Industrial Relations Commission of New South Wales CITATION: Notification under section 130 by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales of a dispute with State Water Corporation and another re clause 11, subclause (8) [2006] NSWIRComm 1145 Public Service Association PARTIES: Mr S Spencer, Industrial Officer State Water Corporation Mr D Stewart, Solicitor FILE NUMBER(S): 4662 of 2005 CORAM: Tabbaa C CATCHWORDS: Higher Duties Allowance Rostered Day Off Industrial Relations Act 1996 Crown Employees (State Water - Storages, Operations and River Infrastructure Staff) Award 2003 LEGISLATION CITED: Crown Employees (Public Service Conditions of Employment) Award 1997 Crown Employees (Public Service Conditions of Employment) Review Award 2006 Public Sector Employment and Management (General) Regulation 1996 HEARING DATES: 31/05/2006 DATE OF JUDGMENT: 10/03/2006 Public Service Association Mr S Spencer Industrial Officer LEGAL REPRESENTATIVES: State Water Corporation Mr D Stewart Solicitor DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: TABBAA C 03 October 2006 Matter No IRC 4662 of 2005 Notification under section 130 by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales of a dispute with State Water Corporation and another re clause 11, subclause (8) DECISION [2006] NSWIRComm 1145 1 The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the PSA") filed a notification of a dispute on 06 September 2005 alleging the non-payment by State Water Corporation of a Higher Duties Allowance to Mr Ron Walker, a member of that Association. 2 Mr Walker is engaged as Assistant Officer in Charge ("the 2IC") at Burrendong Dam. 3 The notification was made pursuant to section 130 of the Industrial Relations Act 1996 ("the Act"). The claim related to a period between 2003 and 2005 when Mr Walker acted in the position of Officer in Charge ("OIC") during a series of absences by the incumbent on rostered days off. 4 A small claim was filed on his behalf on 13 March 2006 by the PSA for a total sum of $4,823.91. The claim was itemised from the period 27 November 2003 to 24 January 2005, a period for which Mr Walker had previously submitted a claim for Higher Duties Allowance, with further itemised details relating to the period from 04 February 2005 to 06 March 2006. 5 The file was allocated to Commissioner Bishop who conducted a number of compulsory conferences between the parties. The Commissioner advised his honour, the President, on 16 January 2006, that conciliation attempts had been unsuccessful and the Association wished to invoke its right, pursuant to s. 173 of the Act, to have the matter arbitrated by another Member of the Commission. 6 The file was re-allocated to the Commission as currently constituted and listed for hearing on 31 May 2006 with final submissions on 19 June 2006. 7 At the hearing the PSA was represented by Mr S Spencer, Industrial Officer, who called evidence from: Ron Walker Assistant Officer in Charge, Burrendong Dam Jeanette Despinidic Director, Corporate Services, NSW Aboriginal Housing Office Graeme Hind Second in Charge, Hume Dam Steve Hamson OIC, Carcoar Dam Fred Turner OIC, Glennies Creek Dam 8 Mr D Stewart, Solicitor, entered an appearance on behalf of State Water Corporation and called evidence from: Abel Immaraj Chief Executive Officer John Robertson Principal Industrial Relations Coordinator, NSW Department of Natural Resources Therese Bramble Senior Project Officer, Policy and Analysis, Department of Natural Resources BACKGROUND 9 The PSA contended that the Respondent is required to pay to Mr Walker the Higher Duties Allowance for those days when he acted as the rostered duty officer and performed the duties of the OIC. Those generally occurred for four days each fortnight, as the Dam is a seven-day-a-week facility. The Respondent contended that the requirement to perform the duties of the OIC was a requirement of Mr Walker's position, for which he was already remunerated. 10 It was common ground that the relevant award was the Crown Employees (State Water - Storages, Operations and River Infrastructure Staff) Award 2003 ("the Storages Award"). Clause 5 of the Storages Award provides that, except where specifically varied, the Crown Employees (Public Service Conditions of Employment) Award 1997 applies. That award was replaced on 23 February 2006 by the Crown Employees (Public Service Conditions of Employment) Review Award 2006 ("the Conditions Award"). 11 Clause 11(8) of the Storages Award provides that: (8) Higher Duties When the General Manager directs that the duties of a position which is vacant, or the holder of which is suspended, sick or absent, are to be performed by one or more other members of staff they will be paid by way of Higher Duties Allowance to the higher position in accordance with clause 34 Division 2 Part 5 of the Public Sector Employment and Management (General) Regulation 1996. Provided that they may be paid the Higher Duties Allowance after one day. 12 Regulation 34 of the Public Sector Employment and Management (General) Regulation 1996 provides that: Division 2 - Higher duties and acting allowances 34 Entitlement to higher duties allowance when relieving in other positions (1) This clause applies when the appropriate Department Head directs that the duties of a position which is vacant, or the holder of which is suspended, sick or absent, are to be performed by one or more other members of staff. (2) A member of staff who, during a period of relief in another position, satisfactorily performs, in the opinion of the appropriate Department Head, the whole of the duties and assumes the whole of