TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.23 application for award or variation of award

Health Services Union of Australia, Tasmania No. 1 Branch
(T.5044 of 1994)

and

Tasmanian Chamber of Commerce and Industry Limited
(T.5110 of 1994)

WELFARE AND VOLUNTARY AGENCIES AWARD

Award variation - clause 7 - definitions and restructure of award

REASONS FOR DECISION

The first of these two applications was lodged by the Health Services Union of Australia, Tasmania No.1 Branch (HSUA) on 27 April 1994.

The HSUA sought to amend the Welfare and Voluntary Agencies Award by putting in place a new classification structure arising from the implementation of the Structural Efficiency Principle.

In its application (as amended) the HSUA requested that the award contain definitions relating, in particular, to descriptions of various levels of a "disability service worker" employed in the areas of supported employment services and accommodation/ independent living training services. This particular classification was to range from Level 1 to Level 7.

The classification of "disability service worker" at various levels was to replace and comprehend existing classifications such as "supervisor", "cook", "laundry hand", "domestic aide", etc. as contained in existing divisions of the award other than Division A.

The HSUA application also contained percentage relativities, indicative tasks, training, and general descriptions of each level of worker and criteria for accelerated progression. In addition supplementary payments and junior workers were dealt with.

At the commencement of proceedings on 27 May 1994 Ms Harvey for the HSUA said that the parties had established a State Negotiating Committee which had been meeting for nearly three (3) years. Part of the work undertaken by the State Negotiating Committee included a skills analysis by a person competent in this regard and arranged by the parties.

In this regard Ms Harvey said at page 2 of transcript:

"The parties have established a State Negotiating Committee that has been meeting for nearly three years. When we come to our submissions I will present a full background to you on the work that has been undertaken, but in part it included a skills analysis done by the parties to work on the classification structure. So, what we had was an interim broadbanding with minimum rate adjustments and at the very first hearing in which we started that process we indicated to the bench that we were in the process of doing some work on the skill-based definitions to try to get it right for this industry, and in those hearings the parties affirmed their commitment to the benchmarks established by the metal industry in terms of the certificate, advanced certificate and associate diploma level qualifications. So, we do have a framework in which we are operating.

Now, as a result of much work that has gone over 2½ years, on 18 April the TCCI was able to forward to my organisation a draft without prejudice proposal on a classification structure which was to be recommended to both my members and their members. We subsequently held meetings of our members around the State and in all the major work sites and ensured that every member had all opportunity to participate in that".

At the same time, Ms Harvey indicated that the HSUA wrote to the Tasmanian Chamber of Commerce and Industry (TCCI) on 29 April 1994 indicating the position of its members in relation to the proposed classification structure but had not received a response as at 27 May 1994.

The Commission granted an adjournment at this point and encouraged the parties to settle the claim by agreement, because this seemed to be the most obvious and desirable means of settling the claim in the prevailing circumstances. This was particularly so since Mr Fitzgerald for the TCCI had indicated to the Commission that it was the wish of employers to further negotiate the documents which had been exchanged between the parties and hopefully then present a consent position rather than proceed to arbitration.

A little time later the same day the parties reported that despite the amount of time which had elapsed since the formation of the State Negotiating Committee and the effort which had been devoted to attempting to achieve final agreement they had come to an impasse at the last moment.

Faced with the alternative of proceeding to arbitration the HSUA sought and was granted leave to amend its original application and, on 17 June 1994 TCCI submitted an application of its own (T.5110 of 1994). This application sought to vary the Welfare and Voluntary Agencies Award in much the same manner as that of the HSUA i.e. making provision for a new classification structure for a "disability service worker" to replace all other classifications other than in Division A; percentage relativities; comprehensive definitions and indicative tasks; and criteria for accelerated progression etc.

The TCCI application also included revised provisions for junior workers; altered provisions in relation to a comprehensive list of conditions of employment matters; a change to the title of the award; a translation process; and (inter alia) a phasing in of any wage increases which might occur.

The most significant differences between the two applications were in the area of the number of levels of "disability service worker" proposed; percentage relativities relating to the various levels; the number of progression steps within each level; and the recognition or not of skills acquired by employees.

Following the break down of negotiations between the various parties and their adoption of entrenched positions at the final hour, the Commission was given no option but to offer arbitration. And whilst I fully acknowledge that without prejudice negotiations are part of the established system and cannot be used by either party to prove a case in arbitral proceedings, I find it a matter of regret that attempts to reach agreement failed.

I say this for a number of reasons:

1. The industry covered by the scope of the Welfare and Voluntary Agencies Award is a vitally important one which must be sensitive not only to the needs of the physically, intellectually and sensory handicapped persons but at the same time must fairly recognise and support the needs and aspirations of dedicated and committed staff who are employed by the various organisations at different levels and in different capacities.

2. The parties best understand the ramifications of any disturbance to the award and its structure.

3. Although the financial resources of the various service providers covered by the award are not all structured in the same way, any increases imposed through award variations could create difficulties affecting service delivery and/or levels of employment if not made cost effective.

4. Funding by both the Federal and State Governments was already stretched and finite.

Equally, supplementary funding from other sources has become increasingly difficult in recent times.

5. The industrial community which embraces trade unions, employer organisations, governments, and tribunals across the nation profess to support settlement of claims through a bargaining process, but when given the best possible opportunity to reach agreement, such as in this instance, the present parties simply failed to deliver.

6. The failure of the parties to bargain in good faith and finalise an agreement in circumstances where negotiations have apparently exceeded 2½ years and a comprehensive skills analysis was obtained through an experienced specialist in this area, constitutes, in my view, a missed opportunity to get it right.

I turn now to the Commission's jurisdiction and requirements placed upon it by the Industrial Relations Act 1984, as amended.

Section 19 provides (inter alia) that:

"19(1)  Subject to this Act, the Commission has jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter.

    (2)  For the purposes of subsection (1) the Commission may -

  (a)   make an award or order"

Section 20 provides (inter alia) that:

"SECTION 20 COMMISSION TO ACT ACCORDING TO EQUITY AND GOOD CONSCIENCE

20(1) In the exercise of its jurisdiction under this Act, the Commission -

(a)  shall act according to equity, good conscience, and the merits of the case without regard to technicalities or legal forms;

(b)  shall do such things as appear to it to be right and proper for effecting conciliation between parties, for preventing and settling industrial disputes, and for settling claims by agreement between parties;

(c)  is not bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and

(d)  shall have regard to the public interest"

In the context of 20(1)(b) the demonstrated indicators to me in the course of hearing were that continued attempts at conciliation beyond the encouragement provided would have been quite futile.

Section 20(3) provides that:

"In the exercise of its jurisdiction under this Act, the Commission is not restricted to the specific claim made or to the subject-matter of the claim."

In the prevailing circumstances I point out that neither party was entitled to believe that the final outcome of these proceedings would necessarily result in me making a simple choice between one or other of the two applications. This is particularly so given my statutory duty to be satisfied with regard to the public interest.

In this regard the Act provides that:

"SECTION 36 COMMISSION TO BE SATISFIED WITH REGARD TO THE PUBLIC INTEREST

36(1) Before the Commission makes an award under this Act or before the Commission approves an industrial agreement under section 55, the Commission shall be satisfied that that award or that agreement is consistent with the public interest.

36(2) In deciding whether a proposed award or a proposed industrial agreement would be consistent with the public interest, the Commission shall -

(a)  consider the economic position of any industry likely to be affected by the proposed award or proposed agreement;

(b)  consider the economy of Tasmania and the likely effect of the proposed award or proposed agreement on the economy of Tasmania with particular reference to the level of employment; and

(c)  take into account any other matter considered by the Commission to be relevant to the public interest."

The two applications were joined for hearing purposes once the TCCI application was received. The agreed procedure was that the HSUA application would continue to be heard first, followed then by the TCCI response and incorporation of its own case. Finally the HSUA would respond to the TCCI application and exercise a normal right of reply as an applicant.

Both organisations relied upon sworn witness evidence, exhibits, and submissions. Similarly separate inspection programs were carried out in the north, north west and south of the state as an aid to visually gaining a better understanding of the diverse nature of undertakings which this award covers.

The HSUA's case was detailed and supported by extensive documentation which formed exhibits.

Whilst the TCCI's case and its response was only marginally shorter in terms of time, it too was comprehensive and well illustrated through prepared exhibits.

In totality some twenty (20) hearing dates extended over five (5) months, and resulted in the production of in excess of eleven hundred (1100) pages of transcript.

I have faithfully reviewed all of the material placed before me but propose to only briefly summarise the competing arguments which already form part of the record.

