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T11143

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

The Community and Public Sector Union
(State Public Services Federation Tasmania)

(T11143 of 2003)

and

Minister Administering the State Service Act 2000

 

COMMISSIONER JP McALPINE

HOBART, 4 January 2005

Industrial dispute - mode, terms and conditions of employment - application dismissed

REASONS FOR DECISION

[1] On 4 November 2003, The Community and Public Sector Union (State Public Services Federation Tasmania) Inc. (the CPSU), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with the Minister Administering the State Service Act 2000 (the Minister) arising out of the mode, terms and conditions of employment - Mr Neil Baker.

[2] The application was first listed for hearing (Conciliation Conference) before the then Deputy President Watling on 17 November 2003. The file was reassigned by the President to me on 29 June 2004. The matter was again listed for hearing (Report Back/Conciliation Conference) before me on 19 July 2004; and finally, further arbitrated hearings on 14 October 2004 and 16 November 2004.

[3] The CPSU asserts the case is based around work value and the legal necessity to pay wages which reflect the level of professional supervision and general professional guidance as contained in the Community and Health Services Award.

[4] Mr Baker commenced work for the Department of Health and Human Services (the Department) in April 1994. At that stage he held an Associate to Diploma in Social Science from TAFE and worked for a period of approximately three years as a Child Welfare Officer.

[5] Mr Baker was transferred to a position in the Alcohol and Drug Service (A&DS) as a Professional Level 1 in May 1997. Although not tertiary qualified he was permitted to work under the professional classification of the award. This concession was as a result of a grandfather clause applied during a re-classification program, allowing people with sufficient experience to be accepted as part of that profession, as a transitional arrangement where subsequently tertiary requirements were extended to new entrants.

[6] Witnesses:

    Mr N Baker
    Dr RC Dobber
    Mr G Lampasona

BACKGROUND

[7] The CPSU, for Mr Baker, seeks higher duties payment that recognises work value and the levels of responsibility he allegedly exercised since June 1997, he asserts as the result of inadequate supervision in accordance with award requirements. The CPSU also informed the Commission, on behalf of Mr Baker "... we are not seeking a reclassification or a promotion...".1

[8] While at the A&DS, Mr Baker asked for his position to be re-classified to Level 2. He was of the opinion that the work he was required to carry out, was of a higher level than Level 1. He claims his request for re-classification was rejected partly on the grounds he was being professionally supported by his "team leader".

[9] Mr Baker asserts he was misled into believing Mr B Dorgelo, his manager at the time, was his "Team Leader" and as such was providing him with "professional supervision" and "general professional guidance". Mr Baker further asserts Mr Dorgelo could not provide professional supervision, or professional guidance because he was classified as an Administrative and Clerical Officer. No mention is made of Mr Dorgelo's academic qualifications.

[10] From his submission, Mr Miller, for the CPSU, cites:

"At a pre conference held with Ms McQueenie (sic) of the CPSU and the agency staff, the DHHS stated, Department of Health Services, stated that:

"Professional supervision could be provided by staff classified under non-professional streams but holding the relevant qualifications." 2

[11] This statement of practice does not appear to have been challenged by the CPSU.

[12] Mr Milbourne, for the Minister, informed the Commission, a "team leader" can be either a clerical or professional appointment. As we see with Mr Lampasona later, he holds a clerical position but is both well qualified in the social sciences and has considerable experience as a professional social worker.

[13] Initially, the psychologist, Dr Michael Crowley, was nominated by Mr Dorgelo to support Mr Baker professionally. At a later stage Dr Rosemary Dobber was allocated to provide professional supervision for Mr Baker.

[14] It is asserted by Mr Baker he had his first professional supervision session with the clinical psychologist, Dr Dobber, on 10 September 2003. No mention is made of the timing of the earlier supervision session with Dr Crowley.

[15] Mr Baker contends, on 28 November 2003 Dr Dobber refused him professional direction. The outcome was the matter was passed to Dr Jackson to take over.

[16] Mr Baker claims he sought clarification of Dr Dobber's position regarding professional supervision by email on the 19 April 2004. Dr Dobber responded that she was responsible for his professional supervision and direction.

