The Australian Workers' Union, New South Wales v Industrial Relations Secretary

The situation prior to 2016

1. Prior to 30 June 2016 field officers employed in the NPWS, other than Trainee Field Officers, Senior Field Officers and Field Supervisors, were employed as Field Officers Grades 1, 2, 3 or 4. This was referred to by the parties as the "classification" of "Field Officer Grade 1-4" ("FO1-4"). None of the awards which were the predecessors to the 2018 Award (or the 2018 Award itself, for that matter) clearly defines such a classification. However, this is not material. I will adopt the reference to the "FO1-4 classification" as incorporating Field Officers Grades 1, 2, 3 or 4, but as distinct from the FO1-2 classification. This distinction is explained below.
2. The Crown Employees (Office of Environment and Heritage - National Parks and Wildlife Service) Field Officers and Skilled Trades Salaries and Conditions 2015 Award ("2015 Award") (and earlier versions of the Award) allowed for employees to progress through the grades within the FO1-4 classification on the following terms (Part B, Table 2): Progression Criteria for Field Officer Classification Progression Criteria Field Officers All Field Officer roles shall be at the level of Field Officer Grade 1-4. Field Officers shall progress by annual increment subject to meeting the required progression criteria and competency levels as specified in this Annexure. Where a Field Officer fails to progress, it shall be the responsibility of the Area Manager to discuss the reasons for the decision with the employee concerned. The discussion should also identify areas of where additional competencies or necessary training, where appropriate. Field Officer Grade 1 Assignment to a role at this grade shall be subject to competitive selection for advertised vacancies. Assignment to a role at this grade shall also be subject to: (a) possession of a current drivers licence; and (b) the employee having demonstrated the essential competencies from the Field Officer's competency schedule for Field Officer Grade 1. Field Officer Grade 2 Progression to the level of Field Officer Grade 2 shall be subject to: (a) 12 months satisfactory service at Field Officer Grade 1; (b) possession of a current drivers licence; and (c) the employee having demonstrated the essential competencies from the Field Officer competencies schedule for Field Officer Grade 2, as certified by the direct supervisor and the Regional Manager. Field Officer Grade 3 Progression to the level of Field Officer Grade 3 shall be subject to: (a) 12 months satisfactory service at Field Officer Grade 2; (b) drivers licence; and (c) the employee having demonstrated the essential competencies from the Field Officers Competency Schedule for Field Officer Grade 3 as certified by the direct supervisor and Regional Manager. In addition, joint assessment and certification by the Regional Manager and the direct supervisor that the employee is competent at performing the range of work required of a Field Officer Grade 3 and is also able to demonstrate the efficient application of the skills/qualifications attained. … Field Officer Grade 4 Progression to Field Officer Grade 4 shall be subject to: (a) 12 months satisfactory service of Field Officer Grade 3; and (b) all the essential and 10 desirable competency requirements for a Field Officer Grade 3 from the Field Officer competencies schedule as certified by direct supervisor and Regional Manager.
3. The "Field Officer competency/competencies schedule" ("Competency Schedule") referred to in the 2015 Award was in evidence in the proceedings and was included in the Joint Tender Bundle. It was created some years ago. The uncontroverted evidence of Mr Wahrlich was that it has not been amended for more than 8 years (as at the date of his statement of 20 November 2018). The circumstances in which the Competency Schedule was created, including whether it was made pursuant to an award term, was not in evidence.
4. By meeting the criteria in the Competency Schedule, amongst other things, an employee is able to move from one grade to the next. The Competency Schedule contains both "essential" and "desirable" qualifications. To be appointed to a particular grade the individual must meet both the essential criteria for that grade plus the specified number of desirable criteria.
5. In so far as it relates to plant and vehicle operation, the Competency Schedule provides as follows: KEY TASK COMPETENCY REQUIRED COMPETENCY MEASUREMENT (What Do I Have To Do) (What Standard is Expected Of Me to Perform the Task) FIELD OFFICER GRADE 1 ALL ESSENTIALS PLUS 2 X DESIRABLES
6. Drive An ability to operate vehicles up to 4.5 tonnes GVM Must hold a Class 1A Licence
7. Minor Plant An ability to operate a range of minor plant to specified guidelines and procedures Can demonstrate operation of minor plant to Manufacturers specifications consistent with OH&S Regulations and NPWS Policy and Guidelines to a level acceptable to direct supervisor … FIELD OFFICER GRADE 2 ALL ESSENTIALS PLUS 2 X DESIRABLES
8. Drive An ability to Operate 4WD vehicles up to 4.5 tonnes GVM Certification of NPWS 4WD or equivalent
9. Minor plant An ability to operate & maintain to relevant specified guidelines and procedures Can demonstrate operation and maintenance of minor plant to Manufacturers specifications consistent with OH&S Regulations and NPWS policy and procedures … FIELD OFFICER GRADE 3 ALL ESSENTIALS PLUS 2 X DESIRABLES Drive (a) An ability to Operate 4WD vehicles up to 4.5 tonnes GVM Certification of NPWS 4WD or equivalent
10. Drive (b) An ability to operate vehicles up to 15 tonne GVM Must hold a Class 3A licence
11. Plant An ability to operate general plant consistent with minor park maintenance Relevant WorkCover Authority certification and demonstrated ability … FIELD OFFICER GRADE 4 ALL ESSENTIALS PLUS 5 X DESIRABLES
12. Drive (a) An ability to Operate 4WD vehicles up to 4.5 tonnes GVM Certification of NPWS 4WD or equivalent A259+A285 (b) An ability to operate vehicles up to 15 tonne GVM Must hold a Class 3A licence
13. Plant An ability to operate general plant consistent with minor park maintenance Relevant WorkCover Authority certification and demonstrated ability …

(Sic)

1. All of the competencies in the table above are stated to be "essential", with the exception of "1. Drive (b)" and "2. Plant" under Field Officer Grade 3, which are "desirable".
2. The 2015 Award did not contain classification definitions for each grade of Field Officer, or provide a description of their duties. The Competency Schedule was not reproduced in the 2015 Award.

The making of the 2016 Award

1. In 2016 the NPWS sought to introduce a change to the award classifications. This was explained by the Secretary in written submissions filed on 5 February 2019 as follows: "7. Under the 2015 Award and earlier iterations of that Award, field officers could be employed in a FO1-4 classification, which enabled them to progress to a higher grade approximately every 12 months, from Grade 1 through to Grade 4, if they met certain competencies required for progression. As a result of this progression structure for FO1-4, a significant number of field officers employed in the FO1-4 classification were occupying Grade 3 or 4 roles, even though there may not always have been an operational need for that number of higher skilled workers. 8. Due to the low number of field officers occupying Grade 1 and 2 roles, and to discourage deskilling of Grade 3 and 4 roles, NPWS engaged contractors to undertake tasks requiring less skill and training. Leading up to the 2016 Award, the NPWS budget was being impacted by escalating salary and operation costs, with salaries constituting the largest cost. The ability of NPWS to continue employment levels in the field officer classifications required the provision of sustainable labour rates for lesser skilled duties. 9. NPWS had an ageing workforce and it needed to establish an award structure that offered new entry and lower level field roles that would attract younger workers, including school leavers and young Aboriginal people in regional NSW." (Footnotes omitted)
2. Providing further context the AWU submitted: "10. In or around 2016, the Respondent identified that its allocated budget was being impacted by escalating salary and operation costs with salaries occupying the largest cost. The Respondent identified that FO 1-4 employees were progressing quickly so as to occupy Grades 3 and 4 roles even though there might not have been an operational need for that number of higher skilled workers. This was creating budgetary pressure. The Respondent identified that it needed the provision of sustainable labour rates for lesser skilled duties. The plan was to get lower level classifications doing lower level work. 11. The Respondent decided that it would be desirable to negotiate changes to the Award classification structure as part of the negotiation for the [2016 iteration of the award]. It initiated discussions with the AWU for this purpose. The Respondent identified that it wanted to introduce two new classifications into the [2016 iteration of the award]. The first new classification was to be known as FO1-2. The second new classification was to be known as the Field Officer General Operations (FOGO). It was proposed that the FO1-4 classification would remain (alongside the new FOGO and FO1-2) and the classification of FO1 and FO2 would continue to remain available within the FO1-4 classification. … … 13. There were several meetings between the AWU and the Respondent to negotiate the terms of the [2016 iteration of the award]. Mr O'Donnell appears to be the only person who attended each meeting with the AWU. Other persons negotiating on behalf of the Respondent attended some but not all of the meetings. In addition to formal meetings, there were negotiations and discussions conducted over the telephone and via email. Those negotiations happened with Mr O'Donnell and Mr Noack. 14. A consent position between the AWU and Respondent was eventually reached for the making of the [2016 iteration of the award]. …" (Emphasis in original, footnotes omitted)
3. The award negotiations in 2016 were led by Mr Noack for the AWU and Mr O'Donnell for the NPWS. Ms Murray, Ms Hopkins, Ms Gallagher and Mr Wright were also involved, to a greater or lesser degree, for the NPWS.
4. On 30 June 2016 Newall C, by consent, made the Crown Employees (Office of Environment and Heritage - National Parks and Wildlife Service) Field Officers and Skilled Trades Salaries and Conditions 2016 Award ("2016 Award"). It introduced the FO1-2 classification and a new Field Officer General Operations ("FOGO") classification. The 2016 Award provided as follows: 13.4.5 Field Officer General Operations (a) The Field Officer - General Operations will perform the functions contained at Appendix A of this award. The Field Officer General Operations will be a Monday to Friday worker and shall be remunerated by the rates contained in this award in Table 2. 13.4.6 Field officer Grade 1-2 (a) Field Officer Grade 1-2 will be a Monday to Friday classification. All employees engaged in this classification will be Monday to Friday workers.
5. Appendix A to the 2016 Award provided as follows: Functions of the Field Officer General Operations The Field Officer General Operation will have within the classifications scope of duties the following functions: Basic upkeep of the estate, including mowing lawns and cleaning of visitor facilities, cleared grounds, gardens, pathways, toilets, BBQs, shelters, picnic furniture, camping areas, short stay accommodation sites, visitor centres, parking areas, playgrounds, depots and offices to ensure safe use and maintain asset condition. 1. Collects rubbish, replenishes consumables and removes graffiti at picnic grounds, toilets, camping areas, short stay accommodation sites, visitor centres, depots, offices and other infrastructure. 2. Conducts basic maintenance of walking tracks, mountain bike and horse riding trails, including trimming vegetation, clearing drains and culverts and basic road maintenance such as filling potholes. 3. Performs weed control tasks this may involve the use of herbicides subject to training and certifications. 4. Participates as a crew member only in hazard reduction and wildfire management programs subject to training and certifications. 5. Assists in the transport and handling of materials and equipment, activation of advisory signs and other basic tasks. 6. Records and reports in a timely manner any issue or incident impacting on the park or visitors and alerts supervisors to potential risks to the safety of visitors and staff. 7. Operates minor plant and equipment including utility vehicles, whipper snippers, pressure washers, weed spraying units, chainsaws and conditionally licensed vehicles (excluding major plant).
6. The 2016 Award contained no description of the duties to be performed by an employee in the FO1-2 classification.
7. One of the intentions of the parties in creating the FO1-2 classification was to create a "hard barrier" to progression from Grade 2 to Grade 3, and beyond. That is, a person appointed to the FO1-2 classification would not automatically progress to Grade 3, but would need to apply for appointment to a vacant position at that level and secure it on merit.
8. Rather confusingly, the 2016 Award made no change to the FO1-4 classification. As a result, a person could in theory be appointed to a Field Officer Grade 1 or Field Officer Grade 2 position within that classification, as opposed to being appointed in the FO1-2 classification, and progress in accordance with Part B Table 2. The progression criteria in that Table, reproduced at [12] above, remained unchanged.

