TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
s70(1) appeal against a decision

Minister administering the State Service Act 2000

and

Glenn E Gibson
(T13644 of 2010)

PRESIDENT T J ABEY
DEPUTY PRESIDENT N M WELLS
COMMISSIONER B DEEGAN
	
HOBART, 23 May 2014	

Determination of the merits of original application T13435 of 2009 as decision was revoked by the Full Bench without it determining the merits of the matter

Appeal - classification resolution dispute – translation process – classification descriptors – band 6 – band 7 – “best fit” – order issued

DECISION

Introduction

[1]	This is an appeal against a decision of Shelley DP in matter T13435 of 2009.  The matter before the Deputy President was an application pursuant to s29(1) of the Industrial Relations Act 1984 (the Act) in respect to an industrial dispute arising out of the classification review process prescribed in Appendix 1 of the Tasmanian State Service Award (the Award).

[2]	By majority decision handed down on 22 November 2010 the Full Bench upheld the appeal and revoked the decision of Shelley DP.

[3]	Mr Gibson unsuccessfully challenged the Full Bench decision before Blow CJ in the Supreme Court of Tasmania.

[4]	This Full Bench has been reconstituted to deal with the subject matter of the original application in T13435 of 2009.

Background to the Original Matter

[5]	On 29 April 2009, Mr Glenn Gibson (the applicant), applied to the President, pursuant to s29 of the Act for a hearing before a Commissioner in respect of a classification dispute with the Minister administering the State Service Act 2000 (the employer), the appellant in this matter.

[6]	Mr Gibson was seeking to have his substantive role of Manager, Technical and Systems Audit (TASA), within the division of Liquor and Gaming, (which is part of the Department of Treasury and Finance), classified at a band 7 as at 5 March 2009, rather than the band 6.

[7]	The original hearing of this matter took place before Shelley DP on 28 and 29 September and 1 October 2009.  Shelley DP’s decision, dated 19 January 2010, found that Mr Gibson’s position as Manager, TASA, was a band 7 classification.  The Deputy President, at [168], ordered:

“…pursuant to section 31 of the [Industrial Relations] Act, that the position of Manager Technical and Systems Audit be classified at band 7 of the Tasmanian State Service Award and that Mr Glenn Gibson be translated to band 7 of the Tasmanian State Service Award, effective from 5 March 2009.”

[8]	Subsequently, the employer appealed the decision of Shelley DP, citing some 16 grounds.  The Full Bench of the Commission comprising Leary P, Abey DP and McAlpine C (T13644 of 2010) heard the appeal and, on 22 November 2010, a majority decision of Leary P and McAlpine C upheld the appeal and revoked the decision of Shelley DP.  Abey DP issued a dissenting decision indicating a rejection of all but two grounds of the appeal, neither of which he considered fatal to the decision.

[9]	The applicant challenged the Full Bench decision by reference to the Supreme Court of Tasmania, pursuant to s72 of the Act.  That matter was heard on 2 May 2013 with Blow CJ concluding at 54 and 55 of his decision:

“54	A decision of the Full Bench could be quashed on the basis of unreasonableness under s72 in accordance with Associated Provincial Picture Houses Ltd v Wednesday Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, if it were a decision that no reasonable decision-maker could have made and therefore not a valid exercise of the decision-making power.  It was not argued that any of the asserted errors of the majority of the Full Bench, alone or in combination, warranted such a conclusion.

55	All of the grounds relied upon by the applicant failed.  None of the asserted errors of the majority of the Full Bench, if made, would warrant the quashing of the Full Bench decision.  I have therefore decided to dismiss the application.”

[10]	As the Full Bench decision in T13644 was untouched by the decision of Blow CJ, on 5 November 2013 the applicant, filed a fresh application (T14113 of 2013), pursuant to s29 of the Act, to have his classification translation dispute determined.

The Proceedings

[11]	The application in matter T14113 was allocated to Abey P.  The President subsequently referred the matter to a Full Bench, pursuant to s15(1)(b) of the Act, for the purpose of determining whether a valid application was before the Commission.

[12]	During a preliminary hearing, conducted on 20 November 2013, Mr P Turner, for the respondent in T14113, acknowledged that the Full Bench decision of 22 November 2010 in T13644 did not dispose of the originating matter T13435, which therefore remained extant.  Further, Mr Turner agreed that T13435 had not been considered and determined on its merits by the Full Bench.

[13]	The parties agreed that the appropriate course was to reconstitute the Full Bench in matter T13644 in order to determine the merits of that matter and on that basis, the applicant withdrew matter T14113.  Further the parties agreed that there was no barrier to Abey P being a member of the bench, notwithstanding that he was a (dissenting) member of the previous Full Bench.  The parties indicated there was no need for a further hearing of evidence, as a determination could be based on the material that was before Shelley DP in matter T13435; and further that Full Bench authorities relating to classification resolution disputes that had arisen since the earlier Full Bench decision, should be taken into account by the reconstituted Full Bench.

[14]	The President, pursuant to s15(f) of the Act, and by way of Record of Outcome dated 21 November 2013 in matters T14113 of 2013 and this matter, determined that the reconstituted Full Bench in T13644 would comprise Abey P, Wells DP and Deegan C.

[15]	Accordingly, we will determine the merits of T13435 on the basis of the evidence before Shelley DP and any Full Bench authority that has arisen subsequent to 22 November 2010.

The Classification Dispute

[16]	The background to Mr Gibson’s classification resolution dispute is conveniently set out in Shelley DP’s decision in T13435 at [4]-[10], which provide that as the Manager, TASA:

•	He has a team of five staff which are involved in accreditation and ongoing relationships with testing facilities relating to Betfair (a betting exchange) and gaming machines;

•	His position was created in 2006 due to the increasing complexity with the introduction of Betfair to Tasmania and was classified under the previous award (Administrative and Clerical Officers Award) at Level 9;

•	He was translated to the new Award, effective from 5 March 2009, at band 6;

•	He disputed the classification in accordance with Appendix 1, cl3 Review Process of the Award, stating that the work he performs best fits the level of band 7 within the Award.

[17]	The Statement of Duties (SOD) for the position held by Mr Gibson, provides for the following primary duties, level of responsibility, direction and supervision:

	“…primary duties include:

•	efficiently supervise designated resources and provide effective leadership within the work area to ensure that work objectives are completed in a timely manner and to a high standard;

•	developing guidelines, systems and procedures to ensure the timely and effective approval of technical equipment and other systems used in the delivery of gaming;

•	managing the development of systems for the monitoring and audit of gaming operations and the development and operation of standards and technical requirements;

•	regulating components of, and report on all forms of gaming covered by a Tasmanian Gaming Licence including betting exchange operations;

•	liaising with testing facilities, gaming equipment manufacturers, gaming operators, suppliers and software developers to manage the process of testing and approval of gaming equipment and systems and represent the Branch and the Department as required;

•	supervising, reviewing and reporting on the performance of testing facilities;

•	providing advice, reports and briefings to the Tasmanian Gaming Commission and the Department on technical issues relating to the security, fairness and ability to audit gaming equipment and gaming systems including the verification of gaming taxation and broader technical policy issues;

•	assisting other areas of the Branch in the formulation of gaming policy;

•	preparing high level correspondence including reports and submissions to the Tasmanian Gaming Commission and other bodies as required;

•	representing the Department of the Tasmanian Gaming Commission on working parties and other forums as may be required from time to time;

•	maintaining a network of peers and specialist contacts in the area of gaming equipment and system regulation;

•	developing a contemporary and productive work environment that fosters responsibility, accountability and improvement in meeting operational goals and objectives; and

•	contributing to the management of the Liquor and Gaming Branch through participation in the Branch planning process and monitoring and reporting on Branch performance, as determined.