the responsibilities of that position is to be paid by allowance difference between the staff member's present salary or wage and the salary or wage to which the member of staff would have been entitled if appointed to that position. (3) A member of staff who, during a period of relief in another position, does not perform the whole of the duties or assume the whole of the responsibilities of that position is to be paid that proportion of the allowance referred to in subclause (1) that the duties satisfactorily performed and responsibilities assumed bear to the whole of the duties and responsibilities of that position. The amount of the allowance so paid is to be as determined by the appropriate Department Head. (4) In this clause, a reference to the duties and responsibilities of a position is a reference to those duties and responsibilities that, during the period of relief, the member of staff appointed to the position would ordinarily have performed or assumed. 13 It was also common ground that the first of a number of duties listed under the heading 'Key Activities' on the Position Profile for the 2IC Major Gated Storage at Burrendong Dam (and at Burrinjuck, Copeton, Hume, Keepit, Wyangala Dams and Menindee Lakes) was: 1. Act as the rostered duty officer for the site and perform the duties of the OIC. Determine actions to safeguard the structure, water supply and lives in emergencies (including floods) based on agreed plans. Implement Dam Safety Emergency Plan. Provide status reports to OIC. 14 The small claim filed on behalf of Mr Walker falls within the jurisdiction of the Commission as currently constituted by virtue of s 380 of the Act. 380 Small claims during other Commission hearings (1) An industrial organisation may, during any proceedings before the Commission, make an application for an order under this Part and for the application to be dealt with under section 379 (Small claims procedure). (2) Such an application may be made only if the order is sought against another party to the proceedings. (3) The Commission must not deal with the matter until the party against whom the order is sought is given adequate prior notice of the application and an opportunity to be heard on the application. (4) The Commission may deal with the matter even though it is not constituted as the Commission in Court Session. (5) The Commission may, instead of dealing with the matter, remit it to an industrial court constituted by an Industrial Magistrate for determination. (6) An order made in accordance with this section is to be made separately from any other order in the proceedings. (7) This section is not to be construed as excluding an application for an order being made in respect of a former employee. 15 As the claim was made on Mr Walker's behalf by the PSA, a registered industrial organisation, it may be heard in conjunction with the present dispute proceedings. The claim for $4,823.91 falls within the limit of the amount of claims which may be heard by the Commission pursuant to s 379 of the Act. Section 379 refers to a maximum amount of $10,000 or such other amount as is prescribed by the regulations. The amount prescribed by the regulations as at 15 September 2006 is $20,000. 16 The PSA raised no objection to the representative of the Respondent being a practising legal practitioner. Leave was granted, pursuant to s. 379 of the Act, to Mr Stewart to appear on behalf of the Respondent on the bases that there was no objection by the Applicant and the Commission was satisfied that the applicant would not suffer any disadvantage. THE EVIDENCE 17 Mr Walker stated that, during the course of meetings held on 16 and 17 April 2002 in Dubbo to discuss the making of a new award, he asked Mr Immaraj if the Higher Duties Allowance was available to a 2IC when the OIC was on a rostered day off ("RDO"). He said that the response was in the affirmative. 18 Mr Immaraj denied giving such a response. He recollected that he had replied to Mr Walker's question with words to the following effect: The higher duties allowance would apply after one day for those relieving in the position of River Operations Officer only. It is not intended to apply to 2ICs when working their normal roster. The roster allowance is the only allowance paid to employees as a result of reasons pertaining to the roster. Similarly, if an employee was on call for the duty officer position they would receive an on call allowance. It is not State Water's intention to extend the higher duties allowance to the 2IC while rostered on as duty officer. 19 He also said: Temporary Storage Officers are rostered on as the duty officer, they only receive the higher duties allowance at the 2IC rate. 20 Messrs Hamson and Turner both recalled that someone from the PSA had asked about the Higher Duties Allowance applying when the OIC was absent on RDOs, and they recalled Mr Immaraj replying that it would. 21 Mr Immaraj gave evidence that traditionally, a Higher Duties Allowance was only paid after five days, but that State Water had reduced the qualifying period to one day for the specific purpose of remunerating an Assets Officer when rostered as a River Operations Officer. The reason for that is the requirement, when relieving in that role, to assume the full range of duties, accountabilities and responsibilities of the River Operations Officer, including altered shifts and extended working hours. 