[17] Mr Baker claimed he had not received an updated statement of duties until 29 September 2003.

[18] It was asserted by the Minister's representative that this particular position description was the position description used at the time of translation into the new award that occurred in 1995 and may have become applicable to Mr Baker around 1997.

[19] From the Statement of Duties, Version 1, 6 March 2002, approved on 29 September 2003, within the section headed "Scope of Work Performed:" the first dot point states:

"The Community Worker is administratively responsible to the Manager Alcohol & Drug Service whilst receiving general professional supervision and direction from allocated Level 2 or Level 3 Professional staff from within the Alcohol & Drug Service. On a day to day basis, the Community Worker undertakes normal professional work when isolated from immediate professional supervision." 3

[20] This extract from the Community Workers Statement of Duty does not restrict the source of supervision to a nominated team leader.

[21] Mr Miller asserted some of Mr Baker's work includes, or involves complex, critical or novel cases that may infer he was operating at a higher Level.

[22] In summary, Mr Miller claimed Mr Baker's case revolves around the application of the award confined to professional supervision and general professional guidance.

[23] The Minister, through Mr Milbourne and Ms Spence, refuted Mr Baker was not given adequate professional supervision during his tenure with A&DS. They also assert Mr Baker was not functioning at a higher level than his incumbent Level 1 position.

AUTHORITIES

[24] T11561 of 2004 - The Community and Public Sector Union (State Public Services Federation Tasmania) Inc. v Minister Administering the State Service Act 2000, Commissioner TJ Abey, dated 8 October 2004.

FINDINGS

[25] The case put by the CPSU was long winded and often lapsed into circular arguments. I address the key points as I see them, individually.

FUNCTIONING AT HIGHER DUTIES

[26] The Community and Health Services (Public Sector) Award 2003 (the award) outlines, at Clause 11[d][i], [ii] and [iii] the conditions whereby an employee is entitled to Higher Duties recompense. Clause 11[d][i], paragraphs [1] and [2] most closely reflect the issue before me. A fundamental pre-requisite for an employee to operate in a higher capacity is: "Where an employee is directed by the employer ..."

[27] From the evidence, at no stage during his time with the A&DS was Mr Baker instructed to function at a higher level by his employer. Indeed, the denial of his attempt to be re-graded as a Level 2 confirms the employer's contention that operating at a higher Level was not required.

[28] The award is also quite clear as to the requirements to function at a Level 3.

[29] In evidence from both Mr Baker and Mr Lampasona, it was confirmed Mr Baker was not a:

  • Senior Professional Practitioner; nor
  • Professional Manager; nor
  • Professional Specialist.

[30] There is a claim by Mr Baker he addressed novel, complex and critical problems, which may be in accord with part of the Professional Specialist role. Mr Lampasona, his manager and formally qualified in Social Work with twenty years experience, refutes Mr Baker's claim. Mr Lampasona asserts there is a process in place that enables cases of varying complexity, novelty and criticality to be progressively allocated to appropriately qualified and experienced personnel as they unfold. This process ensures professionals are working within their capacity. The existence and operation of such process was not challenged by the CPSU.

[31] Mr Baker's claim of participating in significant programs was qualified by Mr Lampasona, in that he indicated most professional staff are allocated elements of programs to match their level of skill and experience. Mr Lampasona's explanation was not challenged by the CPSU.

[32] It is clear to me Mr Baker was not functioning at Level 3 in the general application of advanced skills or experience.

[33] Mr Baker's claim to functioning at a higher level is dependent on his assertion he was not given professional supervision according to his interpretation of the award. The Minister's representative challenged this assertion.

REQUIREMENT FOR SUPERVISION UNDER THE AWARD

[34] Mr Baker claims not to have received professional supervision from 1997, when he first joined the A&DS, until September 2003. He also argues, the supervision since September 2003 has not been appropriate.

[35] The Minister's representative claimed, Mr Baker was supervised appropriate to his needs. In both Mr Lampasona's and Dr Dobber's evidence, they were quite specific about the extent of the "supervision culture" within the Department and, as professionals, expressed their belief in its adequacy.

