TASMANIAN INDUSTRIAL COMMISSION

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

The Community and Public Sector Union
(State Public Services Federation Tasmania) Inc.
(T11632 of 2004)

and

Minister Administering the State Service Act 2000

Industrial dispute - classification - more responsible duties allowance - position description - level of supervision - internal relativity - application granted - order

REASONS FOR DECISION

[1] On 29 July 2004, The Community and Public Sector Union (State Public Services Federation Tasmania) Inc. (CPSU) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Minister Administering the State Service Act 2000, arising out of the alleged failure of the employer to pay the appropriate rate of remuneration to Glenys Jones as prescribed in the Professional Employees Award.

[2] This matter was listed for hearing (conciliation conference) on 2 September 2004, and further listed for hearing on 28 September, 19 October and 1 November 2004. Mr R Miller appeared for the CPSU. Mr K Doyle appeared for the Minister.

Background

[3] Ms Jones holds a first class honours degree in science with majors in entomology and zoology. Following graduation Ms Jones worked professionally for 12 years as an environmental scientist in a variety of NSW Government Agencies.

[4] Ms Jones joined the Tasmanian Parks and Wildlife Service in 1989 as an assistant planning officer for the World Heritage Area. During the 1990s she was engaged on a range of duties including being part of a small team which developed the Tasmanian Wilderness World Heritage Area Management Plan 1999.

[5] Between September 2000 and September 2004 Ms Jones' core task has been the development the first State of Tasmania Wilderness World Heritage Area; An Evaluation of Management Effectiveness, Report No 1 (the report), which was published on 10 September 2004.

[6] Ms Jones' substantive position is that of Professional Officer Level 1 (PO1). In 2000 her immediate supervisors, Ms McCuaig and Mr O'Loughlin, made representations to senior management seeking a revised position description and a reclassification to Professional Officer Level 3 (PO3). These representations were unsuccessful. The matter was raised again on a number of occasions over the next three years and in October 2002 approval was given for the payment of a Higher Duties Allowance equivalent to a PO2, retrospective to 20 September 2000.1 [Note: This was often referred to as a More Responsible Duties Allowance (MRDA), but nothing of substance turns on this.] It would seem that this allowance has continued to be paid at least up until the publication of the report, and perhaps beyond.

[7] The applicant contends that Ms Jones has performed duties consistent with at least a PO3 and seeks the payment of a MRDA equivalent to a PO3 retrospective to September 2000.

Evidence

[8] Evidence was taken from the following witnesses:

• Glenys Beresford Jones; the applicant.
• Mary Anne McCuaig; Senior Planning Officer, World Heritage Area, with 20 years' experience in the Parks and Wildlife Service.
• Timothy David O'Loughlin; World Heritage Planning Officer for the past 12 years.
• Peter Jerald Mooney; General Manager of the Parks and Wildlife Service with 26 years' service in the Parks and Wildlife Service.
• Kieran Gerrard Doyle; Human Resources Manager, DTPHA.

Statement of Duties

[9] It was common ground that the Position Description (PD) applicable to Ms Jones' substantive position2 was no longer an accurate reflection of her duties and responsibilities.

[10] Ms McCuaig prepared a revised PD as part of the initial representations for a PO3 classification in September 2000.3 This was not approved by senior management.

[11] A further revised PD4 was prepared by Ms McCuaig and submitted with an application for a reclassification to PO3 dated 6 May 2003. Ms McCuaig's evidence was that this was an accurate reflection of the work performed by Ms Jones.5

[12] Again it would seem that this PD was not accepted by senior management. Mr Doyle said that the various duty statements presented "are contested by the employer and should be treated as in dispute ...".6 It is not however clear what aspects of the draft PD were in dispute nor does it seem that the employer at any stage put forward an alternative PD. It was also common ground that Ms Jones' role was unique within the Parks and Wildlife Service and that there was no other position from which a meaningful comparison could be drawn.

[13] The employer submitted that it was up to the Head of Agency to determine duties and assign classification levels in accordance with s.34 of the State Service Act.

[14] Whilst this is true I would make the following observations.

[15] Firstly the assignment of classifications must be in accordance with award requirements [s.34(d)(i)].

