Industrial Relations Commission of New South Wales CITATION: PSA v Director General NSW Primary Industries. [2009] NSWIRComm 1078 APPLICANT PARTIES: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales. RESPONDENT Director General of Department of Industry and Investment (Formally NSW Department of Primary Industries) FILE NUMBER(S): 900 of 2009 CORAM: Ritchie C Section 130 dispute notification. PSA on behalf of a member submitted that an employee of the respondent had been incorrectly graded on promotion. Member had been on the top of a grade when promoted to another position covered by a different award. Member had been receiving a supervisory allowance when working in this lower position. This allowance paid for all purposes. When promoted he lost the allowance. Graded in new position same rate of pay as old position. PSA argued that allowance under old position should have been taken into consideration when striking rate/grade for new job. Also member had been in the old job at that pay level for more than 12 months. CATCHWORDS: Dept. Recruitment Procedure stated that a person on rate for 12 months or more should go to next level. Respondent argued that allowance no longer applied under the new award. Respondent also argued that clause in the new award required a person who wished to progress to a higher grade must apply and satisfy a progression criteria. Employee has not applied. PSA submitted that the clause did not apply ,Dept Recruitment Procedure applied. Commission found that allowance ceased once the employee had been promoted to a new position under a new award. Commission found that the clause in the new award applied not the Dept. Recruitment Procedure. Also the Dept Recruitment Procedure does not mandate the procedure as the word "may" is used. Commission found in favour of the respondent. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 29/09/09 DATE OF JUDGMENT: 7 October 2009 Applicant. Mr G Corrigan of the PSA LEGAL REPRESENTATIVES: Respondent Mr S Kempson of the Dept. DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C. 7 October 2009 Matter No IRC 900 of 2009 IN THE MATTER OF: Notification under section 130 by Public Service Association and Professional; Officers' Association Amalgamated Union of New South Wales of a dispute with Director General NSW of Primary Industries re allowances. DECISION [2009] NSWIRComm 1078 1 The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (the applicant) filed a dispute notification under s 130 of the Industrial Relations Act (the Act) on 22 June 2009 against the Director- General of Department of Industry and Investment (formerly NSW Department of Primary Industries) (the respondent). 2 The question, dispute or difficulty concerns the following industrial matters: a. Our member Paul Sullivan was employed by the NSW Department of Primary Industries as a Technical Officer Grade 3 year 4. b. Mr Sullivan was also in receipt of a Technical Co-ordinates Allowance. c. The Crown Employees (NSW Department of Primary Industries) Technical Staff Award states in part that " the allowance will be part of the member of staff salary for all purposes". d. Mr Sullivan then applied for a Professional Officers position within the Department and was offered and accepted the position. e. The Department commenced Mr Sullivan as a Professional Officer Grade 2 year 4. f. The Association contends that the Department should have commenced Mr Sullivan as a Professional Officer Grade 3 year 1 as his allowance should have been taken into account for this purpose. g. The department should have also commenced Mr Sullivan on Grade 3 year 1 in accordance with the department recruitment procedures. h. The association has been unable to resolve this matter by negation. The matter was listed three times for conciliation without resolving the dispute. Directions were given and a Certificate of Attempted Conciliation was raised. The Hearing of the matter was held on 29 September 2009 and the decision was reserved. At the Hearing Mr G J Corrigan appeared for the applicant and Mr S Kempson for the respondent. Both parties filed an outline of their submissions with attachments. Applicant's Case. 3 Mr Sullivan is a long-term employee of the respondent commencing in 1980 as a Technical Officer. Prior to taking up the role as a Professional Officer, Mr Sullivan held the position of a Technical Officer Grade 3 year 4. His annual salary was $74408. The common salary point was 91. As well as receiving $74408, Mr Sullivan also received a Technical Co-ordinator Allowance of $2080 per annum. This allowance as expressed in the Crown Employees (NSW Department of Primary Industries) Technical Staff Award states that the allowance will be part of the member of staff's salary for all purposes. In accordance with the definition found in this award the payment of the allowance is made for the supervision and co-ordination of technical activities in a technical section. 4 On 28 July 2008 Mr Sullivan was appointed by letter to the position of Professional Officer Grade 2 year 4 on a salary of $74408 under the Crown Employees (NSW Department of Primary Industries) Professional Officers Award. He did not continue to be paid the Technical Co-ordinator Allowance. 5 It was the submission of Mr Corrigan that the respondent by not taking into consideration the Technical Co-ordinator Allowance failed to correctly grade Mr Sullivan in his new position. 6 It was his submission that the respondent should have taken into consideration this allowance and therefore be paid Mr Sullivan at Grade 3, Year1 on a salary of $77508 per annum. 