T12383
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Stephen Tsung and Minister Administering the State Service Act 2000
Industrial dispute - alleged breach of award - application dismissed REASONS FOR DECISION [1] On 3 November 2005, Stephen Tsung (the applicant), 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 an alleged breach of award or registered agreement. [2] The matter was listed for hearing at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on Tuesday, 22 November 2005 at 9.30 am. [3] The applicant was appointed to the incumbent position initially in 2001 on a temporary basis. In 2002 he was appointed to the position of Accountant (No.355130) on a permanent full-time basis. The applicant claimed he was required to perform tasks beyond the classification of his incumbent role. He applied for his role to be re-classified to a Level 10 in December 2004. [4] Over a period of time the Statement of Duties of the incumbent position was re-written by the Minister to, in the Minister's view, more accurately reflect the activities of the position. The applicant argued against the revised Statement of Duties claiming the position was being downgraded. The level of the revised Statement of Duties for the position of Coordinator, Collection Services (No.355130) was assessed and again classified as a Level 7 of the Administrative and Clerical Employees Award. In his statements before the Commission the applicant accepted the revised position was a Level 7 because, in his view, the position had been downgraded. [5] The applicant asserted the situation of allegedly working at a higher level applied from his full-time appointment on 13 March 2002, to the date when the classification for the revised Statement of Duties for the position was confirmed on 24 August, 2005. [6] The Minister disputed this assertion. The dispute went before the State Service Commissioner on two occasions. The matter was not resolved. At the State Service Commissioner's suggestion an application was made to this Commission. The applicant claimed the Minister breached the Administrative and Clerical Employees Award by classifying the position of Accountant (No.355130) at Level 7, rather than of Level 10, the reason being the level of developmental and project work, he alleged, was an integral component of the basic role. [7] The Minister asserted throughout, all the duties the applicant was requested to perform fell within the job classification of Level 7. LIST OF THOSE WHO GAVE EVIDENCE [8] Neither the applicant nor persons representing the Minister chose to give sworn evidence, but relied on their written and oral submissions. There was no cross-examination, only rebuttals by way of statement. [9] It was pointed out to both parties their submissions were awash with suppositions, hearsay, opinions and subjectivity. Much of the comment was unsubstantiated. Both parties accepted the Commission would adjudge the merit of the application on the information as presented before it. BACKGROUND [10] The applicant tendered a considerable number of documents in support of his claims. In the main they reflected his involvement in project work. [11] The applicant alleged the Statement of Duties for his position did not reflect the work he performed. [12] The applicant asserted the current accounting system, Fines Collection System (FCS), was not "fit for purpose"' and required his input at a high level of accounting skill to devise "fixes" to keep it functional. The Minister asserted upkeep of the accounting system was part of the basic accountant role. [13] The applicant submitted he had significant involvement at a professional level on the new MEPS project, which is to replace FCS. The Minister attested there was a formal MEPS Project team convened to execute the project, which included a number of senior departmental people, as well as a principal contractor and specialist consultants. The Minister's assertion, the applicant was not a member of the MEPS Project team, was not rebutted by the applicant. It was not contested the applicant had input to aspects of the project. The Minister asserted the particular project was managed such as to encourage input from a wide range of stakeholders, the input required of the applicant was no more than that expected of any stakeholder in general. [14] The applicant produced documentation, he asserted, which showed he was directed to participate in the MEPS Project by the department. It was asserted by the Minister that the applicant's inputs were considered, but the nature of the inputs were not sought by the department or relied upon by the MEPS Project team. [15] Documentation was also presented as evidence of meetings on the subject of the MEPS Project in which the applicant was involved. The Minister agreed the applicant attended regular meetings to discuss the MEPS Project. Other documentation was produced as evidence of the applicant's alleged design input to the Project (Exhibit A.4). The Minister asserted the documentation did not confirm the applicant's design input into the Project. [16] The Minister acknowledged the applicant had written a number of papers directed at the MEPS Project, but asserted he did this of his own volition. The applicant rejected this assertion. The Minister also asserted, the principal contractor in the design of the MEPS system did not rely on the papers provided by the applicant. [17] The applicant