Industrial Relations Commission New South Wales Medium Neutral Citation: Local Government Engineers' Association of New South Wales and Fairfield City Council [2013] NSWIRComm 6 Hearing dates: 4 - 5, 7 December 2012 Decision date: 12 February 2013 Jurisdiction: Industrial Relations Commission Before: Staff J; D Gibson; M O'Connell Decision: Engineering professionals the subject of the dispute are entitled to receive the civil liability allowance as found in clause 14(xiv) of the Local Government (State) Award 2010 Catchwords: INDUSTRIAL DISPUTE - whether skills and responsibility for which civil liability allowance is payable under clause 14(xiv) of the Local Government (State) Award 2010 have been specifically and demonstrably paid for in the salary system for engineers by Fairfield City Council - whether employees the subject of the dispute are applying engineering principles in the management of Council's assets pursuant to the Civil Liability Act 2002 - held - employees the subject of the dispute are entitled to receive the civil liability allowance pursuant to the Local Government (State) Award 2010 Legislation Cited: Civil Liability Act 2002 Local Government Amendment (Legal Status) Act 2008 (repealed) Category: Principal judgment Parties: Local Government Engineers' Association of New South Wales (Applicant) Fairfield City Council (Respondent) Representation: Mr I Taylor SC with Mr R McClelland of counsel (Applicant) Mr RF Crow of counsel (Respondent) Local Government Engineers' Association of New South Wales (Applicant) Matthews Folbigg Pty Ltd (Respondent) File Number(s): IRC 85 of 2011 DECISION 1This matter comes before the Local Government (State) Industrial Committee ("the Committee") pursuant to a notification of a dispute on 1 February 2011 by the Local Government Engineers' Association of New South Wales ("LGEA"). 2The dispute was stood over until September 2011 and subsequently to May 2012, to allow the parties, at their request, to engage in discussions and exchange correspondence in an attempt to resolve the dispute. 3Attempts by the Commission to assist the parties in resolving the dispute were unsuccessful. The parties therefore requested that the matter be determined in arbitration by the Committee. 4The issue in the dispute as characterised by the LGEA is the failure by Fairfield City Council ("the Council") to pay a civil liability allowance of 3.5 per cent to engineering professionals employed by the Council. Background 5The Civil Liability Act 2002 ("the 2002 Act") is intended to give public and other authorities certain protections and defences against civil liability claims if they comply with the standards required by the 2002 Act in exercising their functions and undertaking their responsibilities. 6In October 2005, the LGEA filed a work value case in the Commission in respect of changes to the responsibilities of engineering professionals arising out of the 2002 Act: IRC 5539 of 2005. 7On 11 December 2006, after chairing conciliation conferences of the parties, Grayson DP recommended the application be resolved by varying the Local Government (State) Award 2004 ("the 2004 Award") to include a new civil liability allowance of 3.5 per cent. 8On 15 December 2006, the 2004 Award was varied by the inclusion of a new cl 13(xiii) Civil Liability - Engineering Professionals, which provided: (a) Except where such responsibility and the exercise of such skills have been specifically and demonstrably paid for in accordance with the salary system established by the council, an employee who is an engineering professional: (1) is directly involved in applying engineering principles to the Asset Management of council assets, including the planning for, designing, maintaining, replacing, rehabilitating or disposing of; and (2) such assets may give rise to liability under the Civil Liability Act 2002, shall be paid an allowance in addition to the weekly rate, as set out in Table 2 of Part B. (b) The provision in (a) above shall not be construed so as to require the reduction or alteration of more advantageous benefits or conditions under any arrangements existing at the date the award was varied to give effect to this clause. 9The relevant civil liability clause now appears as cl 14(xiv) of the Local Government (State) Award 2010 ("the 2010 Award"). Council's position 10The Council's contention that a review of the Engineering Department that was completed in or around August 2007 as part of an engineering realignment meant that the exception in cl 14(xiv) applied. In other words, the Council had incorporated the civil liability allowance into the salary system for engineers on and from August 2007. 11The LGEA contended that the Council had the onus of satisfying the Committee that it had "specifically and demonstrably" complied with its obligations under cl 14(xiv) of the 2010 Award. 12The Council acknowledged that 15 of 17 employees, the subject of the LGEA's claim, were engineering professionals directly involved in applying engineering principles to the management of the Council's assets. The Council submitted that 2 employees, Mr Joseph Bazergy, who holds the position of Senior Development Engineer and Mr Thomas Tu, who holds the position of Graduate Engineer, were not "directly involved in applying engineering principles to the Asset Management of the Council's assets, including the planning for, designing, maintaining, replacing, rehabilitating, or disposing of such assets". 13The Council contended that the LGEA had the onus of establishing the entitlements of these employees. The LGEA did not press a claim for Mr Daniele Favotto, who held the position of Place Manager - Smithfield/Wetherill Park. 14It was acknowledged by the parties that if the LGEA was successful, a question of law may arise in respect of whether employees of the Council were entitled to be paid the civil liability allowance between 15 December 2006 and 20 November 2008, being the date of the commencement of the Local Government Amendment (Legal Status) Act 2008 (repealed). Prior to that date, the Council contends was a constitutional corporation and its employment was regulated by a notional agreement preserving the State Award, which did not provide for a civil liability allowance. The Council's rights were reserved to argue this issue at a later time if necessary. 15Mr I Taylor SC appeared with Mr R McClelland of counsel, for the LGEA. Mr RF Crow of counsel appeared for the Council. Questions for determination 16Mr Crow in written submissions, outlined four issues between the parties, being: (1) whether the skills and responsibility for which civil liability allowance is payable, under clause 14(xiv) of the Local Government Award 2010 and its predecessors, have been specifically and demonstrably paid for in the salary system of Council, within the meaning of that subclause? If the answer to question (1) is no, (2) Whether all the employees of Council for whom LGEA claims an entitlement to the CLA are applying engineering principles in the management of Council's assets? (3) To what amounts of backpay are those employees entitled who are applying engineering principles in the management of Council's assets? (4) What remedy is appropriate? 17Mr Taylor acknowledged that these were the issues requiring determination by the Committee. LGEA's evidence 18Mr Taylor read statements of Mr Bede Payne, who was employed as an organiser with the Association of Professional Engineers, Scientists and Managers Australia ("APESMA"). He was previously employed by the LGEA in 2009; Mr Gordon Michael Brock, the LGEA's Senior Industrial Officer; two statements of Ms Alycia Vasilangos, Industrial Officer, LGEA dated 6 August 2012 and 19 October 2012; Ms Sandra Morthen, Organiser, United Services Union ("USU"); Ms Leonie Gray, Senior Professional Engineer with the Council; Mr Joseph Bazergy, Senior Development Engineer with the Council; and Ms Nona Ruddell, Senior Professional Engineer with the Council. 19Each of the LGEA's witnesses was required for cross-examination with the exception of Mr Payne, Mr Brock and Mr Bazergy. In respect of Mr Bazergy, he was unavailable for cross-examination due to a death in his family. An agreement was reached between counsel to admit his evidence, together with additional agreed facts regarding his evidence, which we shall deal with in due course. 20Relevantly, Mr Taylor also provided copies of the following: (i) copy of the proposed direction that the LGEA was seeking, together with a schedule of 17 officers affected by the claim; (ii) a schedule of engineering professionals setting out their positions; (iii) Council's Employee Self Service Kiosk ("ESSKi") Pay Record; (iv) date of commencement, work value points change, salary grade, annual salary and percentage increase as a result of the 2007 re-evaluation; (v) Council's job descriptions for Senior Development Engineer; (vi) transcript of proceedings before the Committee in IRC 1606 of 2009 dated 2 November 2009 relating to a dispute between the LGEA and Rockdale City Council re failure to pay the civil liability allowance; (vii) Recommendation made by the Committee on 2 November 2009; (viii) a copy of the application, together with the amended application in IRC 5539 of 2005; (viv) transcript of proceedings before Grayson DP on 23 August 2006, 11 December 2006, 15 December 2006 in IRC 5539 of 2005, including a report to the LGEA Committee of Management which was marked "MFI 1" in those proceedings. 21In summary, the LGEA's evidence was that during negotiations in relation to what became the 2004 Award, a claim was made for the payment of additional increases in rates of pay for those engineering professionals whose work value had increased as a response to the introduction of the Act. The LGEA contended that the value of the work being performed by their members had significantly increased with the Act, placing primary responsibility for assisting councils to defend or avoid civil liability claims on professional engineers through both their work in deciding asset management priorities and ensuring that Council resources were deployed in accordance with those priorities. 