Harris v Murrurundi Shire Council

LEGISLATION CITED: Industrial Relations Act 1996 Local Government Act 1993

CASES CITED: Harris v Murrurundi Shire Council (1995) NSWIRC 96

APPLICANT: Mr N Martin, Industrial Officer, New South Wales Local Government, Clerical, Energy, Airlines & Utilities Union LEGAL REPRESENTATIVES: RESPONDENT: Mr J Keech, Industrial Officer, NSW Shires Association, Gilgandra Shire Council

DECISION: - 36 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BISHOP C 1 October 2010

New South Wales Local Government , Clerical, Administrative, Energy, Airlines & Utilities Union and Gilgandra Shire Council

Notification under section 130 of the Industrial Relations Act 1996 of a dispute between New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union and Gilgandra Shire Council re grading of position

1 This matter concerns a notification made pursuant to s.130 of the Act of a dispute between the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("the USU") and Gilgandra Shire Council ("the Council").

2 The dispute was notified to the Industrial Registrar on the 1 May 2009 and was in the following terms:- "The question, dispute or difficulty concerns the following industrial matter: a) The grading of the Parks Foreman's position with Gilgandra Shire Council. b) The position is currently held by Mr Brad Reid and is graded at Grade 14. The Union contends that the position should be graded at Grade 15, consistent with other like positions at the Council". 3 The matter was listed for compulsory conference before me on the 22 May 2009, in Dubbo, at which time conciliation took place. The parties were directed to confer and the matter set down for report back by teleconference on the 12 June 2009, however this date was vacated and re-listed on the 29 June 2009.

4 As no agreement could be reached a Certificate of Attempted Conciliation was issued pursuant to s.135 and the matter set down for the 14 July 2009 for the purpose of issuing directions. The matter was listed for further report back on the 7 August 2009, however this date was also vacated at the request of the USU and re-listed on the 5 November 2009. 5 On 5 November 2009, directions were issued as to the filing and exchange of witness statements as well as the form of orders sought to be made by the Commission. The matter listed for inspections and hearing in Gilgandra on the 11 March 2010.

6 The USU sought the following orders (Exhibit 6): 1. Recognise that the position of Parks Foreman is graded at Grade 15 within the Gilgandra Shire Council Salary System. 2. That Gilgandra Shire Council pay backpay as outlined in the small claims application filed 9/3/2010. 7 The grounds upon which the orders were sought were as follows: 1. Gilgandra Shire Council pay their employees under a Salary Matrix consisting of 22 Grades and Entry Level through to Step 4. 2. The Salary System is developed under the auspices of the Local Government (State) Award. 8 The particulars of those grounds were set out as follows: 1. That the evaluation process is incorrect in that the Job Description has undervalued/scored a number of key areas i.e. a. 55. Cemetery Management and Control. b. 77. Purchasing and Procurement. c. 145. Quantity calculation and Estimating. d. 228. Traffic Control. e. 229. Handling of Chemical Properties.

9 The USU also filed the 'Particulars of Small Claim' as follows: A. The applicant Mr Brad Reid, xxxxx, Gilgandra, NSW, 2827 B. claims that, Gilgandra Shire Council C. is liable to pay to the applicant, D. the amount of $12,199.98 E. under the following industrial instruments: The Local Government (State) Award 2007 and the Gilgandra Shire Council Salary System. F. The amount claimed is calculated as follows: 1) November 2007 to October 2008 difference of Grades between Grade 13 and Grade 15 = $158.53 per week x 52 weeks = $8243.56, 2) November 2008 to November 2009 difference of Grade between Grade 14 and Grade 15 = $56.06 per week x 52 weeks = $2915.12, 3) November 2009 to March 2010 difference of Grade between Grade 14 and Grade 15 = $57.85 per week x 18 weeks = $1041.30. 10 The Shires Association of New South Wales (the Shires Association) appeared on behalf of the Council, opposed the orders sought by the USU and alternatively sought that the Commission find as follows: a) The employee has been placed accordingly in his grade and level within Council's Salary System; b) The OOsoft/Wyatt job evaluation system is a tool to assist Council in meeting its requirements under the Award and is not an implied term of the contract (as asserted by the applicant ). c) Council fairly and equitably conducted the review of Mr Reid's position in line with the obligations placed on it by the Award and Council's job evaluation process. 11 The Commission and the parties attended the Gilgandra Shire Council Cemetery on 11 March 2010 for the purposes of considering the type of work and duties carried out by Mr Reid at that location. Following that inspection the hearing took place in the Gilgandra Shire Council Chambers. 12 Mr Martin, Industrial Officer, appeared on behalf of the USU and his member, Mr Reid, who gave oral evidence in addition to the witness statements he had filed (Exhibits 1 and 2). 13 Mr Keech Industrial Officer, Shires Association, appeared on behalf on the Council and called the following witness who had also filed a witness statement : Mr Paul Mann - General Manager, Gilgandra Shire Council (Exhibit 4) 14 Further conciliation was also conducted during the course of the hearing but was unsuccessful. Evidence concluded on 11 March 2010 and the parties subsequently agreed on appropriate dates for the filing and exchange of written submissions which were confirmed by the Commission in Chambers. Ultimately those submissions were filed as follows: USU submissions ................................16 April 2010 Shires Association submissions...........3 May 2010 USU submissions in reply...................27 May 2010

Background and chronology - based on the evidence and submissions as filed.

15 The Local Government (State) Award 2007 (364 IG 491) ("the Award") provides the basis by which councils must create a salary system that determines the rates of pay for its employees. The rates of pay in councils' salary systems are underpinned by the Award minimum rates of pay. 16 Relevant provisions of the Award are as follows: a. Clause 5, Skill Descriptors - sets out the range of descriptors that distinguish the skills required by each band and level of the Award in the following areas: · authority and accountability; · judgement and problem solving; · specialist knowledge and skills; · management skills; · interpersonal skills; · qualifications and experience. b. Clause 6, Rates of Pay - provides that councils shall introduce a salary system to complement the skills based structure and rates of pay of the Award. c. Clause 7, Salary System - requires that the structure of a salary system consist of grades that complement the skill descriptors of the award; that positions shall be assigned a salary grade within the salary structure; to be assigned a grade a position's relative value, in terms of the skills applied on the job must be assessed against this bill descriptors assigned to the grades in a Council salary structure; a grade shall contain a number of salary point/steps for progression that are over the entry-level rates of pay; an employee can expect to progress through a positions salary range in accordance with the provisions of the award and a particular councils "in-house" progression rules. However progression between positions is subject to satisfying the requirements of section 349 of the Local Government Act 1993 NSW. 17 Mr Mann has been employed at Gilgandra Shire Council for 23 years and has held the position of General Manager for over 16 years. 18 Mr Reid has been employed by Gilgandra Shire Council since February 1988 and was appointed to the position of Parks and Gardens Foreman in May 2005. He commenced the Foreman's position at Grade 13 and was appraised using version 20 of the eComp evaluation system which evaluated his position at Grade 14, effective July 2007. He currently occupies Grade 14, Step 4 which is equivalent to Band 2, Level 2. 19 He holds a range of relevant qualifications including a TAFE Horticultural Certificate III, (and has almost completed certificate IV), Certificate 3 Grave Digging, Smart Chemical Use (Chemcert); a range of licenses - truck licence (class three), backhoe/loader, forklift; and has undertaken a range of training and gained accreditation in inter alia, traffic control, playground inspections, certification to train small groups, Supervisor Level I, confined spaces. 20 As a consequence of dissatisfaction with the results of his job evaluation Mr Reid sought to have his position re-evaluated. A range of discussions during 2007/2008 took place with the then Director Works and Technical Services and the General Manager, with Mr Reid represented by USU Organiser Mr Terry Dray. Mr Reid formally appealed the grading at the beginning of August 2008 and at the beginning of October 2008, following the appeal process, he was formally advised that Council had determined that his grading would remain at Grade 14. 21 The initial evaluation of Mr Reid's position was 1240 points, the final evaluation assessed his position at 1319.53 points placing him within Grade 14. Grade 15 rolls over at 13,021 points.

