T13022
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TASMANIAN INDUSTRIAL COMMISSION Decision Appealed - See T13176 Industrial Relations Act 1984 United Firefighters Union of Tasmania TASMANIAN FIRE FIGHTING INDUSTRY EMPLOYEES AWARD
Award variation and conditions - work value review in accordance with Principle 9 of the Wage Fixing Principles – Principle 11 First Award and Extension of Existing Award - Community Fire Safety Officers – Relativities determined REASONS FOR DECISION [1] On 24 September 2007, an application was lodged by the United Firefighters Union of Tasmania (UFU), pursuant to Section 23 of the Industrial Relations Act 1984, to vary the Tasmanian Fire Fighting Industry Employees Award. [2] This matter was listed for a Directions Hearing on 25 September 2007; for Inspections on 3 October 2007; and for Hearing on 4 and 10 October 2007; 7, 20 and 21 November 2007; and 18 December 2007. Appearances: Mr R Warwick for the United Firefighters Union of Tasmania. Mr P Baker and Ms R Pearce for the Minister administering the State Service Act 2000. [3] This application is for a work value assessment of four positions within the Community Fire Safety division [CFS] of the Tasmanian Fire Service [TFS], affecting five employees in total. Those positions are: Kym Manten; Fire Safety Auditor – Building Safety Andrew Frankcombe; Instructor – TasFire Training Steve Webster; Instructor – TasFire Training Daniel Greig; Consultant – Building Safety Philip Mackrill; Senior Consultant – TasFire Training [4] This hearing occupied eight sitting days of evidence and argument, including on site inspections in Launceston and Hobart. The hearing concluded on 18 December 2007. In early January 2008 the parties approached the Commission indicating that I should refrain from determining the application, pending the outcome of the wider Public Sector Union Wages Agreement 2008. [5] Accordingly, the file was put to one side pending further advice from the parties. [6] By letter dated 1 May 2008, the UFU advised: “I write to advise that the Tasmanian Government recently made an offer for a new Section 55 Bargaining Agreement that has been accepted by UFU members. As part of this agreement the offer contained a clause that specifically relates to the five employees who were and are the subject of the above matter. This clause is as follows: ‘15. Reserved Matters This offer does not apply to employees occupying positions classified as Community Fire Safety Officers unless the employees agree: that they will not seek to have access to any outcomes from the proposed Public Sector Union Wages Agreement 2008; and to withdraw the claim for increased salaries based on work value that is currently awaiting a decision from the Tasmanian Industrial Commission .’ As a result of careful deliberation the five members in question have decided to not be part of the offer made to employees employed under the Tasmanian Firefighting Industry Employees Award 2007. They have also elected to not be part of the negotiations for a new public sector wages agreement that are currently under way.’ Therefore my members respectively await your decision in this matter.” Background [7] With the exception of the Fire Safety Auditor, these positions have been traditionally filled by career fire-fighters who have transferred from shift work into one of the above positions. In some cases the incumbents have returned to shift work [operational duties] after a relatively short period. In other cases the career fire-fighters have remained in the positions for lengthy periods, even to the point of retirement. At the time of hearing there were approx. 17 career fire-fighters employed in the Community Fire Safety Division. [8] In or about 2003/04, the TFS began to experience difficulty in attracting career fire-fighters into these non operational positions. As a consequence, a decision was taken to recruit from outside the service. The five individuals subject to this application are in this category. [9] With the exception of the auditor, the UFU maintains that the duties and responsibilities of the four incumbents is identical to that being performed by career fire-fighters employed in the same roles, save that the career fire-fighters are required to undertake operational duties from time to time. It is the extent of this requirement and the level of competency maintenance which occupied much of the debate during the hearing. [10] Upon appointment the individuals were paid in accordance with various levels within the Administrative and Clerical Employees Award. It would seem that this arrangement was a matter of convenience and there was no suggestion that this represented an agreed work value assessment of the positions. The positions were not part of UFUA/TFS bargaining outcomes and salary adjustments were in accordance with various Public Sector Wage Agreements reached from time to time. [11] On 30 May 2007 Leary P. granted an application to create the Tasmanian Firefighting Industry Employees Award.[1] Previously award coverage had been subject to the Commonwealth Act. As part of these proceedings, new classifications to cover Community Fire Safety Officers levels 1-4, with attendant classification descriptors, were inserted by consent. There was no change to salaries. During the proceedings, Mr Warwick noted:[2] “MR WARWICK: Just as a very short history. At points of time there have been difficulties in getting firefighters to do these sorts of day-work jobs, so the Fire Services employed people from outside. But we would say, from our point of view, that it is traditional firefighters work. So I guess that is the explanation of it. THE PRESIDENT: All right, okay, so it is pick up that sort of particular work. MR WARWICK: I should say as well that at some stage I think we will be asking the Commission to consider whether those rates of pay are, in fact, the ones that should apply, but that will be down the track.” [12] Throughout the proceedings Mr Baker acknowledged that the union had the right to pursue the application. However he argued strongly that the Work Value principle, properly construed, would preclude an outcome which resulted in a salary increase. In essence he submitted that any changes in work value which might have occurred over time were evolutionary in nature and did not justify a salary increase. On the other hand, Mr Warwick contended that the classifications had never been subject to independent assessment and hence there was no datum point from which to measure change. He submitted that the proper approach is to assess the work value of the positions in the context of similar work being performed by career fire-fighters under the award. [13] In the case of the auditor there was no equivalent work being performed by career fire-fighters. In such circumstances Mr Warwick submitted that the appropriate bench mark was similar inspectorial roles elsewhere within the public sector, notably Workplace Standards Tasmania. The Application [14] A comparison between the existing classification structure and the application is shown below.
