Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Gosford City Council [2011] NSWIRComm 1026 Hearing dates: 9, 10 and 17 December 2010 Decision date: 16 June 2011 Jurisdiction: Industrial Relations Commission Before: Bishop C Decision: Application dismissed. Recommendation issued re re-evaluation of position Catchwords: INDUSTRIAL DISPUTE: Grievance raised by employee as to incorrect classification of position under hours provision of relevant award - 35 hour week sought - award history - comparison with 5 other positions - orders sought HELD - award history relevant - significant structural change in award history also relevant - major and substantial test applied to work performed - test not met - application dismissed - strong recommendation issued as to re-evaluation of position. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 Geo A Bond & Co Ltd (in liquidation) v McKenzie (1929) 28 AR 498 Kingmill Australia Pty Ltd t/as Thrifty car Rental v Federated Clerks' Union of Australia, New South Wales Branch [2001] NSWIRComm 141 New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Gilgandra Shire Council [2010] NSWIRComm 1053. Perisher Blue v Australian Workers' Union [1999] 91 IR 274 Re Andrew John Short v FW Hercus Pty Ltd (1993) 40 FCR 511 South Eastern Sydney and Illawarra Area Health Service v Health Services Union (on behalf of Barry Peisley) [2007] NSWIRComm 157 Timothy Fox v GIO Australia Limited [2002] NSWIRComm 318 Ware v O'Donnell Griffin (Television Services) Pty Limited (1971) AR 18 Zoological Parks Board of New South Wales v The Australian Workers' Union, New South Wales [2004] NSWIRComm 85 Category: Principal judgment Parties: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (Applicant) Gosford City Council (Respondent) Representation: White Barnes (Applicant) Mr M Barnes Solicitor (Applicant) Ms N Salameh (Respondent) Local Government Association of NSW File Number(s): IRC 277 of 2010 DECISION 1This matter concerns a notification made pursuant to s.130 of the Industrial Relations Act 1996 of a dispute between the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("the USU") and Gosford City Council ("the Council"). 2The dispute was notified to the Industrial Registrar on the 16 April 2010 and was in the following terms:- The question dispute or difficulty concerns the following industrial matter: (a)Our member Mr Andrew Stuart is employed by Gosford City Council as a Marketing Officer, under a thirty eight (38) hour week arrangement. (b)The primary responsibility of Mr Stuart's position is to promote his business unit through proactive marketing within the community. (c)Due to the key functions/responsibility of Mr Stuart's role with Council, his position should be classified under the 'Public Relations' function in accordance with Clause 16 A (ii) of the Local Government (State) Award 2007 . Staff employed under the classification of 'Public Relations' shall remain employed under a thirty five (35) hour week arrangement. Council has incorrectly classified Mr Stuart's role thereby contravening Clause 16 A (ii) of the Award. (d)Council is yet to respond to correspondence from the Union dated 16 March 2010, Ref:160310.A.StuartLH.jd titled Re Member - Andrew Stuart. 3The matter was listed for compulsory conference, by teleconference, before me on the 22 April 2010, at which time conciliation took place. The parties were directed to confer and the matter set down for report back on the 25 May 2010, again by teleconference. As it appeared unlikely that a settlement could be reached as a result of further conciliation, a Certificate of Attempted Conciliation pursuant to s.135 was issued. 4Further conferences were to take place between the parties and the matter was set down for further report back on the 18 June 2010. However this date was vacated at the request of the partes and the Commission was requested to issue directions as to the filing and exchange of witness statements. Such directions were issued in Chambers on 17 June 2010 and communicated to the parties in writing. The matter was set down for hearing on the 23 and 24 September 2010. 5Amended directions were issued in Chambers on 15 July 2010 at the request of the USU. 6On the 17 September 2010, the Local Government Association of NSW ("the LGA"), appearing on behalf of the Council, filed a Notice of Motion seeking that the USU be prohibited from relying on evidence filed after 10 September 2010, or, in the alternative, that the hearing dates be vacated, and further, that a Notice to Produce served on Council be set aside. The Notice of Motion was set down for hearing on the 23 September 2010, however it was subsequently withdrawn by the LGA on the 24 September 2010. 7Industrial officers of the USU had appeared in the matter thus far and on 23 September 2010 a Notice of Change of Appearance pursuant to s.130 was filed by White Barnes, Solicitors, who now appeared on behalf of the USU. 8The hearing dates were vacated by consent, as a consequence of the proceedings on 23 September 2010, with directions issued as to the filing and exchange of the form of orders sought by the USU. The matter was then set down for mention and directions on 11 October 2010 at which time further directions were issued as to the filing of amended statements with the matter set down for hearing on the 9, 10 and 17 December 2011. 9At the hearing Mr Barnes , Solicitor, appeared on behalf of the USU and called the following witnesses who gave oral evidence in addition to the witness statements as filed: Luke Hutchinson - Organiser, USU (Exhibit 4), Andrew Stuart - Marketing Officer Leisure & Lifestyle Unit, Gosford City Council (Exhibits 5, 6 and 7). 10Ms Salameh , from the LGA, appeared on behalf of Gosford City Council and called the following witnesses who gave oral evidence in addition to the witness statements as filed: Lillian Tiddy - Director Workplace Solutions Division LGA (Exhibit 10), Philip Moore - Manager Open Space & Leisure Services Gosford City Council (Exhibits 11 and 12), Jennie Keato - Manager Organisational Development, Gosford City Council (Exhibit 14). 11A further witness statement was filed by the LGA on behalf of the Council from Mr Simon Clarke, Co-ordinator of the Leisure and Lifestyle Unit, Gosford City Council (Exhibit 15). However Mr Clarke was not available for cross examination due to his absence from Council on special leave without pay due to his very serious and on-going ill-health which was supported by a medical certificate (Exhibit 2). 12Given the significance of the evidence contained in Mr Clarke's witness statement as Council's principle witness, the Commission suggested that there were a number of options that could be adopted to overcome the problem of the unavailability of Mr Clarke for cross examination. 13Short submissions were made by the parties during which reference was made by Mr Barnes to relevant provisions of the Uniform Civil Procedure Rules 2005 , the Evidence Act 2005 and also s.163 of the Act. 14Ultimately it was agreed by the parties that as a compromise solution, rather than refuse to admit the evidence of Mr Clarke entirely, that Mr Stuart would also not be subject to cross examination on matters arising from Mr Clarke's witness statement but would be subject to cross examination on matters raised by Council's other witnesses, which was one of the options proposed by the Commission. The hearing proceeded on that basis. Relief Sought 15The USU sought the following orders (Exhibit 1): (1)Pursuant to Section 130 and Section 175 of the Industrial Relations Act, NSW (the Act) the Commission determine that on the correct construction of the Local Government (State) Award Andrew Stuart's ordinary hours of work pursuant to Clause 16A(ii) of the Award are 35 hours per week from 6 November 2008. (2)The parties are directed to confer in relation to a making adjustments to entitlements that may arise under the Award given the determination in Item 1 above and in default of agreement the parties shall have liberty to apply. Background and Chronology 16The Background and Chronology that follows has been taken from the various witness statements and documents as filed, and has been supplemented relevantly by the oral evidence. 17Ms Tiddy was appointed to her current position in July 2008 and commenced employment with the Local Government Association of New South Wales and the Shires Association of New South Wales ("the Associations") in December 1982. During her employment she has represented councils and the industry in industrial relations disputes and in negotiations with industry unions and represented councils and the industry in industrial tribunals in the negotiation and arbitration of matters associated with the making of the awards applicable in the Local Government sector. In her current role she provides written and oral policy advice and direction to councils concerning industrial relations and human resources practices. 18Ms Keato commenced employment with Council in 2001 and has been Manager Organisational Development since 2007, prior to that her role was as a Human Resources and Employee Relations Officer. 19Mr Moore commenced employment with Council in June 2001 and has been Manager Open Space and Leisure Services Business Unit ("OSLS") since March 2007. Prior to that, from June 2001 to January 2005, he was Coordinator of the Aquatics Service Unit. From January 2005 to March 2007 he was Manager, Recreation and Natural Resources. 20Mr Clarke commenced employment with Council in May 2005 and has been Coordinator of the Leisure and Lifestyle Unit ("LLSU") since July 2007, when the title of Council's Aquatics Service Unit changed to the LLSU. Prior to that, from May 2005 to July 2007, his role at Council was as Coordinator of the Aquatics Service Unit. Mr Clarke's position of Coordinator of the LLSU reports to the Manager OSLS (Mr Moore). 21Mr Stuart commenced employment with Gosford City Council in April 2006 in the position of Marketing Officer. He had previously been employed in the sales and marketing industry for over 20 years. He holds tertiary qualifications in Tourism Business Management and Certificates in Web Design, Audio Visual design and Graphic Design. 22Council's organisational structure, as at the date of the hearing, consists of the following 6 Directorates which have, within and across them, collectively 21 Business Units (but with 9 Units not currently subject to a Business Unit manager) (Exhibit 14-A) : City Services; Environment & Planning; Water & Sewerage; Corporate Services; Community Services and Organisational Development; City Centre Development. 23The Community Services functions delivered by Council are provided for the most part by Business Units located in the Community Services and Organisational Development Directorate ("CSODD"), which includes: Community Development (encompassing Youth Services, Aged and Disability Services, Children and Family Services); Library Services; Arts and Culture; and Communications and Customer Services. 24The CSODD was established following a restructure of the Council's organisational structure in 2005. The outcome of this restructure resulted in the integration of the various Community Services and Corporate Development Directorates into the one distinct Directorate (the CSODD). 25Examples of Community Services based positions located within the CSODD include, but are not limited to Child Care Aide; Youth Services Officer; Librarian; Marketing Officer - Arts & Culture; and Marketing Officer - Communications (Exhibit 14). Also the Internal Auditor, and the Mayor and Councillor Assistants' Units together with the Organisational Development Business Unit are positioned within the CSODD. 26The CSODD currently employs 384 staff (encompassing casuals, temporary appointments and permanent employees) collectively across the Community Services based Business Units referred to above. 27The Leisure and Lifestyle Unit ("LLSU") of Council operates within the Open Space and Leisure Services Business Unit ("OSLS") of Council and incorporates the Peninsula Leisure Centre (at Woy Woy), Gosford Olympic Pool, Beach Lifeguard Services (on patrolled beaches) and other associated programs and services which provide health, leisure, lifestyle and fitness facilities and services to both residents and visitors of the Gosford Local Government area. 28Each year the LLSU provides services to approximately 380,00 people who utilise the Peninsular Leisure Centre; 150,000 people who utilise the Gosford Olympic Pool and 1 million people who utilise the various beaches within the Gosford Local Government Area. 29There are 306 staff within OSLS covering casuals, temporary appointments and permanent employees both full-time and part-time, with 228 staff within the LLSU. All 228 LLSU staff operate under a 38 hour week. The position held by Mr Clarke operates under a 35 hour week in line with other professional co-ordinator positions operating at his level within the OSLS. 30The LLSU encompasses a broad range of varying roles and positions including the following: Duty Supervisors; Pool and Ocean Lifeguards; Gym Instructors; Reception staff; Cafe staff; Learn to Swim Instructors; Swimming Coaches; and Cleaners. Mr Stuart's Grievance 31In November 2008 Mr Stuart was successful in re-applying for his position (following the restructure at Council) which had been changed to that of Marketing Officer - Leisure and Lifestyle, re-evaluated and moved from Band 2, Level 1 in the Award, to Band 2, Level 3 (Exhibit 5-AS3). 32In or around October 2009 it came to Mr Stuart's attention that there were what he believed to be "discrepancies" in terms of how he was classified as working a 38 hour week when certain other employees were working a 35 hour week. He cited the following specific examples of positions as being classified as 35 hour week employees: Sports Liaison Officer; Active Recreation Officer; Open Space and Leisure Officer; Marketing Officer - Arts and Culture, and Marketing Officer - Communications. 33On 21 October 2009, Mr Anthony Burling, Health and Fitness Supervisor, sent a memo to Mr Clarke proposing that 6 staff positions (including Mr Stuart's) employed at the supervisory level within the LLSU be reclassified from a 38 to a 35 hour week (Exhibit 5-AS5). 34On 2 December 2009, as no response had been received from Council, Mr Stuart raised a formal Grievance with Council (Exhibit 5-AS6) in which he maintained that he was "currently working in an administrative role within Council". He sought to be placed on a 35 hour week in keeping with similar positions. 35On 20 January 2011 Ms Keato wrote to Mr Stuart in response to the Grievance advising that it was Council's determination that he continue to work a 38 hour week (Exhibit 5-AS7). The letter indicated as follows: Council has investigated this matter and wish to advise that Clause16 of the Local Government (State) Award (2007) lists those functions within Council that work under a 35 hour per week arrangement. An explanatory note is included in the Award with respect to Clause 16 which states the following: "The function of Administration includes general administration, information technology, customer service and other clerical and administrative duties. Further, the award parties have agreed that where an employees (sic) carries out clerical duties in association with other specific areas of such as library work, work in connection with entertainment venues, leisure centres and the like, the employee's ordinary hours of work will be those that apply to those specific areas of work." The hours of work specific to leisure and lifestyle which encompass the Peninsular Leisure Centre and Gosford Olympic Pool is 38 hours per week. As you are conducting the function of administration in connection with leisure centres, your ordinary hours of work will be those that apply to the Leisure and Lifestyle environment. 36The Selection Criteria for the position of Marketing Officer - Leisure and Lifestyle (Position No. 1697), as held by Mr Stuart since 2008, (with the items particularly relied on in evidence by Mr Stuart in italics), relevantly provides as follows (Exhibit 8): The primary responsibility of this position is to provide marketing, sales and design support to the Leisure and Lifestyle Unit. The Leisure and Lifestyle comprises of the Peninsula Leisure Centre, Gosford Olympic Pool, and the Gosford City Beach Lifeguard Services. The Unit provides services to approximately 350,000people at the PLC, 150,000 at the GOP and 1 million people across the beaches of Gosford City Council. Key Responsibilities Include: Providing marketing and promotional support to programs and services run at the Leisure and Lifestyle Unit. Co-ordinate, prepare and produce promotional material. Work with Gosford City Council's Communication Unit to maximise general promotional opportunities. Co-ordinate the distribution and placement of the marketing product. Planning and coordinating marketing strategies within the Leisure and Lifestyle Unit. Developing sales and marketing strategies and undertake training for staff within the Unit . Maintaining Leisure and Lifestyle website and other duties as required. Essential Criteria: (1)Minimum TAFE certificate IV in marketing, leisure or tourism OR demonstrated equivalent qualifications and relevant extensive experience in a similar role; (2)Demonstrated relevant experience in providing and coordinating marketing support within the leisure sector; (3)Demonstrated proven ability to work in a cooperative manner in a multidisciplinary team to deliver positive marketing outcomes; (4)Demonstrated knowledge and experience in the use of Adobe Photoshop, Illustrator, In Design and Acrobat to produce promotional material; (5)Demonstrated experience coordinating the distribution and placement of marketing products; (6)Demonstrated ability to communicate effectively both verbally and in writing with a multi-disciplinary team and the public; (7)Demonstrated ability to identify marketing opportunities, research and prepare press releases and liaise with departments to promote leisure in the community; (8)Demonstrated experience developing sales and marketing strategies for the leisure sector; (9)Demonstrated experience in training staff in sales techniques; (10)Demonstrated ability to identify and secure appropriate sponsorship; (11)Knowledge of and commitment to Occupational Health & Safety and Environmental Management principles; (12)Demonstrate commitment to understanding EEO principles. Desirable Criteria: (1)Demonstrated experience in publication printing; (2)Demonstrated understanding of the leisure industry; (3)Demonstrated understanding of local government and its issues; (4)Demonstrated experience preparing award submissions; (5)Current Class C Driver's licence. 