22 In the evaluation process applied to the position of Parks and Gardens Foreman, Mr Reid and the Council disagreed on the relative assessment of the following specific Knowledge and Skill levels: 55. Cemetery Management & Control 77. Purchasing & Procurement 145. Quantity Calculation & Estimating 228. Traffic Control 229. Handling of Chemical Properties 23 Mr Reid maintained that he was required to have a 'solid working knowledge' of the above items, whereas Council's assessment was that the position only required 'basic knowledge'. 24 The issue of 'Handling of Chemical Properties' was first raised during the conciliation process of these proceedings by the Commission as a result of the information conveyed by the parties and as a matter deserving of further examination and consideration in settlement of the dispute between the parties. This will be commented on further below. The Inspection

25 An inspection was conducted of Gilgandra Cemetery, which is under the control and management of Gilgandra Shire Council. Mr Reid outlined the duties that he carried out in relation to grave digging and general maintenance. He also indicated that he had on occasion to deal with the problem of feral animals (rabbits). It was readily observed that the soil was of a very sandy quality. The Commission and the parties were shown an area that had been subject to attempted rabbit burrowing and clearly the soil was most amenable to the digging of burrows. Mr Reid outlined the various duties involved at the Cemetery and, where relevant, where these duties might be undertaken. These matters were also traversed in evidence below.

26 I have generally only referred to those areas I consider of particular relevance and sufficient significance in relation to be issues to be determined in this matter.

27 Mr Reid gave evidence, and was also cross examined, as to the basis of his disagreement with Council's evaluation in the five knowledge and skill areas (as listed above). Mr Mann also generally refuted that evidence and said that it was important to note that Mr Reid held a Supervisor position and managed two Gangers who oversaw the teams of Labourers. It was the Gangers who were responsible for the day-to-day duties and required more specialist knowledge than Mr Reid in some instances. 28 Mr Mann maintained that that to change Mr Reid's grading from Grade 14 to Grade 15 on the basis that he nearly had the points to place him in that Grade undermined Council's salary and position evaluation process and would create unfairness for a range of employees, both now and in the future.

Cemetery Management & Control 29 Mr Reid indicated that he was in charge of all burials and Cemetery maintenance such as mowing, poisoning and slashing. He was also responsible and required to manage quantities' calculations and estimating for the purpose of the grave digging which he undertook. These calculations were particularly critical when they had to undertake a second internment arising as a consequence of a request for a burial on top of an existing grave. He then explained what was involved in a second internment which also required an assessment of the practicability of such internment. 30 He further indicated that he always on site at the Cemetery when a funeral took place. He gave two examples of situations where unexpected problems had arisen during funerals (e.g. a grave collapse and a Funeral Director collapsing) and said that they needed to be there because of those circumstances. He acknowledged he was not involved in receiving monies, making bookings or other types of work of that nature. 31 In relation to the issue of feral animal control, the laying of a Pindone bait was involved. He explained what was required in relation to such baiting (notification of surrounding residents, appropriate signage etc,). He obtained the Pindone from the Rural Lands Protection Board at Dubbo. He was not required to actually mix the chemicals and prepare the baits, they came ready prepared. He was required to store the chemicals before and after use and laid the baits in accordance with the appropriate action plan which he had been advised of by the Rural Lands Protection Board. He acknowledged that he had only undertaken such activity twice in the past five years. 32 Mr Mann indicated that Mr Reid was responsible for grave digging and maintenance of the Cemetery and liaising with Council administration staff to locate graves and prepare them. These functions came within other skills already recognised and therefore only basic knowledge was required in relation to 'Cemetery Management and Control'. He was not required to liaise with funeral directors or the public nor was he responsible for Council meeting its relevant legislative requirements in relation to cemeteries.

Purchasing & Procurement 33 It was Mr Reid's evidence that he was required to purchase and procure materials and machinery for the section he supervised. Any employees he supervised that were required to purchase materials from local stores had to obtain his permission first and he authorised the purchase of such materials or if there was another source beneficial to Council he would advise of a better alternative, for example from their own Stores. He had also purchased materials from travelling sales representatives on numerous occasions and gave examples of such. He was also involved in the purchasing new tractors, mowers and small plant for the section. 34 He acknowledged that Council had a Purchasing Officer and that he liaised with that Officer and placed orders with him for the purchase of equipment and materials. However, he indicated that there were some matters that he had taken it upon himself to do, such as soil that they obtained from Sydney where he had actually done the groundwork himself and ordered it. He said the Storeman could only do so much up here and Mr Reid himself had actually tracked down material and spoken to people and ordered the appropriate "gear" that would suit them. He had been given the okay and directed by his supervisor to go ahead and do that, they were occasions when the Purchasing Officer had been too busy. 35 He also indicated that if he wished to purchase something he would speak to his supervisor and then go and see the Purchasing Officer however if the Purchasing Officer had a lot on his plate then he would ring around and get the product himself whether it was shoring, soil, turf, trees etc. He did not consider it was outside the scope of his duties but it was not something that was found within his position description. 36 Mr Mann maintained that Mr Reid did not authorise the purchase of materials but rather requisitions by him were authorised by the Services Engineer or his immediate supervisor. Whilst he was consulted in purchasing plant and machinery and might be required to assess some equipment (such as mowers) Council had recently purchased a backhoe for use within his area and Mr Reid was not consulted about that. This plant was assessed by Council's Plant Superintendent and other operators. He maintained that the purchasing and commissioning was done elsewhere within Council and that Mr Reid had only a basic requirement in relation to Purchasing and Procurement.

