Notification under section 130 by New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union of a dispute with Lake Macquarie City Council re job sizing of position [2011] NSWIRComm 94

The Evans Webb Job Evaluation System 19The Organizational Job Evaluation - Local Government in NSW Job Evaluation Handbook ("the Handbook"), copyright to Evans Webb Associates Pty Ltd, is tendered as an attachment to the affidavit of Ms Houlihan (Ex 6, Attach. B). The foreword to the Handbook states: This manual has been written with the aim of assisting in the current grading and classification of positions in Councils. The examples and definitions in the Manual have five reference points: l. Common positions in the external community so that Councils maintain community standards in their gradings. 2. This manual is supplemented by around 200 standard evaluations in relevant job families. 3. Benchmark positions are selected for each Council as it is currently organised. It is recognised that the organisation may change from time to time, so it will be necessary to refer back to community standards. 4. The purpose of the job evaluation technique is to arrive at objective evaluations of positions. Questions of salary and conditions, and temporary shortages of certain skills, are excluded from such considerations. 20The Handbook details that there are three evaluation factors, each with identified components. These are set out in the contents page in the following terms and appropriately detailed throughout: THE EVALUATION FACTORS Page Authority and Accountability

• Authority I - 1
• Responsibility, or $ budget for relevant organisational unit I -9
• Impact I -11 Judgement and Problem Solving
• Breadth of Issues II -1
• Complexity II -8 Expertise
• Specialist Knowledge and Skills Qualifications and experience III -1
• Management skills III -12
• Interpersonal skills III -20

21The Evans Webb System used by the Council to assess the skill descriptors within a position description results in a point score for each descriptor which, when aggregated, determines the salary level. 22In assessing the positions in the descriptors of Development Engineer the JSC arrived at the following conclusions (Ex 4 Attach DW10): Development Engineer - General Team Authority & Accountability C=80 335 Judgement & Problem Solving C=3+ 255 Expertise E-2X 600 Total 1190 Grade 16

Development Engineer - Medium Team Authority & Accountability C=80 335 Judgement & Problem Solving C+3+ 280 Expertise E=2X 655 Total 1270 Grade 16

Senior Development Engineer - General Team Authority & Accountability C=80 335 Judgement & Problem Solving D=3= 305 Expertise E+2X 725 Total 1365 Grade 17

Senior Development Engineer - Medium Team Authority & Accountability C=80 335 Judgement & Problem Solving D=3+ 335 Expertise E+2X 725 Total 1395 Grade 18

Principal Engineer - Major Team Authority & Accountability C=80 335 Judgement & Problem Solving D+3+ 370 Expertise E+3X 795 Total 1500 Grade 19

23This dispute descends to differences between the parties in the assessment of the Judgement and Problem Solving evaluation, for which the Handbook provides a definition at page II - 1 in the following terms: Judgement and Problem Solving measures the contribution of the individual within the context of Expertise and Authority and Accountability, or Results , both of which factors are heavily loaded towards the actual structure of the organisation. Therefore, while both Expertise and Authority and Accountability, or Results are strictly measured in terms of actual organisation structure, some flexibility of measurement is introduced in Judgement and Problem Solving . Job evaluation techniques can be criticised for being too rigid in application, hence the Judgement and Problem Solving factor has been introduced to allow assessment of personality and intellectual factors as job requirements to be measured. However, it is thus relatively easy to confuse the existing occupant/incumbent with job requirements. On the other hand it is sometimes tempting to inflate the importance of the individual within the organisation as organisations are built around team-building and co-operative effort. The contribution of the individual is also covered under Accountability sub-factor in Authority and Accountability, or Results. Judgement and Problem Solving is divided into 2 sub-factors.

