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[2012] NSWIRComm 1016
Industrial Relations Commission (NSW)
2012-04-17
Mr J
Original judgment source is linked above.
DECISION 1The dispute notification subject to these proceedings can be conveniently summarised as follows:
THE evidence Mr J Mather 4Mr Mather's written evidence and 17 attachments was set out in Exhibit 1 and tendered in proceedings. It was Mr Mather's evidence that his position at the MALC Facility was re-evaluated in July 2009 as part of Council's Organisational Restructure. At that time, he and Mr Potter worked independently through the JEQ. Mr Potter subsequently agreed with Mr Mather's JEQ responses. A copy of Mr Mather's JEQ was set out under Tab C of Exhibit 1. 5The JEQ was subsequently forwarded to Workforce (a HR Unit within Council) for input into the OO-Soft program to determine the position grading. 6Mr Mather contended that prior to the OO-Soft program being applied to his JEQ results, Mr S Webster, a Workforce employee, made certain alterations to his JEQ. Those alterations were marked with a red pen on the right hand border of each page as set out under Tab C of Exhibit 1. 7Mr Mather stated he had sought and been afforded three reviews of his JEQ results. However such reviews were conducted without his participation. 8Mr Mather's written evidence identified the 13 job evaluation factors and the responses amended by Workforce under questions 2.3, 2.5, 2.7, 3.2, 4.3.2, 5.4, 5.5 (subfactor 6), 5.5 (subfactor 7), 5.6 (subfactor 1), 6.1, 6.3, 7.1 and 7.2 : 13. Question 2.3 'Technical skill' definition = relating to technique or proficiency in a practical skill required for position. What level of influence does the work of the jobholder have on the external environment? Position involves application of practical pool operations skills such as water testing & monitoring, plant & equipment operation, filtration systems, systems programming, plant & equipment fault diagnostics. Incorporates aspects of plumber, fitter, electrician trades. See RLSSA Aquatic Supervisors (operations) course description that outlines technical/practical components required as part of certificate. [Tab 1] Position recognised as technical expert in this industry, upline managers do not possess industry knowledge/skills. Position responsible for applying "regulatory requirements" such as OH&S Act & Regs, NSW Public Health (Swimming Pools & Spa Pools) Regulation, Dangerous Goods Act & Regs, Local Government Act (Practice Note 15 Water Safety) etc. 14. Question 2.5 Response 3 refers only to developing budget and costing expenses, it does not include 'controlling' within approved budget. What involvement does this job have in developing budgets for future expenditure and setting priorities for the allocation of funds? Argument that MALC is "major functional area" essentially a stand-alone enterprise separate from main council functions operates extended hours, 7 days per week (86hrs/wk compared 40hrs/wk for rest of council) employs approx 18% of workforce and generates over 160,000 visitations per year 28 key budget areas reported in GTCC Operational Plan 2010-11(includes 5 departments) See GTCC Budget Comparison spreadsheet [Tab 2] MALC 2nd highest income ($920k) behind one-off major waste contract, only 5 areas with income greater than $500k generated as non-standard revenue subject to external market forces requiring constant analysis of budget projections against performance income directly influenced by actions of position in marketing services & programs available at MALC MALC 5th highest expenditure ($1.5m), only 9 areas with expenditure over $1m expenditure items include personnel, maintenance, utilities, advertising, stock etc expenditure is variable in nature requiring constant control and review, most other areas mainly just set employee costs Argument that position "controls expenditure" Position has full delegated authority up to budgeted amounts in all MALC cost centres (Exp = $1.5M, Inc = $0.9M), see 'Level of Supervision/Accountability' section of Facility Supervisor Position Statement [Tab 3] Position is 'accountable' for controlling budget and justifying any budget variances or adjustments, see 'Decision making authority' section of Position Statement [Tab 3] Direct supervisor (Senior Leader ) has no involvement or control over financial management of MALC. 15. Question 2.7 Response 3 only involves the "development" of revenue targets (budget), not the actual active management and balancing of income & expenditure throughout year What level of management of revenues and expenditure is required by the job? Argument that MALC budget is comparable to a "major project" compared to other GTCC sections as demonstrated in Q2.5 Upline manager has no involvement in day to day financial management of MALC 16. Question 3.2 Position required to evaluate and investigate variety of complex issues due to diverse role incorporating facility management, plant operations, personnel management, promotions & marketing, high volume customer service, regulatory requirements, financial management, range of programs & services, dynamic commercial