Quantity Calculation & Estimating 37 Mr Reid maintained that he was required to estimate and calculate quantities for jobs such as fencing, soils (for cricket wickets, gardens, top dressing etc), plants, trees and chemicals. This included sports' field maintenance, turf care and maintenance (including mowing) watering systems and grave digging. All of these matters were in the 'Expert Knowledge' area in the Job Description and he considered that the knowledge and skill level required for these tasks was not 'basic' but required 'solid working', and on occasions, 'comprehensive' knowledge. 38 Mr Reid acknowledged that in relation to quantity calculation and estimating there was an Engineer at Council who provided quantity calculation and estimating. However he maintained that in relation to specific jobs he needed to do that himself. He gave an example arising concerning grave digging but then acknowledged that he was also graded at the highest level in relation to grave digging. He also acknowledged that in relation to estimating and calculating quantities concerning plants, trees, turf care and maintenance, he had also been graded as having comprehensive knowledge.

39 He further indicated that in relation to quantity calculation and estimating that if they were going to do a job then his Supervisor would ask what it was going to cost. He would then evaluate the plant, the labour and the time involved and give him an estimation back. He gave examples of that occurring in relation to some private jobs around town (mowing a paddock etc.,) where he would go have a look and come back and give the Supervisor an estimation as to how much manpower, time and what plant was involved and they went from there. That would occur about once a month. 40 Mr Mann maintained that the level of estimating and quantity assessment required of Mr Reid was covered within the assessed specialty of horticulture where he had been scored at "solid working or comprehensive". He considered that the item referred to by him dealt with a much higher level of quantity surveying at an engineering quality and came within the engineering band and thus he was only scored as basic.

Traffic Control 41 Mr Reid maintained that this was an essential requirement of his position. The position holder was required to develop the traffic control plan for each group supervised whilst working in traffic or on road verges and it was a requirement to be responsible for this task at entry-level of the skills assessment. He did not have a traffic controllers' licence but was able to modify traffic control plans. He acknowledged that the traffic control plans were template plans and that the Gangers would put the plans into action, however he was the one that gave them the plan. 42 He disagreed with the assessment of Council in relation to Traffic Control because he considered that he went to the next level of modifying traffic control plans, not just with the stop and go bat. He put plans into place for his Gangers to carry out their job and considered that that was higher than basic. He also indicated that he was able to change a plan because of some unforeseen problem that arose or occurred.

Handling of Chemical Properties 43 Mr Reid maintained that it was a requirement of the position to have a solid working knowledge in a range of areas and gave examples such as noxious plant control, spraying, 0H&S program and legislation etc. The position required notification of residents or gazettal and notification in the local paper as required by the legislation when using certain chemicals. His position also required him to purchase a range of chemicals that they might required to use and be responsible for (and gave a list of examples including Roundup, Kamba (clover spray), liquid grass fertilisers, Chorhyrifs for black beetles and ants, Foxtocine for foxes and Pindone). He was required to be qualified with a Chemical Certificate for the management of the above chemicals. He had to have a solid working knowledge and, in some instances, a comprehensive knowledge of the proper requirements for the use of handling of such chemicals to enable the proper legislated requirements to be followed. 44 He acknowledged that the Labourers sprayed poisons but he gave instructions and was required to have a Chemical Certificate when instructing the labourers. He was also responsible for the actions of his staff. He was required to know what chemicals they were using and that they were following the guidelines and spraying in accordance with the Material Safety Data Sheets and that both matters were in place. The employees he supervised had the same qualifications as himself in relation to chemical spraying. 45 Mr Mann did not agree that Mr Reid required more than a basic knowledge of the handling of chemical properties within the labouring skills. The Labourers handled chemicals and the labouring tasks were supervised by the Gangers. Mr Reid was not required to supervise Labourers in the handling of chemical properties. Labourers and Gangers were required to have a solid working knowledge in the handling of chemicals, pesticides and weedicides and thus had scored accordingly in their evaluations. He would expect that Mr Reid would be determining what needed to be done and when, and then passing those instructions on to the Gangers, who would then ensure the work was done by the Labourers who were required to have those knowledge levels to cover the work. 46 He also indicated that Mr Reid's skills and responsibilities were covered in other areas of the evaluation, particularly in relation to Horticulture and Noxious Plant Control where he scored at a 'solid working level'.

The Evaluation Process 47 Mr Mann indicated that he was involved in a series of processes leading up to Mr Reid's appeal against the evaluation. The appeal was heard by a committee established under Council's Consultative Committee. He was part of a Quality Control Panel that looked at all the job descriptions and the questionnaires and established consistency. They had reviewed the evaluation document against the job description, what the job description was across the organisation and the job descriptions of similar levels.

48 He agreed that if an anomaly was found within one of those documents then they would rectify that. They had done that in that process and would continue to do that. 49 Mr Mann was taken in some detail to the eComp evaluation document relevant to Mr Reid in a number of areas and explained the basis of the assessments made (e.g. literacy and numeracy skills coming under general interpersonal skills rather than requiring specialist knowledge). 50 Mr Mann indicated that in relation to data entry, the Quality Control Panel took no recognition of that at all because data entry in administration referred to entering various data in such things as payroll, creditors, rates and that sort of documentation. He considered complaints was a straightforward small data entry and acknowledged that in the past few months that Mr Reid would have been responding to complaints relying on computers, whereas prior to that he had provided written reports. He also agreed that he was entering data for the purposes of Council recordkeeping in relation to completion of jobs etc., and that he was also required to write reports to his immediate supervisors but not for Council, he only provided information. In relation to complaints there were 'template' reports that he was required to complete and in recent times that had involved using a computer. 51 Mr Mann reiterated that in their assessment and for consistency across the organisation they considered data entry to be an administrative function. He further indicated that under their structure and agreed procedures with regards to changes in job description they evaluated on an annual basis with questionnaires on the job descriptions in March and April of each year and if something new came into a job that was assessed in line with their rules and requirements. 52 Mr Mann was asked whether he was familiar with all of the Foremen working for Council and whether or not there were other Foremen who had had the box ticked for data entry when Mr Reid had not. He indicated that he did not know what boxes had been ticked for each of them, but believed they were fairly consistent across the organisation. 53 When asked whether if it that was the case that he would go back and review that, he indicated that they would review it, but that was not saying that it might not be consistent the other way. He acknowledged that it would depend on the nature and type of data entry that those persons were doing. Some of the Foremen might have different jobs and might have different data to input. However he did acknowledge that if it had turned out that there was a similar level of data entry and that they had been assessed at having some value placed on it, then they would take that into account. He also accepted that if that was the case then it would move Mr Reid's points' score upwards. 54 A similar issue was also raised with Mr Mann in relation to office machinery and the requirement for Mr Reid to use a photocopier, fax machine etc. 55 Mr Mann acknowledged that there had been a number of discussions with Mr Reid about his grading and that he had never asked him to .."just push him over the points", without adjusting the questionnaire to achieve those points. They had reviewed the skill levels on numerous occasions. 56 Mr Mann generally went on to indicate in cross examination a range of areas in which Mr Reid had been assessed and where Mr Reid had scored as 'comprehensive' in the requisite skill levels (such as estimating and quantity calculation in relation to existing facilities). 57 Mr Mann also explained the broader evaluation process that was followed and how the scoring for Mr Reid was assessed in that process. Submissions on behalf of the Applicant

58 Mr Martin on behalf of the USU and his member, submitted that the Commission was obliged to consider the terms of the Local Government (State) Award 2007, the Gilgandra Shire Council Salary System and the OOSoft/Wyatt position evaluation of Mr Reid and whether they had been correctly and fairly applied, based on the relevant evidence, particularly that of Mr Reid.

