T16 - 11 February
On 18 October 1984, the Prison Officers' Association (P.O.A.) filed an application with the Public Service Board (P.S.B.) for a new Prison Officers' Principal Award. The application sought the new Principal Award from the day following the expiry of the present Award. Other claims were identified as: - (1) A review of the classification structure in respect of Prison Officers; (2) Any other matters which may arise during the course of the hearing. The matter was first listed before the P.S.B. on 13 November 1984. On that day Mrs. Herbert, for the P.O.A., indicated that she was not immediately seeking a new award. The primary aim of the P.O.A. was to process a work value claim for prison officers as expeditiously as possible. Following inspections, evidence and submissions, a decision on the work value claim was reserved on 20 December 1984. On 1 January 1985, the Industrial Relations Act was proclaimed, creating the Tasmanian Industrial Commission. The above facts mean that this has been an historic and, in many ways a unique case, warranting comment on some of the more significant aspects as follows: - (1) This was the last major case dealt with by the P.S.B. (2) While the matter was heard by the P.S.B., the decision is a decision of the Tasmanian Industrial Commission (the Commission) (3) The decision is the first by the Commission dealing with a major salary claim. (4) The proceedings were particularly unique in that they were conducted before the P.S.B. as if they had been before the Commission. (Without going into detail, this meant a significant change in the role of some of the participants. I would like to record my thanks to the Associations for their agreement on the part to be played by the Government advocates). (5) The claim made by the P.O.A. under Section 56 of Part V of the Public Service Act 1973 is no longer relevant. (I will come back to this point later). In addition to the work value proceedings, a number of other claims were made by the P.O.A. In broad terms they were: - - a restructuring of some of the salary scales - the introduction of new classifications - the insertion of new definitions - the inclusion of certain allowances in the salary scales Following off the record discussions on 20 December 1984, the P.O.A. agreed to my suggestion that all matters, other than the work value claim, should be the subject of further negotiations between the parties. It was also agreed by the parties that they would report back to me by the end of January 1985; the report back to be for the purpose of indicating the extent of agreement reached with the balance of claims (if any) to be referred back to me for arbitration. It therefore follows that the only matter for determination by me at this point in time is the P.O.A. work value claim. THE PRINCIPLES It goes without saying that any claim for increased salaries must be processed in accordance with the Wage Indexation Principles. On the basis of the case put to me by the P.O.A., and in the absence of any submission going to other Principles, this claim, to be successful must satisfy the requirements of Principle 4 - Work Value Changes- contained in the National Wage Case Decision of 23 September 1983. The most relevant requirement of the Principle in determining this case reads as follows:- "4. WORK VALUE CHANGES (a) Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates.
and in determining over what period the relevant changes can be measured "(c) The time for which work value changes should be measured is the last work value adjustment in the award under consideration but in no case earlier than 1 January 1978. Care should be exercised to ensure that changes which were taken into account in any previous work value adjustments are not included in any work evaluation under this Principle." Following consideration of the period during which work value changes can be measured, it was reluctantly agreed by the P.O.A. that the commencing date for the period is 25 September 1981, i.e. the date from which the last increase in salaries for other than economic considerations occurred. At the outset of proceedings, and again during final submissions, Mrs. Herbert exercised her right to claim retrospectivity under Section 56 of the Public Service Act 1973. An applicant for a new principal award may claim under this section that any new award made will operate from the day following the day on which the old award expires, i.e. 3 December 1983. In the light of the above, the submissions and evidence were directed to work value changes (or lack of them) during the period 25 September 1981 to 2 December 1983. This situation creates for me something of a dilemma. Following proclamation of the Industrial Relations Act 1984, it would appear that in the given circumstances of this case, any claim under the now defunct Section 56 of the Public Service Act 1973 is lost. My understanding of the legalities of the situation is that any claim made prior to 1 January 1985, and proceedings commenced but not concluded in another jurisdiction must be considered to have been dealt with exclusively under the new Act. There is no provision for the automatic granting of retrospectivity under the new Act as provided in the Public Service Act 1973. My dilemma is that this situation was not known to me or presumably to the parties at the time of the proceedings before the board. It would appear the options open to me are to proceed with a decision on the work-value arguments as they stand, having regard for the above, or reconvene proceedings and invite further submissions and/or evidence going to the period 3 December 1983 to date. After careful consideration of the position, I have decided to proceed to determine the matter. THE INSPECTIONS AND EVIDENCE Mrs. Herbert for the P.O.A. relied very heavily on the inspections and evidence of seven (7) Prison Officers to substantiate her case. Inspections were held at the Risdon Prison on 19 November and at Hayes Prison Farm on 28 November 1984. I would like to record my appreciation to those responsible for the organisation of the inspections and for the hospitality of the Prison Administration. The inspections were very helpful to me personally as I have not had