|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Industrial Relations Commission Transcripts |
1596 
, Transcript of Proceedings [2004] AIRCTrans 825 (9 March 2004)
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 6258
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SMITH
C2004/ 1596
DEPARTMENT OF JUSTICE
and
THE COMMUNITY AND PUBLIC
SECTOR UNION-SPSF GROUP
Notification pursuant to section 99 of the Act
of an industrial dispute re occupational
category review
MELBOURNE
10.07 AM, MONDAY, 16 FEBRUARY 2004
Continued from 13.2.04
PN878
THE COMMISSIONER: Yes, Mr Ewer.
PN879
MR EWER: Thank you, Commissioner. Commissioner, as Ms Batt has explained in evidence the union's case in this matter involves setting a new rate for the COG2A position based on work value and relativity arguments. And then constructing above that level appropriate relativities for a rank based occupation like prison officers. The union's claim also comprises a set of translation arrangements which are given scope by discounting the COG2A rate arrived at the methods described.
PN880
In considering these matters I would pose the issues before the Commission in terms of two questions. The first of these is whether, following the exceptional matters order, there are wider issues of skill and responsibility involved in the work over and above those provided for by the standard descriptors. If the answer to that question is yes there are indeed wider issues of skill and responsibility not provided for by the standard descriptors then it is our view that the Commission should follow the methodology suggested by the union.
PN881
Only if the Commission found in the negative to this first question does the second arise. Where would the work of prison officers aligned to the general structure if the standard descriptors were the only tool of alignment. For abundant caution we will address this issue arguing that even if the standard descriptors were the only instrument of evaluation the position of prison officers is higher than that proposed by the Crown in DOJ1. The Commission has also asked the parties for a view as to how the 76 - 80 hour problem should be resolved and I will provide the union's position on that question later in this submission.
PN882
But first; are wider issues involved? The exceptional matters order makes it perfectly clear at clause 5.1 that the first phase of any of the adaptive reviews agreed between the parties should, quote:
PN883
Focus on the work performed and the skill and responsibility attached to that work.
PN884
Crucially clause 5.1 goes on to say that, quote:
PN885
This must mean that the descriptors would not in themselves be conclusive of the review.
PN886
It is the submission of the union that the Department has failed to addressed this point and for good reason. Its case would collapse if it did. How should this primary task of evaluating the work of prison officers in terms of their skill and responsibility be conducted? The work value principles of this Commission provide the required guidance. I refer here to principle 6 of the Commission's May 2003 decision on the last safety net adjustment - reference PR002003. How does this matter sit with the requirements of the Commission in those principles on work value?
PN887
At 6(A) the Commission sets out the threshold issue thus:
PN888
The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a ...(reads)... to a higher classification.
PN889
The union submits that the evidence of Ms Batt, Mr Renshaw and crucially, Mr Wise, satisfies the Commission's strict test on work value. At paragraph 12 of CPSU2 Ms Batt gave evidence on the change in work involved in the introduction of unit management. This evidence was uncontested by the Department. Mr Renshaw in evidence in-chief gave similar evidence. Again, without challenge by the Department. And, importantly, Mr Wise in cross examination reviewed for the Commission the development of unit management and its success in improving the operation of prisons in Victoria.
PN890
Indeed, the Commission will recall that Mr Wise was fulsome in his account of unit management citing the reduction in rates of suicides in particular but attesting in general to the proposition that the change from the turn key to the unit management prison had resulted in major and demonstrable gains in the operation of Victorian prisons. Under cross examination Mr Wise also agreed that the introduction of unit management had involved significant changes to the work of prison officers.
PN891
Mr Wise was asked whether prison officers had received a work value adjustment for these changes and indicated he was unaware of any such adjustment. The reason for the absence of any work value adjustment is of course apparent from the evidence of Ms Batt at paras 10 to 17 of CPSU2. That evidence shows that an agreed work value adjustment for the implementation of unit management, the Public Service Board declaration number 7 of 1992 and tendered as CPSU3, was cancelled unilaterally by the State Government.
PN892
In cross examination of Ms Batt, Mr Freeburn suggested that because CPSU contained a number of matters in addition to provisions to introduce unit management these served to discount the work value content of the Public Service Board declaration. In particular Mr Freeburn took Ms Batt to overtime and shift work provisions in CPSU3 and Ms Batt was unable to specify the worth of these elements in the improved pay rates provided for by the PSB declaration. It is necessary for us to consider Mr Freeburn's case. Clause 8 of CPSU3 deals with overtime payments for work exceeding 76 hours per fortnight.
PN893
Mr Wise was asked in cross examination whether prison officers, some 90 per cent of the total workforce, received ordinary hour rates for the gap between 76 hours and 80 hours and confirmed that they do; ie overtime rates do not apply. Clause 12 of CPSU3 is provision to facilitate flexibility in shift work including 12 hour shifts. Mr Wise was asked in cross examination whether he had the flexibility to introduce 12 hour shifts and confirmed that he did have that flexibility.
PN894
In short, CPSU3 does indeed contain a number of matters that attach to the improved classification system it promised. The only problem for the Department is that the overtime provision of CPSU3 is largely redundant by virtue of the 80 hour fortnight. It has the shift work flexibility it sought in 1992 and it has unit management as well. The only thing that hasn't been delivered in the PSB declaration is of course the new wage rates for prison officers. Is CPSU3 and the related exhibit CPSU7, which provides the more legible wage structure, a relevant benchmark for the Commission in these proceedings?
PN895
There are two possible objections to the use of CPSU3 for our purposes. First, that various legal cases that followed the Government's cancellation of the PSB declaration heard the merits of the case and the union's position was disavowed. And, second, whether this Commission's work value principles would be offended by the use of CPSU3 in the terms suggested by the union. Ms Batt, at paragraph 15 of CPSU, gave evidence about the union's first appeal concerning PSB declaration number 7 in these terms:
PN896
The matter was heard...
PN897
and I quote:
PN898
The matter was heard by DP Marsh in January 1993 who declined to exercise the arbitral powers of the Industrial Relations Commission of Victoria. In decision ...(reads)... were published.
PN899
End of quote. The matter was then appeal by the State Public Services Federation of Victoria and came before the Employee Relations Commission of Victoria referred to by Ms Batt at para 17 of CPSU2. That Commission decided in decision E95/0248 to decline to exercise its discretion to deal with the matter. To quote that decision at pages 3 and 4:
PN900
As a matter of discretion we do consider that it is inappropriate to proceed further with the SPSF claim for the order sought in this case. So much has happened ...(reads)... agreement of 1992 -
PN901
that is to say the Public Service Board declaration -
PN902
based upon the structural efficiency principles is simply unrealistic. That of course does not preclude consideration of the employees concerned under other ...(reads)... and minimum wages.
PN903
In other words although the Employee Relations Commission of Victoria was not moved to hear an appeal on the matter the merits of the case were never heard and indeed that Commission invited the employees to have their case considered under other aspects of the then Victorian legislation. Clearly the Employee Relations Commission of Victoria anticipated that the merits of the union's case could be heard under an alternative process. That the union did not elect to pursue remedy in the then Victorian Commission, having at that time decided to pursue Federal Award coverage does no damage to our reliance on the work value content of PSB declaration 7, and tendered here as CPSU3 and 7.
PN904
Is there anything in the work value principles of this Commission which would prevent the use of the work value findings contained in that declaration as suggested by the union? At principle 6(e) the Commission observes that:
PN905
Care should be exercised to ensure that changes which were or should be taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this principle.
PN906
This is obviously a protection against double dipping. That is if a group of employees have been compensated for the changes in work through a structural efficiency adjustment then future work value arguments cannot rest on those changes. Clearly, however, 6(e) does not preclude a work value case from relying on job changes encompassed by a structural efficiency adjustment which was in fact never paid. You cannot double dip if you never got wet in the first place. Is there anything in the work value principles that would foreclose the Commission from relying on CPSU3 and 7 by virtue of the elapse of time? Far from it.
PN907
In point of fact principle 6(f) tells us that work value cases must involve a longitudinal dimension and crucially for our purposes sets no limit on how long a period might be involved. To quote from 6(f) of PR002003:
PN908
Where the tests specified in (a) are met an assessment will have to be made as to how that alteration should be measured in monetary terms. Such assessment will normally ...(reads)... change of the work.
PN909
Nothing here, we submit, from using PSB declaration number 7 is an appropriate formula for undertaking the assessment of monetary worth required by this Commission. What would the COG2A rate look like if the relativities provided for in the PSB classification structure were applied? We have from CPSU3 and 7 converted the 1992 SEP rates to the present day following the history of VPS wage fixing described by Ms Batt in CPSU2. If prison officers received what they were entitled to the COG2A rate would now be $34,170 for 76 hours and $35,972 for 80 hours.
PN910
PN911
MR EWER: Thank you, Commissioner.
PN912
THE COMMISSIONER: And it is no longer without prejudice.
PN913
MR EWER: Yes.
PN914
THE COMMISSIONER: That is all right. Old habits die hard.
PN915
MR EWER: They do. It should be noted that the PSB declaration apparently involved only a modest adjustment to the base rate of Prison Officer 1. However, the translation table provided in CPSU3, I beg your pardon, provided as part of CPSU7, shows that it was intended that the existing Prison Officer 1 work force would translate to the second salary point giving them a 4.3 per cent increase on translation. And it is for that reason that CPSU8 has that annotation in the box which indicates that existing employees would not be subject to the base rate increase but would move to the second progression point on translation.
PN916
The rate for anyone in this category, as CPSU8 shows, apart from any increment based gains that they would have been entitled to as a result of the operation of the aborted system would be $35,513 for 76 hours and $37,382 for 80 hours. The union submits that the relevance of the PSB declaration number 7 as an objective method of costing the benefits of unit management is strong and incontrovertible. The rates established by applying the formula by PSB declaration number 7 substantiate the union's claim summarised by Ms Batt at para 55 of CPSU2.
PN917
In evidence in-chief and then again in cross examination Ms Batt explained that the base rate of COG2A was based on the PSB methodology discounted to allow for scope for the translation of present system proposed by the union. The union's claim on COG2A has been set at the first point in the PBS scale lower than the rate extrapolated from PSB declaration number 7 and this provides for scope for the translation model described by Ms Batt at para 55 of CPSU2. The union contends that the PSB declaration provides a scientific and objective measure of the work value changes associated with unit management and provides evidence to substantiate the union's claim.