37The Position Description of Marketing Officer - Leisure and Lifestyle, (with those items particularly relied on in evidence by Mr Stuart in italics), is as follows (Exhibit 9): The Leisure and Lifestyle Unit comprises of the Peninsular Leisure Centre, Gosford Olympic Pool, and the Gosford City Beach Lifeguard Services. The Unit provides services to approximately 350,000 at the PLC, 150,000 at the GOP and 1million to the beaches of Gosford. The role of the Marketing Officer is a busy and varied role providing advice and expertise to the many facets that operate within the Unit. The Marketing Officer reports directly to the Co-ordinator of the Leisure and Lifestyle Unit and operates with a degree of autonomy. The primary responsibility of this position is to promote the Leisure and Lifestyle Unit through proactive marketing within the community . The position interacts with all levels within Leisure and Lifestyle Unit and will be expected to provide marketing support to these groups. The position will create, devise and produce marketing materials using the Adobe Creative suite and other resources available within Council to market the Leisure and Lifestyle Unit. The position will guide and coach other departments in the best methods in how to promote their product. A key challenge for the position will be to proactively manage marketing initiatives and future issues within the leisure industry. The position will; Secure proactive media coverage for the Leisure and Lifestyle Unit's achievements and initiatives. Advise, coach and train other staff members in how they may best market, sell and persuade their target markets. Research, prepare and distribute marketing materials. Liaise with other Council departments regarding the preparation of media releases and printing requirements. Monitor media outlets that refer or impact upon the Unit. Research, identify potential newsworthy events for inclusion in future press releases . Ensure compliance with Council media protocol. Research, prepare and design submissions for relevant industry awards. Develop key relationships within Council to ensure rapid access to appropriate sources of knowledge on issues. Maintain and further develop relationships with sponsorship partners. Project manage sponsorship agreement. Offer advice and expertise in sales procedures in particular the health club industry. Maintain the Leisure and Lifestyle website. 38Position descriptions were also in evidence for the following: Coordinator Leisure and Lifestyle Unit (Exhibit 12-A), Sports Liaison Officer (Exhibit 11-F), Active Recreation Officer (Exhibit 11-G), Open Space and Leisure Officer (Exhibit 11-H), Marketing Officer Arts and Culture (Exhibit 14-R), and Marketing Officer - Communications (Exhibit 14-R) Relevant Definitions 39There is no definition of "Public Relations" contained in the current Award. The following definitions from The Macquarie Dictionary (3 rd ed, The Macquarie Library), were relied upon by the USU (Exhibit 3): function: noun 1 . the kind of action or activity proper to a person, thing, or institution............ verb 6 . to perform a function; act; serve; operate. 7. to carry out normal work, activity, processes. marketing: noun 1. The total process whereby goods are put on to the market. 2. the act of buying or selling in a market. 3 ....... press release: noun an item of news prepared for and distributed to the press. publicity: noun . 1 . the state of being public, or open to general observation or knowledge. 2. public notice as a result of advertising or other special measures. 3. the state of being brought to public notice by announcements (apart from advertisements), by mention in the mass media, or by any other means serving to effect the purpose. 4. the measures, process, or business of securing public notice. 5 . advertisement matter, as leaflets, forums, etc, intended to attract public notice. public relations: noun 1 . The practice of promoting among the public for a company, a government body, individual or the like; the practice of working to present a favourable image. 2. The techniques used. Relevant Award History 40In 1992 the following five awards were consolidated into the Local Government (State) Award (272 IG 696) (Exhibit 10): Municipal and Shire Council Wages Staff Award, Local Government Salaried Officers', Local Government Senior Officers', Health Surveyors' (State) Award, and Local Government Engineering Staff Award. 41The 1992 Award established a skill-based structure consisting of four overlapping bands within which positions are broad-banded levels according to 6 skill descriptors. The bands and number of levels applicable are: (1)Operational (4); (2)Administrative/Technical/Trades (3); (3)Professional/Specialist (4); and (4)Executive (4). 42The 1992 Award's six skill descriptors are as set out Clause 5 of the 2007 Award and those descriptors have not been varied since the establishment of that 1992 Award. They are as follows: Authority and accountability; Judgement and problem solving Specialist knowledge and skills; Management skills; Interpersonal skills; Qualifications and experience. 43The skill descriptors are used for evaluating a position's value at a council and establishing entry-level rates of pay based on the skills employees are required to apply on the job and were developed jointly by the parties to the Award ("the industry parties"). 44Since 1992 a series of consent Local Government (State) Awards have been made by the Commission. 45The Local Government (State) Award 2007 provides in Clause 16 Hours of Work A. Ordinary Hours, ii) as follows: The ordinary hours of work for employees engaged in the following functions shall be 35 per week: Administration, Building Surveying, Community Services (Professional/Specialist Band 3), Engineering (Professional and Trainee) Executive Band, Finance, Surveying, Library, Public Relations, Technical Services and Town Planning. Relevant Award History of Public Relations Officer 46The classification of 'Public Relations Officer' was inserted into the Local Government Professional and Technical Award in 1969, with hours of 35 per week and with a definition (Clause 2 (xxviii)) as follows: 'Public Relations Officer' means an employee, appointed as such by council, who is engaged full time on such duties and may include those appointed as tourist officer, publicity and tourist officer and visitor information officer. 47The definition remained unchanged until this particular award was rescinded and replaced by the Local Government Salaried Officers' Award in 1980. In 1983 the definition was broadened and extended to cover the classification of 'Industry Promotions Officer and the classification of 'Public Relations Assistant' was also inserted into the award. There was no definition of Public Relations Officer' in the 1992 consolidated Award (indeed there was no provision for definitions of any classifications). The 1992 Award instead, in Clause 16 differentiated the hours as either being 35 for a list of "functions", including Public Relations. The Evidence Mr Stuart 48Mr Stuart's evidence essentially dealt with the duties and responsibilities he carried out which he maintained supported his contention that his position should be correctly classified as 'public relations' because the major component of the duties he undertook were of a public relations nature. He rejected the assertion made by Council in Ms Keato's letter of 20 January 2010 that the correct description of his work was 'administration'. 49He outlined in some detail the key sections of the selection criteria of his position, as well as key sections of his job description in support of his contention that his role was one of 'public relations' (as italicised in the Background and Chronology above) and expanded on those sections in oral evidence. 50He acknowledged in cross-examination that he had only included 4 out of the 12 essential criteria listed to support his claim that his duties came within 'public relations'. 51He went on to elaborate in oral evidence, using examples drawn from the projects he had worked on, how he carried out his job of marketing certain elements within the Unit, and what benefits they could obtain from winning an award, and how much publicity they would get from that. 52He deposed that on a regular basis he performed the following tasks as part of his current role; (a)Provide advice within my Council unit on how to present a good image to the public and what marketing strategies we can use to do that. Occasionally, I am required to present advice to other units within Council. (b)Press releases to inform and invite interest in Council activities. (c)Arrange for press releases to be sent to media outlets. (d)Design advertising and promotional materials and various activities in the Leisure and Lifestyle Unit. Such material may include leaflets, posters, television commercials, radio commercials, banners, t-shirts and banners. (e)Arrange the distribution of advertising. (f)Keep in touch with sponsors on a weekly basis and ensure that they are satisfied in their relationship with Council. (g)Find and create relationships with new and potential sponsors. (h)Maintain relationships with radio, news and media networks. (i)Sell advertising space to members of the public. (j)Maintain relationships with local businesses and ensure that they are satisfied in their relationship with Council. (k)Build and maintain relationships with community groups that use the pool facilities and work with them to ensure that Council has a good relationship with them. (l)Right updates the Council website or Leisure and Lifestyle activities. 53He also indicated that he did his own word processing. He was also the only person who maintained and updated the unit's website although some other staff would be given permission to update a page. 54He deposed that his position was responsible for ensuring that members of the public, sponsors/potential sponsors and local businesses saw a positive image of the LLSU. 55He went on to give details (expanded in oral evidence) about projects he had worked on in his time at Council which may be summarised follows: Creating a newsletter each school holidays in which the activities that are being carried out in the Leisure Centres during those holiday periods are promoted; Design and placement of bus advertising for the LLSU in May 2006 as part of a 're-branding' of the LLSU. He again designed and ran the bus advertising in May 2007 and May 2008; Involvement in 2006 in the project to re-brand the Aquatic Centre including creating a new title for the Unit (Leisure & Lifestyle) and a new slogan, creating a new slogan for the Peninsular Leisure Centre, designing t-shirts and promotional material for the lifeguards and getting new & existing sponsors involved; October 2007 working on a re-branding and marketing campaign for the Council Surf School including involvement in writing press releases and arranging for their distribution to local media, designing the new public image of the Surf School, and marketing it to the public through pamphlets, brochures, banners, and tents. In November 2007 involvement in organising a second-year birthday function the Peninsular Leisure Centre to promote the Centre to the local community and organising members of the community and local media to attend; From May 2008 to current, involvement in a project to re-brand the Council children's gym including involvement in creating a new brand image and name for the gym, designing a new logo, designing new imagery, brochures, advertising material and t-shirts, organising information days for the public, organising radio advertising and writing press releases and arranging their distribution to local media. In October 2009 involvement in organising the 'Get Fit for Summer' promotional campaign including designing imagery and advertising and promotional campaign, getting sponsors on board, designing radio commercials and organising their airing, designing newspaper commercials and organising to have them in print, working with sponsors to organise giveaways for members of the public; Responsibility for making submissions on behalf of Council in award categories in order to raise Council's public profile. He had made successful submissions for the following awards: i.Business Achievers Award -Finalists 2006, 2007 and 2008. ii.Water Safety Award - Winner, 2006. iii.Kellogg's Healthy Heart Foundation Award - Winner, August 2007. iv.Australian Recreation Institute - AH Pearce Memorial Facility of the Year - Peninsular Leisure Centre - Winner June 2008. v.RH Doherty Award - Excellence in Communication - Gosford City Council Beach Safety Campaign- Winner, August 2008. At times called to work on projects external to the LLSU. In December 2009 responsible for meeting with a representative of the NSW Premier's Department and organising the promotion of the state car safety campaign for the Gosford local area. 56Mr Stuart said that these awards related to providing a positive image of the LLSU, and moreover a positive image of the entire Council, and within that wider concept, the range of services that Council offered. He went on to indicate further in oral evidence as to his involvement with these projects. 57In October 2010 Mr Stuart was presented with a Certificate of Appreciation from Council "in recognition of valuable contributions to Gosford City Council 2009 For co-ordinating the beach safety campaign and preparing the winning submissions on Council's Summer Beach Safety Campaign for the 2009 Local Government RH Doherty Excellence in Communication Award" (Exhibit 13b). He further elaborated in oral evidence as to his role in developing this particular campaign. 58Mr Stuart indicated that it was about "good news stories". Generally the LLSU was one of the only Units within Council that had to "sell". The Unit was responsible for bringing numbers into the Leisure Centre or any one of the pools or any of their courses or school holiday programmes. Winning an award or getting publicity for any of the things the LLSU did, whether on radio or press, attracted positive attention to what the LLSU did. 59Mr Stuart said it was part of his role to promote these "good news stories" and to promote the pools and the beaches in a positive way. The pool complexes were "iconic features" of Council, and it was clear to him after he commenced his employment in his position that there was controversy associated with both the Gosford Pool and the Peninsular Leisure Centre which replaced the Woy Woy Memorial pool. These controversies played out in the media, particularly the print media, with articles in the local paper and insert sections dealing with the Central Coast in the major newspapers. 60He said that it was part of his job to endeavour to enhance the image of the beaches and the pool complexes. If that image was well presented then it reflected to the credit of Council and enhanced the image of Council. If there was publicity or adverse comment about any pools or lifesaving services than the "direct corollary" was that Council would have a poor image. 61Mr Stuart deposed that in broad terms he appreciated that any Council asset or Council run operation could be controversial and had the potential to affect the reputation of the Council itself. His appreciation of these relationships came from his academic studies and vocational experience. He deposed that "whether you call it marketing or public relations it is about promoting an image and protecting the standing of the image and what it stands for". There were also issues that from time to time had a political flavour to them that added to the controversy. 62He annexed to his witness statement (Exhibit 7) a number of articles concerning various issues over the period from 2005 to 2007 from The Daily Telegraph, the Central Coast News and Express Advocate as examples of adverse articles that had appeared in the print media. He also annexed examples of various "good news" and positive stories and articles and gave examples of approaches made to him by media 63Mr Stuart acknowledged that the press releases that he developed had to be given to Council's Communications Unit, and be sanctioned by Council in accordance with Council's policies and procedures. He did not have the authority to forward a press release directly to a media outlet, however he wrote and prepared such releases. 64He outlined the process involved, saying that he would put together the key points and write a rough draft which would go to Communications who would look it over and might lengthen or shorten it, and send it back to him and he would see if there were any mistakes or factual errors. He confirmed that in writing press releases he would comply with Council's policy. The process would then go up the chain of command. Mr Clarke did not write press releases but he would review those written by Mr Stuart. 65Mr Stuart also said that he had attended a copywriting course which was put to him by Mr Clarke to best help him prepare press releases. 66Mr Stuart annexed various media releases to his witness statement and said that media releases were not simply information statements, such as an address and a phone number, they were part of a concerted public relations campaign and not just mere information but part of a pro-active campaign. The campaign supported the relevance of the Council asset and the contribution that was being made to society. They strongly reinforced the image of the Council at least, on the entire Central Coast. He went on to say that in his experience any bad press reflected badly on the Council at large, and not just on an individual part of the Council. 