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TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
s.29 application for hearing of industrial dispute
David Arthur Shaw
(T12143 of 2005)
and
Minister Administering the State Service Act 2000
(Department of Infrastructure Energy and Resources)
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COMMISSIONER T J ABEY
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HOBART, 26 October 2005
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Industrial dispute - classification - progression to Level 2 - qualification barrier - policy position open to employer but unfair to apply retrospectively - order made
REASONS FOR DECISION
[1] On 27 June 2005, David Arthur Shaw (the applicant) applied to the President, pursuant to Section 29(1A) 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.
[2] When this matter came on for hearing (conciliation conference) on 11 July 2005 and for hearing on 10 August 2005, Mr Shaw was self-represented. Mr P Baker, with Ms K Dwyer, appeared for the Minister.
[3] Mr Shaw was appointed to the position of Technical Officer, Level 1 with effect from 2 April 1997. He was appointed to the third increment level, which, according to Mr Shaw, was recognition of his prior experience.
[4] Mr Shaw's letter of appointment required a six-month probationary period. He was confirmed as a permanent employee on 2 October 1997. His probationary report included the following comment under "Overall Assessment":
"Excellent overall start to his career with MRT."
[5] In subsequent years Mr Shaw was granted two further increments, which took him to the top of the Level 1 scale. He has not progressed beyond that point, which he asserts, in accordance with the award, he should have.
The Award
[6] The relevant award is the Technical Employees Award.
[7] Clause 8 Salaries relevantly reads as follows:
"8. SALARIES
(a) An employee appointed to a position classified under this award is to be paid at the salary rate applicable to the level determined by reference to the classification standards set out in this clause. Effective on and from 3 October 1996 the salary rate shown in Column B includes provision for the annualisation of the Recreation Leave Allowance.
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Salary per Annum
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Column A
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Column B
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Effective first full pay period on or after 1/7/96
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Effective on and from 3/10/96
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$
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$
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Level 1
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1st year of service
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2nd year of service
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3rd year of service
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4th year of service
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5th year of service and thereafter
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PROVIDED that an employee who has completed 12 months service on the maximum salary rate prescribed for Level 1 is to progress to Level 2, subject to the employer being satisfied that the employee's overall performance has justified the progression.
Level 1 classification standard:
Technical work requiring learning and application of conventional practices, methods and standards performed under detailed technical direction and close technical supervision.
This is the trainee level. During the learning phase the work given is consistent with the level of theoretical knowledge being gained by the trainee while undertaking appropriate course of study. Initially the work is limited in scope and complexity, but as knowledge and experience is gained the scope and complexity of the work is expanded. Detailed technical direction is given in all aspects of the work and close technical supervision is exercised over every phase of its execution. Minimum qualifications are:
Eligible for admission to the relevant course of study at a recognised TAFE institution;
OR
Relevant training and/or experience determined in accordance with the provisions of Section 37 of the Tasmanian State Service Act 1984 appropriate to the nature of the work.
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Salary per Annum
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Column A
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Column B
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Effective first full pay period on or after 1/7/96
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Effective on and from 3/10/96
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$
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$
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Level 2
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1st year of service
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2nd year of service
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3rd year of service
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4th year of service
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5th year of service and thereafter
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Level 2 classification standard:
Technical work requiring application of conventional practices, methods and standards performed under general technical direction and general technical supervision;
and/or
Complex technical work performed under detailed technical direction and close technical supervision.
This is the fully qualified technical practitioner level. The duties include ongoing technical work performed in accordance with conventional practices, methods and standards and comprehends adjustment, adaptation, interpretation or modification of those factors where necessary. Work may include technical application and administration of regulations. Work may be organised on a laboratory, field, office, geographical or functional basis, and may be performed in an individual or team situation.
Work may include or wholly consist of complex technical work.
Technical direction and/or technical supervision may be given to less experienced personnel in this level and/or to trainees. Minimum qualifications are:
An Associate Diploma from a recognised TAFE institution, or an equivalent qualification, appropriate to the nature of the work;
OR
Relevant training and/or experience determined in accordance with the provisions of Section 37 of the Tasmanian State Service Act 1984 appropriate to the nature of the work."
[8] It is common ground that Mr Shaw does not hold an "Associate Diploma from a recognised TAFE institution".
The Applicant's Position
[9] In summary, Mr Shaw relies on the following:
· The proviso in Level 1 provides for automatic progression to Level 2 after 12 months' service at the maximum Level 1 rate, "subject to the employer being satisfied that the employee's overall performance has justified the progression".
· The work he performs is consistent with definitional requirements of Level 2.
· He has "relevant training and/or experience determined in accordance with the provisions of Section 37 of the Tasmanian State Service Act 1984 appropriate to the nature of the work". Further, the Agency had the resources and expertise internally to make this assessment.
