Industrial Relations Commission New South Wales Medium Neutral Citation: Dispute between the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Sutherland Shire Council re permanent placement [2014] NSWIRComm 1005 Hearing dates: 29 October 2013 Decision date: 17 March 2014 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Claim dismissed. Catchwords: Dispute notification; Alleged failure of Council to confirm union member at Step 5 of salary structure despite achieving above the 85% score in his appraisals over both years; Commission cannot intervene and take over management prerogative in deciding who is to receive an over-award payment; Commission is not empowered to make dispute orders of any kind in circumstances where to do so would result in altering a private contract into an award right; Commission will not intervene and take over management prerogative; Observation that any internal salary system should be transparent and fairly applied; Observation that a mistake by an employee is not allowed to hound that employee from year to year but should be confined to the year in which it occurred. Legislation Cited: Industrial Relations Act 1996 Cases Cited: NSW Teachers Federation v Department of Education and Training (2003) 121 IR 177; In re Dispute - Upper Hunter County Council re Grading (No. 1) [1973] AR 361, In re Medical Officers - Hospital Specialists Award [1967] AR 45l; Monaro County Council v Electrical Trades Union of Australia, NSW branch (1985) 14 IR 138 Category: Principal judgment Parties: Mr Paul Wesley for the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (Applicant) Sutherland Shire Council (Respondent) Representation: Mr R Crow of counsel (Respondent) Ms A Koelmeyer, Workplace Law (Respondent) File Number(s): IRC 149 of 2013 DECISION Background 1The New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (the Union), on 4 March 2013, lodged a notification of a dispute, pursuant to section 130 of the Industrial Relations Act 1996 (the Act), with regards to a dispute with Sutherland Shire Council (the Council). 2The dispute notification advised as follows: (a) Council has refused to recognise three of our members as attaining a permanent placement at Step 5 of the Salary System following successful performance appraisals in 2011 and 2012; (b) In 2011 all thee members were assessed as performing above the requirements at Step 4 for their position and as such were granted a one off payment equal to Step 5. this was confirmed by correspondence from Council dated 4 July 2011; (c) Further, the correspondence of 4 July 2011 from Council advised that should they be successful in again being assessed as performing to the same standard at their next appraisal they would achieve the substantive rate of Step 4 for their positions; (d) Our members completed their performance appraisals the following year (2012) and were advised that no changes to the previous performance criterion had occurred and that they had achieved as per the previous assessment; and (e) Council has refused to recognise the successful outcome of their performance appraisal and as such has not confirmed the placement at Step 5 nor are they paying the appropriate rate of pay commensurate with the attained step. 3The dispute revolved around the words "no change" noted at the bottom of two out of the three skills assessments in question conduced by the then Manager, Mr Ray Wilson. 4Ms Koelmeyer, Solicitor for the Respondent, described how the Council's assessment process worked in the following terms: ... When employees are at the level of being superior in terms of their performance, council's system works along the lines of during the first year that they achieve such a high standard of performance they temporarily achieve a bonus that is for all intents and purposes called a step 5 bonus, but it is not actually a delineation of their being at step 5. Step 5 is something that requires a consistent level of high performance, so the same level of high performance is required in a second year, so that instead of having a lump sum increase the step 5 is confirmed in recognition of the superior performance and that becomes something that the employees become entitled to then permanently. so this is the dispute here. We've got several employees who achieved the lump sum step 5 bonus and then unfortunately the manager who completed these reports has retired and is not available to provide further or better explanation in relation to what he meant by "no change". Council's position is that the current grade and step is grade 5, step 4. He has written "No change" on it. That means grade 5, step 4. .... Council also has the privilege of being able to look at other assessments that this particular manager completed where similar words were written but with more expansive notation, which certainly gave council the impression that, looking at it in the wider scheme of documentation produced by that particular manager, that no change meant no change from grade 5, step 4..... The Union argued that the words "No change" meant that there was no change from the high standard achieved during the previous appraisal and therefore its affected members were entitled to be confirmed at Step 5. The Council's position, as expressed by Mr Peter Evans, Manager-Personnel, was that "not 100% of all staff receive an increase every year otherwise the salary system would be unaffordable and the complainants need to understand that we need to have the same consideration of equity and affordability for their salary results as occurs for all Council staff". 