T12779
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch and Minister administering the State Service Act 2000
Industrial dispute - alleged breach of Custodial Officers Award, General Conditions of Employment Award and Correctional Officers Agreement 2005 - higher duties allowance - separate classifications or pay increments within the same classification - application for additional higher duties allowance refused REASONS FOR DECISION [1] On 30 August 2006, the Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch (LHMU) 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 the Minister administering the State Service Act 2000. [2] This matter was listed for a hearing (conciliation conference) on 10 October 2006, and for hearing on 1 November 2006. Mr P Tullgren appeared for the LHMU; Mr B Smith and Mr N McCulloch appeared for the Minister. [3] This application was lodged on behalf of Mr Timothy Steer who was at all material times employed in the Launceston Remand Prison (LRP). The application seeks payment of Higher Duties Allowance (HDA) for a period of time when Mr Steer was relieving a higher classified staff member. [4] Whilst this application was limited to Mr Steer, the parties acknowledged that the outcome would determine the position for all future similar relief arrangements. [5] The relevant industrial instruments are: · Custodial Officers Award (the CO Award). [6] The Agreement was approved on 12 October 2005, operative from 1 July 2005, and followed a period of significant industrial disputation. Relevantly, the Agreement provided for substantial salary increases consistent with an interstate nexus arrangement, together with a new classification structure. [7] Relevant clauses from the Agreement are:
[8] Clause 20(a) of the GCOE Award reads:
[9] In the case of Mr Steer the agreed facts are as follows: [10] From 17 May 2002 until 30 June 2005 Mr Steer was a Custodial Officer 1st Class. From 1 July 2005 he was classified as a Correctional Officer - Grade 4 (CO4) by virtue of the translation arrangements in Clause 12 of the Agreement. [11] At all material times the LRP was staffed by two Chief Custodial Officers (CCO) and 14 Custodial Officers (CO). The total complement of staff did not alter after the translation process. The only alteration was the nomenclature and pay rates of the employees. [12] Prior to 1 July 2005, when the CCO was absent, a CO 1st Class would act in that position and be paid HDA under the GCOE Award. [13] During the period 17 May 2002 to 30 June 2005 Mr Steer on a number of occasions performed the duties of the CCO and was paid HDA in accordance with the GCOE award. [14] On 28 April 2006 Mr Steer acted up in a position occupied by a Correctional Supervisor Level 2 (CS2). He was paid HDA at the CS2 rate. [15] On 3 June 2006 and again on 31 July 2006 Mr Steer acted up in the position occupied by the CS2. However he was advised that he would be paid the HDA at the CS1 rate because, the Department contended, the CS2 was not a separate classification but a pay increment within the classification of Correctional Supervisor. [16] The duties, responsibilities and job requirements for the CCO, and now CS, have not, in any material way, diminished or been reduced since the Agreement came into operation. LHMU Submissions [17] Mr Tullgren submitted that the Commission should search for the meaning intended by the framers of the Agreement, and "is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what it is written in the agreement ...". [18] At no stage during the negotiations did the Department indicate that the proposed classifications of Correctional Supervisor 1 and 2 were in fact the same classification with two pay points. It was fair to say that the major focus of the negotiations from the union's point of view was on the salary outcomes. There was only limited discussion on the philosophical underpinning of the proposed classification structure. [19] The negotiations took place in the context of an existing classification structure which was rank based. What was sought to be done was replace one hierarchy and rank structure with another. In order that existing employees not be disadvantaged, translation arrangements were put in place whereby employees of a particular rank and classification were translated to an equivalent rank and classification in the new Agreement (see Clauses 12 and 13). This process, Mr Tullgren submitted, resulted in a "seamless translation across to a new structure so that people on one day might have been X, but on the next day they were A ...". [20] It was on this basis that persons previously classified as a Senior Custodial Officer translated to a Correctional Supervisor-Grade 1 and a Chief Custodial Officer translated to Correctional Supervisor-Grade 2. Hence it was a translation from an existing substantive classification to a new substantive classification. The clause does not refer to increments or pay points, which are synonymous with an incremental structure. [21] The pay differential between CS1 and 2 is approximately $6500. This is much greater than traditional increments based on service, or in some cases, skills. Mr Tullgren contrasted the Custodial Officer scale, in which four grades are embraced within a $3000 band. [22] The Essential Requirements for the two positions are detailed in Clause 16. These clear differences, coupled with the fact that the positions are located within separate boxes, point to a conclusion that they are separate and distinct classifications. [23] Mr Steer had acted up as a CCO on a number of occasions in the past and paid a HDA accordingly. Department of Justice Submissions [24] Mr Smith submitted that the Correctional Supervisor was one position with two pay points. Movement within the classification was by the gaining of certain qualifications, not by time or promotion. [25] The following statement from Mr Graeme Barber, Director of Prisons, was tendered:2