environment, critical incident management What is the level of innovation required in the job? 17. Question 4.3.2 Need to determine whether this section is total number of employees engaged in section or number of employees working at any given time What is the total number of employees (full-time and part-time) that the job holder supervises, either directly or indirectly? Supervision of these people must occur on a regular basis and contractors and work experience are not included. People employed as part of long term employment programs would be covered in this question. If total then Response = 6 (41-80) [Tab 4] If rostered then need to review question 4.3.1 again to reflect position regularly supervising all staff on daily rosters in absence of supervisors due to extended trading hours 18. Question 5.4 Supervisor upgraded response to 4 since the position is responsible for more than just team building/development. What interaction or teamwork skills (including team building and development) are required in conducting the normal activities of this job? Position responsible for establishing and implementing promotional plans, see "Promotion" section of Position Statement [Tab 3] & MALC Promotion Plan [Tab 5] Position responsible for establishing and achieving business plan goals for section (KPI's & Key initiatives) [Tab 6] as shown in Forward Performance Plan: Facility Supervisor [Tab 7] Position involved in project plans for section, see Pool Management EOI Project Plan [Tab 8] Position responsible for setting forward performance plans for team members as part of annual performance appraisal process, see Forward Performance Plan - Rhiannon Hardy [Tab 9] 19. Question 5.5 (sub factor 6) Resolving conflict with patrons occurs both frequently and is of critical importance, see "Key Interpersonal Abilities" section of position statement [Doc/Tab 3] What is the frequency of the various types of one-on-one communication required by this job? Communications may be with other staff, general public or staff of other organisations. 20. Question 5.5 (sub factor 7) Providing advice and recommendations for problems occurs both frequently and is of critical importance What is the frequency of the various types of one-on-one communication required by this job? Communications may be with other staff, general public or staff of other organisations. 21. Question 5.6 (sub factor 1) Position participates in regular Community Wellbeing department meetings, sustainability group meetings and other special project meetings that are important in the operations of MALC What is the frequency of the various types of group communication required by this job? Communications may be with other staff, general public or staff of other organisations. Sub Factor 1 - Participate in meetings/group discussions 22. Question 6.1 Argument that position description stipulating tertiary qualification refers to university degree as other key TAFE level qualification are listed separately. Qualifications and Experience Most Senior Leader positions use same terminology in their Positions Descriptions - "suitable tertiary qualifications" TAFE qualifications in this industry not related to management of facility Cert IV in Fitness = personal trainer, see TAFE course overview [Tab 10] Cert IV in Community Recreation = program coordinator/recreation coordinator, see TAFE course overview [Tab 11] Cert IV in Frontline Management = basic supervisors course many lower level GTCC employees have completed [Tab 12] Position requires high degree of expert knowledge in a major field of critical importance (leisure facility management and pool plant operations) as MALC is major independent/functional arm of Council and this position is recognised as industry expert, upline managers do not have specialised industry experience See previous evidence demonstrating the complexity and accountability associated with this position that requires more than just "personal experience" (response 4) but instead need "extensive business experience" (response 5), see the various experience and skills listed in "Selection Criteria" section of position statement and "Key Responsibilities & Duties" section of position statement. [Doc/Tab 3] 23. Question 6.3 No option to select Pool Operations certificate, identified as essential criteria in position statement In addition to the education requirements, does the Council require other certification, accreditation or special licences? No option to select Pool Lifeguard certificate, although not identified in position statement it is a pre-requisite to obtain Pool Operations certificate (which is essential). [Tab 1] Pool Lifeguard certificate is identified in Outdoor Pool Supervisor position statement. [Tab 13] Confined Spaces certificate not addressed in essential criteria but position has been identified as part of GTCC confined spaces team and is now required to complete confined spaces certificate, see Training Register [Tab 14] Closest alternate response options for Pool Lifeguard = Bronze Medallion + Advanced First Aid No suitable alternate response for Pool Operations certificate. 