67He acknowledged that some of those articles pre-dated his employment but said that they highlighted the issues before his time and certainly issues that were current when he began at the Leisure Centre and the actual general feeling around the pools and the complex. 68Mr Stuart maintained that he used the qualifications which he held (as identified in Exhibit 5) in the course of his employment in his current position. The position was not about retail sales or seeking to sell any product or item, rather it was about promoting the image of the Council and a specific range of services offered by the Council. Further the work he did was not simply about marketing and promoting the Council solely to those that lived within the Council area. Part of the work related to promoting the Council generally well beyond the Council boundaries. At a minimum it was promotion of the Council for the Central Coast. 69He also indicated that they did sell advertising space to the general public, but not as a moneymaking initiative. It gave them positive PR in the general area for people to be able to advertise their businesses. 70He also gave evidence about relationships with new and potential sponsors as well as relationships with radio News and media networks. In doing so he noted that Prime TV did not limit itself to only having a presence or a role on the Central Coast, it extended throughout Newcastle into parts of the Hunter Valley. Radio Star FM reached beyond Gosford throughout the Central Coast and down to Sydney. 71He had project managed sponsorship for the LLSU bringing in approximately $300K worth of sponsorship annually. The sponsors he managed included Prime TV, Star FM and the Ettalong Beach Club Resort. He therefore advertised the LLSU's key messages on TV, radio and cinema, reaching a wide audience outside of the local government area. He also wrote the scripts for the advertisements and designed the visuals. 72He would also work with the media on scripts. Once a whole campaign was put together he would then approach the Communications department and tell them that he had a campaign he would like to launch, this was the information and he would like a press release. 73He said that if the Council had a bad image in relation to an issue, even though that might not be related to his area of work or expertise, it had the potential to undermine sponsorship relationships and media relationships. 74Mr Stuart believed his work was associated with tourism and travel because in his position description it mentioned that the LLSU provided services to approximately 350,000 people at PLC 150,000 at GLP and one million to the beaches of Gosford, so part of their media campaign was to advertise to visitors to the Gosford beaches. This meant that the scope and reach of his role went beyond the local audience. It was essential in his role in promoting the brand "Gosford City Council" and it was through this public relations function that he endeavoured to protect, enhance and promote this brand to the wider audience. 75Mr Stuart emphasised that the large majority of staff within LLSU were the practical community-facing officers and staff. His role did not have this involvement and he did not liaise directly with any member of the public at any of the Unit's facilities, instead in his role was promoting the business of these facilities to a wide audience. He dealt with public relations activities that may influence the community. 76Mr Stuart said that whilst he marketed to a group of people called the "community," this was a marketing and PR role, not community work. The aim was to sell a product, market or improve the public image or standing within the community. 77Mr Stuart maintained that he had built enduring client relationships with the local media, local business and industry associations to ensure that the LLSU was positioned to secure maximum marketing advantage 78Mr Stuart acknowledged that he was not aware of the basis for Council's classification of the 5 positions with which he compared his position in support of his claim to have his hours correctly classified as 35 rather than 38 per week. 79Mr Stuart also maintained that Mr Moore was not involved in day-to-day interactions with him or the Unit. Mr Hutchinson 80Mr Hutchinson's evidence concerned his involvement with the dispute from the time of Mr Stuart initially contacting him in October 2009, his advice to him to lodge a formal Grievance, and the subsequent exchange of correspondence with Council. He confirmed that Mr Stuart had not contacted him with his concerns prior to October 2009. 81He deposed as to the historical award basis for the position that was adopted by the USU that Mr Stuart's position had been incorrectly determined and that he should be employed under the 'Public Relations' classification in accordance with Clause 16(II) of the Award. He relied on the job description for Mr Stuart's position of Marketing Officer - Leisure and Lifestyle and the reference under 'key responsibilities' that included " to co-ordinate, prepare and could produce promotional materials" along with the reference under 'solid working knowledge areas' to "Public Relations administration". 82After considering these key areas Mr Hutchinson said that he came to the conclusion that Mr Stuart's position had been incorrectly classified as a 38 hour position and should have historically been classified as a 35 hour position. He considered that Mr Stuart's position as 'Marketing' had a greater emphasis on 'Public Relations' than it had on 'Administration" or 'Community Service'. The position description referenced this notion and nothing within the position description related to areas that would historically be deemed 'community services promotion'. 83He had also been made aware of marketing positions within Council similar to the role that Mr Stuart occupied which were engaged correctly under a 35 hour per week arrangement including the Marketing Officer within the Art Gallery. 84In oral evidence Mr Hutchinson was taken to the job description for Mr Stuart's position and maintained that 6 of the 7 key responsibilities were most relevant to his conclusion that Mr Stuart's position was a 35 hour week position under 'Public Relations' of the award. As well, there were other items under 'Authority and Accountability' and 'Interpersonal Skills' that are also relevant to that consideration. Ms Tiddy 85Ms Tiddy outlined the role that the LGA played in supporting and representing councils throughout the State through specialist services including industrial relations, legal and policy advice, and specialist publications. The LGA through its activities also promoted, publicised, and lobbied the views of local government. 86Ms Tiddy deposed that she had been involved in the negotiation of Local Government Awards since 1988 and that it was based on this experience that she gave evidence as to the history and relevance of the hours of work provisions as they applied to the classifications of 'Community Services' and 'Public Relations' under the Local Government Salaried Officers' Award. 87She also generally indicated the basis of deriving the information on which she relied, that being the advice of her predecessors, as well as written advices that her organisation carried. She also relied on the work that she assisted with in undertaking the skills audits for the industry which was the preparatory work for the 1992 Award. She said that to her that indicated the natural grouping of duties and the range of authorities and accountabilities of positions. 88She considered that 'public relations' was consistent with that activity where there was exposure to, and working with, tourism activities and quite often the promotion of the council, or a region as a whole. She relied on all of those in her advice to her colleagues and the people who followed her. 89Her evidence extensively outlined the history of the Local Government (State) Award , relevant detail of which is briefly summarised in the Background and Chronology above. Her evidence covered the following matters in some detail with relevant documentation attached to her witness statement (Exhibit 12): The Local Government (State) Award 2007, History of the 1992 Award, Job Evaluation, Council Salary Systems, History of the Hours Provision for 'Community Staff', and History of Award Hours Provision for 'Public Relations Officer'. 90She confirmed that in relation to the award processes with which she had been involved (and which were detailed in her evidence) that those awards had been made by consent. 91Whilst there was extensive cross-examination of Ms Tiddy she essentially maintained her views and opinions about the material she had deposed. 92In referring to the development of the Local Government Job Evaluation System she indicated that that system was not an Award requirement and did not specify rates of pay but helped councils determine the work value of individual jobs. This work value provided one of the "determinants" of rates of pay. The Job Evaluation System was concerned with job requirements, not individual employees or their performance. It determined the relative position of a given job in a council's organisational structure and provided an equitable basis for classifying jobs in terms of the Award. When the position had been evaluated and ranked against other positions in a council's organisation structure it was necessary to determine the position's salary range as the Award specifies only entry-level rates of pay. To achieve this councils were required to adopt salary structures. 93Ms Tiddy deposed as to the requirement (arising from the 1992 Award) for councils to establish their own salary systems to "complement" the Award's entry-level rates of pay and skill descriptors; linking positions to salary point and ranges and providing greater definition than the award structure allocating the relative value of positions within each band and range. The Award did not limit the number of salary points that a salary system may contain nor impose any upper limits. The industry parties advised councils to set salary points which represented a reward for the additional skills required. 94She deposed that the industry parties intended that councils and their consultative committees establish salary systems that reflected their own circumstances with advice published to assist in achieving this outcome (Exhibit 10 - D). As a consequence councils have adopted a variety of salary structures with different numbers of salary steps and grade ranges. The 2007 Award provisions regulating council salary systems represented the industry parties' agreed terms following extensive conciliation. 95Ms Tiddy deposed that as a result of the 38 Hour week case in 1984 in the Local Government Salaried Officers' Award hours of work were reduced from 40 to 38 for the following classifications: Child Care Coordinator; Child Development Officer; Community Arts Officer; Community Education Officer; Community Service Coordinator; Community Worker; Ethnic Worker/Migrant Community Development Officer; Family Day Care Coordinator; Recreation Officer; Social/Community Planner; Social Worker; Welfare Officer; Youth Worker; Neighbourhood Centre Coordinator; Community Centre Coordinator; Holiday Programmes Supervisors; Playground Supervisors; Preschool Teacher and Childcare Centre Directors; Childcare Helper; Childcare Assistants and Childcare Aide 96It was her "recollection" that the 'Community Services' classification was intended to cover those employees who would, broadly speaking, be responsible for the following: Identification of current and emerging recreational, cultural, social and welfare needs in the Council's Local Government Area; and, Implementation of approved plans, programs and strategies to meet those needs. 97As a consequence of an Award variation application in 2002 by the USU, which was ultimately settled on the basis of consent variation, as from the beginning of 2005 certain positions evaluated in Band 3 only of the Award in the functions of community services and children's services staff had their hours of work reduced from 38 to 35 per week. The terms of the implementation at a council level was set out in a memorandum of understanding between LGA and the USU. 98Ms Tiddy went on to depose that the range of duties undertaken by the 'Community Services' function had changed over time where, for example, of the duties of community development and other community service fields had been required to respond to demographic change such as cultural diversity and an ageing population. 'Community Services' positions in local government were located in a range of council areas. 99She said that the function of 'Community Services' now probably encompassed the management and operation of facilities and services vacated by the community sector or state or federal government; and meeting the needs of target groups including children, young people, women, older people, people with disabilities, people and people culturally and linguistically diverse backgrounds and aboriginal people. 100She indicated that in order to undertake these activities employees engaged in a council's 'Community Services' function were ordinarily expected to engage in community consultation and participate with community groups and residents in the development and implementation of social planning another policy initiatives; work in consultation with professionals from other council departments and external organisations to integrate council strategies and community needs; and respond to requirements for the provision of an increasingly diverse range of services. 101She went on to say in cross examination that there was a very strong trend in the industry at the time to extend community services functions to cover a whole range of activities that councils were either required, or keen, to undertake and quite often promoting their communities or community areas. Decentralisation was one such area. They often picked up activities in that community services area where they worked with local businesses and communities. There were a whole range of activities such as marketing that might have been picked up. 102She acknowledged that this process fluctuated from council to council and that there was not a fixed set of what constituted 'community services' from council to council set by the award. She agreed that councils may determine for themselves as part of the decision making process the parameters of the activities they identified as being 'community services' and in which they engaged. 103Ms Tiddy detailed the history of the hours provision of the 'Public Relations Officer' (as defined in the Award), and deposed that the intent of this classification was to cover and apply to employees engaged by councils primarily performing work associated with tourism and travel. It was essential for 'Public Relations Officers' to possess local tourism knowledge relating to the local tourist activities within a council's Local Government Area and visitor information centres. 104The 'Public Relations Officer' definition remained unchanged until 1983 when it was varied in the Local Government Salaried Officers' Award and extended to cover the classification of 'industry promotions officer'. Ms Tiddy deposed that from her understanding from information provided to her from former officers and the Association this change had arisen as a consequence of the NSW Government adopting a decentralisation policy in the early 1980s whereby State government employees and services were encouraged to relocate geographically out of primarily metropolitan CBD areas to metropolitan suburbs, towns and regional areas. The LGA advocated and supported this decentralisation policy as it promoted growth and relocation of employment opportunities and services to regional and rural NSW. Councils responded to this policy initiative by engaging employees to undertake duties such as promoting the local government industry and in particular, council regions. There was no change to the hours of work applicable to the definition. 105Ms Tiddy agreed in cross examination that there was no definition of what a Public Relations Officer did, it was simply a title, saying that it was the habit of the parties to refer to a title and then pick up those emerging titles that councils used over time when the award was needing to be clarified or varied. She agreed that the definition that was to be found in the earlier award was inclusive and not exhaustive and that whilst it referred to a tourist officer, it also referred to 'publicity' and a 'tourist officer'. She agreed that there could be another range of activities that could be regarded as public relations officer. Ms Keato 106Ms Keato 's evidence, where not based on her direct involvement with Mr Stuart's grievance, was based on her perusal of relevant Council records. Her only experience in local government was as a result of her employment with Gosford Council. 107Ms Keato deposed that the application of the Hours of Work provisions of the Award meant that the weekly ordinary working hours of the majority of full-time staff employed within the Business Units of Community Development; Library Services; and Arts and Culture within the CSODD were 38 hours per week. The majority of full-time staff employed within those Business Units undertook Community Services functions in positions that were evaluated below the Award's Professional/Specialist Band 3, and were engaged for 38 hours per week. 108Ms Keato acknowledged that in relation to the CSODD there were some sections within that directorate that were not community services such as 'organisational development' which was Ms Keato's business unit. There were also some functions of some business units in other directorates which could be classed as community services and gave examples of such. 109She also acknowledged that a lot of positions had administrative duties within them but said that that didn't necessarily mean they were specifically administrative. She went on to give examples of administrative functions within Customer Service and Communications and reiterated the view of Council that the nature of Mr Stuart's duties were not specifically administrative. 