5It was pointed out that the words "No change" were also written on skills assessments of other employees who were not the subject of the dispute as they were not union members and therefore the outcome of the dispute affected more than the employees in question. 6It was agreed, during the conciliation process, that the Council would redo the appraisals for five boilermakers which included the complainants (Messrs Doyle, Ball and Gibbs). 7Conciliation attempts failed to resolve the dispute and, for the purposes of s 135 (2) of the Act, a Certificate of Attempted Conciliation was issued on 24 June 2013. 8At the hearing of the claim conducted on 29 October 2013, Mr Paul Wesley, appeared on behalf of the Union and called evidence from Mr John Gibbs, Metal fabricator. 9Mr R Crow, Counsel, appeared on behalf of the Respondent and called evidence from the following Council employees: Ms Manjeet Kaur Grewal Group Manager, Engineering Operations Mr Brad George Sutton Work Health and Safety Advisor, Work Health & Safety Team Mr Aaron William Leahy Projects Co-ordinator, Building Works Unit Opening Submissions 10Mr Wesley advised that the Union was seeking a determination pursuant to section 136(1)(a) of the Act that Sutherland Shire Council, the respondent, be directed to do two things in essence: permanently place Mr Gibbs at step 5 of his current grade whilst he remains in his current position and, secondly, permanently place Mr Gibbs as sought effective from 1 July 2012. 11On 4 March 2013 the Union filed a notification pursuant to s 130 of the Act seeking relief in relation to the respondent council refusing to finally confirm placement at step 5 of the salary structure certain employees, including Mr Gibbs. The applicant submits that the respondent is in breach of clause 3D of Sutherland Shire Council Salary System Operating Procedures by so refusing. 12The Union further submitted that the matter was rightly before the Commission as the dispute settling procedures of the Local Government State Award 2010 at cl 31, grievance and dispute procedures and particularly subcl (6). The industrial registrar may be advised of the existence of the dispute at any stage of the procedure. We also advise that the process has further been confirmed by the lodgement of a formal grievance as required by the aforementioned award. The matter came before the Commission for conciliation on numerous occasions, but unfortunately was not resolvable and conciliation failed. 13Mr Crow submitted on behalf of the Respondent that the Council designed its own salary system with consultative committee input, separate from the award prescription. While it was conceded that Mr Gibbs had exceeded 85% of the maximum (irrespective of whether he was scored out of four or five criteria), there were other criteria that he had to satisfy. Mr Gibbs failed to advise the Commission in his statement of the additional requirements - that is, the progression was no automatic. There has to be sustained exceptional performance and the General Manager has the discretion to determine the percentage of staff allowed to progress to step five each year. 14It was pointed out that Mr Gibbs was hanging his hat on the mere fact that he achieved 85% in his annual appraisal. 15It was submitted that the Applicant was unable to prove that exceptional or rare circumstances exist which would cause the Commission to intervene in management's decision. On that basis, the Commission ought not intervene in the exercise of management discretion. 16In any event, even if the Commission decided to intervene and review the Council's decision, it would find that the evidence supported the grounds upon which the relevant managers decided not to recommend Mr Gibbs for progression to step five. It was submitted that the grounds were good, sensible and reasonable and were not infected by malice or caprice. The Evidence 17Mr John Gibbs tendered a statement in the proceedings in which he stated that he has been employed by the Council as a Metal Fabricator for the past 26 years, the last 17 years of which he has been in the role of Leading Hand. 18He explained that an appraisal of wages staff was conducted annually commencing with the employee's immediate Supervisor completing the appraisal and submitting it to the Manager to add his/her comments. The employee in question had the ability to make an discuss the document and make comment at both stages before signing off on the completed appraisal. 19Mr Gibbs stated that, following his 2010 Performance Appraisal review, he was recommended by his Manager for placement on step 5 of his salary grade. He received a one off payment as a bonus. He received a letter from Mr Peter Evans, Manager-Personnel, congratulating him on his efforts and advising him that if he achieved the same results in the 2011 appraisal, "... Step 5 of your Grade will become your permanent rate of pay". 20Mr Gibbs stated that he achieved a better result in the Performance Appraisal review conducted in 2011, however, the permanent move to Step 5 he was expecting was rejected on the grounds that there was recommendation to that effect from his then Manager. 21He said he approached the then Acting Manager, Aaron Leahy, who explained that his previous Manager had not made any comment on his Appraisal. 22He said he met with Ms Manjeet Grewal, Group Manager, to discuss the matter. She had confirmed Mr Leahy's advice to him that the previous Manager had written "No change" on two other appraisals which were interpreted to mean that he did not support a move from the current step. In relation to his appraisal, no comment was made by the previous Manager and that was also interpreted as meaning that no recommendation was recorded. 23Mr Gibbs explained that he had contacted the Union and, as a result, the dispute notification was filed with the Commission. 