Creation of position descriptions

1. At the hearing before Newall C on 30 June 2016, the NPWS had handed up an "Explanatory Memorandum" with a request that it "travel with" the Commission's file. During that hearing Mr Noack informed the Commissioner that it would not have been possible for the AWU to consent to the 2016 Award without the Explanatory Memorandum being admitted as an exhibit in the proceedings.
2. The Explanatory Memorandum provided as follows: "This document provides operational level detail relating to the agreed changes to the Award. The parties will read this document in conjunction with the Award. The parties have reached agreement on this document and will be bound to matters contained in the document. In the event of a dispute arising in relation to matters dealt with in this document the Industrial Relations Commission will be called upon to determine the matter. … Classification Definitions The Award contains a new classification definition for Field Officer General Operations (FOGO). Given the universality of the Field Officer Grade 1/4 classification in the past it has not been necessary to develop appropriate role descriptions for FO 1/4 until now. The parties will co-operatively develop appropriate role descriptions for FO 1/4 and FO 1/2 (Monday to Friday) roles as soon as practicable. …"
3. In the months following July 2016, the AWU and the NPWS engaged in a number of discussions for the purposes of negotiating the new role descriptions as anticipated by the Explanatory Memorandum. This included a role description for the FOGO classification. That role description included the following: "Primary purpose of the role Undertakes basic maintenance and cleaning of assets, park facilities and infrastructure within NPWS workplaces, parks and reserves including basic maintenance of walking tracks and trails; undertakes weed and fire management activities; operates and maintains minor plant and equipment and provides initial response to visitor enquiries. … Key accountabilities … • Operates and maintains minor plant and equipment including utility vehicles, whipper snippers, pressure washers, weed spraying units, chainsaws and conditionally licensed vehicles (excluding heavy plant). … Essential requirements • Current Drivers licence and ability to obtain 4wd certification within the probationary period (up to 12 months). • Demonstrated ability and experience to carry out all duties safely and ability to obtain relevant SafeWork NSW certification to appropriately operate and maintain minor plant and equipment…"
4. Although the 2016 Award included separate FO1-2 and FO1-4 classifications, and the Explanatory Memorandum anticipated the parties developing role descriptions for each classification, the parties ultimately created two "levels" of role descriptions across the relevant grades: one for Grades 1 and 2, and one for Grades 3 and 4. The role descriptions that were developed included the "Field Officer 1-2", "Field Officer Enhanced Bushfire Management Program (EBMP)" (which is an FO1-2 position), "Field Officer Enhanced Bushfire Management Program (EBMP) (Aboriginal)" (also an FO1-2 position), and "Field Officer 3-4" respectively.
5. For present purposes I will refer predominantly to the "Field Officer 1-2" and "Field Officer 3-4" role descriptions.
6. The position descriptions seem to have been developed on the basis that Grades 1 and 2 in the FO1-4 classification were the same as the FO1-2 classification.
7. In developing the "Field Officer 1-2" role description the parties' communications included the following: 1. On 2 August 2016 Mr Noack sent an email to senior delegates of the AWU seeking feedback on role descriptions which were said to be attached to the email. The role descriptions are not attached to the copy of the email in evidence and it is not clear precisely what version of the document Mr Noack was referring to. 2. On 5 August 2016 Mr Noack sent an email to Ms Murray, Mr O'Donnell, Ms Gallagher and numerous other people. It included the following entry: "dot point 1 must obtain MR Licence, since when ? this is new." (sic) I assume that this is a reference to the provision reproduced in the first dot point at [32(3)(b)] below. 1. On 12 August 2016 Mr O'Donnell sent an email to Mr Noack with the subject "Revised: Field Officer 1-2 DRAFT FOR AWU v2.docx". The email attached a draft role description for the FO1-2 position. It contained the following provisions: 1. under the heading "Key Accountabilities": "Operates and maintains potentially hazardous plant and equipment including such things as hand tools, powered tools, spray units, water pumps, chainsaws, all-terrain vehicles, four wheel drives and heavy plant." 1. under the heading "Essential requirements": "• Current Drivers licence and ability to drive 4wd vehicles, and applicants must obtain MR licence and ability to operate 4wd vehicles up to 4.5 tonnes/15 tone GVM within the probationary period (up to 12 months). • Demonstrated ability and experience to carry out all duties safely and ability to obtain relevant SafeWork NSW certification to appropriately operate and maintain a range of plant and equipment, including but not limited to conditionally registered vehicles, watercraft, lifting apparatus and minor road maintenance plant…" 1. On 15 August 2016 Mr O'Donnell sent an email to Mr Noack with the subject "Revised: Field Officer 1-2 DRAFT FOR AWU v3.docx". In the email Mr O'Donnell stated: "I have made the changes we discussed…" The email attached a further draft of the role description for the FO1-2 position. There were no changes made to the provisions reproduced at [32(3)] above. 1. On 16 August 2016 Mr O'Donnell sent a further email to Mr Noack, attaching what Mr O'Donnell described as the "final version" of the role description for the FO1-2 position. There were no changes made to the provisions reproduced at [32(3)] above.
8. There is no evidence of any further changes being made to the role description at that time. The role description was subsequently circulated for use by NPWS hiring managers.
9. In August 2017 the AWU raised with the NPWS an objection to the reference to "heavy plant" in the "Field Officer 1-2" role description. This was claimed by the AWU to be an error. Mr Quirk stated that this objection arose after the role description was circulated in connection with a restructure which the organisation was then going through. There is no evidence that the duties of employees in the FO1-2 classification or the plant that they could operate had been the subject of any correspondence or discussion between the parties between August 2016 and August 2017.
10. Having made enquiries, Mr Quirk agreed to amend the "Field Officer 1-2" role description to replace "heavy plant" with "minor plant". That is, the relevant "key accountability" in the role description (see [32(3)(a)] above) was amended to read: "Operates and maintains potentially hazardous plant and equipment including such things as hand tools, powered tools, spray units, water pumps, chainsaws, all-terrain vehicles, four wheel drives and minor plant."
11. The AWU was informed of this amendment to the role description in a meeting with the NPWS, at which Mr Quirk was present, on 12 September 2017.
12. On 13 September 2017 Mr Quirk sent an email to "Park Operations Directors" which included the following: "Please note that the Role Description for a Field Officer 1-2 in the Future NPWS RD Library has been amended to reflect agreement between NPWS and the AWU that this role is only required to operate minor plant (as opposed to heavy plant)."
13. The "Field Officer 3-4" role description was in evidence and formed part of the Joint Tender Bundle. That role description contains a list of what are described as "essential requirements", including the following: "Current Drivers/MR licence and ability to operate 4wd vehicles up to 4.5 tonnes/15 tonne GVM."

