TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Health Services Union of Australia, Tasmania No. 1 Branch
(T12613 of 2006)

and

D G Lewis Pty Ltd

Industrial dispute - alleged breach of the Community Services Award - classification level - "immediate supervision" - Community Service Employee Level 2B applies - parties to confer to reach settlement

REASONS FOR DECISION

[1] On 20 March 2006, the Health Services Union of Australia, Tasmania No. 1 Branch (HSUA) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with D G Lewis Pty Ltd arising out of the alleged breach of the Community Services Award in respect to Mark Jeffries.

[2] When this matter came on for hearing (conciliation conference) on 13 April 2006, Ms S Goldfinch appeared for the HSUA. Mr P Kregor, with Ms M Griffiths, appeared for the respondent.

[3] Mr Jeffries was employed as a Community Services Employee under the terms of the Community Services Award from 7 December 2000 until 27 February 2006.

[4] In January 2006 dialogue and correspondence involving Mr Jeffries, the employer and the HSUA commenced concerning the classification level of Mr Jeffries. The applicant contended that the appropriate level was Community Services Employee-Level 2B whereas the employer maintained that Level 2 was the correct classification.

[5] Mr Jeffries resigned with effect from 27 February 2006.

[6] The application was the subject of a conciliation conference on 13 April 2006.

[7] Following preliminary submissions from both parties it became apparent that an agreed settlement was unlikely. Both parties agreed that the Commission should express a considered view to assist in a resolution of the issue. Further written submissions were received from the applicant dated 28 April 2006 and the respondent dated 5 May 2006.

[8] The classifications in question are defined as follows:

"COMMUNITY SERVICES EMPLOYEE - LEVEL 2

Qualifications, Training and Experience

· Attainment through previous relevant experience, service and/or study of an equivalent level of skills to undertake the range of activities required;

· may be required to undertake relevant on-the-job training.

Characteristics of the Level

General features of this level include performing a range of activities using knowledge, judgement and work organisational skills acquired through qualifications and/or previous work experience. Assistance is available from higher classified employees. Employees may receive instruction on the broader or more complex aspects of the work. In addition, employees may provide assistance to lower classified employees.

Positions at this level allow employees the scope to exercise initiative within procedures, methods and guidelines and to oversee and guide lower classified employees. Employees with supervisory responsibilities may undertake some moderately complex operational work and may undertake planning and co-ordination of activities within a workplace. Such employees will commence on the second grade.

Employees will be responsible for managing and planning their own work and that of lower classified employees.

Requirements of the Job

Some, or all, of the following are needed to perform work at this level.

· Sound knowledge of work activities performed within the workplace;

· Sound knowledge of procedural/operational methods of the workplace;

· Working knowledge of statutory requirements relevant to the workplace;

· Ability to apply computing concepts.

Indicative Tasks and Functions

· Performs a range of activities in a defined area and/or is responsible for a collection of activities within the workplace;

· Provides client support services, including provision of basic information and (external) referral services on an individual, group or community basis;

· Assists or participates in activities which require the adaptation/interpretation of practices, procedures or guidelines, under the guidance of higher classified employees.

Responsibility

An employee at this level:

· Works under general direction in the application of well established practices, procedures and/or guidelines, receiving instruction on broad aspects of the work, with detailed instruction limited to complex or unusual features;

· Works under general supervision, with work subject to checking on completion of tasks, monitoring of outcomes and progress checking only in respect of complex or unusual tasks/situations;

· Exercises initiative/judgement and has freedom to act within established practices, procedures and/or guidelines;

· Works under the immediate supervision of a higher classified employee and assistance is available when problems occur.

PROVIDED that an employee at this level may be required to remain on the premises of a residential service overnight, without an immediate supervisor present, in either a shiftwork or sleepover capacity. During this period the employee shall work within established guidelines, practices and procedures. Advice and assistance would be readily available from senior employees. In such circumstances an employee would not be expected to perform duties or exercise discretion at the level of a higher classified position. In such circumstances the employee shall not be required to perform duties of a non-routine nature, such as crisis support or emergency assistance.

· May oversee or provide guidance to lower classified employees and/or volunteers.

COMMUNITY SERVICES EMPLOYEE - LEVEL 2 B

Qualifications, Training and Experience

· Appointment to a position under this classification;

· Relevant Certificate III including personal carer, support worker, therapy assistant and administrative support;

· Attainment through previous relevant experience, service and/or study of an equivalent level of skills to undertake the range of activities required;

· may be required to undertake relevant on-the-job training.