The Employer's Position
[10] The Agency did not put any submissions one way or the other as to the work performed by Mr Shaw.
[11] Mr Baker submitted that the Department's entire focus was on the need to obtain an external assessment in the nature of Recognised Prior Learning (RPL) as to whether or not Mr Shaw had the equivalent of an Associate Diploma. He said that the Department had made it clear that it would assist Mr Shaw to obtain this assessment including the payment of all costs, time off from work and clerical assistance. However, Mr Baker submitted that there needs to be some rigor applied to the process. He said:1
"Now, how do we - how do we as lay people assess that in Mr Shaw's capability? Do we simply accept the word of his immediate supervisor that he is working at the level? How does his supervisor know that Mr Shaw is performing the work at the required level? Is he a qualified assessor? Does he hold the necessary qualifications; or would be say to Mr Shaw's supervisor that you, sir, in conjunction with an appropriate assessor from TAFE, sit down and come to a conclusion for us as to where Mr Shaw sits in the scheme of things because it is not valid, it is not valid to simply say, "Well, thanks, Dave, for your presentation, here you are mate, here is your ticket."
That concept is no longer acceptable, it is not acceptable in the private sector and it is not acceptable in the public sector. Awards of this Commission - awards of this Commission in the private sector have provisions in there similar to what appears in this document. They talk or "or equivalent" and what does "or equivalent" mean? Or equivalent means that your competencies, your suite of competencies equate to the qualification that you seek to be recognised against.
And how do you do that? How do you do that? How do you assess that my qualifications equate to the national standard that I want to achieve. You seek somebody who has the experience, the knowledge and the competency to assess you against it because if you don't you do not get a consistency of outcome and one of the things that the Vocational Education and Training Sector in this country has achieved, after a decade of effort, is that we have national qualifications and it will be reprehensible to go back to a day where we had Sates who did their own thing and employers and employees who did their own thing because it fixed a problem on a certain occasion."
[12] The Department's position is clearly espoused in an internal e-mail from the HR section dated 19 November 2004:2
"The standard which has been applied is that to move from Level 1 to Level 2 is subject to the employer being satisfied that the employee's overall performance has justified the progression.
To meet this standard and enable progression from Level 1 to Level 2, employees must have commenced and completed the required course of study, or be able to demonstrate the appropriate skills and knowledge to the extent that TAFE is prepared to formally recognise the person has the relevant experience (in the form of awarding the appropriate qualification)."
State Service Act 2000
[13] Section 37(5) of this Act reads:
"(5) A person is not to be appointed as an employee or a permanent employee is not to be promoted unless he or she possesses such qualifications and meets such other requirements as are determined by the Commissioner as being required for the duties to which the appointment or promotion relates."
[14] Neither party produced any evidence or information as to the "qualifications ... determined by the Commissioner as being required ...."
[15] I find the State Service Act to be unhelpful in resolving this matter.
Incremental Progression Through Level 1
[16] On 24 March 1998 HR sent a memorandum to Mr Shaw's supervisor in the following terms:3
"This officer is due for an annual salary increment on 2 April, to the 4th year of service Level 1, Technical Employees Award.
Present Salary: $24,702
Proposed Salary: $25,345
Before the increment is paid, would you please comment on the conduct, diligence and efficiency of this officer and indicate your support or otherwise for the payment of the increment.
If payment is not supported would you please supply detailed comments. These should include recommendations for improving those aspects of the officer's training which are considered deficient. Please complete and return to myself by 30 March 1998."
[17] The Comments from the supervisor were as follows:
"David Shaw is very diligent and effective in his work. Keeps a good record of his work. I fully support the payment of this increment."
[18] A similar memo was sent in 1999.4 [19] The Comments on that occasion were as follows:
"Conduct, diligent and efficient; All satisfactory. Recommend increment be paid."
[20] This increment took Mr Shaw to the top of Level 1. He continued at this level for the next 12 months and thereafter. There is no evidence that the employer was anything other than satisfied with Mr Shaw's overall performance. Indeed in the copious material supplied by Mr Shaw, including his personal file, there does not appear to be any negative in relation to his work performance.
Duties Performed by Mr Shaw
[21] In a sworn statement, supported by extensive documentation, Mr Shaw presented evidence as to the nature of his duties over recent years. This included documentary evidence from Mr Shaw's supervisors, indicating that he was performing work consistent with a Level 2 Technical Officer.
[22] Mr Shaw submitted that just prior to the conciliation conference (11 July `05), his duties were altered to his prejudice by virtue of the employer insisting that he work at a Level 1 only.5
[23] The employer chose not to refute or support the material submitted by Mr Shaw, instead relying on the qualification barrier referred to above.
