Consideration
237I have very carefully considered the evidence and the submissions of the parties in this matter.
238Ms Salameh has rightly identified the relevant authorities to be followed by the Commission when exercising discretion under s.175 of the Act. Those principles were enunciated in Zoological Parks Board as follows:
43 The relevant principles to be applied when interpreting industrial instruments are well settled: for example, Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46]. Broadly speaking, the primary consideration in such matters is the actual words used (and these should be given their plain, ordinary meaning) and the context in which the words are used.
44 The construction of an award may include the history of the instrument in some circumstances. The words must be considered in the context of the instrument as a whole although in a practical sense, some parts of the documents will be very significant and others less significant or of no moment at all .
239The Full Bench also went on to say, (as Mr Barnes emphasised in endorsing the authorities relied on by Ms Salameh ):
47 It is clear from the authorities that whilst it is permissible to have regard to the surrounding circumstances in construing a written document, it is impermissible to consider 'evidence of user'.
240Whilst the onus to be discharged is the usual one applicable in this jurisdiction, that being on the balance of probabilities, I accept Ms Salameh's submission, that it is the USU, as the applicant, that bears the burden of discharging that onus, particularly where orders are sought pursuant to s.136 (1)(d), but not in any additional, exceptional way as rightly submitted by Mr Barnes .
241I have to say, at the outset, that arriving at a conclusion in this matter has not been an easy task, as to a large extent public relations/marketing/promotion can be intertwined and are inter-related and they have fundamental elements in common. All three involve the public image of a person/product/service/institution/establishment etc., and the favourable presentation of that image to the public by means of publicity through media in its various forms. On the other hand, the prevention or reduction of a negative image can also be involved, (sometimes referred to as "damage control"). It would be extremely difficult to market or "sell" a product or service (even where no actual price/fee/charge was involved for those goods/products or the service) that had a negative or very unpopular image (or where there was a perception of such in the minds of the public) without first taking steps to address that negative/unpopular image. A classic example of that would be the BP, Gulf of Mexico, oil spill in 2010 where there would have been a public relations exercise involved in the affect on the company's image and a separate marketing exercise to ensure that the public still bought BP products (other examples that come readily to mind in the same category are the recent Queensland floods/cyclone and the subsequent advertising campaigns to encourage the return of tourists generally).
242However, having said that, it seems to me that 'marketing' takes the somewhat narrow and one-dimensional concept of 'public relations' quite considerably further and expands that concept into a much broader, pro-active function. 'Promotion' operates in tandem with 'marketing' in that it concentrates on putting forward a positive image designed to particularly encourage purchase/use of a product/service, whereas public relations would be involved not only with putting forward a positive image but also with countering a negative image.
243Further complicating consideration of these concepts is that in this matter it is argued on behalf of Council that that narrow concept of 'public relations' must be viewed through the focussed prism of award history as being restricted to essentially dealing with tourism.
244In relation to that award history I do accept Ms Tiddy's evidence as to the factual events of that history. The interpretation of that history is clearly given from an LGA perspective however. I consider that Ms Tiddy has undoubted considerable industrial knowledge and experience in the local government area. I also accept that the manner in which she has acquired this knowledge and experience from a combination of first-hand participation and the passing on of knowledge from her predecessors, is in fact the standard way in which industrial officers of both union and employer organisations, of necessity, acquire their knowledge of a particular award/industry. Indeed it is the manner in which I acquired my knowledge, before coming to this Commission, of the history of a variety of awards/ agreements going as far back as 1911 which also involved research of historical documentation and records. Ms Tiddy's knowledge and expertise considerably exceeds that of Mr Hutchinson, as is to be expected given his much shorter length of experience. That is not meant as any reflection on Mr Hutchinson, it is simply a statement of the reality of a comparison between their respective years of service and experience with their respective organisations.
245Whilst there is no doubt, applying the authorities which I am obliged to follow, that the history of the Public Relations Officer and its definition as inserted in the 1969 Award as noted in the Background and Chronology above and its subsequent evolution is relevant and must be considered, also of relevance is the reasonably significant structural change that was subsequently made to the 1992 Award in consolidating the 5 local government awards previously in operation.