22The LGEA did not argue that engineering professionals were not previously responsible for the management of assets, but rather that the introduction of the Act, by transforming the way in which personal injury damages were awarded, had increased the importance or the value of that work to councils. 23Mr Brock's evidence was that in broad terms, the LGEA's claim before the Commission was that the introduction of the Act dramatically transformed the way in which personal injury damages were awarded. It enabled councils, and other road authorities, to defend themselves against claims by demonstrating that they had appropriately allocated their limited resources and met appropriate standards. 24Section 42 of the Act sets out the factors that a court must take into account when considering a case brought against a council. It is in the following terms: 42 Principles concerning resources, responsibilities etc of public or other authorities The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies: (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate. 25The LGEA argued that the factors set out in s 42 of the Act, largely involved a court taking account of the professional judgement and exercise of skill of engineering professionals and that the introduction of the Act placed primary responsibility for assisting councils to defend or avoid civil liability claims onto professional engineers through their work in deciding asset management priorities and ensuring that council resources were deployed in accordance with those priorities. 26As has clearly been observed, the claim was successful with Grayson DP recommending that a new civil liability allowance of 3.5 per cent be paid to engineering professionals. The 2004 Award was varied from 15 December 2006 by the inclusion of cl 13(xiii). 27In February 2007, the LGEA issued a document entitled "Civil Liability Allowance Implementation Guidelines" to councils. It became clear that it would be necessary to evaluate the particular circumstances of each council on a case-by-case basis to determine whether the civil liability allowance should be applied to its engineers. Eligibility was dependent upon the council(s) structure, salary system, qualifications and work performed by individuals. 28In October 2007, as a result of the slow progress in implementing the civil liability allowance, the LGEA, together with the Local Government and Shires Association ("LGSA") issued a joint statement which endeavoured to further clarify the type of work that was designed to be captured by the civil liability allowance and the qualification requirements for the payment of the civil liability allowance. The joint statement gave examples of functional and operational work that would attract the payment of the civil liability allowance. 29The joint statement noted that the Local Government Job Evaluation System ("LGJES") commonly known as the Wyatt system, was last reviewed in 2000 when there was no specific consideration given to the impact and operation of the Act. Therefore, as the evaluation questionnaire did not include provisions for identifying the specialist knowledge and accountabilities involved, the questionnaire would not adequately measure and allocate points to changes in work undertaken in response to the introduction of the Act. 30It also noted that the engineering professionals who had been appointed to positions at councils on a market premium that was paid for all purposes since the Act was introduced may be able to absorb the payment of the civil liability allowance. The payment of the civil liability allowance could be avoided where the employee was paid a rate that was at least 3.5 per cent above the rate of pay for the position under Council's salary system. It was further noted that where an employee was in receipt of a market premium, a council should identify that the previous civil liability allowance would otherwise apply to the position in the absence of the market premium. 31During the course of 2004, the Council introduced a new salary system that applied to members of the LGEA, which gave rise to complaints from some members who felt their position descriptions ("PDs") under the new salary structure did not do justice to the actual responsibilities and duties performed by the employees. Appeals were lodged by two employees in respect of their positions of professional engineer being assessed at Grade 5 on the salary scale. 32In July 2005, those that had lodged appeals were advised by the Council that the resizing of positions and rewriting of PDs would be considered by the Job Resizing/Evaluation Panel ("JEP"). The engineers were advised to work with the JEP, together with their supervisor/manager to rewrite the PDs. 33The Council subsequently decided to conduct a broader review of PDs for employees in the Engineering Services Division of the Council. On 21 November 2006, employees were advised of proposed new grades and structure in the Engineering Services Division. 34On 21 February 2007, employees were advised that a workplace reform proposal would be presented to the Workplace Reform Committee ("WRC") in respect of the Engineering Services Business realignment. 35On 8 June 2007, the Council confirmed that PDs had been updated and would be evaluated by a JEP, which would consist of a human resources representative, a union representative and two management representatives. All persons on the JEPs were to be from outside the Engineering Services Branch. 36On 20 August 2007, the Council advised that JEPs had evaluated the job descriptions and given them a point score under the Council's Job Evaluation System (Mercer CED Job Evaluation System ("MJES")). The recommendations of the JEPs were forwarded to Human Resources who mapped them to a grade. A report on each position was then forwarded to the Executive Manager of the Council who in turn discussed the positions and grades with the Executive Management Team who made the final decision. An appeal process was available to any employee who wished to have the grades reviewed. Professional engineer positions remained at Grade 5 which resulted in appeals being lodged. 37On 11 October 2007, professional engineers were advised that they had been successful in their appeal and that these and other professional engineering positions would be elevated to Grade 6. This resulted in an increase in salary of $195 per annum that equated to a 0.34 per cent increase, for Ms Gray, one of the professional engineers who had appealed. The regrading was effective from 27 August 2007. There are six professional engineer positions at the Council, all of which were regraded to Grade 6. 38Ms Vasilangos' evidence was that no other engineering professional received a pay increase consequent upon the release of the results of the Engineering Services Realignment ("ESR"). She said that she was not aware of any other period where salaries paid to engineering professionals increased in a manner that could be said to be referable to the civil liability allowance, nor had the LGEA received any documentation that it considered established that the civil liability had ever been paid. 39Minutes of a Consultative Committee Meeting held on 20 November 2007 noted that "investigation of the civil liability allowance application within Fairfield City Council is in progress" and that "position descriptions are being reviewed to determine whether Fairfield City Council's indoor salary system already recognises relevant responsibilities for asset management". 40In the Minutes of the Consultative Committee Meeting of 19 February 2008, Ms Alison Lowth, the Human Resources Business Partner for the Council noted "Council will not be applying the civil liability allowance". Ms Lowth further observed that all relevant PDs were reviewed in terms of the work value, skills, responsibilities and accountabilities that were required for each position. This review identified that all positions affected have been evaluated under MJES since the introduction of the 2002 Act. This Job Evaluation System ("JES") recognised a position's requirements for knowledge, skills, responsibility and accountability, which enabled Council to adequately measure work undertaken in regard to the 2002 Act. She went on to observe that "in determining whether to apply this civil liability allowance, Council also took into account that the salary system allowed for employees to progress each year thereafter". 41The Minutes noted a report by Ms Nona Ruddell, a senior professional engineer who stated LGEA members: "do not feel that enough evidence has been provided from Human Resources to show how the above [reference to payment of the allowance] has been incorporated in all of the PDs of the relevant staff eligible for the allowance, which is the Council's basis for not paying the allowance. LGEA members would like investigations to continue further, as it believes that the eligible engineering staff are not already remunerated for the increased responsibility the CL Act has created." 42On 18 March 2008, the Council confirmed its decision not to apply the civil liability allowance. The LGEA continued to disagree with Council's decision and continued to agitate the matter with Council. 43On 1 February 2011, the LGEA notified a dispute with the Council. During discussions with the LGEA the Council continued to contend that "the Job Evaluation System found that [the Act requirements] in the [professional engineer] role meant an increase in the 'breadth' sub factor". This was a reference to one of the criteria used in the MJES to assess positions. This resulted in an increase in the work value total from 258 points to 291 points, or a movement from Grade 5 to Grade 6 in Council's salary system. Ms Gray 44Ms Leonie Gray has held the position of a senior professional engineer with the Council since January 2008. She stated that during the course of 2004, the Council introduced a new salary system. She and other professional engineers were concerned in respect to the proposed grading of the position of "professional engineer" and lodged an unsuccessful appeal in respect of the grading. She stated that the appeal against the initial grading of the position of "professional engineer" did not address issues concerning the application of engineering principles to the Asset Management of Council assets, nor was that matter discussed in a meeting that Ms Gray had with Mr David Niven, the Manager, Engineering Services on 13 October 2005 in respect of the appeal. Ms Gray stated that the matters discussed at the meeting with Mr Niven related to the need to revise the PDs of virtually all employees in the Engineering Services Division of the Council to preserve relativities within that Division and with employees engaged in other areas of the Council. 