Level of responsibility, direction and supervision
	The Manager, Technical and Systems Audit will operate with a significant degree of independence of action and autonomy in day to day activities and is accountable to management in terms of strategic direction and meeting objectives.  The Director, Liquor and Gaming will provide broad direction.  The Manager, Technical and Systems Audit may be required to provide authoritative specialist consultative or management advice generally or as it relates to a particular work area.  Delegations exercised at this level may include being the final authority in approving expenditure, undertaking specific policy action or reviewing previous actions or decisions.  The Manager, Technical and Systems Audit may also supervise a small team of employees, which involves technical or professional skill and judgement.”

Recent Full Bench Authority

[18]	It is relevant to note that, since the Full Bench originally determined in November 2010 to revoke the decision of Shelley DP, a more recent Full Bench, The Minister administering the State Service Act 2000 v Health Services Union of Australia, Tasmania No. 1 Branch [T14056 of 2013], per Abey P, Gay C and Deegan C, has considered the question of classification appeals.  The Full Bench decision arose from a classification dispute involving a Mr Norris, Manager within the Tasmanian Health Organisation South, (Norris).  The Norris decision dealt with the issue of the primacy of the SOD and the duties undertaken, and provided at [62]-[68]:

“[62]	The Deputy President’s observation in para 153 as to the primacy of the award over the SOD is the legally correct position. It is possible that the Deputy President and the appellant are slightly at cross purposes as to the issue in contention, but the legal and industrial integrity of the Deputy President’s comment is valid.

[63]	In para 154 the Deputy President correctly distinguished the high performing employee, who for reasons of their own act outside the requirements of the role, from the circumstance whereby the requirements of a role are not appropriately reflected in a SOD.

[64]	The latter situation is not unusual in our experience. SOD reviews can lag behind structural and vocational developments and advances in the workplace and it may take an event, such as a vacancy, to bring matters to a head. We readily accept, however, that given the structured rigor of the internal classification resolution process, including the notion of an agreed SOD emerging at the end of the process, that such events arising out of the current classification exercise would or should be rare.

[65]	Such circumstances cannot however be ruled out. Even with an ‘agreed’ SOD, the realities of the workplace might mean that an individual is required to work beyond the scope of the relevant SOD. If that was proven on the evidence, then it would be incumbent on the Commission to take that evidence into account.

[66]	A more likely scenario is that the words of a SOD may need clarification and/or interpretation. The evidence of Mr De Salis was “….because of the nature of the business it is difficult to determine in words what is required on a daily basis.”

[67]	The Deputy President observed in para 160:

“A SOD is a document that reduces an occupation to words (role, responsibility, and duties) and whilst they are important in the employer/employee relationship, they may not capture the entirety of the requirements of the role.”

[68]	We have no quarrel with this observation. On reflection we prefer the expression “the SOD is a pivotal document on which a classification is determined” rather than “the pivotal document” as stated by the majority in T13644 (our emphasis).”

[19]	Further, in Norris, the Full Bench went on to determine at [71]-[74]:

“[71]	There is no dispute that Mr Norris actually performs these duties. In our view they can be comfortably accommodated as a sub-set of the following expressions found in the SOD:

“Work as an effective member of the team by participating in departmental projects that will enhance business growth and quality assurance. 

Adhere to Agency procurement protocols and procedures.”

[72]	In our experience it is increasingly the norm, particularly for more senior roles, for SODs to be expressed in terms of broad responsibilities and objectives, rather than precisely identified duties.

[73]	We agree with Mr Jacobson’s observation to the effect that the duties of Mr Norris are captured within the existing SOD. (reference omitted)

[74]	The Deputy President’s apparent reliance on this aspect of Mr De Salis’ evidence was unnecessary rather than an error. There appears to be no dispute that Mr Norris did this work and it was tested by the Deputy President against the descriptors. Whether or not it specifically appears in the SOD is not material to the final outcome.”

[20]	Evidence elicited at the first instance hearing of the matter before us acknowledged that the SOD for the position of Manager, TASA was an agreed document which set out the actual duties and responsibilities; and further, that Mr Gibson’s duties aligned with the SOD.

[21]	We note the earlier majority decision in this matter stated at [107]:

“There was no evidence to show that Mr Gibson performed any duties outside the requirements of his SOD and this was agreed between the parties.”

[22]	Accordingly, this bench is required to interpret those duties in accordance with the evidence, apply the appropriate classification descriptors in the Award and the “best fit” test, having regard to the recent authority of Norris.

[23]	The description of “best fit” is found at cl1(a)(ii) of Part III – Classification and related matters of the Tasmanian State Service Award.  It states:

“The job components have equal weight or effect and no description within a component has more importance than another.  Some descriptors, however, are more relevant in describing different types of work than others, and therefore will have more influence in classifying that work.  Naturally, not each and every descriptor applies to any individual job.  These descriptors are appropriately used when particular job components and the overall theme or “feel” or a particular band provides the “best fit” to an employee’s duties.

In using the descriptors it is important to consider particular organisational arrangements, such as the reporting relationships above and below specifically assigned duties.”

[24]	The earlier decision in this matter determined that “best fit” had a similar meaning to the industrial term “major and substantial”.  Since that decision, the Full Bench in Norris has provided clarification on the interpretation of “best fit” when it said at [105]-[111]:

“[105]	The Deputy President referred to the majority decision in T13644 as this had been raised by the employer. The majority concluded:

	“[178]	…”We agree with the basic premise of Ms Fitton’s submission and consider that “best fit” has a similar meaning to “major and substantial” when it refers to the determination of a classification level.  Both mean that the classification level should reflect what work the employee is required to perform for the major part of his/her time at work and takes into account skills and qualifications necessary to do so.  It does not intend an exercise of cherry picking certain requirements and selecting the “best” to allow a favourable reclassification.  It does not take into account “one off” events such as special projects and short term events or matters already considered in the initial classification determination.  We are of the view that the major and substantial expression satisfies the overall theme or “feel” of a particular band.”

[106]	Noting that the term ‘major and substantial’ had not been raised in submissions before the Full Bench, the Deputy President proceeded to consider the authorities relevant to this expression. The Deputy President concluded:

“[183]	The term ‘major and substantial’ is an industrial test to determine the scope of award coverage.  I find that ‘best fit’ cannot have a similar meaning to ‘major and substantial’.  Clearly one deals with the application of a relevant award and the other deals with the assessment of a role within classification descriptors.

