T6702
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Municipal, Administrative, Clerical and Services Union COMMUNITY SERVICES AWARD
Interpretation of award - Clause 7 - Definitions - subclause (a) General and subclause (b) Classification Standards - declaration inappropriate - applicant ordered to make application to vary the award to clarify provision REASONS FOR DECISION This application by the Australian Municipal, Administrative, Clerical and Services Union (AMACSU) was for an interpretation, pursuant to section 43 of the Industrial Relations Act 1984, of Clause 7, Definitions, of the Community Services Award. In particular the meaning of a component (which I shall call the fourth component) in the description of "Responsibility" in the Classification Standards for a Community Services Worker Level 2 which was:
and the definition of the term "Immediate Supervision", which was:
was questioned. Mr Paterson for AMACSU outlined the union's position and submitted that I should declare that the award should be interpreted to mean that "a field officer being an employee working away from the environment of immediate supervision cannot be classified at less than Level 3", and further that the award should be so interpreted, retrospectively, from the date the classification standards took effect. Mr Paterson said he believed the declaration he sought would assist all the parties in resolving and preventing disputes about classification levels and the translation of employees to the award. Mr Watson, for the Tasmanian Chamber of Commerce and Industry Limited (the TCCI) confirmed that the parties were concerned about the "general principles" flowing from the award which could then be applied to "specific circumstances" in the workplace. Mr Paterson tendered exhibits dealing with positions known as "Transport/Emergency Home Alarm Coordinator" and "Community Liaison Officer". The exhibits contained new and old job descriptions in respect of both positions and an application for reclassification in respect of the first position. Mr Paterson said that he relied on the principles of interpretation determined in T30 of 1985 which would be followed in his submissions. He said the award made on 7 November 1995 was effective from 1 July 1995. He submitted that an employee classified at Community Services Worker Level 2 must be subject to immediate supervision. He argued that the requirement that a Level 2 employee works under "general supervision", related to the final checking of work and to progress checking only in respect of very complex or unusual situations, and was not inconsistent with the definition of "immediate supervision". He said the two terms were not incompatible nor did they create any ambiguity. He submitted that the award had been carefully drafted to clarify the use of the words such as immediate supervision. Mr Paterson submitted that a Level 2 employee might be "required to remain on premises without an immediate supervisor present in overnight, shift work or sleepover capacity and during this period the employee shall work within established guidelines, practices and procedures."1 Mr Paterson submitted that the interpretation sought would not create any inconsistency with the definitions and descriptions of work at Level 3. Addressing the specific duties set out in Exhibit ASU.1, Mr Paterson said the original position description for this particular employee included in the duty statement section -
He said that the Emergency Home Alarm Service was a service to elderly people involving "a device that is installed in conjunction with a telephone that allows an emergency alarm to ring" and help is arranged quickly for those people.2 He said the employee in the new job description had described that function as -
Exhibit ASU.2 was in respect of a position involved in provision of a "health education and support service" to people suffering a particular condition and the role of the employee was to visit and liaise with clients. Under "Caseload" in the position description, three visits or contacts were required for new clients and two visits or contacts for established clients. He said extensive field work was required. Mr Paterson pointed out the Selection Criteria for the position under the section identified "Skills", required the employee to have -
Mr Paterson estimated that in most cases employees in the first group would spend more than half their working time out of immediate supervision and that the second group would spend a "significant majority of their time on the road and visiting clients and organising groups and liaising with clients of the organisation."3 He said the words used in the award supported his view that an employee engaged to perform duties in a work environment where immediate supervision is not provided and where a "significant and substantial" part of their work is away from supervision should be classified at Level 3 or higher. Mr Paterson submitted that the application of the requirement of "immediate supervision" was non discretionary and that if immediate supervision is not provided the position would attract a classification higher than Level 2. He said immediate supervision required that the person supervising should be immediately available at the workplace to be called on if required. Mr Paterson submitted that those who worked in the field visiting clients "in effect take their workplace with them". He said that the definitions of "General direction" and "General supervision" had more to do with the content of the direction and the supervision; and the definition of "Immediate Supervision" referred to who performs the supervision and the supervisor's availability at the workplace. Mr Watson, for the TCCI, also following the "principles" of interpretation set out in T.30 of 1985, submitted that using the definition of "General direction" and the first responsibility in the Classification Standards for a Community Service Worker Level 2, there was nothing which meant that such an employee could not work without immediate supervision. Similarly, given the definition of "General supervision" and the second responsibility in the Classification Standards for a Community Service Worker Level 2, there was nothing to prevent such an employee working without immediate supervision. Again he said the third responsibility made no reference to the need for immediate supervision. However the fourth