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

PARTIES: Mr A A Hatcher of counsel for Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales Solicitors: Mr C G Staff Jones Staff & Co

Mr S B Benson of counsel for Public Employment Office and Department of Education Solicitor: Mr I D Hill LEGAL REPRESENTATIVES: Crown Solicitors Office

INTERVENER: Dr S Jamieson on behalf of National Pay Equity Coalition, Women's Electoral Lobby, and Business and Professional Women's Association of Australia

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: WRIGHT J, President KAVANAGH J BOLAND J MCKENNA C

Matter No IRC 6304 of 2000 CROWN EMPLOYEES - (LIBRARY & ARCHIVES WORKERS, ALL DEPARTMENTS AND ADMINISTRATIVE UNITS) AWARD

Application for Crown Employees (Library & Archives Workers, All Departments and Administrative Units) Award

Matter No IRC 2242 of 2001 CROWN EMPLOYEES (LIBRARY AND INFORMATION WORKERS) AWARD

Application for Crown Employees (Library and Information Workers) Award

Matter No IRC 2243 of 2001 CROWN EMPLOYEES (ARCHIVISTS) AWARD Application for Crown Employees (Archivists) Award

Matter No IRC 3239 of 2001 CROWN EMPLOYEES (LEARNING RESOURCE OFFICERS IN TAFE) AWARD

Application for Crown Employees (Learning Resource Officers in TAFE) Award

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:

1. An application by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA") for a new Crown Employees (Library & Archives Workers, All Departments and Administrative Units) Award. The proposed Award would apply to all librarians, library technicians and archivists employed in the New South Wales public service and in the New South Wales Technical and Further Education Commission ("TAFE"). The proposed Award would rescind and replace the existing industrial instruments that apply to librarians, library technicians and archivists in the public service and in TAFE. It is to be noted that the PSA relies not only on the Equal Remuneration Principle but also s 10 of the Industrial Relations Act 1996 and Principle 10 - Special Case of the Wage Fixing Principles. 2) An application by the Public Employment Office ("PEO") for a new Crown Employees (Library and Information Workers) Award. The proposed Award would apply to library and information workers, including librarians and library technicians, in the New South Wales public service and would replace the existing Award applying to such employees. 3) An application by the PEO for a new Crown Employees (Archivists) Award. The proposed Award would apply to archivists in the New South Wales public service and would replace the existing Award and agreement applying to archivists. 4) An application by the Department of Education and Training ("DET") for a new Crown Employees (Learning Resource Officers in TAFE) Award to replace the Crown Employees (Librarians) Award insofar as it applied to TAFE and the Technicians Agreement No. 2384 of 1982.

3 It may be seen, therefore, that the PSA is seeking one award to apply to library and archive workers in the public service and TAFE, whereas the PEO is seeking one award to cover library workers in the public service and a separate award to cover archivists. The Department of Education and Training is seeking a separate award to cover library workers (or "learning resource officers") in TAFE. 4 Each of the parties in these proceedings acknowledged that in the female dominated occupations to be covered by their proposed new awards, the work of employees has been undervalued on a gender basis. The parties, however, differ on how this undervaluation is to be remedied. These differences are reflected in the different awards, classification structures, career paths and rates of pay proposed. Thus, the issue before the Commission in these proceedings is not simply whether rates of pay for librarians, library technicians and archivists should move upwards to correct a gender-based undervaluation in rates of pay. What also is to be determined are important questions of appropriate award coverage and the design of classification and grading structures.

Background 5 In February 1998 the Office of the Director of Equal Opportunity in Public Employment released its Report entitled Pay Equity Case Study - Librarians and Geologists ("the Pay Equity Case Study"). The case study compared the work value and remuneration of two gender-dominated professions -librarians employed by the State Library of New South Wales and geoscientists employed by the Department of Mineral Resources.

6 Comparisons were made of the qualifications, award structures, career paths, remuneration and award histories of the two professions. The research compared work value using two different commercial points factor job evaluation systems, both of which were accredited for use in the New South Wales public sector. The findings were as follows:

1. The profession of librarian is female-dominated; the profession of geologist is male-dominated. 2) The two professions require a similar entry-level qualification, a bachelor's degree. The necessary professional experience to become a Senior Librarian Grade 2 or a Senior Geologist could be eight to ten years. 3) The jobs of Senior Librarian Grade 2 and Senior Geologist are of equal comparable value as measured by OCR and the Hay points factor job evaluation systems. 4) The rates of pay for Senior Librarian Grade 2 year 4 compared to the Senior Geologist year 4 differ by $8,909 per annum. The difference is 19.75 per cent of the librarian's pay. 5) Geoscientists are less likely to be required to compete through merit-based selection for career progression. The librarian award has six annual increment steps for the librarian classification, that is from $29,381 to $38,610. Progress to the next level of pay, Senior Librarian Grade 1 ($39,736) is by formal merit-based recruitment to a vacancy. There are two annual increments for the Senior Librarian Grade 1, to $40,899. Progress to Senior Librarian Grade 2 ($42,521) is through merit-based recruitment to a vacancy. The geoscientist may progress from Grade 1 year 1 to Grade 2 year 4, that is from $30,979 to $48,810 without facing merit-based competition for a vacancy. 6) The disparity between the work value, the career opportunities and the award classifications and rates of pay for librarians relative to geoscientists is likely to reflect long standing under-valuation of the librarian work, associated with the female-dominated nature of the profession.

7 On 10 November 1997 the Minister for Industrial Relations had referred to the Commission pursuant to s 146(1)(d) of the Industrial Relations Act 1996 the Pay Equity Inquiry. The principal term of reference was for the Commission to inquire and report:

1. Whether work in female dominated occupations and industries is undervalued in terms of remuneration paid relative to work in comparable male dominated occupations and industries. The Commission shall have regard to such female and male dominated industries and occupations as it considers sufficient to permit it to make recommendations but shall not be required to examine all such industries and occupations. In determining those industries and occupations the Commission should have regard to the need to impose reasonable restraints on time to complete the Inquiry.

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.

9. 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.)

16. There are also some differences between the occupations. There has not been a history of undervaluation in the word of the male dominated occupation of geoscientists, and in fact they have been in receipt of the outcome of a very substantial work value assessment and market adjustments. Nor has there been a reluctance to recognise their professional (and technical) skills (even though there has more recently been a failure to act upon changes to those skills). There are other factors such as differences in field work.

17. Thus, it is conceivable that geoscientists may offer the basis for a further comparator (male dominated) from which indications of the level of undervaluation may be obtained. This would need to be considered as part of a work value assessment.

18. Having regard to these conclusions, I agree with the Crown parties and the PSA that an assessment of the value of work of librarians should be conducted to remedy the undervaluation I have identified. This assessment should be carried out, presumably with the full co-operation of both parties, under the new principle which I will recommend in a later chapter.

19. Furthermore, urgent steps should be taken to conduct a work value review for geoscientists (perhaps as part of an award review process).

9 The Pay Equity Case Study on librarians and geologists and the Report by Glynn J arising out of the Pay Equity Inquiry provided a substantial platform upon which to base applications to remedy the gender-based undervaluation of the work of librarians found to exist by those two investigations. The conclusions reached by Glynn J in relation to librarians may explain why there is no dispute between the parties over the fundamental issue that wage increases are, indeed, justified to remedy the injustice afflicting librarians, of gender-based undervaluation of their work. The fact that each the parties accepted from the outset that the work of librarians, library technicians and archivists suffers from gender-based undervaluation is, of course, an important consideration and one to which we should have particular regard. As we earlier observed, however, the size of the proposed wage adjustments and the manner in which they are to be applied were very much in contention.

The proceedings 10 The proceedings commenced with the parties outlining their respective cases. Mr A A Hatcher of counsel appeared for the PSA and Mr S B Benson of counsel appeared for the PEO and the Department of Education. On 3 December 2001, Dr S Jamieson sought, and was granted, leave to intervene in the proceedings on behalf of the National Pay Equity Coalition, the Women's Electoral Lobby and the Business and Professional Women's Association of Australia ("the Interveners").

11 The Full Bench undertook inspections of various institutions and Boland J was delegated to receive the evidence on behalf of the Full Bench.

12 Inspections were conducted by the Full Bench at the following locations:

1. State Library of New South Wales and the Mitchell and Dixson Libraries, Macquarie Street, Sydney. 2) Attorney General's Library, Goodsell Building, Chifley Square, Sydney. 3) Western Sydney Records Centre of State Records at Kingswood. 4) Open Training Education Network - Distance Education, 51 Wentworth Street, Strathfield. 5) TAFE Petersham Campus Library, 27 Crystal Street, Petersham. 6) TAFE NSW Sydney Institute Library and Information Management Unit, Ultimo.

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.

Gender-based undervaluation 15 The Equal Remuneration Principle requires an applicant to show that the work, skill and responsibility required, or the conditions under which the work is performed, have been undervalued on a gender basis. The Principle does not require a party to show that the undervaluation flowed from a particular act of discrimination (see Re Equal Remuneration Principle 97 IR 177 at 215). The Principle permits appropriate comparisons to be drawn but does not require them.

16 In these proceedings the claim was that the work of librarians, library technicians and archivists had suffered from gender-based undervaluation. All parties contended, expressly or impliedly, that there were two aspects to this undervaluation. Firstly, that there had been undervaluation of the three occupations arising out of the history of their industrial regulation. Secondly, this historic undervaluation had been exacerbated by significant changes in the work value of each of the occupations and which had not been taken into account in setting the rates of pay for each. We now deal with the aspect of historical gender-based undervaluation.

17 The evidence demonstrated that the occupations of librarian, library technicians and archivists are female dominated. For example, at the State Library, currently more than 70 per cent of all librarians and library technicians are female. The State Library seems to have been female-dominated since at least the 1930s. In TAFE, 83.5 per cent of librarians and library technicians are female, with this pattern in broad terms applying uniformly to TAFE institutes across the whole of the State. At State Records, 72.5 per cent of all archivists are female, and 82 per cent of base-grade archivists are female; this female domination of the occupation seems to date back to at least the 1970s.