[36] The CPSU put considerable weight on the application of two phrases found in Clause 7 - Definitions of the award, to support his claim for financial compensation for Mr Baker operating at a Level 3 rather than his incumbent Level 1. These phrases reflect the levels of professional supervision and support afforded an employee; they are "professional supervision" and "general professional guidance".

[37] Clause 7 - Definitions, of the award, states in part:

`Professional Supervision' means supervision given to subordinate professional officers which requires the exercise of professional judgment and consists of:

· setting guidelines for the work of Professional Officers

· suggesting approaches to the conduct of professional work

· solving technical problems raised by subordinate Professional Officers

· ...

· reviewing and sometimes checking the work of other Professional Officers"

[38] And:

`General Professional Guidance' means direction and guidance given by a senior Professional Officer on a range of professional assignments. There is discretion in selecting the most appropriate method of completing these, and conformity with directions is a measured by satisfactory completion of allocated professional assignments."

[39] However these definitions need to be read in conjunction with another definition in the award, as follows:

`Professional Practitioner' means an individual, team member or team leader. In their initial years at Professional Officer Level 1 they apply professional judgment across a limited range of activities. Professionals may perform normal professional work under different types of supervision and guidance. Professional supervision is required, but it may not need to be continuous. As they gain experience at Level 1 and higher levels they carry out a broad range of activities or functions using relevant practices or procedures within a professional discipline or field of work. ..."

[40] It is clear to me these three definitions are framed with the intent to progressively develop the professional skills of an individual. Where an individual is inexperienced in a particular facet of his work or is exposed to a new situation, that person may be afforded very close supervision. Such supervision would progressively reduce to a point where the individual is able to function competently with minimal supervisory involvement. Obviously, this is dependent on the nature of the tasks allocated to such a professional. On the other hand, a professional may be operating well within his/her competency and not require any specific professional supervision.

[41] Supervision, and the extent to which it is sought or imposed, is dependent on the individual's need in a particular situation. Both Mr Lampasona and Dr Dobber, in their evidence, confirmed similar views.

[42] Mr Baker expressed a need for someone to be responsible for his work, to take the blame should anything go wrong. Mr Baker has misinterpreted the whole point of professional supervision and guidance.

[43] Mr Baker put great emphasis on his interpretation of a key word, "direction" in the definition of `General Professional Guidance'. His view appears to be, in this application, "direction" means to "order", to tell someone what to do and how to do it, and in so doing relieving the functionary of their responsibility.

[44] Dr Dobber, in her evidence on this aspect of the case, gave an outline of how "supervision" is conducted, both from the supervisor's and the supervisee's points of view. From her evidence, in the context of professional development, "direction" cannot be seen as defining the actions to be taken, it has to be seen as the provision of a professional framework within which to function, reaching agreement on outcomes and developing approaches to methods of execution with the assistance of a more experienced professional.

[45] Mr Baker often referred to supervising psychologists as "not his boss" and "can't direct me" in line with his interpretation of "direction". Dr Dobber gave an incisive example of how she gives "direction" in a situation where her advice to the supervisee, in her opinion must be followed.

"... if somebody were to say that they'd given some medicine to a client then I would indicate to them that they should not do that in future and I would handle that myself. If what I was saying did not seem to get through to the supervisee then I would seek managerial support on that." 4

[46] In this example, Dr Dobber applied her professional guidance enforced by the supervisee's line manager.

THE NATURE OF SUPERVISION

[47] The appropriateness of utilizing the skills of a senior psychologist in providing supervision was attacked by the CPSU. The CPSU endorsed Mr Baker's interpretation of the award, which had led him to demand to be supervised by a person in the same profession, a community worker.

[48] Mr Baker's role is strongly drawn towards the provision of counselling for his clients. Counselling is the application of various psychological techniques in particular situations. I find it incongruous Mr Baker cannot accept having the quality of his professional input overseen by a professionally qualified and experienced psychologist.