[184]	Having dealt with what ‘best fit’ is not, I now have to address the meaning of ‘best fit’.  A previous decision of Abey P (then Abey DP) accepted the argument advanced by Mr R Hitchcock representing MASSA (DHHS) as to the meaning of ‘best fit’:

		“Quantitative and temporal factors expressed as percentages or otherwise are relevant but not necessarily its sole determinant and picture.  I think it’s also worthwhile noting that the level of importance of the regularity of the task can be just as significant in terms of defining what a job is, as how often it is performed.

		I agree that this is the correct approach.”

[185]	I also agree with Abey DP in that approach.  The classification of a role cannot come down to a simplistic mathematical percentage; it must consider the importance of and regularity of a task performed by the incumbent.

-

[187]	‘Best fit’ must consider the importance of all tasks and the regularity with which they are performed as a requirement of the role.

[188]	In the terms of the approach above, ‘best fit’ can only mean the classification band must encapsulate descriptors which take account of the importance of all tasks or duties and not merely the regularity of performance of some of them.  ‘Best fit’ cannot simply propose that as only a small proportion of the role operates at a high level (i.e. expertise) that the role cannot be classified at a high level.  It must also take account of the importance of that part of the role.”

[107]	The appellant contends that ‘major and substantial’ is a valid interpretation of the meaning of “best fit” as it applies to an assessment of the most appropriate classification under the award. Further, it is submitted, the conclusion reached by the Deputy President is not consistent with the principles of award construction. The appellant does not, however, indicate why. 

[108]	The notion of ‘best fit’ is critical to the application of the award descriptors to any designated role. The majority in T13644 adopted the principle of ‘major and substantial’ without the benefit of argument from the parties. In the circumstances we consider that it was open for the Deputy President to consider the authorities relating to this principle.

[109]	The Deputy President’s analysis of the authorities was thorough and we agree with the conclusion in para 183 that the term is an industrial test to determine the scope of award coverage. We also agree that the expression should not be extended to ‘best fit’ as it applies in the award.

[110]	Had the parties to the award intended that the concept of ‘majority’ or ‘most’ was to apply, then they would have presumably adopted such an expression. Instead the parties chose the expression “overall theme or ‘feel’ …”

[111]	We agree with the Deputy President’s conclusions found at paras 185, 187 and 188.”

[25]	We will now deal with the merits of the case on the evidence in accordance with Norris.

Evidence in relation to the Classification Descriptors

[26]	Mr Peter Hoult was a witness for the employer and Chairman of the Tasmanian Gaming Commission.  He did not provide a written outline of his evidence, giving oral evidence only.  In our view the majority of Mr Hoult’s evidence is not relevant to the classification question, as can be seen from the following exchange on transcript:

“MS JACKSON:	And I believe I asked you before, would you say gaming is a specialised environment?

MR HOULT:	There are elements in gaming that are a specialised environment, yes.

MS JACKSON:	Would you say Mr Gibson’s role implements conventional plans, systems and procedures?

MR HOULT:	I’m not involved with Mr Gibson’s day-to-day work.  I think that’s a question best asked of his management.”

[27]	Where Mr Hoult’s evidence was considered relevant, we have considered it.

[28]	Part III of the Award at cl1 lists the classification descriptors.  Sub-clause (c)(iv) of that clause relevantly provides:

“(iv)	The General Stream descriptors define work in 4 broad levels according to the focus of the work and the framework in which it is performed. These are as follows:

….

(2)	Bands 4, 5 and 6

	Work involves the maintenance and modification of guidelines, systems and processes according to a defined policy and regulatory operating environment. The operating environment is Agency–specific in terms of organisational design, planning, structures and interpretation of government objectives. 

(3)	Bands 7 and 8

	Work involves the interpretation and modification of policy and regulatory settings according to operational requirements (internal – how we work) and service delivery (external - what we do) demands.  A broader whole-of-Agency and/or whole-of-government perspective.” 

[29]	Both parties are agreed that the duties undertaken by Mr Gibson are captured under the descriptors at band 6.  The question to be addressed with whether, under the test, do the duties of Manager, TASA “best fit” band 7?

[30]	Exhibit R3 is particularly relevant.  It is the Review of Classification Report conducted by the Department of Treasury and Finance and dated 26 March 2009.  The recommendation contained in that Report that “…Glenn Gibson be maintained at Band 6 of the Tasmanian State Service Award effective from 5 March 2009;…”  and was approved by the Head of Agency on 2 April 2009.  The Review of Classification Report stated that the position of Manager, TASA has a narrow focus and as such cannot be said to have a “broader whole-of-Agency and/or whole-of-government perspective”.  This point formed a major part of the appeal grounds.

[31]	The meaning of the word “broader” in this context was considered by Blow CJ in his decision reviewing the earlier Full Bench decision in this matter. Blow CJ said at [28] of his decision:

“…Clause 1(c)(iv)(3) of Part III of the new award contains a provision, in which there is no verb, to the effect that Band 7 work involves a “broader whole-of-Agency and/or whole-of-government perspective”.  No doubt the word “broader” referred to a comparison with work at Band 6 level and below…”

[32]	We agree with the Chief Justice’s interpretation of the word ‘broader’ in the context of the relevant award clause. In this respect we also note the evidence led by the employer at the first instance hearing.  Whilst the employer argued that band 7 positions within the organisation must have a role in both liquor and gaming, the evidence of the creation of a new TASA structure called Terrestrial and Internet Wagering and Gaming Team (TIWAG) and the creation of a band 7 role to manage that structure, (Manager, TIWAG) does not sit well with this contended position.

[33]	The employer provided a document setting out the background to the creation of the proposed new Manager, TIWAG position and the responsibilities that attached to that role.  The role was to be at band 7 and placed directly above the position occupied by Mr Gibson.  The document stated:

“The expansion of TASA towards TIW&G highlighted the need to provide operational regulatory and policy advice to the Tasmanian Gaming Commission and, indirectly, to the Government on a significantly expanded range of regulated entities.  In addition, the new regulatory arrangements add significant complexities to the existing issues experienced with terrestrial gaming and Betfair (in effect four different regulatory regimes compared with the previous two).  In order to manage the resourcing, regulatory, operational policy, and stakeholder management issues faced by the [expanding] TIW&G team, a Band 7 Manager position has been created to oversee the existing TASA stream as well as a new TOTE and corporate bookmaking stream.” (Our emphasis)

[34]	It is clear that the Manager, TIWAG role was focused only on gaming with no role associated with the liquor stream.  This was also confirmed in the evidence of Mr Gibson at hearing.  Accordingly, the employer argument that the words “whole-of-Agency” or “whole-of-government” precludes a position dealing only with gaming from being classified as band 7 cannot be sustained.

[35]	Having regard for the Chief Justice’s decision and the evidence in this matter we find that the cl(1)(c)(iv)(3) reference to “broader” refers to a comparison of the work of bands 7 and 8, as it relates to the work of bands 6 and below.