The HSUA indicated that it was seeking an arbitrated decision to insert a classification structure in the Welfare and Voluntary Agencies Award in the terms of its application at this time, but said it reserved its right to seek to again review the structure once the National Disabilities Competency Standards project of the Industry Training Board is completed.

Ms Harvey also dealt with an outline of the industry covered by the award; the fact that broadly speaking the Commonwealth Government administers supported employment services and the State Government administers accommodation and independent living services; and various funding and administrative arrangements which exist such as:

(a)  the Commonwealth/State Disability Agreement

(b)  the Community Integration Program

(c)  Disability Service grants.

Some emphasis was given to existing legislative arrangements and the obligations on the various services to meet the requirements of the relevant acts, including compliance with the objectives and standards specified. These were detailed in the HSUA submission. Of particular relevance was the point of argument that services are legally bound to the standards set and funding agreements which require that they employ adequately qualified and experienced staff, and that they are employed in accordance with the conditions of the appropriate award or agreement.

It was argued that the outcomes standards comprehend extensive skill and responsibility levels in staff. Furthermore, the standards give a clear indication of the levels of skills and responsibility required in the industry.

The HSUA presented material in relation to the history of prior negotiations in relation to award restructuring and referred in this regard to the content of transcript and Reasons for Decision in earlier matter T.2706 of 1990. Special mention was made of an alleged agreement to further work on creating appropriate definitions through a joint skills analysis and an alleged agreement that the Metal Industries Award relativities were to be used as a basis in this award. Ms Harvey said the joint skills analysis was undertaken under the auspices of the State Negotiating Committee and that the outcomes of the skills analysis are reflected in the HSUA's application.

Mr Fitzgerald contested the right of the HSUA to make use of any history of prior award negotiations as representing persuasive material in the present case.

I accept that any previous "without prejudice" negotiations, correspondence or other material ought not be introduced in a different forum once "all bets are declared to be off". However, matters which were unreservedly put on the record by advocates in earlier proceedings, as well as wording taken from "Reasons for Decision" if thought to be relevant to the ongoing process of restructuring this award were admissible. Furthermore, the Act makes it quite clear that an organisation is bound by the acts of its agent (Section 28 {4}). However, the present application of the HSUA cannot be considered as a consent matter despite any belief genuinely held that it perhaps should have been, or any shattered feelings of expectation in this regard.

It should be understood that I will determine the fundamental issues on the basis of equity, justice and substantial merit and the principles of wage fixation, and the other requirements of the Act including public interest.

Next the HSUA outlined its claim in detail and highlighted the areas in which the two applications differed. Ms Harvey submitted that the proposal put forward by the HSUA was designed to provide an integrated career structure which is skill based for employees in the industry and consistent with the requirements of the Structural Efficiency Principle and based upon the Metal Industry Award relativities. She said progression from one level of "disability service worker" to the next would depend upon skills being utilised. The employer would be able to determine the actual classification being occupied by providing position descriptions to each employee as required by the outcome standards.

As earlier indicated the two applications contained different relativities between classifications as well as a difference in the actual numbers of classifications proposed for a "disability services worker". The HSUA argued that its application had merit because it was based upon Metal Industry Award criteria.

Ms Harvey alleged that the TCCI in its response did not contest the relativities in the HSUA application but rather relied upon an assertion that the claim was outside of the Wage Fixing Principles. She also alleged that the TCCI proposal would result in a reduction in current award wage rates and had failed to prove its case. It was further alleged TCCI's set of relativities undervalue the work and constitute gender bias.

In dealing with the issue of accelerated progression of employees contained in the HSUA application Ms Harvey said progression should be on the basis of completion of qualifications and that the employee is engaged and competently utilising the skills at the appropriate level. She added that her organisation opposed TCCI's proposal which would not recognise qualifications acquired unless an employee is appointed on merit to a vacant position. The HSUA argued that the position adopted by the employer's representative in this regard does not provide a skill-based career path. However, the requirement to be actually utilising the skill does allow the employer to control progression through position descriptions.

Turning to that aspect of the HSUA application going to the inclusion of Levels 6 and 7, Ms Harvey said without those two levels the objective of creating a skill-based career path would be frustrated and the employer's cut-off point at Level 5 would push middle management responsibilities lower in the award. She said it was appropriate for middle management positions to be included in the award and such a situation would not cause role conflict. It was denied that the HSUA application denied employers flexibility and attention was drawn to the fact that the award already contained an "enterprise flexibility clause" and, furthermore, the HSUA has given a commitment to facilitate the genuine wishes of employers provided they do not confer a lesser benefit on employees.

The HSUA contended that its case for the inclusion of levels 6 and 7 has been proven through, (inter alia):

.   Advertisements which demonstrated employers were using public sector higher rates of pay

.   Witness evidence that qualifications at Levels 5, 6 and 7 are needed and utilised

.   The requirements of the Structural Efficiency Principle to create skill-based careers paths

.   The inclusion of Levels 6 and 7 does not commit an employer to use those levels, but some employers do require them.

The HSUA said it sought to process its application in accordance with the requirements of the Structural Efficiency Principle and in a manner consistent with the Wage Fixing Principles as a whole. It denied that the completion of the minimum rates adjustment process prevented it using the Structural Efficiency Principle or that it should have utilised the work-value principle to gain any award changes at this time. Ms Harvey said it had been made quite clear in earlier proceedings that a "structural efficiency" exercise was necessary and was to follow earlier variations.

The National Wage Case decision of 19931 which was adopted by the Tasmanian Industrial Commission made it clear that there are no restrictions placed on the use of the "Structural Efficiency" Principle, but rather the Commission encouraged the process as ongoing.

It was further argued that the requirements that trade unions justify structural efficiency change in terms of proving the relativities being sought precludes double dipping.

The TCCI was being inconsistent, according to the HSUA, in basing its own claim on the Structural Efficiency Principle and then opposing the use of the same principle by the union.

Comfort for the HSUA approach in this matter was claimed from the Decision of the Full Bench in matter T No 2399 of 1990. Ms Harvey pointed out that her organisation was not seeking to move an entire classification of employees as occurs with work-value cases. Rather, it sought to establish a skill-based career path and then to have assessed each individual employee against the relevant criteria.

The HSUA said it rejected the argument that it cannot go beyond existing classifications in the award i.e. 115% without a work-value case or addressing first award principles and refused to accept that its application extended the award to award-free areas. It pointed out that the incidence of the award was set by the scope which explicitly covered the industry as a whole and there were no exclusions of occupational groups.

It was said that Levels 6 and 7 of the HSUA's application comprehended work undertaken in existing classifications. For example, the definition of Supervisor grade 1 Residential is a Level 6 position and a Functional Programmer Level 1 could be in Level 6 or 7 depending on their duties.

The HSUA's application was said to be consistent with the First Awards and Extensions to Existing Awards Principle as relativities were set by reference to the value of the work as required by the Structural Efficiency Principle.

Ms Harvey contended that it was not unusual for a Structural Efficiency Principle exercise to establish higher relativities and it was part of the process of establishing skill-related career paths as required by the Structural Efficiency Principle. It was denied that the matters contemplated in the HSUA application had already been considered by a work-value case in 1988 and Ms Harvey said that the practice of Structural Efficiency Principle exercises following a work-value exercise was not uncommon in the Tasmanian Industrial Commission. For example, the Physiotherapists, Occupational Therapists and Speech Pathologists Award was subject to a work-value case in 1987 (T.636) and was then subject to the recent public sector Structural Efficiency Principle exercise by a Full Bench. Similarly, it was denied that the HSUA application would have to have special case status or that the Structural Efficiency Principle required minimum cost outcomes.

Ms Harvey said it was her clear understanding that it was not the intention of the Tasmanian Industrial Commission that cost considerations override the objective of setting appropriate relativities. She said such an approach would frustrate the objective of the need to overcome wage instabilities in the system and the creation of a national framework of minimum award rates in order to protect employees, and particularly lower paid employees, as and when the community moved to a more flexible, decentralised wage system. According to the HSUA the TCCI application was not consistent with the Wage Fixing Principles as it did not provide a skill-based career path or meet other requirements of the Structural Efficiency Principle.

The question of the appropriateness of the relativities of each of the classifications contained in the HSUA application was addressed by Ms Harvey and she conceded that the "Structural Efficiency" Principle requires justification of relativities based upon skill, the level of responsibility and the nature of the environment in which work is usually performed.

Proof of the appropriateness of the relativities proposed in the HSUA application relied upon:

.   Consistency with the Metal Industries Award

.   Consistency with other relevant awards

.   The State Negotiating Committee's skills analysis.