[16] Secondly, in the absence of a clearly defined PD, the work actually performed by the employee and accepted by the employer becomes of paramount importance.

The Award Criteria

[17] The relevant award is the Professional Employees Award.

[18] Clause 8 - Salaries defines the relevant levels as follows:

"Level 2 Classification Standard:

Under broad policy control and direction, a senior professional practitioner who performs novel, complex or critical professional work, or performs a limited range of the duties of professional manager or professional specialist with general professional guidance. The work includes the formulation of professional or policy advice for senior management and may involve provision of such advice to senior executives in other Agencies, the private sector and the wider community. Normally there is limited corporate effect at this level as technical advice is often reviewed by more senior employees. The work includes the role of team or project leader requiring the co-ordination of the work of a number of professionals and/or other personnel who will not necessarily be in the same work discipline as the leader. Employees at this level may oversee the operation of a section comprising professional and/or technical personnel engaged in field, laboratory, clinical, production or operational work which may be organized on a geographical or functional basis.

Employees at this level are expected to have wide experience in their professional fields. They perform a variety of tasks of a novel, complex or critical nature, either individually or as a leader or member of a team. Direction is provided in terms of a clear statement of overall objectives with limited direction as to work priorities. A professional at this level working as a member of a team will have the skills and experience necessary to perform all the tasks undertaken by the team or to have the knowledge and judgement to seek and use specialist advice when it is required. Specialists require substantial or higher knowledge in a particular discipline or field and the exercise of independent professional judgement to resolve complex problems and issues."

"Level 3 Classifications Standard:

Under broad policy control and direction, a senior professional practitioner or a professional manager or a professional specialist. The work contributes directly to the formulation of Agency policies for the work area and requires an understanding of the wider policy and strategic context. Technical or professional advice given generally has consequences beyond the immediate work area and is normally only reviewed for policy and general approach. The work has moderate corporate effect and is performed under broad direction in terms of objectives, policies and priorities. Programs, projects, assignments or other work are generally determined by higher-level management but at this level authority is given to decide how to achieve end results within the limits of available resources. Decisions at this level have direct consequences on the achievement of results for the function or group of activities for which the employee is responsible. Employees are expected to have extensive experience in their professional field and to perform a range of tasks in the absence of general professional guidance.

A senior professional practitioner operates in the absence of general professional guidance and is expected to apply significant professional knowledge and judgement in one or more professional disciplines or fields in relation to more novel, complex and critical work. A senior professional practitioner need not necessarily be supported by other professionals.

A professional manager leads and directs an organisational element or team of professionals and other staff requiring considerable co-ordination, and is responsible for human, physical and financial resources under the control of the position. The units or teams may comprise professional and other personnel in field, laboratory, clinical, production or operational work and which may be organized on a geographical or functional basis. The management role may require professional leadership and direction over subordinate personnel including supervisors, and involves setting standards for, evaluating the performance of and interpreting policy relevant to the work area, and may involve resolving more complex technical or professional problems.

Professional specialists at this level exercise a high degree of independent professional judgement in the resolution of more novel, complex and critical problems or issues. They are required to provide authoritative technical or policy advice which draws on in-depth knowledge in a professional or technical field or discipline. Analysis, design and interpretation of research or investigations represent authoritative and final professional conclusions. An original and continuing contribution to the knowledge in the relevant disciplines or fields and the application of that advance in knowledge to the organization's work would be expected."

[19] It seems to me that the key requirements at Level 3 over and above that of Level 2 can be summarised as follows:

• The work contributes directly to the formulation of agency policies and requires an understanding of the wider policy and strategic context.
• The work has moderate corporate effect.
• The work is only reviewed for policy and general approach.
• Programs, projects etc are determined at a higher level with authority to decide how best to achieve end results within the limits of available resources.
• Professional specialists exercise a high degree of independent professional judgement and provide authoritative technical or policy advice. They also make an original and continuing contribution to the knowledge in the relevant discipline and apply that advance to the organization's work.

The Evidence

[20] There was a considerable amount of evidence relating to papers, publications and presentations authored by Ms Jones. Whilst this is evidence of high-level personal professional development, I accept Mr Doyle's submission that such publications produced prior to 2000 were not a requirement of the agency and, as such, are not relevant to this application.

