WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2015 WAIRC 00485 CORAM : PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT HEARD : TUESDAY, 9 JUNE 2015, THURSDAY, 11 JUNE 2015, TUESDAY, 16 JUNE 2015 DELIVERED : FRIDAY, 3 JULY 2015 FILE NO. : PSA 21 OF 2014 BETWEEN : BRUCE MIGHALL Applicant AND DIRECTOR GENERAL OF HEALTH AS DELEGATE OF THE MINISTER FOR HEALTH IN HIS INCORPORATED CAPACITY UNDER S7 OF THE HOSPITALS AND HEALTH SERVICES ACT 1927 AS THE WA COUNTRY HEALTH SERVICE Respondent CatchWords : Reclassification appeal – Application to dismiss for want of prosecution – Higher level duties – Work value change – Comparison of claims in 2006 and 2014 – Organisational change and restructure Result : Application to dismiss for want of prosecution dismissed Representation: Applicant : Ms P Marcano Respondent : Mr J Shepperd and Mr J Ross Reasons for Decision 1 This is a reclassification appeal filed on 9 September 2014. 2 The respondent has applied to have the appeal dismissed for want of prosecution, citing a lengthy history of the applicant initially seeking a reclassification of one of two Records Clerk Level G1/2 positions to Records Officer Level G4 classification, lodged with the employer on 18 September 2006, again in 2013 and finally in 2014. 3 The 2006 claim was partially successful in that the CEC approved of a reclassification to Records Officer Level G3 on 10 December 2010. The respondent says the applicant relies on essentially the same changes as were relied on in 2006, which at that time justified the reclassification to Level G3. 854 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 95 W.A.I.G. 4 The applicant disputes the series of events relied on by the respondent and says that following the submission of the original claim for reclassification in 2006, there was negotiation between the then applicants (one of whom is the current applicant) and their employer for them to remove certain aspects of the claim which they asserted warranted Level G4 and that Level G3 would then be supported. It then went to the CEC which approved Level G3. The applicant says that the higher level duties which were removed as part of that negotiation are now present in the current claim. A comparison of the E3 Position Evaluation Questionnaires of 18 September 2006 and 29 May 2014 and the E4 Reclassification Request Forms of the same dates and revised JDFs demonstrate that. The applicant does not seek the G4 level from 2006. 5 Therefore, the applicant says that there has been no lack of prosecution of the claim which arose in 2006. That matter was resolved by 2010 by negotiation, and this claim relates to the 2013 – 2014 period, notwithstanding that some of the matters, the subject of the original 2006 claim, which were removed, are now reflected in the current claim. Consideration and conclusions 6 Attachment 8 of the respondent’s documents contains a series of emails from 2010. An email from Murray Phillips, Senior Human Resource Officer, WA Country Health Service – South West addressed to Ms Marcano, the applicant’s agent, dated 20 October 2010, the subject of which was ‘RE: Reclassification – Bruce Mighall’, reads: Apologies for the delay. The revised submission has not yet been resubmitted to the CEC. I have revised the JDF in discussion with Bruce and that he is agreeable for the reclassification to seek an increase in classification of one level from Level 1/2 to Level 3. I have also obtained the A/RD endorsement for this and completed an updated addendum. I am seeking the advice of the Area Officer HR to ensure that what I have completed will allow a final decision to be made and that it won’t bounce back again. I am reluctant to completely redo the reclassification report as I don’t want to jeopardise the protected date for reclassification back-pay. 7 I take it that the Bruce Mighall referred to in the subject heading is the applicant in this matter and is the person referred to in the email as ‘Bruce’. 8 Based on this information, I accept the applicant’s submission that as part of the negotiation or discussions between the applicant, the Union on his behalf and the respondent in 2010, the applicant agreed for his request for reclassification to be downgraded from seeking Level G4 to Level G3 and that the Job Description Form (the JDF) was revised to bring the claimed duties within that level. 9 Further, an examination and comparison of the E3 Position Evaluation Questionnaires and the E4 Reclassification Request Forms for 18 September 2006 and 29 May 2014 demonstrate changes in the claimed aspects of the position. For example, in the E3 form, the years of experience required to perform the position which were initially claimed as one to three years are now four to six years. In the E4 form, there are differences in respect of question 3 regarding significant changes in work value, to amend ‘monitor the updating and maintenance of the electronic document records management system (EDRMS)’ to managing that system, and managing and maintaining the electronic application for archiving paper based records to the offsite storage facility (emphasis added). There are other changes which relate to managing rather than administering and claims of an increased level of initiative and discretion in assessing the importance and urgency of matters. In respect of question 4, in lieu of dealing with certain matters in the Operational Records Manager’s absence, it now refers to changes having occurred due to the abolition of the Records Manager’s position. 10 During the process in 2010, a proposed JDF was included with the claim which said that the position ‘[d]evelops and provides training sessions’ and ‘[d]evelops training material’. This was subsequently amended to delete reference to developing training sessions and training materials so that the position merely delivered training from materials developed by others. This too goes to support that the claim was downgraded from Level G4 to Level G3 at that time. 11 In all of the circumstances, I am satisfied that this is not the same claim that was ultimately considered and reflected in an approved change to Level G3 arising from the 2006 application in 2010. That original application was modified for the purposes of the matter proceeding at that point. This is a new claim in spite of some of the aspects of the claim being initially included in the 2006 claim, but were later withdrawn. 12 The respondent also argues that the applicant made the same claim in 2013 and that the 2014 claim is a further claim. However, the evidence suggests that the 2014 claim is an amendment to the 2013 claim. This was one of the options the employer appears to have suggested to the applicant at the time. 13 I also note that there is no suggestion that in May 2014, when the request for reclassification was lodged with the employer, the respondent objected to that reclassification claim being considered. It then went to the CRC in September 2014 and was rejected in November 2014. This appeal relates to the rejection of the claim in November 2014. 14 The respondent also argues that the workplace has moved on since the claim was made in that a new position of Recordkeeping Compliance Officer has been created at Level G4 which overtakes this position. This new position was approved for creation on 23 March 2015 following a Classification Evaluation Report signed on 7 January 2015. 15 The changed circumstances of the creation of the new position do not cancel out the applicant’s right to have his reclassification claim based on increased work value, which arose in 2013 and was amended in 2014, determined. Organisational change and restructure does not negate the prospect that at least for some period, the duties, responsibilities and skills of the position may have been subject to work value change (Director General, Department of Education, PSA 76 of 1978, per Fielding C). 16 The question still arises for determination as to whether the applicant is able to demonstrate that the position he occupies has been the subject of work value change since its last assessment, justifying a higher level of classification. That will be the test. 17 Accordingly, the applicant is entitled to proceed with the reclassification appeal. 95 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 855 2015 WAIRC 00487