Industrial Relations Commission of New South Wales CITATION: Notification under section 130 by the Australian Maritime Officers Union of New South Wales of a dispute with Newcastle Port Corporation re salaries [2007] NSWIRComm 320 APPLICANT Australian Maritime Officers Union of New South Wales (AMOU) PARTIES: Maritime Union of Australia RESPONDENT Newcastle Port Corporation FILE NUMBER(S): IRC 289 of 2007 CORAM: Harrison DP CATCHWORDS: Notification of dispute - job evaluation - application of OCR job evaluation process for Port Surveyor, Hydrographic Surveyor and Survey Officer - whether job evaluation outcome should be adjusted to internal and external relativities - whether changes in work and new technology support job evaluation outcome - operative date. Held - job evaluation processes properly applied - no basis for adjustment on basis of internal or external relativities - salary levels determined - operative date from date of agreement on position description subject to valuation. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Newcastle City Council Re Alleged Failure To Size Position of Ranger [2006] NSWIRComm 352 Notification Under Section 130 By Pacific Power Of A Dispute With The Construction, Forestry, Mining And Energy Union Of Australia, New South Wales Division And Others Re Work Restrictions - Eraring Power Station (IRC 2973 of 1997, 17/6/99, Harrison DP unreported) HEARING DATES: 3/9/07, 7/9/07, 11/10/07 DATE OF JUDGMENT: 21 December 2007 APPLICANT Mr M Fleming AMOU LEGAL REPRESENTATIVES: RESPONDENT Mr M Smith Solicitor Sparke Helmore Solicitors JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 21 December 2007 Matter No IRC 289 of 2007 Notification under section 130 by the Australian Maritime Officers Union of New South Wales of a dispute with Newcastle Port Corporation re salaries DECISION [2007] NSWIRComm 320 1 This matter arises by notification of a dispute pursuant to s 130 of the Industrial Relations Act 1996 ("the Act") filed on 9 March 2007 by the Australian Maritime Officers Union of New South Wales (AMOU) concerning the appropriate salary for the positions of Port Surveyor, Hydrographic Surveyor, and Survey Officer employed by Newcastle Port Corporation (NPC). 2 Employment is regulated by the Newcastle Port Corporation Enterprise Agreement 2006 - 2010 ("the Agreement"), an industrial instrument made pursuant to the Workplace Relations Act 1996 (Cwth) ("the Federal Act"); the NSW Port Corporations Award 2001 ("the Award") 353 IG 561, an award of this Commission which, so far as a constitutional corporation is concerned, became a Notional Agreement Preserving a State Award (NAPSA); and, by operation of cl 8 of the Agreement, the NPC Personnel Policies. 3 The matter was subject to compulsory conference proceedings on 15 March 2007 and 27 April 2007. 4 In the proceedings of 27 April 2007 Mr J Boyle of the Maritime Union of Australia (MUA) joined the proceedings. 5 The matters in dispute were unable to be resolved in conciliation. Arbitration proceedings took place in September and October 2007 and were concluded by written submissions, all of which were filed by 7 November 2007. JURISDICTION 6 The parties are in dispute over the job evaluation outcomes applied to each of the subject positions and have progressed the matter in accordance with the dispute resolution procedures which is found at Appendix A to the Agreement in the following terms: APPENDIX A DISPUTE RESOLUTION PROCEDURES (1) In the event of any disagreement between the Parties as to the interpretation or implementation of the Enterprise Agreement or any other industrial matter every effort shall be made to settle the dispute. The following procedures shall apply: STAGE 1: The matter is to be discussed by the employee concerned (where appropriate) and their immediate supervisor in the first instance. Employees may be consulted with or be represented by a union delegate. STAGE 2: If the matter is not resolved it shall be referred to a union representative and the appropriate Branch Manager who shall arrange a conference of the Parties to discuss the matter. STAGE 3: If the matter remains unresolved it shall be referred to the Union Secretary and the Chief Executive (and/ or their nominees) for discussion and appropriate action. STAGE 4: If the matter is not resolved after stage 1, 2 and 3, either party to this Agreement may refer the dispute to the Australian Industrial Relations Commission (AIRC) for conciliation and/or arbitration pursuant to section 709 of the Act. The parties may refer the dispute to another third party jointly agreed between the Parties. It is the intention of the parties that in fulfilment of this clause, the AIRC shall exercise the functions and powers normally associated with private arbitration. Accordingly, the parties expressly confer upon the AIRC, the full range of conciliation and arbitration powers necessary to resolve the matter or matters in dispute. For the avoidance of doubt, the parties consent to the AIRC exercising any powers or functions reasonably incidental to the conciliation and/or arbitration of the dispute. The parties agree to accept any decision or determination of the AIRC under this clause subject to any Review rights. [emphasis added] 7 The parties entered into an agreement ("the Referral Agreement") pursuant to s 146A of the Act appointing the Industrial Relations Commission of New South Wales as the dispute resolution provider and conferring upon the Commission the full powers and functions as described by the Act to resolve the dispute by the process of conciliation and arbitration. 8 The parties commit to the outcome of these proceedings and to accept the determination of the Commission, save only and except for any right of appeal to a Full Bench of the NSW Commission as prescribed by the NSW Act. 9 The Referral Agreement (Ex 1) provides: TERMS OF THE REFERRAL AGREEMENT 1 The Australian Maritime Officers Union, the Maritime Union of Australia and Newcastle Port Corporation confer all of the functions and processes prescribed by the NSW Act as amended. 2 In referring the dispute to the Commission, the Australian Maritime Officers Union, the Maritime Union of Australia and Newcastle Port Corporation agree the Commission may exercise all of the functions and powers conferred by the NSW Act. 3 Subject to the rights of appeal of either party, the Commission's determination, award, order or direction made in respect to the dispute is binding on Australian Maritime Officers Union, the Maritime Union of Australia and Newcastle Port Corporation. 4 The Australian Maritime Officers Union, the Maritime Union of Australia and Newcastle Port Corporation may decide to appeal a determination by the Commission in respect to the dispute pursuant to this Agreement. Any such appeal must proceed in a manner as provided by Chapter 4 Part 7 of the NSW Act, and must be determined in a manner as provided in s 192 of the NSW Act. 5 The making of this Referral Agreement does not prejudice the ability of the Australian Maritime Officers Union, the Maritime Union of Australia and Newcastle Port Corporation to agree to refer any future dispute to the Commission under another referral agreement. 6 This Referral Agreement may not be modified or varied unless by further written agreement signed by the Australian Maritime Officers Union, the Maritime Union of Australia and Newcastle Port Corporation. 7 This Referral Agreement shall remain in force until completion of the Dispute or until rescinded or terminated by written agreement signed by the Australian Maritime Officers Union, the Maritime Union of Australia and Newcastle Port Corporation. 8 The Australian Maritime Officers Union, the Maritime Union of Australia and Newcastle Port Corporation also agree that this Referral Agreement complies with the model dispute resolution process in Part 13 of the WR Act, to the extent that the WR Act can or does apply to the Dispute, Newcastle Port Corporation and Australian Maritime Officers Union and the Maritime Union of Australia. THE DISPUTE 10 The Unions, represented by Mr Fleming of the AMOU, seek a determination that the appropriate NPC salary Grade is: Port Surveyor NPC Grade 18 Hydrographic Surveyor NPC Grade 15 Survey Officer NPC Grade 11 11 The positions have been subject to evaluation by the OCR job evaluation process on 29 January 2007 and 23 April 2007, producing the following results: 29 January 2007 23 April 2007 Port Surveyor NPC Grade 17 Grade 16 Hydrographic Surveyor NPC Grade 13 Grade 13 Survey Officer NPC Grade 9 Grade 10 12 The NPC concluded that the appropriate salary should be: Port Surveyor NPC Grade 16 Hydrographic Surveyor NPC Grade 13 Survey Officer NPC Grade 8 13 An offer has been made to pay the Survey Officer at Grade 9 subject to the Survey Officer providing: · practical examples of trouble shooting and decision making when preparing survey equipment for use · practical examples of the initiative and knowledge required to operate tidal programs and survey software, data collection and data transfer · clarification of the relationship between stages 1 and 2 of an Associate Diploma of Survey with Certificate 5, 3 and 2 level qualifications. 14 The essence of the dispute is an assertion by the Unions that the OCR process has been misapplied and the results ignored by management. The Unions contend that the salary levels determined by management undervalue changes in the work of each position which support a higher grading. The Unions further contend that the grading resultant from the OCR process does not offend or improperly disturb internal relativities. It is further argued that external market research supports the gradings resultant from the OCR process. 