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T13186

TASMANIAN INDUSTRIAL COMMISSION

 

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

 

The Community and Public Sector Union
(State Public Services Federation Tasmania) Inc.
(T13186 of 2008)

 

and

 

Minister Administering the State Service Act 2000
(Department of Education – State Library)

 

Commissioner JP McAlpine

HOBART, 24 December 2008

 

Industrial dispute – alleged breach of the Public Sector Unions Wages Agreement No.1 of 2004 – alleged breach of the Public Sector Unions Wages Agreement No.2 of 2004 - Order issued

 

REASONS FOR DECISION

 

[1] On 18 July 2008, The Community and Public Sector Union (State Public Services Federation Tasmania) Inc. (the union) 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 (the Minister), Department of Education – State Library, (the department) arising out of an alleged breach of the Public Sector Unions Wages Agreements, Nos.1 and 2 of 2004

[2] The matter was listed for hearing at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 7 August 2008 (Conciliation Conference) and 25 September 2008.

[3] In December 2002, Ms A Ekin was offered a fixed-term trainee position as a library technician (Exhibit A3).  The offer was conditional on Ms Ekin attaining a diploma in Library and Information Studies or equivalent.  In June 2003, Ms Dianne Green was made a similar offer with the same condition (Exhibit A2).

[4] In April 2004 a general memorandum was circulated to the Business Unit Managers offering a Recognition of Current Competency (RCC) process to Library Technician 1s and those who had not yet completed the diploma (Exhibit M1).  RCC is a process whereby an individual’s skills, training and qualifications are evaluated against the criteria for, in this instance, the diploma in Library and Information Studies. The individual is then credited with prior learning towards the diploma possibly reducing the number of units of study which have to be completed.

[5] Ms CL Carr attained a diploma in December 2007.  Ms R Prince, Ms Ekin and Ms D Green all attained diplomas in December 2006.

[6] The four employees sought reimbursement of fees expended in attaining the respective TAFE diplomas.  Their requests were denied.  Mr Arditto asserted the department had breached Clause 30 of the Public Sector Wage Agreement 2004.

 

BACKGROUND

[7] Both Ms Ekin and Ms Green had the attainment of the diploma as a condition of their employment.  Mr Arditto asserted that Ms Carr and Ms Prince were “strongly pressed” into undertaking the diploma course.

[8] Mr Arditto argued that the employees were directed to undertake the diploma course and they were allowed to claim 50% of the attendance time as “actual hours of employment”.  He argued that the department breached Clause 30 of the agreement. Mr Watson argued that there was nothing in Clause 30 to compel the department to reimburse fees.

[9] Clause 30 in part offers:

 

“Without limiting its nature and extent professional development includes … award-bearing courses; … approved by the employer.

 

 

It must be evident that the activity will provide employees with skills/knowledge which will either:

 

  • Enable them to better undertake the work; or 
  • Enhance their career prospects 

 

Any costs associated with undertaking professional development will be reimbursed by the employer upon production of evidence of such expenditure.

 

…"

[10] Mr Arditto asserted that the four employees were engaged by the department before the commencement of the agreements on 1 January 2004 and attained their qualification during the term of the agreements.  He noted that although the attainment of the diploma was a condition of employment for Ms Green and Ms Ekin, the letter of offer was silent as to who would bear the costs.

[11] Exhibit M1, the internal memorandum to Business Unit Managers states in the second paragraph:

 

“… and the State Library is keen that all technical staff have or are moving towards the Diploma qualification.”

[12] Also forming part of the above exhibit are letters to the individual employees regarding their participation in the RCC. It states:

 

“By accepting this offer you will be committing to completing the requirements of the Diploma course – the additional study and TAFE fees that may be required of you will vary from individual to individual depending on the RCC assessment.”

[13] Mr Arditto argued that the course of study clearly complied with Clause 30 of the agreements in that the course was approved by the department, enhanced skills and career prospects and participation was actively encouraged.

[14] Mr Arditto also argued that there is no award requirement for Technical Officers, Level 1 to undertake a diploma course of study.  He further argued that the award provided for Level 1 employees to progress to Level 2 after completing 12 months at the maximum salary level of Level 1.

[15] In the letter rejecting Ms Green’s reimbursement claim (Exhibit A8), the Director noted:

 

“Since the introduction in 1996 of the Diploma as a mandatory qualification for technicians, State Library practice has been that technicians are responsible for their own course costs.”

[16] In the Statement of Duties – June 2004 for a Library Assistant (same as for Library Technician) (Exhibit A5) at POSITION OBJECTIVE, it states in part:

 

“… undertake on the job training and work place development to complement studies for the Diploma in Library and Information Studies.  In accordance with award standards successful completion of the course will lead to advancement to Level 2.”