22 Mr Walker acknowledged a significant shift in the reduction of the qualifying period from five days to one day. He believed that the payment to 2ICs when the OIC was on a RDO fell into the same category of change from traditional public sector and State Water practice. He had not sought to clarify the issue at the time because he did not feel there was any need to do so. 23 In 2004, Mr Walker received the allowance for two periods when he worked as the rostered duty officer and performed the duties of the OIC. Mr Immaraj explained that those payments constituted an administrative error. 24 In 2005, Mr Walker claimed the allowance for a number of periods. The response he received, by way of correspondence from Mr Immaraj, referred to discussions between management, the PSA and Mr Walker, and set out reasons why the allowance would not be paid: This does not apply to days where the OIC is rostered off, namely RDOs as the OIC is not expected to be at work. He is neither suspended, sick or absent. It is also normal practice that in order for higher duties allowance to be payable, there should be a request from a duly authorised Manager to the staff member to perform the duties of the higher position. I am not aware that this has ever been requested of you except when the OIC is on leave. The 2IC Position Profile on which the job evaluation was based, states that the 2IC will "Act as the rostered duty officer for the site and perform the duties of the OIC." The Consent Award defines 'Duty Officer' to mean 'the person delegated the responsibility for management of a storage, weir or the water operations functions and is directly accountable for the outcomes'. These clauses in the position profile may have caused the misunderstanding among some of the 2IC's and the PSA. The intention was to make these duties 'as directed', it does suggest they carry the OIC's responsibility. The position profiles will be re-worded to include the clause 'perform the duties of the OIC as directed'. A review may be required to determine whether the change would affect the Job Evaluation outcomes. There are clear distinctions between State Water's expectations of the role of the OIC as defined in the Position Profile and the specific role of the Duty Officer that is incorporated in both the OIC and the 2IC positions. The Duty Officer is required to make operational, day-to-day decisions and perform operational duties. The Duty Officer role does not represent the full duties and functions of the OIC position, which include longer term management planning and decision making. It is not expected of the 2IC nor has it ever been requested of the 2IC that they should carry the full responsibility of the OIC on their RDOs, unless directed. The 2IC's position profile and hence the salary, is reflective of the 2IC's responsibility to act as Duty Officer and, when directed, perform relevant duties of the OIC while the OIC is rostered off. 25 In regard to the requirement to perform higher duties, Mr Walker stated that it had been the practice, for the last 20 years, to automatically assume the role of OIC in their absence. At times, he said, Mr Harry Herath, the Senior Asset Engineer and Mr Walker's supervisor, specifically required the role to be fulfilled. 26 When asked what tasks Mr Herath required him to undertake when acting in that role, Mr Walker responded: Commissioner, at times I've been required by Mr Herath to plan projects, set priorities and manage projects for the Burrendong Dam. Some of these projects include the renovation of cottages, purchases of plant, most of it revolves around, you know, the cottages and the site itself, repairs to the spillway apron, purchases of spillway gate ropes and so on and so forth. I've also been required to develop maintenance schedules and budgets. I develop maintenance and budgets for the IPART submission for 2005 for Burrendong Dam. I also done the 30 year budget--- 27 Mr Walker continued: All right. So as I've already said, planning projects and so on and so forth. I'm required to, you know, plan projects for renovations of cottages, purchase of plant. I've been required to provide leadership to the storage team when the officer in charge has been rostered off. I'm the senior officer on site when he's not there, so therefore I have to provide leadership to the team. I supervise and audit work that they do while there's no one on site apart from myself. I'm also responsible under the OH&S Act for anything that might go wrong on site when the officer in charge is rostered off. And also I might add that when the officer in charge is not on site, I become the most senior officer on site and I'm still responsible under the OH&S Act. I've developed and implemented training programs, including the TSO program at Burrendong, which is the temporary storage officers program, I've implemented that and trained temporary storage officers in the absence of the officer in charge. As I said about budgets, I've done the 30 year budget and the annual budget for Burrendong for the last five years in a row. These have all been verbal conversations on the telephone with Mr Herath. He'll ring up on Friday or a Monday when the Officer in Charge is not on duty and ask me to develop some budgets and stuff for IPART submissions and just the annual budget for the site. At times I've questioned whether I was required to do these things and the answer was that you're there, you have to do it. I also report to more senior management of State Water Corporation and also I helped develop a safety and emergency plan for the site when the officer in charge has been rostered off. These things are required by people at other locations, generally Parramatta or Dubbo and it's by either way of a phone call, they'll ring up and ask for information and development of some things over the phone. These things are the responsibility of the officer in charge and I feel that I'm required to do them when he's not there. 