Industrial Relations Commission of New South Wales CITATION : ASU v Hunter Water Corporation [2002] NSWIRComm 63 PARTIES : Australian Services Union, NSW & ACT (Services) Branch Hunter Water Corporation FILE NUMBER: IRC 6128 of 2001 CORAM: Harrison DP CATCHWORDS : Award classification - payment in accord with incremental scale preferred by employee - appointment to alternative higher scale not available without change of duties to encompass higher paid position - opportunity to apply for alternative positions remains available - application for reclassification declined. LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 03/28/2002 DATE OF JUDGMENT: 04/12/2002 APPLICANT Mr E Razborsek LEGAL REPRESENTATIVES: RESPONDENT Mr R Warren of Counsel JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 12 April 2002 MATTER NO IRC 6128 OF 2001 Notification under section 130 by Australian Services Union NSW & ACT (Services) Branch of a dispute with Hunter Water Corporation re job evaluations DECISION [2002]NSWIRComm 63 1 The notification giving rise to this matter was filed by Australian Services Union, NSW and ACT (Services) Branch ('the Union') on 13 September 2001 pursuant to s 130 of the Industrial Relations Act 1996 ('the Act'). The notification advises of a dispute with the Hunter Water Corporation (HWC) concerning the evaluations of 3 positions by use of the Hay Job Evaluation ('Hay') methodology by HWC. 2 Compulsory conference proceedings established that two of the three positions were resolved by discussion between the parties, leaving the position of Technical Services Officer (TSO) unable to be resolved in conciliation, leading to the issue of a Certificate of Attempted Conciliation and directions to bring the matter to hearing on 28 March 2002. 3 On hearing Mr E Razborsek appeared on behalf of the Union with Mr R Williams. Mr R Warren of Counsel appeared on behalf of HWC with Ms J Roach. 4 Mr Razborsek brought evidence from Ms Janice Davis, employed by HWC as a TSO. 5 Mr Warren brought evidence from Ms Teresa Turner, Manager Employee Services, HWC; and Mr Russell Pascoe, Manager Planning and Development, HWC. THE EVIDENCE 6 The evidence established that Ms Davis is one of three only TSO's who remain in employment with HWC in a position remunerated in accordance with the TSO scale set out in the Hunter Water Corporation Employees (State) Award 1999 (315 IG 1362) ('the Award') as revised in accordance with s 19 of the Act in IRC2001/4691 on 27 August 2001 before the Commission as presently constituted; and the Hunter Water Corporation Employees' Enterprise Agreement 2001 ('the agreement'). The agreement came into effect on 1 June 2001 and remains in force until 30 June 2003. A copy of the agreement was tendered by Mr Warren (Ex 3). 7 The Administrative Officer (AO) scale and TSO scale remain in the Award by agreement between the parties, arrived at in lengthy and detailed proceedings (IRC 2041 of 1999 before the Commission as presently constituted) which established an alternative salary structure based on job evaluation of each particular position. The Hay system is used to determine applicable rates of pay. During the course of these negotiations the parties agreed that transfer from the scale to the designated position would be voluntary, HWC making it clear to all parties that no new employees would be engaged on the scale and that over time both the TSO and AO scales would become obsolete. 8 The TSO position is known as the Plan Services Officer (PSO) in the job evaluation model. 9 Ms Davis has been employed by HWC in excess of 30 years, commencing in the position of Tracer at a time when the work was undertaken manually and HWC employed a large number of people in that position. Over time the work has become substantially computerised, and in some areas obsolete due to the introduction of self regulation in the plumbing industry significantly reducing the number of employees in that area. 10 The evidence of Ms Davis is that prior to 1986 there were five classifications for non-professional salaried staff, comprising Stenographers, Typists, General Office Assistants, Tracers and Clerks. In 1986 these classifications, with the exception of the Tracers, were combined into a single classification of AO. It was in 1989 that the classification of Tracer became TSO and paid in accordance with the TSO scale. 11 The evidence of Ms Davis is that the AO scale provides higher rates of pay than the TSO scale and that Tracers have been trying to bridge that gap since 1986. The current difference between payment on the TSO scale and payment on the AO scale is $4,000 per annum. 