[49] Mr Baker stated well qualified and experienced psychologists such as Dr Dobber or Dr Crowley could not provide supervision for various reasons:

"... he couldn't direct me ..." 5

"He wasn't my boss ..." 6"I am not a psychologist." 7

[50] Dr Dobber, in her evidence, cited the nature of the supervisees she works with:

"... one I understand has a social welfare qualification, one has a Master's in Counselling and one has just completed qualifications for a Master's in Psychology, so that's the level 1s." 8

[51] This illustrates cross-functional supervision by a senior psychologist is an accepted practice.

[52] Again, Mr Baker questions how such an individual could direct him and therefore take responsibility for his work. From Mr Baker's remarks and attitude towards professional supervision, I can only come to the conclusion he sees it as task management rather than professional development.

[53] The CPSU made reference to the supervision requirements contained in the Australian Association of Social Workers' document, Practice Standards for Social Workers, September 2003, even though it has been established Mr Baker does not function as a Social Worker. Mr Miller referred us to Standard 1.9. 9 However instead of supporting his narrow view of supervision and its nature, this reference reflects how other professionals in a similar field function.

[54] Standard 1.9 states:

"The social worker recognizes the need for supervision and, when necessary, obtain advice

Indicators

· Supervision, consultation and advice are sought from an appropriate person when necessary in relation to specific client situations.

· There is regular participation in supervisory processes within or outside the employing agency or organisation or, in the case of a private or lone practitioner, from an appropriate source.

· Supervision is utilised as part of professional development to enhance knowledge and skills in direct practice.

· Social workers providing supervision to other social workers in relation to direct practice are appropriately experienced and qualified and are given supervision training."

[55] The whole tenor of Standard 1.9 for social workers is professional development and support. The Standard does not allude to supervisors taking responsibility for the professional's decisions, nor does it allude to the supervisor ordering the supervisee to execute a particular set of actions.

[56] It also confirms a view that it is not uncommon in the community services professions to seek and accept supervision from more experienced persons from outside the particular organization.

[57] Mr Baker's confusion over what constitutes "supervision" throws into doubt his assertion he had not received supervision since joining the A&DS. His aversion to accepting supervision from appropriate professionals internal or external to the organization, confirms his lack of appreciation of the intent of supervision and guidance. Indeed, his desire to have someone take responsibility for his work further cements this.

[58] I do not find the CPSU provided concrete evidence the supervision afforded to Mr Baker was either inappropriate or inadequate.

THE AWARD

[59] The award is silent on defaulting to a higher level, should the employer not honour any aspect of a lower level.

[60] In the definition of `professional supervision', the award refers to:

"... supervision given to subordinate professional officers ..."

[61] The award is silent on who should provide this supervision. It could be implied, that a superordinate professional officer provides such supervision, or not. My reading of this aspect of the award is, professional supervision must be provided by a party who is professionally more experienced than the subordinate professional officer. The award is silent on whether that person should currently be functioning in a professional role.

[62] In the definition of `general professional guidance', the award clearly defines the person who provides this is to be a "Senior Professional Officer". The award is silent on whether that senior professional officer must be of exactly the same discipline or whether a kindred discipline is acceptable. My reading of this aspect of the award is that, professional guidance must come from a source whose qualification, experience and status can support the core of the subordinate professional's function.

STATE SERVICES ACT 2000

[63] Mr Miller expressed some concern that the Department was in breach of the State Services Act 2000, with regards to the provision of professional supervision. I find no evidence of this.

T11561, CPSU v MASSA 2000

[64] Mr Miller cited the case, T11561 of 2004 - The Community and Public Sector Union (State Public Services Federation Tasmania) Inc. v Minister Administering the State Service Act 2000, Commissioner TJ Abey, dated 8 October 2004, as having similar arguments. T11561 of 2004 specifically refers to a position that had been progressively filled by employees acting in a Level 2 capacity. These employees were fulfilling the requirements of the role.

[65] In the case before me there is no such situation. We have an employee who is claiming higher duties allowance on the alleged failure of the employer to provide two aspects of the award. By his own admission, the employee does not want promotion or reclassification. Indeed, the employee admits he could not win should he have asserted operating at Level 2, yet is claiming Level 3 higher allowances. I see no commonality with the two cases.