246In the 1992 Award the definition of 'Public Relations Officer' was not carried over into the new Award, instead 'Public Relations' was listed as a "function" under the provisions extending a 35 hour week to a number of functions under Clause 16. The submissions made by Mr Barnes as to this change are very relevant to consider.
247Whilst Ms Tiddy argues that 'Public Relations' must be looked at in the light of its history, narrow and focussed as that is, considering the function of 'public relations' results in a somewhat broader concept, in my view, than the former definition of a classification. Not to mention the considerable changes that have occurred in the intervening years (particularly in the Gosford local government area), whether one takes 1969 or 1992 as the starting point.
248It is also relevant that, notwithstanding the passages cited above, the Full Bench in Zoological Parks Board also went on to observe:
53 We do not consider that the history of the disputed clause prior to the making of the agreement assists in its interpretation, in this regard, as the earlier provisions arise in an entirely different context.
249That is a similar position in relation to my consideration of this matter.
250Even if it accepted that the thrust of 'public relations' in the context of the relevant Award is restricted to "tourism" then that is still relevant to the consideration of Mr Stuart's position of Marketing Officer - Leisure and Lifestyle. Whilst Council have attempted to downplay the significance of tourism in Mr Stuart's position (indeed almost discount it entirely as being particularly relevant) especially through the evidence of Mr Moore, I note that the job description for the position indicates that one of the essential qualifications/experience can be that of 'tourism'. That would mean that an occupant of that position could have no marketing qualifications/experience at all and only that of tourism and still successfully meet the requisite essential criteria for the position.
251It is patently clear, on any consideration of the evidence, that whilst the primary target audience of Mr Stuarts's position are the residents of the Gosford local government area there is no doubt whatsoever that the secondary, and also very important target are those persons living outside that area who are visiting the area (and the venues and facilities covered by the LLSU) and may well be classified as tourists, whether that is a tourist from Newcastle NSW, or Newcastle UK!
252In considering the job description for the Marketing Officer - Leisure and Lifestyle whilst there are undoubtedly 'public relations' components that must be carried out, particularly in relation to the media involvement, I consider that for this position to come under the function of 'public relations' and therefore be entitled to a 35 hour week, the majority of the work performed would have to come under 'public relations'.
253It is a fairly long established industrial principle that where there are two or more possible areas of award coverage for an employee, the determining factor is the "major and substantial" test, i.e. how is the majority of the employee's time spent. This principle has equally been applied in the past to situations within a workplace where an employee was carrying out the functions of two or more different classifications, particularly prior to the advent of the broad banding of classifications and the growth of whole of industry awards. Another example is in the case of a possible entitlement to a allowance paid on a weekly basis rather than per hour/shift where it would have to be shown that the majority of the week was spent engaged in the activity attracting the allowance rather than merely one or two shifts etc.
254Sheldon J, succinctly explained this "major and substantial" test in Ware v O'Donnell Griffin (Television Services) Pty Limited (1971) AR 18 at p.19 as follows:
"....This principle is almost as old as industrial arbitration and it makes a practical approach to determining the application of awards where duties are of a mixed character and contain elements which if taken alone would be covered by more than one award. This is not the appropriate occasion on which to discuss the method by which this test should be applied except to say that it is not merely a matter of quantifying the time spent on various elements of work performed by a complainant: the quality of the different types of work done is also a relevant consideration..."
255Having carefully considered all of the evidence in relation to Mr Stuart's position, his job description, and the work he carries out, I do not consider that he spends the majority of his time carrying out the function of public relations. However it is certainly an important part of his work, even when considered through the historical prism pressed on behalf of Council.
256The items that Mr Stuart highlighted in oral evidence in his job description involving marketing, promotion, sponsorships, in my view involve work that goes way beyond mere 'public relations' as I indicated above. Indeed frankly I consider that Mr Stuart downgrades his position and sells himself short (to use an appropriate marketing analogy) by pressing the claim he does. His role is far more than a mere 'public relations' one.