12 The evidence of Ms Davis is that in 1998, 13 of the then 19 TSO's employed by HWC were transferred to the AO scale. Of the six remaining, one was given the option to transfer but elected not to do so, and five, including herself, were engaged on a special project within the Sewer Water Information Mapping System (SWIMS) led by Mr Pascoe. Ms Davis' evidence is that these TSO's were advised by Mr Pascoe that their transfer to the AO scale would be addressed once the SWIMS project was completed. The SWIMS project completed in April 1999. The TSO's are now reduced to three who remain on the TSO scale. 13 The evidence of Ms Turner and Mr Pascoe, and in part Ms Davis, established that where TSO's were transferred to the AO scale there was an associated change of duties to encompass AO functions. 14 The evidence of Ms Turner is that over the past 11 years HWC has had vacancies in approximately 3.5 administrative positions per year, the bulk of which have been advertised internally. 15 Mr Pascoe denied that there was any basis for an expectation that there would be a transfer to AO in his undertaking to review the position of TSO's. 16 The evidence of Mr Pascoe is that he has reviewed the position of TSO, concluding that their work remains overwhelmingly technical and that the administrative component is insufficient to justify a move to the AO scale. At p 18 of his statement of evidence (Ex 4) Mr Pascoe says: "The duties that the now remaining three TSO's in the Plan Services Group carry out are not administrative work, they are substantially TSO duties. Therefore the Corporation has not acceded to their request to be transferred to the AO scale. It is noted that the definition of TSO in the Award is "" Technical Support Officer" shall mean an employee appointed as such to provide technical and associated administrative support to the Corporation's technical staff. Such appointees should be undertaking or have completed the Tracing and Mechanical Drawing Certificate Course &/or a Drafting Certificate ." These people continue to do minor ancillary administrative work in accordance with the definition in the Award. 17 Ms Davis does not dispute the description of duties relied upon by Mr Pascoe, being a job profile for a PSO developed in consultation with Ms Davis (Att. 6 to Ex 4). SUBMISSIONS 18 Mr Razborsek submitted that the present proceedings were not work value in nature and accordingly not brought pursuant to the work value principle of the State Wage Fixation principles found in the 2001 State Wage Case (104 IR 438). 19 Mr Razborsek submitted that there was a $4,000 per annum difference between the rate of pay available to Ms Davis and her colleagues on the TSO scale compared to the AO scale which they now seek. Mr Razborsek put that Ms Davis and her colleagues wished to remain in their present positions, undertaking their present duties, arguing that payment in accordance with the AO scale would be fair and reasonable. 20 Mr Razborsek supported this submission by reference to the range of skills and abilities held by the TSO's, their involvement in administrative functions and what he put was a reasonable expectation that they would be placed on the AO scale on completion of the SWIMS project. 21 Mr Warren submitted that, whilst Ms Davis and her colleagues remain in their present positions, carrying out their present duties and exercising their option not to transfer to the job evaluation model, there is no alternative to remaining on the TSO scale. Mr Warren submitted that the work undertaken by Ms Davis and her colleagues did not justify a move to the AO scale, and accordingly was not available to them. 22 Mr Warren relied upon evidence from Ms Turner that in excess of three vacancies occur annually in AO positions for which Ms Davis and her colleagues are able to apply; and that they could, should they so choose, apply for transition to the position of PSO in the job evaluation model. 23 Mr Warren relied upon the evidence of Mr Pascoe to refute the assertion that an expectation of transfer to the AO scale had been created by management. CONSIDERATION 24 The matter as argued does not dispute the evaluation placed upon the PSO position by Hay. The argument advanced seeks a move to the AO scale, however, this is not supported by the nature of duties and responsibilities required of a TSO electing to remain on the TSO scale. 25 The assertion that management created an expectation that should now be honoured is not substantiated. 26 The evidence supports a conclusion that the TSO position is in the process of extinction as the organisational requirements evolve to meet changing circumstances. It is open to the remaining TSO's to elect to remain TSO's or to take up opportunities as they arise. 27 Ms Davis and her colleagues have made the selection in accordance with the rights won for them by their union. They remain authors of their own circumstances and whilst they exercise the option they have, there is no justification for intervention of the Commission. 28 Matter No 6128 of 2001 is so concluded. oo0oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.