28 Mr Walker rejected the suggestion by Mr Stewart that the tasks he had described fell within his position profile as 2IC. Mr Walker insisted that the tasks all fell within the OIC's position description. 29 Mr Immaraj gave evidence that the 2IC did not have the opportunity to fulfil all of the duties, accountabilities and responsibilities of the OIC during the days when the OIC was rostered off. He said: On the days that the officer in charge is rostered off, there is a limited opportunity to exercise all the function that are part of the OIC, so the opportunity does not exist for any person in that position to be acting in all the roles that the OIC is required to do, so the OIC has much longer term/strategic overview of that site, of the management of that location, the leadership, all of which is not required on those days. 30 Mr Immaraj pointed out that Mr Walker is but one of a number of people providing information to the OIC. Although he may be the main contributor of information and assistance in relation to a particular project, he is not accountable for it. The OIC is ultimately responsible. 31 Mr Immaraj added that team leadership, storage planning and development of maintenance schedules are all accountabilities of the OIC. A performance management plan is in place to ensure that all employees are performing at the level they are required to. 32 Ms Despinidic, in her position as Human Resources Manager for State Water from 1999 to 30 September 2001, represented the Respondent in the negotiations with the PSA which led to the making of the Storages Award. It was her understanding that the parties to the negotiations agreed that 'the Assistant Officer-in-Charge acts at 100% of the minimum salary level for the position of Officer-in-Charge and should be paid accordingly'. She described the use of the Hay job evaluation system in determining the appropriate salaries for positions covered by the Storages Award. She recalled that the Respondent's representatives had insisted that performing duties of the OIC was included in the 2IC's position description, but that performing the duties of the OIC was not remunerated. 33 The following exchange took place between Mr Spencer and Ms Despinidic: SPENCER: ..... are you aware that the position profile for the second in charge lists as one of the key activities the performance of the duties of the officer in charge? DESPINIDIC: Yes, yes, I wrote that, I wrote the position description and the profile, as they put it. Q. And is it correct that notwithstanding that statement, the salary that was arrived at for the position of the second in charge was not in any way comprised for the performance of the duties of the officer in charge? A. No, it couldn't. We actually - Brian Hartman, who was the HR manager from DLWC at the time actually Manuela Crouch as another consultant that had a lot of experience and was to come in and decide how we could go from where we were in the situation to move into have a clean evaluation and then in the award put in all the conditions on top of it. At that point it was very clearly stated that the Hay evaluation system must address just the job itself as a boxed in arrangement. There was no way that that was - the reason it's in here in the position description or position statement and the job profile is because the storage's representatives at that time insisted that it go in, because they didn't want that lost as a key factor. 34 Ms Despinidic agreed that accountability was one of the three key parts of the Hay job evaluation system. 35 Mr Hind gave evidence that he had also participated in the award negotiations between April 2000 and November 2003. His evidence was, in part, as follows: During the writing of the position descriptions for the Assistant Officer in Charge positions, I asked how the four days in each fortnight when the Assistant Officer in Charge is in sole charge of the site is to be recognised and considered in the determination of salaries for the positions. Representatives of the Department were adamant that the four days in each fortnight when the Assistant Officer in Charge is in sole charge of the site could not be taken into account in any evaluation of the position, and insisted that it be evaluated on the assumption that the Officer in Charge is always there to refer to. As a result, all Assistant Officer in Charge positions were evaluated with that assumption. It was agreed that remuneration for the four days in each fortnight when the Assistant Officer in Charge is in sole charge of the site would be in the form of a Higher Duties Allowance. As this was contrary to normal NSW public sector practice, it was agreed that a clause would be inserted into the future Award we were working to achieve to formalise this arrangement. 36 Mr Hind identified the representatives of the Department of Land and Water Conservation as being Brian Hartman, Head of Human Resources, and Manuela Crouch, an independent job analysis consultant. 37 He recalled that Mr Hartman said that 2ICs would be paid the Higher Duties Allowance when required to undertake the duties of the OIC during the four days of absence per fortnight. He quoted from Ms Bramble's witness statement, saying that her words backed up his own recollection of what was to occur. Ms Bramble had said: I acknowledge the objective of evaluating the OIC and 2IC positions as being separate positions with separate accountabilities - all positions in any Job Evaluation are evaluated separately taking into consideration relationships between positions. Positions are not evaluated in isolation. 