[36]	Relevantly, the Award provides for the following definitions for ‘activities’, ‘program’ and ‘function’:

“(d)	Activities

Work and actions of related fields that typically combine within a functional (Branch) or program area.

(e)	Program

	A program may stand alone or [be] located within a functional unit.  Typically involves related disciplines within a function of an Agency or related fields that range across functional areas.  May have a defined life span and/or includes a project.

(f)	Function

	A related and aligned area of activities combined to form a unit (typically a Branch) within the structure of a Division.”

[37]	We now consider the application of the Award descriptors to the evidence.

Summary of Differences Between General Stream Bands

[38]	Clause 3 of Part III of the Award deals with the differences between general stream bands and states:

“(f)	Difference Between Band 5 and Band 6

Band 6 work applies the decision-making framework (policies, rules and regulations) in support of program or service delivery of a defined field of activity, which may involve more than one discipline.  Considerable autonomy of approach in delivering outcomes and the advice and recommendations provided are regarded as definitive for that activity.

(g)		Difference Between Band 6 and Band 7

Band 7 work leads a complex activity or program unit requiring the development and/or determination of the operational methodology according to the decision-making framework and service delivery requirements.”

[39]	The Review of Classification Report prepared by the employer reproduces at page 2 the summary of differences between bands 5, 6 and 7.  The assessor stated:

“The Manager, Technical and Systems Audit role has increasingly had to operate in a more complex environment due to the regulation of Betfair, however, the position has a relatively narrow focus and does not have the breadth, span of control or responsibility for a range of related disciplines that a Band 7 position would be expected to command.  The Manager, Technical and Systems Audit is well aligned with the majority of the Band 6 descriptors, which fits the Award commentary in relation to “best fit”.  While the duties do align with some minor aspects of Band 7, within the expertise, interpersonal, judgement and responsibility for outcomes descriptors, the better overall fit is with Band 6.”

[40]	Having regard to the statement of the Chief Justice reproduced at [31] above and our finding at [35] above, the statement of “the position has a relatively narrow focus and does not have the breadth” is not determinative when considering the classification descriptors.  Consideration must be given to the wording of all the classification descriptors.  Other than cl1(c)(iv)(3) in Part III of the Award where the “whole-of-Agency” or “whole-of-government” words appear, there is no concentration on the ‘breadth’ of a role at band 7.  Indeed, the descriptors for band 7 within the Award anticipate a specialised focus:

•	“specialists involved with a specialised program”
•	“activities within a specified program”
•	“a complex specialised environment”
•	“specialised expertise in the relevant discipline”
•	“lead a defined complex activity or program…”

[41]	Mr Gibson manages a team of five people responsible for approving and monitoring interactive gaming and wagering and also the monitoring and approval of gaming machines and gaming machine games.

[42]	It was Mr Gibson’s evidence that as part of his role of Manager, TASA he is required to interpret and apply the Gaming Control Act 1993 (the Gaming Act) and conduct approvals for all gaming machines in Tasmania.  He said he is required to assess the testing reports and certification for machines and assess the features of a game.  When they contain a new concept or feature, he would write a paper detailing those aspects of the game and refer it to the Gaming Commission for approval.  He said:

“My delegation doesn’t stop me from doing it, but it’s important – because the Gaming Commission, being independent, gives gaming an air of authority, you know, and it’s important that it is separate from government.”

[43]	It was Mr Atkinson-MacEwen’s (Branch Head (Director), Liquor and Gaming) evidence that the other managers within Liquor and Gaming are classified at band 7 because they have a very broad focus, sitting across both liquor and gaming issues, and that they also have a slightly higher strategic approach to the issues that they manage.  He also stated that the Manager, TASA position was classified at band 6, the same level as the principal compliance officer for TOTE and corporate bookmakers.

[44]	The Review of Classification Report prepared by the employer acknowledges that at least some aspects of the role of Manager, TASA fall within the band 7 descriptors.

“Focus” Descriptors

[45]	The descriptors relating to “Focus” for the band 7 classification read:

“Work within a specialised program or engaged in complex activities within a functional area.  The work usually integrates varied and diverse organisational policies and rules with support systems and processes for effective operational outcomes.

Roles with a management focus, or specialists involved with a specialised program, lead an activity or program unit within a functional area.

A management role interprets policies, regulations and guidelines to determine milestones, objectives, methods and priorities to support complex activities within a specified program.

Specialists develop operational rules, guidelines and systems to achieve program objectives.  This may modify the approach to established processes within a defined policy, regulatory and operational framework.”

[46]	It was Mr Gibson’s evidence that in the two years preceding the first instance hearing, the TASA unit had written one hundred reports with recommendations for the Gaming Commission.  He stated that “… some of those 100 reports are not that complex, but a lot of them are and some of them are very complex” and “I’ve counted them up and out of the 100, there was 97 that were accepted”.

[47]	Ms Sawford’s (Executive Director, Revenue Licencing and Gaming Division) evidence supported this claim.  According to Ms Sawford “There are a lot of papers that go up, and while they might … deal with some rather specialised areas – I mean, gaming machine approvals isn’t something that’s – it’s a very specialised and particular area of expertise …, many of them are very straightforward…”.  It was also Mr Hoult’s evidence that the Manager, TASA provided “…reasonably specialist advice”.

[48]	Ms Sawford noted that the nature of the work of the Manager, TASA was similar to that of policy analysts in the financial policy branch (a band 6 classified position) in that they identify issues, gather information, analyse that information, develop options, identify solutions and make recommendations in relation to issues.  She claimed that the main difference is the subject matter of the investigations undertaken and that the Manager, TASA is providing a lot of recommendations through someone else to the Gaming Commission, with the policy analyst providing recommendations to the Treasurer.  Under cross-examination, Ms Sawford confirmed that the Manager, TASA also has management responsibilities for a unit which the policy analyst positions would not have.   We note that the SOD for the policy analyst position was not tendered in evidence by the employer.

[49]	Mr Gibson stated that his role involves handling complaints on the gaming machine side but also includes some 40 complaints in relation to the betting exchange, Betfair.  This was confirmed by Ms Sawford.

[50]	On the basis of the evidence provided by all witnesses we find that the duties carried out by the Manager, TASA is “work within a specialised program”.  Similarly, given that a ‘function’, is “a related and aligned area of activities combined to form a unit”, we find that the work carried out by the Manager, TASA is also within a functional area.

[51]	We also conclude that the position occupied by Mr Gibson involves a management focus, leads an activity within a functional area; is required to interpret policies, regulations and guidelines to support complex activities and to develop the operational rules (procedures manual), guidelines, and systems to achieve program objectives; and as such fulfils the majority of the “Focus” descriptors at band 7.

“Context and Framework” Descriptors

[52]	The descriptors relating to “Context and Framework” for the band 7 classification read:

“The work area unit or program activities have a direct and significant effect on organisational outcomes and the achievement of corporate objectives.

Established decision-making and operational frameworks may require considerable interpretation and initiative to provide effective program and service delivery outcomes.

A complex specialised environment implementing conventional plans, systems and procedures.  These evolve and are modified according to policy, regulatory and/or technological requirements and developments.