[21] It is accepted by all that in the period 2000 to 2004 the core task of Ms Jones related to the preparation of the report. Ms Jones did perform other duties from time to time, but they were not material to this application.

[22] Ms Jones described the report as follows:7

"A16, the State of the Tasmanian Wilderness World Heritage Area Report is a major publication in the land of - in the world of protected area management. What it does is it evaluates management effectiveness for the world heritage area under the first statutory management plan for the area, so it covered the period of about a decade and it provides a structured, evidence-based evaluation of management effectiveness for the whole area. This is the first time in the world that a structured evidence-based evaluation has been conducted for a world heritage area and probably for any protected area. Whilst there are many state of parks reports, the vast majority of those are opinion based or else collate existing information and present it in some fashion or other. This report has - is not only a report, it's actually the final delivery of a best practice adaptive management system for the world heritage area. That adaptive management system is delivered through the management plan for the world heritage area which sets out the objectives of what the - what it is intended to deliver by way of management outcomes over the period of the plan. This is part 2 of the management package which actually evaluates the extent to which those desired outcomes are actually delivered, so it's a structured, evidence-based evaluation."

[23] Ms McCuaig said that whilst a lot of people had contributed to the report, its conception was entirely that of Ms Jones, and had not been done before in the country.8

[24] Mr O'Loughlin said:9

"The report is a ground-breaking report. It hasn't been done in this shape or form connected to a management plan anywhere else in the world. It is extremely novel, extremely complex stuff to do. Whilst it does involve the capturing of data from a range of people and they provide raw data to the report, pulling that together and putting it in the right format, linking it to the objectives and the key desired outcomes in the management plan is all novel and complex and it is very hard in fact to achieve this sort of thing. A number of agencies have tried and a number have done it at lower levels looking at the actions for instance, in the management plan, whether they have been completed or not. But actually linking it through to the objectives, working out how you are going against them, whilst it is a critical thing for parks and management agencies to do it is very rarely done. So this is - it is ground-breaking in a world sense as well as a national sense that it has been achieved."

[25] Mr O'Loughlin observed that within her field, Ms Jones was more expert than anyone else in the Parks and Wildlife Service.

[26] Commenting on the impact of the report on the department, Mr Mooney said:10

"Oh, well, it'll be a very important component of a big tool box and the same as many other reports are and many other recommendations that come through other processes and it's just part of a jigsaw puzzle that will be piecing together the - do our whole program for the World Heritage area."

[27] Mr Mooney said that the level of complexity of the report was similar to two other reports tendered in evidence which had been prepared by PO1 officers.11

[28] In the Foreword to the report, Mr Rob Giason, Director, National Parks and Wildlife said:

"With this report - and its underlying management evaluation system - Tasmania has achieved a world first in providing a structured and evidence-based account of how management of a World Heritage Area has performed against its management objectives and the obligations of the World Heritage Convention - to identify, protect, conserve, present, transmit to future generations and, if appropriate, rehabilitate the World Heritage values of the property.

This report is expected to contribute to management excellence for the Tasmanian Wilderness World Heritage Area by:

- guiding ongoing management directions and priorities for the Tasmanian Wilderness World Heritage Area to better achieve objectives and deliver desired outcomes;

- providing managers and other decision-makers with a sound information base to support adaptive management;

- providing transparency in management and providing all stakeholders with ready access to detailed accurate information about management matters;

- contributing to informed public involvement in management of the TWWHA."

[29] Mr Doyle acknowledged that the adaptive management framework was a new approach in terms of protected area management, but said, "it is very much the application of a continuous improvement model well tried and tested in other organisations".

[30] Mr Doyle also said that it was the department's contention that performance evaluation is not a professional discipline, or major branch of a professional discipline, within the context of the award definitions.

[31] This latter contention does not sit comfortably with the comments of Mr Mooney in his then capacity of Manager, Planning and Visitor Services when he recommended a MRDA at PO2 level:12

"Glenys has been a specialist required to have substantial or higher knowledge of a particular discipline in the field of monitoring and evaluation."