15 Management contend that the OCR job evaluation process has been correctly applied and that, whilst it may be uncommon to adjust outcomes having regard to internal and external relativities, it is a permissible aspect of the process. 16 Mr Fleming emphasised that this matter was not a work value or special case pursuant to the State Wage Fixation Principles but a dispute over the gradings applied by management which ignore both the principles of the OCR job evaluation process and substantive changes to work value. THE EVIDENCE 17 Mr Fleming brought evidence from Mr Bassett Randall, employed by the NPC as a Port Surveyor; Mr David Connors, employed by the NPC as a Hydrographic Surveyor (formerly Survey Technician); Mr Frederick Eckford, employed by the NPC as a Survey Officer; Mr Tony Nusco, employed by Sydney Ports Corporation as a Hydrographic Surveyor; and Mr Peter Woolfenden, employed by the NSW Maritime Authority as a Technician Surveyor. The evidence of Mr Nusco and Mr Woolfenden was admitted over objection by the NPC; neither were required for cross examination. 18 Mr M Smith, Solicitor of Sparke Helmore Solicitors, on behalf of NPC, brought evidence from Mr David Callaghan, General Manager, Finance and Corporate Services of NPC; Mr Ronald Sorensen, General Manager, Operations of NPC; Mr Stuart Maddison, Employee Relations Manager of NPC; Mr Simon Lobley, employed by NPC as a Master Engineer; Mr Gary Webb, Chief Executive Officer of NPC; Mr Alex Francis, employed by NPC as a Relief Port Officer; and Mr Ross McLelland, Managing Director and Principal Consultant, Pacific Consulting Pty Ltd. The OCR Process 19 The OCR job evaluation process is a method endorsed by the NSW Government for use within the public sector and State Owned Corporations. NPC has used the OCR process since 1993. 20 Mr Maddison's evidence sets out the steps to be taken in applying the OCR process, which he put must comply with an OCR Manual and Best Practice Guidelines published by William M Mercer Pty Ltd, the proprietary owner of the system. 21 Mr Maddison's evidence is that the job evaluation process is preceded by the creation of an approved position description. The process of creating an approved position description is one of consultation involving the incumbent, the section and branch manager, prior to approval by the Chief Executive Officer (CEO). Mr Maddison deposed that this process was applied in respect to each of the positions subject to these proceedings, resulting in approval by the CEO, Mr Webb, on 19 July 2007. 22 The next step in the OCR process is the formation of job evaluation panels which include an independent consultant (usually provided by OCR/William M Mercer), Mr Maddison, in his role as Employee Relations Manager, an employee relations officer, and a job expert. 23 The job evaluation panels convened were: 1st job evaluation 2nd job evaluation (29 January 2007) (23 April 2007) OCR Consultant Ms J Fisher Mr R McLelland (Pacific Consulting P/L) Employee Relations Manager Mr Maddison Mr Maddison Employee Relations Officer Ms S Pankhurst Ms S Pankhurst Master Engineer Mr S Lobley Mr S Lobley 24 The panel was assisted by a job expert in accordance with the OCR process. The relevant job experts were: Port Surveyor Mr C Norman Mr G Webb G.M. Operations CEO Hydrographic Surveyor Mr C Norman Mr G Webb Survey Officer Mr D Hinckley Mr A Francis (Property Coordinator) (Relief Port Officer) 25 The role of the job expert is to assist the panel members by responding to questions they may have in order to clarify content of the position description. The position description is available to panel members prior to meeting with the job expert so that they may determine what assistance they require to later determine which OCR level best fits the description. 26 The job expert has no further role in the process and withdraws from the panel on completion of this stage. 27 Following the job expert's departure panel members then review the position against the four OCR elements, i.e.: (i) Knowledge, skills and experience (ii) Problem solving (iii) Communication and Influencing (iv) Accountability and Responsibility 28 Points are allocated in respect to each factor resulting in a panel score. The involvement of the panel is concluded at this point. 29 The concluding steps are: · The Employee Relations Manager converts the panel score to a position salary level using a points to score table. The evidence of Mr McLelland is that this is a fixed chart, the property of William M Mercer, and that there is no discretion to the employer in the conversion of factor grading to points. · The points calculated from the factor grading are then converted to a salary grade using a points to grade table which is designed for use within the organisation. · The relevant management officers review the evaluation result to ensure equity of the position salary level across the corporation. · The relevant management officers recommend a salary level to the CEO who retains responsibility for the final decision. 30 The review and recommendations in the final two steps were undertaken by Mr Callaghan in conjunction with Mr Sorensen. Port Surveyor 31 The outcomes for the two job evaluations for the Port Surveyor position are: OCR Evaluation Factors First Evaluation Second Evaluation Knowledge, Skills & Experience 13 215 points 12 180 points Problem Solving 12 94 points 11 76 points 12 94 Communicating & Influencing 12 94 points 12 94 points 13 117 points Accountability & Responsibility 13 193 points 12 161 points Applying the 'Job Evaluation Conversion Table' contained in attachment SM5 to the Affidavit of Stuart Maddison you obtain the following Total Points: Total points 607 - 50 526 Applying the 'Points to Grade for the Remuneration Structure' contained in attachment SM6 to the Affidavit of Stuart Maddison you get the following: NPC Salary Grade: NPC Grade 17 NPC Grade 16 32 The position of Port Surveyor was graded at Level 15 ($80,645 p.a.) based upon a position description agreed in 1995 and evaluated at that time. The position was subject to evaluation on 29 January 2007 based upon a revised position description agreed in January 2007. 33 Mr Randall was informed by correspondence dated 2 March 2007 (Ex 18, Attach. SM7) that the review of 29 January 2007 had resulted in a salary outcome of NPC Grade 16 ($86,690 p.a.). 34 The OCR job evaluation result of NPC Grade 17 from the first evaluation was adjusted to NPC Grade 15 on review by management. Management defend the resultant salary outcome as a proper application of the OCR job evaluation process which it is submitted allows for adjustment of the final outcome to take into account internal and external relativities. 35 The decision to apply NPC Grade 15 to the position is opposed on the basis that the OCR process has not been properly applied; fails to take account of significant changes in the work and value of the work of the Port Surveyor since 1995; and adjustment of the first review from NPC Grade 17 to NPC Grade 16 on the basis of internal and external relativities is without foundation. 36 The evidence of Mr Maddison (Exhibit 18) deposes that the job evaluation panel of 29 January 2007 rated the Port Surveyor at 13 on Knowledge Skills and Experience on the basis that the position: (a) Was a senior position requiring a high level of specialist survey expertise. (b) Had a comprehensive level of experience in a range of survey/management skills. (c) Provided authoritative advice and information on survey matters up to the level of Chief Executive Officer. 37 Mr Maddison further deposed that (Ex 18, paras 26,27): 26 The Panel assessed this OCR Factor at Level 13, reflecting the essential criteria for the position, which requires tertiary qualifications in surveying or comprehensive experience in surveying as a registered surveyor and a thorough knowledge and understanding of a range of survey applications and techniques. 27 OCR Level 14 was not considered appropriate as that level requires direction and control of a significant and complex Branch or the position requires specialist knowledge in a major field of critical importance covering several separate disciplines. OCR Level 14 generally applies to Branch Managers. The position of Port Surveyor is not at that level. 38 The evidence of Mr Maddison is that the Port Surveyor was rated at 13 in respect to accountability and responsibility on the basis that the position is: (a) Solely accountable for the quality of survey information and providing authoritative advice. That advice impacts across many areas of NPC. (b) Accountable for the effective management of a complex section. 37 The Panel determined this was within Level 13 of the OCR process. 38 Level 14 was not appropriate as the position was not accountable for managing a Branch and the authoritative recommendations. 39 The considerations of the job evaluation panel of 29 January 2007 consistently place the Port Surveyor below the position of Branch Manager which indicates a conscious consideration of internal relativity. 40 The evidence of Mr Maddison is that the job expert informing the panel provided the following information (Ex 18, paras 77-91): 77 The Second Panel was informed: (a) The role required well developed communication skills, that is 'high value' communication and well developed recommendations; (b) The role required approximately 10 years experience after completion of the appropriate tertiary qualifications; (c) The role was of a 'technical' specialist but the ultimate accountability for the data produced by the Port Surveyor rested with others more senior, such as the Harbour Master and General Manager - Operations; and (d) This position along with many others are of a specialist nature. 