[26] Mr Smith agreed that there had not been a great deal of discussion on the proposed structure during the negotiations. However from the Department's perspective, the major objective was to flatten the hierarchical structure. This was coupled with a deliberate move away from in-house assessments to determine eligibility for promotion, to a qualifications based model within the Australian Qualifications Framework. [27] Mr Smith said that to grant the union's application would take the Department back to an overly hierarchical structure that does not accord with the operating arrangements needed within the Tasmanian Prison Service. [28] Mr Smith submitted that the LHMU position would disadvantage staff who gain CS qualifications in that they would have to wait for a vacant position to be advertised and then submit to a merit based selection process. Under the Department's view of the structure, advancement would be automatic on the gaining of the qualification. [29] The process of moving from the old structure to the new was not, Mr Smith submitted, a direct translation process. It was in fact a merit based, closed selection basis. Findings [30] I have some difficulty in accepting Mr Tullgren's submission that the transition to the new Agreement as being "incremental". The salary increases were substantial; twenty-five and thirty per cent respectively for SCO and CCO initially for officers translated to the new structure. The classification structure has also changed fundamentally from a structure based on experience and internal assessment to a model that has AQF achievement at its core. The "deeming" provisions applicable to existing employees do not, in my view, alter this significant structural change. In this context what has happened in the past is of interest, but not of itself determinative of what should apply in the future. [31] There is no extrinsic material available to the Commission to assist in determining what might have been in the minds of the parties at the time the Agreement was negotiated. [32] In a similar vein the style and nomenclature of the new structure is not particularly helpful. [33] There are essentially three levels: Correctional Officers, Correctional Supervisors and Correctional Managers. Each of these levels contains "Grades". Whilst the focus was on the supervisor level, it was common ground that the HDA would not have application for relief within the Correctional Officers' scale. [34] In relation to Correctional Managers, the position is not so clear. The qualifications for all CM grades are the same, and on its face, there is no means of moving from CM1 to CM2 other than by promotion or appointment. Mr Tullgren submitted that prior to the 2005 Agreement, the manager classification was separate and the HDA would have been paid when a person acted up, for whatever reason. Mr Smith submitted that CM1 only exists to accommodate the translation process, and in the future all appointments will be at the CM2 level, assuming the individual is appropriately qualified. If there is a difference between the parties on this issue, it is not a matter on which the Commission was asked to decide. [35] There are two aspects which point strongly towards CS1 and 2 being separate classifications. [36] Firstly, the qualifications for Grade 2 are different from that required for Grade 1. [37] Secondly, the salary gap of $6500 approximately is much larger than that generally seen for increments within a classification in other State Sector Awards. [38] On the other hand there was no contest offered to the Department's assertion that the duties are identical for CS1 and CS2. According to Mr Barber's statement, currently there is both a CS1 and CS2 employed in the LRP and that the duties and responsibilities are identical for both. Presumably this could change in the future, with both positions being filled substantively by either CS1 or CS2 classified employees, depending only on the level of qualification. [39] The Department's submission that progression from CS1 to CS2 is automatic on the gaining of the required qualification is compelling. There must be an assumption that to attract HDA the employee must be performing "higher duties". On the information available, Mr Steer would be performing exactly the same duties whether he was relieving Mr Yapp (a CS1) or Mr Johns (a CS2). [40] The interpretation of the Agreement is not without its difficulties. I have however reached the conclusion that CS1 and CS2 are in fact pay points within the same classification. It follows, that in accordance with Clause 20 of the GCOE Award, the appropriate HDA is an amount equal to the difference between Mr Steer's substantive salary and the minimum salary of the higher position (i.e. CS1). [41] I so order.
Tim Abey Appearances: Date and Place of Hearing: 1 T12324 of 2005
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