It was argued that because the State Negotiating Committee jointly undertook the skills analysis through an agreed process, the outcomes should be given weight. Ms Harvey outlined the process used for the joint skills analysis and said the HSUA application, in effect, broadbanded the results of the skills analysis by using the definition from the highest classification level in the broadbanded rates.

The HSUA relied also upon the content of exhibit HSUA 5.2A which contained copies of advertisements in Tasmanian daily newspapers by organisations covered by this award who were seeking the services of persons. Such advertisements offered salary and conditions which apply to the public sector. They also sought persons possessing a degree or diploma as well as experience in the disability services area.

Detailed exhibits and submissions was presented by the HSUA to demonstrate that the classification structure which it proposed was consistent with the training reform agenda, which in turn represents a consensus by industry Australia-wide on the implementation of skill-based training structures to complement restructured awards.

Public interest criteria was also addressed in much detail by the HSUA who argued strongly that:

. The award already contains a number of variations concerning conditions of employment matters as part of the ongoing structural efficiency agenda and these need to be offset against any alleged costs.

. It was not possible to exactly estimate the cost impact of the HSUA claim because of the need to assess each individual against the proposed structure, but, in any case, the number of employees affected by the award change was likely to be small.

. It was important that wages were set according to industrial principles for all workers and that community service workers not be discriminated against because they work in a funded sector.

. The largest impact of the proposed changes was on the State Government administered area of accommodation and independent living services and the non-government sector saves the Government over $63,000 per group house, equating to a total saving of $4.7 million per annum.

. Improvements in service delivery will result because outcome standards rely on the skill of the workers due to the labour intensive nature of the work. This was recognised in standard 4 which required 'That there were appropriately skilled staff employed, under relevant awards, who were provided with ongoing support.

. HSUA's application would assist with ease of planning and the capacity of services to negotiate funding with the Department by establishing a clear framework and a capacity of services to negotiate skill mixes to achieve outcome standards.

. The equitable establishment of wages would improve retention of skilled staff. Retention of staff was important for the building of relationships between the support workers and clients.

. A skill-based career path would provide incentives to train, improve both skill levels and service delivery.

. There were benefits for clients and the community in improving service delivery. Clients and their families could attain a better quality of life and service delivery. The community ultimately benefited by a lesser degree of dependency of service provision by the State.

. The HSUA's application was in the public interest by avoiding gender bias. The HSUA argued:

- avoiding gender bias and discriminations in the public interest. Both State and Federal Governments had legislated against sexual discrimination.

- The submissions of the Sex Discrimination Commissioner to the National Wage Case highlighted the fact that some restructured awards had discriminated against women workers by establishing relativities in awards where women were the majority workers at rates less than in awards where the majority of workers were men despite equivalent levels of skill.

. The HSUA application met the tests recommended by the Sex Discrimination Commission to avoid gender bias by error-checking with the Australian Standards Framework.

. The Wage Fixing Principles allowed any employer to seek to reduce or postpone the application of any increase in labour costs on the grounds of serious or extreme economic adversity if they believe they can prove hardship.

Finally the HSUA pointed out that proposed variations to the award in relation to junior rates was an agreed matter and leave reserved was granted in relation to the following subject matters:

. Scope of the award

. Later deletion of junior rates

. Insertion of training clauses

. Extending the award to higher levels

. Review of the classification structure once the competency standards are finalised

. Removal of Division A

In opening the TCCI case in response and to the presentation of its own application Mr Fitzgerald said (inter alia):

"...the TCCI sees this as probably the most significant matter which has come before the Tasmanian Industrial Commission since the inception of the Structural Efficiency Principle.

Now we say that for a number of reasons. Firstly, to the best of my knowledge and best of my research ability, it in fact is the first fully arbitrated classification structure which includes definitions and assigned relativities, one to another, in the private jurisdiction - private sector - in this jurisdiction. The significance is also - and I'll take you to the section in terms of the Act - the significance also is the impact of changes in the way service is delivered to the disabled in terms of concepts such as community integration, social valorisation and normalisation - and we've heard those terms during the course of the HSUA submission and we'll certainly be hearing (them) during the course of our submission.

The other major significance we see, Mr Deputy President, is the cost implications for funding providers and for services and the potential impact on the delivery of service. We see the - the important need not to lose sight of client needs, values and wants in the sense that there is now greater emphasis on the individual client as far as personal development, self determination, independence and quality life.

Mr Deputy President, what the Commission is asked to do in terms of the competing claims, which are very much competing claims by the HSUA application and the TCCI application, is to consider the issues in the context of section 36 of the Industrial Relations Act 1984. And if I can take you to that, and it's one which I think is the cornerstone of the award making process in this jurisdiction and makes specific rather than general reference to the public interest. The public interest is specifically defined within the terms of section 36...."

Transcript p742

and later:

"Now, even though the Act is specific in terms of the economic position of any particular industry and the likely economic effects of the claim in Tasmania as a whole it is open ended to the extent that any other matter can be included within section 36(3).

Now, in that regard, we say that the most important aspect in terms of the public interest in this particular sector, the disabilities service sector, is the needs of the client, and we shouldn't lose sight of that. It is a paramount aspect of public interest and we shouldn't lose sight of that.

There is a requirement under section 36, it is a mandatory recognition of those criteria prior to making an award, and I am sure, Mr Deputy President, you in exercising your functions previously would be well aware of this and have recognised that in the past.

But in terms of my opening submission I emphasise particularly the needs and wants of clients, and there is one aspect which is particularly important in terms of section 36.

But not one factor should constitute that recognition, in my submission. It should be an amalgam of all those factors, but without losing sight of the needs of the clients.

And also on how management of services decide how to deliver the services.

And it is a particular point where we take strong issue with Ms Harvey's submission in respect to the so-called medical model, and I will be addressing that later.

And you will recall in some of the evidence which was presented by Ms Harvey that some of the witnesses indicated that there is a need for - a greater need for specialised employment - a specialised staff.

We say in our opening submissions only, and we will be addressing this in more detail, is that services themselves really are in the best position to determine their own staff needs, and the thrust of our submissions will be that in fact that need is not recognised by management of services. It is not recognised by funding sources in terms of the policies of normalisation and social betterisation, and in fact it is quite the contrary (and) that there is a need to use generic services outside the particular individual's services rather than engage staff, special staff, from within.

Transcript pages 743 and 744

Mr Fitzgerald submitted that this award covers a range of activities and different areas, some of which (and particularly the sheltered workshops) where there was evidence of low support needs among clients. In addition, the environment was peaceful and non-confrontist, in contrast to any assertions earlier made in the HSUA case that there existed daily tensions and incidents of violence.

It was further argued by TCCI that there were a wide range of services and settings covered by the scope of the Welfare and Voluntary Agencies Award which make it difficult to take a broad-brush approach as was adopted by the HSUA. Although Ms Harvey had categorically denied on a number of occasions that the HSUA supported the so-called medical model, Mr Fitzgerald said the thrust of the witness evidence clearly supported the need to employ more specialised staff within existing services. However, the TCCI position was that services have, as part of their normalisation policy, been encouraged to utilise outside generic services and they wish to continue to do that.

Mr Fitzgerald said that since the introduction of the Disability Services Act in 1986 the exclusively medical model type of service delivery has been replaced with an approach which takes into account, not only the requirement for the services to ensure physical well-being, but also to assist services in maximising their clients personal development, self determination, independence and quality of life.

In these opening remarks Mr Fitzgerald said the premises to be visited and witness evidence would support his views in this regard.

It was further stated that the significant increases in wage rates inherent in the HSUA application were not available under the general guise of the Structural Efficiency Principle. Whilst it was conceded that the HSUA reserved its position at the completion of the minimum rates adjustment process, this did not give them any special status, other than simply signalling that they wished to raise other matters later. They still had the onus of proving any further claims on merit and especially compliance with the Wage Fixing Principles.

The principles required that in the process of applying minimum rates adjustments there must be absorption of over-award payment and the cost impact must be minimal.

The submission pointed out that not only was the HSUA seeking to substantially move existing classifications to a higher level, such as 115% to 145% in one case, but it also sought to create further classifications which are not currently covered by the award. In this regard Mr Fitzgerald said:

"The TCCI intends to argue most strongly that as the HSUA application seeks to move substantially existing classifications to higher levels, therefore higher percentage relativities, this can only be done by clearly proving changes in responsibilities, skills or conditions under which a worker performs. In other words, a work value case.