110She deposed that the majority of full-time staff employed within the Communications and Customer Services Business Unit operated under a 35 hour per week arrangement, giving as the reasons for this that the full-time staff employed within the Communications and Customer Services Business Unit either occupied positions evaluated at or above 'Community Services Professional/Specialist Band 3'; and/or worked in functions listed in subclause 16A(ii) of the Award. 111Ms Keato confirmed the matters set out in the Background and Chronology above in relation to Mr Stuart's position and his Grievance. 112She deposed that in relation to Council's salary system, Council utilised the formal Local Government Job Evaluation System, commonly known as the "OO-Soft System", that reflected the skill descriptors at clause 5 of the Award, for the placement of positions on its salary system. Council currently utilises Version 20 of that System and has done so since 2006 (with version 19 being used prior to that). 113Mr Stuart's original position as a Marketing Officer within Council's Aquatics Service Unit was evaluated by Version 19 of the Wyatt Job Evaluation System when he first commenced employment in this position in 2006 with that evaluation resulting in the position being placed within Council's salary system as Administrative/Technical/Trades Band 2, Level 1. The position of Marketing Officer was subsequently re-evaluated in January 2008 utilising Version 20 of the Wyatt Job Evaluation system, resulting in the revised position of Marketing Officer - Leisure and Lifestyle which was elevated on Council's salary system to Administrative/Technical/Trades Band 2, Level 3. 114Ms Keato acknowledged that she was not aware of what Mr Stuart did on a day-to-day basis and at what location he might carry out his duties. 115Ms Keato deposed that following a meeting with the USU on 13 May 2010 (also attended by Ms Salameh, Mr Clarke and Mr Philips), she undertook, on behalf of Council, a comparative review of the 5 positions identified by the USU which were claimed to be to be comparable with Mr Stuart's position of Marketing Officer - Leisure and Lifestyle, and which were operating under a 35 hour per week arrangement, using Mr Stuart's position as the comparator. Those positions were:- Sports Liaison Officer; Active Recreation Officer; Open Space and Leisure Officer; Marketing Officer - Arts and Culture; and Marketing Officer - Communications. 116Ms Keato deposed that the outcome of her comparative review was synthesised and categorised into 5 comparison tables which highlighted the differences between the 5 positions identified by the USU and that of Mr Stuart's according to their qualifications, key responsibilities, grading on Council's salary system, and classifications on Council's organisational structure (Exhibit 14-R). 117That information was conveyed in a letter from Council to the USU (which Ms Keato prepared) of 21 May 2010, together with the position descriptions of the 5 positions in question. The letter reiterated Council's position "that Mr Stuart's role is appropriately classified as a Community Services based position and should therefore continue to operate under a 38 hour week arrangement". 118Ms Keato deposed that her comparative review indicated that there was no comparable pattern detected between those 5 positions and that of Mr Stuart's. 119She went on to summarise the relevant differences between the position of Marketing Officer - Arts and Culture and Mr Stuart's position (referable to the summary of the job descriptions as set out in her comparative review -Exhibit 14-R) as follows: Requisite essential qualification - Bachelor's Degree in Marketing and/or Communications.; Key responsibilities - onerous and particularly directed towards developing marketing strategies for the Laycock Street Theatre, the Peninsula Theatre and Gosford's Regional Art Gallery. Salary system placement - Professional/Specialist Band 3, Level 2. This position was one of Community Services by virtue of its placement under the Arts and Culture Business Unit within the CSODD. However, as it was classified as Community Services Professional/Specialist Band 3, Level 2, it was subject to a 35 hour working week as per subclause 16A(ii) of the Award. 120She also made the following observations, (again referable to the summary of the job descriptions as set out in her comparative review - Exhibit 14-R) with respect to the Marketing Officer -Communications position within Council's Communications and Customer Services Business Unit as referred to by Mr Stuart in his Witness Statement: Requisite essential qualification - Bachelor's Degree in a specialised area; Key responsibilities - demonstrated that they were more onerous and particularly directed towards implementing and delivering the Council's Communications strategy and implementation plan; Salary system placement - Professional/Specialist Band 3, Level 2. 121Ms Keato maintained that in contrast to those two positions, Mr Stuart's position of Marketing Officer - Leisure and Lifestyle did not require a Tertiary qualification but rather a TAFE Certificate IV in Marketing, Leisure or Tourism; the primary responsibility of the position was promoting the LLSU through proactive marketing in the community, and the position's salary system placement was Administrative/Technical/Trades Band 2, Level 3, 122Ms Keato also maintained, in response to Mr Stuart's claim, that prior to the 2005 organisational restructure, the majority of services that were now currently provided by the OSLS Business Unit, which encompassed the LLSU where Mr Stuart was employed, were in fact provided by the Recreation Services Business Unit which operated under the Community Services Directorate of the Council. By virtue of this fact, it could be shown from Council records that Mr Stuart's current position, and its historical precursor, derived from the Community Services Division of the Council. 123She indicated, in response to Mr Stuart's claim that in the letter of 20 January 2010 she had determined that he was to remain on a 38 hour week arrangement due to the 'administrative' nature of his duties, that particular attention should be directed to the third paragraph of the letter where it stated: The hours of work specific to the Leisure and Lifestyle Unit, which encompasses the Peninsula Leisure Centre and Gosford Olympic Pool, is 38 hours per week. 124Ms Keato reiterated that Mr Stuart was employed in a service area of the Council, namely the Leisure and Lifestyle Services Unit, where all permanent employees were required to work 38 hours per week, in order to adequately service the Gosford community, and individuals in the Gosford Local Government Area. Mr Clarke 125Mr Clarke deposed as to the responsibilities and duties of his position of LLSU Coordinator which, apart from various managerial and coordinating functions, included the following: Developing an extensive range of programs for the LLSU; Developing marketing and promotional strategies to ensure strong participation from the community in the LLSU; Managing the future development of aquatic leisure facilities and services; Delivering a strong customer service culture. 126Mr Clarke deposed that as Coordinator of the LLSU, he designed and created the position of Marketing Officer within the Council's Aquatics Service Unit in October 2005, and was involved in the introduction of the LLSU in July 2007. His evidence as to the operation of the LLSU at Council, and Mr Stuart's position within the LLSU, was based on this experience. 127He confirmed that all 228 staff within the LLSU worked a 38 hour per week arrangement. The only exception to this was his position which was on a 35 hour per week arrangement consistent with the other professional coordinator positions operating at this level within the OSLS Business Unit. The operational staff within the LLSU had operated under a 38 hour per week arrangement since the establishment of the Aquatics Service Unit at Council in 2001. 128Mr Clarke deposed that the role of Mr Stuart's position of Marketing Officer - Leisure and Lifestyle, which reported directly to him, was the development and promotion of the recreational programs and services offered by the LLSU. The position was required to work with, and provide advice and support to, the programs and services provided by the LLSU and also work and liaise with the following positions within the LLSU: Health & Fitness Supervisor; Programs Supervisor; Operations Supervisor; Administration Supervisor; and Beaches Supervisor. 129He deposed that Mr Stuart's original position of Marketing Officer within Council's Aquatics Service Unit was first created in October 2005, together with a number of new positions, to service the operational requirements of the Council's Aquatics Service Unit, and in particular, the newly created Peninsula Leisure Centre. It was necessary to have a Marketing Officer to stimulate and actively promote the recreational services and programs offered by the new Peninsula Leisure Centre to the community. 130He went on to say that the initial occupant of the position of Marketing Officer (who resigned in January 2006 resulting in the subsequent advertisement of the position as filled by Mr Stuart) was also required to work the same spread of hours per week as Mr Stuart, that is, 38 hours per week. 131Mr Clarke indicated that in line with the job description applicable at that time, the incumbent of the original Marketing Officer position was required to 'undertake research to investigate the viability of programs for the Aquatics Unit'. Mr Clarke said that this was, and continued to be, also consistent with the broader responsibilities of his own position. The original Marketing Officer Job Evaluation Questionnaire of January 2006 indicated that 20% of the Marketing Officer's work time was to be spent on undertaking this responsibility and a further 20% of the Marketing Officer's work time was to be spent on providing marketing and promotional support to the programs and services run at the Aquatics Service Unit, in order to foster community involvement in the Unit. 132Mr Clarke deposed that similarly, the Basic Working Knowledge Areas of job description of the 2006 Marketing Officer position included, but were not limited to, the following Community Services functions: Community Facilities/Centre Management; Local Economic and Capacity Development; Activity Programming; Aged Services; Disabled Services; Youth Services; Aboriginal Needs; Ethnic Needs; Community Program Development; Community Program Evaluation; Long Day Care/Occasional Care; and Child Care Legislation. 133Mr Clarke confirmed the circumstances and outcome of the review of the position of Marketing Officer in 2007 (see Background and Chronology above). Following that review Mr Clarke said that he advised Ms Joanna Savage, Council's Employee Relations Administration and Recruitment Assistant that Mr Stuart's ordinary weekly hours of work would be maintained as 38 hours per week. The arrangement of working hours on a daily basis for the position of Marketing Officer - Leisure and Lifestyle was specified on the Selection Committee Recommendations, Form R5, of October 2008, as 9am to 4pm, with a 30 minute lunch break. 134Mr Clarke deposed that the primary responsibility of the position of Marketing Officer - Leisure and Lifestyle, as stated in the position description was to '......promote the Leisure and Lifestyle unit through proactive marketing in the community' . The incumbent was required to promote the LLSU in the community, in order to encourage the involvement of residents and visitors of the Gosford Local Government Area to utilise the recreational services and programs offered by the LLSU. 135He went on to say that this was further confirmed by the fact that a key challenge for the incumbent of the Marketing Officer - Leisure and Lifestyle (again as stated in the position description) was '....to proactively manage marketing initiatives and future issues within the leisure industry'. 136Further, in a similar fashion to its predecessor position, a key responsibility of the Marketing Officer - Leisure and Lifestyle was to provide marketing and promotional support to the programs and services run at the LLSU, in order to foster community involvement. This was stated in the 2008 Job Evaluation Questionnaire and job description under 'Key Responsibilities' (Number 1). 137Mr Clarke said that in order to encourage the involvement of residents and visitors of the Gosford Local Government Area to utilise the recreational services and programs offered by the LLSU, the incumbent was specifically required to plan and coordinate marketing strategies within the LLSU, as stated in the 2008 Job Evaluation Questionnaire and job description under 'Key Responsibilities' (Number 5). 138In addition to planning and coordinating these marketing strategies, the incumbent was also required to develop these marketing strategies and undertake training for staff within the Unit, also as stated in the 2008 Job Evaluation Questionnaire and job description under 'Key Responsibilities' (Number 6). 139Mr Clarke said that this was further confirmed by the fact that the job description specified, under 'Authority and Accountability' (para. 3) that the work of the incumbent was to influence 'the community within a specified service line through the application of technical skill or application of regulatory requirements'. 140Mr Clarke indicated that under the 'Solid Working Knowledge Areas' of the 2008 Job Evaluation Questionnaire, the position included but was not limited to, the following Community Services functions: Corporate/Business Planning; Project Management; Local Economic and Capacity Development; and Activity Programming. 141Similarly under the 'Basic Working Knowledge Areas' the position included, but was not limited, to the following Community Services functions: Early Childhood Care; Out of School/Vacation Care; Aged Services; Disabled Services; Ethnic Needs; Aboriginal Needs; Nutrition Planning; Water Safety; Swimming Pool Operations/Management; and Pool Supervision (including safety of patrons). 142Mr Clarke said that there were no other positions within the LLSU undertaking similar types of duties, functions and responsibilities to that of the Marketing Officer - Leisure and Lifestyle. 143Mr Clarke also maintained, in reply to Mr Stuart's evidence about press releases, that it should be clarified that Mr Stuart was only required to draft these press releases. Council's Communications and Customer Services Business Unit was charged with the task of arranging the press releases to be sent to media outlets. 144He further clarified that while Mr Stuart was required, as part of his role, to design and advertise promotional material to promote community involvement in the LLSU, he had little direct involvement with customers. Nor was Mr Stuart directly responsible for handling customer complaints and/or problems. 145Mr Clarke said that he would describe Mr Stuart's work with sponsors as a "purely commercial arrangement intended to promote the LLSU to the community". 146Mr Clarke considered that approximately 5% of Mr Stuart's overall working time was spent on maintaining the LLSU's website. 147In relation to the memorandum sent to him by Mr Burling in October 2009 proposing that staff at the supervisor level within the LLSU be classified as 35 hour positions, Mr Clarke forwarded that memorandum to Ms Megan Mullen, Council's Employee Relations Coordinator, for review. Upon review of Mr Burling's proposal, it was determined that the hours of work specific to the LLSU were 38 hours per week and, as a result, none of the 6 employees listed in Mr Burling's proposal were re-classified as per his request. 148In reply to the evidence of Mr Stuart and Mr Hutchinson about the Marketing Officer- Leisure and Lifestyle job description, Mr Clarke deposed as to the following observations: The very first key responsibility, of providing marketing and promotional support to programs and services run at the LLSU was a responsibility that aims to encourage community involvement in the LLSU and promote its programs, activities and services; The third key responsibility requires the position to work with the Council's Corporate Relations unit to maximise general promotional opportunities. The Council's Corporate Relations Unit is situated on Council's organisational structure under the Community Services and Organisational Development Directorate. The position is therefore required to liaise and work with the other arms and branches of Council's Community Services and Organisational Development Directorate; The fifth key responsibility of planning and co-ordinating marketing strategies within the LLSU was a necessary part of this position, in order to encourage community involvement in the recreational programs, activities and services offered by the LLSU; Within the section titled 'Authority and Accountability' the third paragraph states: 'The work of the jobholder influences the community within a specified service line through the application of technical skill or application of regulatory requirements.' That specified service line referred to is the LLSU. Within the section titled 'Judgement and Problem Solving' the third paragraph states: 'Significant planning is required to coordinate with various organisational units including external affiliates or multiple resources.' In order to encourage community involvement in the recreational programs, activities and services of the LLSU, the Marketing Officer - Leisure and Lifestyle is required to plan and coordinate marketing strategies and programs, as stated in the fifth key responsibility as outlined. Within the section titled 'Interpersonal Skills' the second paragraph states: 'The job holder is required to anticipate and pre-empt customer requirements and do the utmost to meet these. In addition, the job holder should monitor and evaluate the effectiveness of customer service provided and recommend modifications to improve service.' Similarly, the third paragraph under Interpersonal Skills states: 'Required as a major part of the job to provide service to internal customers, with accountability for measuring and consistently improving service'. The Marketing Officer - Leisure and Lifestyle position was required to possess certain interpersonal skills that are tailored towards the provision of customer service, and the anticipation of customer requirements as demonstrated above. Furthermore, also under Interpersonal Skills, there was a requirement to negotiate or persuade community organisations - service clubs etc. In relation to the 'Solid Working Knowledge', in addition to Public Relations Administration, there was also a requirement to possess the following 'Solid Working Knowledge' areas, which included, but was not limited to: Corporate Business Planning; Project Management; Local Economic and Capacity Development; Activity Programming. 