38 According to Mr Hind, Ms Crouch was also party to the understanding developed in negotiation meetings at Dubbo that the Higher Duties Allowance would be paid when the 2IC was in charge. 39 However, Ms Bramble also stated in her written statement of evidence: 4.1 According to my working notes the factors that were considered in undertaking the job evaluation were as follows: (a) the size of the resources managed in terms of people, budget, revenue; (b) complexity of the operations; (c) diversity of the operations; (d) type of management and planning required; (e) the differences between the OIC positions and the 2IC positions including: · leadership v management · develop & implement training v conduct training · management of maintenance v undertake maintenance · develop Dam Safety Emergency Plan (DSEP) v research/advise DSEP · determine/calculate/manage water release v undertake water release · contract management v undertake site inspections 4.2 It is my understanding that the only function of the positions not included in the job evaluations was the accountability for safety issues in case of a communication failure to the site, as documented in the job evaluation rationales. 40 Mr Hind did not believe that the requirement to perform the duties of the OIC was taken into account in arriving at the remuneration level for the 2IC. He did believe, however, that the 2IC was required to be accountable for all the duties of the OIC when the OIC was not present on site. In that context, the following extract of evidence of Mr Immaraj is relevant: I refer to paragraph 8 of Mr Hind's statement and say that the 2IC's position was evaluated on the assumption that the OIC, or a higher level supervisor, is always there to refer to, such that the 2IC does not have sole accountability for the site at any time. In this regard, I note that during the negotiations a 2IC (whose name I cannot recall) asked in words to the following effect: "In the absence of the OIC, could 2ICs refer key decisions to the Senior Asset Engineer, Customer Service Manager or Chief Executive Officer?" 41 Mr Hind could not recall Mr Immaraj making such a statement. Mr Immaraj, on the other hand, denied that there was any agreement to pay a Higher Duties Allowance, principally because of the availability of more senior staff to whom key decisions could be referred, and because the 2IC was not responsible for other staff during the four days in each fortnight when the OIC was absent. 42 Referring to the four days on which the OIC is rostered off, Mr Hind stated: My understanding and memory was that there was an understanding that that particular component of the assistant's positions should be taken into account in terms of remuneration. The issue at hand was that DLWC HR was adamant that it couldn't be taken into consideration as part of the job evaluation procedures, and that another way would be found, and that way was the - well, my quote prior was "A clause shall be written into the award to allow the allowance to be paid after one day". 43 When referred by Mr Stewart to the first key activity in the 2IC's position description, Mr Hind responded: That is right. And I don't disagree that it actually says that. What I am saying is that as part of the panel that evaluated the positions and as part of the negotiations that led up to the development of that evaluation process, that there was quite a clear understanding between the union representatives and DLWC HR that that particular component could not and would not be taken into account for the purposes of establishing a salary point for that position. 44 Mr Hind testified that Clause 11(8) of the Storages Award represents that agreement. He understood 'absent' to include RDOs. He was aware of clause 22(f) of the Conditions Award, and believed that the agreement reached during negotiations for the Storages Award over-rode the Conditions Award. 45 Mr Hind described himself as having been 'intimately involved' in the initial stages of negotiations, during the development of the job evaluation process. After that, he had stepped back but retained an interest and 'used to keep in touch with it at a distance'. He said he was pleased to see the clause providing for Higher Duties Allowance after one day in the final draft of the award. He was not aware of any other public sector award that allows for Higher Duties Allowance to be paid after one day, as it is paid after five days in the Conditions Award. 46 Mr Walker confirmed that he never received a direction from the General Manager, or the CEO as he is now known, even when the OIC was on leave for extended periods. He simply assumed the role of OIC and was paid for the higher duties at the end of the relevant period. 47 As to the definition of 'absence' in clause 11(8), the following exchange during Mr Immaraj's testimony is relevant: SPENCER: Well, what does absent mean? IMMARAJ: It means that you're on sick leave, jury duty or recreation leave, et cetera. That's what absence means. If you suddenly decided not to show up, yes, that would also constitute that. Q. So if somebody is not there, that's what it means, they're on leave or something? A. No, it says very clearly you're on sick leave, jury duty, recreation leave and so on. Q. One of those. And if they're not there for any other reason, they're not absent? A. If you're supposed to be at work and none of those leave has been applied or prior approval has been given, you simply don't have any reason and you suddenly have gone missing, yes, you could be absent from leave, and then you'd have to explain why you weren't there, and you might justify that by saying, I was sick, but that - after the event you would say, well, I've lodged my sick leave application and here's the doctor's certificate. So yes that could happen, but absence means you're on leave for these reasons. 