24He acknowledged that Council had offered to undertake the appraisals again and the re-appraisals were conducted despite the fact that all three affected employees had declined on the basis that the findings would not change from the original appraisal for 2012. Their Supervisor conducted three re-appraisals (the first two having been rejected by Mr Leahy). The completed third re-appraisal was provided to Mr Leahy together with a letter explaining how he arrived at his decision. The Supervisor scored Mr Gibbs 3.5 (classed as High Performance" finding that there was no issue with "performance based matters". There was no supporting evidence of letters of commendation and/or works above and beyond normal duties to recommend an increase. Mr Gibbs had taken 5.33 days off (two of which were for Workers' Compensation) Mr Gibbs pointed out that the requirement to achieve Step 5 as set out in Section 3D of the Salary System Operating Procedures is based on sustained exceptional performance. He argued that there was no mention or requirement to receive evidence via letters/commendation for the appraisal process. 25Mr Gibbs said that he understood section 3D of the Salary System Operating Procedures to read that exceptional performance by an employee on Step 4 will result in a one off payment equivalent to the difference between step 4 and step 5. If that employee sustained that level of performance for two years, then that employee would be placed permanently on Step 5. 26Mr Gibbs pointed out that his supervisor, Peter Little, who worked with him five days a week, recommended him for a step increase in the appraisal conducted on 19 April 2013 despite the fact that he had made it clear that he was participating in the appraisal under duress because he was still in dispute with the Respondent over the previous appraisal. His Line Manager, Aaron Leahy, had noted the recommendation and had declined to support it. On 27 March 2013, at the request of the Commission, he was asked to take part in a re-appraisal. The re-appraisal, conducted by Mr Leahy, noted that he had acquired and applied the skills and demonstrated the traits and attributes at Grade 6, step 5. He noted that he had, to date, always scored above the required score on all of his previous appraisals and had moved consistently through the salary system. He therefore believed that he had been dealt a harsh blow by Council. 27Mr Gibbs argued that he could not remember a single occasion when Ms Grewal visited the work area despite her assertion to that effect. 28The personal protective equipment worn was not inappropriate as it was not contrary to Council's own Risk Assessment nor the Manufacturers' guidelines. He pointed out that neither referred to goggles as being the definitive piece of safety equipment to be worn. In addition, he claimed that Council's PPE policy (at 5.12) vests responsibility with the Unit Managers and Supervisors. 29Ms Manjeet Kaur Grewal, Group Manager, Engineering Operations, provided a statement in the proceedings in which she advised that she managed seven Unit Managers who were predominantly responsible for the outdoor workforce. Her duties achieving safety and performance targets and supervising Work Health & Safety processes and systems. 30Ms Grewal stated that a new salary system was introduced in July 2008 which provided metal fabricators with the opportunity to progress through salary steps by acquiring skills and demonstrating the use of those skills in their employment. All five metal fabricators were transposed to step 3 of their appropriate grade in the new system, based on their skills. She pointed out that Step 4 is the highest salary step to which a metal fabricator can progress solely by the acquisition and application of skills. 31Mr Aaron William Leahy, Projects Co-Ordinator, Building Works Unit, provided a statement in the proceedings in which he advised that he had acted in the position of Manager of the Building Works Unit for a total of 12 months (served over three periods between April 2012 and July 2013). 32Mr Leahy recalled a conversation with Ms Manjeet Grewal, Group Manager, Engineering Operations in or about March 2013 during which he was asked to conduct fresh staff appraisals for the metal fabricators for the 2011 calendar year. 33He recalled that he then had a conversation with Mr Peter Little who, as Supervisor of the metal fabrication shop, reported to him. He recalled that Mr Little repeated, several times during their conversation, that it would be a waste of time for him to re-do the skills assessments for 2011 as it would not change the outcome. Even though he formed the impression that Mr Little was resisting his request, he provided him with blank copies of the same Profile and Assessment forms used in Mr Gibbs' original appraisal. 34In the absence of any sign of compliance by Mr Little, despite repeated verbal requests, Mr Leahy said he raised the matter with Ms Grewal who responded by email on 14 March advising that she had taken steps to ensure that it was explained to Mr Little that the re-appraisals were required to be undertaken as a result of a direction from the Commission. He provided a written directive to Mr Little on 15 March to conduct the said appraisals and re-submit the outcomes by no later than Wednesday 20 March 2013. 35Mr Leahy said he received the completed assessment forms, together with typed additional comments about each assessment, at around the end of March of early April 2013. He said he compiled the results on a spreadsheet and then compared them with the results of the appraisals conducted by Mr Little in early 2012. The results were identical save for the fact that he had not made any recommendations for step increases in 2012 whereas he recommended step increases for Messrs Gibbs, Ball and Doyle in 2013. 