Crown Librarians, Library Officers and Archivists Award Proceedings - Applications under the Equal Remuneration Principle, Re [2002] NSWIRComm 55 - NSWIRComm 1990 case summary — Zoe

NSWNSWIRComm

Crown Librarians, Library Officers and Archivists Award Proceedings - Applications under the Equal Remuneration Principle, Re [2002] NSWIRComm 55

[2002] NSWIRComm 55

Industrial Relations Commission (NSW)|1990-07-31|Before: Wright J, Kavanagh J, Boland J, Hungerford J

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1990-07-31

Before

Wright J, Kavanagh J, Boland J, Hungerford J

Catchwords

10/24/2001
10/25/2001
11/07/2001
11/08/2001

Source

Original judgment source is linked above.

Catchwords

10/24/200110/25/200111/07/200111/08/200111/13/200111/14/200111/15/200111/27/200112/03/200112/04/2001 DATE OF JUDGMENT: 03/28/2002

Judgment (205 paragraphs)

[1]

CITATION : Crown Librarians, Library Officers and Archivists Award Proceedings - Applications under the Equal Remuneration Principle, Re [2002] NSWIRComm 55 PARTIES: PARTIES : Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA) Public Employment Office (PEO) Department of Education and Training (DET) FILE NUMBER: IRC 6304 of 2000 & 2242, 2243, 3239 of 2001 CORAM: Wright J President; Kavanagh J; Boland J; McKenna C CATCHWORDS : Equal Remuneration - Award - Applications for new awards for librarians, library assistants, library technicians and archivists employed in New South Wales public service and by the Technical and Further Education Commission - Wage fixing principles - Special Case - Work value - Gender based undervaluation of work - Pay equity - Rates of pay - Award coverage - Classification and grading structures - Job evaluation - Descriptors - Incremental scales - Hard and soft barriers to promotion - Demarcation - Profession - Professional work - Common salary points - Recognition of equivalent qualifications and experience - Interim award Industrial Relations Act 1996 ss 10 16(4) 20(1)(e) 146(1)(d) LEGISLATION CITED : Public Sector Management Act 1988 ss 24 25 26 Technical and Further Education Commission Act 1990 ss 14 15 16 18 Accountants and Secretaries Professional Officers' Association of New South Wales Re [1955] AR (NSW) 505 Crown Employees (Common Salary Points) Interim Award and Other Awards Re (unreported, Hungerford J, 31 July 1990) Crown Employees (Technical Officers) Award Re [1973] AR (NSW) 142 Crown Employees (Scientific Officers, etc. - Departments of Agriculture, Mines etc.) Award Re [1981] AR (NSW) 1091 Crown Employees (Architects - Public Works Department) Award Re (1986) 16 IR 330 Crown Employees (Legal Officers) Award Re [1971] AR (NSW) 694 Crown Employees (Legal Officers - Crown Solicitors Office &c.) Award Re [1972] AR (NSW) 376 Crown Employees - Legal Officers (Crown Solicitors &c.) Award Re [1981] AR (NSW) 488 Crown Employees (Scientific Officers - Division of Science Services, Department of Agriculture) Award Re [1962] AR (NSW) 250 Crown Employees (Scientific Officers, etc. - Department of Agriculture, Mines etc.) Award Re [1980] AR (NSW) 207 Crown Employees (Social Workers - Department of Public Health) Award Re [1974] AR (NSW) 295 CASES CITED : Electricity Supply Professional Officers Association and Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division Re [1978] AR (NSW) 283 Equal Remuneration Principle Re (2000) 97 IR 177 Health and Community Employees Psychologists (State) Award Re (2001) 109 IR 458 Maritime Services Board (Cargo Handling Operators) Award Re [1960] AR (NSW) 424 Prestia v Aknar (1996) 40 NSWLR 165 Ridge v Lyon [1910] AR (NSW) 427 Social & Community Welfare Services (State) Award Re (1984) 8 IR 364 State Wage Case 2001 (2001) 104 IR 438 The University of New South Wales (Conditions of Employment) Award Re [1960] AR (NSW) 631 University of NSW (Conditions of Employment) Award Re [1960] AR (NSW) 631 Young v Wicks (1986) 13 FCR 85, (1986) 79 ALR 448 Water Industry Salaried Officers' Union v Professional Officers' Association (NSW) (1987) 22 IR 414 HEARING DATES: 10/04/2001; 10/24/2001; 10/25/2001; 11/07/2001; 11/08/2001; 11/13/2001; 11/14/2001; 11/15/2001; 11/27/2001; 12/03/2001; 12/04/2001 DATE OF JUDGMENT: 03/28/2002

[14]

