Western Australian Industrial Relations Commission

Claims for reclassification of positions

The Public Service Arbitrator deals with disputes about the level of salary, classification or title of a position or group of positions occupied by government officers: Industrial Relations Act 1979 s 80E(2)(a). These disputes may be referred to the Arbitrator by the government officer concerned or by the relevant union or by the employer: s 80F(2). A claim for reclassification is commenced by the occupant of a position filing a Form 10 — Notice of appeal to Public Service Arbitrator / Railway Classifications Board.

What should I do before making a claim?

It is important for an employee to make a request for reclassification to the employer directly before making a claim to the Arbitrator. The request should be accompanied by enough information to enable the employer to make a decision about the request. The Arbitrator will usually assess the position at the point in time ‘when a sufficiently detailed request for review has been submitted’: Frontline Clerks’ Case [2013] WAIRC 836; (2013) 93 WAIG 1565 [155]. New information may come to light after the employer’s initial review, and the Arbitrator may take that into account. However, as much as is possible, information that has not already been considered by the employer should not be relied on in a claim for reclassification.

Employees should ask their employer’s human resources section how to make a request for reclassification.

See also, ‘If a claim is successful, will the new classification be backdated?’ below.

Who may apply?

To make a claim for reclassification, an employee must be a government officer.

Is there a fee to lodge a claim?

No, there is no fee to lodge a claim for reclassification.

Is there a time limit for making a claim?

There is no time limit for claims for reclassification; they ‘may be made at any time’. An employee cannot make more than one claim within a 12 month period ‘unless the duties and responsibilities of [their] office are altered’: reg 106(3). However, a claim should be pursued within a reasonable time of the employer’s decision or it may be dismissed for want of prosecution.

After a claim is filed, what happens?

There is a Practice Direction which sets out the procedure for a claim for reclassification to be heard and determined: Practice Note 1 of 2018 – Reclassification Applications.

The Arbitrator will not take any action with respect to a claim until following have taken place:

  • The employee has served a copy of the Form 10 on the respondent, and has filed a Form 4 – Statutory declaration of service in the Commission.
  • The employer has had a reasonable opportunity to consider all of the information available, and has reached a decision.

Once those preliminary matters have taken place, a claim for reclassification will usually involve the following process:

  1. The Arbitrator will list the matter for conference, to conciliate between the parties with a view to reaching agreement. If there is no agreement, then the arrangements set out in the Practice Direction will apply, but the Arbitrator may adopt different arrangements where the circumstances require.
  2. The parties will usually engage in discovery on an informal basis.
  3. The matter will be heard and determined by the Arbitrator, in a formal hearing room environment. This process is set out in point 5 of the Practice Direction.
  4. The Arbitrator will issue reasons for decision and an order.

Can a decision of the Arbitrator be appealed?

Claims for reclassification determined under s 80E(2) cannot be appealed to the Full Bench: s 80G(2).

If a claim is successful, will the new classification be backdated?

If a claim for reclassification is successful, the operative date will usually be the date the employee ‘formally notified’ the employer that they seek reclassification: see the Practice Direction. In Flashman & Others v Department of the Attorney General [2012] WAIRC 294; (2012) 92 WAIG 698, the Arbitrator made the following comments:

[T]he employee cannot rely upon the earliest time on which he or she raises the request with the employer, unless the employee has at that time provided a detailed and substantive case to the employer rather than simply a claim unsupported by adequate material, and puts their detailed and substantive case later. In this circumstance the operative date for any increase in classification level would be the date of the complete case being submitted for consideration. While the case put by the employee should be as complete as possible, this does not mean that such a case is incomplete merely because the employer might seek some clarification, elaboration or further information.

A successful claim for reclassification may go back further than the date of the application: see Jones v Western Australian Police [2015] WAIRC 981; (2015) 95 WAIG 1777 [57] – [58]. However, the employee will need to satisfy the Arbitrator that the higher level duties, ‘if warranting reclassification, remained in existence’ as at the date of the hearing: Newman and Steel v TransPerth [2011] WAIRC 875; (2012) 92 WAIG 2104 [7].