PN918
It is not, however, the whole of the basis of the union claim and what would be the consequences for the union if the Commission, for whatever reason, was unpersuaded by the evidence around CPSU3 and 7? At paragraph 34 of CPSU2 Ms Batt provided a summary table of wage rates for the base administrative worker and the base prison officer comparing the figures for 1992 and 2004. In cross examination Mr Freeburn suggested that the alignment suggested by Ms Batt were incorrect. The appropriate correlation being not Prison Officer 1 to COG1 but Prison Officer 1 to COG2A.
PN919
Ms Batt noted in reply that the introduction of the COG1 Trainee was accomplished without the agreement of the union and without, as far as she knew, a work value review. However, allowing Mr Freeburn his point what are the relativities between administrative workers and prison officers revealed by paragraph 34 of CPSU2? This question of relativity also arose in cross examination of Mr Wise. Specifically in relation to exhibit RW2. That exhibit provided the wage rates for the hierarchy of classifications applying in the Department of Justice in 1997.
PN920
Mr Wise, in cross examination, agreed that the relativities between base administrative worker and base prison officer, COG2A, in RW2 was 117.25 per cent. Mr Wise, also in cross examination, agreed he had no reason to doubt Ms Batt's evidence that the comparable relativity in 1992 was 126 per cent. Further, Mr Wise was unable to point to any work value review that explained the erosion of relativities. Indeed all of the evidence before the Commission shows that the work value of prison officers was increasing through the 1990s courtesy of unit management.
PN921
To put the matter bluntly, while the work value issue was headed north the appropriate relativity was headed south. The following table combined, and I seek to tender another table, Commissioner. And again old habits have died even harder so without prejudice can be removed.
PN922
PN923
MR EWER: Thank you, Commissioner.
PN924
THE COMMISSIONER: Isn't the difference simply explained by the disallowance of declaration 7 in 1992?
PN925
MR EWER: It could be although the rates are slightly different depending on which methodology you apply.
PN926
THE COMMISSIONER: Yes.
PN927
MR EWER: But clearly PSB declaration number 7 is an important - we say though obviously that these people are still entitled to the relativity vis-a-vis the base administrative worker.
PN928
THE COMMISSIONER: I understand.
PN929
MR EWER: CPSU9 combines the evidence on relativities provided by CPSU2 and RW2 and using the 1992 relativity shows how the COG rates have been devalued over the last 12 years. It is important to remember that all of the evidence before the Commission on this question, whether either from the union or the Department, shows that no work value assessment was ever conducted to justify the alteration of internal relativities between the prison officers and the base administrative worker of a VPS structure.
PN930
The Commission will note that the evidence on internal relativities confirms the validity of the union's claim. Using the formula in CPSU9 the rate for a 76 hour COG2A should be 34,042 and for an 80 hour 35,833. Again, higher than the actual rate claimed by the union, to give room for the translation arrangements proposed by us. Even if the Commission is unconvinced by PSB declaration number 7 and we respectfully submit that that declaration is valid and appropriate to these proceedings, then the evidence on internal relativities on its own is sufficient to grant the union's claim.
PN931
Is there anything else in the Commission's work value principles that would be offended by granting the union's claim? Further, at 6(a), to the passage already quoted, the Commission in PR002003 states that:
PN932
In addition to the strict test of work value a party making a work value application will need to justify any change to wage relativities that might result ...(reads)... in relative position.
PN933
The Commission's instructions on this matter are clearly directed to the impact on award rates of pay. Nevertheless the union accepts the necessity of complying with this provision in the current agreement related matter and for that reason we have tendered the evidence of Mr Perica at CPSU1. Mr Perica's evidence, uncontested by the Department, shows that granting the union claim in full will not generate any pressure for leapfrogging between public correctional authorities. And indeed serves only to get Victoria back into the mainstream of paid rates in the corrections industry.
PN934
The union respectfully submits that the work value on relativity arguments put forward here justify the setting of rates by the wider review process anticipated by clause 5.1 of the Commission's exceptional matters order. That case in our view is clear, compelling and scientifically based. However, it is appropriate for us to consider the validity of our claim if the Commission were to disallow any or all of our propositions in relation to the wider review of skill and responsibility provided for by clause 5.1. Where would the union's case rest if the standard descriptors apply?
PN935
This is of course essentially the position of the Department. The standard descriptors are adequate to the task and should be used to align the work of prison officers to the VPS wage scale. The union led evidence from Mr Goulden who summarised the work of prison officers in CPSU4 and Mr Renshaw who applied the standard descriptors to the work of prison officers in CPSU6. Mr Freeburn, in cross examination, suggested that Mr Renshaw had overvalued the work of COG2A prison officers because they performed some work at the first value range of Grade 2.
PN936
For example, in the accountability and frameworks element of the decision making variable. However, Mr Renshaw in reply claimed only that in accordance with the intended use of the descriptors in addition to those lower valued elements, COG2A officers make decisions that may have significant impact on clients and the use of force illustrated the point. On the proper reading of the descriptors combining the elements of the two value ranges entitles the COG2A prison officer to the starting point of that range, ie 37,221.
PN937
A similar point can be made in relation to the communications variable. When Mr Renshaw rested on the element of the second value range of Grade 2, ie uses, and I quote:
PN938
Uses persuasion skills in dealing with an individual client.
PN939
End of quote. To justify the COG2A alignment at that level. All of the witnesses before the Commission regarding unit management agree that it involves a significant emphasis on rehabilitation and welfare. Any reasonable reading of the descriptors would conclude that persuasion skills are a necessary attribute in delivering the rehabilitation and welfare services which all of the witnesses in these proceedings have said are essential to the unit management system.
PN940
Again, Mr Renshaw's alignment of COG2A at value range 2 of Grade 2 should stand. I should observe in passing that the union claim for the base COG2A rate is not at high as the wage rate at this value range. Again, to give us the scope for translation in the terms suggested by Ms Batt. Returning, however, to the descriptors it is our general submission that the standard descriptors struggle to codify the work of prison officers especially in relation to the use of force.
PN941
Indeed the Department's attempt to apply the descriptors to prison officer work leads them to produce DOJ7 which is a tailor made set of descriptors for prison officers, as it were, which purportedly aligns to - which purports to align the standard descriptors to COG work. However, it might be asked that if the standard descriptors really do encompass prison officer work why is DOJ7 necessary at all? Mr Renshaw was taken in cross examination to the issue of the use of equipment in the technical specialist stream in the standard descriptors.
PN942
Specifically over whether the use of batons, firearms and the like really do involve exercising discretion in the use of equipment and actions to achieve results within specifications as required by the standard descriptors. The line of argument of Mr Freeburn in this questioning implied that the use of the sort of equipment nominated by Mr Renshaw did not fall within the meaning of the descriptors on this point.
PN943
If, however, Mr Freeburn's interpretation should stand then important pieces of equipment to prison officers are not comprehended by the descriptors at which point their relevance to the COGs structure collapses and the wider review preferred by the union is required. Mr Freeburn similarly challenged Mr Renshaw on whether the phrase, quote:
PN944
Achieve results within specifications.
PN945
End of quote. Was appropriate to prison officers. And Mr Renshaw claimed in reply that the restraint of a prisoner or similar action was the result required. Again the Department cannot have it both ways. If the descriptors do not fully describe prison officer work then they can't be relied on for the purposes of alignment. And if they do adequately describe prison officer work then following Mr Renshaw's evidence COG2A officers clearly do exercise discretion in the use of equipment and his alignment to the standard descriptors should prevail.
PN946
The use of force as a work element clearly divides the parties. Again, the Department would like to have it both ways. Mr Wise, in evidence in-chief, emphasised the limited number of occasions force was needed in certain prison situations like security facilities but agreed in cross examination that the Department does in fact require the skill in all locations and on the part of all prison officers. The Department led no convincing evidence on this question or how it should be dealt with when using the descriptors.
PN947
Mr O'Neill in DOJ8 claimed to have undertaken a paper alignment which unsurprisingly validated the Department's position. However, he agreed with the aphorism, garbage in garbage out. He also agreed that a position description should fully capture the skills and responsibility of the job. However, the without prejudice position descriptions he was provided with in RW3 and which incidently of course have no status as far as the union is concerned, do not provide the level of detail required.
PN948
The description of prison officer work provided by Mr Goulden in CPSU4, which Mr Wise in evidence in-chief agreed was generally correct, provides a much more detailed account of the extent to which prison officers are authorised to use force. The regulatory and legislative provisions which give that authorisation force and also went to the impact the code of conduct has on prison officers personal life. No such equivalent detail is provided in the position descriptor is provided in RW3.
PN949
Since Mr O'Neill did not visit a prison or interview prison officers it is clear that no weight can be attached to his evidence. The union's claim at paragraph 55 of CPSU2 reconciles the VPS structure with the COG2A rate arrived at by the work value and relativity methods. Having set the key rate the rates for COG2B, COG3 and so on then follow as a result of the need for the classification structure to bend to the realities of a rank based occupation. At COG3 this leads the union structure across a grade barrier. At various times I have also pointed to the translation model proposed by the union.
PN950
Are these interpretations of the VPS structure permissible under the Commission's exceptional matters order? On the question of translation the EMO provides for dollar to dollar translation with an overgrade review provision that varies depending upon which adaptive review is in question. There is, however, nothing in the EMO that explicitly rules against different translation arrangements for the adaptive review process.
PN951
On that basis we say that the translation model provided in the union claim is permissible particularly since many of the benefits in the PSB declaration number 7 actually occur as a result of translation arrangements in addition to the adjustment in base rates. The union's translation model in the current proceedings is designed to remedy the inequities generated by the Department's enthusiasm for individual contracts in the 1990s and which led to prison officers being denied progression payments on the basis of the industrial instrument under which they worked.
PN952
A point made by Mr Goulden in CPSU4. As we have explained the union's rate for the COG2A level has been discounted from the figures obtained via the work value and relativity methods.If the Commission is unpersuaded by our arguments in relation to translation, then the rate for COG2A should be rounded up to the next highest point in the VPS structure, not down as we have done to give scope for translation. That is, the 76-hour COG2A rate should be, without the translation models we propose, 34,621, and the pro rata rate is $36,443 for the 80-hour COG2B. This rounding up method, rather than rounding down as we have done - - -
[10.25am]
PN953
THE COMMISSIONER: Thirty six thousand what for the 80-hour rate?