78 The Second Panel determined that this was Level 12 in the OCR process as the position was the "primary specialist" on the technical side at surveying but the Branch Managers who used the survey results were accountable for some. 79 Level 13 was not considered appropriate as this level is applicable to Branch Managers where a range of projects/programs or a wide span of resources are managed. 80 In relation to 'Problem Solving' the Second Panel sought input from the Job Expert to clarify the level of strategic focus and direction required of the position. 81 The Second Panel was informed: (a) The level of strategic focus was not significant; (b) A lot of the work undertaken was within guidelines, however, still it required use of judgement and interpretation, not simply using a check list; (c) The collection and collation of data was simplified by new technology however still required judgment and interpretation; (d) More technical and complex repairs of equipment were undertaken by external contractors; (e) Delivery of the survey program for the Port Safety Operating Licence required co-ordination of resources, timelines and accuracy; and (f) The land and engineering aspects introduced a level of complexity. 82 Level 13 was not considered appropriate as this level suggested a degree of autonomy/capacity to set direction at a strategic level. The Second Panel viewed this level of decision making to be at Branch Manager level. 83 The Second Panel determined whilst there was some strategic involvement and a specialist role, it was limited to the technical side of the survey program. The Second Panel determined this fitted within Level 11 and 12 of the OCR process. 84 In relation to 'Communicating and Influencing' the Second Panel sought input from the Job Expert to clarify the level of decision making and influence required to perform the role. 85 The Second Panel was informed: (a) The position was not involved in making significant decisions; and (b) The level of influence in external negotiations related to areas such as tidal contract with Australian Maritime Safety Authority (AMSA) in relation to guidelines. That this was not negotiation of a significant and strategic nature. 86 The Second Panel concluded that this position was within OCR Level 12. 87 Level 13 was not considered appropriate as this level suggests negotiation of a significant nature and authoritative advice at Branch Management Level. 88 In relation to 'Accountability and Responsibility' the Second Panel sought input from the Job Expert to clarify the level of authoritative advice and complexity of the Survey section. 89 The Second Panel was informed: (a) The position is accountable for accuracy of data and management of the Survey section; and (b) The survey work is technical but the Survey section were not undertaking multiple complex projects. 90 The Second Panel determined that this was within OCR Level 12. 91 Level 13 was not considered appropriate as this level suggests accountability for advice and recommendations at Branch Management Level. Hydrographic Surveyor 41 A similar argument is advanced in respect to this position which was subject to job evaluation in 1995 based on the then current position description, resulting in NPC Grade 12 ($68,426 p.a.). Re-evaluation of the position in 2007 resulted in NPC Grade 13 ($71,649 p.a.). 42 The results of the two job evaluations for Hydrographic Surveyor were: First Evaluation Second Evaluation Knowledge, Skills & Experience 10 10 Problem Solving 10 9 Communicating & Influencing 9 9/10 Accountability & Responsibility 9 9/10 Total points 340 343 Salary Level 13 13 43 Mr Maddison provides evidence of the basis of outcome for the first and second job evaluation panels which confirms the consistency of outcome. Survey Officer 44 The result of the 2007 job evaluation is that the Survey Officer position would remain at NPC Grade 8 ($53,994 p.a.). Subsequent review has led to an offer by the NPC to place the position at NPC Grade 9 ($56,540 p.a.) subject to certain conditions being met. 45 The results of the two job evaluations for the Survey Officer were: First Evaluation Second Evaluation Knowledge, Skills & Experience 7/8 8 Problem Solving 8 8 Communicating & Influencing 7 8 Accountability & Responsibility 7/8 8 Total points 236-50 258 Salary Level 9 10 46 The evidence of Mr Maddison details the basis of conclusion in each category by the job evaluation panel. Mr Maddison's evidence in respect to the second evaluation is (Ex 18, 108-125): 108 In relation to 'Knowledge, Skills and Experience' the Second Panel sought clarification from the Job Expert as to the level of skill and experience required. 109 The Second Panel were informed: (a) The desired experience for the role was at least 4 years with 5 to 7 years if the role was required to undertake maintenance; (b) The role involved some maintenance but mostly 'trouble shooting' in relation to the Multi-Beam Echosounder; (c) The desired boat handling skills were approximately 2 years experience over that of a coxswain; and (d) In relation to computer skills the position needs to have a general understanding of relevant software packages. 110 The Second Panel scored this factor at Level 8 of the OCR process, as the position required considerable knowledge of work practices or techniques. 111 Level 9 was not considered appropriate as it suggests a level of specialised knowledge and complexity that would involve the Hydrographic Surveyor. 112 The Second Panel sought to further clarify the level of complexity and judgement required by this position, in relation to 'problem solving'. 113 The Second Panel was informed: (a) Maintenance involves the vessel used for surveys and is largely to do with 'trouble shooting'; (b) There was some initiative required in the position, for example, where there are no guidelines for new surveys; and (c) 50 percent of problems faced required use of initiative. 114 The Second Panel determined this was within Level 8 of the OCR process. 115 Level 9 was not considered appropriate as this level introduces complexity that would involve the Hydrographic Surveyor. 116 In relation to 'Communicating and Influencing' the Second Panel sought further clarification from the Job Expert of the level of influence required by this position. 117 The Second Panel was informed: (a) The position performs risk assessments and develops scope of works; (b) The position requires a level of persuasive skills in co-ordinating maintenance work; and (c) The position develops scopes of work and recommendations in relation to assets such as new technology. 118 The Second Panel determined this factor at Level 8 of the OCR process. 119 The Second Panel considered that Level 8 (c) 'advising/informing' aspect of the role included information or recommendations in relation to the vessel and equipment which was relied upon by the Survey section. 120 Level 9 was not considered appropriate as this level suggests autonomy to complete tasks. This position requires the involvement of other members of the Survey Team or Vessel Plant Maintenance Officer. 121 The Second Panel sought further clarification from the Job Expert on 'Accountability and Responsibility.' 122 The Second Panel was informed: (a) The position is accountable for maintaining vessels for survey certification, survey plant and equipment and 'trouble shooting' with the equipment; and (b) The position is accountable for competently navigating survey vessels during surveys. 123 The Second Panel determined this was at Level 8 in the OCR process. 124 Level 8 was considered appropriate as the position was accountable for providing a specialised operational service but did so under supervision and within defined programs, procedures and practices. 125 Level 9 was not considered appropriate as the position is not accountable for completing work in its own right. 47 Mr Randall, Mr Connors and Mr Eckford provide extensive evidence of the change in work practice, technology, method and re-organisation of the Survey Department resulting in increased efficiency, productivity and reduced staffing levels which it is argued support the salaries sought and, in particular, the higher determination of the job evaluation panels subsequently downgraded by management on the basis of internal and external relativities. THE EVIDENCE Mr Bassett Randall 48 Mr Randall held the position of Port Surveyor from April 1993 to his resignation in late 2007, prior to concluding submissions in this matter. 49 Mr Randall was awarded a Bachelor of Surveying degree with first class honours from the University of NSW in 1978 and was registered as a land surveyor in 1979 by the then Board of Surveyors, now known as the Board of Surveying and Spatial Information of New South Wales. 50 Mr Randall described his role and that of the Survey Section in the following terms: 2. The position of Port Surveyor is responsible for the efficient management of the Survey Section (the Section) which comprises the Port Surveyor, the Hydrographic Surveyor, the Survey Officer and the CAD/GIS Officer. … … 7. The primary responsibility of the Section is to provide timely and accurate hydrographic survey information to ensure the safe passage within the port limits and accommodation of vessels and their cargoes. This information is collected and processed using a state-of-the-art multibeam echosounder system. Such a system is currently world's best practice for port and harbour surveys. 