36Mr Leahy said he then checked the local personnel files, the incident register (for any workplace health and safety issues or incidents), the corporate human resources personnel files and with the Operations Support Unit for commendable or reportable behaviours. In conclusion, the only information he took into account was the information gleaned from the local files and he used those as the basis for the handwritten comments he added to the appraisal forms completed by Mr Little. 37Mr Leahy pointed out that although Mr Little had not recommended Mr Sam Musico for an increase, he had disagreed with his appraisal and recommended that Mr Musico receive a step increase for the reasons he set out in his statement. He had agreed with the appraisals of Mr Little in relation to the other employees that none warranted an increase. He had forwarded the completed appraisals to Ms Grewal on 3 April 2013. 38In relation to Mr Gibbs, Mr Leahy explained that he had failed to give a sustained exceptional performance because, as team leader responsible for Work Health & Safety, he failed to wear the right personal protective equipment and sustained an injury to his eye. Mr Gibbs ought to have worn a full face shield or goggles which were readily available from the equipment store at the Bath Road Depot. 39Mr Leahy stated that he had seen employees, engaged on grinding work, wearing the full face shields or goggles on his frequent visits to the metal fabrication workshop. In addition, Mr Gibbs had a login code and could easily access the Council's Work Health and Safety system on line to access its Personal Protective Equipment procedure. 40Mr Leahy stated that within a few weeks' later of completing the 2011 re-appraisals, he completed the performance appraisals for 2012. Mr Little had provided him with a Skills Profile and Assessment form in respect of Mr Gibbs' work in 2012 and attached to it a memorandum dated 19 April 2013 recommending a one step increase to step 5 for Mr Gibbs. He had rejected Mr Little's recommendation and no increase was awarded to Mr Gibbs. 41Mr Leahy commented on the appraisal form for Mr Gibb, on 2 August 2013 the following: John's "Job Skills Listing" & "Personal Traits and Attributes" are above the required 3.5 (Required to be deemed "high performance"). His S/L total is 5.33 days (w of which are Workers Comp). In line with the appraisal review process John's S -11 and local files have been reviewed. Note: There were "no" issues ie performance based matters to report. there were also "no" emails, letters and/or awards for commendation. Note: Whilst John has received a good overall score from his Supervisor. because I have no supporting evidence ie commendations, advice on duties and/or works above and beyond general duties, I don't recommend for an increase. 42Mr Brad George Sutton, Work Health & Safety Advisor, tendered a statement in the proceedings in which he advised that he delivered Occupational Health and Safety System training to Council Supervisors in 2007 and attached a course outline and slides from that training. Also attached was the Employee Based Training History for Mr Gibbs from 18 June 1996 until 12 March 2013. Relevant Legislative Provisions 43Section 136 (1) of Chapter 2 of Part 2 of the Industrial Relations Act 1996 sets out the powers of the Commission in determining a dispute arbitrated before it: SECTION 136 ARBITRATION OF DISPUTE 136 (1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute ; (b) make or vary an award under Part 1 of Chapter 2; (c) make a dispute order under Part 2; (d) make any other kind of order it is authorised to make (including an order made on an interim basis). 136 (2) ..... THE SUBMISSIONS The submissions of the parties are summarised below. 44 Mr Wesley stated that the evidence indicated that Mr Gibbs was assessed in 2012 for the period January - December 2011. Both his supervisor, Mr Little, and his Manager, Mr Wilson, stated that they had assessed him in the belief and knowledge that he had been placed at Step 5 of his substantive grade as a result of the 2011 assessment for the period January - December 2010. That was confirmed in correspondence to Mr Gibbs from the General Manager dated 4 July 2011. The correspondence said in part: "Following the performance appraisal process review of your salary has been completed. In recognition of your efforts your manager has recommended that you be placed on step 5 of your salary grade. If you achieve the same result next year, step 5 of your grade will become your permanent rate of pay." 45Mr Wesley submitted that Mr Wilson had not made any comment on the 2012 assessment in relation to a progression recommendation because Mr Gibbs' assessment had recorded exceptional performance in that he had achieved the magical 85% mark and he understood that Mr Gibbs was already at step 5. Once Council confirmed the salary progression for other employees, he realised that a mistake had been made by Council resulting in the non confirmation of the permanency in his grade. Council understood that the absence of a recommendation from Mr Wilson necessitated the maintenance of the status quo. 46Mr Wesley noted that there were no adverse comments recorded in either the original assessment or the repeated assessment by either the assessor or any of the managers required to comment following reference to files held by HR or locally. 47Mr Wesley pointed out that the matter was raised with Council as a grievance as required by the Local Government (State) Award. The Council declined to change the outcome insisting that a recommendation was a pre-requisite. 