PN954
MR EWER: 36,443. And the 76-hour, 34,621. Clearly, the 34,621 is only one of the pay points in the VPS structure of rounding up to that. This rounding up method is, of course - - -
PN955
THE COMMISSIONER: Which is a pay point, in effect.
PN956
MR EWER: A pay point in the VPS structure; that is right. And 36,443 is then simply the pro rata of that pay point. This rounding up method is, of course, that provided for in the general translation method of the exceptional matters order. Can we cross grade barriers as suggested in the union model at COG3. The salary points in the general VPS structure have attached to them bundles of work value as codified in the standard descriptors. The union's submission is that the unique nature of the work of prison officers is such that a work value premium attaches to their work over and above that provided for by the standard descriptors.
PN957
We have to the maximum extent possible followed the VPS structure but at COG3 we have crossed the grade barrier but for reasons that reflect the nature of prison officer work and the rank structure that applies to it. The movement COG3s through what is grade 4 in the general structure is required to provide these officers with equivalent progression to other ranks which would be denied to them if the ceiling of grade 3, that is 51,021, were to apply. The exceptional matters order commits us only to reflect as far as possible the principles of structural features of the main VPS classification structure in a clause 5.3 adaptive review.
PN958
An outright prohibition on structural departure from the VPS structure is not provided for in the exceptional matters order nor should it in this case, since the COG3 range would be excessively narrow if it were. The Commission has asked for the view of the parties on whether these proceedings should resolve the 76/80 hour dichotomy. Mr Wise, in evidence-in-chief, gave an account of this issue as it applies in the workforce, which the union submits is overly rosy.
PN959
Our position is that the construction of the 90/80 is the principal source of aggravation and in particular whether management has the unilateral right to determine the pattern of those shifts. Our preferred course of action is for the Commission to recommend the parties undertake at a central level, not prison by prison, a period of intense negotiation to resolve this issue over a period of three months and report back to the Commission at that time.
PN960
Commissioner, in conclusion, as I said in opening submission, this matter involves a group of workers who we charge with the gravest sanction possible in a liberal democracy, the deprivation of a citizen's liberty. Prison officers are literally at the sharp end of the justice system. How ironic is it that they have been denied justice themselves. They have had work value adjustments ripped from them; they have been coerced over individual contracts and more recently their union has had an undertaking from the current Government made in 1999 that the classification inequities inflicted on them would be resolved and we submit it is time that they were. The union's claim is scientifically valid; it complies with the Commission's work value principles and it complies with the exceptional matters order. If the Commission pleases.
PN961
THE COMMISSIONER: Thanks, Mr Ewer. Do you want a couple of minutes to arrange your papers?
PN962
MR FREEBURN: No, I will be right, thank you. I have prepared some written submissions, Commissioner, an outline of our submissions, and I seek to hand that up.
PN963
PN964
MR FREEBURN: What I would seek to do today, Commissioner, is outline firstly the process that we say the Commission is required to entertain in these proceedings and the process it is required to bring to bear on its consideration of the prison officers' classification structure. I will then outline the respective claims before the Commission - or positions; I will outline the principles that the department has applied in developing the proposal that the department puts forward in exhibit DOJ1. I will go to some of the evidence - outline some of the evidence in relation to the workforce and the structure of the workforce, the duties of prison officers, what changes have occurred in those duties, all those things being relevant for the purposes of reviewing the classification structure; I will then go to the grounds in support of the classification structure that the Department of Justice proposes and then deal with the claim made in these proceedings by the CPSU.
PN965
If I could turn firstly to the process that we say should apply, and this is important because the claims that are before the Commission are to be considered in the context of the exceptional matters order and the strictures applied by that order. It is not a process of review at large, if I could put it that way, where any old principle can be applied to the review of a classification structure - and the processes set out in the exceptional matters order, and I don't go to it in detail but I outline that in DOJ9.
PN966
But it is significant - and this is on page 2 of our written outline, the principles that are to be applied and it is clearly the principles which are to be applied - and I think Mr Ewer, in a way, even concedes that this is the case - are meant to be related to work value changes in the work of the prison officers. Now, the claim of the CPSU we have outlined in DOJ2 and we set that out on page 3 of our written outline. I don't go to it in detail now. The Commission has been provided with the exhibit and there has been some discussion about this structure and I will come back to it, but we set it out there and we also set out the translation arrangements which are proposed by the CPSU and, again, we will come back to that in detail later on in our submissions.
PN967
The department's proposed structure is set out on page 4 of our submissions, page 4 and 5, and we have aligned on page 4 the model that we propose with both the current classification structure and the VPS structure. The Commission will see that we have proposed, starting from the bottom of the table which is on page 5, a rate for the COG1 trainee, which is 20.8 per cent higher than the current rate and it is 32,654, which is the top of the range of the equivalent VPS grade 1. For COG2A, which is the base level prison officer, the COG1 being the trainee classification, we have proposed rates which are consistent with the VPS grade 2 from the whole of the value ranges 1 and 2, grade 2.
PN968
So they start at value range 1 in VPS2 - starts at 33,706 and goes up to 43,285 and that is the range of salaries that we have proposed for the COG2A prison officer. At the base of the classification that is a 1 per cent increase and at the top, the range has been increased by 4.4 per cent. In COG2B for senior prison officers, again at the base, a significant increase is proposed by the department, 8.1 per cent, and at the top, 3.6 per cent. And the range for the COG2B prison officer is the range that is adopted in the main VPS structure in value range 1.
PN969
For COG3, the range which has been proposed is grade 3, value range 2, and at the base again there is a significant increase of 12.2 per cent. At the top there is a reduction in the rate but that is compared with the current COG structure and that is a consequence of doing away with the overlapping grades that exist within the current COG structure. I will come back to this range in grade 3 because the Commission may recall that Mr Goulden, when I asked him what was wrong with DOJ1, complained about the salary range available to employees in COG3. COG4 - - -
PN970
THE COMMISSIONER: COG2B, wasn't it?
PN971
MR FREEBURN: No, I think his complaint was mainly COG3 from recollection, Commissioner.
PN972
THE COMMISSIONER: COG3, was it?
PN973
MR FREEBURN: But I will go to the range proposed in COG2B. The comparison we will make is with the rates that were proposed in the agreement in 1992. COG4, there again is an increase of 1 per cent at the base of COG4 to bring that salary range in line with the VPS grade 4 and that grade spans grade 4 and the first value range of grade 5.
PN974
THE COMMISSIONER: Now, you, like the CPSU, have proposed going across grades in the COG4. That goes across grade 4 and 5, doesn't it?
PN975
MR FREEBURN: Yes, and that is a consequence really of the rank based structure.
PN976
THE COMMISSIONER: No, I understand.
PN977
MR FREEBURN: And, like Mr Ewer, we don't see that the principles and the exceptional matters order prohibit that from happening. The relevant question is whether that range is appropriate.
PN978
THE COMMISSIONER: For the work that is performed.
PN979
MR FREEBURN: Exactly. COG5 we have identified as being appropriately within the range of a base value range 2 in grade 5, so the top of value range 1 in grade 6. Again, that is a classification which we propose spans those two grades and - - -
PN980
THE COMMISSIONER: Everybody has a name except COG5. There are prison officers, senior prison officers, operations managers and - - -
PN981
MR FREEBURN: They might have names.
PN982
THE COMMISSIONER: - - - then general manager but the poor old COG5 is anonymous. Do they have a range of titles.
PN983
MR FREEBURN: I think they are generally characterised as general managers as well, Commissioner, but of a different type.
PN984
THE COMMISSIONER: General managers as well.
PN985
MR FREEBURN: Yes.
PN986
THE COMMISSIONER: I see. So the COG5 and the COG5A are the general manager structure.
PN987
MR FREEBURN: Yes.
PN988
THE COMMISSIONER: Depending upon, no doubt, the - - -
PN989
MR FREEBURN: Size of prison?
PN990
THE COMMISSIONER: - - - size of the prison, supervisory roles.
PN991
MR FREEBURN: Yes, the size of prison, complexity of the role, as I understand.
PN992
THE COMMISSIONER: Do you need - and I don't ask you to answer now but is there any reason to have - if I took your model, why wouldn't it just be from 69,815 to 103,708 and leave management with a flexibility of putting people where they want, depending upon the descriptors?
PN993
MR FREEBURN: We will take that on notice, Commissioner.
PN994
THE COMMISSIONER: Thank you. That would be a hell of a salary range then, wouldn't it?
PN995
MR FREEBURN: Span, yes. I can see Mr Goulden having something to say about that.
PN996
THE COMMISSIONER: They could really complain about the silvertail managers if they wanted to then.
PN997
MR FREEBURN: So the Commission can see that the structure we proposed does deal with and relate to the ranges proposed in the main VPS structure. I suppose the issue which next follows is how did we come up with that structure and is it appropriate for the work that is performed? We, in our written outline, which was filed and served prior to these proceedings commencing last - I suppose they commenced last Friday but they were filed and served before last Thursday, set out the principles that we have brought to bear in developing the structure proposed in DOJ1, and we set those principles out again on page 5 and page 6 of our written submissions, and I will go to those principles.
PN998
Firstly, we say that any changes to the COG classification structure need to be justified according to the work performed and the skill and responsibility attached to that work, using the standard descriptors as the base upon which to consider any realignment. That principle, we say, flows directly from the exceptional matters order and a reviewed COG structure should reflect the principles and structural features of the main VPS classification structure as far as possible, and that is the standard descriptors, the classification levels, value ranges and pay points, no overlapping grades - and that is what we have developed - and no reduction in work value assessments of the current duties.
PN999
We say all of those things have been brought to bear and apply in respect of the structure which has been developed in DOJ1. I will go to the application of those descriptors and value ranges to the work of prison officers shortly. Thirdly, we say that the COG classification structure is required to maintain the integrity of the rank structure applying to prison officers and I don't think that is a principle that is in dispute between the parties. The issue that is in dispute is how that actually is reflected in the classification structure.
PN1000
THE COMMISSIONER: Well, there is not much between you there either.
PN1001
MR FREEBURN: Yes.
PN1002
THE COMMISSIONER: There is nothing at the base.