24. Question 7.1 See previous evidence that MALC is a 'section' What is the level of operational knowledge needed by the jobholder to competently complete the tasks required in the job? Position requires operational knowledge of various departments such as Finance (invoicing, reporting, purchases, cheque requisitions etc), IT (networking, support, applications etc), HR (recruitment, performance management, award conditions etc) Position requires operational knowledge of various sections such as Trades (job requests etc), Media & PR (advertising, promotions, public relations etc), Stores (purchasing, stock control etc), Mechanical Services (job requests etc), Pay Office (timesheets, employee entitlements etc) Based on above evidence upgrade response to 3(1) & 2(2) 25. Question 7.2 Sub factor 20 Meeting Procedures In order to achieve the overall purpose of the job, what is the level of skill required from each of the following areas? Position conducts regular section meetings so sound knowledge required (response 2) Sub factor 30 Fire Safety/Evacuation Position acts as Chief Warden at MALC so require solid working knowledge of systems and procedures (response 2) Sub factor 79 Stores Stock Control Variety of stock & resale goods sold through MALC so solid working knowledge of stock control required (response 2) Sub factor 82 Stocktaking Procedures Stocktaking knowledge required to maintain appropriate stock levels to support evidence provided in sub factor 79 (response 2) Sub factor 209 Recruitment/Employment Position required to submit recruitment forms, shortlist applicants, interview panel, induction new staff into section so sound knowledge required (response 2)
9In a statement in reply filed in these proceedings (Exhibit 2), Mr Mather stated the MALC Facility is a multi-million dollar aquatic and leisure centre that includes a 50m outdoor pool, 25m indoor pool and leisure pool, health club, aerobic room, kiosk and crèche. 10Mr Mather challenged the evidence filed by his direct supervisor, Mr B Currie, Senior Leader, Community Wellbeing, who considered the functions of the MALC Facility Supervisor and Council's Outdoor Pools Supervisor to be "generally similar". In that regard, Mr Mather made the following financial and facility attendance observations: MALC Facility Outdoor Pools $ $ Budget - Income 925,000 74,000
11Mr Mather also referred to the evidence filed by Mr R Posselt, Executive Leader, Service Delivery and contended that as both Mr Posselt and Mr Currie were fairly new to Council they lacked an appreciation of both the MALC Facility and the duties and responsibilities of the MALC Facility Supervisor position. He further contended in evidence that neither Mr Currie nor Mr Posselt had undertaken a complete walk through the MALC Facility to understand what the Facility entailed or had sought from him a detailed description of the duties and responsibilities associated with the MALC Facility Supervisor position. 12Accordingly, Mr Mather contended it would be difficult for either Mr Posselt or Mr Currie to conduct an accurate evaluation of the MALC Facility Supervisor position in the absence of a detailed knowledge of the position and the Facility itself. 13In cross-examination, Mr Mather stated he had been employed in the position since 2006 and the role had essentially remained unchanged. He confirmed the position statement set out under Tab 2 of Exhibit 1 was the version issued by Council in 2009 and both the 2006 and 2009 versions of the document were broadly similar. Mr Wilding subsequently took Mr Mather to his evidence in Exhibit 1 where he set out a "rebuttal" to the JEQ questions subject to re-evaluation by Workforce in/or around July 2009. 14In relation to question 2.3: What level of influence does the work of the job holder have on the external environment ? Mr Mather confirmed the position required practical pool operation skills such as water testing and monitoring, plant and equipment operation, knowledge of filtration systems, systems programming, plant and equipment fault-finding and elements of the plumber/fitter/electrician trades undertaken routinely on a daily, weekly or monthly basis. He also contended his current and previous managers did not hold the technical skills required under the MALC Facility Supervisor position statement. 15Mr Mather confirmed much of the plant operates 24/7 and in the event of malfunction or breakdown, he is called in or contacted to investigate and attempt to diagnose the problem so as to enable the MALC Facility to keep operating. 16In relation to question 3.2: What is the level of innovation required in the job ? Mr Mather stated he was required to be an effective centre manager and in that regard he directly supervised the aquatics/lifeguard co-ordinator, health club co-ordinator, swim school co-ordinator and the administrative co-ordinator. A number of employees including fitness and swim school instructors, receptionists and crèche attendants were indirectly supervised. 17In relation to question 7.2: In order to achieve the overall purpose of the job, what is the level of skill required from each of the following areas ? Mr Mather confirmed:
Organisation
Finance
Promotion