257Council has relied on the fact that as the position of Marketing Officer - Leisure and Lifestyle is located in its structure within the LLSU, which in turn is within 'community services' and that community services employees (with the exception of the Professional/Specialist Band 3) receive a 38 hour week and that consequently Mr Stuart is also on a 38 hour week. Yet the evidence (including evidence from Mr Moore and Mr Clarke) established that he himself has no direct face to face role in the delivery of any of the community services within the umbrella of the LLSU.
258To an extent that is as simplistic an argument as that advanced by the USU.
259As the Commission observed on more than one occasion during proceedings, in one sense all of the various services that a council provides to its local community could be classified as a 'community service'. That is essentially what a council is about, to also put it simplistically. For example rubbish/waste collection is equally the provision of a service to the community, as is the provision of a library, or a community centre, or a childcare service, or a pool, or an art gallery, or a theatre complex, or a lifeguard patrolled beach, or a park, or recreation facilities, and therefore could equally be viewed as a "community service" in terms of the Award. Indeed Ms Tiddy's evidence was that what was a considered a 'community service' could vary from council to council depending on a particular council's determination.
260However, It is fairly obvious that neither Mr Stuart, nor the USU through Mr Hutchinson, investigated, in any way , the basis upon which those 5 positions relied upon to underpin Mr Stewart's Grievance were in receipt of a 35 hour week rather than a 38 hour week. Indeed, initially Mr Stuart relied on the function of 'Administration' under Clause 16 A (II) to ground his Grievance and only subsequently, (somewhere during the stage of filing evidence) did the basis of that claim then move to one be of 'Public Relations', again under Clause 16 A(II).
261I have very carefully considered the evidence before the Commission relating to those 5 positions which comes from the job descriptions as filed. It is the evaluation of each of those positions that has resulted in their respective placement on Council's salary system, and as a consequence of that, the application of a 35 hour week.
262As far as the Sports Liaison Officer is concerned, it is abundantly clear to me, after consideration of the job description, that the functions carried out by this position are administrative in nature. There can be no question whatsoever about that. The position is concerned with the management of bookings (and all that that involves in an administrative sense), and maintenance of a range of records, etc., related to the booking and hiring of facilities. The management and coordination functions as listed in the first four bullet points, as well as the maintenance of databases and responsibility for writing invoices and correspondence are clearly administrative functions and thus the classification of the position under 'Administration' in Clause 16 A (II) of the Award is completely justified.
263The job descriptions for the positions of Active Recreation Officer, and Open Space and Leisure Officer provide that a degree qualification is an essential requisite and having carefully considered the key responsibilities in those job descriptions that seems entirely appropriate. I also consider that the key responsibilities set out in the job descriptions are also quite clearly not only more onerous than those of the Marketing Officer - Leisure and Lifestyle, Mr Stuart's position, but in my view, involve a greater degree of responsibility and autonomy. This is particularly so in the case of the Active Recreation Officer and almost all of the key responsibilities of that position could be listed as examples to support this view. In the case of the Open Space and Leisure Officer the case is not as compelling, but still, on a comparison with Marketing Officer - Leisure and Lifestyle, that position comes out well ahead.
264The Marketing Officer - Communications job description also provides that a degree qualification is a requisite. The key responsibilities of the job description clearly support this and are also more onerous and involve the exercise of a greater degree of responsibility than those Marketing Officer -- Leisure and Lifestyle. However, also quite clearly, if the submissions of the USU were accepted, then 'public relations' is a fairly fundamental aspect of this position even regardless of its evaluation result and indeed on that basis may well pass the 'major and substantial' test.
265The case for the Marketing Officer - Arts and Culture is however far and away the Council's weakest link in any comparison with the Marketing Officer - Leisure and Lifestyle Arts and Culture. The job description indicates that a degree qualification is an essential requisite. Looking at the key responsibilities listed in the position description it is difficult to see why a degree qualification would be an essential requisite for this position and yet such a degree qualification not be an essential requisite for Mr Stuart's position, particularly when the key responsibilities are considered and compared against this background.