The same principle, in my submission, can be applied to the union seeking to extend the award to levels of management which aren't at the moment contemplated within the award - I'm talking about Level 6 and 7 of the union application. This can't be done without reference to a particular principle, in other words - the principle I refer to is the work value principle...."

and later added:

"As indicated, the TCCI will run extensive industrial argument in support and will specifically analyse the Wage Fixing Principles as opposed the union broad brush approach which takes the line that a classification structure up to 160 per cent with significant movements from current classifications to translating to the new classifications and all the associated cost implications can be broadly categories under the title of structural efficiency which, in the TCCI's submission, is an absurd distortion of the principles.

As indicated in our early submissions, the thrust of the union case is that there is a need for more specialists to be employed within the services. The simple response to that will be by direct witness evidence that - will be in direct contravention - contradiction to the union position. The practices of normalisation and social valuisation now demand less involvement of special services.

We'll be arguing strongly - and this is where the industrial argument does interlink - that one of the basic tenets of the Structural Efficiency Principle is to make awards more appropriate. It's appropriate to the industry of the employer, so if the employers are saying that they don't need those specialist services, then the award shouldn't be made to cater for it. We shouldn't be making the award around a principle which the union is pushing which, in our submission, is falsely based. It's not for the - with respect to the Commission - or the union to create a structure which is not appropriate for the needs of services and for their clients."

Transcript p749

In continuing Mr Fitzgerald said that if the HSUA is right and the policies of normalisation and social values require higher levels of skill, then there should have been evidence of the engagement of persons with more specialist skills. However, the evidence which the TCCI would be presenting in that regard was, in fact, to the contrary. He said it could be shown that often unqualified staff are the ones who are highly valued, and often the use of people with a caring common sense approach in this industry is more appropriate than the obtaining of qualifications. He said:

"We will clearly show that simply because an employee holds a qualification in this industry that it doesn't naturally follow that a person is performing at a higher level and we're talking about that in this particular industry. To make comparisons with other industries is not always valid and that's - in terms of this claim we must look at how appropriate qualifications are for this particular industry."

Transcript p750

In turning to the question of outcome standards, TCCI submitted that the implementation of those standards does not impose any additional responsibility on employees. And, in fact, the reverse is true because standards which are imposed are well known and that provides a degree of certainty in performing tasks.

It was further argued that the standards which are part of the funding and services agreement with the Department of Community Health Services, and the implementation of those standards, encourages as many stakeholders as possible. This includes an involvement with clients, advocates, families, friends, employees and representatives of management and committees. Mr Fitzgerald said:

"It is the responsibility of management to ensure that the organisation is prepared for and completes at least an annual assessment against the standards. Whilst employees and consumers are expected to be aware of the standards and their use, they are not responsible for the service complying with the standard."

Transcript p750 and 751

The TCCI foreshadowed that in its evidence and submission it would look at the entire industry and not concentrate on the Community Integration Programs as the HSUA had done. Community Integration Programs were not representative of the disability services industry and TCCI would show, by work-place inspections and evidence, that there was a variety of settings ranging from the approach in group homes to sheltered employment which, in many cases, it was hard to distinguish with open employment and was run along commercial lines competing directly against other businesses in the market-place.

Mr Fitzgerald also said the TCCI's submission would address the issue of working alone which again varied enormously from setting to setting, depending on client needs and wants, to situations where employees could seek assistance in the case of emergencies from others who may be available or on remote call or from generic services which were available in the same way as they were to the whole community.

The TCCI said that its submission would also address the issue of duty of care which, given the normalisation principle, was a delicate balance between: firstly, what clients want; secondly, what was in the best interest of clients; and thirdly, the least restrictive alternative.

The TCCI would show by witness evidence and submission that the duty of care became less onerous as it complements the move away from the medical model.

The TCCI submission would also address the issue of behavioural management which it alleged was made great play of by the HSUA in submissions, which was not necessarily the norm in services and was not one which, in TCCI's submission, could be seen as a common factor.

Mr Fitzgerald told the Commission that the other issues which its submission would address were the programs themselves and funding implications, including the Commonwealth/State Disability Agreements, the Community Integration Program and Disability Services Grants Program and the fact that Government does not provide a hundred per cent funding for all of those services.

The final area which it would address was the history of the Welfare and Voluntary Agency Award which supported the view that since the advent of the Disability Services Act of 1986 a work-value case, which was before Mr Commissioner Gozzi, comprehended the normalisation and social values aspects which had already been rewarded by means of work value.

The Commission was told that in terms of the history of negotiations between the parties preceding this case the TCCI had cooperated to the maximum extent. But the reason that finally no acceptable resolution could be achieved and arbitration was needed was that the HSUA had pursued a model which was not only extreme in terms of its funding implications, but was a model based upon a past era which the industry did not want, nor did the Government want.

Following the introduction of sworn witness evidence, which I deal with later, Mr Fitzgerald responded in greater detail to the HSUA claim. In this context he said that whilst there had been lengthy negotiations conducted in relation to an award review, those negotiations eventually broke down. It was emphasised that none of the matters discussed during those negotiations were admissible, nor could they be considered as of any relevance because they were "without prejudice". In this regard Mr Fitzgerald said:

"We will be suggesting that any previous negotiations, including the commissioning of the Jenny Jones Report, are not relevant in terms of the overall arbitration in this matter."

Transcript p978

In his evidence-in-chief Mr Fitzgerald drew to the Commission's attention the "Reasons for Decision" issued by Mr Commissioner Gozzi on 18 May and 30 June 1986 in matter T295 of 1985. That particular matter concerned a consent application to vary the Welfare and Voluntary Agencies Award on the basis of proven work-value grounds which were accepted by the Commission at that time.

It was submitted that findings in that case were used in this case and that was inappropriate. In this regard Mr Fitzgerald said (inter alia):

"Now, if I can just take you to some of the evidence in this instant case, Mr Deputy President, much of what has been presented has been based on the new approaches of role valuation and normalisation and I think that is something which has come up regularly in not only the evidence of Ms Harvey's witnesses but also evidence as presented by witnesses by myself. Now, in that regard we say that this new approach is something which has already been taken into account in the assessment of wages, even though by consent, but it is something which has been taken into account by Commissioner Gozzi."

Transcript p986

TCCI explained that following the handing down of the decision in matter T295 of 1985 there were a number of negotiations which did not prove fruitful, and during the early '90s there were extensive without prejudice negotiations between the HSUA and the industry representatives under the auspices of what was seen as the State Negotiating Committee. Mr Fitzgerald said that in terms of the position reached by employers in that they agreed to endorse a minimum rate and broadbanding exercise only up to the maximum relativity which is currently contained within the award, and that is the 115%, which was the basis of the current application by TCCI.

It was argued that the HSUA application contains excessive relativities and an excessive structure with 160% as the maximum relativity.

Mr Fitzgerald put to the Commission that following the breakdown in negotiations, which occurred some time just prior to his personal involvement, the HSUA lodged its application which allegedly represented the unions maximum position, and in response TCCI made application in terms which can be pursued legitimately under the Wage Fixing Principles, i.e. the Structural Efficiency Principle.

Whilst acknowledging the very good work done by Ms Jenny Jones in relation to the preparation and content of her skills analysis report, Mr Fitzgerald pointed out that the report was never endorsed by either party. Furthermore, it was submitted that the Jones Report was valid only to the extent of recognising classification definitions and skill levels for an integrated career-path award up to only the equivalent of the 115% level.

Mr Fitzgerald categorically stated that there was no authority for the report to contain recommendations beyond that point. Referring to this position Mr Fitzgerald said, (inter alia):

"Now, Mr Deputy President, following the break down of those negotiations and that occurred some time just shortly prior to my involvement, the HSUA made an application which I think, and I am not able to obviously, because they are in our view, very much without prejudice negotiations but made an application which was, if you like, the union's maximum position and in response the employers responded by making an application which in our view clearly indicates what can be pursued legitimately under the Wage Fixing Principles, that being the Structural Efficiency Principle. That being up to the maximum relativity of 115 per cent.

Now, in terms of much of the work done, particularly the evidence by Ms Jenny Jones, we acknowledge certainly the work done by Ms Jones and obviously the very good work done, but I simply say that the report was never endorsed by either parties. Now, the report in that respect is - or the acknowledgment of the report by the employers is valid only to the extent of 115 per cent. There was no authority, although I think it was addressed in the report, but there was no authority to proceed beyond that point.