PN1003
MR FREEBURN: Well, there is - sorry, at COG1 that is true, Commissioner.
PN1004
THE COMMISSIONER: Nothing at the base, COG1, grade 1, the trainee; there is an issue between you as to the differential between the trainee and the starting of prison officer.
PN1005
MR FREEBURN: Yes.
PN1006
THE COMMISSIONER: But then there is nothing between you. You tend to come together at the top of the prison officer. There is an issue between you as to the spread in the work value assessment, really, in grade 3 and 4 and where that spread is likely to be but apart from that there is not much between you. You both seem to accept that a proper application of the current descriptors produces a new structure and produces increases.
PN1007
MR FREEBURN: We certainly accept that, yes, Commissioner.
PN1008
THE COMMISSIONER: All right. Thank you.
PN1009
MR FREEBURN: The fourth principle that we have applied is that each rank of prison officer performs different functions with different work value - I don't think that principle is in dispute either - and that that work value should be reflected in the classification applying to the rank. Again, I think Mr Ewer would agree with that. The COG classification structure should provide a career structure for prison officers which will facilitate the development of those individual officers and provide superior outcomes for the community in relation to the operation of the state's prisons and it should enable prison officers to progress on the basis of competencies acquired and applied.
PN1010
That is a significant proposition. It is a significant benefit that would flow from the implementation of the structure that the department proposes, as compared with the current structure, and I have a recollection of Mr Goulden's evidence and some of his complaints about the bands available at different classifications. That argument is just irrelevant if a prison officer is not able to move through the band. It doesn't matter if they have $10,000 or $20,000 available to them. If they are not able to advance through the band, it doesn't matter what salary range is ascribed to the particular classification. And the new classification structure will deal with that difficulty which exists with the current structure and the progression of prison officers through the salary range of each classification.
PN1011
Finally, we say that the structure should assign salary ranges to the bands within the structure which fairly reward the work undertaken and which are fair relative to salary ranges established for other VPS staff. We then make reference to the current structure and the workforce composition. We refer to the evidence of Mr Wise in exhibit DOJ4, where the Commission will recall Mr Wise outlined how many prison officers are employed at what classification. And at DOJ5 there was an exhibit which outlined the distribution of employees within the pay scales at each classification. I don't take the Commission to that evidence in detail but I refer to it and say that that material is there to show the Commission the current structure of the workforce.
PN1012
THE COMMISSIONER: And where everybody sits in the current wage rates is in that material.
PN1013
MR FREEBURN: Yes.
PN1014
THE COMMISSIONER: The only thing that is relevant and you may wish to address it, depending upon what you say I can or can't do in relation to translation, is currently you have got a distribution of people through the structure.
PN1015
MR FREEBURN: That varies from classification to classification, Commissioner.
PN1016
THE COMMISSIONER: But let us take the biggies.
PN1017
MR FREEBURN: COG2A and COG2B there certainly is a variation. In COG2B there is more of a distribution than COG2A.
PN1018
THE COMMISSIONER: Yes.
PN1019
MR FREEBURN: COG2A there is a preponderance of people at the base of that classification structure. A large number of those employees don't have much service. COG2B there is more of a distribution.
PN1020
THE COMMISSIONER: Yes. Now, the issue arises in the translation - whilst I have said that you are not too far apart in the structure itself, it is the application of that structure then to individuals with experience, skill, responsibility and how that fits in. The translation you propose puts the majority of those persons who are currently spread into a single pay point and they have an opportunity to progress, I understand that, whereas the proposition that the union put forward, it could be argued, maintains the spread that currently exists.
PN1021
MR FREEBURN: Well, the spread that currently exists is one of the complaints of the union, Commissioner.
PN1022
THE COMMISSIONER: Yes.
PN1023
MR FREEBURN: I am not sure that is an appropriate basis upon which to consider this issue.
PN1024
THE COMMISSIONER: But the spread that currently exists has been done by management on its assessment of the work performed and the value of that work in work value terms. Your management has decided that.
PN1025
MR FREEBURN: Well, what we are here before the Commission saying is that we acknowledge that there are some anomalies with the current structure and there is a need to take steps to change it to more accurately reflect the work value that people perform. And for COG2B, for example, at the base of that range we proposed a wage increase of over 8 per cent. It is difficult to maintain an argument that people who translate to a new structure which has been increased at the base by 8 per cent somehow suffer some disadvantage.
PN1026
THE COMMISSIONER: The argument would be unexceptional if there was nothing else to it. What the union puts and what is exercising my mind is that their argument is essentially the prison officers were let down in - - -
PN1027
MR FREEBURN: '92?
PN1028
THE COMMISSIONER: - - - '92, yes, and so - - -
PN1029
MR FREEBURN: Yes. Well, I will go to that.
PN1030
THE COMMISSIONER: Thank you. So what they are saying, in essence, is that if this was just new, well, there wouldn't be much complaint, but it is not new, it should have been there since '92 and if it had have been there since '92, then people would have achieved the sort of distribution that currently exists today.
PN1031
MR FREEBURN: I think the Commission is being very generous to the position that is advanced by the CPSU. I don't think they are saying quite what the Commission is putting to me. My - - -
PN1032
THE COMMISSIONER: I can be generous to everybody, if I can.
PN1033
MR FREEBURN: That is very fair. The basis of the CPSUs claim is that they have recalculated the rate of COG2A - this is what they say - by incorporating the increase which they, perhaps quite justifiably, say they should have received in 1992 and they have recalibrated all the rates from that. That is a different thing to what the Commission has put their position as.
PN1034
THE COMMISSIONER: No, I wasn't talking about the structure as such; I was talking about the movement of people into the new structure. That is the area that I was focusing on. The structure we can do in isolation. It will fall here, here or here. The controversy arises as to where you put people in that structure and why you put them there.
PN1035
MR FREEBURN: One of the controversies, yes. And one of the difficulties with the current structure which needs to be fixed, and both sides advance this, is the problem with progression. That is a problem with the current structure. So it is not correct that under the current structure people have progressed or are being paid different salary rates according to an assessment of their skills or responsibility. That is not the case. It is not the case that under the current structure people are able to progress on the basis of acquiring skills and responsibility in a coordinated, structured fashion under the classification structure. So in the sense of saying, well, you need to cater for this current spread of wage rates under the current structure by some translation movement would only work if the basis of the current spread had been established on work value grounds.
PN1036
THE COMMISSIONER: What do you say - how has it been established?
PN1037
MR FREEBURN: I think it was probably a range of ways in which it has been established but there are obviously some work value considerations in terms of where people are placed. But with the developments which have occurred in wage setting in relation to the Public Service in Victoria and prison officers in particular, there are different rates according to different arrangements that were made in respect of individual employees.
PN1038
THE COMMISSIONER: I see. All right. Thank you.
PN1039
MR FREEBURN: But just to finish off on this issue - I will come to it again in some more detail - a fundamental consideration in terms of the translation issue is, in our submission, is it fair, is the proposal that is put forward a fair thing? And we say that there are compelling grounds to find in the department's favour in that respect.
PN1040
The issue which we deal with under point 6 on page 6 of our outline of submissions is the duties of the prison officers in each classification. Now, this is an important issue because the Commission's consideration of the matter before it needs to rely upon the evidence that has been advanced by the parties. Now, the evidence of Mr Wise at paragraphs 17 and 18 of DOJ4 and in the attachments to Mr Wise's statement, RW2 and RW3, was that the position descriptions accurately outline the work of prison officers. One of those attachments to Mr Wise's statement was a copy of the current position descriptions. The other attachment was the agreed in principle classification descriptions for, I think, COG2A, 2B and COG3.
PN1041
Now, that evidence of Mr Wise wasn't challenged. Mr Ewer in no way sought to bring that evidence into question. The only evidence which remotely could be argued as contrary to the opposition that Mr Wise - contrary to the evidence of Mr Wise in respect of this was the evidence of Mr Goulden in CPSU4. Of course, we say that that evidence is less reliable and accurate in some respects but certainly it is incomplete. But, in any event, the evidence of Mr Goulden wasn't inconsistent with the evidence of Mr Wise.
PN1042
The step wasn't taken to compare the position descriptions that Mr Goulden developed in conjunction with one of his colleagues against the VPS classification descriptions or value ranges. That evidence of Mr Goulden about the position descriptions that he developed and their accuracy really sits out by itself and has no relationship to anything because nothing was done with it. Whether it is right or wrong really can't bear upon the Commission's decision in this matter.
PN1043
So we have, on evidence, a range of position descriptions which accurately reflect the work of prison officers. That doesn't answer the whole of the question. The most important issue in this case is what changes have occurred to the role of the prison officers to increase the work value of those prison officers, and how should those changes, if there have been any, how should those changes impact and be reflected in a new classification structure. Now the Department clearly acknowledges, and this was the evidence of Mr Wise, that there have been some changes in the work of prison officers since 1992.
[11.05am]
PN1044
It was also acknowledged, in response to a suggestion from Mr Ewer in cross-examination, that there hasn't been a specific work value based payment to compensate prison officers for those changed duties. But the Department's position in the evidence of Mr Wise, is, that the changes which have occurred to the work of prison officers are accounted for in the classification structure that the department advances. Other than general references to the effect of the introduction of unit management, some general references and specifically Ms Batt's statement, and I will go to that in a bit more detail shortly, the CPSU advanced no evidence, none, not a skerrick, nothing to show changes in the work of prison officers.
PN1045
The only evidence about that is from Mr Wise. Neither Mr Goulden and nor Mr Renshaw gave any evidence about the change in the work of prison officers. In terms of evidence, the CPSU provided nothing about COG1, they provided nothing about COG4 or 5, the only material that they put forward touched upon COG2A, 2B and COG3. So we will return now to - and I will come back to this when I deal with the CPSUs claim, I will deal with that issue in more detail. The grounds that we advance in support of the structure is that, as I have said, we acknowledge that there some anomalies and we say that those anomalies are dealt with by the model proposed by the Department.
PN1046
The structure we have proposed is consistent with the principles that I outlined, that should be brought to bear in this re-examination of the classification structure. Our structure accommodates the discrete work value levels of each prison officer rank within the structure of the main VPS grade and value range descriptors, and it is justified according to work value considerations and the changes in the skill and responsibility exercised by prison officers. There are three - because this is the key question and, in our submission, it is really only the Department which put any evident which is cogent once you went to this issue before the Commission, and there were three aspects of that.