8. The main users of the hydrographic information prepared by the Section are the Harbour Masters and Pilots who rely daily on accurate and up-to-date depth information to ensure safe shipping movements. 9. The other main responsibilities of the Section are dredging support, land and engineering survey services, computer-aided drafting services, the management of spatial data covering all port property and facilities, and the management the automatic tide recording system, including archiving of tidal data. 10. As Port Surveyor, I am ultimately responsible for the accuracy and quality of all survey and CAD data that is produced in the Section. Technological Change 51 The evidence of Mr Randall is that: 16. The two most important technological changes since 1995 have been the introduction of satellite positioning and the commissioning of the multibeam echosounder system (MBES). Satellite positioning was introduced by the Section in 1998 and this saw a substantial increase in productivity from the Section, so much so that when one of the Survey Officers left the Section in mid-1998, it was decided not to replace that position. The multibeam echosounder system was set-up in late 2004 by the Port Surveyor and the Survey Technicians, one of whom is the present Hydrographic Surveyor. Multibeam echosounders are state-of-the-art technology for hydrographic surveying and the NPC's system is equivalent to world's best practice for port and harbour surveys. The previous system used a single-beam echosounder, the main difference from a multibeam echosounder being the coverage of the port bed: single­ beam echosounders collect depth data in a single track beneath the vessel, whereas multibeam echosounders collect depth data in a swath (or cross section) approximately 50 metres wide (depending on water depth) perpendicular to the track of the vessel. This means that, with multibearn echosounders, 100% coverage of the port bed is obtained while with single-beam echosounders, coverage is determined by the spacing between vessel tracks (which are commonly 5-20 metres apart). For the MBES to produce depths across the full swath to the required level of accuracy, it uses a number of complex sensors and controlling software, all of which require careful inputs from the operator. 52 Mr Randall deposed that the MBES has an application in port security; provides critical depth data to the Swell Analysis and Underkeel Clearance System (SAUCS) used by pilots in planning shipping movements, and provides information which improves the efficiency of dredging work carried out by the NPC dredger, the David Allan. 53 Mr Randall acknowledged that although the SAUCS could function with information from the single-beam echosounder it is far more effective with data from the MBES. 54 Mr Randall deposed that in implementation of SAUCS he was required to verify accuracy of depth data produced by the MBES which he put was an onerous responsibility as there are many sources of error contributing to depth data. Mr Randall was advised by the manufacturer of the MBES that data could be accepted plus or minus 0.1 metres with 95% confidence level. Mr Randall deposed that he, and in a separate study the NPC's University scholarship student, undertook quality assurance performance tests which verified this level of accuracy. The evidence of Mr Randall is that this level of accuracy exceeds the maritime standard included in the Principles for Gathering and Processing Hydrographic Information in Australian Ports, published by the Australian Association of Ports and Marine Authorities, the national body advising ports on hydrographic survey. 55 Mr Randall deposed that introduction of the MBES has brought additional responsibility and skill requirements which he described in the following terms: 22. Because of the complex nature of the components of the MBES, there are many areas where the system can fail, so causing downtime in the hydrographic survey program. All manufacturers/suppliers of equipment and software are based in either Europe or America. This means that the Hydrographic Surveyor and I have needed to become adept at trouble- shooting breakdowns in the system to ensure that downtime is minimised. This requires a high-level of understanding of and insight into the functioning of all components and software that make up the full system. 56 Mr Randall deposed that further additional responsibilities since 1995 include the introduction of a Quality Assurance Standards and System to meet requirements of the Port Safety Operating Licence; the supervision of a student in the University of Newcastle Industrial Scholarship Scheme, which he described as mutually satisfying and rewarding, resulting in the student achieving the double degree of Bachelor of Engineering (Civil) and Bachelor of Surveying with first class honours in each degree; and provision of information to the recently created position of Director of Strategic Projects. Quantity of Work 57 The evidence of Mr Randall is that 63 hydrographic surveys are required to complete the annual survey program, with another 30 to 40 surveys carried out annually for dredging or project work. 58 Mr Randall deposed that each survey requires approximately five hours of field work to collect data, followed by collation of that data into a useful report. The evidence of Mr Randall is that office time required to process data from the single-beam echosounder was approximately five hours, however, the MBES collects fifty times the data increasing processing time to twenty hours, which has been reduced to between 10 and 15 hours with two years' experience and purchase of more efficient software which he put remains well in excess of the work required with a single-beam system to be undertaken with one less staff member. 59 Mr Randall detailed other major changes to work methodologies and responsibilities since the 1995 job evaluation in the following terms: (i) the Harbour Master relies on me to assist in the preparation of the regular Depth Notices which port users use for draft calculations for shipping movements; (ii) the 3-monthly Dredging Priorities are now prepared by me (formerly prepared by the now defunct position of Marine Maintenance Manager) and include volumes of material to be removed; (iii) the Harbour Master now relies on me to supervise external dredging contractors since the abolition of the Marine Maintenance Manager position; (iv) the licence to dredge the berths and channels under the Protection of the Environment Operations Act is now administered by me (formerly administered by the Marine Maintenance Manager); (v) since the retirement of one-time Property Manager, Peter Blume (who himself was a Registered Land Surveyor) in September 1995, the responsibility of managing external survey contractors has passed to the Port Surveyor position; (vi) similarly, the retirement of Peter Blume has meant that the responsibility of providing expert advice on land title matters has also passed to the Port Surveyor position, with a subsequent saving on legal fees in many instances; (vii) the Port Surveyor now has full responsibility for the Section operating budget, whereas this was the responsibility of the Harbour Master in 1995; (viii) as a result of changes in management techniques in 2000, the Port Surveyor now has full responsibility for preparing the Section's annual business plan, including reporting on progress against it and accounting for departures from planned outcomes; and (ix) as Port Surveyor, I am now required to be a member of the following committees and groups, which was not a requirement of the 1995 position responsibilities: (a) the Operations Branch Management Team, (b) the David Allan Shipboard Management Team, (c) the Quality Management Review Team, (d) the IT Steering Group Committee, (e) the Survey Industry Liaison Committee at the University of Newcastle, as the public authority surveyor representative, (f) the Survey Course Advisory Committee at the University of Newcastle, as the public authority surveyor representative, (g) the UNISS (University of Newcastle Industrial Scholarship Scheme) Steering Committee as the NPC's representative. and (h) the Survey & Mapping Managers Forum as the NPC's representative. 29. Apart from the above groups, I am also a member of the Hydrographic Surveyors Group of the Australian Association of Ports & Marine Authorities (AAPMA), and a member of the Permanent Committee on Tides and Mean Sea Level, these commitments commencing before 1995. However, I have been an active member of the AAPMA Hydrographic Surveyors Group, playing an above average contributing role in the publication of Principles for Gathering and Processing Hydrographic Information in Australian Ports mentioned in paragraph 20 above. Organisational Change 60 Mr Randall described a number of organisational changes including a "Corporation Organisational Alignment Review 2005". Mr Randall's evidence is that as a result of these changes the Survey Section comprises the Port Surveyor, Hydrographic Surveyor, Survey Officer and a CAD/GIS Officer, which is one less than in 1995 when the Section included the Port Surveyor, two Survey Technicians (now Hydrographic Surveyor) and two Survey Officers. 61 Mr Randall further deposed that some of the tasks and functions formerly undertaken by the Marine Maintenance Manager were incorporated into the Port Surveyor's role during the course of the re-organisation. 