[32] In the circumstances I am prepared to accept that Ms Jones is a professional specialist and that performance monitoring and evaluation is a professional discipline or branch of a discipline. The question to be determined is the appropriate level.

[33] In May 2003 Ms McCuaig and Mr O'Loughlin undertook a detailed "job analysis" of Ms Jones' position which included testing her duties and responsibilities against the award definitions at the various levels.13 This latter evaluation found that Ms Jones, in all relevant instances, either met, or in some cases exceeded, the requirements for a PO3.

[34] Ms McCuaig also gave evidence in relation to what she considered to be examples of "authoritative and final professional conclusions"; "authoritative technical or policy advice drawing on an in-depth knowledge"; and "an original and continuing contribution to the knowledge in the discipline and the application of that advance in knowledge to the organisation's work".14

[35] By contrast the department tendered a "work value analysis" (presumably prepared by the HR section), which ranked each chapter of the report at either PO1 or PO2.15 Mr Mooney indicated that this analysis represented an accurate reflection of management's assessment of the work value of Ms Jones' position.

[36] There was a considerable amount of evidence relating to the attendance of Ms Jones at various international forums and conferences. Mr Doyle submitted that in most cases Ms Jones attended by invitation and was externally funded. This, Mr Doyle said, should be seen as professional development and was not in itself justification for a higher salary. He said:16

"There is no requirement in the selection criteria to be an expert at a high level ... there is no requirement to be a national or international expert."

[37] There is some force in Mr Doyle's contention in relation to participation in international forums. It would however be an oversimplification, and indeed unfair to dismiss out of hand the relevance of this work and the standing the report appears to have both nationally and internationally.

[38] For example, the attendance of Ms Jones at the 2003 IUCN World Parks Congress was a consequence of a competitive selection process and funded by the department.

[39] The following extracts from the Minute to Minister signed by the then Department Secretary Jeff Kelly provides an authoritative insight into the department's view of the importance of the report and the attendance of Ms Jones at the conference:17

"Ms Jones has been responsible for developing the system of evaluation that is now integrated into the 1999 management plan for the Tasmanian Wilderness World Heritage Area (TWWHA). This system provides a structured process for monitoring, evaluating and reporting on the effectiveness of management in achieving its objectives and delivering desired outcomes.

The findings are to be reported in regular (5 yearly) State of the Tasmanian Wilderness World Heritage Area Reports. The 2003 World Parks Congress provides a unique opportunity to showcase Tasmania's evaluative management system and to present the first State of the Tasmanian Wilderness World Heritage Area Report which will be published just prior to the Congress.

These reports provide managers and other decision-makers for the TWWHA with a more informed basis for decisions. The first report presents the findings of evaluation under the first management plan for the TWWHA and establishes the platform for evaluating management effectiveness under the current (1999) management plan.

The system of evaluation that has been developed for the TWWHA is recognised as being at the forefront of world practice of protected area management. For example, a paper describing the evaluative management system for the TWWHA has been published in an international series of best Practice Guidelines in Protected Area Management.

More locally, the evaluative management system developed for the TWWHA has gained strong support from key stakeholders, including:

- the World Heritage Area Consultative Committee (e.g. the Chairman recently wrote to the Premier commending the draft State of the Tasmanian Wilderness World Heritage Area Report and urging its prompt publication and promotion);

- the National Parks and Wildlife Advisory Council (e.g. the Chairman has indicated that the Council wants to see the system of evaluation developed for the TWWHA extended to cover the whole State's national park system); and

- Environment Australia has strongly supported the evaluative approach applied to the TWWHA."

[40] These observations of Mr Kelly are consistent with the considerable body of evidence relating to national and international endorsements and the impact the report has had on protected area management elsewhere.18

[41] A major point of contention was the degree of supervision applied to the work of Ms Jones.

[42] Mr Mooney said:19

"What is your understanding of how the information contained in the report was put together? What did you understand Glenys Jones' role was to be in the production of the report?---Well, basically it's I suppose the author's like a co-ordinator and a gatherer of information and I mean Glenys has done a fantastic job in seeking out all sort of best principles and practices world wide for such a process and it's put together a very glossy document but at the end of the day it is gathering intelligence from all sorts of quarters throughout Tasmania, Australia and the world on the best way to go about doing the particular business of natural area management.