PN1047
The first is the comparison that the Department made of the work of prison officers against the main VPS standard descriptors which is in exhibit DOJ7. The validity of that comparison, this is the table, the Commission may recall, where the work of each prison officer grade was described and allocated according to the grade descriptors and value range descriptors in the main VPS. The validity of that comparison wasn't challenged. The only alternative evidence relating to a comparison of the work of prison officers against the grade and range - value range descriptors, was that of Mr Renshaw; that was the only alternative evidence.
PN1048
And Mr Renshaw's evidence supported the position of the Department, except in one respect, and that was he gave some evidence that some of the work of the COG2B classification fell within the second value range of grade 3. So there were two elements that he identified. The Commission may recall that I went to this in some detail in cross-examination with Mr Renshaw; two elements in the second value range of grade 3 that Mr Renshaw thought put the COG2B classification into that second value range. And, in that respect, Mr Renshaw's evidence was misconceived in that he quite clearly, as was shown in the cross-examination of Mr Renshaw, he wrongly interpreted the value range descriptors in those two elements.
PN1049
And I went to some detail in relation to COG2A classification but, in all respects, we don't differ, that COG2A classification goes across the full value range of the grade VPS2, so that evidence is, while it may be questionable in terms of its validity and accuracy, is not really in issue. What is in issue is whether the COG2B classification goes into grade 3; and Mr Renshaw is only able to identify those two elements and he got it wrong in those respect. And the contradictory evidence of Mr Wise and Mr O'Neill must be preferred in this respect.
PN1050
Going to that now, then, Mr O'Neill, who gave evidence on behalf of the Hay Group, which is exhibit DHA8. I drew attention to this point in an objection to one question that Mr Ewer was pursuing in respect to Mr O'Neill, that having not challenged the validity of the position descriptions it is not open to the CPSU to say that Mr O'Neill's evidence is somehow tainted by some proposition of garbage in garbage out, because the material, the source of material upon which Mr O'Neill relied was not disputed, and Mr O'Neill's conclusions simply weren't challenged on any other basis.
PN1051
As to the status of the agreed in principle classification descriptions, mr Ewer seems at pains to point out that they were agreed in principle on a without prejudice basis by the CPSU. The difficulty for him in maintaining some sort of an objection to the status of those classification descriptions is that Mr Goulden, in his evidence, in paragraph 9, actually confirms those position descriptions were agreed in principle. So - - -
PN1052
THE COMMISSIONER: Can I ask you about Mr O'Neill's evidence. As I understand his evidence he is very clear on the trainee role, he is very clear on the COG2A role and then he says that the distinction between the 2B and the 3 - - -
PN1053
MR FREEMAN: Is not so clear.
PN1054
THE COMMISSIONER: - - - not so evidence, yes. And then he takes that a little further in some of the other higher ranges, as well.
PN1055
MR FREEMAN: Yes. But the answer, I suppose, to that qualification is that the rank based structure requires that there be a hard barrier between the COG2B and the COG3.
PN1056
THE COMMISSIONER: Yes.
PN1057
MR FREEMAN: And that is the reason for it. But Mr O'Neill, this is - apart from the base, as the Commission has already identified, apart from the base of COG2A and where COG3 goes, the parties don't really have an argument in this area. Mr O'Neill's evidence is important for that COG3 issue because he quite clearly says that the work of the COG3 doesn't extend into value range 2 grade 3.
PN1058
THE COMMISSIONER: Where does he say that? I am not saying he doesn't I am just - - -
PN1059
MR FREEMAN: No. It is the last paragraph, Commissioner. The nature of the work involved with both roles, that is the COG2B and grade 3, is accommodated within the grade 3 descriptors.
PN1060
THE COMMISSIONER: I see.
PN1061
MR FREEMAN: The last sentence:
PN1062
The current positioning these two roles across two value ranges within grade 3 is consistent with my assessment of the work values based on the information provided to me
PN1063
THE COMMISSIONER: Yes, thank you.
PN1064
MR FREEMAN: And just to repeat, that the source that Mr O'Neill's conclusions wasn't challenged and it is not open to the CPSU to challenge those conclusions, in fact. And the only sort of attack that Mr Ewer seemed to make was that, while the prison officers in exercising straight powers or being able to use - I don't know how to describe it, but - violence, I suppose, or controlled violence or civilising violence, in the exercise of their duties wasn't somehow explicitly dealt with in the position descriptions, but that can neither be here nor there, in our - - -
PN1065
THE COMMISSIONER: I think the phrase "reasonable force" is probably a better one.
PN1066
MR FREEMAN: Reasonable force, a better term. Well they were the first two pieces of evidence going to the work value in the role of prison officers, the third one is that there was limited evidence showing substantive change to the work value of prison officers. That is not to say that there hasn't been change but the Commission wasn't assisted by the CPSU in providing any evidence about the change that has occurred in the role of prison officers. Now Mr Ewer seemed to rely upon the evidence of Ms Batt in this respect. Now if the Commission looks at the statement of Ms Batt, Mr Ewer points out wasn't challenged by me in cross-examination.
PN1067
CPSU2, if you go to paragraph 12 which is one of the paragraphs Mr Ewer relied upon, it is pretty difficult to challenge what Ms Batt says, because what she says is:
PN1068
As it has been explained to me, the unit manager, and it involves a quantum shift.
PN1069
So all she is giving evidence of is something that has been told to her, not actually giving direct evidence of changes which have occurred. Pretty hard to challenge that and we don't challenge what she was told. That is not evidence that there has been a substantive shift in the work of prison officers. So, other than those generalised assertions, the CPSU didn't put evidence, and the had the opportunity, they called two witnesses who were prison officers and those witnesses didn't provide evidence as to the detailed changes in work value of prison officers. So we say there is an inference available and which should be drawn in that respect.
PN1070
So the evidence of the Department there has been some change in the work value of prison officers and this change is accommodated in the review classification structure in exhibit DOJ1 should be accepted. Exhibit CPSU3, which is the '92 agreement, merely confirms that the introduction of the unit management did increase the skills and responsibility of prison officers. The extent of that increase was not quantified and formed only one element of that 1992 agreement, in exhibit CPSU3. I will come back to CPSU3 and also CPSU7 when I deal with the CPSUs claim to classification structure.
PN1071
A further ground in support of the classification structure advanced by the Department is that it is supported by a comparison of the roles of different prison officer ranks against the main VPS standard descriptors and that comparison is supported by expert analysis in exhibit DOJ8. That is really, I suppose, a repeat of some of the material which I have already gone to. It is consistent with and maintains the integrity of the prison officer classification - sorry, prison officer rank based system, it will benefit employees, in particular, exhibits DOJ5 and DOJ6, which are the ones which show where people sit within the classification structure, demonstrate that the vast majority of employees, particularly in employees at the COG2B and COG3 levels will receive real wage increases on translation to the proposed classification structure.
PN1072
All employees will benefit from the improved progression range; and the Commission should guard against and avoid any temptation encouraged by the CPSU to provide any addition or immediate benefit that is not justified or warranted by the case as presented, particularly benefits which are not justified or warranted on grounds related to, and I quote:
PN1073
The work performed and the skill and responsibility attached to that work in accordance with exceptional matters or whatever.
PN1074
Any alleged injustice arising from events in 1992 shouldn't be permitted to compensate for deficiencies in the case made out by the CPSU.
PN1075
And an approach based on the past conduct of parties was disapproved by the Full Bench in the decision on the section 170MW, the MX decision; and I might hand up a copy of that decision. I won't hand up a copy just yet, Commissioner.
PN1076
THE COMMISSIONER: That is all right.
PN1077
MR FREEMAN: I didn't bring a copy with me - I did the other day, I have left them behind.
PN1078
THE COMMISSIONER: But it is print S?
PN1079
MR FREEMAN: 4568.
PN1080
THE COMMISSIONER: Yes.
PN1081
MR FREEMAN: It is the MX decision issued by the Full Bench on 31 March 2000. Their comment in relation to past conduct is this, and it is on, it is the last sentence in paragraph 94 of the decision, apart - where the Commission says:
PN1082
Apart from that we consider that the most appropriate basis for the determination of the matters at issue and the making of an award in this matter is through the examination of the merits of a case as presented rather than the past conduct of the parties
PN1083
And we say that that approach should apply and should guide the Commission in dealing with the matter which is - - -
PN1084
THE COMMISSIONER: But how do you say that applies? And so you are not asking me - you are saying that I shouldn't give someone a thick ear if I think they have done a bad thing, if there is no merit attached to it. It is only - you see, the union is saying, look, the Government was terrible in '92 when it abolished the wage increase in the structure. Okay, it did, so what - - -
PN1085
MR FREEMAN: Exactly.
PN1086
THE COMMISSIONER: - - - there is no premium for being terrible. But if the decision, itself, a consequence of the decision inappropriately then led to a classification structure and remuneration, that is a relevant factor, isn't it?
PN1087
MR FREEMAN: It certainly is.
PN1088
THE COMMISSIONER: Yes.
PN1089
MR FREEMAN: And we will come to that.
PN1090
THE COMMISSIONER: All right.
PN1091
MR FREEMAN: Because CPSU3 and CPSU7, CPSU being the Public Service Board determination and CPSU7 being the clarified photocopy of the wages, just don't support the CPSUs claim; and I will take the Commission to why that is the case. So, if I leave our case, DOJ1 and turn to DOJ2. The Commissioner will recall an exhibit which is DOJ3, which was the claim originally made by the CPSU in respect to prison officers, back in November 2003. The claim that they are pursuing before the Commission today - - -
PN1092
THE COMMISSIONER: Is that the one you showed to Ms Batt?
PN1093
MR FREEMAN: Yes.
PN1094
THE COMMISSIONER: Well she said it wasn't a claim, didn't she? The newsletter?
PN1095
MR FREEMAN: Yes, that is right.
PN1096
THE COMMISSIONER: No, I understand that, but that was her evidence, wasn't it, that there was no claim made upon that basis?
PN1097
MR FREEMAN: Well, certainly there were discussions, as I understand it. That is not what the document says on its face. There was certainly discussions between officers of the Department and the CPSU around a claim which was in the same terms.
PN1098
THE COMMISSIONER: Was that marked?
PN1099
MR FREEMAN: It is DOJ3, Commissioner.