7 Mr Corrigan also submitted that the Department of Primary Industries Recruitment Procedures should have been adhered to. Part 12 Commencing Salary Rates of the Recruitment Procedures outlines the process as to what should occur when an offer is made. He submitted that the Principles of Pay Equity must be observed and the pay rate set according to the requirements of the position and not the group characteristics of the appointee. Also where a current Public sector Appointee is involved where the officer has been on the rate for 12 or more months the officer will transfer with the commencing salary at the next step on the new scale immediately above their present position. 8 As Mr Sullivan had been on his rate for over 12 months he on appointment to his new position should have progressed to Grade 3 year1 of the Professional Officers pay structure. 9 It was Mr Corrigan's submission that as Mr Sullivan was a Technical Officer at the time of his appointment he was not caught by the requirements of clause 5 of the Crown Employees (NSW Department of Primary Industries) Professional Officers Award. It was also his submission that Part 12 of the Recruitment Procedures override the Crown Employees (NSW Department Of Primary Industries) Professional Officers Award. 10 Mr Corrigan stated that a previous officer by the name of Crofft had been treated in a manner that the applicant sought for Mr. Sullivan. 11 He stated that when Mr Sullivan received his letter of appointment he was given 14 days to accept. Mr Sullivan objected to the salary/grading and advised his union. Communication between the parties ensured with the respondent stating that the grading and salary in their view was correct. Respondent's Case 12 Mr Kempson confirmed that Mr Sullivan had been employed since 1980 and that prior to his appointment as a Professional Officer Grade 2 year 4, he had been a Technical Officer Grade 3 year 4 and was in receipt of a technical co-ordinators allowance of $2080 per annum. Mr Sullivan had been on the maximum salary for that grade in the Technical Officer classification. 13 It was Mr Kempson's submission that the allowance received by Mr Sullivan was only applicable whilst ever Mr Sullivan remained in the Technical Officer classification. Mr Kempson stated that Mr Sullivan was reminded of this fact on numerous occasions leading up to his appointment. Mr Kempson stated the allowance could not be used as an argument to determine a rate of pay under a different salary scale in a different award. The allowance was only paid whilst Mr Sullivan was carry out the duties of a Technical Officer. 14 Mr Kempson stated that the rate of pay provided to Mr Sullivan in his new position was recommended by the selection panel taking into consideration the provisions of clause 5(i) of the Crown Employees (NSW Department of Primary Industries) Professional Officers Award which states that "a member of staff who has been in receipt of the maximum salary prescribed for their Grade for 12 months shall be eligible to progress to the next Grade, up to Grade 4, subject to satisfying the progression criteria, other than the Research Station Managers." 15 When the respondent received the objection from the applicant with respect to Mr Sullivan's salary, the Director-General was briefed on the matter and ruled that the commencing salary rate was appropriate but given the circumstances of the case advised that Mr Sullivan should apply immediately for progression to Grade 3 so as to minimise the impact of the transition to the new salary scale. The applicant was advised of this outcome on 12 June 2008 and Mr Sullivan subsequently signed his letter of offer accepting this position and the salary on 25 July 2008. 16 To date Mr Sullivan has not applied for progression to Grade 3 despite being invited to do so over 12 months ago. 17 Mr Kempson highlighted the history of clause 5 of the Crown Employees (NSW Department of Primary Industries) Professional Officers Award. He stated that the consent clause was placed in the award as a barrier that had to be negotiated when a Professional Officer reached the top of a grade. To proceed to the next grade the Professional Officer had to by way of application. Attachment 3 to his submission entitled Professional Officer Progressional Criteria outlined the process and criteria. 18 It was Mr Kempson's submission that clause 5 of the Crown Employees (NSW Department of Primary Industries) Professional Officers Award was relevant in this matter as it was the award Mr Sullivan is paid under and therefore had to be adhered to. Consideration and Decision. 19 It was accepted between the parties that Mr Sullivan was employed as a Technical Officer Grade 3 year 4 on a salary of $74,408. He was also paid a Technical Co-ordinator allowance of $2080 per annum (clause 7 Allowances) in accordance with Crown Employees (NSW Department of Primary Industries) Technical Staff Award. This allowance was paid for all purposes. 20 On appointment to the position of Professional Officer Mr Sullivan came under a different industrial instrument that being the Crown Employees (NSW Department of Primary Industries) Professional Officers Award. The Technical Co-ordinator allowance was discontinued, as it was not an allowance paid under this award. Under this award he was employed as a Grade 2 year 4. Mr Sullivan was paid at the top of his grade. 21 Both the grade 3 year 4 salary and the grade 2 year 4 salary had the same CSP of 91 and the same salary of $74408 per annum. 