• Breadth of Issues
• Complexity Breadth of Issues measures the extent of outlook, breadth of vision, degree of perspective or foresight which the individual requires to perform competently in the position. Complexity measures the judgement of intellectual complexity/mental effort required. 24It is helpful to set out the points matrix for the Complexity and Judgement and Problem Solving criteria from the Handbook. JUDGEMENT AND PROBLEM SOLVING 1 2 3 4 5 50 80 A 55 60 70 90 100 105 75 110 90 105 B 100 110 115 130 145 115 190 C 130 145 160 210 230 255 175 280 255 410 655 D 280 305 335 450 495 545 725 370 600 335 545 875 E 370 410 450 600 655 725 960 1060 1165 495 795 1280 725 1165 F 795 875 960 1280 1410 1530 1060 1705 960 1550 G 1060 1165 1280 1705 1875 2060 1410 2270

Complexity Breadth of Issues 1 - Instructions A - Routine 2 - Rules & Examples B - Process 3 - Experience C - Procedure 4 - Integrative D - System 5 - Innovative E - Precedent F - Functional Policies G - Corporate Policies

25The JSC assessed the position of Development Engineer Medium Team occupied by Mr Williams at: C+ for Breadth of Issues and 3+ for Complexity, allocating 280 points for the Judgement and Problem Solving Category, the highest available at the C3 point in the matrix. 26In addressing the particular components of the job sizing process Mr Williams accepts the 3+ rating in respect to complexity, however, disputes the C+ rating for breadth of issues on the basis that the Senior Development Engineer General Team (and Medium Team) is scored at D=. 27Mr Williams asserts that for the sub criteria of Breadth of Issues the correct determination is Category D, the same as the Senior Development Engineer General Team, which is advanced on his behalf as the appropriate internal comparator for the position of Development Engineer Medium Team occupied by Mr Williams. 28Mr Williams puts an argument that on comparison of relativity with the general planners, building surveyors and development engineers the outcome for the DAC Medium Team Engineer is inequitable (Ex 4 Attach. DW10). 29Mr Williams deposes that: "Engineering positions within the medium team undertake similar assessment duties without distinction, as such the roles must have comparative breadth of issues and rating." 30The Handbook also provides Typical Evaluation Parameters for the combination of Judgement and Problem Solving and Expertise Combinations, which is set out below (Ex 4 attach DW11): Typical Evaluation Parameters Various types of jobs result in typical interpretations for similar groups of jobs. The diagram below shows typical interpretations which can be placed on various combinations of 2 sub-factors. The combinations of Position Breadth and Judgement are illustrated. Judgement and Problem Solving AND Expertise Combinations Expertise Judgement and Problem Solving 280 80 305 105 335 115, 370 115, 130 410 130, 145 ,160 450 145,160, 175 495 160,175, 190 ,210 545 160,190,210, 230 600 160,190,210,230, 255 655 190,210,230,255, 280 ,305 725 210,230,255,280, 305 ,335 795 255,280,305, 335 ,370,410 875 335,370, 410 ,450,495,545 960 370,410,450,495, 545 ,600,655,725 1060 545,600,655,725,795 1165 655,725,795 1280 795,875,960