18 In so far as librarians are concerned, an important consideration is the fact that "in the last quarter of a century no case has been arbitrated by the Commission which involves full consideration of work value of librarians": Volume 1 of the Pay Equity Inquiry Report at 469. The first award for librarians in the public sector was made on 3 September 1973 by Sheldon J by consent and was titled the Crown Employees (Librarian and Library Officers, Library of New South Wales and Division of Library Services - Department of Technical and Further Education) Award (193 IG 759). From 1973 to 1985 variations to that Award were made by consent. A new consent Award was made by Bauer J on 18 December 1985 titled the Crown Employees (Librarians) Award (243 IG 823). Since 1985 salaries in the Award have been adjusted according to movements in the Crown Employees (Public Sector - Salaries) Awards in 1993, 1995, 1997, 2000 and 2002.

19 That there has not been any inquiry into the work value of librarians contrasts with many other public sector professional groups. For example, the work of legal officers was the subject of extensive work value consideration in 1971 by Sheldon J upon an application for a first award (In re Crown Employees (Legal Officers) Award [1971] AR (NSW) 694, considered on appeal in Re Crown Employees (Legal Officers - Crown Solicitors Office &c.) Award [1972] AR (NSW) 376). Legal officers were the subject of further work value consideration in 1981 by Bauer J in Re Crown Employees - Legal Officers (Crown Solicitors &c.) Award [1981] AR (NSW) 488.

20 The Commission made the first award for public sector scientific officers in 1962 after an examination of their work value: In re Crown Employees (Scientific Officers - Division of Science Services, Department of Agriculture) Award [1962] AR (NSW) 250. In 1980 in Re Crown Employees (Scientific Officers, etc. - Department of Agriculture, Mines etc.) Award [1980] AR (NSW) 207 at 209, Dey J awarded interim increases on the basis of agreed changes in work value summarised as being: …that the scientific officers covered by this application have had to cope with an expansion of their spheres of authority and this has required the acquisition of more knowledge and the development of new techniques and skills; they have witnessed an erection of new constraints and have shouldered new responsibilities because of additional legislation and changed community values.

21 In 1981, Bauer J awarded further increases on the basis of work value changes, finding that scientific officers were "concerned and efficient officers, coping well with the additional demands placed upon them and approaching the problems of research with increasing confidence and professionalism", that they had "specialised skills based on knowledge and application of that knowledge to their work", and that they made "a substantial contribution to the common good, in ways which are often hidden from the public view and therefore unapplauded by the public at large": In re Crown Employees (Scientific Officers, etc. - Departments of Agriculture, Mines etc.) Award [1981] AR (NSW) 1091 at 1100.

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.

23 The absence of a proper inquiry into the work value of librarians does not, of itself, prove the work of librarians is undervalued (cf Re Crown Employees (Architects - Public Works Department) Award (1986) 16 IR 330). If, however, in the absence of an independent assessment of the value of the work of librarians, there are other factors indicating the work may be undervalued, the fact that the salaries of other occupational groups exhibiting similar characteristics to librarians have been assessed on a work value basis at higher rates of pay than librarians serves to strengthen the inference that the work has been undervalued.

24 Set out in Appendix 1 to this decision are current annual salaries (i.e., the rates applying from 1 January 2002) for selected librarian classification levels compared to their counterparts in a selection of professional classifications in the New South Wales public service, including occupations that have been work-valued. It shows that librarians, almost universally, receive a lower rate of pay than the other professional groups.

25 We observe that all of the parties accepted the appropriateness of comparing rates of pay for librarians with rates for other professional groups. The PEO and DET drew comparisons with psychologists, teachers, scientific officers, legal officers, engineers, Department of Agriculture professional officers and departmental professional officers. They also made comparisons with administrative and clerical staff and employees in the higher education sector. The PSA referred to scientific officers, legal officers, engineers, Department of Agriculture professional officers and departmental professional officers.

26 It is to be noted that the comparisons generally are with groups exhibiting some similar characteristics as librarians, namely, employees within the public service who require a bachelor's degree or equivalent for entry into the profession and whose career progression is based on a combination of years of experience and merit-based appointment and promotion. However, we do not understand the purpose of the comparison with other professional groups in the public service to be on the basis that the work of librarians etc. is of equal value to the work of, say, legal officers or psychologists, and that, therefore, by comparing rates of pay it is evident that librarians etc. are not receiving equal remuneration for performing work of equal value to that of these other groups. In any event, we do not have before us any evidence that the work of librarians is of equal value to the work of legal officers, psychologists or other professional groups referred to in the proceedings.

27 Nevertheless, we consider that where there is reliable material such as the Pay Equity Case Study and the Pay Equity Inquiry Report indicating that, historically, there has been gender-based undervaluation of an occupational group, it is legitimate to compare current pay rates with those other groups exhibiting similar characteristics in order to assist in testing the validity of the contention that gender-based undervaluation continues to exist. This is especially so where there is agreement that such comparisons are available and appropriate although disagreement about how the comparisons should be applied.

28 On the evidence and material before us, we accept that the work of librarians has been and is undervalued on a gender basis. The main indicia in this respect are as follows:

1. The findings of the Pay Equity Case Study - Librarians and Geologists. 2) The findings of Glynn J in the Pay Equity Inquiry. 3) The fact that the occupation of librarian in the public sector is female-dominated. 4) The consensus amongst the parties to these proceedings that the work of librarians is undervalued on a gender basis. 5) Librarians are currently paid at lower rates than other public sector groups exhibiting similar characteristics as librarians. (In the light of our subsequent findings that librarians and archivists are appropriately to be considered as professional employees, this may be stated as: librarians are currently paid at lower rates than many other public sector professional classifications or groups). 6) Librarians have not been the subject of a completed work value inquiry. Whilst this is not determinative of the fact that the work of librarians is undervalued, when it is considered that librarians are, and historically have been, paid lower than other public sector groups exhibiting similar characteristics, including professional groups whose work has been properly valued, the absence of any proper assessment of the work value of librarians enables a strong inference to be drawn that the work of librarians has been and is undervalued. This is especially so in circumstances where the evidence is that there has been very significant change in the work of librarians over the past quarter of a century as described in the Pay Equity Inquiry.

29 It may be noted that we have referred to librarians as persons engaged in a profession. The term "profession" is nowadays used to describe a multitude of occupations, callings and sporting endeavours and extends well beyond the traditional fields such as law and medicine. Librarians and archivists exercise skills based on theoretical knowledge, require high level tertiary qualifications, are eligible for membership of independent associations, are subject to standards of competence and are obliged to follow ethical codes of conduct. Each field has an accepted body of knowledge and skills acquired only after a long period of learning that is properly described as professional in nature and content. The concepts of "profession" and "professional work" have frequently been considered in industrial and other legal contexts. For example, the Industrial Commission in Court Session in Re Electricity Supply Professional Officers Association and Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division [1978] AR (NSW) 283 at 303, after considering a number of earlier decisions on the subject, said: Dictionary meanings of "professional" are insufficiently precise but, nevertheless, of some assistance. We deduce from our examination of the dictionaries that the word implies, as Starke J. said in Robbins' Case [ Robbins Herbal Institute v Federal Commissioner of Taxation (1923) 32 CLR 457 at 461], professed attainments in special knowledge, as distinguished from mere skill, knowledge which is to be acquired only after patient study and application

30 The issue was considered subsequently, also by the Industrial Commission in Court Session, in Re Social & Community Welfare Services (State) Award (1984) 8 IR 364 at 365 - 366. In the course of their Honours' consideration, which included reference to the above decision in 1978 and also that of Sheldon J in Re Crown Employees (Social Workers - Department of Public Health) Award [1974] AR (NSW) 295, it was said: In the Crown Social Workers case, Sheldon J. analysed the work done by the social workers and concluded that certain social workers were properly comprehended in the term "professional". In doing so, he had regard to the university training, the complexity of that course, and the skill and expertise necessary to perform the functions of a social worker at its higher levels. Thus, the concept of social work as a profession has been established in the industrial context of New South Wales since 1974.

… the meaning of the word "professional" … in its proper construction involved, at least, concepts of "profession" and specially acquired skill and knowledge in the sense previously described by Sheldon J. In our view, the Registrar, and other unions possibly having an interest in the registration of the SWWU, when considering the meaning of the term "professional social work", would have had regard for that phrase as it was then understood within New South Wales industrial usage.

See also Re Accountants and Secretaries Professional Officers' Association of New South Wales [1955] AR (NSW) 505 at 518; Water Industry Salaried Officers' Union v Professional Officers' Association (NSW) (1987) 22 IR 414 at 419 - 420; Young v Wicks (1986) 13 FCR 85 at 90, (1986) 79 ALR 448 at 463 and Prestia v Aknar (1996) 40 NSWLR 165 at 184 - 187.

31 In our opinion, when the evidence in these proceedings is considered in the light of those authorities and the criteria considered in them, librarians and archivists are shown to fit comfortably into the group of occupations which has historically been regarded as the public service professions, which includes legal officers, engineers, teachers, scientific officers, psychologists and professional officers. We consider that librarians and archivists may also be properly considered as professions in the more general sense. Historical undervaluation - archivists 32 The work of archivists was not considered in the Pay Equity Case Study or the Pay Equity Inquiry. The evidence, however, suggested that prior to 1976 archival functions were administratively managed through the State Library so that archivists were treated as being employed under the same industrial instrument as librarians. In 1983, Bauer J made the first award for archivists known as the Crown Employees (Archivists) Award (232 IG 748). The rates of pay for archivists were aligned with those for librarians rather than having been the subject of a separate work value inquiry - and that remain the case to this day.

33 Given the agreement of the parties and the close nexus that has existed between archivists and librarians it is reasonable to conclude that the historic undervaluation of librarians' work has also occurred with that of archivists, and the factors identified as giving rise to the historical undervaluation of librarians' work apply equally to archivists' work and we so find.

Historical undervaluation - library technicians 34 Neither the Pay Equity Case Study nor the Pay Equity Inquiry considered the occupation of library technician.