In the time that you were the manager of policy and planning for a two-year period, which would have covered a significant period of the report's production, what did you understand to be the role of the planner, World Heritage area, and the senior planner in terms of production of the report?---Well, those two positions which were held by Annie McCuaig and Tim O'Loughlin, were basically to assist Glenys in determining the content and format and to provide professional advice in general for the production of the report. So it's basically on a team process, providing a lot of support and they had regular meetings I believe.

And what was the nature of - that you understand consultation took place with other contributors to the report?---Well, on a similar basis as I've previously mentioned. I mean, Glenys would have sought out all sorts of people with expertise in particular disciplines to assist in putting together the report and best practice on how we should go ahead in managing and evaluating and monitoring the World Heritage area."

[43] Mr Doyle said:20

"The department contends that the work was done in close and collaborative fashion supervised under professional guidance or broad policy and direction by Mr O'Loughlin and the senior planner, Annie McCuaig."

[44] Under cross-examination Ms McCuaig21 said:

"Yes, it was really feedback on what she had provided so she'd taken the initiative. But that was the case, I mean, remember this is around 200 so Glenys has had quite a few years in being familiar with this area, so we left it up to her to work out the different components of the report. But, you know, she - we've always worked very closely as a team and she valued our contribution, but more or less value-adding rather than saying, "Oh, you must do that, you must" - you know, so I mean, sure, it was supervision but it was reactive in that sense, I mean, but we did - certainly we tried to work with Glenys to help with the time-frames and, you know, we tried to, you know, to help if it looked like things were taking longer than necessary, but generally it really came back to her to do most of the work, nearly all of the work."

[45] And later:22

"Did I understand you correctly in that you were saying that yours and Tim's oversight and review of the documentation that was being presented was more along the lines of the process of production, the layout, the clarification of language and such issues rather than the scientific and professional content contained in it?---Oh, largely, I mean, we may have commented on, you know, on whether something was appropriate, or not, but it was largely - largely cosmetic. It was largely to do with whether people could understand what was being said and, you know, whether things were being expressed, you know, clearly, and questions, so it was largely to help the reader, you know."

[46] Subsequently Ms McCuaig provided the following written clarification:23

"To clarify

Project reviews were conducted with Glenys, Tim and myself. My involvement was limited in the initial stages, however as the project advanced I was more involved. The project reviews were initiated by Glenys or Tim and myself and were opportunities to review and provide constructive criticism and advice on content and presentation of the work, discuss outstanding tasks and resource availability and generally facilitate progress of the project, particularly in the latter stages when various approvals were required. These meetings were not used to instruct Glenys about how to prepare the STWWHA report. They were principally focussed on providing feedback to Glenys on what she had done or was considering and discussing this together. These meetings always covered the timeline for completion and how this could best be achieved.

Final comment

Since the late 1990s Glenys has been required to work principally in the area of monitoring and evaluation. Because of the scope of the project she was assigned her work has moved away from that usually done by other planners in PWS. She has become a specialist in monitoring and evaluation for park management effectiveness, particularly in relation to the TWWHA. Glenys is the only person working in this area in PWS. As a result of her work she has become recognised as a national and international expert."

Internal Relativity

[47] Mr Doyle submitted that in an organisational context, recognition at a PO3 level would be inappropriate in that it would be equal to or higher than positions to which she reported. Two position descriptions prepared in 1988 and 1993 were tendered to illustrate this point.24

[48] Mr Doyle said:25

"The comment that the department seeks to make in this regard is that broadly whilst it's not seeking to establish comparative wage justice in this particular case, for the benefit of the Commission these job descriptions are indicative of work value within the way the State Service has operated professional officer award and classification systems, and should be used as a frame of relative reference in assessing the work value that's been advocated in respect of the work undertaken by Glenys Jones."

[49] Mr Miller rejected this contention as nothing more than an exercise of comparative wage justice; a concept he submitted had no place in contemporary wage fixation. Noting that there had been no review of planning positions since the 1996 translation process, Mr Miller submitted:26

"We reject any concept in this instance of internal comparison or the obnoxious inference that an application in the fair and - that application of fair and reasonable way of the award standards should be compromised by any existing hierarchical structure. If and only if - and that may be a long bow - a substantive post is created at level 3 for the work that Ms Jones has been undertaking, then there exists means to correct any anomaly which may or may not be created."