Subsequent developments

1. On 6 March 2018 Kite CC made the 2018 Award. It is common ground that there is no relevant difference in terms between the 2016 Award and the 2018 Award.
2. There is nothing to suggest that between September 2017 and the making of the 2018 Award the duties of employees in the FO1-2 classification, the plant that they could operate or the vehicles they could drive had been the subject of any correspondence or discussion between the parties.
3. On 4 July 2018 the AWU notified the Industrial Registrar of the Heavy Plant Dispute. The notification asserted that the NPWS was directing FO1-2 employees to operate heavy plant, which was said to be outside the scope of their duties.
4. On 21 May 2019 the AWU notified the Industrial Registrar of the MR Licence Dispute. The notification asserted that the NPWS was requiring field officers below the Field Officer Grade 4 classification to undertake work requiring them to have an MR vehicle licence. This was said to be contrary to the Competency Schedule and that if such work was to be performed it should attract a higher duties allowance.

Relief Sought

1. In its written submissions the AWU sought the following relief: "86 In conclusion, the Commission ought determine, in exercise of its powers pursuant to Section 175 and Chapter 3 of the IR Act that for the purposes of the 2018 Award and in settlement of the Heavy Plant Dispute that for the purposes of the classification of FO1-2 heavy plant is defined by reference to the AMS (which incorporates the list of items) or in the alternative the definition of heavy plant is to be arrived at by reference to minor plant with minor plant being defined as those items set out in Appendix A [of the 2018 Award] and further that the Respondent is not entitled to direct (or facilitate or permit) an FO1-2 to operate heavy plant as defined. 87. The Commission ought determine, in exercise of its powers pursuant to Section 175 and Chapter 3 of the IR Act for the purposes of the 2018 Award and in settlement of the MR Licence Dispute that the Respondent is not entitled to direct or facilitate or permit an FO1-2 or FO1, FO2, FO3 employee to hold or obtain an MR Licence (or operate a vehicle requiring an MR Licence) as part of their employment."

Consideration

1. At the outset it is necessary to clarify the task of the Commission in resolving the matters before it. Both parties presented the case as one involving the interpretation and construction of the 2018 Award.
2. The 2018 Award contains no description of the duties to be performed by an employee in the FO1-2 classification. There is no reference to what plant, "minor" or "heavy", that a FO1-2 employee may operate. There is no reference in the 2018 Award to the vehicle licence that Field Officers Grades 1, 2 and 3 may be required to hold and utilise. The extent to which the disputes involve the interpretation and construction of the 2018 Award may not at first glance appear to be obvious.
3. The AWU's case rests substantially on two broad propositions: 1. the reference to "major plant" in Appendix A to the 2018 Award had an agreed meaning. There was a clear dichotomy between major (or heavy) plant and minor plant. [3] Minor plant was limited to plant such as lawn mowers, whipper snippers and conditionally registered vehicles like quad bikes. Everything else is to be regarded as heavy plant. This meaning was accepted by the parties as applying across all classifications. The 2018 Award should be construed on that basis; and 2. the Competency Schedule applies as a requirement of the 2018 Award and sets maximum, mandatory requirements for each grade. The Competency Schedule confines employees at Field Officer Grades 1 and 2 to operating minor plant. Only Grade 4 Field Officers can be required to utilise an MR licence. To the extent that the NPWS requires employees to operate items of plant or to drive vehicles beyond those specified for their grade in the Competency Schedule, and is not paying the employees higher duties for doing so, the NPWS is acting contrary to the 2018 Award.
4. To the extent that the case involves construction of the 2018 Award, there was no controversy as to the principles to apply. Those principles were recently summarised by the Full Bench in New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 as follows: "21. The principles relevant to award interpretation are well settled in this jurisdiction. These were set out in the decision of Walton J, President in the matter of Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury 87 NSWLR 41, where detailed consideration was given to the principles by reference to the relevant authorities. The statements of principle were set out in the decision at [115]: (1) The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2) The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3) Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4) The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to 'the purposes for which a provision is intended' (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, 'having regard to their purposes and objectives'. I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6) The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ). 22. In addition, Walton J cited with approval authorities to the effect that awards should receive a generous construction: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [57]; Kucks v CSR Ltd (1996) 66 IR 182 at 184; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [94] and [96] per Kirby J; Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 at [45]-[46]. The passage in Kucks cited by his Honour makes the point: 'It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading.' 23. These principles have subsequently been cited with approval by the Full Bench in State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] NSWIRComm 41 and more recently by the Full Bench in Secretary of the Department of Transport (in respect of Roads and Maritime Services) v Construction, Forestry, Mining, and Energy Union, New South Wales Branch [2018] NSWIRComm 1038."

Role Descriptions

1. It is useful to deal first with the role descriptions, as my findings in this regard inform the discussion which follows.
2. There was some controversy between the parties as to whether agreement was reached between them on the "Field Officer 1-2" role description. In this regard I note the following: 1. Mr Noack attached to his statement of 20 November 2018 what he described as the "agreed FO1-2 role description and Extended Bushfire Management Program (EBMP) FO1-2 role description as currently in effect" (my emphasis). [4] These contain the "essential terms" reproduced at [32(3)(b)] above and the "key accountability" reproduced at [35] above. 2. Mr Wahrlich attached to his statement of 20 November 2018 the same "Field Officer 1-2" role description. He did not suggest in his statement that the role description was inaccurate in any way. 3. The same document is attached to Mr Quirk's statement of 4 February 2019, similarly described as being the "current" version. 4. The "Field Officer 1-2" role description attached to the statements of Messrs Noack, Wahrlich and Quirk as referred to above formed part of the Joint Tender Bundle.
3. Mr Wahrlich, under cross-examination, stated that the role description to which the AWU agreed in 2016 did not contain a reference to heavy plant. Mr Noack, also under cross-examination, sought to resile from his assertion that the role descriptions attached to his statement were in fact "agreed". He had the following exchange with Mr Miles: [5] "Q. Could I take you to, and you've got your first statement there, to paragraph 36 where you refer to annexure PMN 11 and PMN 12 and you're referring to them as 'the agreed FO 1/2 role description aren't you? A. Yes, yes, because it had minor plant. Q. Yes, but that was the agreed role description wasn't it? A. Well I've got here the agreed role description. That one obviously slipped through. Q. And you don't raise any dispute in 2018 in relation to the use of medium rigid vehicles do you? A. When we've noticed it in the agreement we've always raised it. I don't know what dates, but I know consistently we've always raised objection because it didn't fit the competencies, still doesn't fit the competencies. We've always opposed it. And we've seen on a couple of occasions both heavy plant and MR find its way back in again, but we haven't agreed -"
4. I have some difficulty with this evidence. On the basis of the evidence described at [32] above, each version of the "Field Officer 1-2" role description presented by the NPWS to the AWU for agreement up until August 2016 made reference to both heavy plant and an MR licence. The AWU did not present a version from 2016 containing different requirements or in which these requirements were removed, or anything in writing to evidence the provisions being challenged.
5. This lack of written evidence can be viewed in light of the following testimony from Mr O'Donnell: [6] "Q. Before that though you would agree wouldn't you that - so Michael Wright would send letters to the AWU on various matters arising from the negotiations, you were aware of those weren't you? A. Oh there was letters, there was emails, there was phone calls, there was - there was a tremendous amount of traffic. One thing again my experience of - obviously they're with a lot of different unions, I would say that in my experience when it came to generating correspondence and activity around that correspondence the AWU probably ranks up there as the top draw [sic - drawer], you know. We leave meetings and barely get back to our desks and we'd be receiving emails from Paul and requests for further information that we committed to, and, to be quite honest with you, it was almost a fulltime job trying to keep up with it all, yeah."
6. Further, as described at [32(2)] above, Mr Noack had identified and questioned the reference in the role description to the MR licence as early as 5 August 2016, but there is no evidence that he ever sought to remove it. It is not a case of the provisions having "slipped through" or "finding their way back in again".
7. I am satisfied that as at 16 August 2016 agreement on the "Field Officer 1-2" role description had been reached. That role description included the terms set out at [32(3)] above, including a key accountability that the employee operate "heavy plant" and an essential requirement that the employee obtain an MR licence during their probation period.
8. The role description was subsequently amended in approximately September 2017, to replace the reference to "heavy plant" with "minor plant". Mr Quirk deposed that he had agreed to the change on the basis of incorrect information having been given to him as to the agreement reached in 2016. On the evidence, this may well be the case. However, the NPWS agreed to the change and did not in the proceedings seek to resile from that agreement.
9. The AWU submitted that in relation to the role descriptions there were concerns with the NPWS' "version control", which is to some extent borne out by the evidence. However, this seems to have been more an issue with versions created after September 2017. It does not preclude a finding that an agreement was reached between the AWU and the NPWS in August 2016, which was amended in 2017.