Desirable tasks or responsibilities:
Mr A Shurety 25Mr Shurety is the Council's Senior Workforce Officer, a position held since August 2002. Part of his role with Council is to: ... respond to organisational and employee requests for the evaluation of positions. 26Mr Shurety deposed he had been trained in the OO-Soft process and had used the program "many times". He stated Council considered a number of factors when evaluating a position including:
Mr B Currie 49Mr Currie joined Council in May 1999 and has been in the position of Senior Leader, Community Wellbeing since February 2011. He is responsible for a number of service delivery teams including the MALC Facility. 50At the request of Workforce, Mr Currie recently assessed the position against his current knowledge and expectations. Shortly stated, he considered the functions of the MALC Facility Supervisor position to be: ... generally similar in terms of process, patron and staff management to the functions of the Outdoor Pools Supervisor which also reports directly to me. 51In cross-examination, Mr Currie confirmed that Mr Potter was previously responsible for the management of the MALC Facility for a number of years. He also stated he was familiar with the OO-Soft program but had not undertaken an OO-Soft Workplace Assessor course. He reluctantly agreed there was no "mechanism" under the JEQ Guidelines for Council to intervene once the supervisor and job holder had agreed on the outcome of the JEQ process. 52Mr Currie estimated that during the 12 months he had been employed in the Senior Leader role he had visited the MALC Facility about 6 times. He had also met with Mr Mather on a regular basis and discussed aspects of his position. 53Mr Currie admitted he had no experience in "running a facility such as the MALC Facility". 54Mr Currie contended the Outdoor Pool Supervisor supervised a number of manned and unmanned pools and, with respect to the "manned pools", the supervisor would generally supervise two or three persons per shift when patronage peaked over summer holidays. 55Mr Currie was referred to the position description for the Outdoor Pool Supervisor position and confirmed the position required:
Mr R Posselt 58Mr Posselt joined Council as Executive Leader, Service Delivery in February 2010. Mr Currie reports directly to him. 59Mr Posselt's written evidence was that the MALC Facility Supervisor was primarily a facility manager's role consistent with other team leaders at the Grade 5 level. Mr Posselt met with Mr Currie and Mr Mather in mid 2010 to discuss the previous 2009 OO-Soft process and outcomes. At that meeting he told Mr Mather: the judgements in the original OO-Soft process could not be changed as staff members undertaking the role were now in different roles". 60 Mr Mather subsequently declined an offer to recommence the evaluation utilising current staff members. He also advised Mr Mather that he was not in a position to overturn the General Manager's decision to reject Mr Mather's earlier grievance appeal. 61Mr Posselt's evidence identified the MALC Facility Supervisor and the Art Gallery Facility Manager were both Grade 5 positions. In that regard, Mr Posselt contended the following: The grade of a position in the structure of Council is based on the position description which describes the expectation of the position. It is not uncommon for individuals to have skills beyond their position description. I often have discussions with staff members that requires them to understand the skills required by the position, which is how they are remunerated, compared to their own skills and perceived responsibilities. 62In cross-examination, Mr Posselt agreed the MALC Facility operated autonomously in terms of the functions that were provided to the community. In that regard, Mr Mather was responsible for the day-to-day running of the MALC Facility and operated the Facility independently. 63Mr Posselt was shown a copy of the MALC Facility Supervisor position description and in that regard he confirmed Mr Mather "makes financial decisions based on budget allocations". In reference to his written evidence contending that it was "not uncommon for individuals to have skills beyond their position description", Mr Posselt agreed he had never advised Mr Mather that he had skills beyond his position description. 64Mr Martin referred Mr Posselt to Paragraph 9 of the JEQ Guidelines. Mr Posselt agreed that where a supervisor and a job holder agreed on the outcome, the JEQ Guidelines made no provision for Council to intervene. With respect to his evidence that the MALC Facility Supervisor and the Art Gallery Director positions were both graded at Grade 5, Mr Martin referred Mr Posselt to the December 2011 Salary System information set out in Exhibit 4 tendered in proceedings. He was also shown a copy of the Art Gallery Director position description. Mr Posselt subsequently stated the following:
Applicant 65Mr Martin submitted that the purpose of the JEQ Guidelines was to provide assistance to the parties. Once agreement had been reached between the supervisor and the job holder, there is, as Mr Shurety accepted, no formal verbal or written agreement process to take the matter further should a dispute arise with respect to the evaluation. 66Council failed to call Mr Potter, Mr Mather's supervisor at the time of the first JEQ evaluation in July 2009 and the Commission should draw an inference that Mr Potter would not have been beneficial to the respondent's case as in Jones v Dunkel (1959) 101 CLR 298. 67It was Mr Shurety's evidence that Mr Mather was a fourth tier employee in Council's salary structure properly graded at Grade 5. Under cross-examination, Mr Shurety acknowledged he himself was also a fourth tier employee but graded at Grade 6. Mr Shurety conceded he did not have the same authority and accountability with respect to budgetary matters as Mr Mather nor the same level of accountability and responsibility concerning the supervision of staff. 68Mr Martin submitted Mr Shurety had admitted to a limited understanding and knowledge of the practical requirements of the role of the MALC Facility Supervisor position yet, "he was sitting in judgment of the two people that most know the position, the supervisor and the incumbent" (TR 17/04/12 p3 lines 16-17). 69Mr Mather's immediate supervisor, Mr Currie, was relatively new in the position and during the past 12 months had only visited the MALC Facility on six occasions. His knowledge of the MALC Facility Supervisor position was limited to what Mr Mather had told him. Accordingly, Mr Currie's OO-Soft job evaluation of the position was simply his perception of the role based on his visits to the MALC Facility and discussions with Mr Mather: When pressed ... that he'd had a formal meeting with Mr Mather in respect to the requirements of the job, he said there was no formal agenda, there was no formal request to sit down and talk with Mr Mather and there was no outcomes in respect to any formal discussions (TR 17/04/12 p3 lines 31-34). 70Mr Posselt's evidence largely focussed on a comparison between the Art Gallery Manager position and Mr Mather's position. The Art Gallery position supervised three to four staff whereas Mr Mather's position supervised up to 50 staff. It was also a "free" facility that generated little income. 71Mr Martin submitted Mr Posselt had suggested the MALC Facility and the Art Gallery were "vastly different facilities" (TR 14/03/12 p81 line 5) and agreed the MALC Facility Supervisor position had a greater responsibility for budget income (TR 14/03/12 p81 lines 32-33). 72Mr Martin contended Mr Posselt had based his position evaluation decision on his understanding of the perceived responsibilities of Mr Mather's position and contended the position encompassed a facility manager's role within a standalone function of Council. 73Mr Martin stated the MALC Facility Supervisor position description satisfied the Skilled Descriptor requirements of the Award for Grade 6. Accordingly, there was no discretion for the Commission to decide if Mr Mather's position was correctly graded at Grade 5, Band 2 Level 3 or Band 3 Level 2 because the position description required tertiary qualifications. Mr Martin subsequently drew the Commission's attention to the following Award Skill Descriptors: The Authority and Accountability requirements of the Administrative/Technical/Trades Band 2 Level 3 under Clause 5, Skill Descriptors of the Award state: May be responsible to provide a specialist/technical service and to complete work which has some elements of complexity. Make recommendations within council and represent council to the public or other organizations. The Authority and Accountability requirements of the Professional/Specialist Band 3 Level 1 state: Provides specialised/technical services to complete assignments or projects in consultation with other professional staff. May work with a team of technical or administrative employees requiring the review and approval of more complex elements of the work performed by others. The Qualifications and Experience requirements of the Administrative/Technical/Trades of the Professional/Specialist Band 2 Level 3 state: An advanced certificate, associate diploma, appropriate in-house training or equivalent combined with extensive experience in application of skills in the most complex areas of the job. The Qualifications and Experience requirements of the Professional/Specialist Band 3 Level 2 state: Positions at this level would have supplemented base level professional qualifications with additional skills training. Considerable practical experience or skills training would be required to effectively control key elements of the job. The Qualifications and Experience requirements of the Professional/Specialist Band 3 Level 3 state: Tertiary qualifications combined with a high level of practical experience and an in-depth knowledge of work. 74In closing, Mr Martin urged the Commission to make a direction or a recommendation pursuant to s 136(1) of the Act that the Greater Taree City Council recognise and pay Mr Mather under Council's salary system at the Award Grade 6, Band 3 Level 3 rate. The fact that Council had accepted much of Mr Mather's evidence-in-chief supported the claim that the MALC Facility Supervisor position be graded at Grade 6.