PN1100
THE COMMISSIONER: Thank you. Yes. Well to quote Munro J, it has all the elements of that walking like a duck, looking like a duck and quacking like a duck, doesn't it?
PN1101
MR FREEMAN: Well, yes, and certainly that is the way the Department viewed it. My point is, I think, that the parties must bear responsibility for the cases that they run and the claims that they make, and the decisions that they make along the way, because, when you look at it there is no recognisable arguably work value basis or justification which underpins the CPSU claim. They advanced the claim on the basis that classification structure should be adjusted to incorporate the agreement made in 1992 under the structural efficiency principles. Their own evidence is that their proposed classification structure was formulated by incorporating the pay increases that were to apply under that 1992 agreement and re-calculating the pay scale accordingly.
PN1102
Now I don't really understand how that was done but - my maths is perhaps not the best - but that is certainly the evidence of Ms Batt and that is what Mr Ewer puts before the Commission, this morning, and he has given us some more exhibits which might clarify it, but I haven't been able to study them in detail. Whether the outcome is a scientific outcome, as Mr Ewer put it, or not, the fundamental point is that the claim made by the CPSU is not based upon work value grounds it is based upon what they say should have applied in 1992. They didn't apply a review to the classification structure based on the work performed and the responsibility attached to that work.
PN1103
The standard descriptors weren't applied to the prison officer occupational review as a base upon which to consider the re-alignment of prison officer classifications and what we say is that any reference by the CPSU to the standard descriptors is a transparent post facto justification for them incorporating the rates that they say should have applied in 1992, and on that basis, alone, their claims falls over. Let us go to CPSU7, 3 and 7, but principally 7 because that is the one which is legible. Does the Commission have CPSU7?
PN1104
THE COMMISSIONER: Yes, thank you.
PN1105
MR FREEMAN: It is the A3 page, in particular, I want to refer to. The Commission will recall that this agreement - well, we will come to some further grounds in relation to the agreement that was made. When you look at what was proposed, it is buried under the PCO category, you see, that was the proposed new classification structure, in the right hand column of these two tables appearing on the page of CPSU7, the A3 page. That is a very different structure from what they seek in these proceedings, it is not the same by any stretch of the imagination. So it is difficult for the CPSU, on one hand, to say, well, look, we have constructed our entire claim based upon the rates that you are going to pay to us under that agreement, but they pay no regard to the structure that was actually agreed to by them in those proceedings.
PN1106
There are a number of interesting elements of that agreement inn 1992. The first is that there was a PCO1 rate which was some nearly 4 per cent below the then existing PO1 rate and that was a new rate for the trainee. Now they complain about the COG1 rate being introduced without their agreement and they complain about the differential between the COG1 rate and the COG2A rate, but the differential that they proposed in 1992 between their new trainee rate and the PO1 rate, was in the vicinity, according to my calculations, 4.4 per cent below the PO1 rate; so the trainee rate was 4.1 per cent below the base level prison officer rate.
PN1107
Under our proposal the trainee rate is 3.2 per cent below. Are they complaining about that 1.2 per cent differential? The rate that they proposed for PO1 was 25,886 up from 25,786, an increase of $100 or 0.4 per cent. And Mr Ewer talks about, well, you don't look at that you look at where people translate it, and that is a subsequent issue. The first issue you look at is what rates were proposed in the new structure, and that salary increases proposed in their structure at PO1 were 0.4 per cent more than the old structure. We are doing better than that under DOJ1, we propose a minimum increase at the COG2A level, well, 250 per cent better than theirs, it is 1 per cent. It is not significant but it is greater than what was proposed by the CPSU in their agreement in 1992.
PN1108
The increase under this agreement for PO2 in 1992 was a 5.3 per cent increase. So the PO2 went from 29,445 to 31,000, an increase of 5.3 per cent. DOJ1 proposes an 8.1 per cent increase. We are proposing greater increases than what was proposed in 1992, that the CPSU rely upon as a basis of their case. Similarly, at PO3, the increase proposed, at the base of PO3, was from 31,916 to 34,500. We propose an increase of 12.2 per cent at the base of that classification. The bands, let us look at the bands that the CPSU proposed in 1992; the band particularly at the COG3 level. There was 10 per cent movement between the base of the old - sorry, the PCO3 and the top of that classification. And the Commission will see that that classification, that new PCO3, incorporated two classifications, incorporated the old PO3 and the old PO4; incorporated those two classifications within a 10 per cent span.
PN1109
Under DOJ1 we propose a span of 10 per cent or in that vicinity, simply for COG3, and another 10 per cent for COG4 which, depending on how you view things, is double what was proposed in 1992. So it is not quite how the CPSU put it, in terms of that 1992 agreement. We just point out, also, that the PO4 rates actually reduce in dollar value and in respect of the PO5 and PO6 there was no increases proposed at that time. So it is simply not the case that CPSU3, the agreement, somehow provides some basis upon which CPSU have constructed the rates the way they have constructed them. But, more than that, the agreement in CPSU3 wasn't implemented. Certainly unit management was an element of that agreement and certainly unit management involved increase in the work value of prison officers, and that is not disputed.
PN1110
As Ms Batt agreed, the quantification of that increase wasn't known, or certainly wasn't quantified if it was known, and not available to us now. But, clearly, when you look at the agreement, the introduction of unit management was only one component of it. Now it is true that that component has subsequently been introduced without the agreement of the CPSU, that is true. But the other elements of the agreement haven't been introduced, and Mr Ewer, in submissions, seemed to say that some of those things have been introduced but when you look at CPSU3 that is just not the case and, certainly, there is no evidence that it is the case. The agreement fell over and all of it fell over. If the Commission looks at, on page 2 of the exhibit CPSU3, overtime allowances:
PN1111
No overtime will be paid unless 76 hours in a fortnight is actually worked
PN1112
Well that measure was never introduced. The measure in relation to sick leave was never introduced, the measure in relation to part-time work wasn't introduced, the measure in relation to shift work arrangements wasn't introduced, and it plainly was and Mr Ewer seemed to suggest that it was because the Department somehow now has flexibility to get 12 hour shifts. But that wasn't introduced in accordance with this agreement. So even on the basis by which they advance their case it doesn't stack up, and I think that is probably all we would need to say about it.
[11.35am]
PN1113
But Mr Ewer made some reference to the issue of double counting. There is no question that the MX decision involved wage increases, that at least in part were in compensation for productivity increases which occurred between 1992 and 1999, and that those productivity increases were taken into account by the Full Bench in reaching its decision. So there certainly is double counting if the CPSU are relying upon productivity increases in that same period to justify their claim before the Commission in these proceedings, and we refer in particular to paragraph 94 of the Full Bench decision where the Full Bench said this:
PN1114
There were suggestions by the CPSU that there have been significant increases in productivity ...(reads)... of the negotiating parties during the bargaining period was reasonable.
PN1115
And they continue with - I end that passage with the quote that I read before about the parties. So there is clearly an element of the decision, an element of the case for the parties that productivity improvements justify the increases that were awarded in that decision, and there is no question about our submission, some double counting involved in claiming rates without acknowledging the impact of the wage increases awarded by the Commission in that decision.
PN1116
When the Commission looks at CPSU2 - sorry, DOJ2, which is the comparison of the CPSU claim as against the current structure and the VPS structure, the Commission can clearly see that there is not the same linkage between the proposals of the CPSU and the Department, as compared with the main VPS structure, and I guess that divergence in the CPSU claims of it comes about because of the basis on which the CPSU have calculated their rates, going back to this 1992 agreement. But clearly, compared with the DOJ1 model the CPSU - sorry, the DOJ2 claim does not have the same relevance and coherence when compared with the main VPS structure.
PN1117
I have already referred to the fact that there was no evidence from the CPSU of the work of any classification, other than COG2A, 2B and COG3, and that evidence that was put forward does not establish any work value change in the work of employees at those classifications. There is no evidence from the CPSU of work as compared to the standard descriptors of any classification other than COG2A and COG2B. The only evidence in that respect was Mr Renshaw's. The evidence establishes that COG2A is appropriately classified in grade 2, and COG2B in grade 3 value range 1. I won't refer to the evidence we rely upon in respect of that, but we have outlined that in paragraph - on page 13 of our written submissions.
PN1118
If I could turn now to the implementation process, and again I am just dealing with the work value element of the CPSUs claim there are - the alternative or additional basis upon which the claim is advanced may be some internal relativities and by reference to what rates are paid in other States, I will come to shortly. But in terms of the implementation process, what is put forward by the CPSU is a service based claim. There is no work value in a claim for a translation whereby there is an additional increment to employees who have - for every two years of service.
PN1119
Such a process is inconsistent with clause 3 of the exceptional matters order. It is not skills based. It is also, therefore inconsistent with the wage fixing principles in section 89A(1)(a), and it is inconsistent with the principles of progression in the main VPS structure, and I refer in particular to clause 3.1 in table 1 of the exceptional matters order; and we say that it is simply irrelevant that a significant proportion of employees at the COG2A and COG2B levels will translate to the base of a new classification structure. That outcome comes about because we have increased the rates of pay at the base of those structures and those employees get a real wage increase in translating to those rates.
PN1120
Now, those employees are appropriately classified at that level, in accordance with the evidence, and as I have said, many will achieve real wage increases and all will benefit from improved progression in the new classification structure.
PN1121
THE COMMISSIONER: That doesn't take account of skill either, does it?
PN1122
MR FREEBURN: Well, it takes account of skill in the sense that that is the appropriate level upon which their work is valued, and it does take - - -
PN1123
THE COMMISSIONER: But there is a range in those grades.
PN1124
MR FREEBURN: Yes. There is, and there still will be. Employees will still translate. There is an issue about a proportion of them translating to the base.
PN1125
THE COMMISSIONER: Yes. The overwhelming proportion, isn't it?
PN1126
MR FREEBURN: COG2A and 2B, yes.
PN1127
THE COMMISSIONER: And assumes that their skill is identical.
PN1128
MR FREEBURN: It implements a new classification structure and proposes a way upon which employees can progress through the band, which is not an option that is available to them now.
PN1129
THE COMMISSIONER: Yes. I follow.
PN1130
MR FREEBURN: Now, the only other way which would be valid and which isn't advanced by the CPSU, the only other way would be an individual assessment of each employee as against the range within each classification.