Characteristics of the Level

General features of this level include performing a range of activities using knowledge, judgement and work organisational skills acquired through qualifications and/or previous work experience. Assistance is available from higher classified employees. Employees may receive instruction on the broader or more complex aspects of the work. In addition, employees may provide assistance to lower classified employees.

Employees engaged to provide personal care and support to clients may be require to perform relevant duties in the clients own home.

Employees with administrative responsibilities may be required to prepare reports for managers and committees, to have input into budget preparation and maintain agency records and files.

Positions at this level allow employees the scope to exercise initiative within procedures, methods and guidelines and to oversee and guide lower classified employees.

Employees will be responsible for managing and planning their own work and may be responsible for managing and planning the work lower classified employees.

Requirements of the Job

Some, or all, of the following are needed to perform work at this level:

· Sound knowledge of work activities performed within the workplace;

· Sound knowledge of procedural/operational methods of the workplace;

· Working knowledge of statutory requirements relevant to the workplace;

· Ability to apply computing concepts.

Indicative Tasks and Functions

· Performs a range of administrative duties in a service or programme;

· Provides client support and care services, including the provision of support and care services in a clients home;

· Assists or participates in development or adaptation of practices, procedures or guidelines, relate to their area of work, under the guidance of higher classified employees.

Responsibility

An employee at this level:

· Works under general direction in the application of well established practices, procedures and/or guidelines, receiving instruction on broad aspects of the work, with detailed instruction limited to complex or unusual features;

· Works under general supervision, with work subject to checking on completion of tasks, monitoring of outcomes and progress checking only in respect of complex or unusual tasks/situations;

· Exercises initiative/judgement and has freedom to act within established practices, procedures and/or guidelines;

· Works without the immediate supervision of a higher classified employee. Advice and assistance is available from higher classified employees when problems occur.

· Employees engaged to provide personal care and support to clients are required to work on their own.

· May oversee or provide guidance to lower classified employees and/or volunteers.

· The employee shall not be required to perform duties of a non-routine nature, such as crisis support or emergency assistance.

History of Level 2B

[9] In a decision dated 1 April 19961 Westwood P declared "an organisation providing services such as those provided by the Family Based Care Association (South) Inc. was excluded from the Scope of the Community Services Award".

[10] As a consequence of this decision the Scope clause was subsequently varied by consent.2 This variation included the following new subclause, together with certain other related changes.

"(a) This award is established in respect of the industry of social and community services, in which the primary functions/industrial pursuits include:

...

(vi) providing personal care for persons who have an intellectual, physical, psychiatric, and/or sensory disability in locations other than those covered by the Disability Service Providers Award and the Nursing Homes Award."

[11] It is very clear from a perusal of the transcript of this file that the parties fully intended that the award cover personal carers working in the home of the client.

[12] In a decision dated 23 July 19973 Westwood P dealt with an application for the interpretation of the expression:

"An employee at this level

· Works under the immediate supervision of a higher classified employee and assistance is available when problems occur."

[13] The President observed that there were elements of the definition that were contradictory, and as a consequence declined to make a declaration. Instead he directed the union to make application to vary the award. The President did however make the following observation in the decision:

"With respect to "Immediate Supervision", both parties accept that the definition is clear. The words leave no doubt in my mind that the supervising employee should be available immediately at the workplace during the employee's working hours unless some unusual or abnormal reason requires otherwise.

I consider that the words "immediately available at the workplace during the employee's working hours", as contained in the definition mean that the supervising employee should be at the place at which the supervised employee is working. I do not consider that access to advice and assistance by way of "telephone, beeper, mobile phone etc."4 is immediate supervision for the purposes of the definition."

[14] As a consequence of this decision the award was subsequently varied by consent to incorporate5 the new Level 2B. During the course of this hearing, Mr Brown for the HSUA, said:6

"I mean hopefully we are going to be able to come before you with a consent matter on all of these things. The one that's getting a little bit complicated, if you like, is the Level 2B which is of particular interest to my organisation because it purports to cover personal carers.

The category of personal carer, if you like, is one that has evolved fairly rapidly over the last couple of years and continues to do so. It's also a fairly massive growth area. Already the personal carer, that is, the provision of care services to people in their homes rather than in a workplace is almost bigger in terms of the number people to be employed than the nursing home industry at the moment and the indication of the types of resources of both Commonwealth and State governments are putting into that area, it is one that is going to change quite dramatically - or grow quite dramatically over the next couple of years."

[15] The new classification, together with other award variations, were incorporated in the award with effect from 14 December 1999.

The Employer/Employee Relationship

[16] Mr Kregor explained that the company is a corporate legal entity structured so as to facilitate the receipt of grant money from the State Government. The grant money is used to engage employees to provide personal care services. The consumer of these services is a director of the company, along with a number of other directors.