responsibility, which is the responsibility relied upon by the applicant, requires the employee to "work under the immediate supervision of a higher classified employee and assistance is available when problems occur"; which meant, Mr Watson said, that the "supervising employee is normally immediately available at the workplace during the employee's working hours". He said those words were fairly clear but they did not "dovetail" or follow on from the previous components in that particular definition under "Responsibility" and that the fourth component was contradictory and possibly ambiguous. As to the next component, Mr Watson said the Level 2 employee "may oversee or provide guidance to lower classified employees and/or volunteers", but again there was no reference to the need for an immediate supervisor to be present. He said the final listed responsibility dealt with the situation where a Level 2 employee was allowed "to work in a shift work or sleepover capacity" without immediate supervision".4 Mr Watson said that it would be difficult to have regard to the intent of the award maker as the decision which supported the order dealt mainly with rates of pay and the parties had been directed to "look at the definitions" and prepare a draft order. Mr Watson submitted that even though the words in the Responsibility section for Level 2 employees are clear in themselves, when the section is considered as a whole there are contradictions which should more properly be dealt with by way of section 43 (1A)(b). Mr Watson said that because of the contradictions which "could perhaps lead to ambiguity in themselves and perhaps a defect in the award", an application should be required to vary the award to clarify the meaning and allow the parties to address "things like merit, equity and intent". Mr Paterson said there was no defect or contradiction in the award and that if there was any need to vary the award it would be to cite the requirement for immediate supervision as the first in the list of responsibilities for a Level 2 employee. 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."5 is immediate supervision for the purposes of the definition. In my view the first component is fundamentally the application of the definition of "General direction" to the work of a Level 2 employee. I have no difficulty with the proposition that an employee can work in accordance with "well established practices, procedures and/or guidelines" etc. and still be under the immediate supervision of a higher classified employee who can provide assistance when problems occur. The second component is fundamentally the application of the definition of "General supervision" to the work of a Level 2 employee. Again I have no difficulty with the proposition that the work of an employee can be checked on completion of tasks, outcomes can be monitored and progress checked on in respect of complex or unusual tasks or situations and the employee can still be under the immediate supervision of a higher classified employee who can provide assistance when problems occur. The third component requires an employee to exercise initiative and judgment and to act within established practices, procedures and/or guidelines which is basically a repeat of some aspects of the first component; but it does not, in my view, prevent such an employee working under the immediate supervision of a higher classified employee who can provide assistance when problems occur. The fourth component requires a Level 2 employee to work under immediate supervision as defined so that assistance is immediately available when problems occur. This component is not incompatible with the previous components. The fifth component provides that a Level 2 employee may oversee or guide lower classified employees and/or volunteers. I consider such a responsibility can co-exist with the requirement that such an employee must work under the immediate supervision of a more highly classified employee who can provide assistance when problems occur. I consider the sixth component, contrary to the submissions of Mr Paterson and Mr Watson, substantially overrides the fourth component and provides that a Level 2 employee may be required to remain on premises, in any capacity, at any time, not just overnight in either a shift work or a sleepover capacity, without an immediate supervisor being present. In my opinion the words used in this component have a much wider application than that suggested by both Mr Paterson and Mr Watson who both appeared to take the view that it applied only in circumstances where the employee was required to remain on premises overnight in either a shift work or sleepover capacity. I consider, on the words used, that the sixth component can be applied at any time, "including" when the employee is involved in work overnight in either a shift work or sleepover capacity. Granting such an open ended discretion to the employer in this component is completely at odds with the fourth component which demands the availability of an immediate supervisor. The two components are contradictory and there is no evidence available to me to enable me to decide which of the two should take primacy. In this context I note the parties' submissions that the definitions were inserted in the award as the result of a draft order prepared by the parties describing their consent position. It follows that if the sixth component meant what the two parties thought it meant, I would have had no hesitation in declaring that employees who worked in circumstances where immediate supervision, as I have interpreted it, was not available should not be classified at Level 2. On the material presented the positions put forward by the union fall into that category. However an interpretation, put simply, is not a matter of considering the merit of a claim but of determining what the words used in the award mean. In all the circumstances I have come to the conclusion that it would be inappropriate to attempt to declare how the Classification Standards for a Community Services Worker Level 2 as set out in Clause 7(b) of the Community Services Award should be interpreted and I hereby order, pursuant to section 43(1A)(b) of the Act, the Australian Municipal, Administrative, Clerical and Services Union to make application to vary the award for the purpose of clarifying that provision.
F D Westwood Appearances: Date and place of hearing: 1 Transcript p.7 |