Guidance and instruction may on occasion be received on the implementation of highly technically complex modifications that provide solutions consistent with policy, regulatory and/or technological requirements and developments.

Operates with considerable autonomy and is required to provide leadership regarding the design, development and operation of function and/or program activities.

Defines core program and service delivery issues to develop options and recommendations for operational change and/or for new research projects.”

[53]	Mr Gibson’s evidence was that he had travelled to London in late 2005 to investigate a regulatory model to manage a betting exchange.  Within two weeks of returning from London he, together with another employee, completed the recommendations to establish a model for accreditation and a licence for Betfair in Tasmania.  He said Betfair received a licence to operate in Tasmania in early February 2006 as a consequence of the information gained during the investigation.  Under cross-examination, Mr Gibson confirmed that this work was undertaken in the role he held prior to the creation of the Manager, TASA role.  This evidence provides some background to the establishment of the Manager, TASA role.

[54]	During cross-examination, the following exchange took place with Mr Gibson in relation to the role of the band 6 TOTE position within TASA:

“MS FITTON:	And have there been any additional responsibilities particularly added to the role of Manager, TASA?

MR GIBSON:	What’s happened is that Betfair has continued to grow very rapidly, hence 100 pages.  So the complexity and the volume is continuing to increase all the time

MS FITTON:	And so you would agree that, and confirm for the commission, that a new band 6 with an almost, if not identical, statement of duties has been created and filled to take on the responsibilities of TOTE and corporate bookmakers?

MR GIBSON:	No, I would disagree with that, because it doesn’t have the same responsibilities; it doesn’t look after gaming machines; it doesn’t have the number of staff; it doesn’t do the standards; it doesn’t do the ATFs.  It’s got two people in it, and they’re asking me what to do all the time.  So, no, it has nothing like what I do.

MS FITTON:	Okay.  So that’s your opinion?

MR GIBSON:	That – very much.”

[55]	It was the evidence of Mr Atkinson-MacEwen that the Manager, TASA has responsibility for delegated powers under the Gaming Act to manage the approval processes for gaming machine games and the compliance processes around those.  In addition, he was responsible for regulatory compliance for Betfair, including approvals of system and product changes.  This supports Mr Gibson’s evidence on the number of changes that had occurred to the Betfair system since its inception.

[56]	It was the evidence of both Ms Sawford and Mr Atkinson-MacEwen that Mr Gibson, in his capacity as Manager, TASA, attended the National Standards Working Group for gaming.  Further, Mr Atkinson-MacEwen confirmed that on almost every occasion changes recommended by Mr Gibson to the national standards were accepted.  Mr Atkinson-MacEwen said the national standards working group feeds into, and is involved in, the harm minimisation strategies of the State Government.  He confirmed that Mr Gibson was part of a team that had developed the response to the harm minimisation strategy and that it was “very appropriate” for Mr Gibson to represent Tasmania on the National Standards Working Group.

[57]	The Review of Classification Report, when dealing with the “Context and Framework” descriptors, states at page 4:

“… the role does not have a ‘direct and significant effect’ on organisational outcomes or on the achievement of corporate objectives as the span of control operates at a lower level providing recommendations to the Tasmanian Gaming Commission through the Branch Head and Executive Director.  The extent to which the established decision-making and operational framework requires considerable interpretation was also questioned as the position operates within the auspices of the Act and under delegation with any exceptions or new developments being referred back to the Commission for approval.

…the position is not required to provide ‘leadership regarding the design, development and operation of function and/or program activities’ as the focus of the work is more narrowly defined and is also framed by the delegations and parameters provided.  Leadership regarding the design, development and operation of the function and/or program activities as envisaged in the Band 7 descriptors is also mainly provided by the Branch Head….  Similarly the more strategic recommendations for operational change and/or new research projects are not just the responsibility of the Manager position, for example, the harm minimisation guidelines are set by the Commission.”

[58]	The evidence at the hearing demonstrated that the position of Manager, TASA has an integral role in the whole-of-government harm minimisation policy and the process, to have the Gaming Commission approve the relevant guidelines.  In our view the Review of Classification Report does not sufficiently appreciate this part of the role.

[59]	The employer appears to argue that operating under “delegation” and referring matters back to the Gaming Commission, in some way lessens the authority or autonomy of the Manager, TASA.  In this respect we note that the evidence provided by Mr Gibson, was that he is able to exercise his delegation without reference to the Commission but that he interprets the information and the legislation and, where he believes it necessary and prudent, writes a report and recommendation for the Commission to allow it to make the final approval.

[60]	In this respect the employer again relies on its interpretation of the descriptors as not allowing for work that is “more narrowly defined” to meet the band 7 requirements.

[61]	Having regard for all the evidence, we find that the role of Manager, TASA has a direct and significant effect on organisational outcomes given that the position relates to the effective, and transparent, collection of revenue for the Agency.  Further, we find that the decision-making and operational frameworks of the role may require considerable interpretation and initiative; that the role operates with considerable autonomy; and is required to provide leadership regarding the design, development and operation of internet gaming and wagering and gaming machines.  The role is also, on occasion, subject to guidance and instruction on the implementation of highly technical and complex modifications.  This said it is noted that the Gaming Commission in most cases, make decisions based on recommendations provided to them by the Manager, TASA.

“Expertise” Descriptors

[62]	The descriptors relating to “Expertise” for the band 7 classification read:

“High level specialised expertise in the relevant discipline and associated field of activity gained through extensive experience.

High level knowledge of the operational and service delivery processes of government, the relevant technical, administrative and/or clerical discipline, field and program area, the relevant industry sector and the employing Agency and of the interaction between them.

Management roles require highly developed management skills and expertise to lead a defined complex activity or program within a functional area.

Roles providing technical or policy advice require highly developed expertise based on specialised subject matter knowledge.”

[63]	Mr Gibson said he rarely received direction from the Branch Head prior to writing a paper for the Gaming Commission; “That’s virtually never happened”.  Further, he stated that it is rare for the direction of the whole paper to be changed, although it had happened once.

[64]	Mr Hoult’s evidence confirmed the evidence of Mr Gibson:

“MS FITTON:	So do recommendations that you might receive from TASA ever get changed by the commission?

MR HOULT:	Yes, they certainly do.  Mind you, it’s not a thing that would happen often because I think I would regard that, if we were receiving papers which regularly required major change by the commissioner, I’d be a bit upset about the processes going on in the Liquor and Gaming Branch.  Because my belief is that the commission should be giving enough policy direction so that our wishes in matters are well understood…”

[65]	Ms Sawford claimed that she provides strategic direction to the Manager, TASA and that she does not hold qualifications of a technical nature which would enable technical advice to be given to Mr Gibson.  Ms Sawford claimed that the role is not technical in nature and that the incumbent only needs to have some degree of mathematical competence and to be able to use a spreadsheet.

[66]	Under cross-examination Ms Sawford said that TASA papers relating to gaming machines and gaming machine approvals are specialist and technical in the sense that they relate to a relatively narrow range of activity.  Further, Ms Sawford said:

“MS JACKSON:	So a proportion of the work at least then is concerned with translating what may be quite technical specialised information into information that people without that focus could then digest?