45Ms Gray was advised by email dated 20 August 2007 that the appeal in respect of the grading of professional engineers had been unsuccessful and the grading was to remain at Grade 5. Ms Gray, together with five other professional engineers, lodged a further appeal in respect of the grading of the position. 46Ms Gray's evidence was that her recollection was that the original position description ("PD") in respect of the position of professional engineers did not include a reference to skills and responsibilities associated with performing duties relevant to the civil liability allowance clause in the Award. 47On 29 May 2007, the following statement of skills and experience was included in the PD for professional engineers: "knowledge and experience in applying engineering principles and actively identifying and managing risks relating to the asset management of Council's assets including the planning for, designing, maintaining, replacing, rehabilitating or disposing of assets". Her evidence was that upon seeing the addition, she spoke to Mr Frost, who had assumed responsibility for the regradings from Mr Niven. She was informed the additional words were to enable the professional engineers to receive the civil liability allowance. However, she also stated that Mr Frost said that obtaining that outcome was not his intention but he thought it may assist the professional engineers' application for regrading. The finalisation of the second regrading appeal was delayed to enable the executive management team to consider the relativity of positions across the Council, including areas outside engineering services. 48On 11 October 2007, Ms Gray was advised that her appeal had been successful and that professional engineering positions would be increased from Grade 5 to Grade 6. This resulted in her salary being increased by $195, from $57,420 to $57,615. This represented less than 1/10th of the increase that would otherwise have been payable had the Council agreed to pay the civil liability allowance. 49Ms Gray's evidence was that in order for relativities across Council to be maintained, positions in areas outside engineering services were also regraded, including positions in the Environmental Standards Department, Building Surveyor, Development Planner and Environmental Health Officer. Ms Gray's understanding was that none of the positions in these areas involved the possession of skills and the application of engineering principles including the exercise of responsibilities and duties envisaged by the civil liability allowance. 50Ms Gray stated that the inclusion of the language from the civil liability clause did not result in professional engineers being regraded as part of the job realignment process. The regrading only occurred as a result of the appeal lodged by professional engineers and did not result in professional engineers receiving any substantial increase in recognition of civil liability skills, nor did the inclusion of the civil liability allowance clause result in the successful appeal. Ms Morthen 51Ms Sandra Morthen is currently employed as an organiser with the United Services Union. She was previously employed by the Council for approximately 16 years having commenced with it in 1994. Ms Morthen was requested to sit as a member of the Job Evaluation Panel ("JEP") in respect of the various engineering positions (the subject of this dispute) as it was considered that representatives of the LGEA may have a conflict of interest. Ms Morthen did not currently possess any documentary records of meetings of the JEPs which occurred in 2006 and 2007. She stated that she recalled that the PDs of some of the engineering professionals included a civil liability allowance clause that referred to the exercise of engineering principles in the management of the Council's assets. Her recollection was that no assessment was made of the impact of that civil liability allowance clause in terms of the calculation of points allocated to the positions under the Mercer Pay System. 52Her evidence was that the manual for the Mercer Pay System sets out the method of calculating points for the position subject to assessment. It was a substantial document running into some hundreds of pages. While the system was designed to allocate points for particular skills and attributes associated with a position, the manual was expressed in broad language that was rarely directly relevant to the specific skills, duties and responsibilities of employees of the Council including engineering professionals. Specifically, there was no category in the Mercer Pay System to precisely recognise the application of engineering skills and principles in the management of Council's assets. In her experience the Mercer Pay System was an unsatisfactory system to apply in respect of evaluating jobs of Local Government employees. 53Ms Morthen stated that she was well aware of the claim that had been made by the LGEA for the payment of the civil liability allowance under the Award. Accordingly, had this matter been raised in the JEPs that she attended in respect of engineering professions she stated she would have insisted that specific recognition be given to those skills, responsibilities and duties to ensure that payment was made to the relevant employees consistent with the civil liability allowance clause. She stated that the matter was not raised in the JEPs that she attended and there was no allocation of points identified in respect to those skills, responsibilities and duties contemplated by the civil liability allowance clause. Ms Ruddell 54Ms Nona Ruddell commenced employment with the Council in 2003 as a professional engineer. She is now employed as a senior professional engineer. Ms Ruddell was the "position expert" for the JEP that conducted an appeal in respect of the gradings of professional engineers. Her evidence was that she recalled that during the course of the meeting of the JEP there was general discussion of the PD for professional engineers dated 27 May 2007. That discussion included a brief reference to the various areas of knowledge, skills and experience listed in that PD as set out earlier. At no stage was there an effort to quantify Mercer points allocated in respect to any particular areas of knowledge, skills or experience, or to allocate a specific amount of pay in respect to any of those categories. 55Ms Ruddell stated that the main focus of the discussions in the JEP for the appeal was in respect of the advice role of professional engineers. This included the responsibility for providing advice on matters to various divisions and departments of the Council including in respect to engineering assessments, the Assets Branch, the City Outcomes Department and to individual ratepayers. She also recalled discussions in respect of the responsibility of professional engineers to provide advice in respect to flood mitigation and traffic management. 56Ms Ruddell further recalled that after the hearing of the appeal, Mr Frost advised her that the appeal may take a little time to resolve because there were questions of relativities to maintain between positions of professional engineers and comparable positions in other areas of the Council. Her evidence was that Mr Frost said if this was not done there were some people in other positions who may "cause a stir". Her understanding was that along with the regrading of the professional engineers' positions, there were several other positions in areas outside the engineering services, which were also regraded in order to preserve relativities. This was despite the fact that those other positions do not involve the application of skills and responsibilities envisaged by the civil liability allowance clause. 57During oral evidence, Ms Ruddell said that she was aware of the duties and responsibilities undertaken by Mr Thomas Tu, a graduate engineer employed by the Council. Her evidence was that he undertook drainage design, which included checking the capacity of systems, and doing public risk assessments for these designs as they were uncommon and unusual. Her evidence was that he acts as the design engineer when the work has gone to construction and as technical expert if questions arise. 58Ms Ruddell is currently overseeing five business drainage diagrams that Mr Tu is undertaking. She said that quite often there is an additional public risk that may be associated with carrying out drainage designs which requires additional public risk assessment in carrying out the work which sits on the ground, such as trip hazards and fall hazards. 59During cross-examination, Ms Ruddell said that she checked that Mr Tu had carried out the risk assessments properly. She also checks any design drawings and that everything is ready for construction. 60Ms Ruddell accepted that she attended the job evaluation meeting for approximately 5 to 10 minutes and then left. She was not aware of what the Panel members discussed after she left the meeting. Mr Bazergy 61Mr Taylor read a statement of Mr Joseph Bazergy who was not available, as we have earlier observed, for cross-examination due to a death of a family member. Counsel agreed to some additional facts regarding his evidence. 