[15] Mr Warwick submitted that the salary for the Fire Safety Auditor “should be the equivalent of level 5 or 6 in the Administrative and Clerical Award.”[3] The salary range as at 1 December 2007 is as follows:
The Evidence [16] Comprehensive evidence was adduced from all five incumbents, the subject of this application. In addition evidence was taken from the following: Damien John Killalea, Director of Community Fire Safety Division. Andrew Comer, Regional Chief, North. Tony Davidson, Regional Chief, South. Roger Stewart Steedman, retired, consultant with expertise in the development of classification standards. Gregory Thomas Butters, District Officer for Learning and Development. [17] The following is a summary of the evidence pertinent to each position. The Fire Safety Auditor is covered separately later in this decision. Community Fire Safety Officer Level 2 [18] Mr Frankcombe and Mr Webster, Instructors with TasFire Training, are classified at this level. [19] The Statement of Duties[4][SOD] lists the Position Objective and Primary Duties for this position as follows:
[20] The position works under general direction and limited supervision. The Desirable Qualifications include Certificate 1V – Workplace training and Assessment and Current qualifications in workplace first aid. [21] Both Mr Frankcombe and Mr Webster said that there were a number of Instructors working in the same area who came from a career firefighter background. Their evidence was that the instructors who had come from an operational background, whilst they were employed in TasFire training, did the same job as they did. [22] According to Mr Frankcombe, the career fire-fighters in Tasfire Training were classified as Station Officers. This was subsequently clarified in that a Leading Firefighter could do the job, but the TFS at their discretion may choose to promote a Leading Firefighter to the Station Officer level. [23] Mr Killalea in his evidence said:[5] “Yes. Thank you, Mr Killalea. And turning the page again, you will see that there is an instructor TasFire Training. And we heard from Mr Webster and Mr Francombe in evidence. Over the page you will see another set of dot points in relation to the role of the TasFire Training instructor. I assume again, that from your earlier comments, that there is some doubt about whether the organisation views these as an accurate representation of their work, but that’s not important and I would ask you to set that aside again. The question is, it relates to the comparison between the two lots of work. Now, we have three instructors in the south, in TasFire Training; is that right?‑‑‑Yes. Would that be Mr Brown, Mr Reid and Mr Braithwaite?‑‑‑Indeed. And I believe there’s also someone recently been put on from the career side in the north, or been seconded; is that right?‑‑‑There has been. I’m not sure who that is, though?‑‑‑Shane Streets. Mr Streets, that’s quite right. So the question is essentially the same. Mr Webster and Mr Francombe are TasFire Training instructors, as are Mr Streets, Mr Braithwaite, Mr Brown and Mr Reid. In terms of the work they perform, leaving aside the question of them returning to operations on short notice, leaving aside that issue, do they do the same job or do they do a different job, all of those, do you know?‑‑‑Leaving aside that issue, and given to my qualification made earlier, they do essentially the same job.” Community Fire Safety Officer Level 3 [24] Mr Greig, a Consultant, Building Safety, is classified at this level. [25] The Statement of Duties[6] lists the Position Objectives and Duties as follows;
[26] The position operates under general direction and supervision. [27] Desirable Requirements and Experience are listed as Appropriate qualifications and experience in fire engineering, building surveying, building inspection or similar field. Mr Greig holds diplomas in Civil Engineering and Building Surveying and is part way through the Advanced Diploma in Building Surveying. [28] There are a number of other consultants employed throughout the State who have career fire-fighting background. Questioned as to how his role compared with the other consultants, Mr Greig said:[7]
[29] Mr Greig said the other Building consultants treated him as an equal.[8] [30] On the matter of the pay differential, Mr Greig said:[9] “Would you agree that you cannot be paid the rate of pay, or an equivalent rate of pay for a person who holds the office of Station Officer, Building Safety?‑‑‑No, I don't - don't agree with that. And why don't you agree?‑‑‑Because, I guess, from my perception those employed in Building Safety undertaking that exact same role as myself, are renumerated differently even though I've never witnessed them being returned to shift, which I believe - or the justification given to me when I was first appointed to the position as to the reason why there was a difference in wage, was assigned to those being able to be called to shift at short notice, or a day's notice, I think the award allows for, and I've - I've never observed that in the past, so I guess I consider myself to be doing the exact same role as everyone else in the organisation employed.” [31] The evidence of Mr Killalea was:[10] “Mr Killalea, I’d ask you to put aside for the time being, in answering your questions, all of those issues that have been discussed with respect to pay rates being set for some people because they have the capacity to become a fire – or go back working as a fire fighter. Just put those issues aside. So we’re really talking about what community fire safety officers do, on a day-to-day basis. Are there differences between the work performed by Mr Daniel Gregg and the other consultants in building safety, on a day-to-day basis?‑‑‑It’s – I’m not sure it’s accurate to use the expression day-to-day basis because the work that Daniel Gregg is required to do on a day-to-day basis may be different to the work that station officers from a career brigade who work in building safety do from time to time. Because they, from time to time, to do other work that Daniel is not required to do. To do? Elaborate?