MS SAWFORD:	Yes.  It’s taking the technical reports and overlaying that with the Commission’s, I guess, standards and the outcomes it wants and being able to let the commission know whether their objectives are being satisfied.”

[67]	Ms Sawford stated:

“MS JACKSON:	And that those expertise aren’t widely available within the branch?

MS SAWFORD:	I’m not sure that I said that but I can’t recall whether I said that specifically, but it’s – the sort of expertise is not generally widely available in the community.  I’m not sure that I said that it was not widely available in the branch…”

[68]	In relation to the “Expertise” descriptors in the Review of Classification Report, the employer stated at page 4 to 5:

“While the gaming equipment side of the role is more straightforward it was recognised that there may, from time-to-time, be more complex matters that require a higher level of specialised expertise.  The Betfair activities that the role engages with are entirely new and generally unprecedented within Australia, however, wherever there is considerable ambiguity, for example, the Betfair starting price product, the matter is referred to the Commission through the Branch Head and Executive Director.

In assessing the role against the Band 7 descriptor it was considered that the narrow focus of the role limited the overall ‘fit’ as the position was not seen to require the wider umbrella of knowledge that is envisaged,…

The panel do not believe that the position content has the breadth of responsibility to align with the requirements of the Band 7 descriptor which describes typical responsibilities at the ‘program’ level.  To a minor extent the role may be regarded as overlapping with the Band 7 expertise descriptor in that the role could be said, from time-to-time, to provide ‘technical or policy advice requiring highly developed expertise based on specialised subject matter knowledge’”.

[69]	In our view the conclusions in the Review of Classification Report do not sufficiently recognise the specialist knowledge required to be exercised by the Manager, TASA in carrying out the functions of the position. Further, there is inordinate weight given to the ‘narrow focus’ of the role which is unwarranted given the band 7 descriptors.

[70]	Further, the employer’s submission that the “requirements” of the band 7 descriptor describe typical responsibilities at the ‘program’ level is not correct.  The relevant words are “Band 7 work leads a complex activity or program unit…” (our emphasis).  In our view the Manager, TASA role leads a complex activity.

[71]	We find that the role of Manager, TASA encapsulates all of the “Expertise” descriptors as provided at [61] above.

“Interpersonal Skills” Descriptor

[72]	The descriptors relating to “Interpersonal Skills” for the band 7 classification read:

“Leads and motivates to gain the co-operation of others in the achievement of difficult and sometimes conflicting objectives, which may include incompatible processes, in developing or implementing improvements to established plans, systems and procedures.

Manages staff and stakeholders and promotes co-operation, teamwork and understanding in undertaking specialised processes.

Develops productive relationships with specialists and stakeholders with similar levels of skill and experience in related field or program area to share ideas and to resolve problems.

Clearly articulates complex and difficult issues to staff and stakeholders in terms which are understandable by the audience.

Represents the organisation with the authority to conduct and commit to a negotiated outcome regarding operational processes for the area of responsibility and which may have operational implications beyond the functional area or program activity.

Models a high standard of ethical behaviour and promotes values and a workplace culture to support this standard.”

[73]	The evidence relating to this descriptor concerns management of staff, the National Standards Working Group and the stakeholder relationship responsibilities of the role of Manager, TASA.  There is no need to repeat the evidence relating to the National Standards Working Group.

[74]	According to Mr Gibson’s evidence he manages his four employees, supervising their performance and training.  He also seeks approval for his staff to undertake certain courses, due to the technical nature of their roles.

[75]	The Review of Classification Report of the appellant provides at page 5:

“In evaluating the position against the Band 7 descriptor the panel concluded that the position did not ‘lead and motivate to gain the co-operation of others in the achievement of difficult and sometimes conflicting objectives’ as responsibility for critical issues… would be referred to the Branch Head.  The Branch Head role would be expected to lead discussions with clients, at the request of the Commission, in relation to any concerns about proposals.

However, the panel concluded that the position does network with other specialists across Australia in order to share ideas and to resolve problems.  A further aspect of the interpersonal skills requirements of the role is the ability to articulate complex and difficult technical problems in ways that are understandable by different audiences, this includes not only stakeholders but also in some of the papers that are submitted to the Commission.

It was not, however, considered that the position has the authority to commit to negotiated outcomes that might have operational implications beyond the functional area or program activity…”

[76]	The evidence adduced at the hearing demonstrated that the position of Manager, TASA is required to interact with a cross-section of stakeholders including technical testing specialists, National Standards Working Group members, Commonwealth stakeholders, users of gaming machines and betting exchanges, owner/operators of the same and members of the Gaming Commission.  The employer relies (incorrectly) on the claim that it is a Branch Head’s role to “lead discussions with clients”.  The band 7 descriptors do not limit stakeholder management or relationships to clients.

[77]	The Review of Classification Report states that, in order to meet the band 7 descriptors the position is required to have authority to commit to negotiated outcomes that might have operational implications beyond the functional area or program activity.  In our view there is no requirement, based on the band 7 descriptors and the “best fit” test, for the role to have this authority.

[78]	By their evidence at hearing and the Review of Classification Report, the employer has conceded that a number of the “Interpersonal Skills” descriptors are met by this role of Manager, TASA.

[79]	We find that the position of Manager, TASA is required to lead and motivate, to gain cooperation of others to achieve difficult and sometimes conflicting objectives and to manage staff and stakeholders in relation to undertaking specialised processes.

[80]	We find the role of Manager, TASA fulfils the majority of the descriptors found under “Interpersonal Skills” within the Award at band 7.

“Judgement” Descriptors

[81]	The descriptors relating to “Judgement” for the band 7 classification read:

“Identifies, defines and develops options and recommendations to implement and improve the delivery of complex specialised programs and/or services within a functional area which may include responding to new and emerging developments.

Solutions are constrained by the existing policy and regulatory framework, budget and resource considerations and established program delivery methodologies.

Highly developed conceptual and reasoning skills to research, investigate, analyse, evaluate and integrate relevant solutions from related disciplines or fields into the area of activity.

Flexibility, creativity and innovation associated with research, investigative, analytical and appraisal skills.

Options provided and solutions recommended may require the development of new operational systems and methods for improved service delivery outcomes.

Alternative sources of advice may be limited within the Agency.”

[82]	Under cross-examination Mr Atkinson-MacEwen agreed that a person was required to exercise judgement to determine whether something fits the parameters of a delegated power but did not agree that there was any value in exercising such discretion:

“The reason I say that is that the Commission has an expectation that staff will understand the circumstances in which a particular delegation is issued, and that they will also understand that if they are in circumstances where something doesn’t meet the delegated authority, it must be referred up.”

[83]	Mr Hoult’s evidence also dealt with the powers delegated to the position of Manager, TASA.  Mr Hoult said:

“… I have always made it clear that where there is ever doubt in the mind of the person holding the delegations, they are to refer it back.”