48Mr Wesley relied on the provisions of the Council's Salary System Operating Procedures which provides, at cl 3(2), that: "An employee who has achieved exceptional performance will receive a one-off payment equivalent to the annual difference between step 4 and step 5 in the structure. If the exceptional performance is sustained for two years, then the employee will be permanently placed at the performance step." 49 Mr Wesley submitted that there was nothing in the procedures that requires the assessor to make a recommendation in addition to attainment of the requisite 85% mark. The second year also does not require a recommendation. 50Mr Wesley conceded that the matter in dispute does not necessarily fall under section 137, nevertheless, he submitted that the Commission has the power to make a determination in the matter. 51Mr Wesley noted that although Mr Gibbs achieved ratings in excess of those attained by other employees his progression was denied whilst their progression was confirmed. 52Mr Wesley pointed to the "subtle confliction" between the statements provided by the witnesses and the evidence relied on by Council in rejecting the assessment of Mr Gibbs. In addition, Council had relied on various reasons, at various times, for rejecting his progression. 53During the original assessment, no officer above the level of supervisor assessed the information available in relation to Mr Gibbs' performance to ensure that the decision was based on fact. 54Mr Wesley pointed out that when the re-assessment occurred, despite the fact that a recommendation was not necessary, Mr Little confirmed that the status that existed prior to the original assessment should remain. Nevertheless, Council officers set about ensuring that the outcome should not standard citing inappropriate eye protection albeit no breach of Council policy or Work Health and Safety Act had been proved. 55Mr Wesley noted that Mr Leahy cited the lack of commendations on Mr Gibbs' personnel file as the reason why he did not support his progression. Council's Policy does not rely on commendations as a basis for progression. Mr Wesley argued that the commendations were there in the form of marks attained in the completed assessment and a recommendation for progression backed up by a typed note from Mr Little. Nevertheless, Mr Leahy relied on a different set of circumstances leaving the Commission in a conundrum as to the conflicting evidence. 56Mr Wesley pointed out that Ms Grewal had admitted in her written evidence that she had been less than diligent in 2011 in assessing the recommendation to move Mr Gibbs to step 5. Ms Grewal also virtually admitted that she had been less than diligent when, in considering the 2012 assessment, she had relied on there being no tangible recommendation to progress Mr Gibbs rather than assessing for herself, as Group Manager, all the information contained in the assessment. Finally, when the assessment was repeated, no stone was left unturned in an effort to ensure that Mr Gibbs would not progress. 57The Commission was urged to find that the evidence confirmed that the reasons given for not confirming Mr Gibbs' placement were subjective and opinionated and were therefore not compelling. The Commission was also urged to find that Mr Gibbs had not contravened Council's policy or the Act. 58Finally, Mr Wesley summarised the facts of the case as follows: (i)Mr Gibbs achieved a rating consistent with exceptional performance in both the original and the repeated assessments; and (ii)Mr Gibbs did not contravene any Council policy when he had the unfortunate incident in 2011. That was not lost on his supervisors who must have considered the incident with the safety goggles for what it was - an accident - because they scored him the highest rating achievable under the category "OH&S procedures and work safely". 59Mr Wesley pointed out that Council had failed in a number of respects: (1)It failed to have a salary system progression policy that was clear and concise in its application across all classifications. The current system does not provide a clear pathway, rather, it provides examples as to how employees are to be assessed; (2)It failed to provide any clear guidance as to how assessments were to be conducted and, if it did, it was not readily evident; (3)Its process of document control was seriously lacking in quality as they do not identify crucial information as to the identities of the persons making notations on those documents; and (4)Although refresher courses in health and safety are sometimes recommended in the event of an accident or incident, Mr Gibbs was not the subject of any recommendation to undergo refresher or any training as a result of the goggle incident. 60Mr Wesley concluded that Mr Gibbs was not only entitled to be confirmed in Step 5 of his current grade on a permanent basis as determined by two assessments, but the placement must be backdated to 1 July 2012. Mr Wesley sought a direction to that effect. 61Mr Crow pointed out that the Commission's arbitral powers in s 136 are limited: NSW Teachers Federation v Department of Education and Training (2003) 121 IR 177 (at para 31). 62Mr Crow also pointed out that the three authorities he was citing in support of the Respondent's case related to a threshold issue - that is, it is rare, if ever, for the Commission to involve itself in a promotional appeal except in some very restricted areas of State Government employments such as the jurisdiction inherited from the TAB. The only reported case related to award grades as opposed to the current instance which relates to a purely internal system which is very much at the discretion of the General Manager and employer. 