48 Basically, Mr Immaraj agreed that the Storages Award did not contain a definition for "absence". The parties relied on the commonly understood meaning of the word within the public service. 49 Messrs Immaraj and Robertson were both clearly of the view that Mr Walker could not receive an allowance for duties for which he was already being remunerated, particularly as the duties were set out in the position profile of the 2IC. SUBMISSIONS 50 Mr Spencer submitted on behalf of the PSA that the use of the word 'absent' in Regulation 34 is not limited in any way, and does not exclude absence on RDOs. He relied on the Macquarie Dictionary definition which provides: absent: not in a certain place, away. 51 He further submitted that Messrs Walker, Hind, Hamson and Turner and Ms Despinidic had given evidence as to how and why the provision for Higher Duties Allowance was inserted in the Storages Award. 52 He also submitted that Mr Immaraj, CEO, had stated at a meeting in April 2002 that the allowance would be paid to Assistant OICs when the OIC is absent on a RDO. 53 Mr Stewart summed up the evidence provided by the witnesses for the Respondent. 54 Mr Immaraj had not stated at the meeting in April 2002 that the 2IC would receive a Higher Duties Allowance when the OIC was on a RDO. 55 Mr Imaraj had given evidence firstly, that the final form of the position profiles were different to the drafts. Amendments had been necessary as a result of contentions raised by 2ICs with certain clauses; secondly, that there was no conflict between the accountability of the OIC and that of the 2IC because the latter looks after matters related to the maintenance of the site and the former remains accountable for other tasks. The position profiles recognise that fact and the positions are remunerated accordingly; and thirdly, that there is no requirement for the 2IC to "assume automatically or self unilaterally" the duties of the OIC. 56 Mr Immaraj had pointed out the difference between the requirements of the position of River Operations Officer and that occupied by Mr Walker. He reiterated that it was not the Respondent's intention to apply a Higher Duties Allowance to 2ICs when working their normal roster. The evaluation of the 2IC position profile was completed only after consultation with all the 2ICs and all accountabilities taken into account in determining the remuneration. 57 Mr Herath had confirmed that the 2IC was required to perform the OIC's duties when the OIC is on a RDO but qualified the extent of the requirement as follows: "Not all the duties, but the duties as set out in the position profile... Not 100 per cent, because there are things which need not be done during that particular four days." 58 The Respondent relied on the following exchange in cross-examination: SPENCER: Mr Herath, I think you've said that the 2IC does perform some of the duties of the officer in charge. I put it to you that over a period of time, Mr Walker has performed just about all of the duties of the officer in charge. Is that correct? HERATH: See, responsibility and accountability of long term planning of the storage lies with the officer in charge. Ron Walker can contribute to that and in hierarchy we all do that function, but the level of accountability and responsibility is different. So he can - he does some sort of work that I do, but at a lower level. So that's how it's tied up in the structure. Q. Would you agree that Mr Walker performs many of the duties of the officer in charge at Burrendong Dam? A. Yes, not all, but many, as per the position profile. The position profile clearly states which duties @IC is responsible and accountable and which the OIC is responsible and accountable. So there are some duties which required 2IC to consult OIC or to do in conjunction with. So that's my application of that. Q. Has Mr Walker developed and implemented training of the staff at Burrendong Dam? A. Yes. Q. Has Mr Walker managed the maintenance at Burrendong Dam? A. Management, yes, and long term infrastructure in conjunction with the officer in charge and with me. Q. Has Mr Walker developed dam safety emergency plans? A. Dam safety emergency plans are developed at strategic assessment parameter, we all contributed. And staff at the dam implement the dam safety emergency plan. Q. Has Mr Walker determined, calculated and managed water releases? A. Yes. Usually water releases are done, then they look at in flows and look at the releases and releases are dictated by the senior operation engineer at Dubbo. Q. Would you say he has managed the contractors employed at Burrendong Dam? A. Yes. Q. Would you agree that Mr Walker has exercised and performed a leadership role at Burrendong Dam? A. It is a requirement to - at the dam the OIC is the prime leader and 2IC supports him and he is the leader as well, and it's a requirement for 2IC to be a leader at the dam, because when the OIC is not there, he has to take the charge and then the leadership and then get things going. Q. And is it true that Mr Walker has played a major leadership role at the dam when the officer in charge has been absent on rostered days off? A. Major leadership, not quite so major, but he is the leader when the OIC is not there. 