‑‑‑They’re required to be able to respond to emergencies from time to time. No, but I’ve asked you to set that aside, Mr Killalea?‑‑‑Well, you asked me to set aside the question of wage rates and so on. No. I asked you to set aside the question of the fact that they are able – or that you require them to attend to emergencies?‑‑‑Okay. Apart from the fact that they are required to attend to emergencies from time to time. Yes?‑‑‑They do essentially the same work. That’s where I’m seeking to get to. So you would say then, that this outline of the primary objectives of building safety consultant would be the same for Mr Gregg as it is for the station officers who come across to building safety to do that job?‑‑‑While they’re doing building safety work? While they’re doing building safety work, yes?‑‑‑Yes.” Community Fire Safety Officer Level 4 [32] Mr Mackrill, Senior Consultant, TasFire training is classified at this level. [33] The Statement of Duties[11] records the Position Objective and Primary Duties as follows:
[34] The position operates under limited direction and general supervision. It is expected that the senior consultant will manage resources, exercise initiative and be self motivated. [35] The Desirable Requirements and Experience includes qualifications or experience in front line management. Mr Mackrill’s qualifications include a Certificate 1V in Assessment and Workplace Training and a Bachelor of Adult and Vocational Education. Mr Mackrill acknowledged that this latter qualification was not a requirement of the position, although it was of assistance in the performance of his duties. [36] Mr Mackrill identified two other employees of TasFire Training [Messrs Ockerby and Vallance], who had a career fire-fighting background. He said their role was the same as his. However Messrs Ockerby and Vallance were classified and paid as Senior Station Officers. [37] Mr Mackrill said he was treated as an equal by his colleagues. [38] The evidence of Mr Killalea was:[12]
Fire Fighting Competency [39] From the evidence I am quite satisfied that the only difference between the two categories of recruitment into CFS [career fire-fighters and external appointments], is that the former is required to hold and maintain a level of operational competency. [40] In the case of an instructor, an analysis of the Statement of Duties for an external appointment[13] and an appointment from an operational background[14] reveals that the latter requires a fire fighting qualification at a level which would enable appointment/promotion to the position of Station Officer. The primary duties included:
[41] In all other material respects, the respective SODs amount to the same thing, albeit using slightly different words. [42] The same fundamental distinction is found at the other levels subject to this application. [43] It is clear that all appointments to CFS from an operational background must have an appropriate fire fighting qualification. However the extent to which these competencies were used and maintained during the term of appointment was the subject of much debate during the hearing. [44] The following discussion relates only to CFS employees appointed from an operational background. [45] It would seem there are two identifiable categories of career fire-fighters employed in CFS. [46] In the first category career fire-fighters move from shift operations to non shift operations in CFS as part of a career path progression. This usually for relatively short periods, generally up to a maximum of two years, following which they return to shift work operations. According to Mr Davidson this career development is ‘strongly advocated” by TFS. [47] In the second category are career fire-fighters, who presumably by choice have accepted a CFS appointment on a quasi permanent basis. A number have been employed for lengthy periods [10 years or more] and some have worked until retirement in a CFS role. In this second category it would seem the longer they were employed in CFS, the less likely the prospect of ever returning to an operational shift work position. [48] An analysis of career fire-fighters who have worked in TFS since 1994 reveals the following[15]: · One is currently employed for a two year period · Seven have returned to operations within two years. · Three have returned to operations after more than two years. · Of the balance, thirteen employees have been employed for an average 6.3 years. · Three have retired whilst in a TFS position. · One has resigned whilst in a TFS position [49] It would seem that whether or not a career fire-fighter returned to shift work operations is largely a matter of choice on the individual’s part. Mr Killalea acknowledged that in all probability no individual had in the past decade been instructed to return to shift work operations, even though the employer has that right under the registered agreement.