PN1131
THE COMMISSIONER: Yes.
PN1132
MR FREEBURN: That would be a proper position to put, but they don't put that.
PN1133
THE COMMISSIONER: Yes.
PN1134
MR FREEBURN: And again, I reinforce that. The distribution of employees amongst the range of - salary range of a classification structure at the moment is not work value based necessarily. The other transitional element in the CPSUs claim is that they claim an additional increment for employees who are working the 76 hours, and we say that that effectively, that claim is an abuse of process, and the CPSU is estopped from arguing it because they pursued this claim before Commissioner Hingley. That claim was determined by an arbitrated decision, and that is Print 2157, that decision of Commissioner Hingley which we have referred to in the past, where the Commissioner clearly made it plain that the additional payment, the additional 3 per cent that these employees are supposed to be compensated by getting additional increment was - - -
PN1135
THE COMMISSIONER: What was the print again, I am sorry?
PN1136
MR FREEBURN: 2157, Commissioner. P2157.
PN1137
THE COMMISSIONER: 21 - thank you, and the date? Do you have it?
PN1138
MR FREEBURN: It is 20 June 1997.
PN1139
THE COMMISSIONER: Thank you.
PN1140
MR FREEBURN: And the passage we particularly rely upon - well, they are not numbered and I think depending on your printer setting may come out on a different page. But it is - the copy I have got I will hand up, but it is the third paragraph on page 5.
PN1141
THE COMMISSIONER: Thank you.
PN1142
MR FREEBURN: Finally, and just to cap this issue off of the additional - to cap this issue of the additional claim for an increment for 36 hour employees, we just note that there is no work value or skills based element behind the claim. Now, Mr Ewer has made much of what he has described as a decline in internal relativities, and they claim that the base of the prison officer salary scale has eroded since 1992 when compared with the base for an administrative worker over the same period.
PN1143
It seems to us that on their own case, even if they are right, that claim is irrelevant because the CPSU hasn't struck the rates that they propose according to re-establishing a relativity. Their rates have been struck according to the agreement made in 1992. In any event, the claim has a range of additional difficulties. The first is that there was no established work value nexus between the old AM1 classification and the Prison Officer 1 classification at the time. In the absence of a work value nexus any comparison is meaningless.
PN1144
In addition to requiring proper nexus between the relevant classifications to have any evidentiary value, any comparative evidence as to the movements in different pay rates it must include evidence as to the movement in pay levels of both classifications, and we don't know what has happened to the AM1 rate. Doesn't exist now. There are VPS rates. We don't know how the AM1 rate came to be incorporated or what was done or whether there are any work value changes or anything to do with that. So the comparison in that respect is meaningless.
PN1145
We pointed out to the CPSU prior to the hearing that the claim that they had made in their written submissions filed before the commencement of the hearing seemed to us incorrect, in the sense that they were drawing the link between that AM1 classification and the COG1 classification, and of course the COG1 classification didn't exist at that time, so the relevant comparison is with COG2A classification, and as we detail on page 15 of our written submissions, that relativity, which is said to be 26 per cent if it is a - well, and it is not a relativity, but if it was a relativity, it is still there.
PN1146
But since we advised them about it they have adjusted their proposition and they say that there is still a decline in relativity, even if the comparison is made with the COG2A classification. Now, the Commission may recall that I put to Ms Batt that salaries in the Public Service have increased 32 per cent. So if you are employed - the accumulated total of the different wage increases which have been applied to the classifications in the Victorian Public Service since 1992, and those increase have applied equally, the same percentage has applied to the prison officers as applied to the administrative rules.
PN1147
So, as a matter of mathematics, it can't be that the relativity has declined. There must be another explanation, but what that other explanation is is not advanced. The Commission queried whether it was simply a consequence of the 1992 rates not being applied. That may or may not be the case, but the increases proposed in the 1992 agreement are less than those increases that we propose in DOJ1, and even if correct - so there is always difficulties with that argument, but even if it was correct there is no demonstrated relevance beyond the COG2A classification.
PN1148
It doesn't necessarily follow that simply because, even if it had declined, the rate in the COG2A, that the other COG rates have declined in relativity. There is no evidence available to support any such conclusion. If I could turn now to the claim, or the basis upon which the claim is advanced in relation to external relativities. Again, we don't see the relevance of that evidence. The claim of the CPSU is not based upon any rates that are paid in other States. It is based upon that 1992 agreement. That evidence about interstate rates is irrelevant to a review under the exceptional matters order, and that is quite clear from the MX award decision, where the proposition of interstate comparisons was advanced by the CPSU and specifically rejected, and I refer the Commission to paragraphs 42 to 43.
PN1149
So we say they have already run that argument, a Full Bench of the Commission has rejected it, and the Commission - well, we say firstly they are probably estopped from running it again, but the Commission should not allow the re-agitation of that issue which has already been determined by the Full Bench in that MX decision. Alternatively, the Commission in these proceedings shouldn't apply principles which are inconsistent with those applied by the Full Bench, the Full Bench rejecting the comparison with interstate rates approach.
PN1150
In addition we say that really this just amounts to a comparative wage justice claim, which is inconsistent with the principles, wage fixing principles, inconsistent with the exceptional matters order, the main VPS structure. So that there is no evidence that the classification structures and the work of the prison officers in New South Wales or elsewhere are the same as in Victoria, so the comparisons, even if they were able to be drawn, are meaningless because there is no evidence that we are comparing like with like. There is no evidence that the work value of the classifications of a prison officer in the various States is the same as in Victoria.
PN1151
There is no evidence how interstate rates were struck or their relationship to any work value basis, and we say it is not valid to compare what are effectively award rates with pay rates which have been struck through enterprise agreements. If the Commission will just bear with me. The only other issue I think I need to address is the proposal for three months intensive negotiation on a nine day 80 hour roster. That is all very well, and it is open to the union to negotiate with the Department at any stage in relation to 80 hour rosters. The difficult that we perceive with the 76 hour issue is that our understanding is that employees want to work 76 hours. They don't want to work 80 and they have a continuing right under the arrangements which are in place to work 76 hours per fortnight if they wish, and that was the substance of Commissioner Hingley's decision.
PN1152
Unless those employees agree to work 80 hours a fortnight, then really the academic - the argument about what arrangements should be implemented if they did agree are just that, academic.
PN1153
THE COMMISSIONER: And it remains a 3 per cent differential, does it?
PN1154
MR FREEBURN: Yes, Commissioner. I think, just to reiterate, I think I advised the Commission of this number before but according to our figures there is 101 employees who choose to continue to work the 76 hour fortnight. Aside from any questions the Commission may have, they are our submissions.
PN1155
THE COMMISSIONER: Thanks very much. Mr Ewer?
PN1156
MR EWER: Commissioner, the first matter that I would like to go to after Mr Freeburn's submissions is the question of the evidence, or in his mind the lack thereof of material to support our case in relation to the unit management. He suggests that we have made only generalised references in evidence to that question, but I think a more detailed reading of CPSU3, which has been tendered by us, suggests to the contrary, and if I can take the Commission to attachment B, paragraph 3 on page 5 of CPSU3, that paragraph reads:
PN1157
The concept of unit management revolves around semi-autonomous work groups similar to ...(reads)... of all classifications, particularly of those below Governor.
PN1158
Now, what more detailed evidence on the introduction of unit management and its work value I find it difficult to imagine. All of the witnesses in these proceedings, Ms Batt and Mr Wise, agree that those work value changes have been associated with the unit management, and Mr Renshaw spoke at length about the consequences of unit management on the particular work skills of prison officers in relation to the communication requirements involved in rehabilitation and welfare.
PN1159
So we say that the work value of unit management has been established by the union in these proceedings, and indeed CPSU3 in terms of the detail about the work value changes described in that declaration have not been challenged by the Department. In relation to the evidence led by the union about the alignment between the COG classifications and the general descriptors, and in particular Mr Renshaw's evidence, it was in fact Mr Renshaw that read the grade descriptors properly, because he comprehended that it was necessary for people to have all of the skills at the first value range, and in addition, elements of the second value range to satisfy the alignment at that high a value range. Mr Renshaw did not deny that people, prison officers would require the work value elements at the first value range. He simply pointed out that the second value range of grade 2 was satisfied by people at COG2A.
PN1160
In relation to the internal relativity argument, as it were, Mr Freeburn in submissions claims at page 14 there was no established work value nexus between the base level prison officer and the AM1 classification. The reason for that, of course, is because the SEP deliberations for prison officers constituted that work value determination. The AM1 classification was struck by a structural efficiency exercise for administrative workers in the VPS. The similar work value determination for prison level officers was abandoned by fiat, so the nexus in our view is established, was established at that time and was abandoned by the government without recourse to work value arguments. It is entirely appropriate for us to re-visit the nexus that was established at that time.
PN1161
In relation to Mr Freeburn's submissions in DOJ9 at page 15, we are happy to concede the point about the COG1 trainee and that the relationship between the various classifications should be prison officer 1, COG2A and then the base administrative work. In his third bullet point there Mr Freeburn confuses like with like. He claims that the relativity continues to exist because the relativity rate for the PAO1 happens to fall within the COG2A band. The submission of the union of course was in relation to striking the base rate for the COG2A position, and we would be perfectly satisfied with the rate of 35,807 which Mr Freeburn himself suggests is the correct relativity.
PN1162
In relation to the matters that Mr Freeburn has raised about the translation tables associated with CPSU3 and 7, Mr Freeburn attests to the generosity of the Commission in relation to its current proposal to strike the rate for COG2A at 33,706 as being better than that was applicable in 1992. As CPSU7 indicates, the base rate adjustment for the prison officer at that time was .4 per cent. If you follow that through though you get to the rates that we have tabled in CPSU8. Furthermore, the Public Service Board declaration provided, in addition to that modest base rate adjustment, translation arrangements for the existing employees that were worth more than 4 per cent.
PN1163
So the generosity of the Department in its proposal at DOJ1 is more apparent than real. In relation to the comments that Mr Freeburn made about the prison corrections officer 3 and 4 being broadbanded down to 38,000, when the material was tabled it was pointed out that those levels receive allowances, or would have received allowances that took their effective rate of pay well beyond $38,000. In relation to the translation arrangements we have already said that the only reason we rounded down from the calculated rates that we have provided was to give scope for the translation arrangements which we have suggested. If the Commission is unconvinced by those, then following the exceptional matters order the rates that we have suggested should be rounded up.