Note

1. The most typical combination of Judgement and Problem Solving of a position is shown in bold-face. They are based on observations on how organisation use OJE. 31There is no dispute that for the vertical axis of Expertise: The Development Engineer General Team is rated at 600 for expertise The Development Engineer Medium Team is rated at 655 The Senior Development Engineer Medium Team is rated at 725 32In the combined score on the right hand side of the table: The Development Engineer General is scored at 255 The Development Engineer Medium is scored at 280 The Senior Development Engineer General is scored at 305 The Principal Development Engineer is scored at 335 33It is submitted on behalf of Mr Williams that his is the only position not to be scored at the maximum level. 34A score of 305 is claimed on the basis that this is the maximum for the 655 level of Expertise and consequently a score of 305 here would result in a total point score of 1295, leading to determination of salary point 17 not 16. 35In reply it is put that each of the positions is tested against the typical score for the relevant level of expertise which, by reference to the table, is not necessarily the highest score. 36The evidence of Ms Houlihan (Ex 6) and in cross examination is that when the position of Development Engineer Medium Team occupied by Mr Williams was tested against the typical it was said to be the appropriate fit. 37In response to a question from Mr Jacka in cross examination Ms Houlihan refutes the assertion that the typical score is a pre-determined outcome and describes the method of review in the following terms (TR 6/4/11 pp 53-54): Jacka Q. So what you're saying and I put it to you is that you start with points and then work out how to fit in the sub-factors? A. No, we don't start with points. We look at the position information, we determine - there's three factors. We look at authority and accountability, we look at expertise, we get a bit of an idea of where it might sit in judgment and problem solving. We look at the judgement and problem solving sub-factors, which is exactly what we've done in authority and accountability and expertise, to go, are we comfortable that it sits in 1, instructions. No, the position actually does more than that. Does it sit in rules and examples, no, the position actually does more than that. Does it sit in experience, gee, that seems like a fairly good fit, let's see what the next one says. The next one says integrative, and that's the highest level of judgement and problem solving that you can apply in the Evans Web system and it would be not often that we would give a position at that level, that rating, and from the descriptor, it didn't fit in there, it fit in the one below. So we work our way backwards and go, that's what it is. Putting those factors together, C3, where does it sit in the matrix at the back, it sits at 280. 38Ms Houlihan's evidence, which is supported by that of Mr Fahey (Ex 10), sets out the events leading to the job evaluation of the Development Engineer's position, commencing with a request on 20 January 2009 by Mr Peter Hodge, then manager of the DAC Department, that the position be revalued in accordance with the position description for each of the three development engineer teams which he had forwarded to the JSC on 14 November 2008. 39Ms Houlihan's evidence is that consultation took place with Mr Hodge, Mr Greg Field, Chief Subdivision Engineer, and Mr Stephen Brown after he replaced Mr Hodge as Manager DAC in February 2009. 40Ms Houlihan deposes that the position description for the Development Engineer Medium Team was not significantly altered, but there had been sufficient change to justify the increase from salary grade 15 to 16. This was approved by the Executive Team to apply from 3 March 2009. 41On 13 May 2009 the JSC met with Mr Williams and Mr Brogan, both occupying the position of Development Engineer Medium Team, and Mr Greg Jones, Senior Development Engineer General Team, at their request. As a result of that meeting a break up of the job sizing points allocated was provided. 42Ms Houlihan responded to the assertions of Mr Collins and Mr Williams that: a The JSC had misunderstood the role of the Medium Team Engineer; b The Council had offered to allocate a "D" to judgement and problem solving in order to resolve the dispute; and c The JSC had failed to take proper account of the experience requirement for the position in the following terms: a The position is valued on the basis of the position description provided; b No member of the JSC has authority to make such an offer; and in any event the allocation of "D" would not change the points from 280, which means that the salary outcome would remain unchanged at salary grade 16. 43Ms Houlihan's evidence is that some time after May 2009 she was informed by Ms Louise Wilson, Operational Team Leader DAC, that the Development Engineers Medium Team were questioning the allocation of the "C" rating to the sub factor, "breadth of issues", rather than a "D" rating. 44Ms Houlihan provided a response which states (Ex 6, Attach. I ): "Doug [Fahey] & I have had a chance to review the Development Engineer Medium Team job size in terms of the issue raised by the relevant employees. We are satisfied that the points are correct for this position. In terms of the Judgement & Problem Solving component we believe the position sits at C & not D. D is for a Coordinator position, which the Development Engineer Medium Team position is not. Other examples in the D section are superintendents (coordinator). The Design Engineer position for job sizing purposes is also seen as a Coordinator role. Provided is an explanation of this position - The design engineer usually leads the project, designing the overall frameworks and the most far reaching parts, and directing the designers/drafters on sub-system design on the project's more routine parts as necessary." 45The evidence of Mr Stephen Brown is by affidavit (Ex 8). Mr Brown was not required for cross examination. 46Mr Brown is the Manager of DAC and as such is responsible for approximately 70 technical, specialist, and support officers involved in the assessment of development proposals and related functions. 47Mr Brown deposes that he was involved in various reviews of the salary determination for Mr Williams and Mr Brogan. 48Mr Brogan did not pursue his claim beyond the review process and did not activate the formal grievance procedure. Mr Brogan's evidence is that he reluctantly accepted salary grade 16. 49Mr Brown's evidence is that the position description for the Development Engineer Medium Team occupied by Mr Williams is correctly reflective of the actual duties performed. 50This is accepted by Mr Williams in response to a question from Ms Salameh appearing on behalf of the Council (TR 6/4/11 p 24): "Q. You'd agree that your position description accurately reflects the duties you perform? A. Presently approved, yes." 51In the Council's outline of contentions (Ex 5) Ms Salameh put that the following differences were identified between the position of Mr Williams, Development Engineer Medium Team salary grade 16, and the Senior Development Engineer General Team, salary grade 17: Key Selection Criteria Essential · Experience in training and guiding staff in relation to engineering assessment development proposals. Highly Desirable · Minimum ten years professional working experience in Local Government or private engineering/development consultancy. Prelodgement/Reports/Acting/Support · Under the direction of the Chief Subdivision Engineer and/or operational Team Leader, assist in the coordination of the day to day operations and function of the work teams. · Distribute applications and referrals for assessment to other engineers in the General Team. · Act in the position of Principal Development Engineer including acting as Council's `Authorised Person "for the release of Subdivision Certificates. Training · Assist staff in the interpretation and implementation of planning and controls. · Train and guide staff in the assessment of engineering proposals and interpretation of development standards. · Conduct interviews, assessment and selection of new staff. Miscellaneous · Maintain a manual of design criteria and practices for subdivision works. · Monitor and review DCP's and Council codes and policies in the light of changing legislation and community expectations. 52Ms Salameh questioned Mr Williams closely on the detail of the position description for the Development Engineer Medium Team, establishing that the position description tendered (Ex 4, Attach. 1) did not require:

• Interpretation of Development Standards (though Mr Brogan put that this was done);
• Co-ordination of the day to day operations and functions of the work teams;
• Distribution or assignment of applications and referrals for assessment;
• Acting in the position of the Principal Development Engineer;
• Assisting staff in the interpretation and implementation of planning controls (Mr Brogan deposed that this was not so clear);
• Conducting interviews, assessments and selection of new staff all of which are functions required of the Principal Engineer or a Senior Engineer. 53Mr Brown refutes Mr Williams' assertion that he was supportive of the claim for salary grade 17, putting that he had been supportive of an open and fair review process. 54Mr Brown's evidence refutes Mr Williams' assertion that the work required by the Development Engineer Medium Team has increased in complexity, putting that the overall workload of the entire Department and the volume of developments being assessed has decreased significantly over all application types as a result of the financial downturn in 2008. Mr Brown adds that, while there has been some indication of an upturn and economic recovery, the level of development applications has not returned to pre-2008 levels. 55The evidence of Ms Louise Wilson (Ex 9) is that she has been employed as the Operational Team Leader (OTL) in the DAC Department at the Council since 10 September 2007. Ms Wilson was appointed OTL for the Medium Team from 4 May 2009. prior to which she was OTL for the Major Team. As such she had no involvement with members of the Medium Team, including Mr Williams. 56Ms Wilson described her role in events concerning the job sizing of the Medium Team Engineer as minor, confined to assisting Mr Williams to obtain documentation and ongoing meetings as requested. 57In response to Mr Williams evidence where he asserts (Ex 4, paras 37-38):