62Mr Bazergy is employed as the Senior Development Engineer with the Council. He has held this position since December 2010. He stated as part of his duties and responsibilities he is required to assess and approve stormwater drainage systems within private land and in Council's road reserves associated with development sites. The drainage system on private land that he is required to approve is invariably connected to Council's assets. In some cases the councils' stormwater drainage system is a substantial distance away from the development site and the councils' system needs to be extended within the council road to provide an adequate connection to private developments. This involves extending Council's drainage pipe and pit system under the kerb and gutter or road pavement. These systems often become council assets. 63Mr Bazergy said that his duties include making an assessment as to what connections are required to the councils' drainage systems. He stated that it may also be necessary to require the installation of stormwater pits to take up turbulence before water flows into council assets. 64He said that he was also required to assess and approve the relocation/augmentation of the Council's drainage systems within private land associated with development. In that respect, a development may require the relocation or supplementation of the Council's drainage pipes that exist within private land that is being developed. In order to give approval for that to occur, he is required to consider engineering plans and analysis regarding the hydraulic capacity for any proposed modifications. This may involve making an assessment of pipe size, pipe grade, number and types of pits, proposed angle of change of directions and the location of those pipes and pits. 65It was agreed that this work was required to be done by Mr Bazergy infrequently. 66He is also required to assess the impact of redirecting stormwater flows into Council's stormwater drainage systems that may be associated with developments where drainage with the natural fall of the land is not available. In addition, he is required to ensure Council's existing stormwater drainage systems are not compromised as a result of development. Mr Bazergy is also required to assess flood studies and potential flood impacts for developments affected by flooding and overland flow. His duties include applying the principles of Revised Flood Plain Management Manual to developments which require an assessment to be made as to whether there will be an alteration in flood flow on the flood plain. If this issue is not properly managed it could result in a risk to safety as well as property damage. He is also required to assess and approve access driveways for developments. 67It was further agreed that Mr Bazergy mainly approves private development applications and in that role has to assess how those applications interact with Council's stormwater systems including kerb and guttering. He is not designated as the manger of any Council assets by his PD or otherwise, but has the authority to make decisions about Council's assets, subject to signoff by his manager. 68It was also agreed that the assessments of the capacity of Council's stormwater systems to carry any increase in stormwater runoff arising from a development is required infrequently. Council's evidence 69Mr Crow read statements of Mr Stephen Leon Frost, who was formerly employed as Manager, Engineering Services, by the Council; Alison Lowth, Human Resources Project Officer with the Council until her resignation in May 2012 dated 3 September 2012; Deborah Ann Sandars, Executive Manager with the Council and two statements of Ms Liliana Del Carmen Sanchez, Acting Human Resources Co-ordinator with the Council dated 4 September 2013 and 13 November 2013. 70Mr Crow tendered a document headed "Summary of Each Position". This document sets out each of the positions affected by the dispute including whether the role was new or not, the date it was established, points awarded by the Mercer Review, any grade change and any percentage increase in salary. This document was based on evidence given by Ms Sanchez and Ms Lowth and was in response to a document produced by the LGEA. Mr Crow also tendered a salary schedule for Mr Lungu. Mr Frost 71Mr Stephen Leon Frost was the Manager of the Engineering Services Division of the Council in 2006 and 2007. He had the carriage of the engineering realignment. His evidence was that upon learning of the introduction of the civil liability allowance in December 2006, he included a civil liability allowance clause which paraphrased cl 14(xiv) of the 2010 Award in the relevant PDs. He conceded that the initial driver of the realignment process which properly sized all the positions through the MJES was to ensure the work value was properly reflected and to achieve the following objectives: (a) put in place a structure and framework that would be the basis of creating new PDs that reflected the true value of the positions in the ES [Engineering Services]; (b) ensure that the new structure reflected the business needs of the ES at that point in time and in the future, especially in regards to staffing and resources; (c) develop a better career path through the structure; and (d) revise all the PDs and have them evaluated through the MJES evaluation system. 72He acknowledged that the civil liability allowance clause was not included in the PDs for Engineering Technician, Graduate Professional Engineer; Manager Engineering Services (Mr Frost's position) and Manager Special Projects. He stated that the positions of Senior Development Engineer in the Development Planning area, Place Manager in the Outcomes Department and the Asset Manager Civil & Built position in the City Services Department were not part of the ESR. Nevertheless, the occupant of the position of Asset Manager was a professional engineer and the position was also "resized". In reviewing this position in respect of the civil liability allowance clause, Mr Frost said, it did not need to be specifically included in the PD as the application of engineering principles in the asset management of the Council's assets is inherent in the role and reflected in the PD. As such, he said, those responsibilities would have been specifically considered in the relevant JEP. 73Mr Frost's evidence was that he attended each of the JEP meetings for all positions in the Engineering Services Division and was interviewed as the job expert. He was asked questions and participated in discussions with the representatives. As part of those discussions the inclusion of the civil liability allowance clause in the relevant PDs was specifically drawn to the relevant JEPs attention (as were the reasons for its inclusion) as something they should specifically consider in valuing/sizing the role. 74During cross-examination, Mr Frost agreed that in 2004 some engineers who held the position of professional engineer complained that Grade 5 was not an appropriate grade given their responsibilities and duties. This led to a JEP being established which could not complete its analysis until the PDs for the position of professional engineers were rewritten in accordance with the Mercer format. The Panel had identified that the PDs were lacking in various respects including the proper description of the professional engineer(s) role. One of the deficiencies identified was providing advice to internal customers which Mr Frost agreed was an important aspect of their role when it came to assessing the appropriate job value of the professional engineer(s) position. He agreed that this aspect should be emphasised to the JEP. This was an issue in 2004 and 2005, long before the civil liability allowance was considered. 75Mr Frost described a two-step process that occurred in reviewing the PDs for professional engineers. Firstly, the PDs were reviewed to fit the Mercer format and then again reviewed after the realignment was determined in the new structure. He agreed that the proposed structure advanced for professional engineers in 2006 was before the dispute in respect of the civil liability allowance. Mr Frost gave the following evidence: Q. And to the extent to which you included words that I think in your statement you have called CLA clause, words deals dealing with responsibility for assets, what you were doing was describing knowledge and experience that you expected certain positions to have in order to obtain that position which preceded the introduction of the civil liability allowance? A. Yes. Q. It arose from the 2002 Civil Liability Act that you had that knowledge and experience? A. It did, yes. Q. You didn't include those words in the position description in order to avoid council having to pay the civil liability allowance, did you, that wasn't the reason they were there? A. I included them because I wanted to make sure the position descriptions were complete and described all those responsibilities. Q. You weren't yourself or directed by anyone else to put them in in order to prevent or avoid the council having to pay that allowance? A. No. Q. It wasn't part of your thinking, was it? A. No. ... Q. And do you agree with me that none of these documents is there a reference to the need to realign employees because of the civil liability issues, nothing to that effect? A. No. Q. There's nothing in there to suggest that positions seems to be rewritten because of civil liability issues, is there? A. No. Q. It would be wrong to say, wouldn't it, that the job evaluation exercise which arose out of this realignment was undertaken specifically to address the civil liability responsibilities and skills? A. When the civil liabilities - as I understand, the clauses came to my attention that's when I wanted to build them into the - the processes were happening around about the same time. 76Mr Frost was taken to the job description for a professional engineer dated 29 May 2007. He agreed that the requirement for knowledge and experience in applying engineer principles was one of a number of dot points found under the heading "Knowledge Skills and Experience" and that there was no other part of the job description which referred to the role of applying engineering principles in respect of civil liability issues. He accepted that he would expect a person to have such knowledge, skills and experience if they wished to obtain the position of a professional engineer. 