[84]	Mr Gibson held 172 delegations with approximately 12 per cent of them having criteria, or some direction, around them, with the remaining delegations merely stating the section of the Act from which the power was derived.  It was his evidence that while he holds the delegations, no one would know whether a delegation had been exercised due to a change in record keeping processes which meant that no records of the exercise of delegations were now kept.

[85]	The Review of Classification Report at page 6 relevantly states:

“In assessing the role against the Band 7 descriptor it was recognised that the position holder is responding to new and emerging Betfair developments and is expected to generate options and recommendations to the Commission in relation to these new initiatives.  This is however, done within a set framework and while the papers that go forward to the Commission may deal with technical matters it does not mean that many are not straightforward…  This in turn limits the extent of the flexibility, creativity and innovation required in the role.  Furthermore the position is operating within a defined field of activity and not across a broader set of related fields as envisaged by the Band 7 descriptor.

While the position does, from time-to-time get involved in the development of new operational systems and methods for improved service delivery outcomes these are the exception and not the norm.  New operational systems are only generally required when there is a change in the regulatory environment and the developments would be carried out in conjunction with the Branch Head.

Due to the unusual nature of the Betfair operation alternative sources of advice are certainly limited within the Agency, which clearly links to the Band 7 descriptor.

On balance the panel formed the view that the Band 6 descriptor is a closer fit with the role, though in relation the latter points there was some minor overlap with the Band 7 descriptor.” (Our emphasis)

[86]	It is apparent from the requirements of the “Judgement” descriptors and the commentary in the Review of Classification Report that the position of Manager, TASA has more than a “minor overlap” with the band 7 descriptors.  Ms Sawford’s evidence confirmed that the role develops options and recommendations to implement and increase service delivery.

[87]	It was the uncontested evidence of Mr Gibson that he was required to prepare reports within existing policy and regulatory frameworks (some 100 reports over the two years preceding the first instance hearing).  Mr Gibson’s evidence noted that the recommendations of 97 of those reports were accepted by the Gaming Commission.  Accordingly, the specialist nature of judgement required as it relates to Betfair fits squarely within the band 7 descriptors as it relates to highly developed conceptual and reasoning skills and that alternate source of advice is limited within the Agency.

[88]	We conclude that the role of Manager, TASA encompasses the majority of the “Judgement” descriptors at band 7 level.

“Influence of Outcomes” Descriptors

[89]	The descriptors relating to “Influence of Outcomes” for the band 7 classification read:

“Advice and recommendations are provided directly to the manager of the function or program area and/or indirectly to the Head of Agency in relation to the management of the activity or program unit and development and/or implementation of new plans, systems or procedures.  Service delivery or program outcomes are altered.

There is a clear and direct effect on the effective and efficient operation of the function or program and on the implementation of government policy through program and service delivery outcomes.

Advice provided is authoritative, specialised, consultative and/or management advice to a particular program or range of activities.”

[90]	Mr Atkinson-MacEwen noted that the Manager, TASA and his staff had written the procedures manual for gaming machines and Betfair.  When asked about the effect of the work of the Manager, TASA on service delivery, Mr Atkinson-MacEwen said:

“Program Outcomes – I mean they have a – they will have an effect on service delivery in the sense of the delivery of the services in the TASA unit to the clients of the TASA unit, both internal and external clients, certainly.  At a program level and a broader strategic level, not necessarily, it really depends on the issue and how it has arisen and generally the focus of, or the impact of the decision making is on the client – if you like Betfair, or the gaming machine manufacturer, or the network gaming who want to install the game in hotels and pubs or whatever.  The broader program type impacts, as I say, tend to come out of the typical research and policy, broader strategic area of the branch.”

[91]	In her evidence relating to Mr Gibson’s role, Ms Sawford stated:

“MS JACKSON:	So it would be fair to say that he develops options and recommendations to increase service deliver?

MS SAWFORD:	Certainly.”

[92]	According to Mr Gibson he was involved in a consumer protection issue for gaming machine standards which involved representation from several other jurisdictions, including the Commonwealth.  In relation to the National Standards Working Party processes, he said that once the working party had agreed the changes that needed to be made to a standard, a new version is created.  That standard is then presented to the Gaming Commission, which is asked to endorse it.  Mr Gibson noted:

“As I said before, it’s important that it is done by the commission because they are independent, and not done by the government…”

[93]	In relation to these descriptors, the Review of Classification Report of the employer stated at page 6:

“In the context of the Band 7 descriptor, while the position would provide advice and recommendations to the Branch Head, the panel did not see an indirect link to the Head of Agency in relation to the management of a ‘program unit’.  It was also difficult to ascertain a clear and direct effect between the operation of the TASA unit and the implementation of Government policy although some indirect link to the Government’s Harm Minimisation Strategy or in the recommendation of taxation options and preferences might be identified.  Gaming policy is the responsibility of the Intergovernment and Financial Policy Branch through the Manager of the TASA unit, along with other parts of the Liquor and Gaming Branch, may provide feedback to ensure that policy can be ‘operationalised’.

While the position is involved in ensuring compliance with Government legislation and certainly has a strong advisory component it was regarded as being largely related to a narrow field of activity with a strong influence on associated program activities in the Branch…”

[94]	The Gaming Commission is the independent statutory authority for gaming in Tasmania.  As such it is the equivalent of the Head of Agency for the purposes of final decisions.  As can be seen from the emphasis above, the author of the Review of Classification Report has referenced the need for an indirect link to “management of a ‘program unit’”.  What appears to be unrecognised by this commentary is that the descriptors allow for an indirect link to “management of the activity or program unit” (our emphasis).  As such it is clear that the role of Manager, TASA does provide advice and recommendations to the manager of the functional area and/or indirectly to the independent Gaming Commission (our emphasis).

[95]	The Review of Classification Report recognises that the position has a role in the Government’s Harm Minimisation Strategy and in recommendations for taxation options and preferences.  On that basis we find that it has a clear and direct effect on the operation of the function, government policy and service delivery outcomes.

[96]	We find on the evidence that the advice provided by the Manager, TASA is authoritative and specialised, and is management advice on a range of activities.  As such we find the Manager, TASA role fulfils all of the “Influence of Outcomes” descriptors at band 7 level.

“Responsibility for Outcomes” Descriptors

[97]	The descriptors relating to “Responsibility for Outcomes” for the band 7 classification read:

“Responsible for efficient and effective program or service delivery including budget management, optimal use of resources and maintaining and/or modifying policy, administrative processes and research projects.  This includes planning future activities, negotiating for appropriate resources and determining measures for accountability.

Managers are accountable for managing the performance and development of staff.  Technical, administrative and/or clerical specialists are accountable for mentoring and role-modelling less qualified or experienced staff.

Considerable independence in determining priorities and approach to managing the activities of the program or unit.

Specialists are required to remain abreast of contemporary developments in the discipline or field and related subject matter.

Responsibility may be shared with relevant specialists and executive management for the development of strategy, policy or program implementation especially with regard to new developments.”