[24] It is common practice for government agencies to routinely assess duties performed against standards and descriptors appearing in award classification definitions. This case is no different. The Department clearly has the capacity and resources to assess duties (as distinct from qualifications) against the classification standards. They have chosen not to refute the evidence put forward by Mr Shaw.
[25] In the circumstances I am satisfied that Mr Shaw has performed duties consistent with a Level 2 Technical Officer throughout the relevant period.
Classification Structure Decision
[26] Mr Baker referred to the Full Bench decision of 29 November 1991.6 It was this decision that gave effect to the four occupational streams that underpin public sector awards.
[27] In relation to the Technical Stream, the Full Bench said:
"The TTLC proposed that Level 1, in the Technical Stream should apply to trainees and to unqualified employees, but that as a prerequisite such employees should possess the educational standards necessary for entry into a course of study leading to an appropriate qualification. The TTLC claim envisaged the automatic progression of trainees, once qualified, to Level 2.
The Minister also viewed Level 1 as a trainee level with automatic progression to Level 2. Minimum qualifications were seen as being `eligibility for admission to a relevant course of study at a recognised TAFE institution or relevant training and/or experience appropriate to the nature of the work as approved in accordance with Section 37 of the Tasmanian State Service Act 1984'.
We have decided to create a trainee level of five increments which will enable training in a relevant discipline to take place with automatic progression to Level 2 on the successful completion of the course. Entry point, and advancement within Level 1, will be determined by the employer subject to qualifications, experience and progress in the chosen course of study. Thereafter progress shall be by promotion only."
Findings
[28] Whilst on its face the intent of the Full Bench in T2399 appears reasonably clear, the award must be applied according to the words used. For some unexplained reason, the new structure did not find its way into the award until 1996.7 It was at this point that the proviso relating to progression to Level 2 appears for the first time.
[29] Arguably there is some conflict between this proviso and the qualification requirements for Level 2, although not necessarily so.
[30] It is important to note that the proviso requires the employer to be satisfied that an employee's overall performance justifies progression. There is no reference to the gaining of an appropriate technical qualification. Had the qualification requirement been an absolute prerequisite for progression, as might be inferred from the Full Bench decision several years earlier, it would have been a simple drafting task to incorporate this into the award.
[31] From the evidence tendered it would seem that Mr Shaw performed more than satisfactorily during his progression through Level 1. There is not even a hint of less than satisfactory work performance at any stage during his career. He attended all training courses required by the employer including at least one course at Swinburne University. In the circumstances he had every reason to believe he should have advanced to Level 2 in accordance with the proviso.
[32] Mr Shaw's letter of appointment made no mention of an Associate Diploma being a prerequisite for advancement to Level 2. Nor was it mentioned in his probation report, or two subsequent annual reviews, notwithstanding that HR memoranda made a specific reference to required training. It would seem that the qualification barrier did not surface until Mr Shaw raised the progression issue in either 2003 or 2004.
[33] The employer has chosen to insist on a RPL assessment from a qualified external provider. This policy position is entirely open to the employer (as would internal assessment if it so chose), and is consistent with the award structure. It must also be said that the Department has offered to go to considerable lengths to assist Mr Shaw "get over the line".
[34] In essence the Department is saying that for the employer to be satisfied that an employee's overall performance justifies progression (see proviso), then such employee must either hold an Associate Diploma or satisfy an externally provided RPL assessment. Such a policy position is entirely open to the employer.
[35] It would, however, in my view be unfair to apply the policy retrospectively.
[36] In Mr Shaw's case the critical date is 2 April 2000, i.e. after 12 months at the top of the Level 1 scale. Had he been told prior to that date of the qualification requirement, he could have made an informed decision as to the way forward. On the available evidence this barrier did not emerge until several years later.
[37] In my view the award should have been applied in the circumstances as they existed in April 2000, and on any reasonable assessment, Mr Shaw should have advanced to Level 2.
[38] I conclude that Mr Shaw should be advanced to the first year of Level 2 with effect from 2 April 2000, with subsequent incremental advancement in accordance with the award requirements. From this monetary calculation any amount paid by way of a More Responsible Duties Allowance is to be deducted. I so order.
Tim Abey
COMMISSIONER
Appearances:
Mr D A Shaw, self-represented.
Mr P Baker, with Ms K Dwyer, for the Minister Administering the State Service Act 2000
Date and Place of Hearing:
2005
July 11
August 10
Hobart
1 Transcript PN 435 to 437
2 Exhibit A1 tab 4 p. 30
3 Exhibit A1 tab 4 p. 44
4 Exhibit A1 tab 4 p. 72
5 Transcript PN 111 to 114
6 T2399 of 1990
7 T5741 of 1995
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