DECISION OF THE COMMISSION [2002] NSWIRComm 55 Introduction 1 These four applications are the first to come before the Commission pursuant to the Equal Remuneration Principle established by the Commission in Re Equal Remuneration Principle (2000) 97 IR 177. That Principle (as it appears in the Principles enunciated by the Full Bench in the State Wage Case 2001 (2001) 104 IR 438) is in the following terms: 14 Equal Remuneration and Other Conditions (a) Claims may be made in accordance with the requirements of this principle for an alteration in wage rates or other conditions of employment on the basis that the work, skill and responsibility required, or the conditions under which the work is performed, have been undervalued on a gender basis. (b) The assessment of the work, skill and responsibility required under this principle is to be approached on a gender-neutral basis and in the absence of assumptions based on gender. (c) Where the undervaluation is sought to be demonstrated by reference to any comparator awards or classifications, the assessment is not to have regard to factors incorporated in the rates of such other awards which do not reflect the value of work, such as labour market attraction or retention rates or productivity factors. (d) The application of any formula, which is inconsistent with proper consideration of the value of the work performed, is inappropriate to the implementation of this principle. (e) The assessment of wage rates and other conditions of employment under this principle is to have regard to the history of the award concerned. (f) Any change in wage relativities which may result from any adjustments under this principle, not only within the award in question but also against external classifications to which the award structure is related, must occur in such a way as to ensure there is no likelihood of wage leapfrogging arising out of changes in relative positions. (g) In applying this principle, the Commission will ensure that any alternative (sic) to wage relativities is based upon the work, skill and responsibility required, including the conditions under which the work is performed. (h) Where the requirements of this principle have been satisfied, an assessment shall be made as to how the undervaluation should be addressed in money terms or by other changes in conditions of employment, such as reclassification of the work, establishment of new career paths or changes in incremental scales. Such assessments will reflect the wages and conditions of employment previously fixed for the work and the nature and extent of the undervaluation established. i) Any changes made to the award as the result of this assessment may be phased in and any increase in wages may be absorbed in individual employees' overaward payments. (j) Care should be taken to ensure that work, skill and responsibility which have been taken into account in any previous work value adjustments or structural efficiency exercises are not again considered under this principle, except to the extent of any undervaluation established. (k) Where undervaluation is established only in respect of some persons covered by a particular classification, the undervaluation may be addressed by the creation of a new classification and not by increasing the rates for the classification as a whole. (l) The expression 'the conditions under which the work is performed' has the same meaning as in Principle 6, Work Value Change. (m) The Commission will guard against contrived classification and over classification of jobs. It will also consider: i) The state of the economy of New South Wales and the likely effect of its decision on the economy; ii) The likely effect of its decision on the industry and/or the employers affected by the decision; and iii) The likely effect of its decision on employment. (n) Claims under this principle will be processed before a Full Bench of the Commission, unless otherwise allocated by the President. (o) Equal remuneration shall not be achieved by reducing any current wage rates or other conditions of employment. 2 The applications that are the subject of these proceedings may be shortly described as follows:

[22]

8 The Pay Equity Inquiry (unreported, 97/6320, 14 December 1998) was conducted by Glynn J and her Honour made her important Report to the Minister on 14 December 1998. Amongst the occupations examined by her Honour were librarians under the Crown Employees (Librarians) Award employed at the State Library of NSW. The male comparator nominated by the Crown was geoscientist under the Crown Employees (Geoscientists - Department of Mineral Resources and Development) Award. Her Honour's Conclusions and Findings in relation to Librarians were as follows: 1) There is evidence of some direct discrimination in favour of male librarians over female librarians in the State Library during the first half of this century. However, the evidence is inconclusive and circumstantial. 2) However, there is clear evidence of the undervaluation of the work of female librarians. Notwithstanding the higher level of qualifications held by female employees (through qualifications held before joining the service and formal and in-house library specialist qualifications): i. Female librarians consistently represented a smaller proportion of occupants of professional or senior positions in the State Library; and ii. The application of equal pay principles resulted in librarians being granted the 'male' rate in the early 1960s. 3) Perhaps more significantly, it appears that the rates of pay for female librarians were determined over the first half of the century by reference to male librarians who actually held inferior qualifications, notwithstanding that the occupation became predominantly female, with such persons holding higher qualifications, since at least the 1930s. The female rate of pay was artificially limited by the ceiling created by the male rate of pay. 4) There was also exhibited in the history of the occupation of librarian a resistance to the recognition of librarianship as a profession. 5) This inertia in recognising the growth of a profession and a failure to adequately recognise professional qualifications held by female librarians no doubt accounts for the long standing lower relativity between librarians and other professional public service qualifications. 6) Indeed librarians have consistently remained at the lowest point of public sector professional rates, notwithstanding a substantial change in the work value (and qualifications) of this group. 7) A work value assessment was undertaken during the process of making the 1982 award, but the award ultimately was varied by consent. There has been no work value assessment of librarians since that time. Librarians received salary movements as part of general public sector adjustments based on productivity and performance after 1993, although it is quite clear from the evidence that since 1982 these employees have experienced a very substantial change in work value (of the highest order of such cases). 8) Unlike teachers, the librarians have not experienced a significant review of their occupation so as to reassess salaries based on the growth of a 'profession' and the changes in work value including qualifications which both created and then developed the profession. Librarian rates at one point had a nexus with teachers (not in the sense of parity of rates). The rates of librarians now lag well behind those of teachers. Only a full work value review will determine what the proper relationship between librarians and teachers, other professional public service occupations or for that matter, other occupations should be.

[23]