[16] [50] The nature of career fire fighting demands a heavy emphasis on the gaining and maintenance of competencies. Whilst employed on shift work this occurs as a matter of course. However for persons employed in TFS the position is less clear. [51] A memorandum from the Chief Officer dated 31 August 1998 reads in part: [17] “I refer to your memo of 24 June seeking details of operational competencies that staff working in the Community Fire Safety Division and employed under the Tasmanian Fire Fighting Industry Employees Award may be required to maintain. In developing a position in this issue, a number of points have been taken into account. Of particular significance is the day-to-day operational capacity of career brigades on the one hand, and the impact of competency maintenance training on Community Fire Safety Division productivity on the other. Career brigades are staffed so that a sufficient number of firefighters are available on duty to respond safely and effectively to the anticipated range and type of emergencies occurring on a ‘normal’ day. Provisions exist in the Award to recall off-duty firefighters in instances when on-duty staffing is insufficient to cope with unforeseen circumstances. In all but the most unusual circumstances, such as those existing on 17-18 January this year, Tasmanian Fire Service does not require staff working in non-operational areas to take on an operational role. Also to be considered is the time required for CFS staff to maintain the same degree of operational competence as on-shift firefighters is likely to be significant, and would have a severe impact on the productivity of the Community Fire Safety Division. Given the above, my view is the following: that arrangements be made so that operational staff transferred to the Community Fire Safety Division for periods of up to 12 months continue to receive training necessary to maintain their operational competence, and that operational staff selected to a permanent position in the Community Fire Safety Division, or temporarily transferred for a period exceeding 12 months, not be required to maintain the full range of operational competencies commensurate with their rank. However, to maintain preparedness for emergencies of an extraordinary nature, Tasmanian Fire Service may require certain officers to maintain selected competencies and undertake limited operational roles commensurate with their level of competence. For example, certain CFS personnel may be expected to undertake roles within the Incident Control System structure, exercising their competencies in support of emergency response efforts. On the other hand, there may be long-term employees in the Community Fire Safety Division who have chosen to complete their Fire Service career delivering community education and training or applying building safety legislation who have elected not to maintain any operational competencies. For these staff, a requirement to maintain selected operational competencies may be inappropriate. I encourage your committee to identify the Australian Fire Competencies that are appropriate for CFS staff to maintain in readiness for significant, long duration and resource-hungry emergencies. In doing so, you may consider the time required on an annual basis to maintain these competencies, how the training should best be delivered, and the impact of this training on the work of the Division. So that staff in the Community Fire Safety Division are not disadvantaged should they seek a permanent appointment or temporary transfer to an operational role in a career brigade, account will be taken through the ‘recognition of prior learning’ process of operational competencies previously gained. Where competencies are no longer held, training will be provided upon transfer so that the employee has an opportunity to gain or re-gain the necessary competencies before being deployed operationally. Staff in the Community Fire Safety Division may choose, for their own purposes, to maintain levels of operational competence in excess of that required for involvement in significant emergencies. To minimise the impact of these decisions on the productivity of the Community Fire Safety Division, staff exercising this choice will be expected to do the training in their own time.” [52] Mr Killalea’s evidence in relation to the currency of this policy was:[18] “Now, Mr Killalea, has this document been revoked, amended, or otherwise supplanted in the period since 31 August 1998?‑‑‑I guess it’s been otherwise supplanted by subsequent discussions the chief officer has had with his executive management team from time to time and it would’ve been several years ago that those discussions were held. I mean, bearing in mind that this is over nine years old, this document, and this was the belief at the time and given the range of incidents the fire service responded to at the time. But, as I said earlier, the range of incidents increased markedly and ‑ ‑ ‑ Sorry, the rate of incidents ‑ ‑ ‑?‑‑‑The range of incidents. And also in anticipation of the effects of climate change and the effects of the current drought and the increase in bushfire activity over the last couple of years, the EMT, at the behest of the chief, has discussed on a number of occasions change in this position and, in fact, has changed it. In writing?‑‑‑Not that I’m aware, but I mean, it would be perhaps minuted in executive management team minutes. I’m not sure of the nature of discussions that would’ve been held with you in this regard, but there would’ve been some I’m sure about the fact that it has – the position the chief has taken has, in effect, changed what he said in this document. Has the chief’s position changed in relation to the two dot points on the first page?‑‑‑Well, in relation to ‑ ‑ ‑ In the fifth paragraph?‑‑‑Yes. In relation to the first dot point, operational staff transferred for less than 12 months do continue to receive training necessary to maintain their operational competencies. Now, again that’s a bit of a movable feast. What staff tend to do is make arrangements with the shift that they’ve just left to return to that shift from time to time and I don’t mean all staff, it’s not a routine thing. Some staff choose to do that because they know they’re going back inside 12 months. There are many other competencies that people have that don’t lapse. Some don’t lapse within 12 months, others don’t lapse, period. You know, many competencies that people gain - like learning to ride a bike, it’s a skill that you don’t forget. In regard to the second dot point, those temporarily transferred for a period exceeding 12 months or indeed those who apply for a promotion and therefore it’s not a temporary transfer but a permanent appointment subject to moving on to another job, then the position is that we – the position now is that we want those people to be capable of responding to a range of emergencies as the need arises.” [53] And later:[19] “Well, that comes as news to me, Mr Killalea. Could you outline one of those steps?