77Mr Frost's evidence was that he was not aware what the Committee ultimately took into account in determining the grade for a professional engineer because he was not present. This included any knowledge of what the JEP took into account when determining to increase the grading from Grade 5 to Grade 6. 78Mr Frost accepted that as a result of the regrading, there were some positions outside the Engineering Services Division that were also reassessed. 79Asked about the graduate engineer position, Mr Frost accepted that the occupant of that position applied engineering principles learnt at University in the workplace. He agreed that the Council needed to ensure stormwater drain systems were properly designed to avoid civil liability issues that might arise from flooding and the like. His evidence was that he was aware prior to his departure from the Council of the work undertaken by Mr Tu. Mr Frost also accepted that in respect of Mr Bazergy's role, his position required him to have specialist knowledge in Civil Engineering. 80Mr Frost agreed that there was nothing in the initial redrafted PDs that indicated there was a need to realign employees because of civil liability issues. That is, the job evaluations were not being undertaken specifically to address civil liability responsibilities. Ms Lowth and Ms Sanchez 81Ms Alison Lowth and Ms Carmen Sanchez were the Human Resources representatives on the JEPs for the positions affected by the realignment. Human Resources was not involved in the drafting of the PDs. However, once the PDs were developed and the consultation process was complete, Ms Lowth was involved in the job evaluation process. She explained that the JES expressed the worth of a position in "work value points" which are determined by reference to three primary factors common to all positions - expertise, judgment and accountability. These three primary factors are then broken down further into eight sub factors which more accurately describe the characteristics of the position. Sub factors have between three and seven rating levels. The outcome of the MJES is a profile of alphanumeric characters which equates to a points total which in turn relates to a grade in the Council's salary system. Each grade has a points range allocated to it based on the points to grade table. 82Ms Lowth's evidence was that each of the PDs for positions involved in applying engineering principles in the management of Council's assets had the following clause inserted into them: Proven experience in applying engineering principles and actively identifying and managing risks relating to asset management of Council's assets including the planning for, designing, maintaining, replacing, rehabilitating or disposing of assets. 83Her evidence was that the PDs with the civil liability allowance clause included were evaluated, allocated points, sized and placed on the appropriate Grade within Council's Indoor Staff Salary System ("ISSS") for the relevant period. The evaluation of the PDs took into account the specific responsibilities outlined in the civil liability allowance clause which in turn increased the work value points that were allocated. 84Ms Lowth's evidence was that: "At each JEP meeting, JEP panel members discussed the inclusion of the civil liability allowance clause in the relevant PD with reference to several factors in order to reach agreement on the final score." She said that during each meeting Mr Frost said words to the following effect: The skills and responsibilities of Council's engineers have changed since the changes to the Civil Liability Act came in, in terms of the skills they need to exercise in managing Council's assets. As a result of that I have changed the job descriptions for the relevant positions to refer to those skills. 85Ms Lowth explained the impact of the civil liability allowance skills on the points allocated to the positions of Senior Engineering Technician, Senior Professional Engineer and Senior Civil Design Engineer. 86Ms Lowth, who attached the Mercer Cullen Egan and Dell Job Evaluation Manual to her statement, agreed that what the Mercer system could not do was to attribute points to a particular skill that would be consistent for every person who had to apply that particular skill. For example, the skills and responsibilities relevant to manage Council assets relevant to civil liability. Nor does it attribute a particular monetary amount for any particular skill. The system enables an overall point score to be taken and to then be applied into the particular organisation's salary structure. 87Ms Lowth agreed that there was nothing in the Mercer system which meant that because you had the responsibility of the type that had been described by her as the civil liability allowance clause or the civil liability allowance dot point in the PDs that would mean that you get a higher rate of pay than if you did not have those words in your PD. Her evidence was that the nature of the Mercer system was that inherently you would end up with more points if you are higher in the hierarchy of an organisation. 88Ms Lowth was asked during cross-examination and agreed, that the only information the Executive had when they determined the grade for positions, was the written recommendation document provided by the JEP. Her evidence was: Q. So without needing to take you through it do you agree that none of them makes reference at all to civil liability responsibilities or engineering duties involving assets and things of the type that are in the CLA clause? A. Yes. Q. You agree with that, don't you? A. Yes. Q. And the executive when it decided had nothing in front of it which made reference to the civil liability issues did it? A. No. Q. By "no" you are agreeing with me? A. Yes. 89Her evidence was that the civil liability responsibilities was one of the matters which the Review took into account when looking at a particular sub factor, amongst a range of factors. She accepted that the reference to civil liability would not have led to any change to the "breadth" sub factor in the evaluation of positions being reviewed. Her evidence was that the civil liability allowance clause had an impact and the additional 43 points being added to the senior engineering technicians positions. 90However, her evidence was that the civil liability words did not mean that the 43 points were allocated for the reference to those words alone. There are a range of changes to the PDs which were taken into account which resulted in 43 more Mercer points. 91Ms Lowth accepted that Mercer points were not allocated for a particular dot point in a PD. Ms Lowth also evaluated the senior professional engineer's position which led to an increase of 16 Mercer points. Asked by Mr Taylor to explain why it was that if emphasis was placed on the civil liability allowance clause in respect of both positions, that they gave rise to quite different point outcomes, her evidence was: A. Yes because there is a number of factors that are taken into account from a position description so although the CLA clause may refer to the skills and responsibilities that are exercised in carrying out those duties under the CLA clause there are also skills and responsibilities, you know the independence and role as the authority and the autonomy that the role has so there are a number of factors that are taken into account when determining the actual points. Q. So in short the fact that the dot point was in both position descriptions in no way led to a particular point package in and of itself? A. I wouldn't agree that it is, no we attributed to it because it is part of the attribution to it. Q. In no way led to a particular point? A. No not a particular point outcome. Q. And the outcome of this review of the senior professional engineer if one is comparing senior engineer was no change in grade. Grade 7 continues to be grade 7? A. That is right. 92The third position that was analysed was that of Senior Civil Designer. The outcome of its evaluation was an additional eight points. This resulted in the grade and salary remaining unchanged. 93Ms Lowth agreed that Mr Frost had not referred to the civil liability allowance provided for in the Award during the Consultative Committee meetings. In referring to the Act, he was referring to the responsibility that engineers had as part of their role as contained in their PDs since the Act came into operation. Ms Sanchez 94Ms Sanchez was the Acting Resources Coordinator and a member of either the JEP or Appeal Panel for the review of the following positions: Graduate Professional Engineer; Engineering Technician; Asset Manager Civil and Built; Professional Engineer; Built Resources Coordinator; Natural Systems Manager; Built Systems Manager and Contracts Coordinator. Her evidence was the civil liability allowance clause was part of the JEP discussions of the positions of Professional Engineer; Built Resources Coordinator and Natural Systems Manager; Built Systems Manager Contracts Coordinator. She said that at each of the JEP/Appeal Panel Meetings, Mr Frost gave an overview of the positions and said words to the following effect: In accordance with the Civil Liability Act changes, I have amended the job descriptions to reflect the engineering principles. 95She said she was aware of the significance of the engineering principles that were applicable as a result of the civil liability allowance clause for the relevant positions and she referred to the civil liability allowance clause in the relevant PDs on a number of occasions in discussing the skills and experience required in applying the engineering principles. Her evidence was that she said: "These guys are dealing with assets and we need to make sure we take this into account." 96Ms Sanchez's evidence was that the PDs that did not include the civil liability allowance clause received a lower points reading and in particular did not receive an "E" equivalent rating for "knowledge and experience" on the JER. 97Ms Sanchez annexed the PD for the Asset Manger, Civil and Built position. It did not contain the civil liability allowance clause. Under the heading Position Purpose/Job Summary, it stated: The role of the Assets Manager - Civil and Built is to manage Council's Civil and Built assets portfolio such as roads, footpaths, drains, bridges and buildings with a replacement value of more than 1.3 billion to meet the new Planning and Reporting Framework for local government introduced by the NSW state government. 