Now, that being the case we say that the evidence presented by Ms Jones, although well presented, does not assist the Commission in any way because again it was a period of negotiations - as you will probably recall Mr Gates was also involved from our organisation's point of view. They were there engaged, I understand, to assist the parties to identify particularly the school levels within the industry, but we would submit that no special status should now be given to the Jones report, if I can call it the Jones Report, simply because - I think probably to be a bit more respectful, the Jenny Jones Report - we say that there should be no special status given to that report because it existed during a period of without prejudice negotiations and even though it may have been an attempt to assist the parties at the time, there was no endorsement of that report so we say that the evidence given by Ms Harvey by - well, the evidence by Ms Jones does not assist the Commission in determining this application"

Transcript pages 991 and 992

Next Mr Fitzgerald quoted extensively from the Commission Wage Fixing Principles issued 24 December 19932 and in particular the Structural Efficiency Principle. It was put that the TCCI application conformed with the fundamental requirements of the principle, but that the HSUA application did not because it sought structures which exceeded 115%. Whilst the TCCI proposal would result in some increases through application of the translation process from the old to the new, such increases would be only minimal and this is consistent with the overall spirit and intent of the principles.

Argument was put that the Work Value Principle and the Structural Efficiency Principle were mutually exclusive, and that regard had to be had to the "First Awards and Extensions to Existing Awards Principle" in the context of the HSUA's attempt to include classifications 6 and 7 in the award which would inappropriately embrace persons who are at management or middle management level and whose positions have not been work valued.

Reference was also made to earlier National and State Wage Case decisions to demonstrate, in particular, that any increases should be minimal. TCCI also argued that the HSUA had not discharged the onus of proof to show that extending the range of classifications to at least Level 7 and with a 160% relativity.

Similarly, it was argued that the introduction of other awards as HSUA exhibits amounted to no more than a comparative wage-justice-type argument, which is proscribed.

Mr Fitzgerald then put forward the proposal that, given the circumstances which prevailed, the only way left open to the HSUA within the principles to justify the full extent of its claim was through seeking that the Special Case Principle be utilised.

Following the Commission's request that efforts be made to quantify the possible costs implications relating to both applications, TCCI exhibit number 10 was provided. These costings were of necessity based upon a number of assumptions, such as the manner in which translation of existing occupants of positions to new would occur. It was shown that there could actually be notional savings made in some instances. The examples provided were useful as a guide in clarifying the possible cost impact, even though it was not possible to provide industry-wide total costs.

Turning to what was described as issues differences, Mr Fitzgerald dealt with the question of what was meant by the expression of "working alone" in residential services and how this should be interpreted in terms of the HSUA application and especially how this definition relates to the definition of "general supervision". In this regard Mr Fitzgerald said that in terms of the HSUA description of a Level 3 "disability services worker" that does not encompass in any way the working alone situation. This concern was expressed as follows:

"Now, again, it is our perception, Mr Deputy President, that this is one of the major areas of difference in that the description contained within the HSUA application translates those working alone to that particular level and no lesser level and we would submit in terms of the application - sorry, in terms of the evidence, that there is adequate support and in terms of policies and procedures which have clearly been indicated are in place in many organisations, there is indeed a structure of support and there are procedures, particular in emergency situations, which can be invoked and are well known to employees which clearly indicate that there is a level of support outside the particular house but available at short notice and we saw in evidence a whole host of modern technologies being utilised. I think pagers, mobile phones. There was, indeed, in looking at the evidence of Mr Rodwell, a structure set up where if a supervisor of a particular house required support then they could - there was a network set up where they could call on support from fellow supervisors.

I refer to the evidence of Ms Di Thomas from Euphrasia where she indicated maybe it is not always desirable but she indicated that she was on call via means of a mobile phone. We also saw, Mr Deputy President, situations where quite clearly in emergency situations there was use of generic services, doctors, ambulance services, etcetera. Now, we see that that is a major area of difference between the TCCI case in terms of the evidence and inspections and the HSUA case, and in summary we would submit, Mr Deputy President, that the supervisor in accommodation services working alone properly and fairly translates to Level 3.

Now, simply because there is a range of services, support services, and structures within organisations which will enable the employee to call upon those services and take care of situations which may be out of the ordinary, it is not, Mr Deputy President, as suggested by Ms Brady in her evidence - I think she used the words that the staff do the best they can without any support, it is not - that is not the evidence which is clearly shown within the industry.

Transcript Pages 1037 and 1038

Speaking to that part of the HSUA application which sought the inclusion of disability service worker Levels 6 and 7, Mr Fitzgerald said (inter alia):

"Now, again in terms of award restructuring, Mr Deputy President, we say that awards should be appropriate.

The evidence given on behalf of employers is that there was a need for flexibility required in terms of particularly the hours, in terms of those positions being outside the award. There is no doubt, particularly within the HSUA application, that the structure which is based on the broad automatic progression criteria, and I will address that later, that if those positions are within the award then current employees will aspire to them. Now, there is nothing wrong with that necessarily but it may be that they have a perception with the general descriptors contained within the HSUA application that they could be more appropriately classified at the higher levels, particularly Levels 6 and 7.

Now, that, in my submission, will see a further cost implication as a result of the HSUA application. The industry clearly indicated that it was inappropriate that the award encompass Levels 6 and 7; there was no demonstrated need, apart from some very simply - sorry, simple is the wrong word, I am sorry, I retract that - some very basic evidence from Ms Joanne Dickenson that she might have perceived herself at that particular level, but there was no demonstrated need whatsoever by the union's application to indicate that the award should encompass those positions.

Now, again, because of the nature of those positions, management requires that flexibility, and if they are encompassed within the award as contemplated by the HSUA application then in my submission that will be unduly restrictive and in my submission therefore is contrary to both the spirit and the intent of the Structural Efficiency Principle which is of course to enhance flexibility."

Transcript p1039

Another area of difference between the two applications which was addressed in some detail concerned the inclusion in award prescriptions which recognised and rewarded skills acquired as opposed to skills required. TCCI stressed that the award should only recognise skills required to be utilised by the employer because they are relevant to the job. This position was said to be supported by reference to a private print of the Timber Industry Award 1990, which was made the subject of an exhibit [TCCI (11)], and in particular relates to the question of "Promotional Criteria" which is, quote:

"An employee remains at this level until capable of effectively performing through assessment or appropriate certification the tasks required of the next level so as to enable progress as a position becomes available."

Supporting material submitted by TCCI relating to the same subject matters was tendered in the form of extracts from the Drafting and Technical Officers (Private Sector) Award [TCCI (12)] and the Clerical and Administrative Award [TCCI (13)] - both being awards of this Commission.

Mr Fitzgerald also provided exhibit [TCCI (14)] which consisted of information regarding the provisions of services to people with disabilities through the Disability Support Services Division of the Department of Community and Health Services. TCCI said that this document supported his argument that only management is responsible for meeting the standards set by legislation. In particular attention was drawn to that part of the departmental document which said:

"While employees and consumers are expected to be aware of the Standards and their use, they are not responsible for the service complying with Standards."

Further documentation presented by TCCI went to the related questions of: stress levels among employees; work satisfaction; use of skills; the incidence of grievances and/or disputes; staff turnover. Survey results in this regard were generally indicative of: little absenteeism; a low level of staff turnover; no evidence of stress; but rather that most staff experienced job satisfaction according to the TCCI evidence.

Another area of important differences highlighted by TCCI concerned the use of generic services. Whereas the HSUA had allegedly claimed the use of generic services as inadequate and not always practicable for one reason or another, TCCI said it was shown in evidence that this was not the case, and that generic services are indeed adequate and is the preferred option which was an integral part of the policy of normalisation.

Mr Fitzgerald reviewed the evidence of witnesses generally together with that which was seen on inspections, all of which he said reinforced TCCI's case in respect of its own application, as opposed to that of the HSUA.

In his concluding remarks Mr Fitzgerald submitted that, in the terms of his organisation's application, any increases in wage rates should be phased-in over four (4) financial years, commencing from the date of decision.

In terms of conditions of employment matters contained in the employer application, it was submitted that the provision put forward in respect to junior employees is a reasonable and logical way to proceed in terms of rationalising the junior scales within the award.

All other conditions of employment matters contained in T.5110 of 1994 are to be reserved at this time and made the subject of further discussion with the HSUA, and in the event of them not being agreed would be proceeded with by way of arbitration.

DECISION

A. WAGE FIXING PRINCIPLES

An important element in respect of both applications was the question of compliance with the Commission's Wage Fixing Principles.

Ms Harvey argued that the HSUA claim was on all fours with the requirement of the "Structural Efficiency" Principle in particular, and that the comprehensive skills audit which was expertly and comprehensively carried out and the percentage relativities between classifications and the accompanying definitions etc followed guidelines determined in the August 1989 National Wage Case decision3 as subsequently adopted by this Commission.