59 Mr Robertson was involved in the preparation of the statement of duties of the 2IC, the negotiations around them and subsequently in relating the results of the job evaluations to the salaries. However, he had not been present on the day the positions were evaluated. When asked what his reaction would be if he was to be told that that the Respondent had agreed to pay Higher Duties Allowance to a 2IC relieving an OIC on a rostered day off, he had responded, "If that was the case, I would have included those words in the award", the reason being that the suggested practice is completely different from his experience in the rest of the public sector. CONSIDERATION 60 The dispute was defined by the Respondent in the following terms: whether a higher duties allowance is payable to a Water Infrastructure Officer - 2IC Major Gated Storage at the Burrendong Dam when the Water infrastructure Officer - OIC Major Gated Storage has a rostered day off. 61 Subclause (f) of clause 22, Rostered Days off for 38 Hour Week Workers of the Conditions Award is in identical terms to clause 21(f) of the predecessor award. It provides that: (f) Payment of higher duties is not to be made to another staff member for undertaking some or all of the duties of the staff member who is absent on a rostered day off. 62 It is so unlikely that such a change from traditional conditions be made without specific clarification or fanfare of any sort that I am inclined to accept Mr Immaraj's evidence that he did not say, and it was not his intention to say, that the Higher Duties Allowance would apply in the circumstances of an OIC having four rostered days off every fortnight. 63 Mr Immaraj's position was supported by the evidence of Ms Bramble and Mr Robertson. The latter gave evidence that the position profile was taken into account in determining the rate of remuneration for each position. Mr Robertson's statement acknowledged the weight given to the first of the key activities in the position profile. 64 Also relevant is Mr Immaraj's evidence about the OIC's longer term strategic overview. 65 I accept that Mr Hamson and Mr Walker understood that a verbal commitment was given that the 2IC would receive a Higher Duties Allowance, but I do not accept that it was the intention of Mr Immaraj, in responding to a series of questions put to him during the negotiations, that a Higher Duties Allowance would be paid for four days every fortnight when the OIC was not rostered on duty. 66 Mr Hamson, in cross-examination, admitted to assuming that he was talking about RDOs, even though he did not refer specifically to RDOs in his response. It is likely that the same type of assumptions were made at times during negotiations, particularly during the two days in April 2002 when, in accordance with Mr Hamson's testimony, "there was a lot of to-ing and fro-ing about a lot of issues". Considerable time elapsed between these discussions and the making of the Storages Award in November 2003. 67 As noted by Mr Stewart, there is a marked similarity between the wording of Mr Hamson's affidavit and that of Mr Turner, describing events that occurred four years earlier. Mr Hamson explained that he and Mr Turner had driven home together after the negotiations, a trip lasting about four hours, during which they discussed the events of the two days. He said it was not surprising that they used similar words, as they had worked together for twenty years. Mr Turner, on the other hand, conceded in cross-examination that he had not prepared the first two paragraphs of his affidavit. 68 Mr Turner read from notes kept daily by a student who had observed the negotiations. He had brought the notes into the witness box to refresh his memory of events of 2002. The notes referred to Higher Duties Allowance and payment after one day. Relevantly, the section of the notes which he read did not refer to RDOs. It appears to be an assumption of the PSA delegate at the meeting that the discussion incorporated absences on RDOs, and an assumption on the part of State Water representatives that they did not. Mr Immaraj's definition of 'absence' within the context of clause 11(8) clarifies his understanding of the issues being discussed. 69 A precondition of the payment was not fulfilled by Mr Walker on a regular basis except perhaps when Mr Herath specifically required him to undertake a task which fell outside his normal role. Although Mr Herath was called by the Respondent to give evidence in the proceedings, his name only arose when Mr Walker was in the witness box. He was not mentioned in the statements exchanged prior to the hearing. In cross-examination, Mr Herath showed a clear understanding of the requirements of the OIC's role in so far as it overlapped with, or impacted on, that of the 2IC. 70 Mr Walker's claim that the tasks which Mr Herath required of him all fell within the OIC's position description, and not within that of the 2IC, was not made out because of the key activity contained in the 2IC's position profile. That activity was identified as acting as the rostered duty officer for the site and performing the duties of the OIC. It also required Mr Walker, as the 2IC, to determine actions to safeguard the structure, water supply and lives in emergencies (including floods) based on agreed plans, to implement Dam Safety Emergency Procedures and provide status reports to the OIC. Given Mr Herath's understanding of the role of the 2IC and the obligations of that role, the claim that Mr Walker was required to carry out the whole of the duties of the OIC has not been made out. 71 The Higher Duties Allowance as set out in clause 11(8) of the Storages Award provides that the allowance will be paid after one day when the General Manager requires that the duties are to be performed by another member of staff when the position is vacant or when the holder of the position is 'suspended, sick or absent'. The PSA relies on the use of the word 'absent' to justify the payment of the allowance to Mr Walker. The meaning of the word 'absent' has been discussed earlier in this decision. As to the General Manager requiring the duties to be performed by another member of staff, such a requirement is totally unnecessary when, as in the present circumstances, the duties are included in the position profile of the 2IC. It logically follows that no requirement is made which would activate the relevant clause of the award. 