[17] Mr Kregor submitted that the consumer of services is effectively the employer, which can be contrasted with the traditional model, whereby an external agency engages staff to provide services for the client.

[18] Whilst it would seem that hitherto the directors of D G Lewis Pty Ltd have accepted the application of the Community Services Award, albeit at Level 2, Mr Kregor now contends that the "D G Lewis arrangements fall outside the present scope of the award and the award should be varied to address the issues raised".

Submissions

Ms Goldfinch, for the applicant:

[19] The Level 2B classification was specifically designed to cover personal carers, working in a client's home, without the "immediate supervision of a higher classified employee".

[20] A number of descriptors in Level 2B support the applicant's contention. Viz.

"Characteristics of the Level

· Employees engaged to provide personal care and support to clients may be required to perform relevant duties in the client's own home.

Indicative Tasks and Functions

· Provides client support and care services, including the provision of support and care services in a client's home.

Responsibility

· Employees engaged to provide personal care and support to clients are required to work on their own."

[21] Mr Jeffries worked alone, and hence Level 2 was not appropriate, in that he was not under the "immediate supervision of a higher classified employee".

Mr Kregor, for the employer:

[22] Unlike the traditional employee/client relationship, the consumer of services in this case was also the employer. This arrangement was not contemplated when the award classification structure was put in place.

[23] The actions of employees (including Mr Jeffries) are overseen directly by a Director of the Company. Operationally, staff employed by D G Lewis Pty Ltd are directed to take instructions from the consumer and refer to his fellow directors when clarification is required.

[24] Denial of the consumer's role as a supervisor and director of his own care is an alienation of rights arising from relevant international conventions.

[25] Wage rates for a Level 2 worker are comparable with a Disability Service Worker Level 4 under the Disability Service Providers Award. The application if successful, would impose a financial penalty on organisations falling outside the Scope of this award.

Findings

[26] I do not accept Mr Kregor's submission that the operations of D G Lewis Pty Ltd are outside the Scope of the Award, and, by inference, are award free. I am prepared to accept that, in all likelihood, the precise corporate model of D G Lewis Pty Ltd was not in the minds of those responsible at the time for drafting the classification descriptors. That is a different issue.

[27] Clearly D G Lewis Pty Ltd is in the industry of:

... social and community services, in which the primary functions/industrial pursuits include:

(vi) providing personal care for persons who have an intellectual, physical, psychiatric, and/or sensory disability in locations other than those covered by the Disability Service Providers Award and the Nursing Homes Award."

[28] I am also satisfied that the company employs persons for which a classification exists, namely, Community Service Employees.

[29] It follows that I find that the Community Services Award has application in the instant case. The question to be determined is the appropriate classification level.

[30] The award history and the nature of the classification descriptors point overwhelmingly to a conclusion that personal carers working in a home environment should be classified at Level 2B.

[31] In certain circumstances Level 2 might be appropriate, if the employee was working under the immediate supervision of a higher classified employee ...".

[32] Immediate Supervision is defined:

"means the supervising employee is normally immediately available at the workplace during the employee's working hours."

[33] In T6702 of 1997 Westwood P made certain observations (referred to earlier in this decision) as to the proper construction of this expression. I agree with those observations.

[34] Mr Kregor contended that I should read the award in a manner that would allow the employer (or consumer of services) to stand in the place of the "higher classified employee".

[35] Such a construction is not open under the award as it currently stands. In any event I would have thought that the employer was in fact the company, rather than any individual director. Either way, this consideration is about the level of responsibility of Mr Jeffries, rather than the legal structure of the employer entity. It is certainly not about alienation of the rights of individuals with disabilities to have a say in their own care and support, a right which I would have thought applies equally, whether there was an employee/client relationship or an arrangement consistent with the D G Lewis Pty Ltd model.

[36] Whether the award is deficient in any respect is a matter for the parties. If on work value or other grounds, the classification structure is inappropriate, then the remedy is available through an award variation.

[37] I am satisfied that the appropriate classification for Mr Jeffries is a Community Services Employee-Level 2B. The parties are directed to confer with the view of reaching a settlement. The file shall remain open and either party may apply to have the matter re-listed should that be necessary.

Tim Abey
COMMISSIONER

Appearances:
Ms S Goldfinch for the Health Services Union of Australia, Tasmania No. 1 Branch
Mr P Kregor, with Ms M Griffiths, for D G Lewis Pty Ltd

Date and Place of Hearing:
2006
April 13
Hobart

1 T6098 of 1996
2 T6152 of 1996
3 T6702 of 1997
4 T6702 Transcript p.13
5 T8017 of 1998
6 T8017 Transcript p.3