It follows that I consider that the work of librarians is undervalued. This is not the result of the failure of the work value principle per se (although the principle is inadequate in its present form to rectify this undervaluation as a result of the principle setting a datum point for such evaluations) but as a result of: i. A failure to undertake a work value review; ii. The failure to fully assess librarian rates in consent arrangements and agreements; iii. Historical factors of undervaluation including impediments to the recognition of female qualifications; iv. A failure to (at least) make comparisons with other professional occupations such as other public sector professionals or perhaps other professional female dominated occupations such as teachers. These comparisons are plainly available - not the least upon the bases of the historical salary nexus between the groups and comparability of the positions. These comparisons cannot be made directly under the work value principle, and accordingly it could not be used to rectify the problem (and to this extent is inadequate). 10) The focus of attention of the parties during the Inquiry was upon the comparison between geoscientists and librarians. This raises the dual consideration of firstly, the use of job evaluation techniques (which underpinned the study) and, secondly, the appropriateness of comparing the occupations of librarian and geoscientist. 11) I consider that job evaluation techniques are not appropriate for the fixation of salaries per se. Naturally this conclusion extends to the fixation of salaries between two dissimilar occupations. 12) Some of the reasons why job evaluation techniques should not be used to fix salaries include: (a) There is consensus amongst the job evaluation experts who were engaged in the project, employee and union witnesses and other expert witnesses called in the Inquiry that job evaluation is not a satisfactory tool to use for the setting of salaries. Ms Fruin accepted it was not a satisfactory tool to use "as a direct mechanism" for that purpose. (b) Difficulties in using job evaluation for salary arise because of the factors that are not taken into account in a job evaluation process, including the following: (i) Capacity of an organisation to pay; (ii) Market factors including supply and demand economics of particular jobs; (iii) Individual performance level of the person performing the job; (iv) Physical environment and conditions of the work; (v) Particular requirements of the work such as travelling away from home; (vi) Manual dexterity; (vii) Physical capacity; (viii) Hours of work; and (ix) Particular risks or dangers associated with the work. (c) Subjectivity is involved in the job evaluation systems. The standard of the result depends very much on the quality and calibre of consultants. (d) In her evidence Ms Burnham, who has participated as a workplace trained job evaluation analyst and evaluator in the Cullen Egan & Dell job evaluation system identified the need for obtaining a proper position description through proper consultation with the incumbents or employer and a job expert. Ms Burnham also gave cogent evidence that: the value placed on work carried out by particular classifications is interpreted differently when paid on particular industrial instruments ... a points score [in a job evaluation system] may achieve more value as a result of the benchmark process under one award than it does under another. (e) Other problems with job evaluation processes were identified. For example, while Mr McLelland indicated that the OCR system used by his company had successfully eliminated gender bias in the job evaluation guidelines, he gave evidence that some evaluation systems continued to measure certain factors which might lead the results to favour a certain type of job or occupational group. (f) Furthermore, systems may differ considerably in their application and utility. For example, the Hay system was developed to be used particularly in relation to technical, professional and managements positions and is not well suited to considering "blue collar" jobs. As the Employers' Federation/Chamber puts it, relying on Dr Burton, problems can arise in an organisation, if two systems of job evaluation are used, where the boundary that is put might create inequities in terms of what is valued above and below and across between blue and white collar work. As Ms Good, the General Secretary of the Public Service Association points out, in her experience in the public sector, job evaluation techniques have not been effective in evaluating unskilled and semi-skilled jobs. This would seem to represent a significant problem because female dominated industries will regularly involve workers who may be generally described as holding unskilled or semi-skilled positions. 13) I agree with the submission of the Employers' Federation/Chamber that job evaluation should not be used to determine the actual remuneration of an employee (Ex 446 p 87). However, I accept the view of the Labor Council and others (Ex 455 p 89) that job evaluation is one of a number of tools available to the parties to deal with valuation issues, having regard to its limitations evidenced in the Inquiry and to the need to ensure against gender bias. 14) As to the Librarians' Case Study I consider that there are some fundamental reasons for not accepting the comparison presented as between librarians and geoscientists: i. The limitations in job evaluation techniques I have just discussed; ii. The absence of any real rationale for the comparisons made either by reference to the establishment of the case study or otherwise; iii. The failure in methodology and approach associated with the actual job evaluation process; and iv. Differences between the occupations which would need to be further evaluated such as the existence of fieldwork for geoscientists and the adjustment of geoscientist rates based on market factors in the past. 15) However, there are some similarities between librarians and geoscientists which are worthy of note. They are both public service professionals and well qualified. The workforce is stable and well unionised. Their work has been consistently regulated by industrial instruments. The work in both occupations is undervalued having regard to changes in the nature in their work, skill and responsibilities, (notwithstanding the reluctance by some parties to recognise this fact in the case of geoscientists.)

[33]

13 In addition to extensive documentary material tendered in the proceedings, the parties each called evidence from a number of witnesses as follows: PSA 1) Steven Sydney Turner, Senior Industrial Officer, PSA. 2) Marie Murphy, Manager, Policy Projects and Research, with the Australian Library and Information Association, Canberra. 3) David John Carey, Federal Secretary, Community and Public Sector Union, State Public Services Division Group. 4) Catherine Joseph, Base Grade Librarian, State Library of New South Wales. 5) Kathleen Burnham, Library Manager (Divisional Librarian Grade 1), Attorney General's Department Library. 6) Paul Scully, Technology Consultant (Divisional Librarian Grade 1), Public Libraries Branch, State Library of NSW. 7) Suzanne Walden, Coordinator (Divisional Librarian Grade 1), Legal Information Access Centre, State Library of NSW. 8) Suzanne Beatrice Moir, Team Leader (Senior Librarian Grade 2), Australian Monographs, State Library of NSW. 9) Martin Richard Stott, Librarian (Senior Librarian Grade 1), Public Service Association of NSW. 10) Leon Parissi, Campus Librarian (Base Grade Librarian), TAFE, Ultimo. 11) Heather Mary Graham, Reader Services Librarian (Base Grade Librarian), Loftus College of TAFE. 12) Jennifer Helen Birrell, Senior Librarian (Senior Librarian Grade 2), Department of Urban Affairs and Planning. 13) Shauna Kay Miller, Multicultural Purchasing Coordinator (Senior Library Technician, Year 4), State Library of NSW. 14) Mark Stevenson, Senior Library Technician - Document Delivery Service (Senior Library Technician Year 1), State Library of NSW. 15) Mellissa Kathryn Quinn, Library Technician (Library Technician), Library Collection Services, TAFE, Strathfield. 16) Mary Philomene Hounslow, Library Technician (Library Technician Level 4), State Library of NSW. 17) Lynette Milton, Senior Archivist, Context and Documentation, State Records Authority of NSW. 18) Selena Williams, Archivist Grade 1- Public Access, State Records Authority of NSW. 19) Diann Christine Dalgleish Blackman, Policy Officer, (Clerk Grade 7/8), Department of Women. 20) Michelle Morgan, Campus Librarian (Senior Librarian Grade 1), Illawarra Institute of Technology. PEO 1) Dagmar Schmidmaier, State Librarian and Chief Executive, State Library of NSW. 2) Yvonne Brown, Director, Library Services Division, Attorney General's Department. 3) Mary-Jane Gleeson, Team Leader, Workplace Development, Human Resources Branch, State Library of NSW. 4) Tony Newton, Manager, Government Record Keeping, State Records, Sydney Records Centre, The Rocks. 5) David Hugh Roberts, Director, State Records, Sydney Records Centre, The Rocks. 6) Elizabeth Helen Ellis, Manager, Original Materials Branch, State Library of NSW. 7) Elizabeth Ellen Casey, Manager, Client Services, Employee Relations, Public Sector Management Office, Premier's Department. DET 1) Robin James Shreeve, Deputy Director General, TAFE. 2) Marilyn Joy Hart, Professional Assistant to the Deputy Director General, TAFE. 3) Robert Patrick Hitchen, Principal Industrial Officer, Department of Education and Training. 4) Barry James Peddle, Institute Director, Illawarra Institute of Technology. 5) Gary Alexander Pollock, Director of New England Institute, TAFE. 6) Kevin James Harris, Director, Northern Sydney Institute, TAFE. 7) Ian Henry Hamilton, Director, Open Training and Education Network - Distance Education, TAFE. 8) Jan Fullerton, Director-General, National Library of Australia. 14 Mr Hatcher and Mr Benson tendered written outlines of their submissions and made their final addresses on 3 and 4 December 2001. Dr Jamieson tendered a written submission. Mr Benson was granted leave to reply to Dr Jamieson's submissions by 18 December 2001 and Mr Hatcher submitted his address in reply on 2 January 2002.