[98]	The evidence of Ms Sawford, the SOD and the Review of Classification Report all demonstrate that the Manager, TASA leads a unit and that the role has a large degree of independence and autonomy.  It is also agreed that the role is responsible for managing the performance, development and mentoring of TASA staff.

[99]	It was Ms Sawford’s evidence that the Manager, TASA develops options and recommendations to increase service delivery.

[100]	The Review of Classification Report provided at page 7:

“It was recognised that the position is responsible for managing the performance and development of staff, including mentoring.  However, in relation to the level of independence outlined in the Band 7 descriptor it was felt that the role was limited by the narrow focus of the unit and could not be described as being at the level of program or functional unit as described in the Award.  This suggests that a role would have responsibility for related disciplines or fields that range across functional areas whereas the Manager, Technical and Systems Audit has a much narrower focus, limited to two types of gaming operations.

The panel acknowledged that the Manager position would need to remain abreast of contemporary developments in the specific field, particularly in relation to the internet betting exchange operator, Betfair.  The role also networks with other interstate specialists in relation to the development of strategies, policies or program implementations, especially with regard to new developments, however, this is again within the delegations and parameters set up by the Commission and under the direction of the Branch Head and Executive Director.  The degree of independence exercised is limited in this way.”

[101]	Again, the employer has given undue weight to the alleged narrow focus of the position in order to make out an argument that the role is best fitted to the band 6 classification.  No regard is had for the nature of the delegations held by the position under the Gaming Act.  It was the unchallenged evidence of Mr Gibson that he has the power to make decisions under delegation, and that he uses his judgement and interpretative skills to determine that some matters should be referred to the Gaming Commission for their determination.

[102]	We note the SOD under the heading Level of responsibility, direction and supervision states:

“The Manager, Technical and Systems Audit will operate with a significant degree of independence of action and autonomy…”

[103]	Not only does the role of Manager, TASA have a shared responsibility with executive management for the development of strategy, policy or program implementation, but often the role provides specialist advice on such matters.  We accept that the role is not responsible for budget or resource management for the unit but note the evidence of Mr Atkinson-MacEwen that the other band 7 positions within the Liquor and Gaming Branch are also not responsible for these matters.

[104]	We are of the view that the role of Manager, TASA encompasses the majority of the “Responsibility for Outcomes” descriptors within the Award at band 7.

Other Matters

[105]	In the Norris decision the Full Bench dealt with the appellant employer’s submissions that the order issued by the Commission in the first instance was ultra vires as it was inconsistent with the powers granted to the Head of Agency in the State Service Act 2000 to allocate classifications to duties performed by a State Servant.

[106]	Relevantly s34 of the State Service Act 2000 provides:

“(1)	Subject to any Employment Direction, the functions of a Head of Agency are –

(a)	To ensure that the Agency is operated as effectively, efficiently and economically as is practicable; and

(b)	To determine duties to be performed by employees in that Agency; and

(c)	To allocate duties to positions in that Agency and to vary such duties; and

(d)	To assign a classification to duties to be performed in that Agency and to vary such a classification –

(i)	In accordance with award requirements; and

(ii)	In accordance with classification standards and procedures determined by the Employer or, where no such standards or procedures have been determined, with the approval of the Employer; and

(e)	To assign duties to each employee within that Agency and to vary those duties; and

(f)	 To ensure that the services of employees in that Agency are used as effectively and efficiently as is practicable; and …” (our emphasis)

[107]	Section 31(2) of the Industrial Relations Act 1984 reads:

“31.	Orders arising from hearings

…

(2)	A Commissioner shall not make an order under this section –

(a)	that is inconsistent with the provisions of any Act dealing with the same subject-matter; or

(b)	that makes an award or that varied or creates a provision of an award.”

[108]	Whilst s34 of the State Service Act 2000 provides for the Head of Agency to assign a classification to duties performed in a role, it only allows for such a classification to be assigned in accordance with award requirements.  Accordingly any findings that determine a position has been incorrectly classified must be based on the Head of Agency having breached those award requirements.  Shelley DP contained a technical error in that she did not direct the Head of Agency to assign the correct classification to the position of Manager, TASA.

[109]	The Full Bench in Norris found at [16] and [17]:

“[16]	We have some empathy with the sentiment expressed by the respondent.  Nonetheless, we accept the force of the appellant’s construction that individuals do not ‘own’ a position.  However to the extent that this constitutes a flaw in the Deputy President’s order, it is technical in nature and capable of remedy without altering the intent of the decision.

[17]	We allow this aspect of ground 1 on this limited basis.  Taken alone the ground is not of sufficient moment to uphold the appeal.”

[110]	We confirm that the findings in Norris reproduced above are relevant also in this matter and as such any order must reflect the relationship between the Act, the State Service Act 2000 and the Award.

Conclusion

[111]	It is the agreed position of the parties, and it was the finding of Shelley DP and this Full Bench (as currently and previously constituted), that all tasks and duties performed by Mr Gibson fell within the bounds of the SOD.

[112]	In the consideration of this classification dispute we confirm the findings of the Full Bench in Norris as it applies to the importance and interpretation of a SOD.

[113]	In light of the findings of the Full Bench in Norris relating to “best fit”, we have concluded that while not all of the tasks undertaken by the Manager, TASA are complex or specialised, a large number of them are, and the role is a “best fit” within the band 7 classification.

[114]	The employer contended in the initial stages of this appeal that there were difficulties with the weight afforded to the witness statement of Ms Sarah FitzGerald, which was tendered in evidence by the applicant at the first instance hearing.  We note that at the time this statement was tendered, Ms Fitton (for the then respondent), did not challenge the validity of the witness statement or to make any complaint about the fact that the witness was not available for cross-examination.  We have not found it necessary to rely on Ms FitzGerald’s statement in order to reach our conclusions on this matter.

[115]	Having regard to the findings we have made we conclude that the Head of Agency assigned the incorrect classification of the position of Manager, TASA, and taking into account our considerations at [105]-[110] above relating to the interplay of the Industrial Relations Act 1984 and the State Service Act 2000 and the power of the Head of Agency to assign classifications, we issue an order to correct this breach of the Award and the technical error of Shelley DP.

Order

Pursuant to the powers conferred on the Commission by section 71(13)(b) of the Industrial Relations Act 1984 WE HEREBY ORDER that with effect from 5 March 2009, the Head of Agency assign the classification of band 7 to the duties of the position of Manager, Technical and Systems Audit (Position No. 724014), within the Branch of Liquor and Gaming, Division of Revenue, Gaming and Licensing, in the Department of Treasury.

T J Abey
PRESIDENT

Appearances (appeal hearing):
Ms J Fitton, MASSA, for the appellant
Mr P Baker, MASSA, for the appellant
Ms K Martin, Department of Treasury for the appellant
Mr K Tyson, CPSU, for the respondent
Ms Sarah Smith, CPSU, for the respondent
Mr G Gibson, the respondent

Date and place of first hearing:
2010
June 7
Hobart

Note: no further appeal hearing was conducted and the merits of this matter were determined on the submissions and evidence available from the first instance hearing on 28, 29 September and 1 October 2009.