98It provided that the role: ... will ensure that the existing asset continue to meet the needs of residents and are managed and maintained in such a way that they minimise whole of life costs, reduce exposure to risk and maximise life expectancy. The role will develop and review Asset Management Plans for Civil and Built assets based on sustainable service delivery, risk management principles, legislative requirements in accordance with the International Infrastructure Management Manual. 99This position was not part of the Engineering Services Division, nor was it part of the 2007 realignment. Ms Sanchez also described how the inclusion of the civil liability allowance clause in PDs for Professional Engineers, Built Resources Coordinator and Contracts Coordinator position increased the sizing/points allocation for that PD. 100During cross-examination, although Ms Sanchez's evidence was that she recorded in her handwritten notes of the assessments a score for civil liability responsibilities, she accepted that none of the records she created made reference to civil liability responsibilities, nor management of Council's assets. She also accepted that Mr Frost's statement was a reference to changes in legislation flowing from the Act. 101Ms Sanchez also accepted that the particular score allocated to positions was because of a consideration of the whole of the PD and not the civil liability allowance clause only. She also accepted that the reason the appeal in respect of professional engineers succeeded and led to the positions being regraded from Grade 5 to Grade 6 was because the Committee looked at the breadth of the position in accordance with the Mercer criteria and in the context of the PD as a whole and decided to give it a score higher than the previous committee. The key reason for this was that the advice component played a large factor in "breadth" being given an extra score. 102Ms Sanchez accepted that the Mercer system did not allow points to be awarded in respect of a particular responsibility, for example, civil liability issues which were referred to in a PD. Her evidence was that points are determined by looking at the position as a whole and not, for example, only the civil liability allowance clause. Ms Sandars 103Ms Deborah Ann Sandars is the Executive Manager, City Services of the Council. She described how the realignment of the Engineering Services occurred. This was consistent with evidence given by other officers of the Council to which we have already referred. Her evidence was that as part of the realignment a civil liability allowance clause was added to the PDs of all engineering professionals in the Engineering Services Division who applied engineering principles in the management of Council's assets. Ms Sandars also agreed that under the Mercer system the JEP assesses the whole of the PD and comes up with a points score. Ms Sandars agreed that at a management executive level, neither she or anyone, to her knowledge, gave a direction or instruction to the JEP that because of the civil liability skills and responsibilities in positions, the JEP must give a certain Mercer points score that it would not otherwise have been given, absent that civil liability allowance clause. 104Relevantly, Mr Crow tendered a schedule of the changes that have occurred to engineering professionals since 2007. This schedule is annexed to this decision. Consideration 105The primary issue for determination is whether the skills and responsibility for which the civil liability allowance is payable, under cl 14(xiv) of the 2010 Award and its predecessor have been "specifically and demonstrably paid for" in the salary system by the Council. 106It was common ground that the dispute related to 15 engineering professionals (as set out in the schedule of engineering professionals annexed) who were directly involved in applying engineering principles to the management of the Council's assets. 107A subsidiary issue that arose for determination was whether two additional engineering professionals, Mr Bazergy and Mr Tu, who respectively hold the positions of Senior Development Engineer and Graduate Engineer are directly involved in applying engineering principles to the Asset Management of the Council's assets. 108Mr Taylor submitted that in light of what he characterised as the exception in cl 14(xiv), the onus was on the Council to demonstrate that it had "specifically and demonstrably paid for" the civil liability allowance skills. The Committee agrees with this submission. 109Clause 14(xiv)(a)(1) and cl 14(xiv)(a)(2), identify the criteria required to be satisfied to attract the civil liability allowance. Firstly, the civil liability allowance clause applies to employees; secondly, such employee must be an engineering professional; thirdly, the engineering professional must be directly involved in applying engineering principles to the Asset Management of the Council's assets, including the planning for, designing, maintaining, replacing, rehabilitating or disposing of assets, and fourthly, engineering professionals, in applying the engineering principles to the Asset Management of the Council must do so in respect of assets that give rise to liability under the 2002 Act. 110The Shorter Oxford Dictionary relevantly defines "specifically" (an adverb) and "specific" (an adjective) as "having a special determining quality; specially or peculiarly pertaining to a certain thing or class of things" and "constituting one of the characteristic features; exclusively efficacious for, or acting upon". "Demonstrably" (an adverb) is defined as "capable of being shown or made evident; capable of being proved conclusively"; and "making evident; illustrative; provable by demonstration". 111We propose to construe these words as used in cl 14 (xiv) in accordance with these definitions in determining the issues before us. 112As we have already observed, Mr Crow acknowledged that 15 of the engineering professionals met the four criteria. 113Mr Crow submitted that the Council will have "specifically and demonstrably paid for" the civil liability allowance skills if it has recognised and included, in its 2007 work value process known as "the engineering realignment", the application of engineering principles by its engineers to the management of its assets. 114Counsel further contended that it was not necessary that the Act and cl 14(xiv) be specifically mentioned in the records of that process. It is the substance of the task that matters, not the language used in performing it. 115Mr Crow accepted that the job evaluation procedure of the Council did not allocate a discrete number of work value points to the civil liability allowance skills. Points were allocated to a category or range of skills and responsibilities of which the civil liability allowance skills were an example. Counsel relied upon the evidence of Mr Frost, Ms Sanchez and Ms Lowth, which it was submitted, demonstrated that the civil liability allowance skills were recognised and counted in the allocation of Mercer points. Those points determined the grading of the position in Council's salary system. It followed, so it was submitted, that the civil liability allowance skills were, therefore "specifically and demonstrably paid for" by that salary system. Mr Crow further submitted that the fact that a position did not increase in points by 3.5 per cent did not prove that the civil liability allowance skills were not paid for by the Council. 116It follows therefore, in our view, that in order for the Council to make out the exception, it must establish that the relevant skills described in cl 14(xiv) have been "specifically and demonstrably paid for" by the Council. Put another way, the Council must demonstrate in accordance with its evidence, that those skills have been paid for through the salary system. 117We turn to consider the evidence. 118The evidence of Mr Brock was that the management of Council's assets had always been part of the work of engineering professionals. However, that particular skill now had a higher work value in light of the 2002 Act. His evidence was that the fact that the Council added some additional words into the PDs which referred to this requirement that engineering professionals had to manage Council assets did not compensate for the additional skills. 119We have examined the amended PDs and note the words "civil liability" are not incorporated in the additional words that were added by Mr Frost. The words added were that engineering professionals (must have) "knowledge and experience of managing Council's assets" which was part of the role when the rate of pay was originally struck under the 2004 Award before the civil liability allowance was conciliated by Grayson DP. The change to the PDs arose from consideration of whether the PDs were accurate and complete. This was an issue in 2004 and 2005, long before the civil liability allowance was considered. It is what led to the JEPs being established. Mr Frost agreed that his inclusion of additional words in the PDs of professional engineer was to describe the knowledge and experience required for the position. His evidence was that the changes to the PDs were not made to avoid the payment of the civil liability allowance. Nor were the PDs rewritten because of the civil liability issue. 120It therefore must follow that the engineering professionals' roles, when being assessed under the Mercer system, were positions that historically had required such knowledge and experience in managing Council's assets in order to properly carry out the role. The higher value of the particular skills required in accordance with the 2002 Act were therefore not specifically taken into account. This was the very reason for the claim that was heard by Grayson DP. So much was recognised in the amended application for variation of the 2004 Award, which was filed on 15 December 2006. Under the heading "Variations Sought", it noted that: 7. With the assistance of the Commission, the parties have been able to reach a consent position on the award variation ... 