63The Respondent cited In re Dispute - Upper Hunter County Council re Grading (No. 1) [1973] AR 361, In re Medical Officers - Hospital Specialists Award [1967] AR 45 and Monaro County Council v Electrical Trades Union of Australia, NSW branch (1985) 14 IR 138 in support of its submission as to why this Commission ought not get itself involved in such matters as promotional appeals and why, if ever it decided to do so, it should be in a case with the most rare and exceptional circumstances which, it was submitted, are not pertinent to the present proceedings. 64In relation to Section 136 (1) (a) and (b), Mr Crow submitted that it would be futile to make a recommendation as Council will not comply with it and directions are reserved for the preparation of material for hearings, for interlocutory purposes, and not a power to order final relief. In relation to Section 136 (1)(c), the dispute orders that the Commission is able to make are set out in Section 137 and none of them are apposite. The dispute does not involve an award grading. The Union is seeking an award determining Mr Gibbs' position in a salary system that is not in the award - it is seeking that the Commission "perform an everyday management function" of the Council by intervening and substituting its opinion for the opinion of the Respondent in determining whether or not his performance achieved the standard of excellence required to achieve an over-award payment contained in the Council's salary system. Mr Crow pointed out that the effect of such a decision by the Commission would be to convert an over-award payment, the terms of a private contract, into an award payment and would be contrary to the findings of Sheldon J In re Medical Officers. Mr Crow submitted that when one considers all of the evidence, one is irresistibly drawn to the conclusion that there is no basis for such intervention. In relation to Section 136 (1)(d), Mr Crow pointed out that the Act does not authorise the Commission to make an Order the effect of which is to require an employer to advance an employee to a higher salary step within a pay grade of the Employer's over-award salary system. 65Mr Crow emphasised the fact that an employee is temporarily in Step 5 in the sense that are still on their old grade but they receive a differential a one-off payment as a lump sum unless they achieve the required performance twice in a row. 66Mr Crow pointed out that the evidence indicated that all employees who had received the performance bonus the previous year were recorded as being on Step 4 (Mr Doyle G5/S4; Mr Gibbs G6/S4). The union was wrong, therefore, in submitting that Mr Wilson and Mr Little had assumed or made the assessment on the understanding that Mr Gibbs was already on step 5. 67Mr Crow referred to the original assessment of Mr Ball in which Mr Wilson had written "no change" in the space reserved for comment on any recommendation for a step increase. He also referred the Commission to the space reserved for the immediate supervisor, Mr Little, to comment as to whether the employee has acquired and applied the skills and demonstrated the traits and attributes at the appropriate grade and step. That, too, had been left blank. He submitted that the only sensible interpretation is that "no change" means no change was intended for the Step 4 that those employees were already on. 68Mr Crow denied that Ms Grewal lacked diligence because she had not commented with respect to the five fabricators pointing out that there was nothing for her to comment on as neither Mr Little nor Mr Wilson had made any recommendation for an increase. He noted that she had made comment on those employees whose managers had recommended them for an increase. Mr Wilson had written the word "No" for all five employees in the relevant column pertaining to recommendation for an increase. There was therefore nothing for Ms Grewal to comment on. 69Mr Crow provided detailed reasons in his written submissions as to why the statements produced from Mr Little and Mr Wilson should not be accepted. 70Mr Crow pointed out that there was a very good reason why Mr Musico got the recommendation and Mr Gibbs did not. Mr Musico attained a score of 87.5% while Mr Gibbs attained a score of 91% and therefore both had exceeded the requisite 85% score in relation to job and work skills. Nevertheless, Mr Cusico ticked all the boxes in relation to his work performance and had completed, in the relevant year of assessment, a Frontline Management Certificate IV whereas Mr Gibbs had a black mark against him for incurring an eye injury as a result of his failure to wear the appropriate PPE. Mr Crow explained that it was for that reason that Mr Musico was selected for an increase as he was deemed to have sustained exceptional performance notwithstanding that he had scored 3.5% less than Mr Gibbs. 71Mr Crow insisted that there was no favouritism shown to Mr Musico or that hostility or malice in any way influenced the decision makers. He pointed out that it was "a perfectly straightforward exercise of managerial discretion" and the union had not presented any evidence that would impugn the integrity of the process in that respect. Just because Mr Gibbs feels aggrieved that he did not get the promotion is not sufficient to justify the Commission intervening in the management by the employer of its salary and grading system. 