62 Mr Randall's evidence is that one of the Survey Officers accepted a position of Port Officer and was not replaced, mainly due to efficiencies gained by moving to satellite positioning for hydrographic surveys in early 1998. 63 Mr Randall's evidence is that the Port Surveyor now reports directly to an Executive Manager rather than to a mid-level manager as in 1995; and that there are now only two members of the Section, Port Surveyor and Hydrographic Surveyor, qualified to undertake the primary survey tasks compared to three in 1995. 64 Mr Randall deposed that despite this reduction there has been minimal expenditure on outside contract surveyors. 65 In concluding his evidence Mr Randall detailed representations made to management from 2001 seeking recognition of the changes and review of remuneration in the Survey Section, which he described as fruitless (Ex 3). 66 Mr Randall deposed that the matter was to be resolved in the 2004-2006 enterprise agreement negotiations and after more than three years since the matter was first raised survey personnel felt they had no option but to refer the matter back to the union for action. Mr David Connors 67 The evidence of Mr Connors is by statement (Exhibit 8) and oral deposition. 68 Mr Connors has held the position of Hydrographic Surveyor (formerly Survey Technician) since January 1975. Mr Connors has TAFE qualifications in Land and Engineering Survey Drafting Certificate; Computer Aided Drafting Certificate and Coxswain Certificate. 69 Mr Connors deposed that his qualifications and experience make him eligible for specialist certification in hydrography at Level 1 by the Australasian Hydrographic Surveyors Certification Panel, and comply with the requirements for a Hydrographic Surveyor in an Australian port, prescribed by Appendix 1 of the Principles for Gathering and Processing Hydrographic Information in Australian Ports. 70 Mr Connors agreed with the changes and developments in the Survey Section of NPC detailed by Mr Randall. 71 Mr Connors added that: 14. Since 1995 the Hydrographic Surveyors role in supervising external contractors has increased dramatically. From controlling all survey and positioning systems on board the regularly used sweepbar contractor to supervising floating plant and diving contractors in particular relation to obstruction removal. 15. With the reduction in Survey Officers within the section since 1995 it has become an ever-increasing responsibility of the Hydrographic Surveyor to be qualified as coxswain of the survey vessels. With the responsibility of the helmsman duties is the added responsibility of operating these vessels with risk pertaining to damage costs amounting to hundreds of thousands of dollars. The constant navigation in areas such as underneath wharves, around bridge structures, in very narrow passages and alongside rock breakwaters while counteracting severe wind and tidal conditions only heightens this risk. 72 Mr Connors deposed that in the course of his almost 33 years of employment in this position he was employed by the Maritime Services Board of NSW, a predecessor to NPC, and had become familiar with the work of the Survey Section and equivalent positions in what are now the Port of Sydney and the NSW Maritime Authority. 73 Mr Connors' evidence is that he has read the statements of Mr Nusco and Mr Woolfenden. 74 Mr Connors evidence is (TR 11/10/07, pp 42, 43): A. Well, I would envisage my position at Newcastle Port Corporation to be somewhere in between the two positions of senior hydrographic surveyor and hydrographic surveyor. There are similarities in the positions, in all positions and there are also differences. For instance, we have differences in Newcastle where because of the multi beam echo sounding system and the quality and quantity of data enables us to also do additional surveys such as port bed clearance surveys, security surveys and object definition surveys. Other things that we touched that are in my job description that aren't in the other hydrographic surveyor positions are computer aided drafting, which is a substantial part of our job description, which involves using CAD techniques to prepare plans such as lease plans, strategy plans, engineering plans. These aren't touched on by any of the hydrographic surveyors in either Sydney Corporation. Other things that we do here in Newcastle, the hydrographic surveyor does here in Newcastle, is also dredging support. The NPC has a dredger and we offer support to the dredger. That includes things such as configuration files for the dredge, updating its data base, transferring data bases to them. We also have an environmental response which Sydney I believe do so also, but we're also trained in the use of GIS to be able to manipulate and access the OSRICS, which is the oil spill atlas. 75 Mr Connors confirmed that he agreed with the position description for NPC Hydrographic Surveyor used in the job evaluation process. 76 Mr Connors was taken to analysis of the Sydney Ports Corporation Senior Hydrographic Surveyor and Hydrographic Surveyor in the evidence of Mr Callaghan (Ex 20, attach. DC13). Mr Connors' evidence is that he undertakes eight of the eleven functions of the Hydrographic Surveyor and seven of the eleven functions of the Sydney Ports Corporation Senior Hydrographic Surveyor. 77 The most significant difference is that the Sydney Ports Corporation Hydrographic Surveyor is required to: · Give advice as a Hydrographic Surveyor including Cadastral as a registered (degree qualified) surveyor experienced to gain Hydrographic Surveyor Certificate · Obtain quotes and recommend engagement of consultants · Required to be a member of various committees 78 The NPC Hydrographic Surveyor is not required to undertake these functions. 79 Mr Connors deposed that there are some functions of the NSW Maritime Authority Survey Technician which he does not perform, however, he does undertake the majority of the tasks identified in the Maritime Authority position. Mr Frederick Eckford 80 Mr Eckford has been employed in the marine industry for 19 years and holds a certificate of competency as a coxswain. Mr Eckford was employed by NSW Maritime where he gained experience in using global satellite positioning systems (GPS) and marine survey work prior to joining NPC as a Survey Officer on 29 January 2006. 81 Mr Eckford deposed that Mr Francis, subsequently the job expert in the evaluation process, had occupied the Survey Officer position prior to his appointment. Mr Eckford's evidence is that Mr Francis assisted him in the early stages of employment by providing job specific information. Mr Eckford deposed that the work he performs is the same as that required of Mr Francis during his time as Survey Officer. 82 Mr Eckford's evidence is that the Survey Officer is primarily responsible for helmsman's duties on the survey vessel, maintenance of all survey plant and equipment, and acts as instrument operator and/or field hand for land and engineering surveys. 83 Mr Eckford addressed changes to the position of Survey Officer at para 15 of his statement (Exhibit 5) in the following terms: Since 1995 the Newcastle Port Corporation has upgraded its primary survey vessel with state of the art, world's best practice survey equipment consisting of multibeam technology. Along with this technology came the added responsibilities, skills and knowledge for the Survey Officer Position to operate and maintain this equipment with risk pertaining to damage costs amounting to hundreds of thousands of dollars. · Cost replacement vessel fitted with single beam - Approx 250 thousand dollars · Cost replacement vessel fitted with multibeam - Approx 1 million dollars · An increase of 300% in responsibility pertaining to damage and maintenance. 84 Mr Eckford agreed with the position description for the Survey Officer used in the evaluation process. 85 In his oral evidence Mr Eckford deposed that his salary at Level 8 in the NPC is less than his salary as a Survey Officer when employed by NSW Maritime. Mr Eckford deposed that he was required to undertake more functions with a greater degree of responsibility in the NPC position compared to NSW Maritime. Mr Eckford described these as (TR 3/9/07,p60): … … greater input into integral part of the survey section and more functions relating to the multi beam technology calibrations as well as occupational health and safety. Mr Tony Nusco 86 The evidence of Mr Tony Nusco is by statement (Exhibit 6). Mr Nusco was not required for cross examination. 87 Mr Nusco is employed as Senior Hydrographic Surveyor with the Sydney Ports Corporation and has been working in the survey industry since 1971, specialising in the hydrographic area from 1976. Mr Nusco is an accredited Hydrographic Surveyor Level 1 in the specialism Surveys for Coastal Zone Management. 88 Mr Nusco deposed that his salary is $87,217 p.a. with an at risk component of $4,360, which is 5% performance management. 89 The position description, which details the job objectives and accountability, for the position held by Mr Nusco, and the Sydney Ports Corporation Enterprise Agreement 2004-2007 is attached to his statement. The position description describes the main purpose of the position in the following terms: Plan, organise and execute hydrographic and engineering survey services to maintain Port Safety Operating Licence requirements for the Corporation. Schedule and coordinate the survey and coastal activities to ensure they are carried out within the Corporations time and budget constraints. Advise internal and external stakeholders on Hydrographic, Geographic, Tidal and Survey matters as a Level 1 Accredited Hydrographic Surveyor. Prepare and negotiate contracts for the section and make recommendations. Manage the operation of the Corporation tide gauges and supervise provision and distribution of tidal information as required. Assist with maintaining all aspects of the survey quality system including documentation necessary to retain the Survey Section's accreditation to AS/NZS ISO 9001:2000. 