59 It was submitted that Council had failed its to meet obligations under the Award and the job evaluation process because that process did not encompass the actual duties that are undertaken by the Parks and Gardens Foreman. Council had not recognised the skills and responsibilities of the position in the questionnaire, thus reducing the value of the position. The anomaly in the grading of the position had been a continuing grievance for Mr Reid since it was highlighted in 2007. 60 It was submitted that the Award and the salary system provided for the process of job evaluation and that the OOsoft/Wyatt) system was a method of evaluation used by Gilgandra Shire Council. However Council had failed to discharge its responsibility to ensure that the key elements and underpinning principles of the process had been adhered to. 61 Mr Martin referred the Commission to the relevant Award provisions (see background chronology above). He also referred to the 'OOsoft Evaluation Manual' (not in evidence) and submitted that the 'Introduction' of that Manual clearly outlined the underpinning principles of the system to ensure credibility, not only with management, but also with staff. 62 He further submitted that Council had an obligation to ensure that the job evaluation process was applied equitably across the organisation but had not discharged its responsibility in accordance with the OOsoft Job Evaluation manual.

63 Mr Martin relied on Harris v Murrurundi Shire Council [1995] NSWIRC 96 as establishing that a policy of a council becomes part of the contract of employment and went on to submit that on that basis the OOsoft Job Evaluation Manual was an implied term of the contract of employment for employees at Gilgandra Shire Council including Mr Reid.

64 Reference was made to the inspection conducted at the Cemetery and the information provided by Mr Reid as to the practical application of Pindone to control rabbits, his involvement in that process and additional responsibilities undertaken in the management of the Cemetery, with these all being additional duties and outside the scope of a Parks' Foreman. 65 The evidence of Mr Reid was summarised and it was submitted that with regard to the evaluation process it was multifaceted and concerned a number of main elements and accountabilities as follows: i. Cemetery Management and Control, - additional responsibilities and accountability in regards to cemetery management other than grave digging, ii. Handling of the Chemical Properties - the use of chemicals such as Pindone and other than those used in mainstream horticultural practice, iii. Traffic Control - the development of traffic control plans that are implemented by the Gangers under his supervision. iv. Purchasing and Procurement - additional to the stores purchased through the Purchasing Officer and the Council Store, v. Quantity Calculation and Estimating - the costing and estimates for top dressing and fencing above that of normal estimating for horticultural practices such as soil for a garden bed. 66 Council had only evaluated Mr Reid as 'basic' in the above areas whereas, had Council taken into account the additional responsibilities and accountabilities under those areas, then that would have placed his position in Grade 15. Further Mr Reid's evidence indicated that for him to undertake the duties, apply the skills required and take responsibility was greater than 'basic' and should have been more appropriately assessed as 'solid working'.

67 It was submitted that Mr Mann's evidence contradicted the evidence of Mr Reid. 68 Mr Martin rejected as "nonsense" Mr Mann's evidence that Mr Reid only had to have basic knowledge of the use of chemicals because the persons he was responsible for had to have a solid working knowledge, submitting that Mr Reid was required to be hands-on at times. For him to be assessed at as 'basic', as opposed to 'solid working', would restrict Council in allocating additional duties to Mr Reid. 69 Mr Martin referred to the relevant transcript in relation to Mr Mann's evidence covering the disputed areas. 70 Mr Reid was not required to seek the assistance of an Engineer when estimating soil for garden beds and did the calculations himself. He was expected to calculate quantities in conjunction with the Engineer however Council had only assessed him as 'basic' for this skill instead of 'solid working' knowledge. He was also involved in quantity calculation for one-off jobs and was to assist the Services Engineer in preparation of maintenance programs and budgets. 71 Mr Reid had to have sound literacy and numeracy skills and a key essential qualification of the position was sound communication skills, oral and written. It was further submitted that Mr Mann accepted that if data entry had been ticked it would have moved Mr Reid's score. 72 In conclusion it was submitted that this dispute arose out of the failure of Council to accurately identify the key components of the position of Parks Foreman within the job evaluation questionnaire thus leading to an undervaluation of the position within its Salary System. The Parks and Gardens Foreman position should be placed at Grade 15 within the Gilgandra Shire Council Salary System. 73 It was contended that the Position Evaluation for the Parks and Gardens Forman should be amended to reflect a 'solid working knowledge' in the following the areas: Cemetery Management & Control Purchasing and Procurement Quantity Calculation & Estimating Traffic Control Handling of Chemical Properties 74 It was further submitted that upon examination of the evidence of Mr Mann regarding administration skills, and in particular data entry, that the 'Position Evaluation Section 7: Specialist Knowledge and Skill' (Exhibit 5), should be amended at 'Administration' to reflect the following: i) - 1. Data Entry (Solid Working) ii) - 5. Operate Office Machinery (Basic) iii) - 6. Word Processing/Typing (Basic) 75 It was submitted that the evidence justified the Commission making the orders as sought.

76 The Shires Association on behalf of Council also detailed the relevant Award provisions (see background chronology above) and referred the Commission to relevant transcript in support of its submissions. 77 Objection was made to the submissions of the USU concerning the use of the OOsoft Job Evaluation Manual to substantiate its claim, as the Manual had not been tendered in evidence during any part of the proceedings.

78 In relation to Harris v Murrurundi Council, the USU had not provided a policy of Council that it claimed should extend to Mr Reid, therefore that case was not relevant as it did not correlate to the evidence or the claim. 79 It was submitted that the Commission could not determine whether the OOsoft Job Evaluation Manual became an implied term of contract without considering the Manual as evidence and the parties had not had the opportunity to consider the document or to put it to witnesses. The claim by the USU should be rejected. The Manual had also not been provided to the Commission or the parties in such a way as to allow procedural fairness to be maintained.

80 It was submitted that the job evaluation process, underpinned by the OOsoft/Wyatt questionnaire, was a tool that assisted Council in determining the appropriate salary grade for positions within its Salary System. There was no explicit or implicit right to such a tool being used. The obligations on Council stemmed from the Award, and they were the obligations that must be complied with by Council.

81 The USU had incorrectly applied the use of the OOsoft/Wyatt questionnaire in its consideration of the appropriate grading of Mr Reid. The OOsoft/Wyatt Job Evaluation Process did not override the provisions of the Award, rather it assisted Council in meeting its Award obligations and it was the classification bands and levels within the Award that determined the appropriate grades.