[41]

22 A number of professional groups employed in the public health sector have also been the subject of work value proceedings in this period. For example, psychologists have recently been the subject of a special case under Principle 10 in which a comprehensive review of salaries and classification structures was undertaken by a Full Bench of the Commission: Re Health and Community Employees Psychologists (State) Award (2001) 109 IR 458. This case was the first occasion the Commission, or its predecessors, had undertaken an arbitrated review of the salaries paid to public sector psychologists in New South Wales. The Full Bench held at 482: 59. The present classification scales for psychologists have remained largely unaltered from an era, more than 30 years ago, when the work performed and the conditions under which it was performed were significantly different from those existing today. In those earlier times, psychologists worked in dedicated public mental institutions whereas now they work as an important part of the integrated general hospital and public health system through area health services and with a greater community focus. That focus involves working within a team of multi-disciplinary health professionals involving co-operation, liaison, advice, education, training and supervision. The undisputed evidence disclosed that the profession has made rapid advances in recent years with an increasing emphasis on specialisation in clinical diagnosis, assessment, treatment and follow-up. We are left in no doubt, on the evidence, that the qualifications and academic rigour expected of psychologists today is far greater than that which existed when the classification scale was first established. Significantly for present purposes, the evidence established, in our view, a career industry where the qualifications, knowledge and responsibilities increased markedly as the individual psychologist gained experience in performing the various functions at the respective levels. 60. We are satisfied, therefore, that the present classification scale is unsatisfactory and does not provide a fair and reasonable career path for public hospital psychologists.

[65]

44 A significant amount of the evidence of change came from persons employed in one of the State's great public institutions, namely, the State Library. Dagmar Schmidmaier, the State Librarian and Chief Executive, described the changes brought about through information technology as follows: Developments in publishing and distribution systems have …had significant impacts on libraries striving to ensure that collections are current and comprehensive. The amount of information published continues to grow. Increasing numbers of publications are available in a range of information formats. In particular, developments in information and communication technologies have resulted in a significant increase in the amount of information available in electronic formats. This growth in available items and formats has required an appropriate strategic response to ensure the Library continues, within limited resources, to build on its area of collecting strength, while ensuring it provides access to materials in new and emerging formats. Changes in technology have affected day-to-day library work in other fundamental ways. Information technology underpins key tools for organising and providing access to information. As a result, technology underpins much of present day library work. Advances in technology have facilitated the rapid development of increasingly sophisticated databases; supported the sharing nationally and internationally of information resources; and now provide the means by which existing printed materials, maps, manuscripts and pictures may be presented online. The role of Library Technicians and Librarians has already become more complex and important in this environment because of the need to create meaningful contexts for clients to locate appropriate information online. Library Technicians and Librarians now provide access by publishing high quality digitised facsimiles of items with transcripts and/or relevant contextual information on the Library's website. Importantly, from the client's perspective, this technology allows the items from collections to be presented and accessed as whole, interrelated collections. This depends on the analysis, synthesis and organisation by Library staff of complex, sometimes highly unstructured collections of materials, and the creation of an appropriate context in which the client may easily locate resources without the aid of direct human interaction and communication. … Other questions extending across diverse areas of policy development, service delivery and legislation have always been addressed by Library Technicians and Librarians in the context of the information management tools and systems available at the time. These issues, including sources of, and access to information; the use of controlled vocabularies; and matters of provenance, ownership, copyright and preservation have taken on new dimensions and complexities in the era of widespread electronic publication.