90 Key areas of responsibility are identified as: 1. Hydrographic Surveys 2. Team Co-ordination 3. Consultants 4. Financial Control 5. Professional Specialist 6. Data Management 7. Risk Management 91 Mr Nusco's evidence is that: The role of Hydrographic Surveyor is similar in any Port. The safety of ships is paramount and it needs a person with high surveying abilities and knowledge to maintain the Port safe and operational. The Newcastle Hydrographic Surveyors perform similar functions to Hydrographic Surveyors in Sydney Ports. Mr Peter Woolfenden 92 The evidence of Mr Peter Woolfenden is by statement (Exhibit 7). Mr Woolfenden was not required for cross examination. 93 Mr Woolfenden is employed as a Technician Surveyor with the NSW Maritime Authority and has been working in the survey industry since 1972. Mr Woolfenden is an accredited Hydrographic Surveyor Level 2 in the specialism Surveys for Coastal Zone Management. 94 The position description for the position held by Mr Woolfenden is attached to his statement. Also attached is the Waterways Authority of NSW Enterprise Agreement 2004-2007. 95 Mr Woolfenden deposed that his salary is Level MA 13, $79,610 p.a. 96 Mr Woolfenden's evidence is that the role of Technician Surveyor is similar to that of Hydrographic Surveyor at NPC without the emphasis on hydrographic surveying of commercial shipping channels. 97 Mr Woolfenden's position description provides an organisational overview of the position in the following terms: 3. ORGANISATIONAL ENVIRONMENT The Property Services Branch of the Authority has the responsibility for the management of Marine Ministerial Holding Corporation (MMHC) and Waterways Authority properties throughout the State. This includes some 2100 wetland leases. A key function in managing the MMHC and NSW Maritime properties is project development and management. The Branch is also responsible for the development and management of the historical charting database of the MMHC property portfolio including the maintenance of historical records and the initiation and development of the Geographic Information System within the organisation. The databases are retained to provide an accurate property and survey record of the Minister's property portfolio and for reporting to Government. The Branch has a statutory responsibility to determine the Mean High Water Mark of MMHC lands. The Land Titles Office of NSW requires the definition of mean high water mark from the Authority prior to acceptance of survey plans abutting MMHC lands. Other key Branch responsibilities are the provision of landowner's consent for development and the administration of construction approvals for development over MMHC properties. This requires site inspections, preparation of assessments and reports, and subsequent surveys of development for lease purposes. Central to the operations of the Branch is the Survey Section which undertakes surveys and provides specialist technical advice and support relating to survey activities. Surveys are undertaken on waterways throughout the State including harbours, coastal rivers and inland waters. There are six different types of surveys as detailed: · Hydrographic. · Global Positioning System (GPS). · Engineering surveys. · Property inspections. · Port bed clearance surveys including: - site set-out - work-as-executed surveys - engineering inspections · Cadastral surveys. Mr Gary Webb 98 Mr Webb's evidence is by affidavit (Exhibit 17) and oral deposition. 99 Mr Webb commenced employment with the NPC as a Surveyor in February 1989, progressing to Survey Manager; Marine Maintenance Manager; and General Manager Operations prior to appointment as CEO from 1 October 2004. 100 Mr Webb holds a Bachelor of Surveying with Honours from the University of New South Wales and a range of other qualifications including TAFE accreditation as a teacher of surveying. 101 Mr Webb was the job expert in the second review of the Port Surveyor position conducted on 23 April 2007. Mr Webb deposed that he met with the job evaluation panel and answered questions, some of which were provided in writing prior to the panel convening. Mr Webb's evidence is that once he had completed answers to all questions put to him by the panel he withdrew and took no further part in that process. 102 The advice by Mr Webb to the second job evaluation panel is recorded in the evidence of Mr Maddison. 103 Mr Webb deposed that the function of the Survey Section has not changed since the positions were subject to job evaluation in 1995. Mr Webb's evidence is that the equipment used to gather data has changed and will continue to change. 104 Mr Webb deposed that the Survey Section is not required to make decisions in respect to vessel movements or harbour maintenance but to provide information to those sections of NPC which carry responsibility for those aspects. Mr Webb put (Exhibit 17, para 30): As with any surveyor, the Survey section is required to understand the equipment they are using such as Global Positioning Systems (GPS) and Multibeam Echosounder (MBES). This is reflected in the position descriptions for the Port Surveyor and Hydrographic Surveyor reviewed in January 2007. 105 Mr Webb deposed that any pressure felt by the Survey Section was from volume of work not additional responsibility or accountability, adding that the volume was managed by the use of contractors as required. Mr Simon Lobley 106 The evidence of Mr Lobley is by affidavit (Exhibit 11) and oral deposition. 107 Mr Lobley has been employed by the NPC since 1989 and is currently in the position of Master Engineer. Mr Lobley progressed to this position by internal promotion from Seaman on the dredge "EOK Green", Port Officer Grade 1, then Engineer/Deck Hand Grade 2 on the pilot vessel. 108 Mr Lobley deposed that he was trained in the OCR process in March 2006 and has been a member of a number of evaluation panels, including the panel for the Port Surveyor/Hydrographic Surveyor and Survey Officer convened on 29 January 2007 and the second review convened on 23 April 2007. 109 Mr Lobley's evidence is that each panel observed the OCR process, took appropriate information from the designated job expert and concluded evaluation from the OCR points table. 110 Mr Lobley deposed that he was not aware of the outcome of the first review (29 January 2007) at the time he participated in the second review of 23 April 2007. 111 Mr Lobley's evidence is that, in settling upon the score for each of the four OCR descriptors in respect to the Port Surveyor, Mr Maddison advised panel members of the points to grade score applicable to the Port Services Manager position. In assessing the Hydrographic Surveyor comparison was made with the Port Surveyor. 112 Mr Lobley deposed that his role did not go beyond establishing a points to grade score for each of the four OCR descriptors. The resultant OCR points and salary level were undertaken by Mr Maddison from the relevant OCR Manual. Mr Lobley did not participate in this process and is unaware of the outcome. 113 In cross examination Mr Lobley was taken to the job evaluation score sheets for the Port Surveyor position ( Ex 13, 29 January 2007; Ex 14, 23 April 2007) and Hydrographic Surveyor (Ex 15, 29 January 2007; Ex 16, 23 April 2007). 114 Compared to the first evaluation of 29 January 2007 the second evaluation of the Port Surveyor position on 23 April 2007 downgraded Knowledge Skills and Experience from 13 to 12; Problem Solving from 12 to 11/12; Communicating and Influencing from 12/13 to 12; and Accountability and Responsibility from 13 to 12, resulting in a reduction in total score from 607/50 to 526 and a reduction in recommended salary level from 17 to 16. 115 Mr Lobley explained that where there was a difference of view in the panel a dual score such as 12/13 was recorded. 116 Mr Lobley could not recall the basis on which different assessments were reached, however, did put that the information from Mr Webb as the job expert in the second evaluation process was, while no different, more in depth than sought by Mr Norman in the first evaluation. Mr Alex Francis 117 The evidence of Mr Francis is that he held the position of Survey Officer, now occupied by Mr Eckford, from June 1994 to October 2005. Mr Francis took up the position of Relief Port Officer from September 2005 and continues in that position. Mr Francis was employed as an Assistant Surveyor and Survey Technician in Tasmania prior to commencing employment with NPC. 118 Mr Francis' evidence is by affidavit (Exhibit 22), he was not required for cross examination. Mr Francis detailed in his affidavit his experience and functions undertaken in his period of employment as the Survey Officer, which he put vary little from those required of Mr Eckford. 119 Mr Francis was the job expert for the Port Officer position for the job evaluation panel of 23 April 2007. 120 Mr Francis provides extensive detail of the duties and responsibilities of the Survey Officer which formed the basis of his advice to the second job evaluation panel detailed in the evidence of Mr Maddison. Mr Ronald Sorensen 121 Mr Sorensen has held the position of General Manager Operations for NPC from 5 February 2007, prior to which he held various senior positions in the private sector of the maritime industry in Newcastle and Port Kembla. 