149Mr Clarke also responded to the evidence of Mr Stuart as to his involvement in various projects, making the following observations: In order to stimulate and actively encourage community involvement in the recreational services, programs and activities offered by the LLSU, the Marketing Officer - Leisure and Lifestyle is required to work on these kinds of various initiatives. This was confirmed by the fact that Mr Stuart acknowledged that he was required to promote and encourage community and youth involvement in the activities of the LLSU on school holidays; The re-branding initiative of the Aquatics Service Unit, was specifically aimed at fostering greater community involvement in the recreational services, programs and activities that Council's Aquatics Service Unit was providing to the community; The second year birthday of the LLSU, referred to by Mr Stuart was yet another initiative aimed at promoting the facilities of the LLSU to the local community in Gosford; The submissions for the various awards listed by Mr Stuart were written and submitted according to Mr Clarke's direction and input. Mr Moore 150Mr Moore extensively detailed the history and background of the LLSU. Where he was not directly involved in that process his evidence was based on his examination of relevant Council records. 151He deposed that prior to 2007, the LLSU was known by the title of Council's Aquatics Service Unit which was established in April 2001, when Council assumed control of both the Gosford and Woy Woy Olympic Pools. The appointment of permanent positions to operate and service this Unit commenced from November 2001. From April 2001 to May 2005, Council's Aquatics Service Unit was situated within the Recreation Services Business Unit which operated under the Community Services Directorate. 152As a result of an organisational restructure in May 2005, the Natural Resources Business Unit, which had previously been subject to the Environmental Planning Directorate, was integrated with the Recreation Services Business Unit. This resulted in the establishment of the new Recreation and Natural Resources Business Unit. The Aquatics Service Unit was placed under the management and control of the new Recreation and Natural Resources Business Unit, which was subsequently placed under the Directorate of City Services. 153Mr Moore deposed that in late 2005, Council's new Peninsula Leisure Centre replaced the Woy Woy Olympic Pool facilities (which had been was demolished). It was also around this time that the newly created position of Marketing Officer - Aquatics was primarily responsible for promoting the health and fitness facilities and services of the new Peninsula Leisure Centre to encourage the involvement of the residents of, and visitors to, the Gosford Local Government Area. 154In 2007 Council endorsed and adopted a change of name from the Recreation and Natural Resources Business Unit to the Open Space and Leisure Services Business Unit (OSLS). Mr Moore deposed that the proposed name change was sought in order to better reflect the recreational services, activities and emerging programs undertaken by the Recreation and Natural Resources Business Unit at the time. 155Following this name change a Business Unit review was undertaken at the operational level, into the functions, procedures and organisation of the individual service units of the OSLS Business Unit. This included the Aquatics Service Unit where Mr Clarke was the Coordinator. As part of the review Mr Moore was involved in extensive consultation with the staff of the OSLS to canvass various ideas on the proposed names and organisation of the service units operating within the OSLS Business Unit. 156As a result of this review the title of Council's Aquatics Service Unit was changed to the Leisure and Lifestyle Services Unit in July 2007 and it was proposed that the Peninsula Leisure Centre and Gosford Olympic Pool, which had previously been subject to the Council's Aquatics Service Unit, were to come under the newly named Leisure and Lifestyle Services Unit (LLSU), together with the Beach Lifeguard Service and a number of associated programs and services in these areas. This resulted in the LLSU becoming the largest staff area within the OSLS Business Unit. 157Mr Moore deposed that at this point in time he and his Coordinators continued to review the organisation of the individual service units of the OSLS Business Unit, and in particular, how they were operating at the local level. In doing so they paid particular attention to the functions and organisation of the LLSU, as it had become the largest staff area within the OSLS. Specific consultation sessions were organised with all staff within the newly named LLSU to seek their feedback and input into the Unit. 158Mr Moore deposed that after a long process of consultation and discussion with the staff of the OSLS, he prepared a draft final operational structure and discussed this with the Coordinators of the OSLS Business Unit. The Coordinators concurred with the draft, which was subsequently approved by the General Manager in August 2008. 159Mr Moore deposed that the final proposal, in essence, created a management framework for the facilities of the Leisure and Lifestyle Services Unit, and in particular the Peninsula Leisure Centre and Gosford Olympic Pool, with supervisors responsible for both sites in the areas of Administration, Programs, Operations and Health/Fitness. This was aimed at providing continuity in service delivery across both facilities and a more consistent approach for Council. 160Mr Moore specifically addressed the differences (and hence the resulting differing hours of work) between Mr Stuart's position, and those positions relied on by Mr Stuart to support his claim to a 35 hour week, which may be summarised as follows: Sports Liaison Officer: Requisite qualification - TAFE Certificate III in Office/Administration. Primary purpose - to assist the Coordinator Active Open Space and the OSLS Business Unit with the management of Council's sportsground and active recreation facilities including the coordination, supervision and maintenance of the bookings for the Unit's assets such as sportsground allocations, special events and stage hire. The position is primarily administrative in nature (based on the position description). Salary system placement - Administrative/Technical/Trades Band 2, Level 2. Active Recreation Officer: Requisite qualification - Bachelor's Degree in Recreation & Leisure, Sports Administration or a related field. Primary purpose - particularly directed towards the coordination of tasks and projects in the provision of quality sport and recreation facilities across the Gosford Local Government Area. Salary system placement - Professional/Specialist Band 3, Level 2. This position previously came under the Recreation Services Business Unit operating within Council's Community Services Directorate and is classified by Council as one of Community Services. Open Space and Leisure Officer: Requisite qualification - Bachelor's Degree in Recreation, Sports Administration, Natural Resources or a related field. Primary purpose - particularly directed towards assisting Mr Moore with complex tasks and projects and in the coordination of program delivery within the OSLS Business Unit. Salary system placement - Professional/Specialist Band 3, Level 2. This position previously came under the Recreation Services Business Unit operating within Council's Community Services Directorate and is classified by Council as one of Community Services. 161Mr Moore deposed that in contrast to these positions Mr Stuart's position of Marketing Officer - Leisure and Lifestyle did not require a Tertiary qualification but rather a TAFE Certificate IV in Marketing, Leisure or Tourism; the primary responsibility of the position was promoting the LLSU through proactive marketing in the community, and the position's salary system placement was Administrative/Technical/Trades Band 2, Level 3. 162Mr Moore gave further detail as to the geographic distance between the range of beaches and facilities covered by the LLSU. He acknowledged that in an operational sense he was not going to those facilities on a daily basis. He also agreed that he did not physically see what Mr Stuart was doing on a day-to-day basis. He would meet with Mr Clarke on a fortnightly basis and Mr Clarke was based at the Peninsula Leisure Centre. 163Mr Moore deposed that as Manager of the OSLS he was also best placed to give evidence as to his staff's interaction with the media and media outlets and the OSLS Business Unit's protocol in this regard which included Mr Stuart's position. On that basis he deposed that the Mayor and Council's Senior Management Group (SMG) had the authority to speak with media outlets or journalists or give any interviews, as stipulated in Council's Media policy. The SMG had the capacity to delegate this function to a council officer under Council's Media Policy. Mr Stuart did not have the delegated authority to interact with the media or media outlets provided for under Council's Media Policy. For the services and facilities operating under the LLSU, this delegated authority rested with Mr Clarke , the Coordinator of that Unit. 164Mr Moore deposed that in relation to Mr Stuart 's assertions that it was part of his role to promote "good news stories" and enhance the image of the beaches and pool complexes, that Council's Communications and Customer Services Business Unit, which collaborated with Mr Clarke, was charged with the task of arranging and promoting all press releases and media articles sent to media outlets. Mr Stuart's role in this process was to liaise with Mr Clarke in the drafting of media releases. These media releases were then referred to Mr Moore, the Communications and Customer Service Business Unit, and the Director of City Services for review and approval. 165Mr Moore further confirmed and elaborated on the process in relation to the review and approval of press releases in oral evidence. 166Mr Moore also referred to the position description of Mr Clarke as Coordinator of the LLSU, and maintained that it demonstrated that the responsibility for the public image of the LLSU rested with Mr Clarke, as identified under the duties of ' Business Planning and Management '. 167Mr Moore also rejected Mr Stuart's assertion that it was part of his task to seek to attract media attention for the "good news stories" saying that it was the responsibility of the Communications and Customer Service Business Unit to distribute all media releases to media outlets after approval had been granted by the Director of City Services. He went on to indicate that the media releases annexed to the supplementary statement of Mr Stuart were arranged and sent to media outlets by the Communications and Customer Service Business Unit. 168Mr Moore conceded that in relation to the use of Prime TV as well as the radio, there was potentially a greater reach of campaign strategies to an audience beyond the parameters of Gosford City Council. 169He was also not aware whether it was the intention, as stated by Mr Stuart, that articles submitted to magazines by Council that had a reach beyond the Central Coast were designed to promote the Central Coast. He was unaware of the article in question. 170Mr Moore did not agree that the work undertaken by Mr Stuart in relation to the swimming complexes was part of an impact to promote tourism in the area. He did not see the function of Council with running leisure centres and beach lifeguard services was to promote tourism. Council's function was to provide a safe environment in its facilities and its beaches. 171When asked whether he considered that the promoting and the publications that they were doing would encourage tourism, he responded - "it may" . 172In relation to whether it was an aspiration of Council to promote a positive image as to pleasurable places to spend recreation time, he indicated that the intention was to provide a safe environment for people to come and attend the beaches and the leisure facilities. That was first and foremost, and if it was then attractive to people outside of the area then that was a positive. Their main attention intention was to promote the use of Council facilities and attract people within the Council area. He accepted the fact that if it had the effect of promoting other persons coming to the area and that that introduced people to the Leisure Centre then that provided more income which kept the Centres running inside Council's area and the beaches would provide a safe environment for whoever attended the beach location. 173Mr Moore agreed Council wanted people to utilise the beaches but could not comment on whether that was because that was a generator of revenue for the businesses that were within the beach precincts, indicating that he could not comment on whether that was a Council direction. 174He acknowledged that Council had a clear vision, of which building business interests was one of the key statements however that was not his area of responsibility. His area of responsibility with regard to the Beach Lifeguard Service under the Beach Management Policy was to provide a safe environment for people to go to the beach. However he was aware of a wider Council approach wanting to encourage business in the area. 175Mr Moore suggested that rather than through promotional material it would be first and foremost about producing safe environments rather than actually promoting them. Once a safe environment had been established, whether it was at a beach or a leisure centre, then it would be about promoting after the fact. The service had to come first and then the promotion. 176Mr Moore agreed that Mr Stuart did not engage in the work of any of the positions described by Ms Tiddy as coming within community services. 177Mr Moore also agreed that Mr Stuart was the liaison point for media outlets in relation to sponsorship partners. 178Mr Moore generally agreed that public image was important for both the business function of the Leisure Centre and for the Council at large. With regards to the Leisure Centre, the pools and beaches they were imperative for their business unit to function, and as regards Council then obviously that gave a good view of the Council because they wore Council shirts. 179He said that the public image was imperative for the business function of the Leisure Centre. It was about if the facility had a good public image and was running well financially and was a good business. Mr Clarke referred to it as running "a community facility under a business model" and that was their aim. If they did not run it as a good business within Council then the likelihood was that the facility would be leased out and not only would they lose the Council run facility council they would also lose their positions as well. 180Mr Moore said that to him as business manager the positives that came from the implications of a good public image were of a secondary consideration. 181Mr Moore was aware that a number of awards had been given to Council as referred to by Mr Stuart, but could not recollect what they were. He acknowledged that the RH Doherty Award was a positive outcome for Council and confirmed the Certificate of Appreciation received by Mr Stuart in relation to the campaign referable to that award. Submissions on behalf of the Applicant 182Mr Barnes for the USU and its member submitted that the Commission should determine the matter on the balance of probabilities with there being no particular onus on the USU as there might be in some other style of proceedings. This was the same position for the respondent Council. 183It was the USU's primary position that the Commission apply the ordinary English meaning to the words in the relevant provision of the 2007 Award in the context of the Award as a whole. It was not suggested that was any ambiguity in the meaning of the words and there no need for the Commission to give consideration to relying on extrinsic material. It was acknowledged that there was scope for having regard to surrounding circumstances as distinct from extrinsic material. In that regard it was submitted that the starting point should be looking from 1992 onwards rather than looking at an earlier period in relation to definitions within earlier awards that had culminated in the creation of the 1992 State Award and thereafter, as pressed by the respondent Council. 184Mr Barnes agreed with the Commission that the particular language concerned was simply repeated in the Awards post 1992, but submitted that when the language was repeated, it was repeated to give the meaning to the words at the time it was put into the award. It was further submitted that it would be falling into error as to what "Public Relations" meant as at 1992 when that phrase came in and that had stuck in time, because new awards had been made and varied since then and each time, even in 2007 and 2010, that gave a new vitality to the award. It had its contemporary meaning, not some meaning that was fixed in time in 1992. The principles were quite clear and how it had been applied in the last 30 years was irrelevant, because that was evidence as to use which was prohibited by the relevant authorities. 185It was submitted that what was quite clear was that how the Council labelled the work was not determinative of the award interpretation that fell to the Commission to determine. What title they gave to it and where they positioned it on a table was equally irrelevant. It was not for Council to determine how the award was interpreted by the way they structured their working arrangements. 