary level, I have no information on the work and responsibility differentiation between work performed by employees on that particular salary level and those on Grade 1, 1^st and 2^nd year of service of that class.

This aspect, together with the possibility that the existing Class V, Grade 2 salary levels may have reflected the salary level for photogrammetrists only, has influenced me to hold this matter over for consideration in my final decision.

In the interim I request the parties to research this matter in more detail and put further submissions to me. Failing this, and on the material before me, I am inclined to the view that the Grade 2 salary levels contained in the existing award should be deleted.

Obviously, in those circumstances, I would include a savings provision for those employees currently on the third year of that grade.

Also I consider it most desirable that a decision is provided for senior level chief drafting officer and as previously stated, for the other positions for which salaries are provided for in the award which are currently not defined.

Classification Standards

During the course of the proceedings I indicated that it would be desirable to include classification standards in this award.

I made the point on the basis that it would be of assistance to the Commission in determining appropriate rates of pay.

At the very least, I am of the view that where possible, the award should specify the position or positions to which a particular salary rate applies.

In these proceedings I was informed that the proposed rate of salary for Class V Grade 2, first year of service and thereafter applies to senior level chief drafting officer. I have no idea of what work is performed by an employee in the classification or if indeed qualifications over and above those specified for a draft officer are required.

Why shouldn't the title of that position be included in the award at the appropriate salary level? And why shouldn't there be a definition for that position in the appropriate clause?

Whilst the foregoing observations may not be totally germane to the question of including in this award classification standards, it would be invaluable in determining appropriate rates of pay, to know what work is required to be performed.

On this issue Mr. Vines submitted that classification standards should not be included in the award. He considered classification standards to be in the domain of a personnel agency and not an industrial tribunal.

This is not the first time that the issue of classification standards has been discussed. I am of the opinion, therefore, that a useful purpose may be served if this issue is fully explored so that the matter can be put to rest one way or the other.

With that in mind I have decided to refer this matter to the President, also, for him to determine if a Full bench should be constituted to comprehensively consider this question.

9. Conditions of Service

The wording adopted by Mr. McCabe for this clause arises from the conditions of service clause determined in matter T.278 of 1985 by Commissioner Watling and reads as follows:

"CONDITIONS OF SERVICE

Until otherwise determined by the Tasmanian Industrial Commission, and unless otherwise prescribed in this award, the conditions of service for employees classified under this award shall be those set out in the General Conditions of Service Award being an award of the Tasmanian Industrial Commission.

However, where conditions of service are not contained in this award or the General Conditions of Service Award, then the Tasmanian State Service Act 1984 and the regulations made thereunder shall prevail."

Mr. Vines in proposing an alternative form or words said:

"...I don't believe they're the perfect words (the words suggested by Mr. Vines as an alternative), but I think we should endeavour to lessen the amount of words and make it as clear as possible to the people who are going to be affected by these matters."

(In brackets mine) Transcript p.79

As this is one of a number of issues raised in these proceedings that has the potential to have an effect beyond this particular award, I have taken the opportunity to add the question of the wording to this clause to the list of possible Full Bench matters.

10. New Appointments and Promotions

In my decision of 28 April 1986 in which I dealt with a number of matters referred to me by the Full bench in matters T.270 and T.271 of 1985 and T.333 and T.338 of 1986, the question of the consistent use of "controlling authority" in lieu of "Head of Agency" or where appropriate a mix of both, was addressed in some detail. The relevant passages of that decision are as follows:

"At the hearing of this matter before the Full bench, the parties agreed that the terminology "Controlling Authority" is the most appropriate term to be used at this time.

That is to say that references to Head of Agency contained in the draft orders for the variation of the Welfare Workers and Recreation Officers Awards should be deleted and replaced by the reference Controlling Authority.

The Full Bench in T.270 and T.271 acquiesced to the agreed exclusive usage of Controlling Authority in those awards.

However, as this particular aspect was highlighted in matters T.333 and T.338 of 1986, the issue was more fully addressed in the joint proceedings before the Full Bench.

It is accurate to indicate that the parties and the Commission recognise that it is not ideal to refer to "Controlling Authority" in the awards in relation to responsibilities and powers currently (at least) vested with Heads of Agencies by the Tasmanian State Service Act 1984.

This is particularly so when regard is had for the overall thrust of the Tasmanian State Service Act 1984 which envisages a decentralization of certain responsibilities to Heads of Agencies."

Decision pp9,10.

And later

"There are very clear implications by not including specific references to Heads of Agency, where appropriate, in awards of this Commission. We are, however, prepared to lend our support to the proposal of the applicant, on the basis that the parties are working towards the resolution of problems perceived by them, some of which, we are told, may require legislative amendments to the Tasmanian State Service Act 1984.

We would expect to be kept informed of such developments, as it is only by the integrated involvement of all the appropriate parties, including the Commission, that the ideals of the State Service Act will be fulfilled."

Decision p11.

Since the issue of that decision, the applicant has included in draft orders, as in this matter, reference to both Head of Agency and controlling authority. Also, some decisions of the Commission have included Head of Agency terminology.

Having regard to the above decision on this issue, which reflected the wish of the parties, a Full Bench should now confirm, or otherwise, the relevant use of the terms Head of Agency and controlling authority throughout public sector awards of the Commission.

11. Qualifications

As I have referred some aspects of the Definitions clause, including the terminology "deemed by the Commissioner for Public Employment" to the President, the same holds for this clause with respect to that particular wording.

Accordingly in granting the requested variation I do so subject to the outcome of any subsequent proceedings before a Full Bench, if that is the course favoured by the President, or before myself when further dealing with other matters stood over in this interim decision.

12. Salary Increments

This clause contains the standard provisions and is granted.

FULL BENCH MATTERS

Throughout this interim decision I have identified issues which I consider should be dealt with by a Full Bench.

Where necessary I have given my reasons for referring those issues to the President in order that he may determine, in accordance with section 24(4) of the Tasmanian Industrial Relations Act 1984 whether or not a Full Bench should be convened.

The matters so referred are listed, for the purposes of easy identification, as follows:

• "Members of a registered organization or not". Ref pp6-8.

• Qualifications "deemed by the Commissioner for Public Employment to be" equivalent. Refer pp9-11 and p29.

• Length of temporary employment period. Refer p11.

• Salaries clause introductory paragraph. Refer pp12-14.

• Trainee drafting officers - use of terminology "appointment or promotion" in lieu of "advancement". Refer p16.

• Classification standards. Refer pp23-25.

• Conditions of service. Refer pp25,26.

• Terminology - Heads of Agency and Controlling Authority. Ref pp26-28.

ORDER

As I have already indicated in this interim decision, it is my intention to issue an order in due course, incorporating all those matters that have been decided thus far.

In respect of those matters which either require the parties to provide the Commission with further information or which have been referred to the President, the order that will issue will reflect the status quo.

Where necessary, further variation to the award will be made in conjunction with my final decision, and the decision of the Full Bench, if the convening of such is determined by the President to be desirable.

R. K. Gozzi
COMMISSIONER