35 The history of the industrial regulation of library technicians was addressed in the evidence of Ms Casey and Mr Stott. Library technicians were first the subject of award regulation as "library officers" in the Crown Employees (Librarians and Library Officers, Library of New South Wales and Division of Library Services - Department of Technical Education) Award made by Sheldon J in 1973. As we have already observed, this Award was made by consent and did not involve any assessment of the work value of library technicians. After the expiration of the Award an Agreement known as the Library Officers Agreement No. 2189 of 1975 was made by consent. The Agreement adopted the classification structure in the previous Award but with increased salary rates.

36 According to Mr Stott's evidence, from about 1978 the Library Officers' Vocational Branch of the PSA entered into negotiations with the Public Service Board of New South Wales (PSB) on the question of paraprofessional recognition for library officers. The negotiations continued for four years during which time significant changes occurred in the qualification requirements and work of library officers. In 1982, a new Agreement was made by consent known as the Library Technicians Agreement No. 2384 of 1982. That Agreement changed the nomenclature from Library Officer to Library Technician, recognised a new Library Certificate Course as the appropriate qualification and created a new four-level structure including a new promotional grade of Senior Librarian Technician. Mr Stott said, however, that negotiations regarding new definitions were not successful.

37 In 1983, negotiations commenced on a new agreement but were largely unsuccessful. In 1984 the PSB proposed a single award covering librarians and library technicians but disagreement over key issues, including career progression, prevented agreement being reached. Mr Stott said that with the introduction of new wage fixing principles in the mid-1980s the claim for a new industrial instrument to cover library technicians was not pursued. Since that time, rates of pay for library technicians have moved according to community-wide or public sector-wide increases and have not been the subject of separate consideration.

38 All parties offered comparisons of the rates for library technicians and what were said to be comparable public sector occupational groups. Set out in Appendix 2 to this decision are current annual salaries for selected library technician classification levels compared to technician levels in a selection of paraprofessional classifications in the NSW public service. The picture that emerges is similar to that for librarians. That is, almost universally, library technicians are paid at rates lower than other paraprofessional groups in the public service.

39 At no stage has the work of library technicians been the subject of a completed work value inquiry. It is to be noted, however, rates of pay set for technical officers in their first award were determined by a work value inquiry: Crown Employees (Technical Officers) Award [1973] AR (NSW) 142. The rate of pay established for a Technical Officer Grade II Year 1 in this Award was $6,600 compared to $5,689 for a Library Officer Grade II Year 1. Appointment to both grades required the completion of TAFE qualifications or equivalent. The rate for the library technician was set by consent.

40 The case for contending that the work of library technicians has been historically undervalued on a gender basis is not as strong as that for librarians because, unlike librarians, library technicians have not been the subject of a detailed case study and inquiry. Nevertheless, it is the case that the occupation of library technician is female dominated; the rates of pay of library technicians (or their predecessors) were determined in the absence of any work value inquiry at rates lower than technical officers with similar educational qualifications; the work of library technicians has never been work valued; there is a gap between the rates of pay of library technicians and those of other public sector paraprofessional groups, including groups whose work has been the subject of independent assessment by the Commission; the work of library officers underwent significant change in the 1980s with the onset of automated systems; there is agreement that the work of library technicians is undervalued on a gender basis. Having regard to these factors, an inference is clearly available that the work of library technicians also has been historically undervalued on a gender basis and we so find.

Work value changes 41 It was contended that not only had the work of librarians, library technicians and archivists been historically undervalued but also that there had been significant increases in the last decade or so in the work, skill and responsibilities of such employees that has not been properly taken into account in fixing their rates of pay. Mr Hatcher submitted: Librarians, library technicians and archivists are, fundamentally, custodians and purveyors of information, and as such their work has been radically altered over the last decade by information technology to such an extent that they now provide services which would have seemed barely imaginable only 15 or so years ago.

42 Mr Benson also acknowledged the change that has occurred. He submitted that: The evidence of numerous witnesses establishes that the traditional roles performed by libraries has undergone major changes principally as a result of the development of electronic modes of information storage, retrieval and communication. The impact on library and information workers has been dramatic. It is abundantly clear from the inspections of the State Library, the library at the Sydney Institute of Technology at Ultimo and Petersham as well as the visit to OTEN at Strathfield demonstrate the pervasive influence of computers and the electronic age on their functions. As recently as the early 1990s libraries and library staff have had to accommodate and exploit the Internet and the many portals to information storage and retrieval arising from that facility. Almost every workstation at the State Library had a computer terminal with a range of grades of Library technicians and the librarians being expected to be familiar with the utilisation of that technology. … The evidence also demonstrates significant changes in the work performed by archivists at State Records.

43 We consider that the inspections and evidence regarding the work of librarians, library technicians and archivists revealed a surprising and impressive quality and diversity of work carried out by these classes of employees, much of which had been fundamentally impacted on by the sweeping changes in information technology that have occurred over the past decade.

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.

These challenges are already evident in Reading Room Services. Staff are increasingly expected to be able to recommend high quality information sources directly accessible via the Internet. Staff now face the dual challenges of managing the sheer volume of items available on the Internet; and determining which sources are authoritative when their provenance is unclear.

45 Ms Marilyn Hart, the author of the paper Facilitating Learning - Libraries in TAFENSW, options and opportunities for the future: a discussion paper, described the change affecting TAFE libraries as follows: ... educational libraries have undergone and continue to be experiencing substantial changes at a number of levels. These changes impact directly on the role of all library workers. The increasing use of information and communications technology is one aspect of this. Provision of access to information and to learning resources in audiovisual and electronic format is now an essential component to the work of all library staff. This requires an understanding of web based and other electronic sources of information, an ability to use information technology hardware and to 'trouble shoot' and a capacity to assist library customers in their use of computers and in accessing information."

46 Ms Hart also indicated there was a need for librarians in TAFE to understand the curriculum to be able to better support students and teachers: The nature of the difference is in the quality and intensity of the approach to understanding the curriculum. Whilst always the case library staff needed to be aware of curriculum, now because students are much more likely to be involved in independent and resource-based libraries and using the library to effect that. Therefore libraries and staff need to be much more aware of what is behind that curriculum and they need to work much closer with teaching staff so that along the way, as a student is learning, the learning resources are embedded into that process and library staff have to understand different approaches to learning.

They need to understand what on-line learning looks like and mixed mode and face-to-face delivery and have a good understanding of the kinds of technology used, and need to be able to work effectively with teachers to embed new resources. For example, on-line resources that teachers might be working with so that they are immediately available to students. So that kind of work is a significant shift in both complexity, range, scope quality to the kind of work done in the past. So, it is not to say that TAFE library staff have not always been involved in understanding curriculum and educational issues, but now a much greater - it demands more of library staff in terms of understanding the educational framework and environment and technologies that they are working with.

47 Mr Peddle (Institute Director, Illawarra Institute of Technology) described the traditional role of the librarian as follows: In the past, the perception of a TAFE librarian was that of a person who enforced library rules, assisted the user, was involved in organising book loans and returns, repaired books and organised manual cataloguing systems. Considerable time was spent checking overdue loans, correspondence on returns, manual filing and retrieving borrowing cards, manual register of members and checking their details and an extremely intensive annual stock take.

48 However, on the evidence of the witnesses and as seen by the Full Bench during the inspections, technologically-based and electronically-based facilities are now commonplace features in the delivery of library-related services. Mr Peddle's evidence again aptly described those changes as follows: The main difference between the conventional library and the digital library is the user accesses the majority of information from on-line web-based sources such as the Internet or patented learning resource materials stored on CDs. There is little if any reference to print based materials. Writers on this topic believe: "This will create a collaborative environment where librarians together with teachers, archivists, museum workers, IT specialists and researchers will step by step solve a whole complexity of problems related to the creation of electronic resources, storage of large volumes of information, standards of data representation, legal and economic aspects of digital library functioning, information security, etc: New Roles for a New Age - Government Technology - January 2001 …"

49 Mr David Roberts, Director of State Records, described the effects of technological change on the archives/records management environment as follows: The archives/records environment is changing rapidly. In the modern organisational and technological environment, the management of records - from the specification and design of record keeping systems and the generation of records in the course of business activity through to the long-term management and use of records in all forms as archives - is increasingly undertaken as a continuum of highly interrelated and interdependent processes. For example, much of the metadata that is needed for the long-term management and use of archives, especially electronic archives, must be specified in the design of record keeping systems and is captured when the records are created.

This means that work traditionally done by archivists and records managers respectively is increasingly performed by record keeping practitioners/professionals who function across the records continuum. Practitioners working within a narrower range are increasingly seen as specialists within the discipline of record keeping. This practical response to the environment is underpinned by a body of record keeping theory and literature, developed in the 1980s and 1990s on the foundation of the long-established discipline of archival science. ... This … is reflected in the work of professional staff. In State Records, some staff in Archivists positions continue to undertake work commonly associated with archivists: appraising records, arranging, describing and documenting them according the archival principles, and providing archival reference services - albeit in an environment of distributed management of archives and new ways for delivering archival services based on information technology. Other staff in Archivist positions, however, function as policy officers in relation to records management practices in NSW public sector bodies: researching and developing policy, standards and guidelines for records management across the sector; providing training for records management staff; and developing tools such as records management keyword thesauri and metadata standards for record keeping.

50 In as much as the technological changes were impressive in their electronic advancement of the provision of library services, we were impressed equally with the painstakingly methodological research work and finely-honed skills of a curatorial nature required of those involved, for example, in the handling and cataloguing at the State Library and State Records of items ranging from aged periodicals to the national treasures held in the Mitchell and Dixson Libraries (which together form the Australian Research Collection of the State Library). The work undertaken at these facilities reinforced the breadth of work classified as librarian-related and archivist-related employment.

51 None of the changes described by the various witnesses quoted above has been considered by the Commission in the context of a work value review and, therefore, the changes are not reflected in the rates of pay for librarians, library technicians and archivists. These changes in work have come about in the last decade. During that period, librarians, library technicians and archivists have received only the general wage increases available to all employees in the public sector; no particular consideration has been given to the impressive degree of change that has occurred in the work, skills and responsibilities of these categories of employees.