37. The approved PD's have demonstrated that the duties performed and the type, scale & complexity of submissions assessed by the Medium Team Engineers are far in excess of General Team Engineer despite having been awarded the same Grade 16 this was clearly indicated to committee through the spread sheet see attachment B.
38. It should be pointed out here, that the work performed by the General Team Engineer has generally not changed from the original structure and position description; as such remuneration has remained relatively the same. Whereas, the work now required to be performed by the Medium Team Engineer has increased to that previously attributed to a Senior Engineer, with no increase in remuneration. Ms Wilson deposed (Ex 9, paras 14-15) "14. I refer to paragraphs 37 and 38, in which Mr Williams claims that the work required to be performed by a Development Engineer in the Medium Team has increased in complexity, I say that while the variation of applications and their range received by Mr Williams has changed over time, the restructure of the DAC Department in 2005 did not increase the complexity of applications assessed by Mr Williams.
39. Furthermore, the restructure of the DAC Department ensured that a supervisor was available for support, guidance, mentoring and coaching in each of the three teams. These functions and responsibilities are performed by the Senior or Chief Development Engineers in the three teams." 58Mr Mathew Brogan was called to give evidence by the Union which had issued a subpoena requiring his attendance. Mr Brogan deposed that he declined to prepare a Statement for this matter but was happy to be called under subpoena as he wanted to remain impartial in the process. 59Mr Brogan is employed by the Council as a Development Engineer Medium Team with the same position description as Mr Williams. 60Mr Brogan's evidence is that he commenced in the General Team as at the time he did not have the planning experience required for the Medium Team. He described the difference between the work of the General Team and the Medium Team in the following terms (TR 6/4/11 pp 28, 29): "I suppose the philosophy is it goes from high turnaround applications in the General Team, so you get a lot of smaller applications that are generally less complex, whereas in the Medium Team, you're sort of in the middle, they're average sized applications, which are generally more complex, in comparison to the major team, where there's not a lot of applications, but they are complex. 61Mr Brogan confirmed that he had participated in explanatory meetings with Mr Williams, Mr Brown, Ms Wilson and Mr Field following the job sizing process in which he put that Ms Wilson and Mr Brown advised they should have been given a "D" rating for judgement and problem solving. Mr Brogan and Mr Williams sought written confirmation. Subsequent correspondence identified by Mr Brogan as an attachment to Mr Williams' Statement (Ex 4, Attach. 15), advised that the JSC had retracted the "D" rating. The "C" rating is confirmed in the evidence of Ms Houlihan and Mr Fahey. 62In cross examination Mr Brogan conveyed his understanding of the Evans Webb System that a "D" rating did not necessarily mean additional points. He accepted that Ms Wilson would have no interest in whether a "C" or "D" was the outcome, adding that she was professionally supportive of staff throughout the process. 63In cross examination Mr Brogan confirmed that he did not pursue a formal grievance over the job sizing outcome, adding in response to Mr Jacka for the Union that while he was not entirely satisfied, he was sufficiently so to accept the outcome. 64The evidence of Mr Peter Collins (Ex 3) is that he has 19 years experience in local government, including working in human resources and industrial relations roles at Port Stephens, Great Lakes and Lake Macquarie Councils prior to employment with the Union as a Newcastle based organiser from June 2003. 65Mr Collins deposed that he had experience with the Evans Webb System among others used in local government. 66Mr Collins supported Mr Williams' application based upon his analysis of the position description for the Development Engineer General Team with that of the Development Engineer Medium Team. This specific evidence is in the following terms (Ex 3, paras 26-31): "26. I then compared the two position descriptions to get a clear understanding of the complexity between each position. Annexed and marked PJC-3 are copies of both position descriptions with highlighting to indicate where the Development Engineer Medium Team position, exceeded the judgement and problem solving of The Development Engineer General Team position.

• review and provide specialist engineering advice in support of LEPs, DCPs specifications and policies,
• prepare expert evidence for the Land And Environment Court and to assess and determine Construction Certificates to twice the value of the general team.

31. On the basis of this comparison I formed the opinion that it was illogical that the position could justifiably be evaluated at the same job grade, grade 16, as the Development Engineer General Team, and that Mr Williams was correct in his assertion that the job had been incorrectly sized. I therefore encourage Mr Williams to pursue his grievance." 67In cross examination Mr Collins was obliged to concede that the higher level of judgement and problem solving required of the position of Medium Team Engineer compared to the General Team Engineer was reflected in the points difference of 255 for the General Team Engineer compared to 280 for the Medium Team Engineer (TR 6/4/11 p 9).

CONSIDERATION 68Is the process correct? 69The answer to this question must be yes. 70The position description is agreed and accepted by Mr Williams in his evidence. 71The Evans Webb System is consistent with the enterprise agreement and gives proper effect to it. 72Was the process properly applied?

Use of Essential Criteria Only 73A significant point at issue between the parties is the use of essential criteria to value a position. 74The Union contends that highly desirable and desirable criteria should be considered. The difficulty with this argument is that it makes the departure from consideration of the position to that of the individual. 75The criteria are described as "Key Selection Criteria"; that is, criteria for selection of the person/s to fill the roles. 76The essential criteria are just that, and anyone not meeting those would not be considered for appointment. 77The other desirable criteria, highly desirable or otherwise, are an aide to the selection committee at appointment and may well be a guide for applicants and incumbents. Position descriptions will outlast incumbents and will cover more than one individual. It is to be anticipated that each incumbent will most probably not possess all of the same desirable qualities. 78Mr Williams and Mr Brogan both occupy the position of Development Engineer Medium Team at salary grade 16. Each of them meet the essential criteria. As these proceedings were not a contest between Mr Williams and Mr Brogan, there is no evidence of their individual particular strengths in the desirable criteria, though it would be difficult to accept a proposition that they were identical. 79There is no basis for inclusion of desirable criteria in the job evaluation process.