266I also consider that it is relevant that there is a significant quantitative difference between the potential of the markets that are the target of the marketing/promotional activities of the two positions. I would suggest that the numbers of both local residents and visitors from outside the Gosford local government area and tourists, would be quite significantly higher in the case of the venues/facilities covered by Mr Stuart's position than that of the Marketing Officer - Arts and Culture. I also consider that this could have reasonably significant implications for the nature and range of marketing/promotional activities required to support those respective venues/facilities.
267Having also carefully considered the key responsibilities of these two positions I just do not accept that the position of Marketing Officer - Arts and Culture is necessarily more onerous than that of the Marketing Officer - Leisure and Lifestyle. Indeed the opposite applies in my view.
268I note that from the documentation attached to Mr Stuart's witness statement (Exhibit 5-AS8), that at some early stage following the restructure and in the evaluation process, the 'Selection Criteria' for the position listed as an 'Essential Criteria' - " Degree qualification in marketing, leisure or tourism OR demonstrated equivalent qualifications and relevant extensive experience in a similar role". However on the second page of that document it indicates that - "Applications close at 5 pm on xxxxxxxxxxxxx2008". This would suggest that this was an earlier version of the selection criteria to that which appeared in the final job description position and as accepted by Mr Stuart where the essential qualification required had been downgraded to a TAFE Certificate IV or equivalent (but still in the same three fields).
269I also note from documentation attached to Mr Clarke's witness statement (Exhibit 15 -N) that in relation to what appears to be an earlier draft of a Job Description for the position dated 24 September 2008 the following was indicated in relation to 'Qualifications and Experience':
Thorough knowledge of one function and concepts associated with a specialist area OR a functional position requiring the application of highly specialised knowledge regarded as an internal expert in a single discipline.
Both require a wide education probably TAFE Certificate level 4 or diploma level, or semi-professional qualification, together with considerable personal experience.
It would be expected that the person would have four, but less than seven year's experience.
270That would suggest to me that there it was not necessarily clear cut that was some equivocation about the level of qualification deemed to be essential to the newly evaluated position.
271Further documentation attached to Mr Clarke's witness statement (Exhibit 15-L) shows that the position was evaluated at "1541.07 points" with a Band/Level of - "2//3 or 3/2" - this was as at the 15/01/2008.
272I also note that when comparing the evaluations of the initial Marketing Officer position (Band/Level 2/1 - 296.87 points) held by Mr Stuart when he joined Council (Exhibit 15-F) in 2006, which was evaluated using Version 19 of the OOsoft/Wyatt Job Evaluation system referred to by Ms Tiddy, with the re-evaluated position (using Version 20), that there was significant upgrading of the 8 listed skills from 'Solid Working', to now requiring 10 listed skills at 'Comprehensive' (with no listing previously at the 'Comprehensive' level) and a significant upgrading from 34 listed skills at the 'Basic' level, to now requiring 17 listed skills at the 'Solid Working Knowledge' level and 21 listed skills at the 'Basic' level. These seem to me to be quite significant changes when the actual named skills are considered and compared.
273I accept that there is no evidence before me as the nature of those skills, their inherent requirements and the work/tasks actually required to be performed etc or the value assigned to those skills. However the issues raised above, based on what documentation is before the Commission does, in my view, warrant further consideration by Council, especially as to the level of qualification essential for the position.
274What should also be kept in mind is that Mr Stuart does have extensive years of experience (more than it appears was considered necessary in the Job Description referred to above) in the relevant fields and holds a degree qualification and that Council has had the benefit of this expertise, education and experience since he commenced in the position . It certainly seems to me, on the evidence before the Commission, that he has brought more to bear to the position than was required or could reasonably be expected.
275If indeed the position had ultimately been evaluated at 3/2 rather than 2/3 then Mr Stuart would have moved into the same band/level as both the Marketing Officer - Communications, and the Marketing Officer - Arts and Culture, that being the Professional/Specialist Band 3, Level 2 and as a consequence he would have been in receipt of a 35 hour week. Such an evaluation would have had no implications whatsoever for other classifications in the LLSU.