Respondent 75Mr Wilding submitted Council's job evaluation process correctly utilised the position description, JEQ and the Award Skill Descriptors to grade the MALC Facility Supervisor position at Grade 5. In that regard, the Union and Mr Mather had failed to demonstrate, on the balance of probabilities, that Council had erred in that process. 76The OO-Soft JEQ is a program underpinned by the Award Skill Descriptors and used to assist Council with grading a position. It was Mr Shurety's evidence that Council, when grading a position, utilised the position description, Award Skill Descriptors and the JEQ to determine the appropriate grade. 77During proceedings it was established that the 2009 position description for the MALC Facility Supervisor position attached to Mr Shurety's affidavit and signed off by Mr Mather, was the version applied to the initial JEQ undertaken in conjunction with Mr Potter. It was Mr Mather's evidence that his current position description reflected the duties he performed. Mr Wilding contended the position description was a significant part of the job evaluation process and it was important that it reflected the duties of the position accurately. 78In cross-examination, Mr Mather confirmed his role had essentially remained unchanged since his appointment in 2006 and it was clear from his evidence that both Mr Mather and Council had agreed with the position description when first assessed. Moreover, the intervention of Workforce was prompted by Mr Mather's failure to correctly apply his position description when answering questions in the JEQ. Council's approach was consistent with the Local Government Award Restructuring Implementation Kit developed by the parties to the Award in or around 1992. 79Mr Shurety's evidence was that when determining where positions fall within Council's salary system, Council initially used the role's position description to determine where tasks of that position fall under the Award within a particular band and level. In cross-examination, he explained Council used a spreadsheet where elements of the position description were viewed against three of the potential band and level outcomes. Council subsequently determined which of the three levels was the most appropriate considering the elements within the position description. Consideration of internal relativities was a consideration but not the sole determinant when evaluating a position. 80Mr Wilding referred to Mr Mather's 2009 position description and contended Mr Mather had confirmed the majority of tasks performed were commensurate with the Administrative/Technical/Trades Skill Descriptors within Band 2 Level 3 of the Award as follows:
Consideration 101Mr Martin submitted the Commission should draw a Jones v Dunkel inference from the failure of the Council to call Mr Potter. 102The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with the decision in Jones v Dunkel. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn. An unfavourable inference cannot be drawn solely on the basis that the witness was not called. There must be a basis elsewhere in evidence to support that inference. 103In the present case it was not unreasonable for Council not to call Mr Potter. The JEQ completed in 2009 by both Mr Potter and Mr Mather was clearly in evidence. In any event, had the Union considered Mr Potter's evidence pivotal to these proceedings it was open to them to subpoena him. 104At the outset, the JEQ Guidelines themselves do not provide Council with a right or opportunity to intervene in circumstances where the incumbent and his or her supervisor have agreed on the final JEQ results. The JEQ Guidelines do however provide a vehicle for a Councils: ... to determine a mechanism to resolve the differences between the supervisor and job holder. 105There is simply no evidence before the Commission that Council has either met or considered this requirement of the JEQ Guidelines prior to Mr Mather's claim. Nor was evidence presented that Council has subsequently determined the rules to apply in circumstances where it disagrees with or seeks to question the relevant JEQ results agreed to by both employee and supervisor. 106In my opinion, it would appear that the industrial parties at the time the JEQ Guidelines were drafted were conscious of the need for an agreed process to be available to review JEQ results so as to uphold the integrity of the process and prevent any contrived arrangements. In that latter regard, Council does not assert the 2009 JEQ results agreed to by Mr Potter and Mr Mather were in any way contrived. That said, the real issue for determination is whether the position should be regraded to Grade 6. 