82 Therefore it was submitted that the Commission should place more emphasis on the requirements of the Award than the OOsoft/Wyatt questionnaire to determine the appropriate salary step for Mr Reid, the OOsoft Job Evaluation Manual should not be considered, and the OOsoft/Wyatt Job Evaluation Process did not form a part of the employee's contract of employment. The Inspection 83 Council agreed with the submissions of the USU in relation to the factual description of the Cemetery inspection, but disputed that Mr Reid explained additional responsibilities that he had undertaken in the management of the Cemetery. He advised that he was present for funerals, but kept at a distance, and at times undertook duties in accordance with his job description while mourners were present. Further he did not indicate, demonstrate or display in any way that he managed the operations of the Cemetery and he was given an opportunity to do so but did not. It was also important to note that there were no offices/operational management facilities at the Cemetery. The Evidence of Mr Reid 84 The evidence of Mr Reid in support of his claim was briefly summarised. In cross-examination, he acknowledged that with the exception of grave digging his position was to oversee the work of Gangers who then managed small teams of Labourers.

85 Mr Reid's evidence in relation to chemical use was summarised. He also acknowledged that he was required to have a Smart Chemical Use Certificate as a requirement of his position and that it required him to have knowledge in handling chemicals.

86 Despite the USU claiming otherwise, Mr Reid indicated that Pindone was a pesticide. This was confirmed through Exhibit 3. Mr Reid also agreed that there had only been two occasions in the last four to five years where Pindone had been obtained from the Rural Lands Protection Board/LHPA. This was despite the original claim that this pesticide, as well as Foxtocin, had been regularly used at the Cemetery. The evidence he gave concerning the use of Pindone was then summarised and was 'fairly straightforward' It was submitted that the evidence showed that this is not a highly skilled task and had occurred only twice, or possibly three times, in the last four to five years.

87 Mr Reid acknowledged that he met the essential qualifications and experience to hold his position and that these qualifications were specifically taken into account when performing his grading evaluation. 88 His evidence in relation to his claim for a 'solid working knowledge' grade for Cemetery Management and Control, was that he was in charge of "burials, all cemetery maintenance … to manage quantity calculations and estimating for the purpose of grave digging", however in cross examination he acknowledged that he did not receive monies, make bookings or other types of managerial tasks outside of those in relation to the grounds and grave digging. He also acknowledged that he had been evaluated as having a comprehensive knowledge and skill level in grave digging. His greatest contention was that he was required to be on site for funerals, however he went on to indicate that his duties while funerals were taking place only went so far as the duties set out in his position description. 89 As a result of the evidence of both Mr Reid and Mr Mann it was apparent that his role was not one in relation to management, but rather maintaining occupational health and safety requirements.

90 In relation to the skill and knowledge required to purchase and procure materials for Council, the evidence had been that Mr Reid was not required to undertake these tasks but chose to do so of his own accord. He was aware that Council employed a Purchasing Officer, and that this Purchasing Officer's role was to purchase and procure materials. He indicated that he had taken it upon himself to order materials, however then went on to contradict himself by saying that he was directed by a supervisor to do this. He also indicated that he was required to obtain authority before proceeding with purchasing and procurement, and that this must come from either a supervisor or the Purchasing Officer It was important to note that Mr Reid consistently referred to taking it upon himself to do this and acknowledged that it was not found in his position description.

91 It was submitted that he was only required to have a basic knowledge and skill level for these tasks, and that Council should not be penalized for the actions of Mr Reid at his free will.

92 Mr Reid acknowledged that he had been evaluated and recognised appropriately for having skills and knowledge in Horticulture, including in relation to chemical handling, and also in regards to having a Smart Chemical Use Certificate. It was submitted that the evidence did not show that Mr Reid required more than a basic level of skill and knowledge for the handling of chemical properties when it related to labouring.

93 In relation to Traffic Control, Mr Reid raised his concern in relation to the planning of traffic control plans but in evidence acknowledged that generally these were templates. It was important to note that the element for which Mr Reid intended to rely upon was within the labouring provisions of the evaluation. As the Foreman, Mr Reid was not required to perform labouring duties. This is supported both through his own evidence and that of Mr Mann. As a result of being required to perform the duties, his knowledge and skill was only required to be 'basic'. 94 It was submitted that Mr Reid had qualifications in regards to traffic control planning, to the extent of modifying plans, and that there had been no contest that this had been appropriately recognised through the evaluation. 95 In relation to Quantity Calculating and Estimating in relation to engineering, the evidence showed that Mr Reid had been recognised in other areas as having skills and knowledge that would assist him in doing small jobs involving quantity calculating and estimating. As a result, he had been appropriately recognised for the skills and knowledge he possessed. Further, it was admitted in evidence that Mr Reid reported to a Service Engineer, who provided assistance in calculating and estimating for larger jobs.

96 Mr Martin had made reference to other duties, particularly administrative duties, where the USU sought to find extra points. The evidence of Mr Mann demonstrated that Mr Reid had been recognised in other areas for having such skills and knowledge. Further, the evidence demonstrated that the amount of administrative work in the nature asked by Mr Martin would be very limited.

97 It was submitted that a distinction should be made between simple data entry and other reporting. It should also be noted that the data entry described by the USU could be seen, on the evidence, to be that of a different nature than the reporting undertaken by Mr Reid.

98 It was important to note that in Exhibit 4, Attachment A at page 3, the position description provided as follows: Other Duties The occupant will be required to perform other duties within skills possessed, as directed from time to time, when this will allow better utilisation of the workforce and plant, or regular staff is [sic] not available.

99 It was submitted that Council was able to require Mr Reid to perform duties that may be irregular in nature (such as the laying of bait laced with Pindone, data entry, and assisting in purchasing and procurement) where he had the skills and knowledge.

100 It was further submitted that those skills and knowledge have been evaluated appropriately through the accreditation of Mr Reid's qualifications and experience.

101 It was submitted that the evidence and submissions of the USU did not demonstrate error by Council in reviewing Mr Reid's position. Rather, it demonstrated that he was assessed in the appropriate areas within the questionnaire, and that the differences of opinions between the parties lay, in part, due to the categories in which they fall. For instance, the quantity calculation and estimating in dispute is in relation to how it relates to engineering, rather than the position in its entirety.

102 It was further submitted that, the OOsoft/Wyatt job evaluation process was a tool used by Council to meet its requirements under the Award, and in doing so it was the classification requirements under the Award that must be met. This application sought to undermine that, with a movement from one level to a higher level, without a change in skill descriptors.

103 It was important to consider that in his evidence, Mr Mann expressed a concern that a decision in favour of the Mr Reid in this case would result in the undermining of Council's Salary System and position evaluation processes, and would create unfairness for a range of employees both now and in the future. 104 It was submitted that such a decision in favour of Mr Reid would have detrimental effects on Council's ability to maintain a fair and equitable salary system structure. It would particularly affect other employees on the same level as Mr Reid and any decision in favour of him would place the whole job evaluation process into question.

105 It was submitted that the onus was on the USU to demonstrate, on the balance of probabilities, that the OOsoft/Wyatt job evaluation process was performed incorrectly. This had not been established on the evidence and the submissions. On the contrary, Council had been able to establish that they had thoroughly and thoughtfully considered the tasks, skills and knowledge held by Mr Reid in his job and applied the OOsoft/Wyatt job evaluation process appropriately.