276There was no evidence before me as to the detail of Council's salary system, the points applicable to each band/level and the respective cut-off points and the requisite evaluation detail. Thus I am unable to carry out the type of consideration that I brought to bear in settlement of the dispute between the USU and Gilgandra Shire Council in New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Gilgandra Shire Council [2010] NSWIRComm 1053.
277Regardless of the ultimate outcome of this dispute I can see no implications whatsoever arising for the other classifications within LLSU, and particularly those other classifications that were referred to in Mr Burling's memorandum of October 2009. Whilst there was no evidence as to the work performed by those classifications, and no job descriptions in evidence, the title of each classification speaks for itself. They are supervisors , supervising the very community service that is being provided by the various venues/facilities within the LLSU, thus bringing them squarely within 'community services'. The only way that any one of those classifications could be considered as coming within any of the criteria for a 35 hour week as provided for in the Award would be by way of their evaluation as coming within the Professional/Specialist Band 3 Level 2 of Community Services.
278I should also note that there was also no evidence before the Commission to support the assertion that the granting of a 35 hour week to Mr Stuart would have some effect of requiring 3 hours work to be taken up by other employees. That is in my view a quite ludicrous proposition and not supported by the evidence of what Mr Stuart's responsibilities are, the autonomy with which he operates and the lack of any obvious direct interaction with others within the LLSU (apart from the Coordinator).
279I have come to the conclusion that the work performed in the position held by Mr Stuart of Marketing Officer - Leisure and Lifestyle does not fall under the 'Public Relations' function of Clause 16A(II) of the Award as it does not satisfy the 'major and substantial' test enunciated by Sheldon J in Ware v O'Donnell Griffin . Therefore the application for the orders made by the USU must fail.
280However that is not the end of the matter, as I am of the very firm view that the position of Marketing Officer - Leisure and Lifestyle should be re-evaluated as on the limited evidence before me it would appear that it should more properly sit within the Professional/Specialist Band Level 3 and as a result a 35 hour week should apply. I note that in Zoological Parks Board the Full Bench went on to observe as follows:
56 We consider that both parties were in error in arguing the case on an all or nothing basis. We consider that the interpretation to be given to the relevant provision is one that is not quite as wide as that provided by the Deputy President's interpretation. On this point, we note that what a court considers to be the correct interpretation is not limited to the particular contentions put by the parties. This conclusion is usefully set out in Pearce and Geddes, Statutory Interpretation in Australia , 5th ed, Butterworths, Sydney 2001 at pp. 4-5, where the learned authors state:
McGarvie J in Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 at 547 pointed out that responsibility rests with the court for the interpretation to be placed on an enactment. He cited Lord Wilberforce in Saif Ali v Sydney Mitchell & Co (A Firm) [1980] AC 198 at 212: 'Judges are more than mere selectors between rival views - they are entitled to and do think for themselves'. The fact that counsel have not supported a particular interpretation of legislation does not, indeed must not, prevent a court from adopting that interpretation if the court considers the interpretation to be correct. The approach of McGarvie J was adopted in Whelpton v Kur-Ring-Gai Council (1994) LGERA 120 at 126 (emphasis added).
See also Gibson v Western Sydney Area Health Service [2003] NSWIRComm 465 at [32].
281I appreciate that I am not adopting a different interpretation to the relevant Award provision to that argued by either side, as was the case above. Essentially what I am saying to the parties is that a different approach altogether should be applied to the issue in dispute and to the resolution of the Grievance of Mr Stuart.
282The Commission therefore determines as follows:
1.The application for orders is dismissed.
2.A very strong recommendation is issued to the parties, and in particular Gosford City Council, that a re-evaluation of the position of Marketing Officer - Leisure and Lifestyle be conducted as a matter of priority having regard to the observations made in this decision.
3.Any dispute about such re-evaluation should be the subject of a separate notification pursuant to s.130 if the assistance of the Commission is sought by either party.
283This matter is concluded.
Elizabeth Bishop
Commissioner
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Decision last updated: 18 July 2011