What are the essential elements of the claim?

  1. There must be a significant net increase in work value of the position; and
  2. The particular increases in work value must not have formed the basis of any previous reclassification.

Work value is determined based on the requirements of the position, not the personal qualities, qualifications, attributes, or diligence of the individual who happens to occupy the position at a given time.

What constitutes an increase in work value?

For the position to warrant an increase in classification level on the basis of increased work value, the employee needs to demonstrate that since the position was last reviewed:

  1. the work;
  2. skill;
  3. responsibility of the position; or
  4. the conditions under which the work is performed;

have changed, and that such change constitutes a significant net addition to work value to warrant upgrading to a higher classification. A change may occur subtly or gradually, but on examination prove to be significant.

The work value test is set out in the State Wage Order. The relevant part of the 2016 State Wage Order ([2016] WAIRC 362; (2016) 96 WAIG 654) is set out below. You should check with the Commission’s Library to make sure you have the most recent version because the State Wage Order is revised every year and may have changed since the date of this information sheet.

  1. Work Value Changes
  • 7.1 Applications may be made for a wage increase under this Principle based on changes in work value.
  • 7.2 Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification.
  • 7.3 In addition to meeting this test a party making a work value application will need to justify any change to wage relativities that might result not only within the relevant internal award classifications structure but also against external classifications to which that structure is related. There must be no likelihood of wage “leapfrogging” arising out of changes in relative position.

    7.4 These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this provision.

    7.5 In applying the Work Value Changes Principle, the Commission will have regard to the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed.

    7.6 Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole.

    7.7 The time from which work value changes in an award should be measured is any date that on the evidence before the Commission is relevant and appropriate in the circumstances.

    7.8 Care should be exercised to ensure that changes which were or should have been taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this provision.

    7.9 Where the tests specified in 7.2 and 7.3 are met, an assessment will have to be made as to how that alteration should be measured in money terms. Such assessment should normally be based on the previous work and the nature and extent of the change in work.

    7.10 The expression “the conditions under which the work is performed” relates to the environment in which the work is done.

    7.11 The Commission should guard against contrived classifications and over-classification of jobs.

    7.12 Any changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed, taken into account in assessing an increase under any other provision of these Principles, shall not be taken into account in any claim under this provision.

    What is not an increase in work value?

    The Arbitrator has considered a range of issues which have been used to justify claims for reclassification. The following comments have been made about some of those issues which may not constitute an increase in the work value of a position:

    • Use of an assessment tool, such as BiPERS

    These provide a guide but are not an absolute, determinative tool.

    … whilst BIPERS attempts to provide an objective assessment, the application of the tool is subject to the view of the person undertaking the assessment. Job classification systems do not and should not be considered to provide absolutely determinative, objective, scientific answers. It may be said that the classification of positions within the public service is more art than science. If BIPERS were purely a scientific checklist, then all that would be necessary would be a strict assessment and a numerical rating according to the ten factors without regard to all of the other considerations … set out in the Approved Procedures. However, it is a tool which provides an indication of or guide to the range within which the position is likely to fall.

    Willers v Workcover [2010] WAIRC 183;
    (2010) 90 WAIG 333 [151]

    • Increase in workload

    … the changes affecting the [Frontline Clerical Positions] may include shorter stays in hospital which may affect, for example, the work volume of ward clerks, and increased presentations of patients in Emergency Departments requiring speedier attention to comply with the [Four Hour Rule programme]. The impact for clerical staff is on workload and work pressure …[rather than]… increased skill and responsibility.

    Frontline Clerks’ Case [2013] WAIRC 836;
    (2013) 93 WAIG 1565 [92]

    • New technology, computer skills and literacy

    It is claimed that the requirements to utilise particular computer skills has increased significantly and computer software changes, sometimes increasing complexity and at other times reducing it. However, this is common in contemporary workplaces and has gone on for many, many years. Of itself, it does not add markedly to work value unless something additional is involved.