‑‑‑Well, in recent years we’ve put on a new manager organisational learning, that’s a current – that’s her title. We’ve more recently – in fact, in just the last six months or so undertaken a comprehensive review of the way we manage the delivery of in-service training with a view to making sure that we deliver it better to career brigades, to volunteer brigades, to non-rostered shift workers in community fire safety and indeed, to clerical staff in the organisation. The focus has been very much on delivering training to rostered shift workers but we recognise that we’ve got a need to deliver it to non-rostered shift workers and a need to deliver – that is operational competencies to non-rostered shift workers, and also competencies to the organisation as a whole. So what structured program of skills maintenance have you implemented for non-rostered shift workers who come from a career fire fighting background in community fire service?‑‑‑We haven’t implemented one yet. No So you’ve changed your view about dot point 2?‑‑‑Mm. But am I right in saying you haven’t done anything about it?‑‑‑Well, not in the sense that we haven’t put in place a structured competency maintenance program yet, but we have done other things. Like I said, there are a number of competencies that people gain that they never forget and we are using non-rostered shift workers in operational roles from time to time when we need to.” [54] Mr Killalea said the TFS had changed its view about people doing training in their own time but had not yet implemented a formal program. [55] The evidence of Mr Davidson was:[20] “MR WARWICK: Mr Davidson, I put it to you that there are a considerable number of non-rostered shift-workers in the system who are not happy about the opportunities they are presented with to maintain skills maintenance and currency of their competence; would you care to - could you respond to that?‑‑‑Okay. That - there may be a number of people who have expressed that view, there - but on the other hand there have been opportunities given to many, if not most of those people, to participate in refreshers and other courses and have chosen for various reasons not to, and whilst it's - it would be desirable across the organisation to have people current - maintain their currency of competence, for a variety of reasons and many of them are of those people's own choosing, they have decided not to take up those opportunities to maintain those competence - competencies, sorry. What sort of opportunities? Could you outline those opportunities?‑‑‑Where there are offers made by the various shift managers for people to participate in various refresher training and courses that are being held. And for lifestyle reasons people, some of those people who are on non-rostered shift-work choose to on there and they don't want to be - don't want to return to operations and have indicated that to us. So I'm not aware of the people who have missed out on the opportunities. I have heard it said and I know that from time to time there have been difficulties in releasing some of our people to attend some of these refresher courses due to the nature of the work and where the opportunities lie.” [56] All witnesses agreed that the longer the time away from operational duties, the greater the intensity of refresher training required before operational competency is regained. This might range from a few days to some months, depending on the length of absence and the individual concerned. [57] The requirement to attend to emergencies from time to time is also not clear cut. [58] CFS employees do not carry pagers, unlike operational fire fighters and volunteer fire fighters. From the evidence it would be rare for CFS staff to be called to assist with a structural fire. For example, few, if any CFS staff were called for the recent Myer fire, even though volunteer brigades were. Mr Killalea agreed that CFS staff would be restricted to campaign bushfires. [59] It is also apparent that in a major bushfire event, virtually all TFS staff, including administration personnel might be asked to play a role, depending on their sphere of competency, although clearly this would not be at the level of career fire-fighters. Training for Career Fire-Fighters [60] Mr Butters gave evidence as to the nature and extent of training for career fire-fighters. [61] The TFS operates from a suite of nationally recognised standards in public safety, supplemented by a range of other training packages in areas such as training assessment and management. The TFS training provides qualifications ranging from certificate through to advanced diploma. [62] A recruit initially undertakes a 12 week recruit course from which a number of units of competency are gained. [63] Following the recruit course fire-fighters are rostered on shift work and continue to gain competencies whilst working in an operational capacity under supervision. [64] Advancement to First Class Firefighter occurs after three years service and the achievement of designated competencies. This is recognised as the equivalent of trades level. Advancement to Senior and Leading Firefighter levels is gained by the successful achievement of designated competencies. [65] Promotion to Station Officer and above is based on merit when a vacancy occurs. The Composite Salary. [66] Prior to the early nineties the salary structure for firefighters was based on the traditional concept of a base salary reflecting skills and responsibility, with additional loadings for shift work [15%], weekend penalty [7.5%], public holidays [3.75%], and a further 10% for working hours in excess of forty. At some point [which was not precisely identified], this concept was replaced