The minor/heavy plant distinction

1. In summary, the AWU contended as follows: 1. it had been agreed between the parties that employees in the new FOGO and FO1-2 classifications would only perform work using "minor plant"; 2. it was further agreed, in effect, that there was to be a dichotomy between "minor" and "heavy" plant; 3. this distinction was to be determined by reference to the plant described as "heavy plant" in an Asset Maintenance System ("AMS") maintained by the OEH; 4. under the AMS "heavy plant" is said to comprise the following items: 1. backhoes; 2. bulldozers; 3. elevated work platforms; 4. excavators; 5. forest mowers; 6. forklifts; 7. frontend loaders; 8. graders; 9. rollers; 10. skidsteer loaders; and 11. tractors; 1. on this basis, it was agreed that "minor plant" was to be confined to plant such as lawn mowers, whipper snippers and conditionally registered vehicles such as quad bikes; and 2. this definition was agreed to apply to both the FOGO and FO1-2 classifications, or in the alternative the reference to minor plant "should be given a consistent meaning across the classifications". [7]
2. The definition of minor plant relied on by the AWU, as referred to at [57(5)] above, was drawn from a letter from Mr Wright to Mr Noack dated 1 April 2016. [8] However, that definition needs to be put in the context in which it appeared, as follows: "Difference between the FOGO and field officer classifications A copy of the current Role Description for Field Officer Grade 1-4 is attached. Key distinctions between the FOGO and other Field Officer classifications include: … • FOGOs would not use heavy plant or any ticketed plant. FOGO would, however, be expected to use minor plant such as mowers and whipper snippers and conditionally registered vehicles such as quad bikes. …" (Emphasis in italics added)
3. Having been offered as a point of differentiation between FOGOs and "other Field Officer classifications", the description of minor plant in Mr Wright's letter could not of itself be taken to propose a definition that would apply across all classifications.
4. The question becomes what, if anything, was agreed?
5. Mr O'Donnell deposed that he was present at all of the negotiations preceding the making of the 2016 Award and that, in addition, he spoke to and corresponded with Mr Noack on numerous occasions. He stated that negotiations proceeded on the basis that the new FOGO and FO1-2 positions would only perform work on "minor or light plant"; [9] that "the issue of light or minor plant was consistently conveyed to the AWU as being things such as lawn mowers, whipper snippers, quad bikes"; [10] and, that it had been agreed by Mr Wright that the list in the AMS would be used "to define what heavy plant was for the purpose of making a distinction between what the new roles would be performing". [11] This agreement was said to have been reflected by Mr Wright saying that he "had no problem" with the AMS being so used.
6. Mr Noack, who led the negotiations for the AWU, stated that the question of heavy plant and the AMS came up for discussion in the process of negotiating the role descriptions, after the 2016 Award had been made. Before that time, there had been no agreement on the duties of the FO1-2 classification, just "general agreement on the concept". [12] Under cross-examination Mr Noack deposed as follows: [13] "Q. You don't suggest anywhere in the negotiations leading up to the award as to there being any agreement with - or Tony O'Donnell making any agreement about FO 1/2's not operating heavy plant? A. In terms of the agreement up to the 2016 award I don't think heavy plant was used, it was only used once we started defining the classification structure. All we talked about leading up to the negotiations were these were basic low-skilled jobs. Q. So you're saying now that as best you can recall from the award negotiations the term heavy plant was never used in relation to FO 1/2's? A. Yeah FO 1/2 was just a concept at that stage so yes you're probably right. I'm saying that all was talked about was it was a low-skilled job, cleaning toilets, that sort of stuff. Cutting weeds. Doing maintenance trials."
7. Of the AWU's other witnesses, only Mr Halloran described Mr Wright as having been involved in the agreement that the AMS would be used to define "heavy plant". He did not have any direct knowledge of Mr Wright agreeing to this; he seems to have inferred it on the basis of his understanding that Mr O'Donnell was briefing Mr Wright throughout the negotiations. Mr Halloran gave conflicting accounts as to whether this agreement was reached before or after the making of the 2016 Award.
8. Messrs Budworth and Wahrlich each stated that an agreement was reached in the terms described by Mr O'Donnell. Mr Budworth stated that the agreement was reached prior to the making of the 2016 Award. Mr Wahrlich, like Mr Halloran, gave conflicting accounts as to whether this agreement was reached before or after the making of the 2016 Award.
9. Turning to the Secretary's witnesses, Mr Wright denied that he agreed that the AMS would be used to define "heavy plant". He stated that to his recollection the discussion concerning heavy and minor plant occurred after the making of the 2016 Award, when role descriptions were being discussed. The AMS definition came up in that context. He stated that he was not present at any meetings prior to the making of the 2016 Award during which the definition was discussed. He deposed that even had it come up in his absence, Mr O'Donnell and Ms Murray would have been required to get his approval for any position taken in the negotiations.
10. Ms Murray stated that she attended most of the meetings in which the 2016 Award was negotiated. She recalled that minor plant was discussed particularly in relation to the FOGO classification rather than the FO1-2 classification. She stated that at that time it was very unclear to her what was meant by the terms minor and heavy plant. Ms Murray further stated that no agreement was reached, before or after the making of the 2016 Award, for the AMS to be used to distinguish between minor and heavy plant.
11. Ms Gallagher deposed that she had attended a majority of the meetings in which the 2016 Award was negotiated. She could not recall agreement being reached with the AWU that "heavy plant" would be defined by reference to the AMS. She stated that none of the discussions in the 2016 award negotiations were aimed at creating an agreed list of plant which FO1-2 employees could use. She could not recall any definition of minor plant having been put forward by the NPWS other than that contained in the letter referred to at [58] above, and she understood that this definition had been agreed. At the same time, she said that there was "no hard and fast agreement on what would constitute heavy plant". [14]
12. Ms Hopkins deposed that no agreement was reached in the 2016 award negotiations that the AMS would be used to distinguish between minor and heavy plant. She said further that there was no agreement that employees in the FO1-2 classification would not be required to operate heavy plant. Ms Hopkins stated that it had been said frequently in the negotiations leading to the 2016 Award that anything offered on behalf of the NPWS would have to be taken back to Mr Wright for approval. Ms Hopkins had no involvement in the discussions regarding the role descriptions.
13. The AWU relied heavily on the fact that Mr O'Donnell was the only one on the part of the NPWS present in all of the meetings leading to the 2016 Award. This is an insufficient basis on which to disregard the evidence of the other witnesses present during the negotiations. Leaving aside the question as to whether Mr Wright agreed to the use of the AMS to define heavy plant, and assuming that Mr O'Donnell represented to the AWU that the NPWS agreed to the matters set out at [61] above, it would have to have been the case that such an agreement was reached at a time when none of the other witnesses called by the Secretary was present and, further, that the alleged agreement was not otherwise discussed in their presence. As Mr Noack deposed that these were "substantial changes" to the previous award [15] following "extensive discussions", [16] it is difficult to accept that such an agreement, had it been reached, would be known only to Mr O'Donnell on the employer's side.
14. There is contextual evidence that is also relevant. A number of the witnesses called by the Secretary deposed as to the operational implications of employees in the FO1-2 classification being precluded from operating heavy plant of the kind listed in the AMS. In short: 1. it would preclude the relevant employees from utilising plant that they have used (and do use) on a day-to-day basis. They would be relegated to the low-level work that is otherwise covered by the FOGO classification. Further, they would revert to using basic utensils - "pick and shovel" - to do their work, which would be inefficient, time-consuming and increase the risk of injury to the employees; 2. if the relevant employees were unable to use certain items of plant or to drive medium rigid vehicles it would not only detrimentally impact the ability of the NPWS to meet its operational needs, but could significantly impact on its ability to respond in a timely fashion to any emergencies, such as bushfires; and 3. if employees are unable to utilise heavy plant or drive medium rigid vehicles, they will not only have less job satisfaction but would also be effectively stalled in their career. While there is a hard barrier between the relevant employees and higher grades within the Field Officer classification, they still have the ability to apply for suitable vacancies which arise. If they cannot develop new skills they cannot progress.
15. Having regard to these matters, the question arises as to whether, had Mr O'Donnell entered into the agreement he described, it is likely to have passed apparently unnoticed or unremarked by the other NPWS managers involved in the negotiations.
16. The role descriptions are also relevant in determining what was agreed in terms of the plant that an employee in the FO1-2 classification could operate. As already stated, the parties consented to the Commission making the 2016 Award, which contained the new FOGO and FO1-2 classifications. A description of the duties of the FOGO was set out in Appendix A to the 2016 Award. There was no description of the duties of the FO1-2 classification in the 2016 Award. On the evidence, this is because the duties had not been determined other than at a conceptual level. This explains the parties preparing the Explanatory Memorandum and tendering it in the Commission proceedings leading to the making of the 2016 Award. The Explanatory Memorandum noted the commitment of the parties to "cooperatively develop appropriate role descriptions…as soon as practicable". Mr Noack stated to Newall C on 30 June 2016 that the AWU would not have consented to the 2016 Award without the commitments contained in the Explanatory Memorandum.
17. In this context, the role descriptions that were ultimately negotiated and agreed must be taken to be part of the industrial matrix which includes the 2016 Award.
18. The evidence suggests that the draft "Field Officer 1-2" role descriptions were considered by officials and delegates of the AWU. The role description ultimately agreed between the NPWS and the AWU in August 2016 made reference to the employee having to operate heavy plant. That the AWU agreed to those terms is inconsistent with the question of "heavy plant" and the AMS having the prominence in the 2016 award negotiations and in the development of the role descriptions as the AWU submitted.
19. Even when the AWU challenged the reference to "heavy plant" in the "Field Officer 1-2" role description in August 2017 and the reference was changed in September 2017 to "minor plant", the role description still contained the "essential requirements" referred to at [32(3)(b)] above. In this regard, Mr Quirk deposed as follows: [17] "59. The essential requirements section of the FOl-2 role description includes the 'ability to obtain relevant SafeWork NSW certification to appropriately operate and maintain a range of plant and equipment, including but not limited to conditionally registered vehicles, watercraft, lifting apparatus and minor road maintenance plant'. '[L]ifting apparatus' requiring SafeWork NSW certification includes forklifts, small vehicle mounted cranes and elevated work platforms, which appear in the Asset Management System heavy plant list. Conditionally registered vehicles, including tractors, ride on mowers, quad bikes, rollers, graders and dozers, also appear in the Asset Management System heavy plant list, as do watercraft. The Asset Management System heavy plant list is inconsistent with the FO1-2 role description and competency framework and is therefore not suitable for use in the manner suggested by the AWU."
20. A separate but related consideration stems from the fact that the 2016 Award anticipates a clear distinction between the FOGO and FO1-2 classifications. In negotiating the award and developing the role descriptions the parties must be taken to have been working towards achieving that distinction.
21. The Secretary submitted: "62. Each of the duties that the AWU allege are within the role of an FO1-2 are also within the role of a FOGO as set out in Appendix A to the 2016 Award. None of the AWUs witnesses identified any duties that could be performed by an FO 1-2 that were not within the FOGO duties." (Sic)
22. Under cross-examination Mr O'Donnell stated as follows: [18] "Q. It was always intended there'd be a significant difference in pay between the new FOGO classification and a grade 1 field officer? A. Yes. Q. And if I put to you that at the time of the implementation of the 2016 award that this was around $7,000 per annum, would that be consistent with your recollection? A. On the base rate sir it sounds familiar but I wouldn't be able to confirm that sum, but there was a big gap. Q. A big gap? A. Yeah. Q. And one of the key concerns that the AWU expressed to you during the negotiations was to distinguish between the work performed by the new FOGO and the existing classification of field officers, wasn't it? A. Yes. Q. Because the AWU's express concern was they didn't want FOGOs performing the same work as field officers and receiving significantly less money, is that correct? A. Yes. Not unfamiliar territory sir. I - you know I worked for unions for a long time, I delivered that message myself during employer related reforms."
23. In his statement of 15 July 2019, Mr Wahrlich deposed that during a meeting in November 2015 Mr O'Donnell had said words to the effect: [19] "A grade 1-2 won't be required to operate Heavy Plant as they will be doing low skilled work like cleaning toilets and mowing lawns. This will free up the other [Field] Officers to carry out harder and more skilled work."
24. The role descriptions do not reflect employees in the FO1-2 classification being restricted to such low skilled work as cleaning toilets and mowing lawns.
25. Under cross-examination Mr Noack deposed as follows: [20] "Q. What do you say is the difference between a FOGO and a field officer grade 1/2? A. That's a very good question and we've asked that of management ourselves right from the start - very little if anything. Q. Whereabouts do you say that in your evidence? A. Well it started off when we first - let's go to the evidence - well I'll go to my statement, I don't know if there's any evidence. But when Michael Wright first introduced the concept of field officer 1/2 he made it quite clear these are basic jobs and he pointed out what they would do, cutting lawns, cleaning toilets-- Q. If I could pause you there. You've made that submission. A. Yes. Q. I'm asking you the specific question about whereabouts in your statement do you say there's no effective difference between the [work] to be performed by a FOGO and an FO 1/2? A. There's no document on that-- Q. I'm not asking you about a document at this point, I'm asking you whereabouts in your statement you give any evidence to that effect? A. Okay. Well I'll go back to the one that I said before and that is number 19 when it was quite - that's what they were purporting - experience grade 3 or 4 National Parks staff who are doing menial work like cleaning tables, cutting grass, which means not three and four should be doing that, one and two should be doing that, it's clear. Q. But you're not saying in there that there's no distinction between a - what you're submitting to the Commission is there's no distinction between a FOGO and a field officer 1/2 isn't it, that's your evidence? A. Well there isn't much, no. Q. They paid quite a difference in money aren't they? A. Correct. And the rationale behind that was, from management, that we had a lot of contractors in National Parks. Wouldn't it be better to get our people back into National Parks and knock out the contractors. So that was one of the arguments, for both FOGO's and field officer 1/2. So there was an element of cost in both those structures that would clearly come out of the system. So that was the financial strategy at the time. Q. But the AWU hasn't raised any dispute that there's no - that FOGO's are performing the same work as FO 1/2 and not getting payments are they? A. No."
26. Under cross-examination Mr Halloran deposed as follows: [21] "Q. What do you say is the difference between a FOGO and a field officer grade 1/2? A. The way that it's explained to me, and it's all pretty new on the ground, is that the jobs were to do very low-skilled type works, cleaning barbeques, toilets, mow the grass. FOGOs-- Q. But that's - you'd agree that's all work that can be done by the FOGO, isn't it? A. Yes. Q. And they can operate - a FOGO can operate minor plant, can't they? A. Mowers, brush cutters. Q. Yeah, minor plant, yes? A. Yes. Q. And you don't say there's any extra that a field officer grade 1/2 can do, do you? A. There doesn't seem to be. They seem to be pretty close together."
27. An approach to the construction of "minor plant" which would remove the distinction between the FOGO and FO1-2 classifications would be inconsistent with the clear intention of the parties, reflected first in the 2016 Award.
28. I accept that the AMS was the subject of discussion between the parties, including as to whether it ought to be used to define the meaning of "heavy plant". On the evidence I consider it more probable than not that this occurred after the 2016 Award was made and when the role descriptions were being developed.
29. However, having regard to the totality of the evidence I am not satisfied that agreement was reached between the parties that employees in the FO1-2 classification would be precluded from using heavy plant as defined by reference to the list contained in the AMS. I am also not satisfied that it was agreed that minor plant was to have the same meaning for both the FOGO and FO1-2 classifications, and that that meaning was to be derived from Mr Wright's letter to Mr Noack of 1 April 2016. Findings to the contrary would be inconsistent with the creation of the separate classifications in the first place and the role descriptions developed by the parties to give effect to their agreement.
30. It follows that I do not accept the premise of the AWU's case that there is a hard line to be drawn between "heavy plant" and "minor plant", with the terms having a consistent meaning across all classifications. The agreement reached between the parties does not contemplate such a binary distinction.

