T2417, T3611, T3709 etc - 13 October
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Education Union and The Minister administering the Tasmanian State Service Act 1984 TECHNICAL AND FURTHER EDUCATION STAFF AWARD
Award variation - salary increases in Division C, Librarian classification REASONS FOR DECISION In the Technical and Further Education Staff Award special case proceedings leading to the Commission's 27 August 1993 Reasons for Further Interim Decision (the 27 August 1993 Decision), Mr Holden appearing for the Australian Education Union, Tasmanian Branch (AEU) informed the Commission that special case submissions for librarians classified in Division C of the award were intended to be held over to a later date to facilitate, inter alia, the finalisation of special case proceedings for TAFE teachers. The Commission agreed with that course. Accordingly further submissions were made in respect of librarian classifications on 1 March 1994 followed by comprehensive substantive submissions being put before the Commission from 14 June 1994 onwards and concluding on 29 July 1994. At the outset it is relevant for the Commission to address the submissions made by Mr McCabe appearing for the Minister administering the Tasmanian State Service Act 1994 (the Minister) prior to 14 June 1994. Those submissions preceded those made by Mr Willingham who subsequently appeared as the principal advocate for the Minister. Mr McCabe brought to the attention of the Commission that it had already made a finding which was that librarians in TAFE should be classified in the Librarians and Archivists Award. He referred to page 81 of the 27 August 1993 Decision where he contended the Commission had determined the issue in that way. Further Mr McCabe submitted that the Commission should refrain from hearing any further submissions in respect of librarians to allow the Minister to translate librarians from the TAFE award to "the appropriate level of the existing public sector award covering that particular occupation" (Transcript 24 March 1994 at p.143). Mr McCabe said the Commission should adopt that course because:
There can be no argument that the Commission expressed a preferred view as how to best and most expeditiously deal with the special case available to TAFE librarians. However it is going much too far for any one party to have concluded that the preferred course outlined by the Commission would extinguish the rights of the AEU to advance special case arguments for consideration by the Commission. That was not the Commission's intention. All the Commission did was to endeavour to provide some guidance by indicating a view as to how TAFE librarians may best have their special case resolved. The process outlined by the Commission was not able to conclude the matter in respect of the librarians in question and in the circumstances the Commission decided to proceed with the special case hearing for TAFE librarians. Accordingly Mr McCabe's submissions were rejected. Introduction The AEU commenced its submissions on 14 June 1994 at page 155 of transcript. Mr Holden submitted that the AEU relied on a number of grounds in respect of its work value claim for TAFE librarians. These were:
Having regard to the above principal planks in the AEU's case some early observations by the Commission are appropriate. These are in respect of (1) above that the Commission is in agreement with Mr Willingham when he submitted that in the decision in matter T.2113 of 1989 the Commission evaluated claimed work value changes for TAFE librarians. Mr Willingham referred to page 2 of that decision where the Commission made the point that the evidence and submissions of Mr Holden supported extensive work value changes for TAFE librarians. He contended that it was incorrect for Mr Holden to claim in these current proceedings that the May 1990 decision only reflected work value changes for librarians subject to the Librarians and Archivists Award. Clearly there can be no doubt that work value changes for TAFE librarians were recognised by the Commission. However the Commission does not agree with that part of Mr Willingham's submissions where he stated that it was not open for the AEU to take into account changes which occurred subsequent to the issue of the decision in matter T.2113 of 1989. The special case in matter T.2417 of 1990 permitted examination of work value changes up to the time of the conclusion of these proceedings. Also it has to be said that whilst in matter T.2113 of 1989 work value changes for TAFE librarians were taken into account, therefore the AEU was wrong when in point (2) above it contended that work value changes for librarians subject to the Librarians and Archivists Award were relied upon only, there was never any intention to prevent the AEU from arguing superior work value for TAFE librarians. This course was clearly left open to the AEU as a consequence of the May 1990 Reasons for Decision in matter T.2113 of 1989. That aspect together with the special case finding in the matter currently before the Commission provides ample scope to deal with the issues in question, i.e. the consideration of the work value claim for TAFE librarians from the Datum Point in September 1981 to the conclusion of proceedings on 29 July 1994. Obviously when regard is had for the Commission's foregoing observations, earlier work value findings made in