with the composite salary whereby these additional allowances were rolled into the salary. [67] Mr Baker submitted for a true work value comparison, theses additional allowances should be stripped out, as the work patterns of those subject to this application, in the main, would not attract these additional payments. Mr Baker said if this was done, the existing salaries for Community Fire Safety Officers would compare more than favourably with their career fire-fighter colleagues working in Community Fire Safety Division. [68] There would be force in this contention if this latter group worked a pattern of hours which,prior to the composite salary, would have attracted such allowances. [69] The reality is, they do not. The composite salary is paid to all employees subject to the award, irrespective of whether they are on shift work or not. In Community Fire Safety Division, the Community Fire Safety Officers and their career fire-fighter counterparts work the same pattern of hours. In Building Safety, the work pattern is essentially Monday to Friday, business hours. In TasFire Training, some weekend and evening work may be involved. [70] The one remaining difference between the two categories is that career fire-fighters work an average of 40 hours per week compared with 38 for Community Fire Safety Officers. However this is compensated for by additional annual leave. [71] In the circumstances I am satisfied that no case has been made out to discount the career fire-fighter composite salary before a valid comparison can be made. Building Safety Auditor [72] This position is classified as Community Fire Safety Officer Level 1 and is currently occupied by Mr Manten. Unlike TasFire Training and Building Safety, there are no career fire-fighters employed in this role. Indeed Mr Manten is the only Building Safety Auditor employed by TFS. [73] The Statement of Duties for this position relevantly reads:[21]
[74] Initially Mr Manten’s agreed that the SOD represented a fair summary of his role and responsibilities. However this evidence was later qualified in a number of respects, including: · Absence of any reference to mentoring of other staff. · The SOD overstates the level of supervision. · The SOD understates the level of discretion exercised. [75] Mr Manten said that whilst an audit could be conducted on any building, the current emphasis was on motels and budget accommodation. Mr Manten described his inspectorial role as follows:[22] “Mr Manten, what do you inspect when you get there?‑‑‑The servicing regime of the fire detection or alarm system, if it’s got a sprinkler system, the maintenance records, and of the portable fire protection equipment. In short, that the building, if it’s required to have an evacuation plan, it’s got a current and an approved evacuation plan, and ensure that the exits from the building are operating, and the exit lights and all that – that other equipment is operating as it’s required. And then just general building safety, like, fire safety things that we might see that we may comment on. Am I right, but tell me if I’m wrong, is the focus of your job firstly primarily to look at the observance of the standards in respect to the servicing?‑‑‑The maintenance, yes. Yes. The maintenance and servicing of that equipment?‑‑‑Yes. And am I right, or am I wrong, that over and above that you may make recommendations about the big picture, I suppose, of ‑ ‑ ‑?‑‑‑Yes, we can. Yes, we do at times, yes. Yes?‑‑‑And also the – we make sure that everything’s in line with the general fire regulations as well, so, in regards to exits, locks on exit doors, and evacuation procedures, locking of exits.” [76] On his relationship with the Building Consultants, Mr Manten said:[23]
[77] Mr Manten agreed that the central focus of his work is to encourage client compliance with the audit and/or recommendations. If compliance is not achieved, the decision to prosecute is taken elsewhere in the TFS. [78] Mr Manten holds a Certificate 3 in Asset Maintenance. [79] Mr Killalea said that post incident analysis is not a requirement of the position although on occasions the auditor might assist a building consultant in this activity. [80] Mr Killalea disagreed with Mr Manten’s evidence that he had a mentoring /coaching role when new staff joined Building Safety. He said:[24]
[81] In subsequent correspondence dated 30 November 2007[25], Mr Warwick submitted that the appropriate point of comparison was with Workplace Standards inspectors, in that both categories of employment ‘work at the business of inspection and enforcement of legislation and standards. He went on to say:
[82] Mr Warwick submitted that the salary of the TFS Fire Safety Auditor “should be the equivalent of Level 5 or 6 in the Administrative and Clerical Award.” The Wage Fixing Principles [83] This application was pursued pursuant to the Work Value principle. [84] Principle 9, Work value Changes, relevantly reads: “9.1 Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this principle. 9.3 The time from which work value changes in an award should be measured is, unless extraordinary circumstances can be demonstrated, the date of operation of the second structural efficiency adjustment allowable under the 30 October 1989 State Wage Case decision, or the date of any increase awarded in accordance with this principle since that date. 9.4 Care should be exercised to ensure that changes which were or should have been taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this principle. 