Findings

[50] It is not difficult to understand that, from the employer's point of view, internal relativity is an important consideration in an organisational sense. However internal relativity is only relevant to a consideration of this nature if two elements are present.

[51] Firstly the Commission must be satisfied that the positions used as a benchmark have been properly assessed in terms of their standing in the award classification structure. In this case there is no evidence of any review post the 1996 translation process. The work of the other positions is not before the Commission and in such circumstances it would be unsafe to assume that they are either correctly or incorrectly classified.

[52] Secondly there would need to be a clear and current position description for the position under review. In the instant case that does not exist.

[53] It follows that the only consideration open is to test the duties and responsibilities of Ms Jones against the award classification definitions.

[54] In 2000 Ms Jones was tasked with producing the report. Beyond the regular project review meetings with her line managers, there is no evidence of any directions given as to how the report was to be written and/or structured. In the field of performance management and evaluation, the uncontested evidence is that Ms Jones has a higher level of expertise than anyone else in the department.

[55] The report has been variously described as groundbreaking, a world first and at the forefront of world best practice for protected area management. Given the diversity of areas from where the endorsements have come, including the department itself, I accept that these descriptors are an accurate reflection of the quality of the report.

[56] The question to be determined is the level of contribution of Ms Jones to the report.

[57] It would seem that the employer's view is that Ms Jones' role was essentially that of coordinating editor, with much or all of the high level work being performed by others.

[58] On the available evidence I have concluded that Ms Jones' role went well beyond the perception presented by the department. On the evidence of Ms McCuaig and Mr O'Loughlin, I am satisfied that apart from issues of resources and timelines, the level of supervision was in the nature of periodic constructive feedback and suggestions rather that any sense of direction as to how the report was to be produced.

[59] I am also satisfied on the evidence that the work of Ms Jones contributed directly to the formulation of agency policy and at the very least had a moderate corporate impact.

[60] Further, I am satisfied that Ms Jones exercised a high degree of independent professional judgement and has made an original and continuing contribution to the knowledge in the relevant discipline which has in turn been applied to the department's work.

[61] I conclude that the role performed by Ms Jones in the production of the report sits comfortably with the definition criteria applicable to a Professional Officer Level 3 and I find accordingly.

[62] No evidence was provided as to Ms Jones' role since the completion of the report and accordingly I make no finding in respect of work performed subsequent to the publication of the report.

ORDER

Pursuant to s.31 of the Act I hereby order that Ms Glenys Jones be paid a More Responsible Duties Allowance equivalent to the difference between her substantive position and the salary applicable to a Professional Officer Level 3, less any amount already paid by way of a Higher Duties Allowance or MRDA. Such allowance is to be paid for the period 20 September 2000 until the date of publication of the report.

The parties are directed to confer as to the calculation of the allowance with leave to apply in the event of a need to settle any differences.

The file shall remain open until the applicant advises that the matter has been finalised.

Tim Abey
COMMISSIONER

Appearances:
Mr R Miller for The Community and Public Sector Union (State Public Services Federation Tasmania) Inc.
Mr K Doyle for the Minister Administering the State Service Act 2000

Date and Place of Hearing:
2004
September 2, 28
October 19
November 1
Hobart

1 Exhibit A8
2 Exhibit A1
3 Exhibit A2
4 Exhibit A13
5 Transcript PN 430
6 Supra PN 851
7 Supra PN 268
8 Supra PN 419
9 Supra PN 543
10 Supra PN 715
11 Supra PN 741
12 Exhibit A8
13 Exhibit A11
14 Transcript PN 419, 420
15 Exhibit R1
16 Transcript PN 851
17 Exhibit A15
18 Exhibits A26, A28, A29, A30, A31, A32, A33, A39
19 Transcript PN 717 to 719
20 Supra PN 851
21 Supra PN 462
22 Supra PN 493
23 Exhibit A38
24 Exhibits R4 and R5
25 Transcript PN 901
26 Supra PN 1069