106 In conclusion the Commission was asked to find in favour of the Council in relation to the claims made by the Union.

Submissions in Reply on Behalf of the Applicant Union

107 Mr Martin in reply submitted that this dispute was not about whether the Council acted fairly or not, it was about whether Mr Reid's position of Parks Foreman was correctly placed in Grade 14 or should have been placed in Grade 15 of Council's Salary System. 108 Mr Martin rejected the Council's submissions on the OOsoft/Wyatt Job Evaluation Process as incorrect on the basis that all councils in New South Wales used tools such as OOsoft/Wyatt or some other evaluation process in determining where a position was placed within their particular salary system, the two went hand-in-hand in evaluating a position for placement within the salary system at Council.

109 It was also submitted that there was no argument as to merit based selection in accordance with s.349 of the Local Government Act 1993 NSW. Neither the USU, nor Mr Reid, had sought to have Mr Reid appointed to another position. He had always maintained that his position was incorrectly placed within the Council's Salary System and the Local Government Act was not an issue in this dispute. 110 In relation to be OOsoft Manual it was submitted that s.163 of the Act clearly set out that the Commission was not obligated to act in a formal manner, was not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just and is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms. It was submitted that there was no disadvantage to the Council should the Commission take into account the OOsoft Manual as it was the document that the Council relied upon and used to evaluate all its positions. 111 Mr Martin also rejected the Council's submission discounting the OOsoft Job Evaluation Manual as an implied term of contract and in doing so relied on the provisions of s.163. Council had accepted that the OOsoft/Wyatt questionnaire was a tool that they used in determining the appropriate salary grade for positions within its Salary System. The Award obligations that Council faced were clearly set out, in that Council must place all positions on the appropriate band and level for the position.

112 The USU submitted that Council had had the opportunity to place the position of Parks and Gardens Foreman in either Band 2 Level 2, or Band 3 Level 1. The job description for the position (Exhibit 1-1) clearly identified that the position may be in either band and level. Therefore for the Commission to make orders that Mr Reid's position should be in Band 3 Level 1 would not provide an inconsistent approach to the placement of positions within Council's Salary System. The Award also provided for the position to be placed at Band 3 Level 1 and, therefore, then placed the position at Grade 15 within Council's Salary System. 113 Mr Martin disputed that the USU incorrectly applied the OOsoft/Wyatt questionnaire to a consideration of Mr Reid's position. 114 It was submitted in reply to the Council's submissions concerning Mr Reid's duties at the Cemetery, that he did give evidence of an example when he had to take responsibility of a funeral due to the collapse of the undertaker. 115 In relation to the use of chemicals it was submitted that it was a nonsense to suggest that a supervisor in parks and gardens supervising people using chemicals was required to only have a 'basic' knowledge and not a 'solid working' or 'comprehensive' knowledge, particularly with chemical use. Ultimately the responsibility fell to the supervisor. Further the Job Description identified in 'Specialist Knowledge and Skills' that the "job holder has to hold the following level of technical skill". The requirements for the position in the Solid Working Knowledge areas at point 7 identified 'Spraying' as "required". For the Council to say that the position only required a 'basic' level of knowledge in the evaluation but required a 'solid working knowledge' in the position description was nonsense. 116 It was also submitted that Mr Reid's evidence concerning his duties at the Cemetery went further than just being there as a grave digger. Council required Mr Reid to assist in the functions of the Cemetery and in a lot of situations he was the Council's representative on site and had to deal with any issue that arose. 117 Mr Martin referred to the evidence of Mr Reid in relation to purchasing additional goods and materials and that he was at times required to purchase additional goods and materials. 118 It was submitted that Council required, in the position description in 'Specialist Knowledge and Skills', 'expert knowledge' of Turf Care and Maintenance and Sports Field Maintenance. For Council to then say that only a 'basic' knowledge was required in the estimation of top dressings, soils, etc., in sports field maintenance and turf care was also nonsense. Further it was evident from the Job Description that there was a requirement for an individual to have expert knowledge, however Council had downgraded the specialist Knowledge and Skills from 'expert knowledge' to 'basic' when evaluating the position. 119 Mr Martin also submitted that it was an essential requirement of the position description to halt Traffic Controllers licence. To have an essential requirement of the position and then to downgrade that to a 'basic' level was incorrect and it was submitted that Council had manipulated the system to prevent Mr Reid from progressing to Grade 15. 120 Mr Martin disputed Council's submissions that it was the two Gangers who oversaw the teams of Labourers, were responsible the day-to-day duties and required more comprehensive knowledge than Mr Reid in some instances. 121 It was also submitted that Mr Reid did in fact enter data, however Council chose not to mark even 'basic' knowledge for that in Mr Reid's evaluation. 122 It was further submitted that in relation to chemical handling the position description required 'solid working knowledge' in spraying and noxious plant control and risk management. These three skills all had an element of chemical handling. 123 It was submitted that had Council taken into account the additional responsibilities and accountabilities as raised by Mr Reid then he would have received additional points that would placed his position into Grade 15. 124 Mr Martin generally reiterated his summary of the evidence of Mr Reid and Mr Mann and the relevance of that evidence. 125 In conclusion it was submitted that the USU's evidence justified the Commission making an order that place a position of Parks Foreman at Grade 15 within the Gilgandra Shire Council Salary System.

126 I have carefully considered the evidence and written submissions of the parties. 127 I should indicate at the outset that I do not consider it necessary, nor do I intend, to embark on any consideration of whether or not the OOsoft/Wyatt Job Evaluation Process is an implied term of Mr Reid's contract of employment. 128 The relevant issue for the Commission is that it is acknowledged by both sides that it was in fact the actual tool used to carry out the evaluation process of Mr Reid. I acknowledge that the Award sets the framework and parameters for a council's salary system, however it is blindingly obvious that reliance on the Award provisions alone, and nothing else, would not assist any council in an actual practical exercise of putting into place a comprehensive salary system to suit its operations and its staff. An evaluation tool is an essential and necessary adjunct to the Award provisions. It goes hand in hand with the Award provisions, and, as the parties acknowledge, "underpins" those provisions. 129 Similarly it is essential and necessary to start with adequate, clear and comprehensive job/position descriptions which also underpin any salary system. 130 I have been involved in many job evaluation exercises over many, many years from those covering small workplaces, to large manufacturing establishments and also tertiary institutions. I have been personally involved with the development of one of the very first evaluation models applied to a manufacturing establishment at a time when the only evaluation tool developed and in use was the Cullen, Egan Dell system which had widespread application in clerical and administrative areas but was not suited to manufacturing/trades areas. 131 I have found that no matter how objective an evaluation process appears to be there will always be an unavoidable subjective element in how it is applied by those carrying out the process, particularly in relation to job/position descriptions and what tasks/duties/responsibilities are actually carried out by the job/position holder and the value assigned to those tasks/duties/responsibilities. 132 I also have to say that this is a matter that I am of the very firm view should have settled during the conciliation stage. It is not desirable that the Commission have to intervene in disputes about gradings when councils have appropriate mechanisms in place to establish and evaluate positions and there is a considerable history of industrial cooperation between the industrial parties in the local government sector. The parties ought to be able to resolve issues arising without the Commission having to become involved in conducting what effectively becomes another level of, or a substituted, evaluation. The level and extent of the evidence required to enable such an evaluation to take place is also problematic and presents difficulties, as has been apparent in this matter. 133 The issue of the relevance of handling of chemicals was in fact raised by the Commission during those proceedings. This was based on my extensive industrial background and knowledge of relevant industries including gardening and manufacturing generally, particularly in the plastics and chemical industries. I am familiar with Material Safety Data Sheets and what is inherently involved in such. I indicated that this was an area of the evaluation process that had been applied to Mr Reid that should be re-visited by both Council and the USU. It is clear that that process was not carried out to the extent and depth required. 134 I failed to see how a supervisor could possibly adequately and appropriately discharge his/her supervisory responsibilities in relation to any workers/labourers responsible for the handling of chemicals without himself/herself having a sound working knowledge at the same level or higher than those so supervised. To me it also raised the very serious issue of how such a supervisor's OH&S obligations towards those employees so supervised could possibly be appropriately discharged. 135 Those views have not changed as a consequence of the evidence and submissions of the parties. Indeed the evidence strengthened those views into firm convictions. 136 I fully acknowledge the willingness and preparedness of Council to re-visit the evaluation process applied to Mr Reid such that it did result in the additional points enabling his grading to move from Grade 13 to Grade 14. It was a lengthy process and I accept that it was conducted in good faith. 137 It is clear however that the issue of chemical handling was not raised during that process. Also the issue of data entry/use of equipment etc., was not considered as this was an issue only raised by Mr Martin at the hearing, it apparently having only come to his attention in the weeks leading up to the hearing.