107Mr Martin contended Council could not grade the MALC Facility Supervisor position at Grade 5 with Skill Descriptors aligned to Band 2 Level 3 or Band 3 Level 2 because the position description required tertiary qualifications. 108It is clear on the material before the Commission that Council has not seriously challenged the evidence-in-chief filed by Mr Mather in support of his claim that the position of MALC Facility Supervisor be graded at Grade 6 consistent with the defined Qualifications and Experience of the Professional/Specialist Band 3 Level 3 which require the incumbent to hold tertiary qualifications combined with a high level of practical experience and an in-depth knowledge of work. 109Tertiary education in Australia is largely provided by universities for higher education sector degree courses and TAFE institutions for Vocational Education and Training and some higher education courses. TAFE provides advanced certificate, associate diploma and diploma level training. Mr Mather's tertiary qualification is a university degree. 110The Council's salary system is a skill-based structure that classifies or grades employees in an objective and impartial way. That was most certainly a clear objective of the parties when the new award was made in 1992. At that time, the new Award proposed that six Skill Descriptors would guide the transfer of employees to their correct band level. Those descriptors set out under Clause 6.1 of the 1992 Award can be summarised as follows:
111The various Bands and Levels are differentiated in part by education qualifications. The Administrative/Technical/Trades of the Professional/Specialist Band 2 Level 3 requires an advanced certificate, associate diploma, appropriate in-house training or equivalent qualification while the Professional/Specialist Band 3 Level 2 requires supplemented base level professional qualifications with additional skills training. 112The Professional/Specialist Band 3 Level 3 requires tertiary qualifications. What is evident between Band 2 Level 3, Band 3 Level 2 and Band 3 Level 3 is the prerequisite for higher educational standards. Clause 9 under the 1992 Award states: A position in Band 3 is most likely to require a tertiary qualification at either degree or diploma level. Attainment of post-graduate qualifications would facilitate progression within the band. 113Moreover, Clause 9 of the Award defines Professional/Specialist staff in the following terms: ... employees who provide specialist services to council and require a professional qualification. They have specialist training which, above the band entry level is supplemented by experience either within or outside Local Government. Community services, engineering, human resources, health and building and town planning are examples of key business areas which currently require professional/specialist expertise in the planning, development and implementation of council services/policies. Key elements of such positions relate to the ability to solve complex problems, integrate information in the development of policies, take accountability for decisions and exercise delegated authority. 114The Authority and Accountability Skills Descriptor for Band 3 Level 3 states, in part, that the position "may manage several major projects or sections within a department of Council". In that regard, the evidence of Mr Mather was that he had total responsibility for the day-to-day operations of the MALC Facility and within that position authority he directly supervised the aquatics, health club, swim school and administrative co-ordinator positions and areas of activity. The evidence of Mr Posselt confirmed the MALC Facility operates autonomously, which prima facie meets the requirements of the Authority and Accountability Skills Descriptor. 115The Judgment and Problem Solving Skills Descriptor calls for a high level of independence in solving operational, technical or service problems and using judgment. The evidence in these proceedings was that Mr Mather is the MALC Facility's first point of contact 24/7 to attempt to diagnose or fault-find plant malfunctions prior to contracting work out to a specialist when the problem lies beyond his knowledge capability. It was also Mr Shurety's evidence in cross-examination that budget preparation undertaken by Mr Mather was a technical function. 116Moreover, the Specialist Knowledge and Skills Descriptor calls upon the incumbent to, amongst other things, use their skills and knowledge to resolve operational problems. Similarly, the incumbent requires an ability to manage staff, resolve operational problems and participate in a management team to resolve key problems. These attributes were drawn to the Commission's attention in Mr Mather's written evidence. In that regard, Mr Shurety's evidence was that suitable management experience was "essential criteria" for the MALC Facility Supervisor position. 