matter T.2113 of 1989 cannot again be taken into account. To do so would result in double counting. AEU Submissions The AEU's claim for Resource Centre Librarians was outlined in Exhibit AEU2. It provided for Level 1 Librarians including an Advanced Skilled Librarian (ASL), Level 2 and Level 3 Librarians. The rationale for the claim was that Level 1 Librarians equated more to librarians in "other educational institutions rather than with librarians in other public sector services in Tasmania" (Transcript 14 June 1994 at page 158). Mr Holden submitted that levels 2 and 3 had management responsibilities for the functioning of the Library Resource Centre and they were responsible for policy decisions and providing advice on library resources. It was also stipulated by the AEU that the Public Sector Case professional stream classification standards should be relied upon by the Commission and that for the ASL there be adopted the requirement to be "considered competent by the controlling authority to instruct and teach teachers and students as they have in the past." (Exhibit AEU2). As well Mr Holden indicated that proper criteria for appointment to ASL would need to be developed in consultation with the controlling authority. Mr Holden submitted that TAFE librarians were requested to perform an instructional teaching function and that this added to their work value. Mr Holden also said:
It was also pointed out that librarians required professional qualifications which was not compulsory for TAFE teachers. Mr Holden submitted that TAFE librarians were expected to undertake all facets of library work whereas in the library system in the public sector generally librarians worked in a discrete area and they specialised. He indicated that it was important for TAFE librarians to stay in that system as it would take considerable training effort if they were required to be replaced. Mr Holden said that this was the prime reason the AEU sought an additional career path, i.e. the ASL classification. Mr Holden submitted that this was the course followed by Judge Allen in the South Australia TAFE Special Case. It was submitted by Mr Holden that the salary for level 2 second year of service was supported by the classification standard for level 2 in the Public Sector Case professional stream. Level 2 first year of service was based on the AST2 salary for Technical Teachers. Mr Holden stated that it was the opinion of the AEU that the work of librarians in the TAFE system who were in charge and took responsibility for small libraries and those who held specialised positions fell within the scope of the level 2 classification standard for the professional stream. The level 3 salaries claimed by the AEU were sought to be applied to the positions in charge of the TAFE Institute libraries at Hobart, Launceston and the North West Regional Institute, Burnie. It was contended by Mr Holden that these positions were comparable to Heads of Department I and II positions. Mr Holden submitted that all positions were responsible for the function of the library, its interaction with all departments, the control of its staff, for policy input and purchasing recommendations. Mr Holden emphasised that the salary levels were below what is available for Technical Teachers in the automatic scale and what is available for AST1. Mr Holden submitted that the librarians in question were:
As a secondary position to its primary submission the AEU proposed an alternative classification structure. Mr Holden submitted that in the event this was adopted by the Commission teaching and instruction should not be required to be undertaken by the librarians in question. The current structure, the AEU's primary and secondary structures are outlined as follows:
Exhibit AEU2 Section 3 The secondary position outlined above was predicated, in respect of the first three salary levels, on the Public Sector Case professional stream levels 1-3, inclusive of 1.5 per cent. Also the classification standards relied upon generally were those endorsed for the professional stream. The salary levels of the top of librarian level 2 and for the whole of level 3 reflected the professional stream. Mr Holden submitted that this minimalist position represented a decision of a full bench arrived at after lengthy and thorough examination. In his submissions Mr Holden also made comparisons between the work of librarians subject to the Librarians and Archivists Award and TAFE librarians by reference to advertised positions in the Government Gazette. The conclusions drawn by Mr Holden were that in the State Library, where the example related to a Class 2 librarian, the duties were limited when compared to a Class 1/2 TAFE librarian position where the duties were said to be "significantly superior" (Transcript dated 14 June 1994 at p.179). In his submission Mr Holden informed the Commission of the TAFE librarian work value changes the Commission should have regard for. These included:
In addition to the foregoing the Commission was informed that librarians had education based responsibilities "which are a major difference between librarians in schools, secondary colleges, TAFE colleges... as compared to the State Library Service" (Transcript dated 14 June 1994 at p.189). Mr Holden submitted that these responsibilities were not assessed in the 16 May 1990 Reasons for Decision. Mr Holden contended that TAFE library resource centre libraries undertook teaching responsibilities. He said those responsibilities were peculiar to librarians employed in the educational sector. Mr Holden submitted that the librarians in question:
Mr Holden informed the Commission that TAFE librarians did not have a teaching role but they taught as requested by the employer (the Minister). The point was made by Mr Holden that librarians in schools and secondary colleges did not have a teaching load but their salaries were in line with teaching salaries and it would be unfair for TAFE librarians to be paid less than TAFE teachers or for them not to have access to an advanced skills classification as this would result in a particularly limited career path. Mr Holden reiterated what he said was one of the important differences between librarians per se and TAFE librarians. Exhibit AEU 6 point 2.9.2 referred to the following:
It was the contention of Mr Holden that the educational aspects of librarians work set them apart. He emphasised:
Mr Holden informed the Commission that with the growth in post compulsory education and training as identified in the Finn Report TAFE librarians played a very important role in the educational function of Australians. Given that emphasis and that TAFE librarians were said to be involved in teaching, Mr Holden said:
Reference was made to a decision of Judge Allen in the S.A. TAFE case, Exhibit AEU9, where he concluded that a new classification of lecturer/advance skills lecturer included librarians which he found to be part of the college teaching resource. Mr Holden submitted that it would be unfair for TAFE librarians performing similar work to librarians in other sectors of the Tasmanian education system and the same work as TAFE librarians in South Australia to receive lower salaries. He informed the Commission that the scope of the work of librarians had altered and in the Resource Centre this work would more appropriately be reflected in a classification of "resource centre teacher librarian" and a change from head lecturer to "resource centre management" (Transcript dated 14 June 1994 at p.212) with teaching rates of pay but not conditions. Mr Holden submitted that one of the main supporting features of the Wage Fixing Principle was that more fulfilling and rewarding jobs should be created together with the establishment of career paths. Mr Holden informed the Commission that in early discussions with the Minister that it was agreed that the head librarian would become the TAFE Resource Centre Manager and a TAFE librarian would become a TAFE library Resource Centre Librarian. This was in recognition of a career path structure which Mr Holden emphasised should include an advanced skill level classification based on meeting an appropriate criteria. To support the thrust of the submissions on behalf of TAFE librarians Mr Holden elicited evidence from Mrs Hallam, a librarian at the Launceston Institute of TAFE. Her evidence was that in 1989 TAFE and secondary college libraries were the pioneers in Tasmania of library automated systems and that they were the pace setters in Australia. By comparison the State library system at that time was still highly centralised with little automation. The evidence was that a wide variety of librarianship was required in TAFE whilst the State Library system tended to specialise. Since 1989 however Mrs Hallam indicated that the library system had caught up and there is "a completely integrated management system that we share with the State Library" (Transcript dated 15 June 1994 at p.223). However Mrs Hallam indicated TAFE librarians had a broader range of skills. A significant difference according to Mrs Hallam was that TAFE librarians were very much part of the educative system and accordingly there was a changed emphasis on the role of these librarians. This was because of the emphasis on making students information literate which was reflected in information skills modules which in turn formed part of curriculum communication modules. It was stated that TAFE librarians imparted the required skills to access information from computers. Mrs Hallam stated that an essential difference between secondary college and TAFE librarian work was that the latter do a lot more library instruction or information skills instructions (transcript dated 15 June 1994 at p.226). That instruction included using compact disk indexes, on line data bases using an electronic mail facility, subject retrieval in on line catalogues, demonstration of networking to access information, serial indexes on CD Rom. Additionally teachers relied on TAFE librarians to talk to students on the importance of being able to access information and how to do it. In cross examination Mr Willingham established that Mrs Hallam last worked in the State Library system some 13 years earlier and that she was not in a position to make valid comparisons between that system and what occurred in TAFE. Similarly Mrs Hallam was not able to sustain that a librarian working for example in the Lending Section of the State Library would not have the skills to work in a TAFE library (transcript dated 15 June 1994 at pages 233/34). Minister's Submissions Mr Willingham commenced his submissions on behalf of the Minister by informing the Commission that the decision in matter T.2113 of 1989 (Exhibit AEU1) awarded increases to TAFE librarians, "identical in all material aspects to the increases earlier awarded to librarians covered by the Librarians and Archivists Award in matter T.1815 of 1989 (Transcript dated 29 July 1994 at page 323). He contended that the interim nature of that decision was to facilitate structural efficiencies in the award. Mr Willingham said:
I have addressed this issue earlier in this decision but it is opportune to do so again. There is no doubt that the Commission contemplated in matter T.2113 of 1989 that the AEU would, at some future time, seek to demonstrate work value changes for TAFE librarians over and above those subject to the Librarians and Archivists Award. Reference by the Commission in that decision to structural changes was not limited in the manner suggested by Mr Willingham. Indeed the Structural Efficiency Principle (SWC October 1989) contemplated incorporation of past work value considerations. Certainly the Commission's decision in matter T2113 of 1989 did not close the door on further work value considerations. As stated earlier in this decision it seems that the point in issue, the decision in T.2113 of 1989, is somewhat irrelevant given the special case available to the AEU in respect of the award in its entirety. Mr Willingham also emphasised that the AEU had not discharged the onus on it to justify its application. It was submitted by him that the AEU failed to address the requirements of the Work Value Changes Principle in any meaningful way and that the AEU failed to discharge the onus upon it. Mr Willingham was of the opinion that the AEU had taken the Commission in a "straightforward exercise in comparisons not in work value, not in change" (Transcript dated 29 July 1994 at p.339). It was contended by Mr Willingham that librarians were not required to take classes for teaching purposes. In its secondary position the AEU submitted that if this was adopted by the Commission then it should ensure that teaching and instruction should be completely deleted. Mr Willingham submitted that the very reason for the existence of libraries and information resource centres, was to provide access to the information contained in them. Providing information on how to locate and access information was a most fundamental component of a librarian's work, submitted Mr Willingham. He said:
Mr Willingham submitted that those functions and activities did not turn librarians into teachers. With regard to the AEU's submissions that TAFE librarians undertook a wider range of duties than other librarians subject to the Librarians and Archivists Award Mr Willingham informed the Commission that in many smaller libraries "all" librarian work is undertaken by the librarians involved. However, Mr Willingham submitted that it was irrelevant that in larger libraries e.g. in the State Library librarians were allocated to perform specific functions in specific sections. He said:
Turning to the classification standards in Exhibit AEU3, Mr Willingham was critical of the AEU in that he contended that it had failed to demonstrate where any significant net addition to work value had occurred in the work of TAFE librarians. He submitted that the production and presentation of classification standards did not extinguish this fundamental precedent to altering or adding to existing classifications. To support the contention that work value increases had not been demonstrated Mr Willingham drew attention to exchanges between the Commission and the AEU where this aspect was discussed. The exchanges commence with the Commission asking the following question:
Mr Willingham submitted that the AEU had not demonstrated work value change and that the questions asked by the Commission as to where the work of librarians had changed significantly had not been answered. Mr Willingham continued to challenge the submissions of the AEU in respect of lack of demonstration of any significant work value changes by firstly highlighting that the AEU's single witness had not been able to attest to any work value changes at all "let alone any of such significance as would warrant increases of the magnitude sought". (Transcript dated 29 July 1994 at p.354). Additionally Mr Willingham requested that the Commission review and take into account the decision in matter T.1851 of 1989 concerning the work value findings for librarians and archivists subject to the Librarians and Archivists Award. It was stated by Mr Willingham that in that decision and in matter T.2113 of 1989 (Exhibit AEU1) the Commission conducted exhaustive and searching work value examinations of librarians in TAFE and those subject to the Librarians and Archivists Award. Mr Willingham said:
Decision Primarily the claim by the AEU is predicated on work value change for TAFE librarians and that their work is of "greater value" (Transcript dated 14 June 1994 at p.157) than other librarians subject to the Librarians and Archivists Award. Also that the work of TAFE librarians in an education system where they were said to be undertaking instruction and teaching of TAFE teachers and students added significantly to their work value and set them apart from other librarians. When the detail of the submissions made by the AEU are scrutinised it is clear that its claim cannot succeed. I concur with Mr Willingham that significant work value change was not able to be demonstrated. In this decision I have canvassed the work value changes referred to by Mr Holden. In my view those changes were comprehended in matter T.1851 of 1989. For example Mr Holden referred to utilisation of technical skills in tandem with all other aspects of TAFE librarianship, not being confined to a discrete area, operating at a high level of skill and in all facets of librarianship, accessing and interrogating data bases, reference searches, utilising computers, researching and exercising management control over allocated funds. Those matters were discussed and taken into account in the decision in matter T.1851 of 1989 which resulted in significant work value and structural changes to the Librarians and Archivists Award. Those changes were taken into account in matter T.2113 of 1989 dealing exclusively with TAFE librarians. It would be wrong to take them into account again. Mr Holden sought to set TAFE librarians apart because of their work in an education system. However no work value changes were able to be identified sufficient to warrant the creation of a new classification in accordance with the Work Value Changes Principle and all that was left to the Commission was the comparisons made with librarians in secondary colleges and schools. Also the decision of Judge Allen in the South Australian TAFE case. Fundamental to the Commission seeking guidance from other decisions and awards is of course the requirement to establish, in the first instance, significant work value change. This was not able to be demonstrated by the AEU. In that regard it should be noted that the Commission does accept that TAFE librarians are required to provide instruction and to impart information skills to students and teachers. However the Commission does not accept that this work is beyond the scope of that undertaken by librarians generally and in that regard the submissions of Mr Willingham are preferred. Mr Holden put before the Commission elaborate classification structures which were to a very great extent predicated on comparisons and were not supported by demonstrable work value change. In addition to the comparisons already referred to Mr Holden compared qualification requirements between TAFE librarians and TAFE teachers; between the rates of pay for TAFE librarians and those of librarians in other educational institutions (universities) and comparisons between the duties outlined in the Government Gazette for State librarians and TAFE librarians. Also Mr Holden emphasised that as TAFE librarians are involved in all facets of librarian's work the Commission should take this into account given the training effort that would be required to replace these librarians. In my opinion none of these factors support work value based wage increases. In the most blatant way this was no more than a comparative wage justice exercise. Regarding the requirement to carry out all facets of librarian work, that is not germane to this issue. As Mr Willingham correctly submitted, classifications comprehend a range of functions and whether all or some functions are undertaken is irrelevant. The rate of pay is fixed on the premise that all of the requirements of the job will be carried out. Every avenue to demonstrate that the work of TAFE librarians is superior to librarians subject to the Librarians and Archivists Award system was called in aide by the AEU including reliance on the Public Sector Case professional stream determination by a full bench. That stream along with all the other streams was determined on the basis of an integral review of public sector employment arrangements in the widest possible context. Those proposals were abandoned and it was decided by the full bench that the stream(s) may be available in respect of agency bargaining agreements able to be brought forward to the Commission pursuant to the Enterprise Awards or Section 55 Industrial Agreement Wage Fixing Principle. In this case the Commission has undertaken a work value assessment and has found that it is not able to support the AEU's case. It would be inappropriate, in my opinion, in those circumstances to make a comparative adjustment relying on the professional stream. This is particularly the case given that an appropriate award, the Librarians and Archivists Award can accommodate the librarians in question. It should be noted that the Minister adopted and relied upon that position in these proceedings and I now determine that TAFE librarians should be classified in the Librarians and Archivists Awards. Finally on any assessment on what was put before the Commission in these proceedings it is not possible to find that TAFE librarians have achieved superior work value to what was assessed for them in matter T.2113 of 1989. At that time significant increases were awarded to "State" and TAFE librarians and a career structure put in place in the Librarians and Archivists Award. In my opinion the submissions and material presented in this case do not substantiate a further adjustment at this time. Accordingly for all of the reasons mentioned the AEU's claim on behalf of librarians subject to the Technical and Further Education Staff Award is not supported. The order to delete librarian classifications from Division C of the award, operative from the date of this decision, will issue in due course.
R K Gozzi Appearances: Date and Place of Hearing: | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||