186Mr Barnes also pointed out that awards, by their very nature, were meant to provide fair and reasonable conditions of employment and in that regard awards were generally characterised as beneficial in character rather than being simply regulatory. There were obligations in awards but also benefits. One did not avoid the language but utilised the language which gave best effect to the underlying purpose of fair and reasonable conditions. 187Mr Barnes took the Commission in some detail to the definitions set out in Exhibit 3 set against the context of the wording of Clause 16. He firstly submitted that the key phrase "is engaged in the following functions" was the dynamic change in the award structure as to what went beforehand, which was talking about definitions, it was not talking about functions. Further, "functions" was a wider concept than simply what fell in the definitions of various roles. That was clear from the definition of "functions" as set out in Exhibit 3. 188It was the USU's case that whether you called it 'Marketing' or 'Public Relations', Marketing comfortably fell within the umbrella of what constituted Public Relations. Mr Barnes then took the Commission through the definitions of 'public relations' and said that it was a broad concept, there were multiple elements to it and each of them were satisfied. In relation to techniques, 'press releases' was a standard technique and clearly on the evidence that was there. Reliance was also placed on 'publicity' and all definitions referred to were relied upon. Publicity was an integral part of the notion of 'public relations'. In relation to the definitions of 'marketing' they were all embraced as being part of the subtext of what happened in public relations, but it was a narrow part of it and not what was the totality of 'public relations'. 189Mr Barnes submitted that in relation to the evidence of Ms Tiddy she had conceded in cross examination that there was nothing in the award that contained a definition of "Public Relations" or a definition of "Community Services" and conceded that councils can, and do, have different salary systems. Although they were obliged to have a salary system the evaluation methodology referred to in her evidence was optional. It was submitted that large parts of that evidence were simply irrelevant. 190It was submitted that in relation to the distinction between "engaged in the following functions" and the structure of the awards prior to 1992 none of the definitions within 'Community Service Staff' related to the work undertaken by Mr Stuart as shown by the evidence. The definition that was existing dealing with 'Public Relations Officer' was an inclusive rather than exhaustive definition and did not limit the nature of the duties. That was consistent with has been put to the Commission. There was no suggestion from that award that 'Community Service' would include 'Marketing' or 'Public Relations'. 191It was submitted that it was a subtext within the respondent's case, that it appeared to be conceding that if anyone did Public Relations work (whilst not using those words) it was Mr Clarke. But in fact the way they ran their case no-one at Gosford City Council did public relations work, or if they did they had not been prepared to tell the Commission about it. Further Ms Tiddy had advanced in her evidence her version of the history of what was relevant to 'Public Relations' up to 1992 but then gave no evidence at all on how 'Public Relations' had changed or developed or evolved since 1992. Yet by way of contrast, she sought to develop quite a sophisticated argument as to what happened in relation to Community Service and gave quite extensive evidence as to the growth and the change in the dynamic of Community Service from 1992 to date. 192It was submitted that the Council could not have it both ways. They could not say that the notion of 'Public Relations' was static and only to be found back in what was happening in amendments to awards and yet Community Services, whilst static by way of definition had grown and evolved post 1992. The better view was clearly that 'Public Relations' was not a static concept and not root bound to what it was perceived to be on an inclusive definition back in the '60s, '70s and '80s. The function of 'Public Relations' was a wide concept and not limited to the possible titular head of the Unit, who may be Mr Clarke, because that was not how the award was set up under clause 16. For example it said 'Library', not Chief Librarian, so when looking at what the role is, and who is contributing to Library, the Library Assistants, the person who put the books on the shelf, the person who was working on the counter were all in 'Library'. Similarly there was no reason why there was a barrier to Mr Stuart being in public relations simply because he was not at the top of the tree. However reinforcing that role his position description stated clearly that he has a degree of autonomy. The Commission would be satisfied on the evidence that not only was that in his position description, that was the actuality of what occurred. 193The Commission was also reminded, consistent with this submission, about the RH Doherty Award for Excellence in Communication, and in that regard there was a specific Certificate of Appreciate to Mr Stuart for coordinating the Beach Safety campaign and preparing the winning submission on the Council's Summer Beach Safety campaign. 194Returning to the relevant definition, Mr Barnes submitted that it was about promoting goodwill amongst the public. The practice of working to present a favourable image was a key part of Mr Stuart's role and the evidence was quite clear on that. He liaised with the media, he dealt with good news stories, he had direct negotiation with the media. Mr Moore was a very candid witness in acknowledging what Mr Stuart was involved in. He said there was a process, but below the formal signing off on the process, he did not dispute that Mr Stuart was involved in both the drafting and the media releases so that they could be processed in a certain way, or being involved directly in these sponsorship negotiations, drafting the advertisements, liaising with the media about how it would appear and working out the words of the campaign. 195Mr Barnes took the Commission to relevant evidence of Mr Clarke and essentially said that nothing he said detracted from the case put on behalf of Mr Stuart. For example he acknowledged that Mr Stuart had little direct involvement with customers which was exactly what Mr Stuart was saying. Further whilst Mr Clarke had endeavoured to go to the position description and pull out some parts of the clauses which he said gave it a community service flavour he also said that there were no other positions within the LLSU undertaking the types of duties and functions and responsibilities similar to Mr Stuart's role, that was an acknowledgement of the uniqueness of Mr Stuart's position. 196Mr Barnes submitted that much of Mr Clarke's evidence was quite confirmatory about what Mr Stuart was saying about his role. His evidence was important and supportive of Mr Stuart's case. 197It was submitted that when dealing with the idea of community Council wanted to read the case down and turn round and say public relations was rooted in what was going on in 1969, and about tourism and regional development and the local tourist attractions and only within the one council area. It was submitted that the better view about the notion of community and what the Council was seeking to do was broader and the Commission was reminded about the media outlets that were utilised and the fact that they were not limited to the boundaries of Council and further there were the 2 million visitors going to the beaches which was made clear in the attachments to Mr Stuart's supplementary statement. 198In relation to Mr Moore's evidence was submitted that much of his evidence cover technical aspects about what Mr Stuart did, which was quite clear. However Mr Moore did not see Mr Stuart every day, he saw him irregularly, although it was conceded he may have seen him more since Mr Clarke had been on leave. Mr Moore was also based at a different place of work and therefore did not really have first-hand knowledge of what Mr Stuart was doing on a day to day basis. This should be kept in mind when his evidence was considered and weighed. 199It was further submitted that Mr Moore raised in fact very few challenges to what Mr Stuart had said in his supplementary statement and when he did raise a challenge it was raised in a very narrow focused technical way. Examples were given to support that submission. 200It was submitted that whilst Mr Moore was resistant to the idea of tourism being the primary goal he made appropriate concessions about ancillary goals as to what could be called 'the sun and surf and sand' aspect of Council's role to work with business and try and get people into the area and try and promote the assets. 201In relation to Ms Keato's evidence it was submitted that she could not address the issue that was raised during the proceedings about what were the parameters of community service. Whilst she made appropriate concessions about the Council changing its structure she could not, for example, explain why libraries were part of community services when the award clearly delineated them differently. It was submitted that there was nothing telling in her evidence against Mr Stuart's case. 202Mr Barnes submitted that it was not relevant whether Mr Stuart indicated that out of his position description that there were only certain numbers of the list of items relating to public relations, as it was not a question of whether it was 3 of them, or 10 of them, it was not a numbers game, it was a substance game. The overwhelming evidence was making out the submission that Mr Stuart's role was public relations. 203It was submitted that there were public relations issues associated with a range of Council assets and there was a public relations issue associated with local government and Council. The Commission was taken to a cross-section of the evidence of Mr Stuart by way of illustration of this submission. 204Finally it was submitted that even if the Commission took a very narrow view of tourism as being about promoting a region or the tourist facilities within the Council, the Commission would have to be satisfied that Mr Stuart did that. However the more proper view as had sought to be defined through the evidence on behalf of Mr Stuart was that public relations was a growing expansive concept, was a viable aspect of the award in terms of the vibrancy of the language and was something that was clearly utilised in local government. Submissions on behalf of the Respondent 205Ms Salameh, on behalf of Council, submitted that the critical issue that required determination was whether Mr Stuart's ordinary weekly working hours should be reduced from 38 per week to 35 per week in accordance with the exclusions listed in 16A(2) of the 2007 Award. Thus the ambit of this dispute was limited to award interpretation. 206Ms Salameh contended that the evidence supported Council's submission that the functions, duties and responsibilities of Mr Stuart's position were not those of 'Public Relations' as envisaged and defined under past Local Government Awards. Rather, that Mr Stuart's position was one primarily based on Community Services which was subject to a 38 hour working week in compliance with past and present Local Government Award practice. As an adjunct to that argument, the default provisions of the Award provided for a 38 hour working week for employees in local government with certain exceptions listed at subclause 16A(II). 207It was further submitted the applicant Union must, in order to prove that there had been a misclassification by the Council, demonstrate how Mr Stuart's position was one of 'public relations' and it was Council's contention that throughout these proceedings the USU had failed to discharge this onus. It had failed to prove that the position of Mr Stuart had been incorrectly classified and that subclause 16A(II) of the 2007 Award applied, based on the key aspects of evidence that had emerged throughout the course of this matter. On that basis the Commission should not intervene. 208It was submitted that in determining whether the USU had discharged this onus, the Commission must have regard to the history of the award concerned, as the issue was grounded in historical significance and this was in keeping with the spirit of award interpretation emanating in previous decisions of the Commission. 209Ms Salameh submitted that the proper approach to the interpretation of awards had been authoritatively stated by the Full Bench in Zoological Parks of New South Wales v Australian Workers Union New South Wales [2004] NSWIRComm 85, particularly at paragraphs 43 and 44 in which the Full Bench cited with approval Kingmill Australia Pty Ltd t/as Thrifty car Rental v Federated Clerks' Union of Australia, New South Wales Branch [2001] and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 as well as noting Timothy Fox v GIO Australia Limited [2002] NSWIRComm 318. 210Ms Salameh also relied on the decision of Walton J Perisher Blue v Australian Workers' Union [1999] 91 IR 274 for the relevance of considering the terms of an award in the context in which they first appeared and emerged vis vis the principles of award interpretation. The Commission was also referred to Re Andrew John Short v FW Hercus Pty Ltd (1993) 40 FCR 511. 211It was submitted that in Perisher Blue , Walton J agreed with the approach adopted in Short v Perkis . The effect of this approach to the interpretation of awards meant that the starting point for any analysis should be the history and context of the functions and hours of work provisions under former Local Government Awards and their application to this position's classification. 212Ms Salameh submitted that in making its assertion that Mr Stuart's position was one of Public Relations, the USU had not had regard to the history of this function as it first appeared in formal Local Government Awards, nor how this function had evolved over time in subsequent Local Government Awards. It was clear from Ms Tiddy's evidence that the 2007 Award provisions represented a long history of extended award coverage in response to new work and responsibilities. Ms Tiddy confirmed in cross examination that whilst Local Government Awards were common rule awards, variations were often made in response to emerging additional responsibilities. 213It was submitted that those aspects of Ms Tiddy's evidence relating to the job evaluation systems and salary systems were important for two reasons. Firstly, the USU had sought to rely on comparative positions that differ principally in the grading with that of Mr Stuart's position. Council had to demonstrate that the position in question was not a professional position and thus not subject to the hours of work exclusion afforded to professional Community Services staff. Secondly, the job evaluation system utilised by Council was the same system referred to in Ms Tiddy's evidence. This job evaluation system was mirrored on the Award's skill descriptors in Clause 5, informing as to the content of job descriptions. This information was necessary in countering the USU's comparator argument. 214In response to Mr Barnes' assertion that anything prior to the 1992 Local Government State Award was irrelevant and we start with a blank slate, Ms Salameh suggested that the USU must be thrilled to hear that certain provisions carried over from the former Local Government Awards into the 1992 Award no longer had any bearing or relevance, such as the disability allowances, among other provisions. 215It was submitted that the Award history was significant. After 1992, employees continued to work the same number of ordinary hours under the 1992 Award as they did under the previous former Local Government Awards, that is, 35 or 38 hours a week. Ms Tiddy confirmed in cross examination that whilst the function of Community Services was not defined in the 1992 Award, the function covered a range of activities which included promoting the community and engaging with local businesses and community groups. Ms Tiddy confirmed that the role of marketing was picked up by the function of Community Services. Indeed Ms Tiddy confirmed in her affidavit evidence that it was envisaged that the function of Community Services would cover those employees that would, broadly speaking, be responsible for the identification of current and emerging recreational, cultural, social and welfare needs in the Council's local government area and the implementation of approved plans, programs and strategies to meet these needs. 216Ms Salameh rebutted the issue taken by Mr Barnes that Ms Tiddy's evidence was untested, and submitted that Ms Tiddy's evidence was corroborated by the definition of 'Community Worker' in Clause 2) (6)(e) in the Local Government Salaried Officers' Award which was: An employee appointed by Council who is responsible for assessing the needs of the community and the stimulation of community involvement in meeting those needs and implementing approved programs where required. 217Further, in cross examination Ms Tiddy confirmed that individual councils had the discretion to determine what constituted Community Services, however, they could not entirely veer away from the original scope and intent of the function to encompass, for example, Engineering staff and the like. Ms Tiddy's evidence dealt with the award history of the Public Relations Officer and the then definition and in cross examination, she confirmed that whilst it was not an exhaustive definition, much turned on the integrity of the work performed. Her evidence confirmed that the intent of this classification was to cover and apply to employees engaged by councils primarily performing work associated with tourism and travel and that it was essential for Public Relations Officers to possess local tourism knowledge relating to the local tourist facilities within the Council's local government area and Visitor Information Centres. She also confirmed in cross examination that Marketing was not covered by this function. 