117Mr Currie, Mr Mather's current direct supervisor, who at first considered the MALC Facility Supervisor position and the Outdoor Pools Supervisor position comparable, agreed in cross-examination that the Outdoor position did not require "suitable management skills". He also agreed the functions and the degree of staff management to be exercised by the MALC Facility Supervisor were different to those required by the Outdoor Pools Supervisor. 118It was Mr Posselt's evidence that the MALC Facility operated autonomously and Mr Mather was responsible for its day-to-day operation without his (Mr Posselt's) direct intervention or interference. 119Positions at Band 3 Level 3 require the incumbent to exercise a range of interpersonal skills ranging from conflict or problem resolution to communication skills within and outside Council. The position also calls for tertiary qualifications combined with a high level of practical experience and an in-depth knowledge of the work. The evidence in these proceedings was that Mr Mather held a relevant university qualification consistent with the expected requirements of positions at Band 3 Level 3. 120Mr Mather's evidence confirmed he was required to exercise "excellent" written and oral skills in the conduct of his position as MALC Facility Supervisor. He was also required to resolve conflict in the workplace which might arise between employees, or in the sense of customer service, the general public. In any event, Mr Mather's evidence concerning his exercise of conflict resolution and communications skills was not negated by the evidence of Mr Shurety, Mr Currie or Mr Posselt. 121What is clear on the evidence in this matter is that JEQ reviews of the MALC Facility Supervisor position undertaken by various Council officers were based on their perception of the position, a perception grounded on limited knowledge concerning the operations of the MALC Facility and the range of skills, responsibilities and functions exercised, or required to be exercised, by Mr Mather. 122There is no evidence before the Commission to indicate Mr Webster's knowledge and practical understanding of the MALC Facility or the MALC Facility Supervisor role. 123Implicit in the JEQ Guidelines is the requirement that the job holder and supervisor review the relevant job information questionnaire and "hopefully" agree on the responses to each question. That requirement was completed by Mr Mather and Mr Potter in July 2009 and the position was determined to be graded at Grade 6. 124The JEQ Guidelines require Council "to determine a mechanism to resolve differences between the supervisor and job holder". No such mechanism has been determined. However, in any event, there is no dispute, on the evidence before the Commission, between Mr Mather and Mr Potter with respect to the JEQ responses set out by Mr Mather. 125As a matter of logic, it would seem apparent that the JEQ Guidelines envisage the job holder's supervisor is a person who should have a reasonable understanding of the requirements of the job under review. In this matter, the evidence was that Mr Potter had previously managed the MALC Facility for a number of years. Against that backdrop, the circumstances of this matter suggest that the relevant Council officers were not qualified to review Mr Mather's JEQ. The evidence was that they had little understanding of both Mr Mather's role and the varied functions and operations of the MALC Facility.
Direction and Recommendation 126In all the circumstances and after careful consideration of the evidence and arguments presented, I direct that the MALC Facility Supervisor position be aligned with the skills and competencies required of Professional/Specialist Band 3 Level 3 under the Award and graded at Grade 6 under the Council's salary system on and from 28 April 2011. 127The integrity and transparency of the JEQ process is critical to its effective operation. In that regard, I recommend that Council gives consideration to establishing a joint committee comprising equal numbers of Council and employee representatives trained in the JEQ and OO-Soft program processes to assist, where necessary, in the orderly resolution of "differences between the supervisor and job holder" consistent with the requirements of Clause 9 of the JEQ Guidelines. That committee could be called upon to vet and monitor the JEQ process to ensure the integrity of the salary system and parties' Award obligations are maintained at all times. 128This matter is now concluded.
COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 July 2012
Jones
Dunkel
(1959) 101 CLR 298