IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This is an appeal against a decision and order of Mr Commissioner King in which he determined new salary rates and classification structures for hospital-based radiographers.

The appellants are the Tasmanian Public Service Association and the Tasmania No. 2 Branch of the Hospital Employees Federation of Australia.

The grounds of appeal relied upon are that:

1. The Commissioner erred in that he did not give sufficient weight to the evidence presented during the case;

2. He did not accurately assess the appropriate work value levels of the designated classifications;

3. He did not determine an equitable career structure;

4. He did not provide adequate monetary recognition for additional qualifications; and

5. Such other matters as the Full Bench may deem appropriate.

While all of the grounds relied upon were addressed by the appellants, the main objections to the Commissioner's decision appeared to be that:

(a) He did not provide adequately for career progression beyond Class I.

(b) He introduced a barrier at the first increment of Class II [Specialist and Supervisor (Non Specialist)] beyond which the Supervisor of non specialist radiographers could not progress. This, it was submitted, had the effect of allowing a specialist radiographer, with no supervisory responsibility, to enjoy a further increment giving a monetary advantage of $1500 per annum above the maximum salary rate prescribed for a supervisor of non specialists.

(c) Having reserved Class III for Supervisors of Specialist Radiographers, the rate of $29,734 awarded for that class of supervisor is in excess of salary levels struck for Tutors and Deputy Chief Radiographers Grades 1 and 2. That rate is also only $191 per annum below Grade 3.

(d) The Commissioner declined to award a separate allowance for radiographers holding post qualifications accreditation in sonography.

In reviewing the decision in the context of Ground number 1, we believe that the Commissioner did give proper consideration to the evidence before him. Whether we as a Bench or as individuals might have awarded more or less than was granted is irrelevant. Matters of that kind are discretionary and should not be altered without good cause. As we can find no obvious defect in the Commissioner's findings in this regard, we reject Ground 1.

Ground 2 is little different from Ground 1 and is rejected for the same reason.

We now turn to the question of career structure. We can discover no requirement in the Act or Regulations that enjoins the Commission as a matter of law to provide for a career structure in an award. The Commission does not determine classifications. It determines only rates of pay for classifications presented for work value assessment by the parties.

Provided that a classification or group of classifications requested are justifiable on the evidence relating to the nature of the work covered by the award, the Commission will usually include that classification or those classifications in the award. However, before doing so it must be satisfied as to the bona fides of the need for such a provision. It must also make an assessment of the value of the work having regard for the nature of the duties, the qualifications required and the conditions under which the work is to be performed. It follows therefore that the Commission will not include fictitious classifications in case they are needed in the future because to do so would involve the Commission itself in carrying out a work value exercise in relation to non existent positions.

The Commissioner clearly applied his mind to the qualifications required of radiographers; the nature of the work they perform and the conditions under which that work is carried out. Moreover, his findings disclose that he awarded increases of varying amounts to all classifications. We of course decline to become involved in arguments regarding matters of quantum and career scales. It is obvious to us that the Commissioner has addressed both base grade radiographers, specialist radiographers, supervisory radiographers (including radiographers supervising non specialist and specialist radiographers), tutors, deputy chiefs and chiefs.

There is no doubt at all that over time, given the right qualifications and opportunity, a Class I Radiographer could advance to Class V. The argument regarding lack of career structure is therefore dismissed for lack of substance.

Ground 4 referred to the question of a separate qualification allowance. In this regard we have noted that Mr. Commissioner King included a component for qualifications in the rates he determined. However, he chose not to quantify the actual component included. But quantification per se was not an essential prerequisite to satisfying us that he exercised his discretion in a proper manner. The fact that he chose not to include an identifiable allowance in the award for attainment of additional qualifications was, we think, a matter for his discretion.

There was of course a requirement upon him to consider the question of a qualification allowance. And that he did. We presume in determining new rates he decided that all specialist radiographers, for example, would, or should, have some demonstrable post graduate qualification. There can be no question therefore that he had proper regard for the evidence before him. In fact in his decision he stated, inter alia:

"Nothing put to me in these proceedings convinces me to break from the normal practice; that is that qualifications are an integral part of any work value assessment of salary levels."

We therefore reject that ground of appeal.

In summary we find that neither Mr Mazengarb nor Mr Holden has persuaded us that Mr Commissioner King either misinterpreted the evidence before him; mistook an important question of fact; departed from the Commission's principles; failed to give proper consideration to the evidence before him, or acted contrary to the public interest.

It is well settled by other tribunals, and more recently confirmed by this Commission, that a decision of a Commissioner sitting alone will not be interfered with unless it can be shown that the decision was manifestly wrong or unfair; or that it was not reasonably open to be made on the evidence available.

In view of the nature of the arguments presented in this appeal, we take this opportunity to direct attention to the Full Bench decision in Matter T.1429 of 1988 1 in which the Commission has not only restated its general policy regarding appeals per se, but has also collated for the guidance of appellants and respondents generally a number of excerpts from decided cases. Each of the extracts catalogued in that decision are endorsed by this Commission as useful guidelines for those contemplating mounting or defending an appeal.

For the foregoing reasons this appeal is dismissed and the Commissioner's decision is confirmed.

1 Appeal against decision in Poultry Game and Marine Products Award re fish farm attendants