Payment For Skills Used 80Payment for skills used, as put by Mr Jacka in his submissions, is a different argument which goes either to a review and restructure of the position description, or other considerations not argued in these proceedings.

Process of Review and Consultation 81The evidence reveals a careful and thorough process conducted by the JSC involving consultation with relevant managers, and extensive discussion with the incumbents of the Development Engineer Medium Team, Mr Williams and Mr Brogan. 82There is no procedural fault in the conduct of the job sizing process challenged in these proceedings. 83The substantive contest between the parties is the allocation of a "C" rating to the sub factor "Judgement and Problem Solving", resulting in a score of 280 points. 84A score of 280 points is also available in the "D" category. 85I dismiss the assertion of discussions of allocation of "D" in order to solve the dispute. Whilst unfortunate and ill advised, it is irrelevant to the substantive consideration. 86The critical issue is the appropriate points allocation for the sub factor "Judgement and Problem Solving" under the Evans Webb System for the position of Development Engineer Medium Team. 87The analysis of the position descriptions of the General Team Engineer compared with the Medium Team Engineer provided by Mr Collins in his evidence is useful but is not the complete analysis and comparison that must be undertaken. 88There has been no error demonstrated in the assessment of the role of the Development Engineer Medium Team as described by the position description at "C" for "Judgement and Problem Solving" and the subsequent allocation of 280 job sizing points. 89I accept the evidence of Ms Houlihan in respect to the process of best fit (TR 6/4/11 p53) set out above in para 37. 90Consideration must also be given to the relative positions of the Senior Engineers and the Development Engineer Medium Team. 91I am further of the view that while relativities are important and can be useful, the essential consideration is the absolute value of the obligations and responsibilities of the role. 92The outcome of salary grade 16 for the positions is not inconsistent with internal relativities when compared with the positions in the General Team and Major Team or with the Principal and Senior Engineers. 93A comparison of the position descriptions for the Senior Engineer with that of the Engineer Medium Team reveals that the latter does not have a supervising role or functions requiring a higher level of judgement and problem solving. 94The fundamental assertion that the Engineer Medium Team is comparable to a design engineer, or that it should be paid at the same level as a Senior Engineer, is not made out. 95Mr Williams provides an analysis of key selection criteria between four positions (Ex 4 DW 20). In five of the eleven essential criteria Mr Williams put that the requirements of each position are the same. In the other six, he put the differences as below: Position Requirements Criteria General Senior General Medium Senior Medium 4 Organisational and negotiation skills good extensive strong/ sound extensive 5 Understanding cost structure of developments basic Sound Extensive extensive 7 Knowledge of urban planning and design principles Knowledge only Sound Sound Extensive 8 Experience water quality, road and stormwater design Exp only Extensive Extensive Extensive 9 Knowledge of and experience Australian standards, RTA standards Knowledge only Sound Extensive extensive 10 Experience in training and guiding staff No Yes No Yes

96A close analysis of these differences does not take the position of Development Engineer Medium Team salary grade 16 up to the level of the Senior Development Engineer General or Medium Team. 97The differences put here suggest that there is a difference between the Development Engineer General Team and Development Engineer Medium Team. This difference is adequately reflected in the points difference resulting from application of the Evans Webb System. 98The fact that the score for the General Team Engineer falls at the lower end of Salary Grade 16, while the score for the Medium Team Engineer falls at the upper end of Salary Grade 16, does not make the outcomes incorrect. The determination factor is that the Medium Team Engineer does not have design engineer or supervisory responsibility which would take the position to a higher level. 99I decline to intercede in the salary determinations by the Job Sizing Committee. 100The application is dismissed 101Matter No IRC 1448 of 2010 is so concluded.

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: 21 July 2011