[92]

· The claim made by TAFE for a new award specifically applicable to TAFE library staff only is not one that can succeed under the Equal Remuneration and Other Conditions Principle. That the claim is brought pursuant to this principle - and no other - has been made abundantly clear on a number of occasions by TAFE. · The evidence discloses that the major and substantial purpose of the TAFE application is not to remedy gender-based undervaluation of the work of TAFE library staff, but rather to effect a restructuring of industrial instruments applying to TAFE library staff in order to achieve TAFE's educational service delivery goals. · The Equal Remuneration and Other Conditions Principle only deals with " Claims ... for an alteration in wage rates or other conditions of employment on the basis that the work, skill and responsibility required or the conditions under which the work is performed have been undervalued on a gender basis" (par (a) of Principle 14). It is apparent that, whilst the TAFE application has as an element a claim for wage increases to rectify gender-based undervaluation of work, the main thrust of the application is of a structural efficiency-type character that simply cannot be sustained under Principle 14. · The operational need for a discrete TAFE library staff award has not been established. The witnesses called by TAFE all set out in detail the future strategy for the delivery of educational services by TAFE, and the role that libraries are to play in that strategy. However, that evidence does not show why the current structure of industrial instruments, or the structure proposed by the PSA in its claim, would in any way inhibit TAFE in the way it wants to operate in the future. The core purpose of the TAFE proposal seems to be for employees to engage in a wider variety of tasks and to work in a way that is more directly connected with the delivery of educational services. However, there is nothing in the current instruments that restricts this - because there are no descriptions of duties to be performed at all. Nor does the PSA claim restrict this; its classification definitions are not restrictive as to the duties required to be performed, and would easily encompass the different range of duties envisaged by TAFE. · The evidence of Ms Hart demonstrates the lack of any real need for the new TAFE award. In her statement she described a commendable program of reform that she was able to implement whilst she was Institute Librarian at the Sydney Institute. All of the changes that Ms Hart identified as consistent with the future strategy of TAFE, were able to be achieved under the current structure of industrial regulation - as Ms Hart conceded in cross examination. Nor did she identify any real difficulty she had in implementing these changes that was caused by the current structure of industrial regulation. Nor, is there anything in the TAFE application of any substance that would in any way have facilitated the implementation of these changes. · TAFE librarians have expressed concern that the TAFE award, if granted, would cut them off from the broader profession, and downgrade their professional status by classifying them generically as Library Resource Officers. What TAFE has failed to recognise is that TAFE library staff see their careers developing and progressing within the wider occupation of librarianship, and not being confined to employment with TAFE. The evidence identifies a number of examples of TAFE library staff who have moved on to other major libraries: Ms Burnham, Ms Blackman, and even Ms Schmidmaier, the current State Librarian. Other library staff have come to TAFE from other public sector libraries. The TAFE application continues, albeit in a different way, the historic resistance to the proper recognition of librarianship as a profession which has been a cause of the pay inequity the subject to these proceedings. 69 The DET application and the evidence supporting it had a very strong emphasis on the restructuring of TAFE library staff and the introduction of new classifications in order to achieve TAFE's educational service delivery goals. The issue of gender-based undervaluation of the work of TAFE library staff, it seems to us, was somewhat relegated to a matter of secondary importance. 70 The Equal Remuneration Principle has been formulated for a specific purpose. That is, to provide a set of principles, compatible with the current wage-fixing regime, to address gender-based undervaluation of work. The Principle is not a mainstream avenue to achieve change that is more properly the province of, for example, the Special Case Principle or the First Award Principle. The first and foremost objective of any application under Principle 14 must be to address gender-based undervaluation of work. If, incidentally, structural change occurs as a consequence of granting an application under Principle 14 then so be it, but structural change cannot be a primary basis for the application or the grant of it.

[101]

The work and work value of library staff in TAFE is not fundamentally different from that of library staff in the public sector. If the work value is the same the salaries should also be the same. This militates against a separate award. 2) We regard the occupations of librarian and archivist as two of the professions (together with psychologists, engineers, legal officers, scientific officers, teachers and other professional officers) in public sector employment. Unless there are special or extraordinary reasons for doing so, we can see no reason for splitting the librarian profession into two or more groups covered by separate awards and providing different classification structures and different career paths. To do so could undermine the integrity of the profession and possibly limit the portability of professional librarian skills and experience within the government sector. 3) Until now the same industrial instrument has covered library staff in both the public sector and in TAFE. The evidence was that the existing award has not inhibited quite extensive change being implemented by TAFE. Provided that any new award does not inhibit flexibility within TAFE libraries and Learning Resource Centres we cannot see why a separate award is necessary. 4) There is an economy, consistent with the objectives inherent in s 19 of the Act, in avoiding unnecessary duplication by having only one award. 5) Conditions of employment peculiar to TAFE library staff can be accommodated in an award applying to staff in both the public sector and TAFE. 79 Accordingly, we do not propose to make a separate award for library staff in TAFE and we so find. However, subject to what we say later in this decision regarding classification structures, classification definitions, descriptors and salary levels, we will require further discussion between DET and the PSA to assure the Commission that any new arrangements affecting library staff in TAFE do not unreasonably inhibit TAFE's ability to meet its educational service delivery goals. Whether librarians and library technicians should have separate classification structures as proposed by the PSA or an integrated structure as proposed by the PEO and DET

[122]