Cemetery Management and Control 138 I am not satisfied on the evidence before me that Mr Reid is required to have a 'solid working' knowledge in this area. However I qualify that by indicating that if he is required to be present when funerals and burials take place, then for what purpose? If there are issues that are arising requiring a Council representative to, in effect, be present and take some kind of action and in effect exercise responsibility on behalf of Council then this may need to be acknowledged in the future in some way. 139 Clearly what needs to happen is that a careful logging of any incidents that occur and a reporting process should be put in place and this area re-visited when sufficient information is available for evaluation and assessment.

Purchasing and Procurement 140 I acknowledge that the evidence shows that this is an area that Mr Reid has taken upon himself. However it is also clear from the evidence that that has been done with the full knowledge and approval of the Purchasing Officer and Mr Reid's supervisor. 141 Council cannot have it both ways. It seems content to have Mr Reid exercise initiative, there was no evidence of him having been told to "cease and desist" from these actions, but is not prepared to acknowledge the benefit it obviously gains in not having work slowed up/halted because material/equipment (even of a minor nature) is not able to be procured by the Purchasing Officer because he is too busy or engaged on other tasks. 142 Having said that however, on the evidence before me, I am not sure whether what Mr Reid does do takes him up into the 'solid working knowledge' area. It certainly takes him beyond 'basic' in my view. This is another area where there needs to be more detailed record keeping of what Mr Reid does undertake and just what is involved in that, with perhaps also the monetary value of any materials/equipment also being evaluated/assessed, as well as the cost savings to Council in terms of time/labour etc. This is an area that should be revisited in the future when more information is available.

Quantity Calculation & Estimating 143 It would appear on the evidence before me that this area is meant to principally concern that higher level of quantity estimation and calculation that is involved in engineering generally. I accept that it would be inherent in any assessment of Mr Reid as having 'comprehensive' knowledge of Turf Care and Maintenance that that would of necessity involve any requisite and associated quantity calculation and estimation and has therefore already been assessed and valued.

Traffic Control 144 This is another area where there is insufficient evidence before the Commission to enable a determination to be made either in favour of Mr Reid, or, of Council. 145 The traffic plans concerned are templates, but none were in evidence before the Commission (nor any information on just how many such templates there are for Mr Reid to select from), to enable an assessment to be made of just what is involved in Mr Reid both selecting an appropriate plan from those available and, where necessary, modifying such plan and to what extent he exercises discretion and responsibility in doing so and requires knowledge such as to result in a re-evaluation to 'solid' working knowledge rather than 'basic' knowledge. 146 This is another area that warrants further consideration on the actual relevant material available at the Council, but a consideration that is to be undertaken by the parties.

Handling of Chemical Properties 147 This is an area where I have determined that Mr Reid has been inappropriately evaluated. I consider that he should have been evaluated as requiring 'solid working' knowledge rather than merely 'basic' knowledge. 148 As I indicated above I frankly consider it ludicrous that a supervisor can possibly be assessed as only requiring basic knowledge when those he supervises must have a solid working knowledge in handling chemicals. As a supervisor it is Mr Reid that is responsible and accountable for the work of the Gangers and Labourers under his supervision and control.

149 It also seems to me to be somewhat contradictory that Mr Reid is required to have a 'solid working knowledge' of garden labouring, notwithstanding that there are Labourers to carry out that garden labouring, yet not have a 'solid working knowledge' in relation to the handling of chemicals. If one applied the same logic that Council seems to have applied to chemical handling then surely Mr Reid would only require a basic knowledge of garden labouring. 150 It was also Mr Reid's unchallenged evidence that those he supervises were not required to hold greater qualifications/certification in chemical handling than he was required to hold, in fact they held the same qualifications. 151 I also note that Mr Reid is required to have a sound working knowledge of spraying and noxious plant control, both of which require the use of chemicals. It seems Council wants to argue that on the one hand he has been recognised in those areas in relation to the chemicals he uses but in any other area his required knowledge in relation to chemical handling is only basic, again seemingly because it is the Labourers that actually carry out the duties involved. I just do not accept that flawed argument. 152 I also accept the evidence of Mr Reid that he is required, on occasions, to be hands-on and carry out work that would either be usually carried out by the Labourers or carry out that work in conjunction with, or assisting the Labourers. It was abundantly clear that Gilgandra Shire Council has a relatively small outdoor staff in comparison to say any typical metropolitan council where a Parks and Gardens Foreman might not have the same hands-on involvement. However, I would also fully expect such a person to have a 'solid working' if not a 'comprehensive' knowledge of the chemicals handled by the staff that the person supervised in order to properly allocate and supervise tasks, as well as to discharge their occupational health and safety responsibilities to both the employees and the general public. 153 Having carefully considered the evidence about the use of Pindone I accept that on the basis of Exhibit 3 it is clear that it is an anticoagulant but whether it is of a synthetic (or chemical) manufacture or of natural origin is not indicated. However the information sheets also refer to it as being a poison. It seems to me to be somewhat splitting hairs to say that it is not a chemical. It may not be a chemical but it is clearly a very, very dangerous substance. I accept that Mr Reid has only undertaken duties in relation to the laying of Pindone baits twice (or possibly three times) in the last five years and that is probably of insufficient regularity to be of particular relevance to my consideration of the issue of handling of chemical properties in any event. It is also unclear whether he was directed by anyone at Council to carry out such rabbit baiting using Pindone. 154 I do however have a concern that Mr Reid is using such a dangerous substance with apparently only advice over the telephone from the Rural Lands Protection Board (or LHPA as it is now) in Dubbo in carrying out such an activity. 155 I have some knowledge of what is involved in the work of Rangers employed by the Rural Lands Protection Board (as they then were) from previous arbitrated cases that have come before me and as such I am aware of the level of training and expertise required in relation to the control of feral animals such as rabbits, dogs and foxes when using poisons and laying baits. I would have thought it more appropriate for there to have been an appropriate level of hands-on training given to Mr Reid in relation to the laying of the Pindone baits notwithstanding that he does not actually have to prepare the baits. He must however handle them, store them in accordance with the appropriate guidelines and also lay them in accordance with those guidelines with the utmost requisite care needed and notification to potentially affected residents and the public. 156 This is a matter that requires further careful consideration by Council.