What was agreed?

1. Consistent with the observations at [72]-[73] above, the role descriptions must be seen as part of, and giving effect to, the parties' bargain.
2. That bargain included the following: 1. employees in the FO1-2 classification could only operate "minor plant". However, this term was to extend to cover any plant and equipment requiring SafeWork NSW certification to appropriately operate and maintain, including but not limited to conditionally registered vehicles, watercraft, lifting apparatus and minor road maintenance plant; and 2. employees in the FO1-2 classification could be required to obtain an MR licence during their probation period, and presumably use it thereafter; and 3. Field Officers Grade 3 could be required to utilise an MR licence.

The Competency Schedule

1. The question which next arises is whether the Competency Schedule precludes the parties, or the Commission, giving effect to that bargain.
2. At the time of agreeing to the introduction of the FOGO and FO1-2 classifications into the 2016 Award the parties acknowledged that it was necessary that role descriptions needed to be developed. This was notwithstanding that the 2015 Award had referred to the Competency Schedule and the 2016 Award continued to do so. Elements of the "Field Officer 1-2" and "Field Officer 3-4" role descriptions are inconsistent with the Competency Schedule. It can be inferred that in developing the role descriptions in the terms ultimately agreed the parties apparently did not consider themselves constrained by the Competency Schedule.
3. The language adopted in the notification filed by the AWU which gave rise to the Heavy Plant Dispute also falls short of expressing a view that the Competency Schedule was mandatory and fixed. The notification stated: "(e) Similarly, the AWU considers that the operation of heavy plant by FO1-2s is outside the scope of their duties, especially in circumstances of inadequate supervision." (Emphasis added)
4. This language does not suggest that an FO1-2 employee cannot under any circumstances be permitted to operate heavy plant.
5. The parties have conducted themselves on the basis that the Competency Schedule is not binding. However, this is not determinative of whether the Competency Schedule is enforceable in the manner for which the AWU contended.
6. The AWU submitted that by virtue of the operation of 2018 Award, the Competency Schedule sets mandatory and maximum competencies for each grade of Field Officer. As the Competency Schedule only requires as an "essential" competency for Grades 1 and 2 that they operate "minor plant", the NPWS is precluded from requiring that they operate any other plant. In addition, as the Competency Schedule only makes the holding of an MR licence "essential" at Grade 4, it cannot be a requirement for Grades 1, 2 and 3.
7. The Competency Schedule is not reproduced in the 2018 Award. The question is whether and to what extent the 2018 Award operates so as to preclude the NPWS mandating requirements at each grade that are not consistent with the Competency Schedule.
8. Part B Table 2 of the 2018 Award and the Competency Schedule do not align in every respect. The Table provides that for appointment to Field Officer Grades 1 to 3 the employee must have "demonstrated the essential competencies" from the Competency Schedule, but makes no reference to the requirement in the Competency Schedule that the employee also possess desirable competencies. At Grade 4 the Table requires the employee to demonstrate 10 desirable competencies, as opposed to the five required under the Competency Schedule.
9. Leaving the inconsistencies to one side, Part B Table 2 necessarily contemplates that the employee has or develops the necessary competencies at the lower grade and utilises them to a sufficient degree to allow for their competency to be certified. Appointment to Field Officer Grades 2 to 4 requires the relevant competencies to have been "certified by the direct supervisor and Branch Director".
10. This is reflected in the Competency Schedule as well. To progress from Grade 2 to Grade 3 a desirable competency is that the employee be able to "demonstrate" an ability to operate general plant. To progress from Grade 3 to Grade 4 the essential competencies include both being able to demonstrate an ability to operate general plant as well as holding an MR licence. Given the progression from grade to grade which historically occurred, it must be the case that employees were (and are) able to gain these competencies over the time of their employment. Once again, however, how could an employee demonstrate their competency in operating plant other than "on the job"? While several of the AWU's witnesses suggested that these competencies could be obtained by employees in their own time, there was no evidence to suggest that this has ever been required.
11. I digress to observe that the Competency Schedule refers to "general plant". The parties were not in agreement as to the meaning of this term. The evidence does not provide a sufficient basis on which to proffer a definition. Suffice it to say, I cannot regard it as being synonymous with either minor plant or heavy plant, or indeed whether it may encompass both.
12. The Secretary submitted that the Competency Schedule anticipates an employee being allowed to develop, on the job, the skills and experience that will allow them to progress to the next level. It was submitted that the Competency Schedule does not to limit the work that an employee can perform, but simply sets the minimum requirement to get appointed to that next level. The Secretary argued that the system anticipates that within each grade the employee will have an opportunity to develop skills and utilise equipment, subject to appropriate supervision, qualifications and training, such as to enable them to progress to the next level.
13. The terms of the Competency Schedule itself support such a construction. There is further cogency to the argument by virtue of the fact that the Competency Schedule has not been amended for some years, meaning that it was established under a system which effectively allowed for, at the least, annual progression from one grade to the next.
14. The AWU drew my attention to cl 33 of the 2018 Award, which provides as follows: 33. Training Competency 33.1 The parties agree to an ongoing commitment to the development and implementation of appropriate competencies based on the relevant skill and qualification requirements at each level. Such competencies shall be developed having regard to National Training Competency standards.
15. A similar clause appeared in the 2016 Award, the 2015 Award and earlier iterations.
16. There is no evidence as to the circumstances in which the Competency Schedule was created, including whether it was made pursuant to a provision such as cl 33. Even were that to be the case, the provision makes specific reference to an ongoing commitment to the development and implementation of appropriate competencies at each level. The language anticipates that competencies may change.
17. The evidence disclosed that methods of operation within NPWS and the plant and equipment utilised have changed and continue to change. If the Competency Schedule was developed pursuant to a provision such as cl 33 I would be more inclined to accept that the parties have not given effect to the commitment in that clause than that the Competency Schedule, which was last amended before 2010, accurately reflects the "relevant skill and qualification requirements" at each Field Officer grade.
18. For all of these reasons I do not consider that the 2018 Award can properly be construed as prohibiting an employee from performing duties, operating plant or driving vehicles beyond the essential competencies for their grade as contained in the Competency Schedule. Put another way, I do not regard the Competency Schedule as setting the mandatory maximum requirements for each grade of Field Officer, which is enforceable by virtue of being referenced in Part B Table 2 of the 2018 Award.