· The PEO's applications seek that the Commission establish salaries for classifications, the work, skill and responsibilities of which are not described in any way. · The practical effect of the PEO applications, if granted, would be that the Commission would set a range of salaries for a series of unidentified grades, and it would be left to the individual Department Head, with the assistance of PEO guidelines, to decide which particular salary in the available range of salaries would apply to a particular position. In effect, it is the Department Head, not the Commission, who will play the primary role in fixing the salary of a particular position. · The making of awards that delegate fully the authority to Department Heads and the PEO to determine which grade and salary in the award are to apply to particular positions and employees would be beyond the jurisdiction of the Commission. It is fundamental to the power in s 10 of the Act that conditions of employment must be set - that is, fixed or determined - for employees, and must be fair and reasonable for those employees. What is proposed by the PEO does not involve the Commission actually setting rates of salary for the relevant employees; rather, as stated above, it merely involves the Commission creating a range of possible salaries, while leaving it to the Department Head and the PEO to actually set the particular salary from that range which will apply to particular employees. Within the overall scope of the award, the salary rates that are claimed do not attach to any particular employees or categories of employees or types or levels of work. · That the PEO award applications do not involve the setting of fixing or salary rates is demonstrated by the fact that the award does not create rights capable of enforcement by the Commission in Court Session or an Industrial Magistrate. · The lack of award classification descriptors and the use of job evaluation techniques as proposed by the PEO are both features of a status quo that has enabled the work of librarians, library technicians and archivists to be undervalued and underpaid. These features are part of the problem, and should not form part of the solution. · Job evaluation has not proved to be a panacea for the absence of classification descriptors in the current industrial instruments. In the Pay Equity Inquiry Report, Glynn J made a number of important findings adverse to job evaluation techniques in the context of her consideration as to whether the work of librarians had been undervalued. · Ms Burnham, who is a trained evaluator and job analyst in the Cullen, Egan and Dell job evaluation system, and who has sat on many job evaluation panels, described the deficiencies that exist in job evaluation. She stated that "an element of bias and guesstimation" is part of the process to establish a points to grade table, that jobs with the same points score can get different salaries under different points to grade tables and, that the quality of the position description will affect the outcome of the process. Specifically in relation to librarians, she pointed out that the number of librarian positions in departmental libraries is too small to properly establish a points to grade table, and in relation to the State Library and TAFE, she questioned how a points to grade table can be established where there have been no definitions or guidelines as to what constitutes job activity to the value of the grades within the existing industrial instruments. It should be noted that Ms Burnham gave evidence to the Pay Equity Inquiry as to job evaluation issues, and Glynn J accepted her evidence. · As a matter of approach, independently of the question of jurisdiction, the Commission ought not grant an award which leaves it to the employer to determine the salary level at which particular employees are to be paid, in circumstances where that replicates an existing system which is clearly deficient and has operated to the detriment of employees. The PSA application, which contains concise but flexible descriptors for each grade based on the knowledge, skill, and responsibility required, should be preferred because it properly prescribes salaries for employees, creates enforceable rights, and prevents arbitrary decision making as to the grading of employees. · Section 8(3) of the Public Sector Management Act 1988 does not have the effect of requiring the use of job evaluation techniques in the grading of employees. The evidence makes it clear that the use of job evaluation is not compulsory, and that under the PEO guidelines, positions will be classified and graded pursuant to award requirements where such requirements exist. · Mr Hitchens stated in his evidence he envisages that job evaluation techniques can be used in conjunction with classification descriptors to grade employees, and the PSA would have no difficulty with this proposition provided the descriptors remain the final determinant of grading. Secondly, and contrary to Mr Casey's evidence, there are a number of public service awards which contain classification descriptors.

[130]

106 In considering the question of whether any new award applying to library staff and archivists should contain classification descriptors, we deal firstly with the jurisdictional issue raised by the PSA. In this regard, we do not consider there is any jurisdictional impediment to making an award that does not contain classification descriptors. In Crown Employees (Common Salary Points) Interim Award and Other Awards (unreported, Hungerford J, 31 July 1990), the Commission was called upon to determine whether there was jurisdiction to make a common salary points award that did not, in itself, prescribe salaries for any employees but from which, in the future, salary rates would be drawn for prescription in relation to particular employees in separate industrial instruments. Hungerford J found that there was jurisdiction. His Honour said: The jurisdictional arguments need to be considered in terms of precisely what is sought by the PEIRA in its common salary points award claim. As I intimated earlier, it is proscriptive in nature, that is it seeks to specify salary points from which the actual salary rates applicable to the various classification of employees shall be drawn and as may be prescribed by a separate award, agreement or determination; that approach contrasts somewhat with the usual approach of the Commission where it makes an award prescribing, that is an order or direction, what a particular classification shall be paid. In other words, the approach in this claim is for an award to fix salary levels in the nature of actual salary rates, but which have no effect unless and until an award, agreement or determination so requires; but, with the direction that any such rates shall be drawn from the common salary points. As a general proposition, I see nothing offensive to the Commission's jurisdiction under the Industrial Arbitration Act to the making of an award proscriptive as distinct from prescriptive in nature. The power to determine any industrial matter comprehends the power to make an order or award "relating to work done or to be done" and as including "the wages … or remuneration of any persons employed or to be employed in any industry". Accepting that wages are payable for work done, as I think one must, the statutory injunction laid down in s 23A is for the rates of wages to be fixed to be "just and reasonable to meet the circumstances of the case". The fact that an award directs a scale of salaries from which actual salary rates are to be (sic), and where that approach is shown in the circumstances to be just and reasonable, seems to me to satisfy the statutory injunction in s 23A.