PN1164
In relation to the 76 hour problem, Ms Batt in evidence under cross-examination has indicated that the union considers that to have been a decision in time when it is entirely appropriate for these proceedings to reconsider it. If Mr Freeburn doesn't like the course of action that we have suggested in relation to resolving this problem, then the rancour and aggravation that continues to beset the problem will continue and the Department can live with the consequences.
PN1165
And then finally, Commissioner, the arguments that Mr Freeburn has made in relation to the so-called external relativity argument confuses the reason why we have tables CPSU1. The evidence on the interstate rates is indicated to you simply to suggest that there will be no leap-frogging, that the Commission, in its work value principles, is concerned with. We do not rest our case upon the interstate rates and table the interstate material simply to indicate to you that there is no danger of rates struck in Victoria leading to a leap-frogging effect around the country. If the Commission pleases.
[12.05pm]
PN1166
THE COMMISSIONER: Thanks, Mr Ewer.
PN1167
MR FREEBURN: There was just one issue, Commissioner which I seek to raise because I didn't realise it was being relied upon as evidence of the changes which had occurred in the nature of the work of prison officers. This is the relevance of CPSU3 and the passage that Mr Ewer read. We have already said that we don't take issue that the introduction of union management did lead to some work value changes. All we would seek to point out is that what Mr Ewer relies upon, as evidence of the nature of the changes to the work of prison officers, is merely a description of the intended effects of the unit management. It is not evidence of changes to work at all. If the Commission pleases.
PN1168
THE COMMISSIONER: Thanks, very much. I propose to adjourn until 3.30 and then we will see where the proceedings take us after that. The matter is adjourned until 3.30.
SHORT ADJOURNMENT [12.07pm]
RESUMED [3.44pm]
PN1169
THE COMMISSIONER: I am in a position to announce my decision in this matter. It will be appreciated that because of the timeframe which I have had to decide this matter, I will not deal exhaustively with all of the arguments but simply put forward the outcome of my deliberations.
PN1170
This course is unusual because I am normally not in a position to give a decision at the conclusion of a case and no promises are ever made to that effect. This is even moreso when the arguments are thoughtful and well structured. However, the prompt removal of all industrial action has facilitated a speedy hearing in this matter and, as such, submissions have had sufficient clarity to assist me greatly.
PN1171
I have been asked to conduct a consent arbitration pursuant to section 111AA of the Workplace Relations Act 1996 in relation to the agency specific classification of custodial officer group. The matter arises from my exceptional matters order issued on 31 October 2003 which resolved a number of matters arising from the Victorian Public Service Non-Executive Staff Certified Agreement 2001.
PN1172
The Department of Justice and the CPSU, the Community and Public Sector Union, accepted that firstly, there has been a genuine attempt to agree about the matters and secondly, there will be compliance with my recommendations in relation to this matter. I am satisfied that the pre-requisites under which - under the Act, for the Commission to undertake a consent arbitration, have been fulfilled.
PN1173
In relation to the new structure, both parties propose significant change in the wage rates. Because of the approach I have adopted in handing down this decision quickly, I don't propose to go into a great detail about the arguments advanced. However, I have been assisted by the submission and the fact that the prison officers - again, I emphasise, ceased their industrial action, has made this matter possible to be examined quickly.
PN1174
In any event, my reasons will disclose where arguments have been successful or have failed. To begin, it is appropriate to consider whether or not change is necessary. Whilst both parties agree that change should take place, it is inappropriate to consider change unless there are good grounds for believing that a straightforward translation under the exceptional matters order is not the appropriate response.
PN1175
It is implicit in the submissions in the Department of Justice that the current wage structure is affecting custodial officers is inappropriate. Without explicitly stating so, the Department of Justice recognised that the current work value assessments are incorrect and require realignment in the new VPS classification structure. However, no reason is given as to why this is so.
PN1176
The CPSU, on the other hand, point directly to a decision by the then Victorian Government to, by order in council, revoke a decision of the Victorian Public Service Board. The decision of the Board implemented an agreement with the then SBSV and the Office of Corrections. The agreement was reached under the then structural efficiency principle. The SEP agreement introduced significant changes into Victorian Public Prisons through the introduction of the unit management approach rather than the "turn key" approach to prison administration.
PN1177
Whilst the government disallowed increases ranging from between 4 per cent to 9 per cent, it nonetheless introduced significant change in work practices. At the same time, the Government of Victoria changed the industrial relations legislative environment significantly. It is clear that these combinations of circumstances give rise to the conclusion that there are special and/or extraordinary circumstances as to why the work value of custodial officers should be reviewed.
PN1178
Significant change occurred in 1993 and the relationship between that change and the salary structure has never been fully considered. It should be now. Having concluded that there are strong grounds for review, I must now examine the context in which the review takes place. In the exceptional matters order, I concluded, and I quote:
PN1179
The occupational reviews should take place against the background of the grade standard descriptors and classification and value range standard descriptors but the focus of the reviews should be on the work performed and the skill and responsibility attached to that work.
PN1180
This must mean that the descriptors would not, in themselves, be conclusive of the review. The application of the standard descriptors to the occupational reviews will be that they provide a base upon which to consider the realignment of certain classifications. In this connection, it is not intended that the descriptors will reduce work value assessments of current duties.
PN1181
Secondly, the agency-specific classification should, as far as possible, reflect the principles and structural features of the main VPS classification structure. It is also fundamental to the fixation of this new structure that recognition is given to the rank structure for this group of employees. It is against that background that I propose to consider the position of the parties. I turn firstly to the structure and the rates. In doing so, I have examined the descriptors contained in the exceptional matters order. I am satisfied that the trainee rate is appropriately fixed at the top of Grade 1 of the new structure.
PN1182
I am also satisfied that the bottom of Grade 2 is the appropriate starting point for the prison officer. In reaching this conclusion, I have taken into account the trainee rate, period of training, the need to be tested on that training and development of skill over a period immediately following the training. In this connection, I note the evidence in relation to the time it takes to be confident that a prison officer has all of the skills required to undertake all duties.
PN1183
And finally, the skill descriptors which now apply. I am unable to agree that the work value difference between a trainee and the bottom of Grade 2 warrants an additional salary step. Further, I am satisfied that the spread of rates otherwise proposed by both parties is appropriate for the range of skills of prison officer.
PN1184
I next turn to the senior prison officer. There is, it appears, agreement for the base of the senior prison officer and it should be the base of Grade 3 value range 1. With this I agree. However, the spread of rates is in contention. Department of Justice finished the spread for the classification for the top of value range 1. CPSU, on the other hand, believe that it should travel into value range 2.
PN1185
Having considered the evidence, I agree that limiting the spread to value range 1 may not be comprehending all of the work and skill and responsibility of the senior prison officer. I am mindful of the evidence of Mr O'Neill where he concluded that it is difficult to identify a similar degree of distinction between the senior prison officer and the prison supervisor as that he distinguished between the prison officer and the senior prison officer, although he did express a view that the positioning of these persons was within Grade 3 and that was appropriate on the information provided to him.
PN1186
Having considered the matter, I am of the view that the spread of rates available to the work value allocation of the senior prison officer is too narrow. The top of the prison officer range should be Grade 3, value range 2, the second pay point. For the 76 hours, that equates to $48,321. It follows that the starting point for the supervisor on 76 hours is $49,221 or Grade 3, value range 2, third pay point.
PN1187
As a consequence of this adjustment, and having regard to the descriptors and the evidence in this case, the spread of the supervisor should go to Grade 4, second pay point on a 76 hours, that is $53,188. Again, it is necessary to balance the clear rank structure together with the descriptors and work performed in relation to the operations manager. It is appropriate to begin the salary for this classification at Grade 4, third pay point. And the 76 hours it is $54,355.
PN1188
I would not alter the top of the range and this is consistent with the position put for the Department of - from the Department of Justice, namely, that the value range 1 - top of value range 1, Grade 5 and 76 hours is $66,323.
PN1189
In relation to the general managers, I accept the position advanced by the Department of Justice for what they put as the COG5 and COG6. It may be that some further attention needs to be given to better defining the roles which attach to general managers at COG5 level and general managers at COG6 level.
PN1190
That is my determination of the structure. In determining the structure, I have had regard to the evidence, the rank structure and the fact that grade barriers were not immutable in either proposal. It is not an easy task to marry these concepts.
PN1191
I now turn to the question of whether or not there should be a salary differential between the 80 hour and the 76 hour fortnight. I am not satisfied that the conclusion of Commissioner Hingley should be disturbed. It would be a matter for the parties if they seek to further address this issue but the pay differential shall remain.
PN1192
Finally I turn to translation. CPSU have put forward a formula and the Department of Justice argue that the translation approach contained in the exceptional matters order is appropriate. I propose to take a cautious approach at this stage. To begin, now that the structure is fixed, I am going to invite the parties to meet and confer about translation over the coming weeks. In considering this aspect of the matter, I propose to make a number of observations which may be relevant to those discussions. Firstly, I have found that the salary structure for custodial officers has been inappropriate since 1993.
PN1193
Secondly, there is a distribution of earnings by persons within the current structure. It is difficult to accept that this current distribution has not been arrived at by management considering duties and responsibilities of each individual. The concerns about salary structure are now replaced by the EMO. I will repeat that: the concerns about the salary structure which has now been replaced by the EMO was the lack of transparency and consistency. It does not follow that persons on various salary points within the COG structure have been put there on a whim or with no objective analysis.
PN1194
Thirdly, it would be inequitable if persons of different skill and experience which constituted a higher work value assessment, were placed on the same rate. I emphasise that I am not endorsing a time-based system because that has no place in the current skills based career structure. Fourthly, if there are cost implications and consideration can be given to timing of increases rather than diluting any work value assessment.
PN1195
Finally, I will hear a report back from the parties on 9 March at 9.15. I hope I don't need to stress that this next phase will take place in a peaceful industrial environment. And finally, for the purposes of the operative date of 1 November 2003 under the exceptional matters order, I am of the view that the occupational review process for this category of employees is completed. The structure has now been set. I will subsequently publish this decision.
PN1196
The matter is adjourned until the 9th.
ADJOURNED UNTIL TUESDAY, 9 MARCH 2004 [3.56pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AIRCTrans/2004/825.html