    Balshaw v Director General of Health [2015] WAIRC 763
    (2015) 95 WAIG 1488 [27]

    The officers who learn to use the new information technology systems obviously acquire a raft of new skills and abilities associated with those systems. It does not follow logically that the work value of the prime function has automatically increased. The farmer in 1935 who learnt to drive a tractor so as to plough three times the area than that which could be covered each day by his team of horses was at the end of the day performing the same function i.e. tilling the soil.

    Frontline Clerks’ Case [2013] WAIRC 836;
    (2013) 93 WAIG 1565 [145]

    The mere number of computer applications is not indicative of any increased level of skill. Rather, it may be a broadening of skill at the same level.

    Frontline Clerks’ Case [2013] WAIRC 836;
    (2013) 93 WAIG 1565 [151]

    • Training and mentoring

    There is nothing unique or of a higher skill or responsibility level in employees, at every level, training and orientating new staff members, be that at their own level or higher, as to the requirements of their own positions. Once a person has become familiar with the requirements of their own job, it is not difficult to show a suitably qualified person how that job is done. Further, when a person is familiar with a particular computer package, it requires no higher level of skill to help someone who is having difficulty. If they are unable to resolve the problem, there are specialist IT staff to assist. There is no real difference between the ordinary training and orientation of a new person of the same level or the orientation of, for example, a nurse, in the clerical aspects of the use of a particular computer programme. These situations apply to FLCPs (Frontline Clerical Positions) whether training new or relief FLCP holders or clinical staff about computer records access. This does not constitute a real change, nor is it beyond the requirements of Level G2.

    Frontline Clerks’ Case [2013] WAIRC 836;
    (2013) 93 WAIG 1565 [180]

    • Performing duties that were once performed by a higher level position

    A number of examples of duties and responsibilities which were previously allocated to higher level positions have been taken on by the [Front Line Clerks]. Examples include the ED Clerks obtaining financial and insurance fund information from patients after hours and encouraging privately insured patients to claim on their health fund, a duty undertaken by a higher level position during ordinary business hours. However, this duty of itself requires no higher level of skill or responsibility to be exercised by the [Front Line Clerks] than they exercise in obtaining other information from patients presenting to ED. ... It fits within the context of their other work at Level G2. When that work is performed by the higher level position, it is only a small part of the job where the other duties and responsibilities are generally at a higher level.

    Frontline Clerks’ Case [2013] WAIRC 836;
    (2013) 93 WAIG 1565 [126]

    • Personal qualities of the occupant of a position

    It is not the personal qualities and skills or diligence of the occupant, it is the objective requirements of the position, which are the basis of the assessment of the classification.

    It is the requirements of the position, not the skills, abilities, experience or competence of the person who fills the position which is relevant.

    [I]t is the job the employer requires to be performed, and the way the employer has structured the arrangements under which the work is performed, which are the bases of assessment.

    Frontline Clerks’ Case [2013] WAIRC 836;
    (2013) 93 WAIG 1565 [63] – [66]

    • Change to the position of itself

    … [employees] need to demonstrate that since the positions were last reviewed … the work, skill or responsibility of these positions or the conditions under which the work is performed have changed, and that such change constitutes a significant net addition to work value such as to warrant upgrading to a higher classification. It should be noted, too, that change of itself is not sufficient. It is change which brings a higher level of work, skill or responsibility or changes to the work environment which make it work of a higher level. It is a test to be strictly applied.

    Frontline Clerks’ Case [2013] WAIRC 836;
    (2013) 93 WAIG 1565 [57]

    • Similar duties differently described

    A number of Booking Clerk, Radiology, Level G2 positions in the MRI Unit, RPH as at 31 July 1992, had duties of a similar nature to those included as part of the claim for all Booking clerks in the Division of Imaging Services at RPH (…). For example, the 1992 job required ‘Prepares and forwards instructions and preparation for M.R.I./C.T. examinations’ and ‘Completes M.R.I./C.T. pre-examination documentation’. These duties are merely differently described in the Reclassification Request Form, for example, ‘liaise with ward staff to determine if specific tasks need to be followed ie what preparation, contrast, medication is required? Is Cannulating required?’ It seems that the requirements remain much as they were.