[161]

We have determined that librarians and archivists are to be recognised as two of the professions in the public sector. This puts beyond doubt their professional status and overcomes any previous "inertia" in recognising the professions, which may have contributed to undervaluation of the work of librarians and archivists. 2) The primary qualifications for library staff will be those acceptable to ALIA in the case of library staff and ASA in the case of archivists. Such are to be regarded as the minimum standard of skill and knowledge required for classification under the award. To be deemed as equivalent, any other qualifications have to meet the minimum standard of skill and knowledge inherent in the ALIA or ASA standard. 3) Recognition of equivalent qualifications is a common feature of qualification requirements, including those in respect of the public sector professions. 4) We do not regard the ability of a Department Head, the Managing Director of TAFE or the PEO to determine qualifications as equivalent as having the potential to undermine the professional status of librarians and archivists. In this respect, we note the "current reality" referred to by Mr Hatcher that whilst the existing industrial instruments applying to library staff and archivists permit the recognition of equivalent qualifications, PEO and TAFE "only actually employ persons with the necessary professional qualifications." We also note the submission by Mr Benson that the proposals to allow classification based on non-academic qualifications was not to be construed as indicating the PEO or DET were willing to support appointment of candidates who did not possess professional information skills and knowledge and would, we assume, in any event be likely to be used only infrequently. 5) Limiting qualifications to those acceptable to ALIA and ASA could exclude from future employment those persons who do not possess such qualifications but who may have been previously employed as library staff or as an archivist based on their experience. Such persons may not be employed as library staff or archivists at the time of transition from the existing award to any new award. This being the case persons who did not possess ALIA or ASA qualifications would be prevented from re-entering the workforce as library staff or archivists in the public sector.

[168]

143 The important role of library staff and archivists may also be something that is often overlooked. As Dr Jamieson said in her submissions in relation to librarians: The professional role of librarians can be described as conceptualising, organising and making accessible all fields of knowledge to library users. Sciences, social sciences, humanities, the law - it is hard to imagine how these disciplines could operate, be pursued and develop without the systems of organising and accessing knowledge provided by library science. The key skill of librarians is the ability to work in unfamiliar fields of knowledge and to map the routes required for clients to find the information required … Reference librarians with humanities/social science degrees regularly negotiate complex resources such as Chemical Abstracts to locate information for clients. Librarians play a significant role in the qualification and ongoing education of other professionals - lawyers, engineers etc - as well as TAFE trained occupations through their conceptualisation, organisation, and assistance in navigating and creating access to relevant information… In other areas (Departmental libraries, Mitchell etc) depth of subject specialisation is significant - the body of specialist knowledge required to understand, organise and make accessible complex and unique collections is comparable to that required at some levels of the relevant profession (eg geology, planning, environmental science etc). In these circumstances, librarians act as de facto guides to the subject knowledge. Librarians have a high level of responsibility for high quality information provision to the community… There are complex communication skills required in librarians' work including in dealing with the range of types and levels of general clients, students and specialists at the leading edge of their disciplines. Inadequate recognition of difficult to observe "soft" skills such as communication has been found to contribute to pay inequity … Library work often has high social impact and considerable community dependence.

[170]

145 In his submissions, counsel for the PSA helpfully and accurately summarised the evidence relating to the work of librarians, library technicians and archivists. We have modified Mr Hatcher's summary and adapted it is as follows: Librarians : · administer the loan of library resources, inter-library loans, and the processing and stock-takes of resources, and/or supervise and co-ordinate other (librarians and library technicians) performing this work; · perform original cataloguing and indexing functions. More senior librarians do cataloguing of a more complex and specialised nature; · must be familiar with and able to operate a wide range of information technologies; · are required to have an intimate knowledge of the resources, including electronic resources, in their libraries, and knowledge of the type of demands that clients may make on those resources; · use their knowledge of the library's resources, including electronic resources, their research and communications skills, to assist clients to find information and to utilise the library in an effective way. More senior librarians may deal with more complex inquiries, and in some cases do actual research themselves; · are involved in "reader education" and "information literacy" programs that, in a systematic way, are designed to facilitate usage of library resources by clients. This can be done through presentations, formal classes, individual tuition and publications; · liaise with clients and others to ensure that library resources are matched with client needs, and work collaboratively with others to maximise the quality of services provided; · are involved in decision-making about the acquisition/accessing of new resources, and in doing so must keep abreast of new resources that become available and might be useful, including electronic resources; · must ensure compliance with legislative and policy standards; · manage operations and staff, supervise and lead (applies to more senior librarians); · especially senior librarians, develop strategy and policy and manage budgets; · train and advise other librarians and library technicians (applies to more senior librarians); · especially senior librarians, are responsible for the introduction and upkeep of new information technologies; · acquire specialist expertise in the course of their work and/or through additional education and training, which they are able to apply to their work; · especially more senior librarians, become involved in special projects involving the use of specialised skills in addition to the performance of their day-to-day duties; · are involved in general public sector administrative activities, such as job evaluation panels and recruitment panels (applies to more senior librarians).

[171]

Archivists : · arrange and describe records in accordance with international standards, with more senior archivists doing descriptions of a more complex and specialised nature. This requires strong research skills and familiarity with sources of information about the history and structure of government; · must be familiar with and able to operate a wide range of information technologies, and more senior archivists are involved in the implementation of new technologies; · liaise with other archives and government agencies in relation to a whole range of records management issues; · are required to have an intimate knowledge of the records, including electronic records, in the archive, and knowledge of the type of demands that clients may make on those resources; · use their knowledge of the archives resources, including electronic resources, and their research and communications skills, to assist clients to find information and to utilise the archive in an effective way. More senior archivists may deal with more complex inquiries; · must ensure compliance with legislative standards, particularly as to the confidentiality of particular documents; · are involved in education programs that, in a systematic way, are designed to facilitate usage of library resources by clients. This can be done through presentations, formal classes, individual tuition and publications; · allocate duties, solve the problems of, and approve the work of other archivists, and prepare internal procedures for the completion of tasks (applies to more senior archivists); · engage in consultancy work assisting government agencies appraise and sentence records and process them for formal transfer to State Records; · undertake research projects associated with the preparation of leaflets, articles, guides, and exhibitions; · are involved in the management, co-ordination, supervision, recruitment and training of archivists and their work, and make decisions about operational issues (applies to more senior archivists); · are involved in policymaking and strategic planning (applies to more senior archivists). Library Technicians : · perform functions associated with the loan of library resources, inter-library loans, the processing and stock-takes of resources, and shelving. Senior library technicians supervise the performance of this work by other library technicians; · must be familiar with and able to operate a wide range of information technologies; · receive and process new materials, and edit or copy entries into the catalogue as may be necessary, in accordance with established standards; · solve operational problems as they arise, including resource, supply and invoice problems; · assist clients with the operation of a wide range of library equipment; · administer the processes by which resources are acquired; · respond to requests from clients for information about services offered, collections held and resources available. This requires knowledge of the library's cataloguing system and resources. Senior library technicians respond to more complicated requests; · liaise with other staff, clients, suppliers and others to ensure the efficient operation of the library; · perform more specialised tasks with minimal supervision; · lead teams, supervise other library technicians, organise staff rosters, co-ordinate the performance of work by other library technicians, and are involved in the training of other library technicians (applies to more senior library technicians); · make decisions in respect of the teams in which they operate, take responsibility for the proper performance of the work of other, and must be able to respond to organisational problems as they arise (applies to more senior library technicians); · locate material required for staff and client usage, organise, process, file and handle library materials, and use computerised systems for routine matters (applies to assistant library technicians).