The TCCI application was made pursuant to the "Structural Efficiency" Principle also and bore a similarity to that of the HSUA in that it contained definitions and a revised structure for the classifications of disability service workers but Levels 1-5 only. However, in other respects it contained some fundamental differences. Apart from including proposed changes to conditions of employment the TCCI application made provision for more prescriptive progression criteria and the recognition of skills and qualifications acquired unless specifically required by an employer and recognised by being appointed to a position. In addition the TCCI application contained lower salary levels because:

(a)  there was a cut-off point at Level 5, and

(b)  some percentages were calculated at a lower level for similar classifications.

Mr Fitzgerald expressed the view that because the HSUA application would, in his view, translate into high cost increases it was inconsistent with the "Structural Efficiency" Principle. In this regard he referred to the National Wage Case, Full Bench, decision4 of August 1988 and quoted from page 6 which said, inter alia:

"We expect that any resultant restructuring will be done primarily by consultation and at minimal cost."

TCCI also argued that the present case put by the HSUA contained similar material to that which was put to Mr Commissioner Gozzi in a review of the award pursuant to the "Work Value" Principle in 19865 and that if the HSUA claim was granted it could constitute a degree of double counting.

Mr Fitzgerald also referred to the Commission's principle titled "First Award and Extensions to Existing Awards". In particular, reference was made to the following:

"(b)  In the extension of an existing award to new work or to award-free work the rates applicable to such work will be assessed by reference to the value of work already covered by the award."

My response to all that has been put to me, in relation to what is allowable by the Principles in the context of the two applications before me, is firstly that it is important to remember that since their inception the Principles of Wage Fixation have evolved over time, and successive decisions have largely built upon and strengthened the concept of creating mutual employer/employee benefits through award restructuring and promoting efficiency in industry. Thus it is necessary to follow the history of the Principles as a whole and guard against the use of selective quoting of component parts in isolation.

The "Structural Efficiency" Principle was introduced in the August 1988 National Wage Case decision6 and subsequently adopted by this Commission with only minor variations to accommodate the Tasmanian system.

The fundamental elements of the then new Principle embraced the following:

.  establishing skill-related career paths which provide an incentive for workers to continue to participate in skill formation;

.  eliminating impediments to multi-skilling and broadening the range of tasks which a worker may be required to perform;

.  creating appropriate relativities between different categories of workers within the award and at enterprise level;

.  including properly fixed minimum rates for classifications in awards, related appropriately to one another, with any amounts in excess of these properly fixed minimum rates being expressed as supplementary payments;

.  addressing any cases where award provisions discriminate against sections of the work-force.

In its decision of 12 August 1988 the Full Bench of the Australian Conciliation and Arbitration Commission also said it would require any union seeking an award variation to give effect to certain increases decided at that time to commit itself formally to a review of the award to give proper effect to the Structural Efficiency Principle.

In the present case there has been no suggestion that the HSUA has not accepted and given effect to its commitment in this regard.

Importantly, the same decision also made it clear that it was expected that any resultant award restructuring would be done primarily by consultation and at minimal cost.

A number of interesting and useful comments came out of the Australian Industrial Relations Commission Full Bench decision7 of 7 August 1989 in relation to the Structural Efficiency Principle, and those comments relate directly to issues which arose in the course of this case and are to be found at page 8 of the August 1989 decision, i.e.:

"It is our intention that the translation of workers to new classification structures in the various awards should occur with little cost impact apart from that resulting from the structural efficiency adjustment."

(Underlining mine)

and later:

"When the structural efficiency exercise involves reducing the number of award classifications by broadbanding and multi-skilling it is important that the intent of the broadbanding and multi-skilling be effectively implemented. Hence workers should not be placed in a classification unless they have the training and experience necessary to perform the full range of the functions comprehended by the new classification and are actually required to perform those functions. Consequently the parties should ensure that sufficient time is provided for immediate training needs and, where necessary, on the job experience before finalising the translation of existing employees to the new classification structure. In moving to the new classifications the parties should consider stepped wage increases up to the new classification levels."

(Underlining mine)

Concurrently the same Full Bench introduced MINIMUM RATES ADJUSTMENTS and provided guidelines to parties in relation to the setting of appropriate relativities both between classifications within the one award and also between comparable classifications in other awards. This was expressed as follows at page 8 of the decision:

"Subject to what we say later in this decision, we have decided that the minimum classification rate to be established over time for a metal industry tradesperson and a building industry tradesperson should be $356.30 per week with a $50.70 per week supplementary payment. The minimum classification rate of $356.30 per week would reflect the final effect of the structural efficiency adjustment determined in this decision.

Minimum classification rates and supplementary payments for other classifications throughout awards should be set in individual cases in relation to these rates on the basis of relative skill, responsibility and the conditions under which the particular work is normally performed. The Commission will only approve relativities in a particular award when satisfied that they are consistent with the rates of relativities fixed for comparable classifications in other awards. Before that requirement can be satisfied clear definitions will have to be established."

Importantly the Structural Efficiency Principle incorporated the following wording (page 22 of the August 1989 decision) in:

"Structural efficiency exercises should incorporate all past work value considerations."

and of particular significance is the complementary wording of the "Work Value Changes" Principle contained in the same decision on the same page, i.e.:

"(g)  Any changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed, taken into account in assessing an increase under any other principle, shall not be taken into account in any claim under this principle."

The reason I have used these quotes is to support my findings made in the context of the two applications before me, and in the context of arguments raised by the parties during this particular case.

My findings in this regard are:

The Structural Efficiency Principle and the Work Value Changes Principle ought not, in a strict sense, be categorised as mutually exclusive, but rather it would be more accurate in my view to regard them as separate principles designed for different purposes. It should be self evident that the former is designed to (inter alia) modernise and make more appropriate classification structures and conditions of employment whereas the latter principle is to measure changes in the nature of the work, skill and responsibility required or the conditions under which work is performed.

The proving of change which results in a significant net addition to the value of the work will ordinarily justify a wage increase to the actual workers involved, but the creation of a new structure with definitions and appropriately assigned relativities may, through translation, result in some employees being eligible for a wage increase, others maintaining the same wage rate, and yet a third group being notionally down graded.

I find that in the context of both matters before me the "Structural Efficiency" Principle is appropriate to be used based upon the award history, provided:

(a)  the likely resultant cost is not excessive;

(b)  the classification structure and associated matters are relevant to the industries described in the scope of the award;

(c)  the structural efficiency exercise incorporates all past work-value considerations.

I am not satisfied that the HSUA application nor the TCCI application, if accepted without modification, would accurately meet all of the relevant criteria. For these reasons my decision represents a different position to both applications and is designed to, in fact, be consistent with the "Structural Efficiency" Principle.

It follows that since this is an arbitrated matter the outcome decided upon excludes consideration of any other principle, other than the Economic Incapacity Principle which is available to any party for consideration on merit upon application.

B WITNESS EVIDENCE

Sworn evidence was provided by the following persons:

(a)    For the HSUA

(b)    For the TCCI

The prosecution of both cases relied upon witness evidence. Without exception the calibre of witnesses was high and the sincerity of their respective contributions was never in doubt.

Given the nature of the industry covered by this award and the common purpose of rendering the best possible outcome for clients of the various welfare services I believe it would be inappropriate to individualise or to highlight those features of witness evidence which differed. Suffice is to say, that amongst the most significant aspects raised by witnesses I am able to conclude as follows:

(a)    Use of generic services as opposed to the "medical model"

(b)   Incidence of stress

(c)    Supervision and instruction

(d)    The need for training and qualifications

(e)    Skills analysis and relativities to Metal Trades Award

"The classification levels were written with the Metal Industry Award as a guide, however this required considerable translation to meet the requirements of a disability services' award."

[Page 1] (Underlining mine)

"We are not prepared to approve specific wage relativities proposed by the ACTU on behalf of the trade union movement. Nevertheless, we consider it appropriate for relativities to be established for both minimum classification rates and supplementary payments for the following key classifications within the ranges set out below:

[pages 12 and 13]  (Underlining mine)

(f)    Intervention on behalf of the Crown and public interest

"The funding issues will obviously have to be examined closely when award changes are finalised. It will only be at this stage that the complete financial impact can be determined. In other words, we cannot pre-empt a decision of this Commission. A minister has a responsibility to ensure that all public funds subject to his control are allocated on a basis of highest demonstrated need and that the funds are effectively utilised in the best interests of client care. In order for the minister to be satisfied of this a number of factors will need to be looked at. These will include an assessment of organisations capacity to meet the increases from within their current budget allocations and an examination of all options which may enhance effectiveness and efficiency in service delivery and administration.

As the minister indicated in his comments, further discussions will also have to take place with Commonwealth representatives in relation to joint-funded services. While no guarantees of supplementation have been given at this stage the minister will continue to negotiate to achieve this outcome. It should also be emphasised that at present the cost impact is not known. As you would no doubt be aware, the Commonwealth Department of Human Services and Health is conducting a full financial assessment of the changes to the award. A more accurate picture of the total cost will be available when this process has been completed."