WITNESS CREDIBILITY

[66] In his email, dated 26 May 200310, Mr Baker declines supervision from Dr Dobber as a means of applying industrial leverage. This action is clearly not one expected from a professional who is supposedly seeking professional guidance to enhance his skills. It appears he saw supervision as optional at that stage and no longer a rigid facet of the award to which he was entitled.

[67] In a letter11, dated 4 September 2003, from the CPSU to Mr Milbourne, it states:

"Mr Baker has resolved part of his dispute with the Department - namely that his professional guidance and supervision now appears to meet the requirements of the award."

[68] In response, Mr Baker asserts:

"... I realise that Rosemary Dobber had no power to direct me in my work or to take responsibility for what I do and I made a mistake in accepting that." 12

[69] `That' being the letter referred to above, Exhibit R.3.

[70] For an issue which Mr Baker claims has been going on since 1997, it is astonishing he decides, for the first time in the year since it was written, to disagree with the content of a letter written on his behalf by his then advocate, Ms R McQueeney of the CPSU.

[71] Again, Mr Milbourne cites correspondence13, dated 18 November 2002, from Ms S Strugnell of the CPSU to Ms C McKeown of the Department, referring to Mr Baker's case. Ms Strugnell offers a solution:

"2. Payment of higher duties at Professional level 2 to Mr Baker until the Team leader commences."

[72] Mr Baker's response:

"... I would say that letter's a mistake." 14

[73] Again, two years after the letter was written, only now is the respondent informed that the Mr Baker thinks the letter was a mistake made by his advocate, from the CPSU, who also happened to be the General Secretary of his union at the time.

[74] Mr Baker's statement "We can't ask for level 2. If we ask for level 2 the case would fail, we've got to ask for a level 3." 15, begs to be interrogated in light of this claim purporting to be genuine.

[75] I found the Mr Baker's evidence to be frustratingly vague and evasive. Continual re-statement of one's issue does not make it any more credible. I have difficulty in giving much credibility to Mr Baker as an applicant with genuine grievances.

[76] The other witnesses did not display hidden agendas or, indeed, any bias to achieve a particular outcome.

SUMMARY

[77] Mr Baker has perpetuated a misinterpretation of "professional supervision" and "general professional guidance" to suit his own ends. Throughout his career with the A&DS he has refused to accept anything that did not suit his view of professional supervision and general professional guidance. His naïve insistence on having a supervisor take responsibility for his work reflects his lack of understanding of the role of the professional. He has shown a determination to find fault with supervision offered to him at every juncture.

[78] The Minister, through his representative, on the other hand insists Mr Baker had adequate and appropriate supervision throughout his time with the A&DS and demonstrated this through the testimony of two witnesses, both professionals.

[79] The CPSU has failed to prove the inadequacy of professional supervision or general professional guidance with respect to Mr Baker. It has also failed to prove Mr Baker was functioning at a Level 3 by taking on responsibility beyond his Level 1.

[80] I deem the Minister Administering the State Service Act 2000 has not failed to provide Mr Baker with his award entitlement to professional supervision and general professional guidance. I also deem, Mr Baker did not take on a level of responsibility in excess of his classification.

[81] The application is dismissed, and I so Order.

 

James P McAlpine
COMMISSIONER

Appearances:
Ms R McQueeney (17.11.03), Mr R Miller (19.7.04, 14.10.04 and 16.11.04) for The Community and Public Sector Union (State Public Services Federation Tasmania) Inc.
Mr J Milbourne and Ms T Spence for the Minister Administering the State Service Act 2000

Date and place of hearing:
2003
November 17
Hobart

2004
July 19
October 14
November 16

1 Transcript, para 158
2 Transcript, paras 304 and 305
3 Exhibit A.9
4 Transcript, para 1086
5 Transcript, para 430
6 Transcript, para 579
7 Transcript, para 690
8 Transcript, para 1064
9 Exhibit A.10
10 Exhibit R.4
11 Exhibit R.3
12 Transcript, para 688
13 Exhibit R.6
14 Transcript, para 847
15 Transcript, para 871