The need for delineation between grades

1. At the same time, there is a need to be able to distinguish between the different grades of Field Officers. This is self-evident. The distinction determines an employee's rate of pay. It is also reflected in cl 9 of the 2018 Award, which provides as follows: 9. Allowance for Temporary Assignments to Higher Roles 9.1 Employees who relieve in a higher role for a period of at least 5 consecutive work days will be paid a proportion (from 50-100%) of the difference between the substantive salary rate of the occupant of the higher role and the employee's salary. The proportions shall depend on the range and level of duties performed in the role. Where the role is vacant, an employee relieving in the role shall be paid a proportion (from 50%-100%) of the difference between step one of the grading of the vacant role and the employee's substantive salary rate. The proportions shall depend on the range of the level of duties performed in the roles.
2. Without a means of determining the "range and level of duties performed in the role" it is difficult to see how cl 9 could practically operate.
3. Further, the parties expressly agreed that it was necessary to develop role descriptions to give effect to their intentions in 2016. So much was apparent from the Explanatory Memorandum and the representations made to Newall C at the time the 2016 Award was made.
4. By reference to the role descriptions developed and agreed by the parties for "Field Officer 1-2" and "Field Officer 3-4" respectively, Mr Quirk stated: [22] "91. There are distinguishing features which highlight the differences between the key accountabilities of FO1-2's and FO3-4's, namely: (i) a FO1-2 'undertakes diverse tasks relating to the maintenance and improvement of park assets' whereas a FO3-4 'Maintains and improves park assets'; (ii) a FO1-2 'undertakes pest and weed programs' but a FO3-4 'performs pest and weed programs, including those in remote areas with minimal supervision'; (iii) a FO1-2 'Assists with the construction and installation of new park assets whereas a FO3-4 'Constructs, installs and monitors the condition of park assets'; (iv) a FO1-2 'participates in wildfire response to the level of crew member' whereas a FO3-4 'Performs fire management programs and participates in wildfire response at a level of crew member level or above'; (v) a F01-2 'assists with rehabilitation, restoration...' but a FO3-4 'performs rehabilitation, restoration'; and (vi) a FO1-2 'operates and maintains potentially hazardous plant and equipment including…minor plant' whereas a FO3-4 'operates and maintains potentially hazardous plant and equipment including... heavy plant'. The change in wording from FO1-2 to FO3-4 reflects the greater degree of autonomy required for the FO3-4 role arising from the greater skill, experience and competencies required to fulfil the FO3-4 role. 92. In addition to the plant and equipment operated by FO1-2's, FO3-4's are required to operate 'heavy plant', namely earthmoving plant which includes bulldozers, graders and self-propelled road rollers. While they need to demonstrate the competency to be able to operate heavy plant to meet the requirements of the FO3-4 role, it does not mean they are regularly required to do so. There are many staff at the FO3-4 level that the NPWS would not require or ask to use heavy plant as they do not have the skills and experience to operate it safely, efficiently or effectively at the level required. Heavy plant is expensive and needs highly skilled and capable operators to ensure work is done effectively and the machinery is used within its capabilities and not damaged. Such skills can be present in staff who do not demonstrate the full suite of capabilities to progress to a FO3 or FO4 level. Similarly, they often do not exist in staff who otherwise demonstrate the full suite of capabilities excepted of FO3 and 4 officers." (Sic, emphasis in original)
5. While this analysis may allow for delineation between the "Field Officer 1-2" and "Field Officer 3-4" categories, there is nothing in the respective role descriptions to allow for a distinction to be drawn between the grades covered by each role description, that is, between Grades 1 and 2 and Grades 3 and 4. The duties and responsibilities in each case are said to be the same. However, the 2018 Award, as with the 2016 Award before it, requires the four grades to be capable of being differentiated.
6. Further in this regard, the AWU raised the risk of employee exploitation if Field Officers in Grades 1 and 2 could be required to perform all of the tasks otherwise expected of Field Officers in Grades 3 and 4. Mr Budworth deposed as follows: [23] "11. If there is no clear definition of Heavy Plant, then there is no real difference between the work of Field Officer 1-2's and Field Officer 3-4's. In my mind that is the obvious distinction to use. No other alternative distinctions have ever been put to me."
7. Mr Halloran deposed as follows: [24] "12. We would never have agreed to this change if we thought there was such an insignificant difference between Field Officer 1-2s and Field Officer 3-4s. To have two classifications, where employees are undertaking the same work on different salary levels is unfair and undermines the entitlements of AWU members. The decision to agree to a hard barrier was a pragmatic decision for us to reduce contractors and take the basic tasks from Field Officer 3-4s."
8. In an approach which does little to assist in distinguishing between the grades of Field Officers, the NPWS contended that under the "Field Officer 1-2" role description employees can be permitted to operate heavy plant, but cannot be required or directed to do so. Mr Quirk stated: [25] "78. I cannot direct an FO1-2 to operate heavy plant, nor can NPWS expect them to operate heavy plant, but similarly managers and supervisors should not artificially stop them from gaining the skills to use heavy plant."
9. Under cross-examination Ms Menke testified as follows: [26] "Q. And you'd accept that, as a basic premise, that people should be paid on the basis of the work that they perform? A. Yes. Q. And one of the ways that the Award compensates people is on the basis of the skill that they perform? A. Yes. Q. And on the basis of the experience that they have in performing those duties? A. Yes. Q. And one of the ways that it does that is through a classification system? A. Mm hm. Q. You'd accept that? A. I do. Q. And the classification system is essentially a graded system so it goes 1, 2, 3 and 4? A. Yes. Q. And you'd accept that you get paid more as you progress up that classification system? A. Yes. Q. And so you'd accept that, that the person at the FO 1 level shouldn't be performing the same duties as the person at the FO 4 level, for example? A. Not unless they want to, to maintain their existing skills. Q. And so your position, as you come to this statement, is that if somebody wants to perform something, they should be permitted to perform it, provided that they're qualified to perform it? A. Provided they're qualified and competent. … Q. But you accepted from me earlier, that one of your responsibilities was to ensure that people worked in accordance with the Award or that they were paid in accordance with the Award? A. Yes. Q. But what you're now saying to the - and you accepted from me before, that the classification system operates on a graded basis? A. Yes, I did. Q. And you've accepted from me that people are paid on the basis of that graded system? A. Yes. Q. But you're now saying to me that if somebody wants to work and they perform that work, then you will permit them to perform that work, without recompense for that work? A. Yes, because what the recompense is the ability to develop skill or to maintain their current skills, on that piece of equipment or that type of task."
10. Later under cross-examination Ms Menke said further: [27] "Q. So you haven't been permitting employees at the FO 1/2 level who expressed an interest and have the competency to perform the work? A. I haven't been directing. Q. But you've been permitting them to perform the work if they want to? A. Yes. I have. Q. Even though National Parks have said to you, 'Our definition is, for the purposes of these proceedings and going forward, 10 tonne or more', you've still been permitting that to occur? A. If - for heavy plant, we don't have a lot of heavy plant so if it had - so 10 tonne excavator for example, we dry hire a 10 tonne excavator. We generally put a Field Officer 1/4 on that piece of equipment, who is less skilled in operating that piece of equipment than the Field Officer 1/2, who since got the Field Officer 1/4 job. So yes, he did use a 10 tonne excavator. Q. Yes? A. Which would have been outside the terms of the Award but he wasn't directed to do that work. Q. And knowing what you did about the position of National Parks? A. Mm hm. Q. And supporting that position in these proceedings, why did you permit that to occur? A. Because the field officer was frustrated at the level of incompetency of the Field Officer 1/4 in operating that piece of equipment. He came from a roading and quarry working background and he felt he could do the job better, to a better standard and more quickly than the person who he was off siding with. Q. And you didn't, obviously, compensate him, because you didn't have the ability to do so, in terms of-- A. No. Q. --through the Award? A. He got job satisfaction."
11. Mr Leathers gave the following evidence under cross-examination: [28] "Q. And how do you work out who should perform which particular duty? For example the example you gave, who should operate the bobcat? A. A 3/4 can operate the bobcat. And then the 1/2's can operate the smaller equipment. If the 1/2's have experience and can operate the bobcat and under supervision, then to me that's acceptable as well. Q. Yes and that's a decision made on the basis of what you regard their competency to be? A. To be their competency, yeah. Q. And when they're operating the bobcat they're exercising a higher degree of skill? A. That's correct. Q. As opposed to using the hand tools. And do you compensate them for that additional skill? A. No, I don't but efficiency wise if you've got someone who's got 20 years' experience on a bobcat but they are a 1/2 and you've got someone who's got no experience and they're a 3/4, then there's got to be a risk factor involved in how we allocate those positions as well."
12. Mr Wright deposed that employees in the FO1-2 classification should be permitted to acquire skills on the job, and that he would rely on supervisory staff to "exercise the appropriate discretion in that regard". [29]
13. The AWU's contention that employees in the FO1-2 classification are confined to operating lawn mowers, whipper snippers and conditionally registered vehicles such as quad bikes fails to give effect to the agreement reached by the parties. However, so too does the practice adopted by the NPWS, which is largely to leave it to local management and the employees to decide, subject to experience or qualifications, what plant and equipment the employees can operate.
14. More significantly perhaps, it almost goes without saying that an approach that employees may be permitted but not required to act in a particular way must be approached with caution. Whether someone is being "permitted" but not "required" to operate heavy plant may well be a matter of perception, and is in any event open to abuse. The risks of employee exploitation and of non-compliance with the "higher duties" provisions in cl 9 of the 2018 Award, whether deliberate or inadvertent, are significant.
15. I agree with the AWU that to the extent that the parties have drawn a distinction between "Field Officer 1-2" on the one hand and "Field Officer 3-4" on the other, it is necessary to be able to find the point or points of difference. However, that applies equally to the distinction between the FO1-2 classification and the FOGO position.
16. In this regard I refer to the discussion at [76]-[83] above. It would be contrary to the principles of award construction to adopt an approach that would result in there being no practical difference in the FOGO and FO1-2 classifications. Moreover, such a construction would just as readily lend itself to exploitation if employees in the FOGO classification could be expected to perform the work of an FO1-2 employee without being paid accordingly.