122 Mr Sorensen's evidence is by affidavit (Exhibit 10) and oral deposition. 123 The evidence of Mr Sorensen is that the survey vessel is used approximately twice per week for processing data and to maintain the vessel. 124 Mr Sorensen deposed that the Survey Officer is required to undertake routine maintenance in accordance with the requirements of the NSW Maritime Authority Coxswain Certificate of Competency. 125 Mr Sorensen deposed that he is unaware of any "troubleshooting" on the MBES by the Survey Officer. Mr Sorensen's evidence is that the Vessel Maintenance Officer, Mr Carr, undertook installation of the MBES equipment on the survey vessel. 126 Mr Sorensen further deposed that there is little or no maintenance on the equipment, which is returned to the supplier in the United States of America for this purpose, adding that at the time of giving evidence the equipment was in fact in America for this purpose and had been for some five weeks. Items of substantial maintenance are reported to the Vessel Maintenance Officer who is responsible for all craft within NPC operations. 127 Mr Sorensen deposed that the Survey officer is available to assist the Hydrographic Surveyor and Port Surveyor in their functions. 128 Mr Sorensen deposed that the Survey Section ceased to undertake work for the Roads and Traffic Authority from March 2007 and that interaction with external contractors is limited to Johnson Marine which operates a sweep bar and grades sections of the port bed annually involving 120 days each year; and a dredge from the Port of Brisbane used approximately every ten to twenty years (last engaged in early 2006). 129 Mr Sorensen did not otherwise take issue with the evidence of Mr Randall, Mr Connors or Mr Eckford. Mr David Callaghan 130 Mr Callaghan is employed by NPC as General Manager Finance and Corporate Services, a position he has held since 1 November 2003. Mr Callaghan commenced employed with the Maritime Services Board - Hunter Port Authority (now NPC) on 29 May 1995 as the Financial Accountant. Prior to his current position Mr Callaghan was employed by NPC as Compliance and Risk Manager from October 2000 to July 2003. 131 Mr Callaghan's evidence is by affidavit (Exhibit 20) and oral deposition. 132 The evidence of Mr Callaghan is that he had no direct input to the OCR job evaluation process, however, he reviewed the outcome with regard to internal and external relativities. 133 The principle issue taken by the Unions is the ultimate fixing of salary levels different to those resulting from the panel analysis on the basis of internal and external relativities 134 Mr Callaghan deposed that in addressing the internal relativities he satisfied himself that the position description was accurate and correctly reflected the business needs. Mr Callaghan put that there was no issue with this aspect and he then turned to consideration of equivalent positions having regard to role, responsibility, delegations to ensure that the internal relativity was fair, equitable and consistent with the rest of the organisation. 135 Mr Callaghan deposed that he compared the valuation outcome for the [Randall] position with the Safety and Environment Manager, the Finance Manager, and a recently evaluated position of Commercial Property Manager. Mr Callaghan was unsure whether the latter position was titled Property Manager at the time it was valued during the recruitment phase for the position. 136 Mr Callaghan deposed that positions above and below the relevant position were also considered, citing the Port Services Manager position which has a larger number of direct reports than the Surveyor position and attracts remuneration two levels higher. 137 Mr Callaghan's evidence is that the Port Services Manager is responsible for approximately 30 staff, is responsible for many aspects of the Port Safety Operating Licence, and has a financial delegation of between half to one million dollars per annum, compared to the delegation of the Port Surveyor position of about two hundred thousand dollars per annum. 138 In addressing the technological advancement and continuous improvement in the Survey Section Mr Callaghan deposed that these are an inherent feature of the organisation. 139 The evidence of Mr Callaghan acknowledged that Mr Randall had taken a leading role in the introduction of the MBES and GPS systems. Mr Callaghan confirmed that Mr Randall had recommended the reduction of one Survey Officer on introduction of the GPS and had researched and prepared the capital expenditure proposal for the MBES. 140 Mr Callaghan's evidence is that other positions on Level 16 include the Finance Manager position, which is constantly required to implement new technology and improve information output; the Information Technology section which faces a complete change in the infrastructure employed every three to four years; the Vessel Traffic Information Centre which is required to introduce new technology and co-ordinate its application with the Harbour Pilots. 141 Mr Callaghan noted that the second evaluation was consistent with internal relativities. 142 Mr Callaghan described the review against external relativities as a broadly based process taking information from the Port of Sydney, NSW Maritime Authority, the Port of Brisbane, Flinders in South Australia, and Maritime Safety Queensland, all of which have hydrographic survey capability. 143 Mr Callaghan's evidence is that some external corporations were higher and some were lower, which, while there is no attempt to find a line of best fit, the external results provided a level of assurance that the OCR process and internal relativities had been correctly applied. 144 Mr Callaghan's evidence is that this process was undertaken for the positions of Hydrographic Surveyor and Survey Officer with similar results. 145 The evidence of Mr Callaghan is that, as a consequence of the review of internal and external relativities, he and the General Manager Operations made a recommendation to the Chief Executive that salary levels be set at Level 16 for Port Surveyor and Hydrographic Surveyor and Level 8 for Survey Officer. This recommendation was accepted. Mr Ross McLelland 146 The evidence of Mr McLelland is by affidavit (Exhibit 16) and oral deposition. 147 Mr McLelland is Managing Director and Principal Consultant for Pacific Consulting Pty Ltd. Mr McLelland deposed that he has extensive experience in the application of award systems. 148 Mr McLelland deposed that in the period 1978 to 1985 he was a Senior Consultant with Cullen Egan Dell and was co-author of the OCR job evaluation system with his then colleague, Mr Hugh Seccombe. 149 Mr McLelland was the independent panel member of the NPC's job evaluation panels for the positions of Port Surveyor, Hydrographic Surveyor, and Port Officer on 23 April 2007. Mr McLelland's evidence is that (Ex 16, paras 35, 36): As the independent panel member, I ensure the process is not biased and the job evaluation process is done correctly. The panel on which I sat with NPC in April 2007 was not biased and the process was done correctly. The panel members reached consensus on the four OCR Factors. Once the OCR process is completed, the organisation considers the score against its own internal grading structure, and internal job and pay relativities. The Pasha Bulker Event 150 On 8 June 2007 in severe weather conditions a 40,000 tonne bulk carrier, the Pasha Bulker, ran ashore at Nobbys Beach, immediately adjacent to the south head of Newcastle Harbour. 151 Mr Randall, Mr Connors and Mr Eckford all give evidence of their involvement, and that of the Survey Section, in the subsequently successful salvage operation which saw the vessel removed from the beach. 152 There is no doubt that these employees of the Newcastle Port Corporation were called upon to apply their skills and experience in the most unusual and difficult circumstances, adapting to conditions and performing tasks in a manner not previously experienced. 153 It can be said with great commendation that these employees applied themselves above and beyond the call of duty. 154 This commendation is applicable to all of the employees of NPC who both contributed to the successful salvage and/or who maintained the operations of a busy commercial port upon which rests the livelihood of many people in a direct and indirect sense and which is vital to the economies of the region, state and nation. 155 The circumstances were special and unique as was the contribution of all concerned. 156 Whilst it is acknowledged that the Pasha Bulker event required a professional and perhaps creative approach to problem solving; these circumstances are however not those that should properly inform the process of salary determination. 157 The correct approach is to review the position description which sets out the tasks, functions and responsibilities required of the incumbent on a regular and routine basis, not in exceptional circumstances. CONSIDERATION 158 Mr Fleming referred to a Decision of the Commission as presently constituted in NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Newcastle City Council Re Alleged Failure To Size Position of Ranger [2006] NSWIRComm 352 ("Rangers Case") as authority for review of job evaluation and appropriate principles. 