52 We accept, therefore, the contentions of the parties that the work of librarians, library technicians and archivists has been undervalued on a gender basis and we so find.

The competing solutions 53 As recorded earlier in this decision, each of the parties accepted that the work of librarians, library technicians and archivists has been and is undervalued. There are, however, significant differences of opinion amongst the parties as to how the undervaluation is to be remedied. The differences are reflected in the different classification structures, career paths and salary levels proposed by the respective parties and in the fact the PSA applied for one award to cover librarians, library technicians and archivists, the PEO made application for one award for librarians and library technicians in an integrated classification structure and a separate award for archivists and the DET applied for a separate award again for "learning resource officers" in TAFE.

54 The competing solutions of the parties in terms of classification structures and salary levels are set out in the three tables in Appendices 3, 4 and 5 to this decision. The tables also show the transitional arrangements, i.e. an employee's current grade and pay rate and the corresponding grade and pay rate under the various proposed new awards.

55 In seeking to address any gender-based undervaluation of an occupational group, parties are not confined simply to an adjustment in wage levels. Principle 14 (h) allows the question of undervaluation to "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". The more broad-based solutions proposed by the parties to overcome the undervaluation problem which travel beyond simple wage increases are, therefore, readily available and, where a case is made out on merit, appropriate.

56 In identifying the differences between the parties more precisely, it seems to us that Mr Hatcher was correct in submitting there are seven main issues for determination. These issues are as follows:

1. Whether there should be a single award applying to librarians, library technicians and archivists as proposed by the PSA or one award for librarians and library technicians and a separate award for archivists as proposed by the PEO. 2) Whether there should be a separate award for "learning resource officers" in TAFE as it was proposed by DET. 3) 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. 4) Whether the proposed award classifications should have definitions or descriptors attached to them or whether the assignment of employees to classifications should be left to job evaluation systems. 5) Whether the 'hard barriers' to promotion or career progression ought be modified and, if so, in what way. 6) Whether there should be specific qualification requirements for grading of employees or, instead, provisions allowing for recognition of equivalent qualifications or experience. 7) Which of the proposals relating to salary levels properly reflects the work value of librarians, library technicians and archivists. 57 The issues we have identified above are interrelated. For example, any decision regarding whether there should be a separate award for learning resource officers in TAFE or a separate award for archivists employed by State Records is likely to have implications for the classification structure and salary levels for such employees. Similarly, if it were decided that there should be separate classification structures for librarians and library technicians this may have implications for grading structures and the issue of "hard barriers". Thus, while we propose to consider separately the seven main issues, we do so in the context of framing an overall package of measures to remedy the undervaluation of the work in question.

Whether there should be a separate award for archivists 58 A separate award to that which applies to librarians presently covers archivists. The PEO contended that arrangement should be maintained. Mr Benson submitted that the points of difference between archivists and librarians were "dramatic and escalating". He cited Mr Roberts' evidence as relevant to maintaining a separate award for archivists. Mr Roberts referred to the: a) distinct professional qualifications; b) distinct nature of archival work being long recognised by a separate industrial instrument; c) distinct and changing nature of archival work; d) distinct professional discipline; e) distinct career structure. 59 Mr Hatcher contended that the distinctions pointed out by Mr Roberts between the archivist and librarian do not require a separate award nor do they outweigh the considerations of the traditional industrial nexus between the two groups and their equivalency in work value.

60 We accept that there are definite distinctions to be drawn between the work of librarians and archivists and that they may be regarded as two distinct professions. However, we do not consider the distinctions justify a separate award. When one considers the classification structure and salary levels proposed by the PEO for librarians compared to that proposed for archivists and, indeed, when one compares the two awards proposed by the PEO, there is not a sufficient basis, in our opinion, to justify maintaining a separate award for archivists, especially given the historical nexus that has existed between the two occupational groups and also given the conceptual similarity of the work. In other words, we do not consider the distinctions identified by Mr Roberts are so marked as to warrant a separate award for archivists.

61 We can understand a concern on the part of those who manage State Records that, in the absence of a separate award for archivists, they may not be in a position to exercise the same degree of influence over future arrangements governing the employment of archivists. However, that will not necessarily be the case. Any application to vary the award applying to archivists will be considered according to the relevant statute and wage fixing principles as well as the merits of the application. That the application may relate only to archivists would not prevent its proper consideration. In so far as the PEO's present application for a separate award for archivists is concerned we are not persuaded that the application should be granted. Whether there should be a separate award for Learning Resource Officers in TAFE

62 The question of whether there should be a separate award for 'learning resource officers' in TAFE is more problematic than that relating to archivists. TAFE is a large employer of library staff and is seeking a separate award in order to better integrate TAFE's library services into its broader educational delivery role. The TAFE system incorporates some 110 libraries and 30 unstaffed resource centres across 12 TAFE institutes.

63 In support of the application for a separate award for TAFE, Mr Benson submitted: The evidence overwhelmingly demonstrates that TAFE libraries need to be integrated as much as possible with the teaching and learning process and mode of service delivery. The latter remark means that if teachers are developing on line learning programs librarians will have to cooperate and liaise with teachers to ensure that learning resources are available on line to the students. It is in this situational context that TAFE has coined the phrase "Learning Resource Officers" which is designed to crystallise and sharpen that central aspect of their role. 64 Mr Benson referred to the evidence of Mr Shreeve to the effect there has been a significant change in the role played by TAFE libraries in the delivery of educational services and the role is changing and expanding at a rapid rate to embrace new forms of educational service delivery and new technology.

65 Mr Benson also referred to the evidence of Ms Hart, who said: The nature of the difference is in the quality and intensity of the approach to understanding the curriculum. Whilst always the case library staff needed to be aware of curriculum, now because students are much more likely to be involved in independent and resource-based libraries and using the library to effect that. Therefore libraries and staff need to be much more aware of what is behind that curriculum and they need to work much closer with teaching staff so that along the way, as a student is learning, the learning resources are embedded into that process and library staff have to understand different approaches to learning.

They need to understand what on-line learning looks like and mixed mode and face-to-face delivery and have a good understanding of the kinds of technology used, and need to be able to work effectively with teachers to embed new resources. For example, on-line resources that teachers might be working with so that they are immediately available to students. So that kind of work is a significant shift in both complexity, range, scope quality to the kind of work done in the past. So, it is not to say that TAFE library staff have not always been involved in understanding curriculum and educational issues, but now a much greater - it demands more of library staff in terms of understanding the educational framework and environment and technologies that they are working with.

66 DET's application for a separate award for TAFE "learning resource officers" involves a different classification structure to that proposed in respect of library staff in the public sector. Mr Benson explained the different structure as follows: … TAFE have independently formulated a classification structure to meets its agency specific needs which it asserts will facilitate the establishment and maintenance of pay equity for the group it calls Learning Resource Officers. Again, it is an articulated career stream taking into account the current and proposed work and work organisation within the TAFE library network. TAFE seeks for its agency specifics award the insertion of level descriptors for each grade. TAFE has relied heavily on the broad non-restrictive level descriptors in the Higher Education Worker model adopted throughout the Higher Education Sector with the consent of the PSA's Federal counterpart, the CPSU. This includes the University of Sydney, the University of NSW, the University of Wollongong, the UTS and University of Newcastle… Under these higher education descriptors there is no requirement for Librarians or Library Technicians to hold any specific ALIA recognised qualifications. The TAFE application also provides for integration into the classification of Learning Resource Officers of staff, other than Librarians and Library Technicians who work in TAFE libraries, thus enhancing mobility and improving career paths. These include Audio Visual Technicians, IT, Systems Officers, IT Services Coordinators, Flexible Learning Coordinators, Senior Library Systems Project Officers.

67 The DET application also seeks the inclusion of specific conditions of employment that currently apply to library staff in TAFE libraries and Learning Resource Centres. Mr Benson submitted it was TAFE's intention in seeking these conditions "to simply provide an award foundation for their entitlement and application". He submitted the PSA "had shown little enthusiasm to enter serious negotiations" in relation to the conditions of employment that DET sought to include in the new TAFE award and the PSA's recent indication of a preparedness to discuss such matters should not be given any weight because "On past experience the likelihood would be that in three years' time nothing had changed."

68 The PSA strongly opposed a separate award applying to TAFE. Mr Hatcher's submission in this regard may be summarised as follows:

· 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.

71 During the course of the proceedings, however, Mr Benson indicated that he also relied on the Special Case Principle to underpin the DET application and so we have proceeded to deal with the application as if it were made under the Equal Remuneration Principle with residual reliance on the Special Case Principle for the purpose of considering whether there should be a separate award for library staff in TAFE.

72 However, there is a limit to the extent we are prepared to consider DET's application under the Special Case Principle. Under DET's application it was proposed that a "Learning Resource Officer" would encompass not only persons traditionally regarded as library staff but also such persons as "systems officer", "audiovisual officer", "instructional designer", "flexible learning officer" and "IT services coordinator". In the absence of any agreement regarding these proposed classifications we do not consider there is sufficient information before us to make an informed decision about the nature of the work, skill and responsibility to be exercised by such employees. We are not in a position to, therefore, determine what the relationship of these proposed classifications is to library staff in terms of grading and rates of pay. Furthermore, while we have accepted PEO/DET's late application to consider their claims under the Special Case principle as well as the Equal Remuneration Principle, nevertheless, the primary focus of these proceedings is the question of pay equity for library staff and archivists, not the introduction of new classifications for the purpose of achieving structural change.

73 If DET wishes to pursue these new classifications it is open for it to do so in accordance with the Industrial Relations Act and the wage fixing principles as we do not determine that the additional classifications sought by DET are not justifiable. We find, however, there is insufficient information to make a determination about them in these proceedings, which are principally concerned with pay equity. The additional classifications should be the subject of the further discussions amongst the parties.

74 Important considerations in determining whether there should be a separate award for library staff in TAFE are, firstly, whether the work of such employees is so markedly different as to warrant separate award coverage and, secondly, whether the legitimate requirements of the employer necessitate TAFE library staff being covered by an award separate from that which applies to library staff in the public sector generally.