Data Entry/Use of Equipment 157 These were not areas that had previously been raised by either Mr Reid or the USU on his behalf. 158 I accept Council's submission that generally speaking data entry would refer to the range of data required to be entered by an employee occupying an administrative role. However Mr Martin, through the cross-examination of Mr Mann, alluded to the possibility that there were other comparable Foremen/Supervisors who were evaluated as requiring ' basic' knowledge of data entry in relation to tasks they undertook in association with their particular areas. 159 It certainly appeared from the evidence that in only comparatively recent times there was a greater requirement for Mr Reid to enter information such as reports, complaints by way of a computer rather than in writing. 160 Certainly if other comparable employees in a supervisory position have had data entry recognised and evaluated and that has been reflected in their points score then equity requires that Mr Reid also be so evaluated. However that does mean that there needs to be a careful comparison of the exact nature, extent and level of data entry that is involved with those other supervisory employees and Mr Reid.

161 Having carefully considered the evidence and submissions I determine that Mr Reid was not appropriately evaluated by Council in relation to the handling of chemical properties. He should have been evaluated as having a 'solid working knowledge' rather than merely a 'basic' knowledge. 162 Neither party assisted the Commission by providing any information whatsoever about just what that would mean in relation to the points that would be then assigned to that evaluation therefore I am unable to say what final points score should be held by Mr Reid. However Mr Mann conceded in cross-examination that the result would take Mr Reid over the 1321 points required to be placed in Grade 15. 163 I also note, as pointed out by Mr Martin in his submissions, that the position description issued to Mr Reid in 2008 indicated an evaluation at either Band 2 Level 2 or at Band 3 Level I, the latter placing the position in Grade 15. 164 I consider that Council's concern at the implications of such regrading of Mr Reid and its potential undermining of both Council's Salary System and its evaluation process to be misplaced and an overreaction. 165 This decision should simply reinforce the necessity of the care needed when considering the practical application of the requirements of job/position descriptions when evaluating the appropriate placement of such positions in a council's salary system. It also reinforces an employee's industrial right to appropriately challenge an evaluation, or some aspect of an evaluation where they consider an error has been made and if that is not resolved through the appropriate mechanisms at the local level their right, through their industrial organisation, to seek the assistance of the Commission in resolving the issue. I have already indicated that my clear preference had been to resolve this matter through conciliation, arbitration was a course only embarked upon as a result of the failure of that process. 166 However any such challenge to an evaluation process requires an employee (and their industrial organisation) to establish a proper basis and evidence for reconsideration of the evaluation applied. 167 The USU sought orders that the Grade 15 rate of pay should apply to Mr Reid effectively from November 2007 and sought the difference between the rate that he has been in receipt of on Grade 14 and the rate for Grade 15 since that time until the date of the hearing by way of a Small Claim made pursuant to s.380. However I do not consider that it is necessary to deal with the issue of any back payment under those provisions as I have not found that there was, strictly speaking, an underpayment of the Award. Rather, I have re-evaluated the position occupied by Mr Reid as from a certain date which results in a consequential increase in the rate of pay and a consequential entitlement to be paid from that date (in terms of the orders below). Those orders can be appropriately made under s.136 (1) of the Act. 168 I also do not consider that the extent of the back payment sought is fair or reasonable. Whilst there is no doubt that Mr Reid and the USU have contested his evaluation, which was initially Grade 13 in 2007, Council have genuinely attempted to reconsider a number of areas resulting in his movement to Grade 14 in 2008. The issue of the inappropriate evaluation of Mr Reid in relation to handling of chemical properties was not raised during that period either by Mr Reid or by the USU, it was raised by the Commission during the requisite conciliation proceedings that were the consequence of the filing of this dispute. 169 As I indicated at the outset of this consideration this dispute should have settled as a result of the conciliation process and it is a reflection on the parties that it did not do so.

170 I therefore intend to make orders in relation to back pay from the date that directions were issued in relation to this matter. Whilst I issued a Certificate of Attempted Conciliation on the 29 June 2009, there was still the possibility of this matter settling through further consideration by the parties. However the issuing of directions in this matter on the 5 November 2009 is the point at which it was clear that arbitration was going to be required to settle this matter in lieu of a sensible conciliated settlement being arrived at. In my view that is therefore an appropriate, fair and reasonable date from which the Grade 15 rate of pay should operate for Mr Reid. 171 I also intend to issue a recommendation covering some of the other areas of dispute that were raised but about which there was insufficient evidence before the Commission to make any concluded finding. 172 The Industrial Commission therefore recommends that: 1) Gilgandra Shire Council and the USU hold further discussions in relation to the involvement of Mr Reid in data entry/use of office equipment as compared to other Foremen/Supervisors within Grade 15 and whether that should be taken into account in an evaluation of his position, with any result to take effect from the date of that re-evaluation. 2) At the next evaluation of Mr Reid's position further and more detailed consideration should be given to the area of 'Traffic Control' in the light of this decision. It is accepted by the Commission that such further examination may not result in any change to the evaluation outcome. 3) More information and appropriate records/logs should be kept in relation to Mr Reid's duties at the Cemetery and in particular any requirement for him to be present during funerals and the purpose for such, to assist in any future evaluation of his position. 4) Similarly more information and records/logs need to be maintained in relation to any purchases/procurement of materials/equipment on behalf of Council to assist in any future evaluation of his position. 173 The Industrial Commission orders that: 1) Pursuant to s.136(1)(d) of the Industrial Relations Act 1996 the position of Parks and Gardens Foreman at Gilgandra Shire Council held by Mr Brad Reid is to be recognised at Grade 15, Band 3 Level 1, of the Council's Salary System. 2) Such grading is to be effective from the first full pay period to commence on or after 5 November 2009. 3) Pursuant to s.136(1)(d) of the Industrial Relations Act 1996 Gilgandra Shire Council shall pay to Mr Brad Reid back pay of the difference between the rate applicable to Grade 14 and the rate applicable to Grade 15 for the total number of weeks that have elapsed since the 5 November 2009 up until the date of these orders. Such payment to be effected within 14 days. 4) These orders take effect on and from 1 October 2010.

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