Transcript p.966 and 967 (13/11/1994)

Decision Summary

I have decided to vary the Welfare and Voluntary Agencies Award in a modified form in order to meet the limitations and restrictions imposed by the application of the Structural Efficiency Principle and the Wage Fixing Principles as a whole as earlier explained in detail.

The structure which I have endorsed comprehends the need to:

(a)   Improve the efficiency and delivery of a quality service to the industry covered by the award and provide workers with access to more varied, fulfilling and better paid jobs.

(b)   Establish skill-related career paths which provide an incentive for workers to continue to participate in skills formation.

(c)   Recognise the need to minimise cost increases pursuant to the requirements of both the Wage Fixing Principles currently in force and Section 36 of the Act (public interest).

Whilst the HSUA's claim (as amended) sought seven (7) levels of "disability service worker" I am not convinced that award prescription beyond Level 5 can be justified at this time. I have supported a relativity of 130% for the top of the Level 5 scale and consider this will provide both incentive and proper reward for employees at this time.

Leave is reserved for inclusion of higher levels in the future in the light of any changed circumstances, especially if national competency standards are established and confirmed as appropriate to the disability services industry. However, I would expect this industry to be allowed an interval of time to settle down and re-assess its position in the light of present changes before having to contemplate further classification extension.

I have decided that it would be inappropriate to determine the question of recognition of formal qualifications and accelerated progression of employees at this time given the lack of clarity which existed. The parties should continue to negotiate this issue and therefore leave is reserved for further application to be made in respect of this subject matter.

Details of classifications with definitions, terminology, classifications and percentages are appended, as is promotion criteria and incremental progression.

Whilst I endorse the general thrust of the "translation process" put forward by TCCI, particularly as it relates to a consultative process with employees and the resolution of disputes if they arise, the question of translation to the new award structure cannot, in my view, appropriately be reduced to one simple award formula which would meet every contingency.

At this stage translation is a domestic issue through interpretation of the definitions and indicative tasks now provided in the award compared to position descriptions of duties required of each individual.

I endorse the variation to provisions in relation to juniors (other than clerk) which I understand is agreed.

Other conditions matters contained in TCCI's application are reserved.

Operative Date

The HSUA raised objections during the hearing to alleged unnecessary delays in bringing this case to a conclusion and attributed blame in this respect to the employers. The HSUA therefore contended its members were entitled to have award variations given a retrospective date of effect. I refused to rule on that part of the union application before the issues relating to merit were concluded but promised to take this argument into consideration at the appropriate time.

TCCI denied that it had caused any unnecessary delay and in turn formally claimed a phasing-in of any wage increases to ease the financial impact over a period of four (4) financial years.

The Act is quite clear in relation to this subject matter and provides that:

"37(4) Subject to this section, the provisions of an award have effect on and from the date on which the award is made or on such later date or dates as the Commission determines and as is or are respectively specified in the award.

37(5) The Commission may, in an award, give retrospective effect to the whole any part of the award -

(a)  if and to the extent that the parties to the award so agree; or

(b)  if, in the opinion of the Commission, there are special circumstances that make it fair and right to do so."

The hearing, which followed at least two and a half years of failed negotiations, was longer than usual and at times was conducted in a strained atmosphere.

TCCI had to respond to a great deal of detailed material and it would be unfair to find that the timing of their responses should be treated as constituting "special circumstances" in terms of Section 37(5) of the Act.

The reality is that the drafting of orders and drawing up of job descriptions which are necessary following the release of this decision are going to require further time at a busy period of the year. Nevertheless, it is essential that these tasks are completed promptly.

In all of the circumstances it is my decision that all variations now decided have effect from the beginning of the first full pay period to commence on or after 1 January 1995.

Orders

The parties are requested to provide draft orders. Order

A ROBINSON
DEPUTY PRESIDENT

Appearances:
Ms R Harvey with Mr C Brown for the Health Services Union of Australia, Tasmania No. 1 Branch
Mrs H Dowd for Australian Municipal, Administrative, Clerical and Services Union
Mr W J Fitzgerald for the Tasmanian Chamber of Commerce and Industry Limited
Mr M Jarman intervening for the Minister administering the Tasmanian State Service Act 1984

Date and Place of Hearing:
1994.
Hobart:
May 27
June 10, 22, 23, 24
July 6, 7, 8, 13, 22
August 1, 4, 5
September 6, 29, 30
October 7, 13, 19, 28

APPENDIX 'A'

Delete the definitions in 7(c) and replace with the following:

7(c) For the purpose of Division B:

(a) GLOSSARY OF TERMINOLOGY

`Client' means a person with sensory, physical, and/or intellectual disability who is not employed under the terms and conditions of this award.

`Close Supervision of Clients' means the supervisor checks the work of the client(s) on a regular basis, giving direction as required.

`Direct Supervision' means there is limited responsibility for the final outcome of work undertaken because limited discretion only is available to select the appropriate means of completing the task. Conformity with instruction is measured by the satisfactory completion of allocated tasks.

`Disability Service Worker' means an employee who is employed under the terms and conditions of this award.

`General Supervision' means that general instructions are given and tasks are undertaken to achieve the required outcomes or objectives. Discretion and choice in selecting the most appropriate method for completing the allotted tasks is expected and encouraged.

`General Supervision of Clients' means the supervisor checks the work of the client(s) intermittently, or the supervisor may work in a team with the client(s) where checking occurs as part of that team work.

`Limited Supervision' means that work is undertaken within established objectives with little guidance. Conformity with instructions measured in terms of the achievement of stated objectives senior management agreed standards.

`Non-Supervisory Disability Service Worker' means a Disability Service Worker (as defined herein) who does not directly or indirectly train and/or supervise clients.

`Training of Clients' means the teaching of specific skills by the use of a variety of training techniques that includes instruction, demonstration and supervision.

`Year of Experience' means 1976 hours of continuous employment at the relevant classification incremental level contained herein and shall include experience in the relevant classification incremental level with an employer providing a similar service under the award.

(b) GENERAL REQUIREMENTS OF ALL CLASSIFICATION LEVELS

(i)  All Disability Service Workers shall to their level of training, exercise a duty of care at all times, performing work to workplace standards including those related to Occupational Health and Safety and to current Disability Legislation proclaimed by the Commonwealth and State Parliaments.

(ii)  All Disability Service Workers shall identify, report and rectify to their level of training deviations from Occupational, Health and Safety Standards.

(iii)  Disability Service Workers shall to their level of training, recognise and correct, where relevant, deviations in quality standards of their own work and where relevant that of employees at the same or lower classification levels.

(c) ADULT CLASSIFICATION DEFINITIONS FOR EACH LEVEL

DISABILITY SERVICE WORKER - LEVEL 1

RELATIVITY TO LEVEL 4 (a) - 78%

GENERAL

An employee at this level is without previous relevant experience and is undertaking a period of structured in-service training that includes:

-  information on the enterprise
-  conditions of employment
-  introduction to supervisors and fellow workers
-  introduction to working with people with disabilities
-  training and career path opportunities
-  occupational health and safety
-  duty of care
-  quality assurance
-  workplace policies and objectives

An employee at this level works under direct and close supervision performing routine basic duties and is undertaking a period of structured induction.

Criteria for Extension of term in Level 1 beyond three months

An employee who enters the industry and is unable to meet the competency requirements of Level 2 will remain at Level 1 for a maximum of three months unless an extension for up to a further three months is agreed by the employer and the employee. Extension of the term of Level 1 beyond three months will only be considered when:

-  the employee has participated in a structured and documented skills development program which sets out and covers the standards of competence the Level 1 worker is required to achieve for progression to Level 2 (a);

-  any deficiencies in the performance of the employee during the skills development program have been described clearly to the employee at the time they have occurred and standards for acceptable performance have been made clear to the employee;

-  suitable conditions have been provided for training including sufficient time, appropriate environment and equipment and a skilled trainer; and

-  given the above the employee has not reached the standards of competence set down in the skills development program.

Process for Extension of the Term in Level 1 Beyond Three Months

Where an employer proposes that the term an employee will spend in Level 1 should be extended beyond three months the following actions will be taken at least three weeks before the expiration of the initial three months:

-  the employee will be advised in writing. This advice will set out clearly the areas where the employee has not reached the competence standards required for progression to Level 2 (a) and are set out in the skills development program;

-  subsequent to the advice of intention to extend the period in Level 1 beyond three months being issued a meeting will be held between the employer and the employee, and if the employee so wishes, a representative of the employee of his/her choosing. At this meeting the parties will develop and agree on a plan (including time frames) to assist the employee to develop competence to the required standard in the areas identified as deficient and agreed with the employee. This plan will be documented and signed by all parties present.