75 The evidence reveals that the work of library staff in TAFE is subject to a different emphasis than the work of library staff in, say, the State Library or the Attorney General's Library and in this respect we refer particularly to the evidence of Ms Hart and to our own observations on the inspections. By its application, DET wishes to maintain and, indeed, strengthen this different emphasis by aligning the work of library staff even more closely with TAFE's educational service delivery goals or, as Mr Benson put it: "TAFE libraries need to be integrated as much as possible with the teaching and learning process and mode of service delivery." Additionally, DET submitted it was seeking to achieve greater flexibility in the way library staff were deployed.

76 Notwithstanding these different emphases, the vocational qualifications, work, skill and responsibility of library staff in TAFE appeared to us to be fundamentally the same as library staff in the public sector. There was no evidence that the work of library staff in TAFE was of a different nature or kind from that of library staff in the public sector. Moreover, we do not consider that the work value of library staff in TAFE is measurably different from that of library staff in the public sector and, indeed, it was not seriously contended otherwise. Consequently, we do not consider a separate award for TAFE library staff is justified on the ground that the work or the work value of such staff is intrinsically different to that of library staff in the public sector.

77 Nevertheless, it was submitted by DET that it was necessary for TAFE library staff to engage in a wider variety of tasks and to work in a way that is more directly connected to the delivery of educational services. This, it was submitted, justified a separate award with a different classification structure, different arrangements relating to career progression, more flexibility than that proposed under the PSA's classification definitions and a different salary scale that addressed the problem of gender-based undervaluation but which did not upset existing wage relativities.

78 We consider that TAFE is entitled to the flexibility it reasonably needs to meet its educational service delivery goals. However, this does not necessarily translate into a separate award for TAFE library staff. TAFE's flexibility needs could be incorporated in an award that has application to library staff both in the public sector and in TAFE. We prefer such an approach rather than opting for a separate award for library staff for the following reasons:

1. 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

80 Counsel for the PSA submitted that the rationale for separate classification of librarians and library technicians was the preservation of the separate status of librarians as a professional occupation and library technicians as a paraprofessional group. Mr Hatcher said: It is a matter of some significance because the Pay Equity Inquiry Report … had as an important finding that a feature of the historic undervaluation of librarians' work was a resistance to the recognition of librarianship as a profession. The PSA claim seeks to give librarians that recognition, whilst the PEO and TAFE claims submerge them into the generic classifications of "library and information officer" and "learning resource officer".

81 Mr Hatcher said that the separate classification of librarians and library technicians was not intended to create demarcation barriers between them and was not intended to be a barrier to career progression. He submitted that many library technicians have obtained additional qualifications and have subsequently been appointed as librarians.

82 In contrast with the PSA's proposals, the PEO advocated an articulated career path for librarians and library technicians - or what the PEO referred to as "library and information workers". Mr Benson said this was a generic term to: …cover the complete proposed career stream for persons traditionally within the concept of Librarian and Library Technician and, as well as persons with what might be described as affiliated qualifications such as in computer technology or history or records management or conservation or other subject specialists, and/or relevant information management skills derived from experience.

83 Mr Benson described the PEO's "seamless" classification structure as follows: It is based on the foundation that their work is underpinned by the common discipline of library and information studies, experience and related disciplines. Core skills and knowledge relating to both Library Technicians and Librarians (embracing those concepts broadly) include those relating to information management principles and practices; relevant subject specific literary and expertise; analytical and research ability; and information technology and communication skills of varying degrees. Employees within this career stream require knowledge of an ever-widening range of information resources, information systems and databases. The evidence demonstrates that library and information workers position (sic) apply that knowledge and skills to varying degrees depending on the accumulative effect of the formal qualifications each brings; the work experience and the personal attributes of each. An articulated career stream enables the suitability of all potential applicants for a position to be assessed to determine their relative entitlement to be appointed to any vacant position.

84 The DET proposal was similar to that proposed by the PEO in that it provided for an articulated career path. Mr Benson submitted, however, that the DET proposal had been independently formulated to meet TAFE's specific needs which, it was asserted, would "facilitate the establishment and maintenance of pay equity for the group it calls Learning Resource Officers". We note that learning resource officers includes the existing classifications of Assistant Library Technician, Library Technician, Senior Library Technician, Librarian, Senior Librarian Grades 1 and 2 and Divisional Librarian Grade 1 as well as other staff who, it was proposed, would be covered by the TAFE award. These include Audio Visual Technicians, IT Systems Officers, IT Services Coordinators, Flexible Learning Coordinators and Senior Library Systems Project Officers. 85 At p 489-490 of the Pay Equity Inquiry Report Glynn J found that: 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.

86 Having recognised the profession of librarian (and archivist) in this decision and, given the historical undervaluation of the work of librarians is due in part to "a failure to adequately recognise professional qualifications held by female librarians", it would, in our opinion, be inappropriate to now refer to librarians in generic terms such as "library and information officer" or "learning resource officer". Librarians and archivists should be recognised by the name of their profession.

87 The question then arises as to whether librarians should have a classification structure separate from library technicians and not an integrated structure. The idea of a "seamless" career path for "library and information workers" was said by one of the witnesses for the PEO, Ms Gleeson, to have the advantage of avoiding demarcation barriers.

88 In answer to a question regarding the disadvantages she saw flowing from parallel career paths for librarians and library technicians, Ms Gleeson said in her evidence: I think the main one is that it would maintain and contain some artificial demarcations that limits people's capacity to work in jobs of their choice and certainly maintains demarcations that don't reflect the way the work is done at the moment, the way that clients expect services to be delivered.

89 In cross-examination, Ms Gleeson conceded that the demarcations of which she spoke had not been imposed by the PSA and they arose out of the way in which the State Library allocated work amongst librarians and library technicians. Nevertheless, Ms Gleeson maintained that the practical effect of two classification structures was to create a perception that some work belonged to librarians and other work belonged to library technicians.

90 We regard it as important that in advocating separate structures for librarians and library technicians the PSA has disavowed any intention of establishing demarcation barriers between the two groups. Whether a person is a librarian or library technician she or he may be expected to perform such work as falls within the scope of the relevant award classification and within the employee's skill, competence and training. The PSA's express disavowal should be sufficient to remove the perception that has no basis or support from the employer, the relevant union or in this decision of the Full Bench. If demarcation barriers arise from perceptions borne out of the manner in which the employer allocates work, having a single classification structure will not provide a solution. What is said in this decision should, however, resolve the matter.

91 Ms Gleeson also said that a seamless career path: …would encourage and afford people who are currently library technicians greater opportunity to in-house train where currently there are expectations that they shouldn't undertake the same level of training as librarians.

92 The existence of two classification structures should not operate as a barrier to a paraprofessional undertaking training and transferring to the professional grades provided he or she is suitably qualified. Indeed, the evidence showed that such transfers are not uncommon. This is not to say that there is no merit in a single classification structure as advocated by the PEO and DET but we consider, in light of past injustices, it is necessary to ensure the professional status and standing of librarians and archivists is clearly established in an industrial and award sense. This will be facilitated by a separate classification structure for professional librarians and archivists. We observe that other public sector professional groups have separate recognition in the award classification structures applying to them.

93 The interests of library technicians must also be addressed. Whilst there is an overlap in the functions performed by library technicians and librarians, the evidence, and our own observations on inspections, demonstrated that they constitute two distinct occupational groups. We consider, therefore, that librarians and library technicians should have separate classification structures and we so find. A separate classification structure should incorporate independent, viable career paths but with the opportunity for the paraprofessional to be able to transfer to the professional grades, having obtained the necessary qualifications. Additionally, there must be an overlap of the salary scales under the two structures because at certain levels the work value of library technicians will be equal to or greater than that of librarians. Whether the proposed award classifications should have definitions or descriptors attached to them or whether the assignment of employees to classifications should be left to job evaluation systems

94 One of the fundamental differences between the parties was the issue of whether the assignment of employees to classifications under any award made as a consequence of these proceedings should be left to some system of job evaluation or whether classification of employees should be determined according to award definitions or descriptors.

95 The PEO sought to maintain the status quo by relying on job evaluation systems, rather than descriptors, to grade positions. In this respect, the PEO's applications included a "Grading" clause that relevantly provides: The positions ... shall be graded by the Department Head using an accredited points factor job-evaluation methodology in accordance with guidelines issued from time to time by the Premier's Department, pursuant to Section 8 of the "Act".

96 The DET application, on the other hand, relied on comprehensive descriptors. Examples of the descriptors proposed by DET are set out in Appendix 6 to this decision.

97 Mr Benson submitted that in developing descriptors for the TAFE Award DET had "relied heavily on the broad non restrictive level descriptors in the Higher Education Worker model adopted throughout the Higher Education Sector with the consent of the PSA's federal counterpart, the CPSU". He said that under these higher education descriptors there was no requirement for librarians or library technicians to hold any qualifications recognised by the Australian Library and Information Association ("ALIA") unlike the model proposed by the PSA.

98 The PSA's descriptors were significantly less comprehensive than those proposed by DET. Examples of PSA's descriptors are set out in Appendix 7 to this decision.

99 In submitting that job evaluation systems, rather than descriptors, should be used to grade positions, Mr Benson referred to the longstanding practice in the New South Wales public sector of using accredited job evaluation systems. Ms Casey's evidence dealt comprehensively with the statutory framework relating to classification and grading of positions within the New South Wales public service; the operation of Guidelines issued by the Public Employment Office pursuant to statute (which direct Departmental Heads to classify and grade positions by an accredited job evaluation system or referral to the PEO); and the development of accredited job evaluation systems. The work of employees under both the Crown Employees (Librarians) Award and the Crown Employees (Archivists) Award had been the subject of job evaluation. Given the widespread and entrenched use of job evaluation, Mr Benson contended that such a system should continue to apply to library staff and archivists. He noted that in so far as librarians and archivists were concerned, there had been no industrial disputes notified to the Commission concerning the grading and classification of any employee. Further, Mr Benson submitted no evidence had been produced as to any industrial disputes concerning the classification and grading of jobs in the public service using job evaluation that had not been able to be resolved.