    Frontline Clerks’ Case [2013] WAIRC 836;
    (2013) 93 WAIG 1565 [126]

    • The work of the position is tough or confronting

    I also acknowledge the circumstances described by Ms Metcalfe where Emergency Department Clerks are faced with families in distress and she has also described the other circumstances of violent and mentally ill patients attending. She says that some new Emergency Department Clerks are unable to cope with these circumstances and that ED Clerks need to have a lot of fortitude to undertake their work. I accept that this is so. However, it does not necessarily constitute a significant net addition to work value.

    Frontline Clerks’ Case [2013] WAIRC 836;
    (2013) 93 WAIG 1565 [195]

    • Increased cultural and language issues

    Throughout the history of this State, there have been waves of migrants from different parts of the world. Over the years, [Frontline Clerical Positions] have been faced with changing and growing diversity of cultural groups. This requires patience and maturity in communication. They are now performing the same work, utilising the same level of communication skills, but in dealing with a broader range of people. This is nothing new to these positions. It was part of the successful claim for reclassification for the Ward Clerk at Bentley Hospital in 1992.

    Frontline Clerks’ Case [2013] WAIRC 836;
    (2013) 93 WAIG 1565 [198]

    • Filling forms based on information in a manual

    Although it is said that the Waitlist Clerks ‘determine’ the length of hospital stay for the patient where the doctor has not completed that section of the Form, this is not so. There are standards already determined. The Waitlist Clerk refers to a manual which provides that information according to the nature of the surgery. In fact, the scope for the exercise of any discretion by the Waitlist Clerks is quite limited. They do not perform any work which might be classified as clinical. Their role and function is clerical.

    Frontline Clerks’ Case [2013] WAIRC 836;
    (2013) 93 WAIG 1565 [243]

    • Working in areas where clients are more questioning or demanding

    A number of the issues relied on by the applicants as constituting the changes to the role include increased complexity in the community and school community environment and more external scrutiny of their actions. David Forster gave evidence of his role in Geraldton in 2001-2002 and now being in the western suburbs of Perth, where he says parents may be better educated, more demanding and have higher expectations. However, this goes to geographical or socio-economic differences rather than a changed work environment for the same position over time. It may go to whether there are different expectations of CROs in different regions. However, the evidence suggests that most regions have their own peculiarities.

    Dornan and Others v Department of Education [2014] WAIRC 325;
    (2014) 94 WAIG 614 [42]

    • Introduction of statutory licencing requirements

    The mere introduction of a statutory requirement to hold a certificate of competency does not of itself constitute a significant net addition to work requirements. It must be demonstrated that there has been some change in the work itself or in the skills and/or responsibility required. However, where additional training is required to become certified and hence to fulfil a statutory requirement a wage increase may be warranted.

    Australian Liquor, Hospitality and Miscellaneous Workers Union re: Child Care Industry (Australian Capital Territory) Award 1998 and Children’s Services (Victoria) Award 1998 – re: Wage rates [2005] AIRC 28 [190]

    Approved procedures

    Approved Procedure 1 applies to reclassification applications up to and including Level 8. The main effect of Approved Procedure 1 is that the person requesting reclassification must have been:

    • in the position; and
    • performing the higher duties that warrant reclassification;

    for a continuous period of at least 12 months.

    Approved Procedure 1, issued by the Public Sector Commission, allows the employer to use the BiPERS assessment tool (see below) to assess a position.

    See the Public Sector Commission for more information: Approved Procedure 1.

    For positions over Level 8, see Approved Procedure 2.

    BiPERS

    BiPERS is an assessment tool used to classify the majority of public sector positions in the WA government. BiPERS takes account of a number of factors, including the seniority of the position, the level of skill and responsibility, and the size of the organisation, to produce a score. The score is used to assist the employer to determine the correct level of classification of a position.

    The Public Sector Commission has more information on how the BIPERS assessment tool is used:

    If a position is classified above Level 8, a different assessment tool is used. For these senior positions, the Public Sector Commission carries out the assessment and makes the decision.

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