-  The employee will be notified immediately by the employer if any further problems arise during this extension period.

INDICATIVE TASKS

An employee at this level performs tasks to the level of his/her training. Indicative of these tasks are routine basic duties which may include:

-  domestic duties such as cleaning, laundry/washing and cooking;

-  generic gardening duties such as mowing, weeding, pruning and planting;

-  basic maintenance duties including workshop cleaning and cleaning of residences;

-  introduction to clients.

DISABILITY SERVICE WORKER - LEVEL 2

RELATIVITY TO LEVEL 4 (a)

POINT OF ENTRY

New employee or employee with relevant experience at Level 1.

GENERAL DESCRIPTION

Shall be non-supervisory Disability Service Worker (as defined) who is accountable for their own work, using some discretion, works under general supervision of employees at higher levels.

May work individually or in a team environment and may have limited interaction with clients.

INDICATIVE TASKS

Indicative of the tasks an employee at this level is required to perform are:

- general domestic tasks, including cleaning, laundering, washing and cooking;

- gardening or ground maintenance including mowing, weeding, pruning and planting;

- basic maintenance including workshop cleaning and cleaning and care of residences;

- routine and general production tasks.

DISABILITY SERVICES WORKER - LEVEL 3

RELATIVITY TO LEVEL 4 (a)

GENERAL DESCRIPTION

An employee at this level is required to perform work above and beyond the skills of a Level 2 employee to their level of training and is competent to perform work within the scope of this level.

At this level an employee may:

- undertake a range of activities requiring the application of skills and knowledge at a higher level than Level 2 employees;

- be subject to supervision and may work individually or in a team environment;

- perform work that is performed within established routines, methods, standards and procedures;

- have limited scope to exercise initiative but uses limited discretion in applying work practices and procedures;

- be accountable for their own work within the scope of this level;

- be required to assist employees at higher classification levels with specific projects;

- understand and use a limited range of non-verbal communication;

- have an understanding of work procedures relevant to their work area and may provide assistance to employees at lower classification levels concerning established procedures to meet the objective of a minor function;

- be required to resolve minor work procedural issues in the relevant work area within established workplace constraints, and to the employee's level of skill and training;

- have access to staff at a higher level.

INDICATIVE TASKS

In addition to the tasks of employees at lower levels, an employee at this level performs tasks to their level of training. Indicative tasks may include:

GENERAL

- undertakes simple training assignments of clients under supervision;

- driving a public passenger vehicle licensed to carry more than 12 passengers;

- driving a forklift or similar mobile equipment;

- driving a truck or vehicle requiring a driving licence of more than 4.5 GVM but does not include a licence to drive an articulated vehicle or higher standard licence category;

- maintain daily records as a result of activities at this level.

SUPPORTED EMPLOYMENT SERVICES

- wide range of routine production tasks, including, but without limiting the generality thereof; repetition work on automatic, semi-automatic or single purpose machines, welding, use of relevant tools, boiler attendance, lubrication, machine setting, loading and operation;

- assist other Disability Service Workers in the production process;

- operate of a computer terminal;

- adhere to quality assurance procedures and practices;

- provide general or close supervision for up to nine (9) clients who are undertaking work tasks;

- undertake training and assessment of clients in specific vocational skills within the scope of this level.

ACCOMMODATION/INDEPENDENT LIVING TRAINING SERVICES

- participate with employees at higher levels, in the development and implementation of training programs for clients within a team environment.

- assist and support clients in daily care;

- assist and support clients to undertake and manage household routines and tasks;

- assist in the maintenance of records if required;

- undertake client-training assignments, within the scope of this level;

- assist in the development and implementation of training programs within a team environment.

DISABILITY SERVICE WORKER - LEVEL 4

RELATIVITY TO LEVEL 4 (a):

GENERAL DESCRIPTION

An employee at this level is required to perform work above and beyond the skills of a Level 3 employee and to their level of training, and is competent to perform the work within the scope of this level including an employee who holds a relevant certificate level qualification, including (a) trade certificate or (b) trades right certificate or equivalent thereto.

PROVIDED that an employee who is not required to interact with clients shall not progress beyond increment Level 4 (a) hereof;

At this level an employee may:

- supervise employees at lower classification levels;

- work under general supervision and will use discretion within the scope of this level working individually or in a team environment;

- undertake work that may be non-routine in nature and be subject to pre-set objectives for work assignments;

- without limiting the generality thereof, supervises Disability Service Workers classified at lower classification levels and their clients including, checking progress and co-ordinating workflow.

- accountable for their own work and the work of others;

- use initiative, discretion and judgment in planning and organising work and techniques for own work and that of employees at lower classification levels and clients.

- understand and use a limited range of non-verbal communication;

INDICATIVE TASKS

In addition to the tasks of employees at lower levels, an employee at this level performs tasks to their level of training. Indicative tasks may include:

SUPPORTED EMPLOYMENT SERVICES

- schedule and prioritise own work and that of Disability Service Workers at lower classification levels;

- supervise, instruct and assist with the training of Disability Service Workers in classifications at a lower level and responsible and accountable for the work of Disability Service Workers at lower classification levels and their clients;

- complete all necessary documentation and reporting;

- supervises ten (10) or more clients requiring general supervision to operate safely to standards;

- undertakes training and training assessment of clients in specific vocational skills within the scope of this level;

ACCOMMODATION/INDEPENDENT LIVING TRAINING SERVICES

- develop and implement training programs for clients in basic skills;

- undertake training and skill assessment of clients;

- assist and/or support clients in attending to their care using discretion and judgment about most appropriate actions at a higher level of skill than classification Level 3;

- participate in networks with other service providers and community resource providers;

- train clients in a broad range of tasks using a range of techniques, aids and methods;

- instruct and assist with the training of Disability Service Workers engaged at lower level classifications;

- complete necessary documentation and reports as specified at the workplace.

DISABILITY SERVICE WORKER - LEVEL 5

RELATIVITY TO LEVEL 4 (a)

GENERAL DESCRIPTION

An employee at this level is required to perform work above and beyond the skills of a Level 4 employee and to their level of training, and is competent to perform work within the scope of this level.

At this level an employee may:

- work under limited supervision subject to a clear strategy plan and budget;

- provide technical guidance, expertise and advice;

- be responsible and accountable for the organisation and output of other Disability Service Workers who have responsibility for the care, training and supervision of clients, and shall display a more advanced level of skill in managing time, setting priorities, planning and organising work than an employee classified at Level 4;

- understand and implement quality assurance techniques;

INDICATIVE TASKS

In addition to the tasks of employees at lower levels, an employee at this level performs tasks to their level of training. Indicative tasks may include:

SUPPORTED EMPLOYMENT SERVICES

- allocation of work and responsibility for identifying, applying and achieving work outcomes including quality, quantity and safety;

- maintenance of necessary documentation and provide appropriate reports;

- co-ordinate and responsible for equipment maintenance and scheduling;

- scheduling and prioritising of orders;

- training of other Disability Service Workers at lower classification levels;

- maintenance of a recording and reporting system;

- provision of technical reports.

ACCOMMODATION/INDEPENDENT LIVING TRAINING SERVICES

- assess clients abilities and develop long term training goals;

- train clients in a broad range of tasks using a wide range of teaching methods and aids at a higher level of skill than Level 4;

- develop and promote networks with other service providers and community resources in accordance with workplace policy;

- undertake task analysis;

- implement behaviour modification strategies;

- undertake activities requiring knowledge of statutory and legal requirements;

- train other Disability Service Workers at lower classification levels;

- co-ordinate the operation of a single group home;

- undertake administrative tasks within workplace guidelines

APPENDIX 'B'

INCREMENTAL PROGRESSION

Employees will progress through the increments within each level in accordance with the following:

(a) The anniversary date of an employee's commencement or previous progression, as the case may be, shall be observed.

(b) Progression shall be dependent upon the satisfactory completion of 1976 hours or 2 years, whichever is the lesser, of diligent service at the relevant classification level with the employer, or

(c) The successful completion of the relevant accredited training modules.

(d) New employees who can verify previous comparable experience consistent with paragraph (b) which was gained with another employer engaged in the Disability Service Industry shall have such experience taken into account in determining the appropriate incremental level which that person is entitled to occupy.

1 Print K9700 and K9940
2 T No 4692 of 1993
3 Print H9000
4 Print H4000
5 TCCI 7
6 Print H4000
7 Print H9100
8 Print H9100