100 Counsel for the PSA submitted that classification descriptors were essential to the proper grading of employees and the Commission should not and could not make an award that did not contain descriptors. Mr Hatcher's submissions in this respect may be summarised as follows:

· 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.

101 In response to the submission on behalf of the PSA that the Commission did not have jurisdiction to make awards that leave it to Department Heads and the PEO to determine which grade and salary in the award is to apply to particular positions and employees, Mr Benson asserted that: …the jurisdictional foundation for its [the PEO] application is to be found in section 10 of the Industrial Relations Act 1996, which empowers the Commission to set fair and reasonable conditions of employment. The dictionary to the Act defines "conditions of employment" as including any provision about an industrial matter. A definition of "industrial matters" is to be found in section 6. It provides "industrial matters" means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry. Section 6(2) sets out examples of industrial matters, including (b) which relates to the remuneration (including rates of pay) for employees in any industry. The term industry is itself defined in section 7 to include any occupation in which persons work. Accordingly, the time honoured jurisdictional base of the Commission has not been cut back by the Industrial Relations Act , 1996. Indeed, if that had been the Parliamentary intent, one would have expected a clear expression to that effect.

102 Dr Jamieson, who appeared for the Interveners, made a number of general submissions dealing with job evaluation, the adequacy of job and work descriptions, qualifications, comparators and rates, award structures, and key elements and requirements for pay equity. Her submissions favoured the PSA's application. On the issue of job evaluation Dr Jamieson submitted that, in the pay equity context, job evaluation is an inadequate and unsatisfactory method of grading employees. Dr Jamieson identified a number of key concerns with the adequacy of job evaluation:

· The tendency of job evaluation to value depth of skills and knowledge over breadth. · The tendency of job evaluation systems to treat the skills and knowledge involved in women's work as invisible. · The tendency to undervalue coordinating and collaborative work.

103 Dr Jamieson submitted: A particular concern in this case relates to the relationship between the job value points as assessed by job evaluation and job grades (as in award classifications). The points to grade tables used for the translation process between librarian jobs and the Crown Employees Award do appear on the evidence provided in both the Pay Equity Inquiry and this case to embed undervaluation.

… Where the same number of job evaluation points (reflecting levels of skill, knowledge and responsibility) can produce a different remuneration outcome in, for example, an administrative and clerical classification (or legal, or engineering, or social work, or education) and a library worker classification, there is real concern about the integrity of the process.

104 Dr Jamieson submitted there were no essential impediments to including level descriptions in awards or for that to set the remuneration. She contended the best guidelines in this respect were the ALIA Guidelines.

105 Mr Benson took issue with a number of the assertions and contentions made by the Interveners and submitted they were lacking in an evidentiary foundation. On the issue of job evaluation, Mr Benson submitted the Interveners failed to take cognisance of the history of the development of the system within the New South Wales public service, its widespread application and the PSA's concurrence with the system.

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.

107 Mr Hatcher contended that the decision of Hungerford J was distinguishable from the present case. Counsel submitted: In reaching his conclusion, his Honour had regard to the power in section 20(1)(e) of the Industrial Arbitration Act permitting the Commission to make an award determining any industrial matter, which comprehended a power to make an award relating to work done or to be done; thus his Honour held that this provided sufficient power to make the award. There is no equivalent to section 20(1)(e) in the Industrial Relations Act 1996. His Honour also observed that under the common salary points system (which was agreed as a concept between the parties), the scale of salaries proposed, based very much as they were on existing rates, related to rates known to the Commission and fixed by various existing awards. Further, the common salary points concept was based on the notion that salaries for employees would continue to be fixed in the normal way by industrial instruments in the future, the common salary points award only being utilised as a source for those salary rates. None of these circumstances apply in the current case.

108 Hungerford J was, of course, dealing with the former Industrial Arbitration Act 1940. Section 10 of the Industrial Relations Act 1996 empowers the Commission to set fair and reasonable conditions of employment. "Conditions of employment" is defined as including any provision about an industrial matter. "Industrial matters" means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry. Section 6(2) of the Act sets out examples of industrial matters, including par (b), which relates to the remuneration (including rates of pay) for employees in any industry. In so far as the issue with which Hungerford J was concerned, it does not seem to us that the terms of the 1996 Act would have produced a different outcome from the one his Honour arrived at under the 1940 Act. Nevertheless, Mr Hatcher submitted: 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.

109 We reject Mr Hatcher's interpretation of the PEO's proposals. The PEO's applications seek new classification structures for library staff and for archivists and new rates of pay for each of the classification levels. In our opinion, there is no jurisdictional impediment to the Commission setting rates of pay for each of the classification levels proposed by the PEO subject to the Equal Remuneration Principle and the relevant provisions of the Act, including s 10.

110 That it might be left to the employer to set the level at which an employee might be classified by appointment or by using a job evaluation system and thereby paid the relevant rate prescribed by the award, does not mean that the Commission has invalidly delegated its wage fixing power in the manner found objectionable by McKeon J in re Maritime Services Board (Cargo Handling Operators) Award [1960] AR (NSW) 424 or by the Full Bench (Beattie, Cook and McKeon JJ) in re The University of New South Wales (Conditions of Employment) Award [1960] AR (NSW) 631. In the first of these cases the fixing of the relevant allowance was left to a Board of Reference. In the latter case it was left to the employer, or fixed by industrial agreement or by another award. That is not the case here. The PEO applications seek awards setting rates of pay for various classifications of library staff and archivists. If such awards were to be made, once an employee was classified at a particular level the rate of pay payable to that employee would be the rate fixed by the award for that classification level. There is not, in our opinion, a concomitant obligation on the Commission, in fixing fair and reasonable rates of pay for work done or to be done, to determine, by award provision, the manner in which, or the basis on which, an employee is to be classified in order to attract jurisdiction.

111 Mr Hatcher submitted that the awards proposed by the PEO do not "create rights capable of enforcement by the Commission in Court Session or an Industrial Magistrate" because "the PEO awards do not say what salary levels are to be paid to what employees." Whether an employee is being paid the correct rate of pay will depend on the provisions of the relevant award and the employee's contract of employment. Where the contract of employment or a statutory instrument allows the employer to use a job evaluation system for determining the level or grade at which an employee should be classified under the award, a court or tribunal would take this into consideration in any determination as to whether the employee was receiving the correct rate of pay under the award, provided that the terms of the contract of employment are not inconsistent with the relevant award. The court or tribunal is not confined to a consideration of the strict terms of the award but will have regard to all of the material relevant to determining the issue before it. 112 Thus, if a librarian under the current award (which does not contain classification descriptors) believed that he or she was not being remunerated at the appropriate grade under the award, a court or tribunal considering an application for recovery of wages under s 365 or s 380 of the Act could consider not only the terms of the award but also the system used by the employer for classifying the employee, that is an accredited job evaluation system used throughout the public sector.

113 Mr Hatcher submitted that even if the Commission found it did have jurisdiction to make the awards proposed by the PEO, it should not accept that the classification structures proposed by the PEO constitute fair and reasonable conditions of employment. He submitted: … 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 which 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.

114 Mr Hatcher further submitted: 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.

115 The evidence in these proceedings and the findings of Glynn J in her Pay Equity Inquiry Report suggest that job evaluation systems are not without their problems. In this regard, Glynn J referred to such matters as: subjectivity; that the standard of the result depends very much on the quality and calibre of consultants; that some job evaluation systems measure certain factors that might lead the results to favour a certain type of job or occupational group; that job evaluation systems may differ in their application and utility. In his evidence, Mr Turner described problems he had encountered with job evaluation in his experience as a PSA organiser in the public sector. These included:

· That many departments did not follow the public service guidelines for job evaluations; · The development of job descriptions that were not agreed to by the incumbents in the position; · A refusal to allow employees to use certain words in job descriptions which might have the effect on increasing the value of the jobs; · Restrictions on participation of members of job evaluation panels; · Some departments not allowing classification committees to be formed, or if they were, refusing them to consider job evaluation outcomes that were clearly wrong.

116 There was also the evidence of Ms Burnham, which is referred to above in the summary of Mr Hatcher's submissions, on the problems associated with job evaluation systems and the need for job descriptors in any new award for library staff and archivists.

117 Despite the problems identified with job evaluation systems they have been widely used within the public sector over a long period of time and a great deal of work has gone into developing and maintaining their application through a joint consultative process. Additionally, we note the lack of disputation over classification issues involving job evaluation and the fact that job evaluation systems were introduced by agreement with the PSA and other unions. There is also some substance in Mr Benson's submission that the existing awards applying to library staff and archivists were made before job evaluation was implemented in the public service and, therefore, the classification structure and salaries applicable to those structures were already in place before job evaluation was applied to those industrial instruments. Mr Benson submitted: Job evaluation has been undertaken in the context of existing structures and pay scales within awards. It has been used to develop points to grades tables for the existing classification structure within awards and to allocate points to fit a grade that exists within the award structure based on the work performed under that structure. If the existing salary structure was undervalued (for whatever reason) points factor job evaluation will neither cause nor correct such undervaluation. It has been developed to fit within the existing award structure, not to create a new structure based on work value.

118 We make no finding about whether the job evaluation systems applying in the public sector generally constitute "fair and reasonable conditions of employment". We have decided, however, that any 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. We observe that it was not only the PSA pressing for the introduction of descriptors but also DET.

119 The form and content of the classification descriptors is also an issue. We are not persuaded that the descriptors proposed by the PSA are adequate. Mr Roberts described them as to be "so vague as to be meaningless" and while we would not put the matter that highly, we doubt the PSA's descriptors would remedy the vice of which it complains. Further, given we have decided not to grant DET's application for a separate award for library staff in TAFE, consideration will also need to be given to whether DET's proposed descriptors should be accommodated or merged into the final versions. Subject to what we say about the classification structure, we will require the parties to confer on the form and content of descriptors with a view to reaching agreement. Any consideration should include but not be limited to, the relevance and appropriateness of:

1. the PSA's proposed descriptors; 2) DET's proposed descriptors; 3) the position descriptions for the State Library (Exhibit 7, Tabs 2-22) and State Records (Exhibit 9, Tab L); 4) the ALIA Work Level Guidelines for librarians and library technicians 1998 (Exhibit 28, Tab 2).