22 Clause 5 (i) Progression Criteria of the Crown Employees (NSW Department of Primary Industries) Professional Officers Award is expressed in part in the following form: (i) A member of staff who has been in receipt of the maximum salary prescribed for their Grade for 12 months shall be eligible to progress to the next Grade, up to grade 4, subject to satisfying the progression criteria, other than Research Station Managers. The Professional Officer Progressional Criteria sets out the procedure. Under the sub heading (B) PROCEDURE the following is expressed: All progressions have as a pre-requisite a requirement of twelve months service on the maximum rate payable on the current grade. Officers will be advised by the Staff Payroll Centre when they have met this pre-requisite. Progression will take effect from the date the application is received by Staff Payroll Centre where the application is subsequently approved without significant amendment by a delegated officer or a professional officers' progression committee. An application will require re-registration with the Staff Payroll Centre where it required significant amendment to satisfy the progression criteria. The application will then take effect from the re-registration date where it is subsequently approved in its revised form. Interviews for progression for Grade 2-3 and 3-4, will be held on two occasions during the year. Dates for interviews will be indicated at the beginning of the year. Each manager responsible for the applicant must check that the application meets the criteria before forwarding on. The document goes on to describe how applications are made and who comprises the committee. 23 A document entitled DPI RECRUITMENT PROCEDURES was included in the submissions of the applicant. Part 12 of the document is entitled COMMENCING SALARY RATES. It states: The pay rate for a recommended applicant must be determined before an offer can be made. Principles of pay equity must be observed and the pay rate set according to the requirements of the position and not the group characteristics of the appointee. Whilst the Executive Director Corporate Services has the delegation to approve commencing rates of pay at any prescribed salary point within the salary range there are guidelines issued by the Premier's Department which must be considered. (a) Current Public Sector Appointees: The pay rate may be determined according to the following conditions for current permanent Public Servants. If the officer's present rate coincides with a step on the new scale and; · The officer has been on that rate for less than 12 months, the officer will transfer with commencing salary at the step on the new scale (no change) and retain the existing incremental date; or · The officer has been on that rate for more than 12 months, the officer will transfer with commencing salary at the next step on the new scale with the incremental date changing to the date of appointment to the new position. If the officer's present salary rate does not coincide with a step on the new scale, the officer's commencing salary on the new scale will be that step immediately above their present salary rate. The officer's incremental date will change to the date of appointment to the new position. 24 It was Mr Corrigan's primary submission that the Technical Co-ordinator allowance should have been taken into consideration when setting the rate of pay within the Professional Officers salary range. If that had taken place then Mr Sullivan would have been graded as a Grade 3 year 1 on $77508 per annum. 25 Even if one discounted the allowance paid, it was his submission that Mr Sullivan was not caught by clause 5(i) Progression Criteria of the Crown Employees (NSW Department of Primary Industries) Professional Officers Award as it was overridden by Part 12 of the DPI RECRUITMENT PROCEDURES as Mr Sullivan had spent more than 12 months at the grade he was on. 26 I do not accept this submission. When Mr Sullivan was successful in his application to be a Professional Officer he at that point fell under a different award for his conditions of employment and rates of pay. He therefore was no longer entitled to the allowance he had enjoyed carry out his previous job under a different award. Different awards have different rates of pay, conditions and allowances. The words and therefore the requirements as expressed in clause 5 Progression Criteria (i) are clear. For a Professional Officer to move from one grade to a higher grade that person must satisfy the progression criteria. Not to adhere to that clause would undermine the progression criteria that gives structure and value to the regrading process. 27 Even if the allowance was not in the equation, it is my finding that the DPI RECRUITMENT PROCEDURES would not assist Mr Sullivan. I do not accept Mr Corrigan's view that a Department's procedures policy overrides the requirements of an award. The award in this case the Crown Employees (NSW Department of Primary Industries) Professional Officers Award takes precedent. I also note and accept the submission of Mr Kempson that the Procedure does not mandate the process as the word "may" is used not must or shall. It is my finding that as Mr Sullivan is employed and paid under the Crown Employees (NSW Department of Primary Industries ) Professional Officers Award he must therefore comply with clause 5(i) if he wishes to progress to Grade 3. 28 I note that the respondent offered Mr Sullivan the opportunity at the time of his appointment to immediately make a submission, seeking to progress to the classification of Professional Officer Grade 3 year 1. It is unfortunate that Mr Sullivan did not take up this option. I strongly suggest that he reconsiders this option. 29 I therefore dismiss the claim of the applicant in this matter. D.RITCHIE COMMISSIONER 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.