[17] And under ESSENTIAL REQUIREMENTS, it states in part:

 

“Eligibility for admission to a relevant course of study at a recognized TAFE institution.”

[18] Ms Castle cited the following element of Clause 30:

 

“Agencies and their employees should agree on criteria for continuing professional development having regard to the cost, accessibility and availability of the course relevant to the needs of the workplace and the individual employee.”

(Transcript p.14, L.33)

[19] Ms Castle argued:

 

“This section indicates that whilst many of the costs of professional development is the responsibility of the employer there clearly needs to be agreement and this part of the clause allows for part payments of costs or the provision of study assistance to enable the employer to support the employee in participating in costs prohibitive professional development. Agreement regarding responsibility for the costs should be reached between the employee and the employer prior to undertaking any professional development.”

(Transcript p.14, L.38)

[20] And further:

 

“Agreement regarding responsibility for the costs should be reached between the employee and the employer prior to undertaking any professional development.”

(Transcript p.14, L.43)

[21] Ms Castle asserted:

 

“In this case there was clear agreement between the employer and the employee as to which course costs would be the responsibility of the employer …”

(Transcript p.14, L.45)

[22] Ms Castle asserted that two of the employees concerned received study assistance in form of paid leave or time off work, without loss of pay. She also raised a concern that the claims had been rejected in January 2007 yet only now has a dispute been initiated.

[23] Mr Arditto asserted that there was no time limitation on progressing alleged award breaches.

 

FINDINGS

[24] It should be noted that the period of operation for the agreement of 2004 was from January of that year until 31 December 2006.  A new agreement only came into force in July 2007.

[25] There appears to be no argument that the pursuit of the diplomas by the four employees was supported and sanctioned by the department and that it fitted into the intent of “professional development”.  Indeed Exhibit M1 shows the department’s desire to have all library technicians equipped with the diploma.

[26] The diploma course also complies with the various criteria of Clause 30 in that: The diploma is an “approved” and “award bearing” course.  It was espoused that it better enabled the employees to perform their work and that it enhanced their career prospects by facilitating timely movement to the next classification.

[27] The section of Clause 30 which states “Any costs associated with undertaking professional development will be reimbursed by the employer upon production of evidence of such expenditure” is in my view compelling.  It offers no other condition than proof of expenditure.

[28] Ms Castle relied on the section of the clause “Agencies and their employees should agree on criteria for continuing professional development having regard to the cost, accessibility and availability of courses relevant to the needs of the workplace and the individual employee” as evidence that cost allocation was to be agreed upon between the parties.

[29] I differ from Ms Castle’s proposition.  This paragraph may be reasonably interpreted as affirming the selection of “professional development” activities upon which an employee is to embark, such as courses or seminars, would be by mutual agreement.  Further, to determine if an employee is to embark on particular “professional development” then costs, accessibility, availability and the needs of the department must be taken into account before approval to participate.

[30] Ms Castle asserted that the above mentioned segment of Clause 30 “allows for part payment of costs”.  I disagree.  The clause clearly states “Any costs associated with professional development will be reimbursed ... It is not open for interpretation beyond the meaning of the words.

[31] I acknowledge that in the letters confirming the four employees’ participation in the diploma course (Exhibit M1) reference is made to “additional study and TAFE fees that may be required of you”.  I can accept that from the viewpoint of the department this statement forewarned the employees of the probability of them incurring costs.

[32] The Director’s letter to Ms Green (Exhibit A8) also states that since the diploma became a mandatory qualification the costs have been borne by the participants.  This may well be the case, but certainly since the agreement of 2004 there is an obligation on the department to carry “any costs” associated with professional development.

[33] I turn to the matter of the two employees whose condition of continuing employment was the attainment of the diploma.  Study towards the diploma at the onset of one’s career, in my view, is essential professional development and as such is covered by the intent of Clause 30.

[34] For the four employees to accept that the department would not reimburse “all costs” associated with professional development is tantamount to those employees contracting out of the agreement.

[35] The department has breached the agreement by failing to fully reimburse the named employees for expenditure associated with “professional development”, and I so find.

 

ORDER

 

Pursuant to section 31 of the Industrial Relations Act 1984 I herby order that the Minister Administering the State Service Act 2000, Department of Education – State Library reimburse all TAFE fees expended by Ms A Ekin, Ms D Green, Ms C Carr and Ms R Prince in their pursuit of attaining diplomas in Library and Information Studies by 16 January 2009, and I so order.

 

 

 

 

James P McAlpine
Commissioner

 

Appearances:
Mr S Arditto with Ms K Tyson for The Community and Public Sector Union (State Public Services Federation Tasmania) Inc.
Mr M Watson with Ms M Castle for the Minister Administering the State Service Act 2000, Department of Education – State Library

 

Date and Place of Hearing:
2008
August 7

September 25
Hobart