72 Even if such a requirement existed beyond the scope of the 2IC's position profile, Regulation 34 of the Public Sector Employment and Management (General) Regulation 1996 reiterates the necessity for the person to be directed to perform the duties of the position, and further sets out the requirement that the person satisfactorily performs the whole of the duties and assumes the whole of the responsibilities of that position. There is insufficient evidence to show that Mr Walker was required to perform the whole of the duties and assume the whole of the responsibilities of the position of OIC for which the Higher Duties Allowance is claimed. 73 A comparison of the position profile of the OIC and the 2IC shows clear and substantial differences between them. A particular overlap exists between the first key activity of the 2IC and the second activity of the OIC, namely: Act as the rostered duty officer for the site and perform the duties of the OIC. Determine actions to safeguard the structure, water supply and lives in emergencies (including floods) based on agreed plans. Implement Dam Safety Emergency Plan. It is only the addition of the words 'Provide status reports to OIC' that distinguishes the role of the 2IC from that of the OIC regarding this aspect of their work. 74 The first key activity contained in the OIC's position profile was relied upon by Mr Immaraj, in particular, to distinguish the role of the OIC from that of Mr Walker, and to set apart the role of the OIC from that which Mr Walker was required to fulfil on the days that the OIC was on a rostered day off. The first key activity in the position profile of the Water Infrastructure Officer - OIC Major Gated Storage is: Provide leadership and management of the major gated storage site, including priorities setting, planning and budgeting, site management and supervision/audit of work. Support the Area SAE in asset management activities. Undertake or manage projects. 75 The duties which Mr Walker claimed he was required to do during the OIC's rostered days off were not in the areas of management and leadership required of the OIC, but were consistent with his own requirements of providing data, information and technical advice, working in accordance with agreed plans, working in consultation with other officers, leading teams, supervising projects, providing advice and the like. All of those tasks are included in the position profile of the 2IC. CONCLUSION 76 Arising from all of the evidence in this case, it is apparent that Mr Walker and several of his colleagues developed a notion about the entitlement to payment of Higher Duties Allowance when working during periods that the OIC is not rostered on. That notion was based on a single question and answer that formed part of two days of negotiations in 2002. Unfortunately, the notion arose either from a misunderstanding or miscommunication at the time. 77 It is obvious from the evidence given by the Respondent's witnesses that no such notion had been conceived by any of them, either during the 2002 discussions or at any other time. As the issue was not raised for clarification or confirmation at any time following those negotiations, the award clause was then interpreted differently by those who had a certain understanding of it, and hence the payment was considered to be an entitlement. 78 The traditional and widely-held practice of not paying Higher Duties Allowance to an officer when another is on a RDO must prevail in the current circumstances for the following reasons: i. the interpretation of Mr Walker and his work colleagues arising from negotiations in 2002 was never confirmed, despite being so clearly different from past and otherwise existing practices; ii. there is no reason to believe that a commitment was made by any of the Respondent's representatives; iii. the meaning of the word 'absence' in clause 11(8) of the Storages Award needs to be read in context, and that context does not support the broad interpretation that the PSA now seeks to rely upon; iv. Mr Walker has been remunerated for the responsibilities of the position of 2IC including the requirement to act as the rostered duty officer for the site and perform the duties of the OIC; and v. the argument that Mr Walker was required to perform the whole of the duties or assume the whole of the responsibilities of the OIC has not been made out. 79 I find that the claim for payment of the Higher Duties Allowance to a Water Infrastructure Officer - 2IC Major Gated Storage at the Burrendong Dam when the Water Infrastructure Officer - OIC Major Gated Storage has a rostered day off has not been made out. 80 In particular, the claim on behalf of Mr Walker for payment of $4,823.91 as accrued Higher Duties Allowance entitlement is rejected. 81 Matter No. IRC 4662 of 2005 is concluded by dismissal of the claim. ______________________________ 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.