8. The variation sought is in accordance with the Commission's recommendation of 11 December 2006. 9. The parties have also agreed that upon the variation of the Award, the following explanatory note would be included in the Award Supply Service: When the Local Government (State) Award 2004 (the Award) was made in November 2004 it included Leave Reserved provisions enabling the award parties to apply in respect of changes in responsibilities for engineering professionals arising out of the Civil Liability Act 2002. The Award was varied by consent on 15 November 2006 with a prospective operative date of first full pay period on or after the date of variation. To assist councils to implement the payment of the allowance the parties have issued the following agreed principles: Engineering professionals 'directly involved in applying engineering principles to the Asset Management of council assets, including the planning for, designing, maintaining, replacing, rehabilitating or disposing of assets which may give rise to liability under the Civil Liability Act 2002' are entitled to payment of the Civil Liability allowance. However, the Civil Liability allowance is not payable where such responsibility and the exercise of such skills have been specifically and demonstrably paid for in accordance with the salary system established by the council. In determining whether payment has been made, regard shall be had to the basis for salary system progression received by the employee, if any, since the commencement of the Civil Liability Act 2002. ... 121With the exception of the professional engineer positions, there was no salary system progression, so on review, it was incumbent upon the Council to establish that the higher level of skill as recognised by the civil liability allowance, was paid for by the Council. In our view, this does not mean awarding higher Mercer system points to the position, but rather it would mean an actual increase in the salary rate for the engineering professionals. 122The joint statement issued by the applicant and the Local Government Association of New South Wales and the Shires Association of New South Wales in October 2007 in respect of the implementation of the civil liability allowance stated in its introduction: The civil liability allowance (the allowance) was introduced in December 2006 to ensure that engineering professionals whose work value had changed in response to the Civil Liability Act 2002 (the Act) are paid for that change in work value and the skills, accountabilities and responsibilities that they [are] required to apply at the Council workplace. 123It appears from the Council's evidence that it had added an additional requirement in the PDs of engineering professionals, but not provided any additional remuneration consistent with the civil liability allowance. The Council sought to argue that it had. 124Ms Sanchez's evidence was that 7 positions (12 persons) had been reviewed in respect of the engineering realignment. Ms Lowth's evidence was that she was involved in the review of 3 positions (4 persons). Neither Ms Sanchez nor Ms Lowth were involved in the review of the senior development engineer position. One position (6 persons) was the professional engineer position and the remaining 10 positions (11 persons) related to other engineering roles including 2 senior professional engineers. The only position (which was not a new position) to eventually receive an increase in salary was that of professional engineer which when it was initially reviewed resulted in no change to its grading (Grade 5). These positions were subsequently reviewed on appeal resulting in a regrading to Grade 6 which resulted in pay increases of between 0.34 and 1.33 per cent. 125More telling against the Council's contention that it has taken into account the civil liability allowance is when an analysis is undertaken of the Mercer Review of the senior engineering technician; senior professional engineer and senior civil engineer positions. The first position after the Mercer Review resulted in a 43 point increase in its point score but did not lead to any increase in salary. The second position of senior professional engineer according to the evidence of Ms Lowth was a new position. Again after assessment, it did not result in any increase in salary. The third position of senior civil engineer again resulted in no increase in salary. 126Mr Andrew McLeod, Manager, Human Resources and Customer Service, in a letter to Ms Vasilangos dated 4 May 2012 stated: ... Each position required to apply engineering principles consistent with the Local Government (State) Award (the 'Award') was evaluated and placed within the Council's Indoor Staff Salary System .... The evaluation of these positions displayed a consistent recognition of the responsibilities and skills associated with the effective management of Council's civil liability. ... The recognition within the sub factor levels of the Mercer System is detailed as a work value ... increase. 127Mr Taylor submitted that Mr McLeod, by his reference to the Local Government (State) Award, was in fact acknowledging that employees holding engineering positions were required to apply engineering principles. An attachment to Mr McLeod's letter included a reference to all of the positions the subject of this dispute, including the graduate engineering position, which it was acknowledged did not receive an increase for the civil liability responsibility pursuant to cl 14(xiv) of the Award. It also included the position of senior development engineer, which remained at the same Grade 7 after Mercer Review. Similarly, the evaluation for example, of the position of senior civil designer (engineer), resulted in no change in grade. It remained at Grade 7. This evidence would not enable a finding to be made that there was a specific and demonstrable payment made, particularly in light of the evidence of Ms Lowth and Mr Frost that the application of engineering principles was only one factor taken into account by the Mercer analysis. 128In summary, the professional engineers' appeals against being graded Level 5, led to a review of their PDs. This in turn led to a review of the whole of the Engineering Services Division, which consequent upon the review, was realigned. The professional engineers' PDs were rewritten. This led to their re-evaluation. However, this was not premised on the basis that they had assumed the civil liability responsibilities as a result of the legislation. 129The evidence, in particular that of Ms Lowth, was that the Mercer system looked at the PDs as a whole and not at a particular skill or aspect of the PD. Her evidence was that the reference to engineering principles was relevant to the knowledge and experience sub factor. However, she did not believe that it had any particular significance in respect of the "breadth" sub factor, which was part of the Mercer system. The specific grading of professional engineers had been the subject of challenge since 2004 and it was the only classification that resulted in a regrading after the PD was rewritten emphasising the advice role. It will be recalled that Mr Frost encouraged Ms Ruddell to emphasise this aspect. 130An additional difficulty for the Council is that regardless of the regrading, increases in Mercer salary system points and any salary increases were not uniform. 131Ms Lowth's evidence was that the Mercer system measures the relative size of the position. She agreed that there could be two engineers who had the same size position. One of them could have in that position a responsibility for managing Council's assets that had impact on civil liability, and the other with exactly the same size position might not have that responsibility under the Mercer system. Her evidence was that they could receive the same point score and the same rate of pay. This approach is further confirmation that the application of the Mercer system does not recognise the higher work value of a particular skill. 132Furthermore, as a result of the professional engineers' regrading, it was necessary for the Council to realign various other positions outside the Engineering Services Division so as to maintain internal relativities. Ms Gray's evidence was the positions that were realigned outside the Engineering Services Division did not have any reference to engineering principles in their PDs. 133Ms Morthen's evidence was that she was aware of the LGEA's claim for payment of the civil liability allowance when she participated in the JEPs in 2006 and 2007. She said had the civil liability allowance issue been raised she would have insisted that specific recognition be given to these skills. Her evidence was that the civil liability claim was not raised at the JEPs and no allocation of points were identified in respect of those skills contemplated by the civil liability allowance clause. 134Ms Ruddell gave similar evidence. Ms Vasilangos' evidence was that she was not aware of any period where the salaries of professional engineers increased in a manner that could be said to be referable to the civil liability allowance. This is further evidence that the professional engineers' regrading was not based on the inclusion of a reference to civil liability responsibilities flowing from the legislation. 135In summary, the evidence discloses that in 2004, the Council introduced a new salary system which gave rise to complaints that the new salary structure did not do justice to the actual responsibilities and duties performed. 136The evidence is that the new salary system did not include recognition of the civil liability responsibilities at that time. Appeals lodged by persons holding professional engineer positions led to the Council resizing positions and rewriting PDs which were considered by a JEP. 137A broader review known as the Engineering Realignment was then undertaken. PDs were updated and re-evaluated by a job resizing panel. 