experience of prisons or the work of Prison Officers. Not only did they give me an insight into the working conditions of Prison Officers, but also ensured a much better understanding and appreciation of the evidence of the witnesses. Oral evidence was adduced and written statements submitted by seven Prison Officers as follows: - Chief Prison Officer (1) The prepared statements were produced in booklet form, and submitted as Exhibit (H.4). Obviously, much time and effort was given to their production, and as a comprehensive resume of the duties and responsibilities of the officers concerned, they lacked nothing. However, in terms of the real purpose of the case, the proving of changes in the nature of the work, skill and responsibility required they did not show a significant net addition to work requirements. The same could be said of the oral evidence which very largely supplemented, and was an elaboration of the statements. A summary of the main changes relied on is as follows: - - one new hobby class introduced - more sporting time made available to the prisoners - some administrative changes, e.g. increased paper work for the trade instructor in the Bake House, increased use of diaries - photographs - taken at the request of prisoners for private use - increased responsibility associated with the recording and security of T.V. sets allocated to prisoners - an increase in the number of sentenced prisoners - greater turnover of prisoners in some work areas, e.g. Bake House - increase in visitors, both in terms of numbers and frequency - changes in standing orders - an increase in orders from the canteen - the introduction of regular telephone contact at night from Hayes Prison Farm - more diplomacy required of Prison Officers because of changing attitudes towards prisoners - an increase in short term prisoners Many other matters were referred to, some of the main ones being: - - the element of risk associated with the supervision of prisoners, some of whom have been convicted of crimes of violence; - problems associated with abuse and threats from prisoners; - problems with shift work; - problems associated with a certain stigma attached to working in a prison; - certain physical problems associated with the design of the prison (particularly the towers and a general lack of facilities); - lack of suitable protective clothing in some areas; - a claim of increased eye problems from officers required to man the T.V. monitoring system. I am sure that these and other matters were referred to me with the aim of giving a clear picture of the work, responsibilities and disabilities associated with the role of the prison officer. However in terms of the current work value case, they cannot have any bearing as they no doubt are not new factors, and have been taken into account in previous work value assessments. Many of the "changes" relied on by the P.O.A. listed above were effectively nullified, in terms of this work value case, during the cross-examination of witnesses by Mr. Willingham for the Tasmanian Government. THE SUBMISSIONS Mrs. Herbert, for the P.O.A., as indicated earlier, relied heavily on the inspections and evidence to prove her case. Her submission sought to bring together the evidence of witnesses, highlight the ramifications of some of the evidence, and support it with a number of statistics. She emphasised what the Prison Officers consider to be an increase in responsibility in that they are required to do more personal supervision of prisoners. This has been brought about by the following factors: - (a) an increase in visitors to the prison; (b) an increase in sporting activities; (c) an increase in hobby classes; (d) an increase in the number of lawyers, welfare officers, social workers and medical officers visiting inmates. Emphasis was placed on what Prison Officers consider to be a greater strain placed on them because of a change in attitude toward prisoners by the Administration. The change in attitude required a greater degree of diplomacy and understanding be shown to prisoners.' It was also submitted that Prison Officers felt that the Management was more concerned about the welfare of the prisoners than the Prison Officers themselves, and this caused more strain and poor relationships between Management and Prison Officers. Problems created because of the poor design of the prison and lack of appropriate amenities in some areas were highlighted. Two main problem areas, the T.V. surveillance room and the towers, were singled out by Mrs. Herbert as areas that created ever-increasing strains on Prison Officers required to man them. An increase in the incidence of short-term prisoners was said to put added strain on Prison Officers by increasing paper work and the risk of assault from prisoners who were not known to Prison Officers. The main statistic relied on by Mrs. Herbert was that there had been an increase in sentenced and remanded prisoners over the three years July 1981 to July 1984. Mr. Huxtable, for the Tasmanian Public Service Association (T.P.S.A.) indicated that he was not in a position to support the general claims of the P.O.A. The T.P.S.A. had its own application before the Board (now the Commission) and was committed to the working party which had been established to discuss and hopefully resolve a large number of issues. The main matters still being dealt with by the working party are: - (a) structure of award salary scales (b) award conditions (c) amenities (d) prison procedures (e) conditions at Hayes Prison Farm It was the view of the T.P.S.A. that many of the matters currently before the working party could be resolved by agreement and that avenue should be exhausted before proceeding to arbitration. In concluding his submission, Mr. Huxtable disassociated the T.P.S.A. from the P.O.A. work value claim. At the outset of his submission, Mr. Willingham gave a detailed rundown on the progress of the working party deliberations. The first meeting was held on 16 September 1983 and there have been thirty-three (33) meetings since. Approximately twenty-eight (28) Prison Officers have appeared before the working party, and all recommendations for change have so far been unanimous. A separate subcommittee has been established