159 Mr Smith did not dispute that the Rangers Case was good case law, however, submitted that the circumstances are distinguishable by reference to the components of the OCR process and the rigorous application of the process by NPC. 160 I accept the submission of Mr Smith in this regard. Each case must be considered on its own merits within the framework of the job evaluation system applied. 161 The case presented by the NPC has within it an insurmountable contradiction. 162 The overwhelming evidence of Messrs Webb, Lobley, Francis, Maddison and McLelland is that the OCR job evaluation process was properly and correctly carried out. 163 Contrary to this evidence management declined to accept the outcome on the basis of internal and external relativities. 164 Acceptance that the OCR process was properly applied poses further contradiction arising from the differing results from the first and second reviews. The only consistency is in the evaluation of the Hydrographic Surveyor at Grade 13 on each occasion. 165 The evidence suggests that the job evaluation panel outcomes are influenced by the perception of the relevant job expert. The evidence in this matter allows a balanced consideration of the views of the job expert, the incumbent, and relevant management. 166 The submission of the NPC that the result of the first job evaluation be disregarded and the second evaluation the only one considered relevant is to deny the facts of the matter and the application of the disputes settlement procedure. Both job evaluation outcomes are relevant to consideration. Survey Officer 167 The Survey Officer was valued at Grade 9 on the first occasion and Grade 10 on the second. 168 The evidence that internal and external relativities suggest Grade 8 as the appropriate salary level is not made out in the face of evidence from Mr Eckford that his duties as Survey Officer at NPC are greater than those performed by him in the same position at NSW Maritime, yet the salary is less. 169 Having regard to the evidence in respect to duties and responsibilities of the Survey Officer I determine that the appropriate salary level for the Survey Officer Position is Grade 9. 170 I conclude that it is unsafe to accept Grade 10 having regard to internal relativities with the Cutter Master and Port Officer, however, there is no difficulty in adopting Grade 9. Port Surveyor 171 The evidence discloses substantial change in the duties and significant productivity increase from the introduction and adoption of GPS equipment and the multibeam echosounder. The evidence further discloses that Mr Randall was a driving force in the introduction of this technology. It was Mr Randall who researched the capability, put the capital expenditure submission to management, and was responsible for commissioning of the equipment. 172 Mr Randall, in his role as Port Surveyor, assisted by the Hydrographic Surveyor, was responsible for effective implementation and application of the equipment. 173 The evidence of Mr Webb that technology has changed and will continue to change supports a view that the Port Surveyor will hold a responsibility to keep abreast of new technology, evaluate its use, make appropriate advice to management, and implement in the manner attributed to the position in respect to the MBES. This is an ongoing responsibility different to a requirement to simply implement new technology. 174 This is confirmed by the evidence of Mr Callaghan which includes the Strategic Project Development Plan (Ex 20, attach. DC3) and the Budget Allocation Report compiled by Mr Randall in respect to the MBES. 175 The evidence of Mr Callaghan is that the Port Surveyor was also responsible for evaluation of the MBES, which he discharged in a report in January 2007 which included a recommendation for increasing desktop calculating speed by introduction of new computer systems and increasing the efficiency of data collection by increasing survey vessel speed. Mr Callaghan deposed that the NPC has made provision for a new survey vessel within the next two years. 176 While this matter is not a work value case there is sufficient evidence to support the outcome of the OCR process which concluded salary level 17 for the Port Surveyor position. 177 I am not convinced that there is sufficient argument to discount this position on the basis of internal relativities. The argument advanced by the NPC that internal relativities will be compromised, that a salary level higher than Grade 16 would be unfair to other employees, and that industrial disharmony could result is rejected by the Union. 178 There is no evidence to support the contention of the NPC in this regard. 179 I accept the submissions of Mr Fleming that determination of a salary level above Grade 16 for the Port Surveyor will have no detrimental effect upon other employees or relationships. 180 The evidence is that internal relativities were considered by the OCR job evaluation panels in an appropriate manner in arriving at the conclusions reached. 181 The evidence of Messrs Sorensen, Callaghan and Webb to the effect that the Survey Section is responsible for accurate information to decision makers within the operational and functional arms of the organisation place it in a specialist category. The changes in work and work value relied upon by the job evaluation panels go beyond the mere rollover of technology to substantive change in the nature of the work and responsibility of the positions in the Survey Section. This is emphasised by the introduction of a range of management systems, the most prominent being SAUCS, which rely upon accurate data from the Survey Section. The Port Surveyor is the responsible professional leading the Survey Section and the salary should reflect that fact. 182 Having regard to the nature of the survey work it is difficult to made direct internal comparisons with line managers for whom salaries are set having regard to the number of employees and dollar expenditures. 183 The evidence supports the conclusion that the Port Surveyor is a senior position requiring a high level of specialist expertise providing authoritative advice and information on survey matters up to the level of the CEO. The Port Surveyor position requires a strategic focus in managing a complex section with minimal review from the next level of management. 184 I determine the appropriate salary level for the Port Surveyor position at Grade 17 as found by the first job evaluation panel. Hydrographic Surveyor 185 The consistency of outcome of the two job evaluation panels supports the finding of salary level Grade 13 for this position. 186 An examination of the evidence brought by the Unions does not justify a departure from this conclusion. 187 The evidence of Messrs Nusco and Woolfenden suggest that the Hydrographic Surveyor position is approaching Grade 14, however, there is insufficient evidence to allow an appropriate comparison or to support a departure from the outcome of the job evaluation process having regard to the fact that, on both the first and second occasions, the result was the same at Grade 13. Operative Date 188 The Unions seek an operative date in January 2007. 189 Mr Fleming submitted that the NPC had first agreed to revise position descriptions in 2003. 190 Position descriptions used for the job evaluation process subject to these proceedings were concluded on 19 January 2007. 191 The NPC seeks a prospective date. 192 The issue of appropriate operative date from job evaluation proceedings was considered by the Commission as presently constituted in Notification Under Section 130 By Pacific Power Of A Dispute With The Construction, Forestry, Mining And Energy Union Of Australia, New South Wales Division And Others Re Work Restrictions - Eraring Power Station (Matter No IRC 2973 of 1997, 17 June 1999, unreported). In that matter reference was made to the Decision of his Honour Marks J in Matters No IRC 200 of 1995 and 280 of 1995 (22 May 1995, unreported) concerning job evaluation disputes at Munmorah Power Station ("the Munmorah Case"). 193 In the Munmorah Case Marks J held that: I start with the proposition colloquially expressed to the effect that employees should receive a fair day's pay for a fair day's work. Accordingly, if a work position is determined as a result of a complex work evaluation process as attracting a certain range of salary, prima facie that range of salary should be applied to the employees concerned for all of the period during which that work is performed. … … For all of the above reasons it is my opinion that the claims of these employees should be determined on the basis that the operative date and any increase in grading of an existing and evaluated position will be the date from which it is agreed the duties of the position can be identified as having substantially changed. 194 It was recognised in these decisions that there may be legitimate circumstances of delay and that the date of signing off on the relevant position description is an appropriate reference point. 195 The appropriate date of operation is 19 January 2007, the date of approval of the position descriptions by the CEO, which is effective agreement between the parties that the duties, functions and responsibilities which are the foundation of the job evaluation process were actually being undertaken by the employees. 196 On the evidence in this matter and for the reasons set out above I determine the following salary grades: Port Surveyor Grade 17 Hydrographic Surveyor Grade 13 Survey Officer Grade 9 197 These grades shall apply from the first pay period to commence on or after 19 January 2007. 198 Matter No IRC 289 of 2007 is so concluded. oo0oo 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.