218It was submitted that the history of these two functions was most significant, as it provided a clear criteria for the Commission to determine the position classification of Mr Stuart and from which to assess his duties, functions and responsibilities. That was the integrity of the work he performed. The primary focus of Mr Stuart's duties did not include any work associated with tourism and travel in accordance with the definition and intent of this classification. Further in cross examination, Mr Stuart conceded that the major component of his duties, as explicitly stated on his selection criteria and job description, was not tourism and travel. 219Mr Moore also confirmed in cross examination that the parameters of Mr Stuart's position were primarily focussed on Gosford City constituents and he went on to further confirm that the primary role of the OSLS Business Unit with regard to the Central Coast beaches and facilities, was to provide a safe environment for people to utilise those leisure facilities. According to Mr Moore, promotion and tourism were secondary considerations and to use his words, the service came first before the promotion with the LLSU a community facility under a business model. 220It was submitted that this was also further substantiated by Ms Keato in cross examination who also confirmed that Mr Stuart's role was one of community services, as it was the discretion of the Council to determine and deem its community services staff and this also correlated with, and corroborated, Ms Tiddy's oral evidence. Both Mr Moore and Ms Keato confirmed in cross examination that in relation to the Community Services classifications referred in Ms Tiddy's evidence, Mr Stuart would fit into the classification of a Community Education Officer. Ms Keato's evidence that the Aquatic Service Unit, of which Mr Stuart was the Marketing Officer, was previously situated within the Recreation Services Business Unit, which operated under the Council's Community Services Directorate indicated that the historical precursor of this role was one of Community Services. 221It was submitted that it was an untenable position that the USU had made sweeping assertions with regard to Mr Stuart's position coming under 'public relations' without demonstrating empirically how it had come that conclusion. Their evidence merely listed the bits and pieces of the selection criteria and the job description verbatim from those documents. Mr Hutchinson conceded in cross examination that he had not made explicit or explained how USU came to reach their position that Mr Stuart's role was one of Public Relations. 222Ms Salameh highlighted inconsistencies in Mr Stuart's evidence, particularly regarding press releases, and his role, and his assertion that he sent them directly to media outlets. This was contrary to the evidence of Mr Moore and Mr Clarke who outlined the process involved and the role played by Council's Communications Unit. 223Concern was also raised that Mr Stuart's evidence about his dealings with media sponsors had not been tested, as Mr Moore, the Coordinator of the Unit, was unable to corroborate that evidence and the unavailability of Mr Clarke also meant that that evidence could not be corroborated. The Commission was asked to keep this in mind when making its determination. 224It was also submitted that there were inconsistencies between Mr Stuart's written evidence and his oral evidence in cross examination concerning whether or not his position required the buying and selling of a product and item. 225There was also a great deal of confusion on the part of the USU as to what function this position should fall under. This was substantiated by the issue of the Grievance lodged in December 2009 which clearly made reference to 'Administration', and now it was 'Public Relations'. In the re- examination of Mr Hutchinson, he was asked to pinpoint key aspects of the job description that he believed were 'Public Relations' related, but could only guess these aspects. In support of its claim that Mr Stuart's position is one of 'Public Relations', the USU had sought to rely on the argument that Mr Stuart's position was comparable to five others within the Council that were subject to a 35 hour working week. However, in cross examination, both Mr Stuart and Mr Hutchinson conceded that they did not actually know how Council had determined that these positions were 35 hour a week positions and none of the positions identified were positioned alongside Mr Stuart within the LLSU. 226In conclusion it was submitted, in response to the orders sought by the USU, that any reduction to Mr Stuart's ordinary weekly hours of work would have extremely disruptive impacts on the LLSU in its entirety. A reduction in the weekly operating hours of one staff member, namely Mr Stuart, out of 228 staff, would create operational difficulties within the Unit by dividing the quantum of ordinary hours worked amongst the staff. It also created the potential for leapfrogging of the claim to other employment categories within the LLSU all of whom worked a 38 hour week (with the exception of Mr Clarke). 227It was submitted that the USU had not at any stage given an undertaking to Council that it will not pursue this claim in relation to any other employees at the Council and that was a source of concern. The Commission had the power to prevent any leapfrogging of this claim and it was requested that the Commission not intervene in this dispute to ensure that the continued industrial stability and viability of the LLSU was maintained. If, however, Commission was inclined to grant the orders contained within Exhibit 1, then due to the delay in the hearing of this matter, any determination should take effect from the date that it is made, rather than 6 November 2008. Submissions in Reply on behalf of the Applicant 228Mr Barnes in reply submitted that exception was not taken to any of the authorities relied upon by Ms Salameh on the basis that they were all well within the umbrella of the authorities that are brought to this Commission's attention. 229Mr Barnes submitted however, that exception was taken to, and none of those authorities supported, the anecdotal evidence that Ms Tiddy had given in relation to Community Services and Public Relations Officers. Reliance was placed by Ms Salameh on a decision of Justice Walton where he referred to Law Reform Reports. However there was a significant difference between a Law Reform Report and the style of evidence that been given by Ms Tiddy. Further that decision was in fact about interpreting Acts of Parliament and there was clear distinction for a tolerance level between a different approach to interpreting awards or from Acts of Parliament. 230Mr Barnes took the Commission to the definition scheme under 'Community Services Staff' (within the 1980 Award as referred to by Ms Tiddy) and the exhaustive list of definitions including 'Community Worker' as relied on by Council. He submitted that the role of 'Community Worker' would be read and interpreted in its context and where it appeared in this list. However none of the definitions came within "cooee" of the argument Council sought to advance. Mr Stuart was not assessing the needs of the community in the context in which this was being put. A very narrow concept was being promoted and when the definition of 'Community Worker' was examined, together with those other positions Mr Stuart was not engaged in that sort of work. He was not assessing the needs of the community in terms of whether they need an indigenous centre, or something for ethnically disadvantaged people or more childcare facilities, that was not what his role was. He was not assessing the needs of the community, which was an open ended proposition. 231Mr Barnes also rejected the position that was advanced on behalf of Council that that if the Council says that it was Community Services, then it was Community Services. That was for the Commission to determine. 232In response to the submission concerning the lack of empirical analysis by the USU. It was submitted that this was not a matter which lent itself to that style of analysis. This was a dialogue and these proceedings were narrative using words and language. This was a qualitative assessment, not a quantitative assessment. It was a question of interpreting the phrasing. 233Mr Barnes also rejected the submission that the Commission should be cautious in its approach to Mr Stuart's evidence in relation to his dealings with the media, because Mr Moore wasn't able to give evidence as to what happened on a day to day basis. That was not the basis on which the evidence was received in these proceedings. The evidence was received on the basis that it was admitted and it was in, just as Mr Clarke's was in, it was as simple as that. The Commission should not be tempted to have any reservations about that. 234However what was submitted in terms of corroboration was that a number of media releases were referred to where Mr Stuart was quoted and where he was the contact person. They were corroborative of the evidence that he had given through the documents. 235In response to the submission regarding the Job Evaluation Scheme or the Grading Scheme, it was submitted that the proceedings before this Commission had never been based upon anything other than 'Public Relations'. Council sought to still make it somehow or other relevant. The USU was not saying Mr Stuart was in 'Community Services' and that was not relied on and could not be relevant. 236In conclusion it was submitted in relation to the dispute orders, that there was no proper basis by which the dispute orders should only operate from the date of any decision. The proper basis was the Commission was conducting an interpretation. The respondent Council had not led any evidence as to incapacity to pay and/or any other evidence as to other matters. This notion of a destructive effect on the LLSU or the service at large was really evidence from the bar table. There was nothing that went to capacity to pay, flow on effects, leapfrogs, no evidence that the respondent Council sought any undertakings, nor were they entitled to such. An undertaking was not needed from anybody before the Commission could discharge its duties. The Commission had statutory obligations. The Council was falling into error in seeking to raise and rely upon those matters. Consideration 237I have very carefully considered the evidence and the submissions of the parties in this matter. 238Ms Salameh has rightly identified the relevant authorities to be followed by the Commission when exercising discretion under s.175 of the Act. Those principles were enunciated in Zoological Parks Board as follows: 43 The relevant principles to be applied when interpreting industrial instruments are well settled: for example, Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46]. Broadly speaking, the primary consideration in such matters is the actual words used (and these should be given their plain, ordinary meaning) and the context in which the words are used. 44 The construction of an award may include the history of the instrument in some circumstances. The words must be considered in the context of the instrument as a whole although in a practical sense, some parts of the documents will be very significant and others less significant or of no moment at all . 239The Full Bench also went on to say, (as Mr Barnes emphasised in endorsing the authorities relied on by Ms Salameh ): 47 It is clear from the authorities that whilst it is permissible to have regard to the surrounding circumstances in construing a written document, it is impermissible to consider 'evidence of user'. 240Whilst the onus to be discharged is the usual one applicable in this jurisdiction, that being on the balance of probabilities, I accept Ms Salameh's submission, that it is the USU, as the applicant, that bears the burden of discharging that onus, particularly where orders are sought pursuant to s.136 (1)(d), but not in any additional, exceptional way as rightly submitted by Mr Barnes . 241I have to say, at the outset, that arriving at a conclusion in this matter has not been an easy task, as to a large extent public relations/marketing/promotion can be intertwined and are inter-related and they have fundamental elements in common. All three involve the public image of a person/product/service/institution/establishment etc., and the favourable presentation of that image to the public by means of publicity through media in its various forms. On the other hand, the prevention or reduction of a negative image can also be involved, (sometimes referred to as "damage control"). It would be extremely difficult to market or "sell" a product or service (even where no actual price/fee/charge was involved for those goods/products or the service) that had a negative or very unpopular image (or where there was a perception of such in the minds of the public) without first taking steps to address that negative/unpopular image. A classic example of that would be the BP, Gulf of Mexico, oil spill in 2010 where there would have been a public relations exercise involved in the affect on the company's image and a separate marketing exercise to ensure that the public still bought BP products (other examples that come readily to mind in the same category are the recent Queensland floods/cyclone and the subsequent advertising campaigns to encourage the return of tourists generally). 242However, having said that, it seems to me that 'marketing' takes the somewhat narrow and one-dimensional concept of 'public relations' quite considerably further and expands that concept into a much broader, pro-active function. 'Promotion' operates in tandem with 'marketing' in that it concentrates on putting forward a positive image designed to particularly encourage purchase/use of a product/service, whereas public relations would be involved not only with putting forward a positive image but also with countering a negative image. 243Further complicating consideration of these concepts is that in this matter it is argued on behalf of Council that that narrow concept of 'public relations' must be viewed through the focussed prism of award history as being restricted to essentially dealing with tourism. 244In relation to that award history I do accept Ms Tiddy's evidence as to the factual events of that history. The interpretation of that history is clearly given from an LGA perspective however. I consider that Ms Tiddy has undoubted considerable industrial knowledge and experience in the local government area. I also accept that the manner in which she has acquired this knowledge and experience from a combination of first-hand participation and the passing on of knowledge from her predecessors, is in fact the standard way in which industrial officers of both union and employer organisations, of necessity, acquire their knowledge of a particular award/industry. Indeed it is the manner in which I acquired my knowledge, before coming to this Commission, of the history of a variety of awards/ agreements going as far back as 1911 which also involved research of historical documentation and records. Ms Tiddy's knowledge and expertise considerably exceeds that of Mr Hutchinson, as is to be expected given his much shorter length of experience. That is not meant as any reflection on Mr Hutchinson, it is simply a statement of the reality of a comparison between their respective years of service and experience with their respective organisations. 245Whilst there is no doubt, applying the authorities which I am obliged to follow, that the history of the Public Relations Officer and its definition as inserted in the 1969 Award as noted in the Background and Chronology above and its subsequent evolution is relevant and must be considered, also of relevance is the reasonably significant structural change that was subsequently made to the 1992 Award in consolidating the 5 local government awards previously in operation. 246In the 1992 Award the definition of 'Public Relations Officer' was not carried over into the new Award, instead 'Public Relations' was listed as a "function" under the provisions extending a 35 hour week to a number of functions under Clause 16. The submissions made by Mr Barnes as to this change are very relevant to consider. 247Whilst Ms Tiddy argues that 'Public Relations' must be looked at in the light of its history, narrow and focussed as that is, considering the function of 'public relations' results in a somewhat broader concept, in my view, than the former definition of a classification. Not to mention the considerable changes that have occurred in the intervening years (particularly in the Gosford local government area), whether one takes 1969 or 1992 as the starting point. 248It is also relevant that, notwithstanding the passages cited above, the Full Bench in Zoological Parks Board also went on to observe: 53 We do not consider that the history of the disputed clause prior to the making of the agreement assists in its interpretation, in this regard, as the earlier provisions arise in an entirely different context. 249That is a similar position in relation to my consideration of this matter. 250Even if it accepted that the thrust of 'public relations' in the context of the relevant Award is restricted to "tourism" then that is still relevant to the consideration of Mr Stuart's position of Marketing Officer - Leisure and Lifestyle. Whilst Council have attempted to downplay the significance of tourism in Mr Stuart's position (indeed almost discount it entirely as being particularly relevant) especially through the evidence of Mr Moore, I note that the job description for the position indicates that one of the essential qualifications/experience can be that of 'tourism'. That would mean that an occupant of that position could have no marketing qualifications/experience at all and only that of tourism and still successfully meet the requisite essential criteria for the position. 