[174]

We consider that the rates of pay we have adopted from the PEO's proposals represent fair and reasonable rates of pay and reflect the work value of these occupational groups. 2) Given our earlier findings regarding the equivalent work value of archivists and librarians it is appropriate, in our opinion, to apply the same rates of pay to both these groups. 3) The rates of pay we have adopted from the PEO proposals are comparable to rates of other professional and paraprofessional groups in the New South Wales public service. 4) While the proposals by the PEO and PSA in respect of rates of pay are similar in many respects, we consider that the PSA's rates err in being too high for Grades 1 and 2 of the library technician and Grade 1 and 2 librarians. The PSA's proposals also enable an employee to progress through the classification structure and achieve higher rates of pay within a considerably shorter time frame than employees in any of the comparator groups. The rates we have fixed, on the other hand, while fulfilling the requirements of s 10 of the Act and the Equal Remuneration Principle, represent a better overall balance and symmetry in terms of internal wage relativities and increments than the PEO, DET or PSA's proposals. 5) Given that the work value of library staff employed by TAFE is not materially different from library staff employed in the public sector, the classification structure and rates of pay proposed by DET do not adequately meet the necessary objective of rectifying the undervaluation of the work of library staff. The wage increases proposed by DET are in many cases minimal and, in at least two cases there is no proposed increase in the existing pay rate. 6) There is a preoccupation in the DET proposals with not disturbing relativities with teachers' rates of pay and clerical and administrative staff within TAFE notwithstanding the fact there is no evidence of any wage relationship between library staff, administrative and clerical staff and teachers. This pre-occupation has probably diverted DET from the main issue in these proceedings, namely, pay equity for library staff. The fact that classifications in TAFE are subject to the common public sector salaries agreement does not, in our opinion, create a relationship that will cause leapfrogging. 7) Reliance by DET on comparative rates of pay for administrative and clerical staff and rates of pay in the Higher Education Sector suffers from a lack of sufficient evidence that such rates of pay properly reflect the work value of classifications in these two areas. Adopting these rates could, therefore, potentially perpetuate the undervaluation of the work of library staff in TAFE.

[198]

· There should be a single award applying to librarians, library technicians and archivists employed in the NSW public service and TAFE. · Librarians and archivists should have a separate classification structure to that of library technicians. · The new award applying to library staff and archivists should contain classification descriptors. This will eliminate any doubt we have - and avoid any future controversy - as to the contribution that job evaluation systems may have made to either entrenching the undervaluation of the work of library staff and archivists in the current awards or masking the undervaluation because of deficiencies in the job evaluation systems themselves. · Our strong inclination is to include some checks in any classification structure by incorporating hard barriers at appropriate points in the structure. What we might ultimately award as to the issue of hard barriers may depend on the outcome of discussions that we propose shall be undertaken between the parties regarding the classification descriptors. There should be specific qualification requirements for grading of employees as well as provisions allowing for recognition of equivalent qualifications or experience. · We should adopt key elements of the PEO's incremental and salary scales. Given our earlier finding that the work value of archivists is equivalent to that of librarians, we propose that the librarians' incremental scale and rates of pay will apply to archivists. 7 It will be seen from our decision in this matter that there are a number of issues, some of them reasonably complex, that we consider need to be further addressed by the parties. We do not believe it is fair or appropriate, however, to delay the increases to rates of pay that will flow from this decision while the parties attend to the outstanding matters. Section 16(4) of the Industrial Relations Act allows for the making of an interim award in special circumstances. We consider those circumstances exist here. Accordingly, we propose to make an interim award to give effect to the conclusions reached in this decision. The award will incorporate the following features: 1) The interim award shall be known as the "Crown Employees (Librarians, Library Officers and Archivists) Interim Award" and shall take effect from the beginning of the first pay period to commence on or after the date of this decision and shall apply thereafter for a period of three months. 2) The interim award shall apply to all persons employed as librarians, library technicians, library assistants and archivists- a. in the Public Service of New South Wales; and b. by the Technical and Further Education Commission. 3) The interim award shall prescribe the classification structure and rates of pay set out in Appendix 8 to this decision. 4) The translation of employees from their classifications under existing industrial instruments to their classifications under the new structure prescribed by the award shall occur in accordance with Appendices 9 and 10 to this decision (copies of Appendices 8, 9 and 10 are attached to this Statement).

Crown Librarians, Library Officers and Archivists Award Proceedings - Applications under the Equal Remuneration Principle, Re [2002] NSWIRComm 55

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (205 paragraphs)

Cases Cited (10)

Cited By (5)