120 In his submissions, Mr Hatcher said that the PSA would have no difficulty with job evaluation techniques being used in conjunction with classification descriptors to grade employees subject, however, to the award descriptors being the final determinant of an employee's classification. Mr Hitchens in his evidence relating to the DET application also envisaged this occurring. As part of any discussion about the form and content of descriptors the parties will be required to consider how job evaluation might operate in conjunction with any proposed descriptors. Whether the 'hard barriers' to promotion or career progression ought be modified and, if so, in what way

121 A "hard barrier" to promotion or career progression means that in order to move to a higher grade it is necessary for the employee to be selected on merit and appointed to the vacant higher-grade position. A "soft barrier" to progression or promotion is constituted by a requirement to gain extra qualifications and/or skills and/or experience but progression or promotion does not depend on the requirement to be appointed to the higher position.

122 Under the current Librarians' Award there is a hard barrier at the top of the Base Grade Librarian level. In order to move to the next level of Senior Librarian Grade 1 a librarian would need to win appointment on merit selection when a position became vacant. The same barrier applies between Senior Librarian Grade 1 and Senior Librarian Grade 2 and then between that level and Divisional Librarian Grade 1 and again between Divisional Librarian Grade 1 and Grade 2. In the case of archivists, promotion from one grade to the next is based on merit selection and the existence of a vacancy.

123 The existence of hard barriers means that a high proportion of employees are classified at the point of the hard barrier in the classification structure. For example, at the State Library, 40 of the 50 base grade librarians are at the top of the base grade librarian scale (that is, year 7). In TAFE, 118 of 175 base grade librarians are at the top of the base grade scale. A similar picture emerges for library technicians.

124 The PSA proposes to eliminate the concept of hard barriers and rely only on classification descriptors for employees to move up grades according to the extent to which their work, skill and responsibilities change. DET and the PEO propose the retention of hard barriers except with respect to transition from their proposed grades 2 to 3 for library staff (or grades 1 to 2 for archivists) for which a qualification/experience requirement is all that is necessary to progress. DET and the PEO contended they are bound by government policy in relation to appointment by merit and that additional training and experience have a finite value, especially when the nature of the work has not changed. Both DET and the PEO drew the Commission's attention to relevant provisions of the Technical and Further Education Commission Act 1990 ("the TAFE Act") and the Public Sector Management Act 1988 ("PSM Act") concerning the role of the Managing Director and Department Heads respectively regarding the employment of staff and the appointment and promotion of staff (TAFE Act: ss 14, 15, 16, 18; PSM Act: ss 24, 25, 26).

125 The DET and PEO proposals in relation to hard barriers would relieve the current impediments to some extent and enable employees to progress further than they otherwise could but the proposals do not go as far as the PSA proposals.

126 Where the academic qualification requirement for classification does not vary from the lowest grade to the highest grade, as is the case with the PSA's proposed structure in relation to librarian, the quality of the descriptors assumes even greater importance in differentiating between the classification criteria applicable at each level. It would be quite unrealistic to allow employees to gravitate through a series of soft barriers from the lowest to the highest grade in an award and thereby impose a potentially unjustifiable burden on the employer eventually to pay all employees at the highest rate of pay under the award.

127 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 between the parties regarding the classification descriptors. However, we note that all the awards and agreements applying to the comparator groups referred to in these proceedings contain hard barriers to promotion or progression. We also consider that hard barriers are consistent with the relevant provisions of the TAFE Act and the PSM Act referred to earlier.

128 We will require the parties to consider the issue of hard barriers in their discussions relating to classification descriptors. Whether there should be specific qualification requirements for grading of employees or, instead, provisions allowing for recognition of equivalent qualifications or experience

129 The PSA's application requires that in order to be classified within a grade, library technicians must possess qualifications suitable for library technician membership of ALIA or, in the case of librarians, associateship (professional membership) of ALIA. The PEO's application in respect of archivists defines an archivist as "an officer who is a graduate and has post graduate qualifications or qualifications deemed acceptable to the Department Head." The PEO's application in respect of library staff requires an employee, to be classified as a Library and Information Worker, to have completed a degree or diploma (depending on the level) or qualifications and/or experience deemed equivalent by the Department Head. Under DET's application the academic qualifications required to be classified vary from level to level but at each level provide an alternative expressed as being "an equivalent combination of relevant experience and/or education and training."

130 In summary, the PSA requires an academic qualification recognised by ALIA for an employee to be classified under its proposed award (except for library assistant). The PEO and DET require an academic qualification or an equivalent qualification that may be based on work experience. The PSA's objection to the PEO/DET proposals is that they would permit persons without the requisite qualifications to be appointed as librarians, library technicians and archivists. Mr Hatcher submitted that: This again is a symptom of a failure to recognise the existence of these professions. Glynn J made a number of important findings as to this question in the Pay Equity Report, namely that it went to the heart of the valuation of the work of librarians, that the lack of a requirement for qualifications in the past may have led to the suppression of wage rates, and it was a matter relevant to the proper recognition of the profession of librarianship.

131 Mr Hatcher further submitted that its proposal reflected the current reality. That is, despite the fact that 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."

132 It was submitted by counsel for the PEO and DET that the proposals to allow for 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. As we understand the position of DET and the PEO, it was that the formal academic qualification requirements were intended to define "the minimum level of professional skill required to qualify for appointment (eg degree or diploma level skills) as distinct from the means by which it is acquired (workplace-based or formal education or a combination thereof)."

133 Mr Benson submitted that a provision allowing "equivalent" training or experience to qualify for classification was consistent with practices in other professions where skills acquired through a variety of means may be assessed as equivalent to those developed in formal education settings.

134 Mr Benson also contended the PSA's proposal that relevant qualifications may only be those acceptable for membership of ALIA were too restrictive and ambiguous. He submitted the Commission did not have jurisdiction to delegate its functions and powers to any other body by, for example, delegating to ALIA the power to set the academic standard for classification under any award applying to library staff: Ridge v Lyon [1910] AR (NSW) 427; Re Maritime Services Board (Cargo Handling Operators) Award; Re University of NSW (Conditions of Employment) Award.

135 We do not accept the validity of the jurisdictional objection raised by Mr Benson in the circumstances of these applications. An award that recognises qualifications acceptable to a professional association is not necessarily a delegation of function or power. In any event, we propose that any definitions or classification descriptors will provide for a qualification acceptable for membership of the ALIA in the case of library staff or the ASA in the case of archivists, or a qualification determined by the Department Head, Managing Director of TAFE or the PEO to be the equivalent thereof. Any equivalent qualification would usually be another academic qualification and may also be relevant work related experience or education and training or a combination thereof in appropriate cases, which would presumably be rare. 136 137 We have decided to allow for equivalent qualifications for the following five reasons:

1. 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.

138 The parties will be required to confer on how the provision for equivalent qualifications is to be expressed in the award. Which of the proposals relating to salary levels properly reflects the work value of librarians, library technicians and archivists

139 Before addressing the question of salary levels, we should indicate that while we have decided to separate the classification structures for librarians and library technicians as proposed by the PSA, we intend to adopt some elements of the PEO's incremental and salary scales in respect of librarians and library technicians. Our reasons for doing so are explained later in this decision. We do not consider it appropriate to adopt the PEO proposal completely since, to do so would not adequately remove the gender undervaluation in the current rates of pay and salary structure at management levels. Further, in respect of archivists we propose to treat them in the same way as librarians and to apply the incremental scale awarded for librarians to archivists. This structure reflects our view that there should be a separation of the professional librarian/archivist classification levels from the paraprofessional library technician levels. The structure also reflects what we consider to be appropriate incremental steps and career paths for the professionals and paraprofessionals to whom it will apply. The new classification structure is set out in Appendix 8 to this decision.

140 In determining the extent of undervaluation of the work of library staff and archivists we agree with the submissions of Mr Hatcher, where he said: Ultimately the task in this case in applying the Equal Remuneration and Other Conditions Principle is to conduct a traditional work value assessment, but on a gender-neutral basis and in the absence of assumptions based on gender. This is not confined to identifying changes in work value in the way prescribed by Principle 6, Work Value Changes (although, as stated, recent changes in work value need to be taken into account). Rather, it involves assessing the work of the relevant employees for the first time in order to determine its proper value. The nature of the task of assessing work value was described by the Industrial Commission in Court Session ( Cook , McKeon and Beattie JJ) in re Crown Employees (Scientific Officers - Division of Science Services, Department of Agriculture) Award [1962] AR 250 at p.278 as follows: In so far as it does involve the valuation of work, the function is not limited to the ascertainment of the market value or of any absolute value discoverable by other means. The function, truly understood, is to consider all relevant features of the work, to take into account all relevant material, including such as will furnish a guide to fair valuation, to bear in mind the contentions of the parties to the arbitration, and, in light of these things, to fix amounts which the tribunal itself deems to be just and reasonable to meet the circumstances of the case. The amounts so fixed will represent the tribunal's view of the value of the case.

This approach remains relevant today, except that the statutory mandate is now to set fair and reasonable conditions of employment (s.10), and the need for gender neutrality is now emphasised. In these proceedings, the Commission has had placed before it an extensive amount of evidentiary material about the work of librarians, library technicians and archivists; accordingly it is well placed to make the type of assessment described in the Scientific Officers Case.

141 We would add that the Equal Remuneration Principle also provides that: 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.

142 As to the evidence regarding work value we have, indeed, received a large amount of evidentiary material describing the nature of the work, skill and responsibilities of library staff and archivists. As we earlier observed, the diversity and quality of the work performed by library staff and archivists were very impressive - and perhaps this is not well understood by the general public because of the stereotyping that has occurred in relation to such work and the fact that much of it is done beyond the public eye.

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.

144 And as recently observed in a recent National Library of Australia publication "… the role of libraries [is] as society's memory and treasure chest, collecting and preserving a range of material that records humanity's history and culture." (Treasures from the World's Great Libraries, National Library of Australia, Canberra, 2001 at page 10).