72Mr Gibbs suffered an injury from a fragment of metal which got up underneath the safety glasses that he was wearing. The Council's PPE policy expressly mentions goggles as an example of eye protection that is designed to be worn to provide protection of employees from the hazard of injuries for their eyes from grinding, cutting or drilling material. Mr Gibbs conceded, in crossexamination, that he was aware that goggles were available and that they would have prevented the injury, but he chose not to use them. The eye protection worn by Mr Gibbs were not appropriate as they had allowed the injury to occur. 73The appropriate goggles were available to Mr Gibbs. Mr Crow reminded the Commission that Mr Gibbs was the author of the risk assessment in which appropriate PPE was mentioned. The Respondent relied on the commonsense and training of employees to determine what was appropriate PPE in the circumstances having regard to the nature of the risk. It was not necessary to specify the level of PPE or the type of PPE for every single task that an employee performs, particularly as, in the circumstances involving Mr Gibbs, a flying fragment of metal from a grinding operation is not an unforeseeable hazard. Mr Gibbs admitted in cross-examination that there was a gap left below the glasses. Commonsense dictates that the eye protection worn by Mr Gibbs provided inadequate protection against that sort of risk given the task he was performing. 74Mr Leahy gave evidence that Mr Little had referred to an alternative PPE - a face shield as offering better protection. There was no suggestion that there were hot weather conditions experienced on that day that would result in the full-face shield fogging up. Mr Leahy also gave evidence that Mr Wilson had noted that side-guarded safety glasses was his preferred option. It was noted that the safety glasses the union said Mr Gibbs was wearing at the time of the accident and were produced in the Commission did not have side guards. Mr Leahy gave evidence that Mr Gibbs had signed off on the "Register of Incidents" form his acknowledgement of those two better forms of PPE. 75Mr Crow argued that the Union missed the point Council was making when arguing that Mr Gibbs had not breached any policy or risk assessment by his actions. He emphasised that safety is a very important matter. Mr Gibbs was obliged to wear appropriate PPE and it was irrefutable that he was not wearing PPE. He argued that it was perfectly legitimate for the Council on take the view that an eye injury which necessitated two days off work on workers comp is a sufficient matter to prevent the service for that year from being sustained exceptional performance, particularly given the fact that there had been no studies done in the year or commendations or awards. 76In summary, Mr Crow pointed out that even if the Commission found that rare and exceptional circumstances existed sufficient to justify the Commission reviewing a promotional decision of the employer, this is not a case where there was a reason for doubting the genuineness of the Council's decision. 77In conclusion, Mr Crow reminded the Commission that it cannot make a direction in the matter and the only power it has is to make an award. In that regard, Section 15(3) provides that the Commission cannot make awards retrospectively back to a date earlier than the notification of dispute. CONSIDERATION 78The Salary System Operating Procedures developed by Sutherland Shire Council contains a salary structure with 15 salary grades across Council. Each salary grade has four salary steps above the entry level (step 1) with movements of approximately 3% between pay points. 79Salary progression is achieved, in the main, by moving to the next step of the relevant grade. Performance appraisals are conducted once a year between March and April and reflect the previous calendar year (i e January to December). Any increments to the next step will be effective on the 1st July. 80Each skill criterion is assessed on a 5-step continuum from requiring "improvement" through to "exceptional performance". The question of whether an employee receives progression through the steps of the salary structure is then determined by reference to the following table set out in the said Procedures: From Step 1 - Step 2: If overall score is C or higher; From Step 2 - Step 3: If overall score is B or higher; From Step 3 - Step 4): If overall score is B or higher. From Step 4 - Step 5) Steps 1 - 4 are available to all staff for the development of the position through its natural range; 81In relation to progression to Step 5, the Procedures state the following: Step 5 is considered to be a Performance Step. Progression to the Performance Step is not automatic upon achieving satisfactory performance but rather is based on sustained exceptional performance. The process of progression is than an employee on the Step below the "at risk" performance step (i.e. step 4) who has achieved exceptional performance will receive a one off payment equivalent to the annual difference between their step 4 and the performance step (i.e. step 5) in the structure. If the exceptional performance is sustained for two successive years then the employee will be permanently placed at the Performance Step. this means that the performance step is at risk in the first year that it is achieved. The General Manager will have the discretion to determine the percentage of staff allowed to progress to step 5 each year. 82I accept that the Commission's arbitral powers in s 136 are limited. I also acknowledge that it is rare, if ever, for the Commission to involve itself in a promotional appeal such as in the instant case. 83There has not been a breach to the relevant Award nor has there been an interpretation error in relation to the Award. I accept that the movement to Step 5 is an over-award payment which is within the discretion of the General Manager to grant for exceptional performance. I do not propose to interfere with that management prerogative. 