Heavy Plant Dispute

1. The reliance placed by the AWU on the Competency Schedule in connection with the Heavy Licence Dispute is premised on the assertion that "minor plant" has an agreed and fixed meaning. For the reasons already stated, I do not accept that this was the position agreed by the parties. Given that the 2018 Award makes no reference to "minor plant" in the context of the FO1-2 classification, there is nothing on the face of the Award to support such a construction.
2. The reference to the Competency Schedule in Part B Table 2 is of little assistance. The Competency Schedule was created some years before the 2016 Award was created. There is no evidence as to the creation of that document and what its terms were agreed to mean. There is no basis on which I could find that its reference to "minor plant" was intended to have the meaning for which the AWU now contends.
3. I agree in principle with the AWU's submission that terms in awards should generally be given a consistent meaning. However, that is not the approach which the parties took at the relevant times. To retrospectively apply a consistency that is not reflected in, much less mandated by, the 2018 Award would involve the Commission imposing its own idea of a desirable policy, inconsistent with the principles of award construction referred to above.
4. Once it is accepted that "minor plant" may have a different meaning between the FOGO and FO1-2 classifications respectively, the Competency Schedule ceases to operate as an impediment to the implementation of the bargain reached between the parties.
5. I am unable to make the determination sought by the AWU in par 86 of its written submissions, reproduced at [43] above.
6. That said, there is a need for clarity as to what "minor plant" means in the context of employees in the FO1-2 classification. The approach that NPWS has taken and proposes to take as set out at [114]-[120] above is unsatisfactory.
7. In his affidavit of 4 February 2019 Mr Quirk stated as follows: [30] "68. The NPWS position, based upon the current state of technology and equipment available to NPWS, is that the Mobile Asset Classes relating to plant are: a. Heavy Plant (also known as Major Plant) - heavy (10 tonne and over) self-propelled motorised earthmoving equipment types used in road constructions/maintenance and fire response activities only. Plant types that fall into this definition are: bulldozers, graders, road rollers (self-propelled), excavators and loaders (tracked or wheeled) above 10 tonne. b. Minor Plant - Minor Plant is comprised of all mobile plant that does not reside in the Heavy Plant Class. Minor Plant is comprised of 3 sub categories: (i) SafeWork Licensed Plant - those requiring SafeWork NSW licencing. These include forklifts, elevated work platforms, vehicle mounted cranes and forestry mulchers. SafeWork Licensed Plant is not Heavy Plant. (ii) Vessels - Watercraft that requires an operator to hold either a NSW Boat Operators Licence, or a National Law Coxswains certificate or above. (iii) Light Plant - All other minor mobile plant (under 10 tonne). 69. The use of the 10 Tonne weight as a definitional line has been set internally based on the size of machinery that OEH operate. None are classed as 'heavy' by legislation, but the tasks to be carried out utilising these heavier machines are more complex, pose greater risks in the sensitive environments we work in, and as a result the operators require a higher skill set. … 71. The Minor Plant category includes all of those items of plant that appropriately trained and skilled FOl-4 staff as well as staff in the FOl-2 stream (as explained further below) need to be able to use on a regular and ongoing basis to be able to perform their duties. Tractors, slashers, ride on mowers, small tracked loaders, boats and track building machinery (small excavators, mini dozers and loaders) are all critical tools of trade for field-based staff undertaking the essential requirements of the Field Officer role. They are critical to undertaking the essential maintenance functions of the position - maintaining picnic areas and camping grounds, controlling pest and weeds, maintaining carparks and hard stands, restoring damaged landscapes, clearing fallen vegetation, and maintaining tracks, trails and walking tracks. They are also necessarily used for critical pest animal and weed control, Aboriginal site protection works, fire management works, and facility construction and maintenance." (Emphasis in original)
8. The NPWS' position is that "minor plant" should be defined as being any plant under 10 tonnes, and that the reference to "minor plant" in the "Field Officer 1-2" role description should be construed on that basis. Under cross-examination Mr Quirk conceded that this proposal had not been raised prior to the making of the 2018 Award. It is certainly not an agreed position.
9. In oral testimony Mr Reis stated that plant and equipment over 10 tonne would be known colloquially as "the yellow toys…the earthmoving construction type equipment". [31] It is not clear to what extent such large equipment is utilised in the NPWS. The impression left by the evidence is that the 10 tonne limit would serve to ensure that the vast majority of plant utilised by Field Officers up to Grade 4 would be classified as "minor plant".
10. The Secretary has not sought a finding or recommendation that "minor plant" be defined by reference to the 10 tonne limit. It has not made an application to vary the 2018 Award to give effect to such a definition. It follows that it is not necessary for me to address the AWU's contentions that such a claim would be an extra claim prohibited by cl 43 of the 2018 Award or by s 146C of the Industrial Relations Act and cl 6(1)(d) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW).
11. Suffice it to say, I am not persuaded on the evidence that using the 10 tonne weight to distinguish between heavy and minor plant would necessarily give effect to the agreement between the parties which I have found to have been reached. The NPWS agreed to amend the "Field Officer 1-2" role description to refer to minor plant in place of heavy plant. There was at that time no suggestion of 10 tonnes being used as the line between the two. The definition of "minor plant" proposed by the NPWS would seem to, deliberately or otherwise, negate the agreement made in September 2017.
12. Further, the approach suggested by the NPWS is based on the same premise as that of the AWU, that is, that there are only two types of plant - minor and heavy. Maintaining such a binary approach led the AWU into error, as I have found above. The NPWS runs the risk of falling into a similar error.
13. I have given considerable thought as to whether I should propose a definition of "minor plant" to apply to the FO1-2 classification. I have decided that I should not.
14. I have found that there must be, and that the parties intended there to be, a middle ground. The parties have not presented the evidence that would enable a definition to be crafted that would enable that middle ground to be established. Rather, I was presented with two quite polar positions. The AWU effectively contended that employees in FO1-2 classification should be confined to operating the minor plant which the 2018 Award specifies in respect of the FOGO classification. On the Secretary's case it was difficult to discern any practical difference in the plant that would be operated across all Field Officer grades, with the exception of major construction and earthmoving equipment.
15. The solution to this issue does not lie with the Commission choosing one party's preferred position over that of the other. Neither case is consistent with what I have found to be the bargain between the parties. It is for the parties, with their knowledge of the operations of the NPWS and of the terms of the 2018 Award and role descriptions, to apply themselves to formulating a definition of "minor plant" for employees in the FO1-2 classification, hopefully informed by this decision.