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).

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).

Incremental scales and new pay rates 146 Although we do not consider there were any differences of significance between the parties as to the nature of the work, skill and responsibilities of library staff and archivists, there were significant differences as to how the work value ought translate into rates of pay. In respect of librarians and library technicians, we have decided to adopt key elements of the PEO's incremental and salary scales updated to reflect the salaries payable under the Crown Employees (Public Sector - Salaries January, 2002) Award from 1 January 2002. 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.

147 The reasons why we have been attracted to elements of the PEO's proposals in relation to rates of pay and incremental scales and why we have rejected the PSA and DET proposals are as follows:

1. 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.

148 Our reasons for otherwise departing from the rates proposed by the PEO, and fixing the rates now awarded are as follows:

1. The evidence established a career industry where the qualifications, knowledge and responsibilities increased as the individual gained experience in performing the various functions at the respective levels. Adopting the same approach to incremental scales as the Full Bench in Re Health and Community Employees Psychologists (State) Award at [60] and [61], we consider that the incremental scales fixed for library staff are fair and reasonable. The incremental scale for Grade 1 librarian/archivist is consistent with the practice in other comparator groups.

2. To adopt the PEO proposal overall would not address the gender undervaluation in the current salaries and salaries structure at levels particularly above the base grade.

Interim Award 149 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. We order accordingly.

150 It will be seen that although we have adopted the joint position of the parties in respect of the common salary points structure in the interim award now made and in the final award that will be made in due course, that is not an approach which we would otherwise have adopted but for the unanimous view of the parties. We have decided that approach should be adopted, as it is consistent with the traditional approach of the Commission and its predecessors to give significant weight to considered agreements reached by experienced industrial parties.

151 However, it must be recognised that the acceptance of the approach has led to some minor distortions in the salary rates fixed, in respect of which there was no alternative but generally to "round up" the salary fixed to the next higher common salary point to avoid the risk that significant salary disadvantage might occur if rates were always "rounded down". Further, we did not consider it appropriate to be bound by the maximum rate fixed by the common salary point scale in fixing the salaries in the interim award and it will be observed that at least one salary level is fixed at a level higher than the highest rate in the common salary points scale.

152 The PSA is directed to file and serve within 28 days of today a document setting out the terms of the interim award to give effect to this decision. Directions to confer 153 During the period of operation of the interim award and in accordance with the terms of this decision, the parties are directed to confer on the terms of a new award to replace the interim award. In particular, the following issues are to be discussed with a view to reaching agreement:

1. The form and content of classification definitions and descriptors to be prescribed by the new award. Any discussion should consider the relevance and appropriateness of: · The PSA's proposed descriptors; · DET's proposed descriptors; · the position descriptions for the State Library (Exhibit 7, Tabs 2-22) and State Records (Exhibit 9, Tab L); · the ALIA Work Level Guidelines for librarians and library technicians 1998 (Exhibit 28, Tab 2); · any other material considered relevant. 2) In conjunction with the discussions relating to definitions and descriptors the parties will consider: · How job evaluation might operate in conjunction with any proposed descriptors; · TAFE's need for flexibility in order to meet its educational service delivery goals; · The issue of hard barriers. 3) The form and content of provisions relating to equivalent qualifications. 4) That part of DET's application seeking the inclusion in an award of specific conditions of employment (Hours of Work, Shiftwork, Overtime, Flexible Working Hours) to apply to library staff in TAFE. 5) The terms of other provisions of the new award not otherwise dealt with in this decision including Anti-Discrimination, Dispute Resolution Procedures, Definitions, Savings of Rights, and Facilitative Arrangements.

154 The PSA is directed to file and serve within 90 days of today a document setting out the terms of the draft award to give effect to this decision and which will replace and rescind the interim award. In the event that there is any remaining disagreement about the terms of the draft award the areas of disagreement are to be identified together with the respective positions of the parties.

155 We do not consider that the making of the interim award which results from this decision, and the making of other directions herein, exhausts or concludes the present proceedings which may be considered as remaining on foot. It is also appropriate that the proceedings should again come before the Full Bench after the conferences that have been directed to occur within 90 days of this decision. Accordingly, this matter is listed for further directions before the Full Bench at 9.30 am on 29 July 2002 at which time the Commission will receive the report from the parties as to the results of their negotiations and whether it is appropriate that a final award be made by consent.

(This attachment is the appendices referred to in above decision. This is followed by a Statement of the Full Bench.)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President KAVANAGH J BOLAND J McKENNA C

Matter No IRC 6304 of 2000 CROWN EMPLOYEES - (LIBRARY & ARCHIVES WORKERS, ALL DEPARTMENTS AND ADMINISTRATIVE UNITS) AWARD Application for Crown Employees (Library & Archives Workers, All Departments and Administrative Units) Award

Matter No IRC 2242 of 2001 CROWN EMPLOYEES (LIBRARY AND INFORMATION WORKERS) AWARD Application for Crown Employees (Library and Information Workers) Award

Matter No IRC 2243 of 2001 CROWN EMPLOYEES (ARCHIVISTS) AWARD Application for Crown Employees (Archivists) Award

Matter No IRC 3239 of 2001 CROWN EMPLOYEES (LEARNING RESOURCE OFFICERS IN TAFE) AWARD Application for Crown Employees (Learning Resource Officers in TAFE) Award

STATEMENT OF THE FULL BENCH [2002] NSWIRComm 55

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.

2 The Applications seek new awards covering librarians, library technicians, library assistants and archivists employed in the New South Wales public service and in the Technical and Further Education Commission.

3 Each of the parties in these proceedings acknowledge that in the female dominated occupations to be covered by their proposed new awards, the work of employees has been undervalued on a gender basis. The parties, however, differ on how this undervaluation is to be remedied. These differences are reflected in the different awards, classification structures, career paths and rates of pay proposed. Thus, the issue before the Commission in these proceedings is not simply whether rates of pay for librarians, library technicians and archivists should move upwards to correct a gender-based undervaluation in rates of pay. What also is to be determined are important questions of appropriate award coverage and the design of classification and grading structures.

4 Having regard to the findings in the Pay Equity Inquiry Report by Glynn J in 1998 and the Pay Equity Case Study into Librarians and Geologists conducted by the Office of the Director of Equal Opportunity in Public Employment in 1998 we find that the work of librarians, library technicians and archivists has been historically undervalued on a gender basis.

5 We also find that not only has the work of librarians, library technicians and archivists been historically undervalued but also that there has been significant increases in the last decade or so in the work, skill and responsibilities of such employees that has not been properly taken into account in fixing their rates of pay. In coming to that conclusion we consider that librarians and archivists fit comfortably into the group of occupations which has historically been regarded as the public service professions, which includes legal officers, engineers, teachers, scientific officers, psychologists and professional officers. We also consider that librarians and archivists may also be properly considered as professions in the more general sense.

6 In remedying the undervaluation of the work of librarians, library technicians and archivists we have given careful consideration to the competing solutions proposed by the various parties in these proceedings. In doing so we have decided that:

· 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).

We order accordingly. 8 It will be seen that although we have adopted the joint position of the parties in respect of the common salary points structure in the interim award now made and in the final award that will be made in due course, that is not an approach which we would otherwise have adopted but for the unanimous view of the parties. We have decided that approach should be adopted, as it is consistent with the traditional approach of the Commission and its predecessors to give significant weight to considered agreements reached by experienced industrial parties.

9 However, it must be recognised that the acceptance of the approach has led to some minor distortions in the salary rates fixed, in respect of which there was no alternative but generally to "round up" the salary fixed to the next higher common salary point to avoid the risk that significant salary disadvantage might occur if rates were always "rounded down". Further, we did not consider it appropriate to be bound by the maximum rate fixed by the common salary point scale in fixing the salaries in the interim award and it will be observed that at least one salary level is fixed at a level higher than the highest rate in the common salary points scale.

10 The PSA is directed to file and serve within 28 days of today a document setting out the terms of the interim award to give effect to this decision.

11 During the period of operation of the interim award and in accordance with the terms of this decision, the parties are directed to confer on the terms of a new award to replace the interim award. In particular, the following issues are to be discussed with a view to reaching agreement: 1) The form and content of classification definitions and descriptors to be prescribed by the new award. Any discussion should consider the relevance and appropriateness of: · The PSA's proposed descriptors; · DET's proposed descriptors; · the position descriptions for the State Library (Exhibit 7, Tabs 2-22) and State Records (Exhibit 9, Tab L); · the ALIA Work Level Guidelines for librarians and library technicians 1998 (Exhibit 28, Tab 2); · any other material considered relevant. 2) In conjunction with the discussions relating to definitions and descriptors the parties will consider: · How job evaluation might operate in conjunction with any proposed descriptors; · TAFE's need for flexibility in order to meet its educational service delivery goals; · The issue of hard barriers. 3) The form and content of provisions relating to equivalent qualifications. 4) That part of DET's application seeking the inclusion in an award of specific conditions of employment (Hours of Work, Shiftwork, Overtime, Flexible Working Hours) to apply to library staff in TAFE. 5) The terms of other provisions of the new award not otherwise dealt with in this decision including Anti-Discrimination, Dispute Resolution Procedures, Definitions, Savings of Rights, and Facilitative Arrangements. 12 The PSA is directed to file and serve within 90 days of today a document setting out the terms of the draft award to give effect to this decision and which will replace and rescind the interim award. In the event that there is any remaining disagreement about the terms of the draft award the areas of disagreement are to be identified together with the respective positions of the parties.

13 We do not consider that the making of the interim award which results from this decision, and the making of other directions herein, exhausts or concludes the present proceedings which may be considered as remaining on foot. It is also appropriate that the proceedings should again come before the Full Bench after the conferences that have been directed to occur within 90 days of this decision.

14 Accordingly, this matter is listed for further directions before the Full Bench at 9.30 am on 29 July 2002 at which time the Commission will receive the report from the parties as to the results of their negotiations and whether it is appropriate that a final award be made by consent. Liberty to apply in relevant respects is granted to the parties in the meantime.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.