asserted he wrote the "blueprint" that had been adopted as the foundation for the new system design. The Minister refuted this. [18] The applicant equated his incumbent role to that of Financial Accountant in the Department of Training and Further Education (Exhibit A.14). The applicant claimed prima facie reading of his Statement of Duties corresponds to the attributes of Level 10. [19] The applicant asserted he had no assistance or supervision with regards to his day-to-day work or his Project work. He also asserted that he was the only person with an accounting background in the section, therefore could not be given professional supervision. [20] The applicant asserted the State Service Commissioner made supportive comments with respect to his claims. The Minister rejected this contention. The applicant educed no evidence for the claim. [21] The applicant asserted "development work" is not specified in the definition of Level 7, but was required of the job. [22] From the Macquarie Dictionary, the applicant sought to show that the meaning of the word "policy" was the same as "program", interchangeable. The applicant argued that the term " ...planning, developing, .... programs ..." in the Level 10 classification equated to "... develop, ... accounting policies ..." in the Statement of Duties for Accountant. The Minister rejected the relevance of such a comparison. FINDINGS [23] In determining a finding in this matter, resolution of several aspects is critical to the outcome. Emanating from the intrinsic requirements of the role: was the award breached at the inception of the Accountant position by categorizing it as a Level 7? What higher duty was the applicant directed to perform beyond the basic Statement of Duties for his position? Within the MEPS Project, did the applicant hold a significant and influential position? What Project outcomes was he responsible for? [24] The applicant's assertion the lack of "fitness for purpose" of the current accounting system necessitated a higher level of input than was expected of his incumbent position was not proven. I accept the Minister's claim; the upkeep of the system was part of the Accountant's role. [25] The applicant presented numerous documents in support of the assertion he had significant input into, and therefore responsibility for, aspects of the MEPS Project. In my view, the documentation provided by the applicant does not communicate the level of his involvement, nor his responsibility beyond that expected by nature of his incumbent accounting position. This view is further strengthened by the undisputed fact that the applicant was not a member of the MEPS Project team. [26] The applicant's allegation, his involvement in the MEPS Project was directed by Mr Seth Hills, relied on documentation depicting communications about meetings, outcomes of reviews and requests for responses. There is no indication of the applicant being directed, nor his level of accountability, nor his expected level of involvement in the documentation. In my view, the communications indicate a general engagement with the project, not specific accountability for outcomes. [27] The applicant's attempt to align his Statement of Duties with that of the Financial Accountant at TAFE, a Level 10, by selectively referring to phrases, but ignoring the bulk of the description, serves nothing for his application. The exercise he undertook to substitute words in the original Statement of Duty to align them with Level 10 attributes was of no value. [28] The applicant alleged the State Service Commissioner said, "If that is true then the statement of duties of January 2002 appear to be misclassified".1 I find no evidence in either of the decisions by the State Service Commissioner to that effect. [29] In support of his claims the applicant asserted he worked unsupervised because he was the only qualified accountant and no one could direct him professionally. Level 7 requires only general or limited supervision. The Minister asserted the departmental Assistant Manager provided the required level of supervision. I accept the Minister's position on this issue. [30] The Level 7 classification requires the incumbent to have "...proficiency in using established...accounting skills...". [31] In my view, the application of accounting skills would be expected to cover a number of aspects of the Accountant Statement of Duties such as: · Develop, document and maintain accounting policies and procedures ... · Train staff in accounting procedures ... · Ensure adherence to accounting standards · Assist with reporting · Liaise on financial issues ... · Assist in the development and testing of enhancements ...". [32] Level 7 also requires "...interpretation of policy and guidelines...". [33] This would apply to the requirement to: · Ensure system administration integrity ... [34] Level 10 demands considerable accountability, influence and impact on the business. The role of Accountant as performed by the applicant does not have such demands placed on it. [35] I find the classification of Level 7 for the position of Accountant as executed by the applicant is appropriate. [36] It is concluded by the Commission that no breach of the Administrative and Clerical Employees Award by the Minister has been found, and I so Order.
James P McAlpine Appearances: Date and place of hearing: 1 Transcript para 30
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