MR Licence Dispute

1. In its written submissions the AWU contended: "82. The MR Licence Dispute can be resolved simply in our submission. It can [be] resolved simply by reference to the competency standards within the Award. It is accepted that the FO1-2 (being new) does not directly reference the competency standards in the 2018 Award. However, it would be, in our submission, a perverse construction of the 2018 Award to ignore the competency standards and not apply them to the FO1-2 position especially given the fact that the FO1-2 position was designed to be a position created for lesser skilled duties. 83. If the competency standards are so applied, FO1-2 has a mandatory competency to operate vehicles up to 4.5 tonnes GVM. This requires the individual in essence to hold a car licence. An FO3 had the same mandatory competency requirement. A requirement for an FO1-2 or FO3 to hold an MR Licence would be inconsistent with the competency standards and should not be permitted especially in circumstances where the competency standards establish a graded system of promotion and responsibility (and appropriate pay points)." (Footnote omitted)
2. In reply the AWU further contended: "32. The position of the Respondent is that the AWU agreed that there was a requirement for an FO1-2 to hold an MR Licence. The evidence does not support [such] a conclusion. The competency schedule should be read as imposing the maximum and not the minimum requirement for performance at grade. The competency schedule has to be considered and applied, regardless of whether the FO1-2 is a new classification, because of the requirement to consider the Award as a whole."
3. In so far as the MR Licence Dispute relates to Field Officers Grade 3, it is possible to dispose of it relatively quickly. The Competency Schedule describes the holding of an MR licence as a "desirable competency" for progression to a Field Officer Grade 3 position. It is completely illogical to suggest that a competency can at the same time be desirable - and so form a basis for progression to that grade - and yet be a qualification that the employee is prohibited from utilising once they attain that grade. It follows that even were it binding and enforceable, the Competency Schedule cannot be read as precluding a Grade 3 Field Officer from holding and utilising an MR licence.
4. Further, the "Field Officer 3-4" role description to which the AWU agreed, and which formed part of the Joint Tender Bundle, states that it is an "essential requirement" that employees at those grades possess an MR licence.
5. I do not consider that there is any basis on which the AWU can contend, or the Commission could determine, that the NPWS is not entitled to direct, facilitate or permit Field Officers Grade 3 to obtain, hold or utilise an MR licence as part of their employment.
6. As to Field Officers Grades 1 and 2, reliance on the "newness" of the FO1-2 classification does not take the AWU too far. While the FO1-2 classification, as distinct to Grades 1 and 2 in the FO1-4 classification, was first introduced into the 2016 Award, the parties have not maintained that distinction. The role descriptions are premised on the apparent understanding that the work performed by employees at Grades 1 and 2 will be the same regardless of the classification (FO1-2 as opposed to FO1-4) under which the employee is engaged.
7. The Secretary contended that the Commission should refuse to grant any relief in relation to the MR Licence Dispute. He submitted that: 1. the AWU agreed to include the requirement for an MR licence in the "Field Officer 1-2" role description; 2. the requirement is consistent with long-established practice; 3. the requirement is consistent with the "primary purpose" of a Field Officer at Grades 1 and 2; and 4. no individual has raised any concern as to the requirement.
8. As I have already found, the AWU agreed to "Field Officer 1-2" role descriptions describing as an "essential requirement" that employees at those grades obtain an MR licence during their probation period. That requirement was identified and remarked upon by Mr Noack, but there is no evidence of any attempts by him or the AWU to remove it.
9. There is also no evidence that the requirement for Field Officers Grades 1 and 2 (or 3 for that matter) to obtain an MR licence was ever the subject of negotiation between the parties up to and including the making of the 2018 Award. Mr Wahrlich attempted to draw a connection between "heavy plant" and a medium rigid vehicle, but the evidence does not support a finding that the possession and use of an MR licence was a matter of concern until after the commencement of the Heavy Plant Dispute.
10. The Competency Schedule makes it an essential competency for each grade that the employee possesses a Class 1A licence. There is no reference to an MR licence. On the Secretary's case, this is immaterial. That is, the effect of the Secretary's case is that the Competency Schedule does not operate to limit what duties or responsibilities can be assigned to a classification of employee.
11. I have already dealt with the need to be able to identify a demarcation between Field Officers Grades 1 and 2 on the one hand and Field Officers Grades 3 and 4 on the other. The Secretary's position as summarised at [144] above not only blurs that distinction but gives rise to the concerns raised at [119]-[120] above.
12. I have found at [106] above that the Competency Schedule does not operate to impose enforceable maximum, mandatory competencies for each grade of Field Officer. Although the Competency Schedule may not be binding, it is referenced in Part B Table 2 of the 2018 Award, where the award is otherwise silent on the duties to be performed by Field Officers. It might have been expected to at least provide a point of distinction between the grades, where such a distinction is required to give effect to the terms of the 2018 Award. However, that is not consistent with the approach that the parties have taken to date, including in particular in the development of the role descriptions.
13. I do not consider that the 2018 Award precludes the NPWS from directing, facilitating or permitting Field Officers Grades 1 and 2 to obtain, hold or utilise an MR licence as part of their employment.

Recommendations and orders

1. In light of my findings I recommend as follows: 1. that for the purposes of determining the plant that Field Officers may operate, the parties no longer seek to confine that plant to only "minor" or "heavy" categories; 2. that the plant which Field Officer Grades 1 and 2 can operate be taken to include plant which requires SafeWork NSW certification to operate, including but not limited to conditionally registered vehicles, watercraft, lifting apparatus and minor road maintenance plant; 3. that the parties confer with a view to reaching consensus on the particular items of plant that will be taken to be encompassed by this definition; 4. that an employee in the FO1-2 classification not be precluded or prohibited from operating plant which is not so defined if they are doing so in order to gain the experience and competency that will enable them to progress in their career or for emergency response. This is subject to: 1. the employee having the necessary permits or licences, however described, to operate the relevant plant; and 2. where the use of the plant is for career progression purposes, the NPWS and the employee, in consultation with the AWU if the employee so requests, having agreed in writing on the item or items of plant in respect of which the employee wishes to gain or demonstrate proficiency and the circumstances in which the employee will be permitted to do so; 1. that the "Field Officer 1-2" role description be amended so as to reflect recommendations (1), (2), (3) and (4); and 2. that the parties confer with a view to determining whether and, if so how, the 2018 Award ought to be amended to contain classification definitions for each of Field Officer Grades 1, 2 , 3 and 4, derived from the role descriptions and incorporating these recommendations.
2. To allow the parties the opportunity to seek the Commission's assistance in giving effect to these recommendations, if required, I order that matter 2018/205860 (the Heavy Plant Dispute) be adjourned to 10 July 2020 with liberty to apply on reasonable notice. If by that date neither party has sought to have the matter re-listed or requested an extension of time, the file will be closed.
3. I order that matter 2019/158580 (the MR Licence Dispute) be dismissed. Damian Sloan Commissioner

Endnotes

1. Pursuant to cl 7(6) of the Road Transport (Driver Licensing) Regulation 2017 (NSW) the holder of a medium rigid vehicle licence may drive a motor vehicle that has two axles and a gross vehicle mass greater than eight tonnes. Under cl 8(2), they may drive also tow a single trailer (other than a trailer commonly known as a semi-trailer) that has a gross vehicle mass not greater than nine tonnes, but only if the mass limits for combinations specified by or under the Heavy Vehicle National Law (NSW) are met.
2. Ms Kean deposed that for professional purposes she goes by the name Sharyn Gallagher. She will be referred to as "Ms Gallagher" in this decision.
3. It was agreed between the parties that "heavy plant" and "major plant" should be regarded as synonymous for the purposes of these proceedings. As the parties more commonly referred to "heavy plant" I will adopt that term.
4. Exhibit A3 at par 36
5. Tcpt 19 November 2019, p 65 (24-39)
6. Tcpt 5 February 2020, p 16 (19-30)
7. AWU Submissions at par 77
8. Exhibit R24, attachment E
9. Exhibit A12 at par 40
10. Exhibit A12 at par 41
11. Exhibit A12 at par 43
12. Tcpt 19 November 2019, p 42 (40)
13. Tcpt 19 November 2019, p 74 (34-46)
14. Tcpt 5 February 2020, p 49 (44-45)
15. Exhibit A3 at par 4
16. Exhibit A3 at par 15
17. Exhibit R20
18. Tcpt 5 February 2020, p 13 (20-42)
19. Exhibit A10 at par 3
20. Tcpt 19 November 2019, pp 67 (28) - 68 (20)
21. Tcpt 19 November 2019, p 97 (16-34)
22. Exhibit R20
23. Exhibit A2
24. Exhibit A8
25. Exhibit R20 at par 78
26. Tcpt 21 November 2019, pp 40 (32) - 42 (30)
27. Tcpt 21 November 2019, pp 48 (16) - 49 (1)
28. Tcpt 22 November 2019, p 32 (23-43)
29. Tcpt 6 February 2020, p 34 (39-40)
30. Exhibit R20
31. Tcpt 21 November 2019, p 79 (40-41) 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: 12 June 2020