and has met frequently on the subject of shift rosters. It was submitted that the deliberations of the working party could have been completed had this work value case not commenced thus occupying substantial amounts of time of the majority of people involved. Mr Willingham then dealt in some detail with the Wage Indexation Principles and gave prominence to the constraints on the P.O.A. in prosecuting this claim. He also highlighted the fact that only seven (7) witnesses had been called giving evidence going to four (4) classifications and pointed out that no evidence had been elicited from: - - Officers at Hayes Prison Farm - Officers at the Women's Prison - the various trades, except baker - Officers above the rank of Chief Prison Officer - non-uniformed staff In summary, it was his submission that the evidence failed to demonstrate substantial change for any position. On other general matters relied on by the P.O.A. a summary of the State Government's submission is as follows: - (a) Risk factors - no evidence of assault or serious incidents during the work value period. No officer had testified to having had to bear arms. (b) Towers - there were five (5) occasions only during the period when officers had been relieved from the towers because of high winds. (c) Short term sentences - while it was claimed by the Prison Officers that short-term sentences cause problems, no real evidence was given to support the claim. (d) Turnover of prisoners in Bake House - no real evidence of problems and how they affect the Trade Instructor. (e) Standing Orders - it was claimed that there had been lots of changes in standing orders, in fact there had been only three (3). (f) Parole System - the parole system had been introduced in 1975, therefore no comfort could be gained by Prison Officers in this claim. (g) Relaxation of procedures for prisoners - seen as a benefit by the Government, not a factor increasing stress or responsibility. (h) Stress - common to most if not all working environments. It was submitted that the above matters were either not new and had therefore been considered in earlier work value cases or there was insufficient evidence for any weight to be attached to them by the Commission. Mr. Patmore, for the Law Department, gave a lucid run-down of changes implemented or proposed which would improve the lot of Prison Officers. Those changes went from basic considerations, such as improved amenities to major building alterations or additions and the improved administration which would follow the implementation of the State Services legislation some time in 1985. DECISION As indicated earlier, this claim by the P.O.A. for increased salaries can only succeed if it satisfies the requirements of Principle 4, Work Value Changes. Significant changes in the nature of the work of Prison Officers must have taken place during the period 23 September 1981 to 2 December 1983. Across-the-board salary adjustments based on the averaging of work value changes are not allowed by the current Principles. Accordingly, each classification covered by the award must, by the adducing of evidence, show a change in the nature of the work constituting a significant net addition to the work requirements. Exhibit H.4, page 2, provided the following information: -
(The foregoing information was not challenged by the Law Department or Government representatives. I have therefore accepted it at face value. However later research has established that the Risdon Superintendent's salary is derived from another award, thus leaving a total of 171 classified positions (officers) covered by the award.) Of the above, only four (4) positions (see asterisk) have been the subject of evidence going to changes in the work of the officers concerned. While evidence was adduced from officers within only four classifications, they are the significant ones in terms of numbers employed. The officers occupying those positions were all employed in the men's prison at Risdon. It is therefore not possible in accordance with the Wage Indexation Principles to consider salary adjustments in this case for the following: -
I am aware of the difficulties confronting the P.O.A. in not being able to put evidence before the Commission going to all classifications contained in the award. It is most unfortunate that union politics and perhaps misguided apprehension on the part of some Prison Officers has prevented a more complete case being made. Having determined as above for those classifications not the subject of detailed evidence, it now leave only four classifications that were. The evidence and submissions in this case can be categorised as follows: -
The changes which occurred during the relevant period were, in my view, of a fairly minor nature, and not changes which could constitute a significant net addition to work requirements. I think it appropriate at this point to make an observation going to the P.O.A. decision to exercise its right under Section 56 of the Public Service Act 1973. The fact that a similar provision has not been included in the Industrial Relations Act 1984 is evidence, in my view, that the providing of automatic rights to retrospectivity is not desirable. I can understand a decision of the membership of an organisation being taken to protect a right provided in an Act which could result in substantial retrospective payments. However, in work value cases, and in this matter in particular, the exercising of that right made a difficult task almost impossible. I say that because under normal circumstances it is difficult to prove a work value case, but to limit the period over which changes can be proven to a little over two years makes the task virtually unachievable. It is my opinion that the P.O.A. have not been able to prove work value changes as required by the Wage Indexation Principles in order that their case may succeed. It therefore follows that the claim in relation to the four classifications for which detailed evidence was adduced must also fail. That part of application T. No. 16 of 1985 (previously P.272 of 1984 before the P.S.B.) seeking across-the-board salary increases for Prison Officers is dismissed.
J.G. King | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||