251It is patently clear, on any consideration of the evidence, that whilst the primary target audience of Mr Stuarts's position are the residents of the Gosford local government area there is no doubt whatsoever that the secondary, and also very important target are those persons living outside that area who are visiting the area (and the venues and facilities covered by the LLSU) and may well be classified as tourists, whether that is a tourist from Newcastle NSW, or Newcastle UK! 252In considering the job description for the Marketing Officer - Leisure and Lifestyle whilst there are undoubtedly 'public relations' components that must be carried out, particularly in relation to the media involvement, I consider that for this position to come under the function of 'public relations' and therefore be entitled to a 35 hour week, the majority of the work performed would have to come under 'public relations'. 253It is a fairly long established industrial principle that where there are two or more possible areas of award coverage for an employee, the determining factor is the "major and substantial" test, i.e. how is the majority of the employee's time spent. This principle has equally been applied in the past to situations within a workplace where an employee was carrying out the functions of two or more different classifications, particularly prior to the advent of the broad banding of classifications and the growth of whole of industry awards. Another example is in the case of a possible entitlement to a allowance paid on a weekly basis rather than per hour/shift where it would have to be shown that the majority of the week was spent engaged in the activity attracting the allowance rather than merely one or two shifts etc. 254Sheldon J, succinctly explained this "major and substantial" test in Ware v O'Donnell Griffin (Television Services) Pty Limited (1971) AR 18 at p.19 as follows: "....This principle is almost as old as industrial arbitration and it makes a practical approach to determining the application of awards where duties are of a mixed character and contain elements which if taken alone would be covered by more than one award. This is not the appropriate occasion on which to discuss the method by which this test should be applied except to say that it is not merely a matter of quantifying the time spent on various elements of work performed by a complainant: the quality of the different types of work done is also a relevant consideration..." 255Having carefully considered all of the evidence in relation to Mr Stuart's position, his job description, and the work he carries out, I do not consider that he spends the majority of his time carrying out the function of public relations. However it is certainly an important part of his work, even when considered through the historical prism pressed on behalf of Council. 256The items that Mr Stuart highlighted in oral evidence in his job description involving marketing, promotion, sponsorships, in my view involve work that goes way beyond mere 'public relations' as I indicated above. Indeed frankly I consider that Mr Stuart downgrades his position and sells himself short (to use an appropriate marketing analogy) by pressing the claim he does. His role is far more than a mere 'public relations' one. 257Council has relied on the fact that as the position of Marketing Officer - Leisure and Lifestyle is located in its structure within the LLSU, which in turn is within 'community services' and that community services employees (with the exception of the Professional/Specialist Band 3) receive a 38 hour week and that consequently Mr Stuart is also on a 38 hour week. Yet the evidence (including evidence from Mr Moore and Mr Clarke) established that he himself has no direct face to face role in the delivery of any of the community services within the umbrella of the LLSU. 258To an extent that is as simplistic an argument as that advanced by the USU. 259As the Commission observed on more than one occasion during proceedings, in one sense all of the various services that a council provides to its local community could be classified as a 'community service'. That is essentially what a council is about, to also put it simplistically. For example rubbish/waste collection is equally the provision of a service to the community, as is the provision of a library, or a community centre, or a childcare service, or a pool, or an art gallery, or a theatre complex, or a lifeguard patrolled beach, or a park, or recreation facilities, and therefore could equally be viewed as a "community service" in terms of the Award. Indeed Ms Tiddy's evidence was that what was a considered a 'community service' could vary from council to council depending on a particular council's determination. 260However, It is fairly obvious that neither Mr Stuart, nor the USU through Mr Hutchinson, investigated, in any way , the basis upon which those 5 positions relied upon to underpin Mr Stewart's Grievance were in receipt of a 35 hour week rather than a 38 hour week. Indeed, initially Mr Stuart relied on the function of 'Administration' under Clause 16 A (II) to ground his Grievance and only subsequently, (somewhere during the stage of filing evidence) did the basis of that claim then move to one be of 'Public Relations', again under Clause 16 A(II). 261I have very carefully considered the evidence before the Commission relating to those 5 positions which comes from the job descriptions as filed. It is the evaluation of each of those positions that has resulted in their respective placement on Council's salary system, and as a consequence of that, the application of a 35 hour week. 262As far as the Sports Liaison Officer is concerned, it is abundantly clear to me, after consideration of the job description, that the functions carried out by this position are administrative in nature. There can be no question whatsoever about that. The position is concerned with the management of bookings (and all that that involves in an administrative sense), and maintenance of a range of records, etc., related to the booking and hiring of facilities. The management and coordination functions as listed in the first four bullet points, as well as the maintenance of databases and responsibility for writing invoices and correspondence are clearly administrative functions and thus the classification of the position under 'Administration' in Clause 16 A (II) of the Award is completely justified. 263The job descriptions for the positions of Active Recreation Officer, and Open Space and Leisure Officer provide that a degree qualification is an essential requisite and having carefully considered the key responsibilities in those job descriptions that seems entirely appropriate. I also consider that the key responsibilities set out in the job descriptions are also quite clearly not only more onerous than those of the Marketing Officer - Leisure and Lifestyle, Mr Stuart's position, but in my view, involve a greater degree of responsibility and autonomy. This is particularly so in the case of the Active Recreation Officer and almost all of the key responsibilities of that position could be listed as examples to support this view. In the case of the Open Space and Leisure Officer the case is not as compelling, but still, on a comparison with Marketing Officer - Leisure and Lifestyle, that position comes out well ahead. 264The Marketing Officer - Communications job description also provides that a degree qualification is a requisite. The key responsibilities of the job description clearly support this and are also more onerous and involve the exercise of a greater degree of responsibility than those Marketing Officer -- Leisure and Lifestyle. However, also quite clearly, if the submissions of the USU were accepted, then 'public relations' is a fairly fundamental aspect of this position even regardless of its evaluation result and indeed on that basis may well pass the 'major and substantial' test. 265The case for the Marketing Officer - Arts and Culture is however far and away the Council's weakest link in any comparison with the Marketing Officer - Leisure and Lifestyle Arts and Culture. The job description indicates that a degree qualification is an essential requisite. Looking at the key responsibilities listed in the position description it is difficult to see why a degree qualification would be an essential requisite for this position and yet such a degree qualification not be an essential requisite for Mr Stuart's position, particularly when the key responsibilities are considered and compared against this background. 266I also consider that it is relevant that there is a significant quantitative difference between the potential of the markets that are the target of the marketing/promotional activities of the two positions. I would suggest that the numbers of both local residents and visitors from outside the Gosford local government area and tourists, would be quite significantly higher in the case of the venues/facilities covered by Mr Stuart's position than that of the Marketing Officer - Arts and Culture. I also consider that this could have reasonably significant implications for the nature and range of marketing/promotional activities required to support those respective venues/facilities. 267Having also carefully considered the key responsibilities of these two positions I just do not accept that the position of Marketing Officer - Arts and Culture is necessarily more onerous than that of the Marketing Officer - Leisure and Lifestyle. Indeed the opposite applies in my view. 268I note that from the documentation attached to Mr Stuart's witness statement (Exhibit 5-AS8), that at some early stage following the restructure and in the evaluation process, the 'Selection Criteria' for the position listed as an 'Essential Criteria' - " Degree qualification in marketing, leisure or tourism OR demonstrated equivalent qualifications and relevant extensive experience in a similar role". However on the second page of that document it indicates that - "Applications close at 5 pm on xxxxxxxxxxxxx2008". This would suggest that this was an earlier version of the selection criteria to that which appeared in the final job description position and as accepted by Mr Stuart where the essential qualification required had been downgraded to a TAFE Certificate IV or equivalent (but still in the same three fields). 269I also note from documentation attached to Mr Clarke's witness statement (Exhibit 15 -N) that in relation to what appears to be an earlier draft of a Job Description for the position dated 24 September 2008 the following was indicated in relation to 'Qualifications and Experience': Thorough knowledge of one function and concepts associated with a specialist area OR a functional position requiring the application of highly specialised knowledge regarded as an internal expert in a single discipline. Both require a wide education probably TAFE Certificate level 4 or diploma level, or semi-professional qualification, together with considerable personal experience. It would be expected that the person would have four, but less than seven year's experience. 270That would suggest to me that there it was not necessarily clear cut that was some equivocation about the level of qualification deemed to be essential to the newly evaluated position. 271Further documentation attached to Mr Clarke's witness statement (Exhibit 15-L) shows that the position was evaluated at "1541.07 points" with a Band/Level of - "2//3 or 3/2" - this was as at the 15/01/2008. 272I also note that when comparing the evaluations of the initial Marketing Officer position (Band/Level 2/1 - 296.87 points) held by Mr Stuart when he joined Council (Exhibit 15-F) in 2006, which was evaluated using Version 19 of the OOsoft/Wyatt Job Evaluation system referred to by Ms Tiddy, with the re-evaluated position (using Version 20), that there was significant upgrading of the 8 listed skills from 'Solid Working', to now requiring 10 listed skills at 'Comprehensive' (with no listing previously at the 'Comprehensive' level) and a significant upgrading from 34 listed skills at the 'Basic' level, to now requiring 17 listed skills at the 'Solid Working Knowledge' level and 21 listed skills at the 'Basic' level. These seem to me to be quite significant changes when the actual named skills are considered and compared. 273I accept that there is no evidence before me as the nature of those skills, their inherent requirements and the work/tasks actually required to be performed etc or the value assigned to those skills. However the issues raised above, based on what documentation is before the Commission does, in my view, warrant further consideration by Council, especially as to the level of qualification essential for the position. 274What should also be kept in mind is that Mr Stuart does have extensive years of experience (more than it appears was considered necessary in the Job Description referred to above) in the relevant fields and holds a degree qualification and that Council has had the benefit of this expertise, education and experience since he commenced in the position . It certainly seems to me, on the evidence before the Commission, that he has brought more to bear to the position than was required or could reasonably be expected. 275If indeed the position had ultimately been evaluated at 3/2 rather than 2/3 then Mr Stuart would have moved into the same band/level as both the Marketing Officer - Communications, and the Marketing Officer - Arts and Culture, that being the Professional/Specialist Band 3, Level 2 and as a consequence he would have been in receipt of a 35 hour week. Such an evaluation would have had no implications whatsoever for other classifications in the LLSU. 276There was no evidence before me as to the detail of Council's salary system, the points applicable to each band/level and the respective cut-off points and the requisite evaluation detail. Thus I am unable to carry out the type of consideration that I brought to bear in settlement of the dispute between the USU and Gilgandra Shire Council in New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Gilgandra Shire Council [2010] NSWIRComm 1053. 277Regardless of the ultimate outcome of this dispute I can see no implications whatsoever arising for the other classifications within LLSU, and particularly those other classifications that were referred to in Mr Burling's memorandum of October 2009. Whilst there was no evidence as to the work performed by those classifications, and no job descriptions in evidence, the title of each classification speaks for itself. They are supervisors , supervising the very community service that is being provided by the various venues/facilities within the LLSU, thus bringing them squarely within 'community services'. The only way that any one of those classifications could be considered as coming within any of the criteria for a 35 hour week as provided for in the Award would be by way of their evaluation as coming within the Professional/Specialist Band 3 Level 2 of Community Services. 278I should also note that there was also no evidence before the Commission to support the assertion that the granting of a 35 hour week to Mr Stuart would have some effect of requiring 3 hours work to be taken up by other employees. That is in my view a quite ludicrous proposition and not supported by the evidence of what Mr Stuart's responsibilities are, the autonomy with which he operates and the lack of any obvious direct interaction with others within the LLSU (apart from the Coordinator). 279I have come to the conclusion that the work performed in the position held by Mr Stuart of Marketing Officer - Leisure and Lifestyle does not fall under the 'Public Relations' function of Clause 16A(II) of the Award as it does not satisfy the 'major and substantial' test enunciated by Sheldon J in Ware v O'Donnell Griffin . Therefore the application for the orders made by the USU must fail. 280However that is not the end of the matter, as I am of the very firm view that the position of Marketing Officer - Leisure and Lifestyle should be re-evaluated as on the limited evidence before me it would appear that it should more properly sit within the Professional/Specialist Band Level 3 and as a result a 35 hour week should apply. I note that in Zoological Parks Board the Full Bench went on to observe as follows: 56 We consider that both parties were in error in arguing the case on an all or nothing basis. We consider that the interpretation to be given to the relevant provision is one that is not quite as wide as that provided by the Deputy President's interpretation. On this point, we note that what a court considers to be the correct interpretation is not limited to the particular contentions put by the parties. This conclusion is usefully set out in Pearce and Geddes, Statutory Interpretation in Australia , 5th ed, Butterworths, Sydney 2001 at pp. 4-5, where the learned authors state: McGarvie J in Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 at 547 pointed out that responsibility rests with the court for the interpretation to be placed on an enactment. He cited Lord Wilberforce in Saif Ali v Sydney Mitchell & Co (A Firm) [1980] AC 198 at 212: 'Judges are more than mere selectors between rival views - they are entitled to and do think for themselves'. The fact that counsel have not supported a particular interpretation of legislation does not, indeed must not, prevent a court from adopting that interpretation if the court considers the interpretation to be correct. The approach of McGarvie J was adopted in Whelpton v Kur-Ring-Gai Council (1994) LGERA 120 at 126 (emphasis added). See also Gibson v Western Sydney Area Health Service [2003] NSWIRComm 465 at [32]. 281I appreciate that I am not adopting a different interpretation to the relevant Award provision to that argued by either side, as was the case above. Essentially what I am saying to the parties is that a different approach altogether should be applied to the issue in dispute and to the resolution of the Grievance of Mr Stuart. 282The Commission therefore determines as follows: 1.The application for orders is dismissed. 2.A very strong recommendation is issued to the parties, and in particular Gosford City Council, that a re-evaluation of the position of Marketing Officer - Leisure and Lifestyle be conducted as a matter of priority having regard to the observations made in this decision. 3.Any dispute about such re-evaluation should be the subject of a separate notification pursuant to s.130 if the assistance of the Commission is sought by either party. 283This matter is concluded. Elizabeth Bishop Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2011