138On 20 August 2007, the Council advised that the JEPs had evaluated the PDs and given them a point score under the Mercer system. This resulted in further appeals by professional engineers which were ultimately successful resulting in a salary increase of $195 per annum or .34 per cent increase up to 1.33 per cent. No other engineering professionals received an increase in salary through the Mercer Review. Thereafter, the parties were in dispute in respect of whether the civil liability responsibilities flowing from the 2002 Act had been taken into account. 139Prior to the successful appeals by the professional engineers, the result of the Mercer Review was that all existing grades remained the same. Some new engineering positions were also created. 140As a result of the successful appeals, salary grades of employees engaged in other areas of the Council outside the Engineering Division were revised to ensure relativities were preserved. Such employees had no civil liability responsibilities. 141An analysis of the evidence, particularly that of Ms Sanchez, Mr Frost, Ms Ruddell and Ms Lowth, does not enable a conclusion to be reached that in re-evaluating engineering professional positions, civil liability responsibilities arising from the 2002 Act were "specifically and demonstrably paid for" by the Council. 142It follows, and we find, the Council has not established a case that would meet the exception that the skills as defined in cl 14(xiv) were recognised by the salary system prior to August 2007, or thereafter. In reaching this finding, we are mindful that the Council's case is that the law did not require it to recognise such skills prior to August 2007. Mr Tu and Mr Bazergy 143The Council's contention in respect of these two engineers was that they were not required to undertake civil liability responsibilities. It follows that neither of these engineers have received the civil liability allowance. In respect of the civil liability allowance clause, each of these engineers meet the criteria of being employees and are employed as engineering professionals. 144In order to receive the civil liability allowance, as we have already observed, it is necessary for these engineers to be directly involved in applying engineering principles to the Asset Management of the Council's assets, including the planning for, designing, maintaining, replacing, rehabilitating or disposing of such assets which may give rise to liability under the 2002 Act. 145Mr Frost ultimately accepted that although Mr Tu was employed as a graduate engineer, in order for him to learn and understand this position, it would be necessary for him to apply engineering principles, in particular, those learnt at University. 146Mr Tu's PD provided that he "perform duties requiring the application of professional engineering knowledge and practices, which requires an ability to think analytically and operate proficiently in the determination of the most appropriate course of action". 147Under the heading "Key Responsibilities" the PD relevantly provides: This role is responsible for in-house investigation, analysis and design, which may cover areas such as stormwater drainage, floodplain management, natural resource management, traffic management and civil design and a broad understanding of civil engineering and related fields Provision of technical advice and recommendations from the results of technical investigations carried out. Project management of projects over the complete life-cycle of the project from initiation to maintenance Handling enquiries from the community by deciding the nature of an enquiry to sending a response to the enquiry Providing advice to the public on matters within delegation of the position and area of competency Assist in the preparation of planning studies, delivering projects and undertaking other miscellaneous activities as required 148 Mr Tu's work includes, as the evidence disclosed, significant responsibility in respect of the design of drainage systems, which Mr Frost acknowledged had civil liability consequences. Mr Tu is the engineer responsible if any questions arise when a design is forwarded to construction. 149In our view, he is clearly applying engineering principles and applying them in these circumstances to the Asset Management of Council's assets, that being, to the drainage systems that he is designing which may give rise to a liability to the Council. 150Furthermore the job evaluation record undertaken by Mercer on 12 February 2009 under the heading "Accountability - Independence and Influence" noted "delivery of professional service. Supervisor available for consultation". 151We find on a proper examination of the evidence, that Mr Tu is directly involved in applying engineering principles to the Asset Management of the Council's assets and is therefore entitled to the civil liability allowance. 152The identical issue that we have determined in respect of Mr Tu also arises for determination in respect of Mr Bazergy. The Council contends that Mr Bazergy's duties as senior development engineer involve mostly private development applications which do not require the application of engineering principles or to manage risks relating to the management of Council's assets. 153Although Mr Bazergy's evidence was that he had some involvement with Council's stormwater and drainage management systems, it was contended by the Council that this was incidental to his main responsibility of assessing private development applications. It contended he was not the designated manager of those assets with his decisions being signed off by his manager. 154Mr Bazergy's evidence was that he assesses and approves developments which interact with and affect Council's assets, particularly in respect of stormwater drainage issues. Council's drainage is connected to the general drainage system and has the potential to be affected by any development. For example, the building of a new suburb requiring roads, kerb, guttering and drainage pipes, all of which involve Council's assets. 155The additional agreed facts regarding the evidence of Mr Bazergy stated that he was not designated as the manager of any of Council assets by his PD or otherwise, but had the authority to make decisions about Council's assets subject to sign-off by his manager. 156It was further agreed that Mr Bazergy would always consider the capacity of Council's stormwater systems to carry any increase in stormwater runoff arising out of the development being assessed and would assess the capacity if the development was sufficiently large to raise the possibility of it exceeding existing capacity. 157Although it was further agreed that such assessment was required infrequently, in our view, such assessment clearly involves the assets of the Council that deal with drainage, and stormwater runoff. The additional agreed facts emphasised that in effect, any work undertaken by Mr Bazergy that involved Council's assets was required infrequently. 158There is nothing in the civil liability allowance clause providing for the payment of the civil liability allowance that an employee must be directly involved in applying engineering principles to the Asset Management of the Council's assets for the majority of his/her time at work. The civil liability allowance is paid wherever engineering professionals meet the criteria set out in the civil liability allowance clause. The percentage of time involved in applying the engineering principles is not relevant to receiving the civil liability allowance. 159We find, based on the evidence, that Mr Bazergy is directly involved in applying engineering principles to the Asset Management of Council's assets, including the planning for, designing, maintaining, replacing, rehabilitating, or disposing of such assets and is entitled to receive the civil liability allowance. He is therefore entitled to receive the civil liability allowance. Conclusion 160It follows in light of our findings, that the 17 engineering professionals, the subject of this dispute as named in Exhibit 4 (excluding Mr Favotto) are entitled to receive the civil liability allowance on and from 20 November 2008, or from a time thereafter when their employment commenced with the Council. 161On the evidence, the Committee is not persuaded that the Council has "specifically and demonstrably paid for" the civil liability allowance skills utilised by the engineering professionals the subject of this dispute. The evidence does not permit a finding to be made that specific Mercer points were allocated for engineering professionals directly involved in applying engineering principles to the Asset Management of the respondent's assets. 162The engineering realignment process did not result in an increase in pay at all for 11 of the engineering professionals. In respect of 6 others (professional engineers), the increase resulted in their jobs being realigned and was not an increase "specifically and demonstrably paid for" in respect of their civil liability responsibilities arising under the 2002 Act. 163It is the Committee's opinion that the engineering professionals the subject of the dispute are entitled to receive the civil liability allowance as found in cl 14(xiv) of the 2010 Award. It follows that the exception found in the civil liability allowance clause does not apply. 164We note that Mr Crow submitted that an expression of the Committee's opinion would suffice if the Committee upheld the LGEA's arguments, subject to the postponement of any argument that the Council may wish to advance in respect of the Local Government Amendment (Legal Status) Act 2008 (repealed). The Council's rights are reserved in respect of this aspect of the dispute. 165We decline Mr Taylor's invitation to make any recommendation in respect of the current salary system. As the material before the Committee was designed to address a specific issue, it would not be appropriate for us to provide any views, particularly where the Council has not had an opportunity to put any submissions to the Committee in respect of the merits of the salary system. ********** Exhibit 23 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: 13 February 2013