9.5 Where a significant net alteration to work value has been established in accordance with the principle, an assessment will have to be made as to how that alteration should be measured in money terms. Such assessment should normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work. However the Commission will also take account of the relativities and the integrity of the internal award classification structures and the external classifications to which that structure is related.” [85] Mr Baker submitted that the primary thrust of this principle is to measure changes in work value, and if a significant net addition to work requirements is identified, then a monetary value should be assessed and applied to the wage rate. In this case any changes which may have occurred are evolutionary in nature and do not represent a significant net addition to work value. [86] Mr Baker did acknowledge that if the work has not previously been valued, then the Commission’s role is to make that independent assessment.[26] However Mr Baker submitted that such assessment must be constrained by the other principles, and in particular the principle dealing with the safety net adjustment. He said the salary adjustments the individuals had received in recent years was consistent with the safety net adjustment and it was not the role of the Commission to remedy differing bargaining outcomes over time. [87] Mr Baker also said that regard must be had for the assessment conducted by Mr Steedman, which formed the basis of the classification descriptors which were included in the award by consent. [88] Mr Warwick submitted that as there has not hitherto been an independent assessment of the work, there is no datum point from which to measure change. Hence the proper approach should not be limited to an assessment of change in recent years, but embrace a holistic assessment of the work in the context of the TFS working environment and the classification structure in the award. [89] In my view the Work Value principle must be read in conjunction with principle 11, which reads: “11. FIRST AWARD AND EXTENSION TO EXISTING AWARD The following criteria shall apply to the making of a first award and/or an extension to an existing award: 11.1 In making a first award the long established principles shall apply. That is, prima facie, the main consideration shall be the existing rates and conditions. Other considerations will be that the award meets the needs of the particular industry or enterprise and ensures that employees’ interests are also taken into account. 11.2 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 the work already covered by the award.” [90] When the incumbents were first appointed they were aligned administratively with various levels in the Administrative and Clerical Employees Award. In 2007 the classifications were included in the award for the first time. According to the submission of Mr Baker at the time, there was “no increase in wages”[27] [91] Hence the prima facie position referred to in Principle 11.1 has been complied with. [92] Mr Steedman gave evidence as to how the classification descriptors were developed and aligned with the Administrative and Clerical Employees Award. So far as this assessment went, it was soundly based. Mr Steedman undertook what was essentially a desk top analysis of the various SODs, and assessed them against the classification descriptors in the clerical award. This was as far as Mr Steedman’s brief extended. He freely acknowledged that he did not interview the incumbents; did not look at the work of the TFS and in particular CFS, and did not attempt any relativity assessment in the context of the Tasmanian Fire Fighting Industry Employees Award. [93] I conclude that this falls a long way short of an independent work value assessment from which a datum point for the measurement of change could be established. I hasten to add that no criticism should attach to Mr Steedman. As I understand it his brief simply did not extend to the issues identified above. [94] Having established the prima facie position, Principle 11.2 is invoked. This clearly envisages an assessment of “new work or award free work” [which in industrial terms, this work clearly falls] ...”by reference to the value of the work already covered by the award.” [95] This approach is entirely consistent with the expression in principle 9.5, which states:
[96] I agree with the submissions of Mr Baker in two key respects. [97] Firstly, it is not the role of the Commission to redress differing bargaining outcomes. The fact that career fire-fighters have received greater salary increases in recent years than those subject to this application is immaterial. The approach of the Commission in assessing work value would be exactly the same had the positions of the bargaining outcomes been reversed. It is simply not relevant. [98] Secondly, I agree that changes identified in recent years are evolutionary in nature and do not represent a significant addition to the value of the work. An application pursued on this premise alone would fail. [99] I conclude that the correct approach is as follows: 1. Has the work of career fire-fighters in CFS been properly assessed in terms of work value? 2. If the answer to 1. is Yes, then a comparison needs to made of the work performed by both categories of employees. 3. If differences are identified in the work performed, then an assessment is made as to how this is reflected in monetary terms. Findings Community Fire Safety Officer Levels 2 – 4 [100] The first question to be determined is whether or not the work of career fire-fighters in CFS has been properly assessed in terms of work value. [101] On 10 December 1993 Robinson DP handed down the Firefighters “special case” decision.[28] This decision embraced significant work value considerations across all classifications in the Award. Whilst not specifically mentioned, it is a reasonable presumption that this included the work of career fire-fighters employed in CFS. The Deputy President identified certain changes which he considered to be evolutionary in nature, but went on to conclude:
[102] Clearly this decision embraced all work value considerations up to that point of time. However it did not apply to Community Fire Safety Officers, as they were not in the award at the time. [103] The 2004 Enterprise Bargaining Agreement contained the following reference.[29] “6. WORK VALUE The parties agree that the salaries and conditions provided for in the Agreement and previous awards and agreements reflect that employees have been fully compensated for all work that is currently being undertaken within their classifications and Statements of Duties. Employees are required to be trained in and use their competencies in this work and exercise their responsibilities for the work.” [104] The 2007 Agreement contains an identical reference. [105] From these two agreements the only conclusion open is that all work value considerations for career fire-fighters had been taken into account up to the date of ratification. [30 May 2007]. The classifications for Community Fire Safety Officers were incorporated into the award at the same time the 2007 Agreement was approved. However it is clear from the transcript of that hearing that the UFUA reserved the right to pursue a specific application for this group at some stage in the future. This was not objected to by the employer. [106] Mr Killalea confirmed that Station Officer represented the TFS view as to the appropriate level for career fire-fighters promoted into CFS roles.[30] [107] It follows that I am quite satisfied that salaries currently applicable for career fire-fighters engaged in CFS roles fully reflects the industrial parties’ view as to the appropriate work value levels. Further, the salary levels have been approved by the Commission as being appropriate in the context of the overall TFS classification structure.[31] [108] This leads to the next consideration, being a comparison of the work performed by the two categories of employees. [109] From the evidence it is clear that, save for the fire fighting component, the work performed by the two categories is otherwise identical. [110] The significance of the fire fighting qualification should not be understated. It is gained only after a rigorous training regime and competency assessment process. The employer has every right to insist that this is an essential requirement for career fire-fighters moving into CFS roles. [111] The evidence also shows that the external appointments often hold different qualifications relevant to their role, which are not held by their career fire-fighter counterparts. However it must be said that these qualifications are generally in the ‘desirable” rather than “essential’’ category. [112] The extent to which the fire fighting qualification is used and competency maintained is entirely another matter, which is discussed earlier in this decision. Suffice to say that to suggest that the incumbents are required to maintain operational competency and respond on a regular basis to fire and other emergencies at short notice would be quite erroneous. [113] Irrespective of what the TFS future intentions may be, it is clear from the evidence that there is no formal competency maintenance program in place, and the extent to which incumbents maintain competency appears to be largely voluntary. [114] In my view a desk top analysis of the relevant SODs paints a picture of the relative importance of the fire fighting component which is inconsistent with the reality of the position on the ground. [115] Nonetheless the fire fighting component does have a value. [116] I am not persuaded to accept Mr Warwick’s contention that the salaries for the two categories should be identical. I am however firmly of the view that the existing differential in salary levels significantly overstates the extent of a differential that work value considerations would dictate. [117] In my view the relative work value worth of two categories would be represented by a differential of 5% in each case. According I determine that the appropriate relativities are as follows: Community Fire Safety Officer Level 2 104% Community Fire Safety Officer Level 3 115% Community Fire Safety Officer Level 4 120% Fire Safety Auditor. [118] In the absence of counterpart classification within the award, I accept Mr Warwick’s submission that it is appropriate to have some regard for similar classifications in the wider public sector. Indeed this approach is specifically provided for in Principle 9.5. [119] I also accept that some guidance can be gained from a comparison with the Inspector positions in Workplace Standards Tasmania. [120] The relevant SOD[32] for the Level 5 position seems to focus on “assisting” with the compliance role. In work value terms I would pitch the Auditor position somewhat higher than this in that clearly the role requires an actual compliance objective, rather than assisting with the achievement of compliance. [121] I would also conclude that the provision of “high level consultative advice” envisaged in the level 6 SOD is probably at a higher level than the advisory role applicable to the auditor. [122] Both Workplace Standards positions operate under general direction and supervision, which is consistent with the auditor role. [123] Having regard to the evidence and the internal and external integrity of the classification structure, I determine that the appropriate relativity for Community Fire Safety Officer Level 1 is 95%. Date of Operation [124] In the absence of agreement the date of operation is normally the date of decision. Had this application run its normal course, a decision in mid February 2008 would have been a reasonable expectation. However for reasons previously outlined, this, at the request of the parties, did not happen. In the circumstances I do not propose to determine an operative date until I hear further submissions from the parties, all alternatively, if the parties reach an agreed position. [125] The parties are directed to confer on the terms of an appropriate order reflecting this decision, together with the operative date. The UFUA is to advise the Commission of the outcome.
Tim Abey Appearances: Date and Place of Hearing: [1] T12932 of 2007 |