84Mr Gibbs was, in 2010, at Grade 6 Step 4 of the Salary System. 85In 2011, having conducted the assessments for the period January - December 2010, a recommendation was made, and accepted by the General Manager, that Mr Gibbs and two other boilermakers (Ball and Doyle) receive the step 5 bonus payment (a one-off payment equivalent to the annual difference between his step 4 rate of pay and the performance step) for "sustained exceptional performance". 86The Salary System prescribed that if was assessed in 2012 as having sustained exceptional performance in the period January-December 2011, he would achieve permanent placement in step 5. 87Early in 2012, when the appraisals for the 2011 year were conducted, the word "No" was written in against the name of each of the five boilermakers (including Mr Gibbs) under the heading "Increased Step R'Mended (if applicable)". All the results were contained in a spreadsheet which was provided to Ms Grewal. As increased steps were not recommended by Mr Wilson, Ms Grewal did not recommend them to either her Director or the General Manager. 88She was not provided with the individual Skills Profile and Assessment forms. Ms Grewal did not see the individual forms until early in March 2013. She noted that Mr Little did not write anything in any of the boxes reserved for the supervisor to include the step or grade for which "the employee has acquired and applied the skills and demonstrated the traits & attributes". She also noted that Mr Wilson, as the previous Manager of the Metal Fabrication Shop, had made an entry "No change" in relation to Messrs Ball, Doyle, Mushet and Musico. However, he had not made any notation against Mr Gibbs' name. Ms Grewal interpreted the forms to mean that the Supervisor and the Manager did not intend any change to the grade and step of any of the five boilermakers. 89The USU, however, formed the view that, because Messrs Ball, Doyle and Gibbs received the one off bonus payment in 2010, there were already on Step 5 and the words "no change" meant that their placement was to be permanent. 90I accept the argument by Mr Crow that if the union interpretation of the term "no change" was accepted, then it would result in a different outcome for Messrs Mushet and Musico than is given to them in respect of Ball and Doyle. For his part, Mr Gibbs had his current grade and step, G6 S4 written on his assessment. Again, I accept that there was nothing written on the assessment which could be construed as a recommendation for his permanent placement at the "exceptional performance" step, S5. 91I agree with the difficulties identified by Mr Crow in relation to the acceptance of the written statements provided to the Commission by Messrs Little and Wilson. They are in stark contrast to the contemporaneous records both men had kept during the assessments. 92In 2011, Mr Gibbs suffered an injury from a fragment of metal which got up underneath the safety glasses that he was wearing. He was, at that time, in the position of senior metal fabricator - a position designed to provide ongoing management of the metal fabrication shop in the absence of the supervisor. 93The Council's PPE policy expressly mentions goggles as an example of eye protection that is designed to be worn to provide protection of employees from the hazard of injuries for their eyes from grinding, cutting or drilling material. Mr Gibbs conceded, in crossexamination, that he was aware that goggles were available and that they would have prevented the injury, but he chose not to use them. Mr Gibbs admitted in cross-examination that there was a gap left below the glasses. Commonsense dictates that the eye protection worn by Mr Gibbs provided inadequate protection against that sort of risk given the task he was performing. 94The re-appraisals conducted in March 2013 as a result of the Commission's request resulted in Mr Musico obtaining a step increase but not Mr Gibbs. Mr Leahy and Ms Grewal held the view that the latter's failure to protect himself from sustaining a workplace eye injury did not support a recommendation that he be placed permanently on step 5. 95Mr Crow detailed in his written submissions the occupational health and safety responsibilities of Mr Gibbs and the fact that he was informed of the fact that he would be held accountable for complying and would have the performance of his OH & S responsibilities measured by annual appraisal. 96As indicated earlier, I do not propose to interfere with the right of the Council to advance employees with exceptional performance within their own salary structure as distinct from the Award. 97I do make the observation, however, that the salary structure would have been designed to provide employees with a goal towards which to aim, to encourage employees to strive to achieve exceptional performance in order to achieve increases well beyond the wage rates provided in the award. That goal should be encouraged. 98I would also make the observation that any policy to achieve such aim should be administered fairly and should be transparent in its application. For that reason, I would expect that all Supervisors and Managers undertaking appraisal of staff should be trained in the uniform completion of such forms in order that confusion such as we have witnessed in this case are the exception and not the rule. 99I would also make the observation that I would expect that once a matter, such as the 2011 accident, has featured in one appraisal, it does not feature in the following year's appraisal such as to hound that employee for the remainder of his working life with Council as that would be grossly unfair. ORDERS 100Matter IRC 149 of 2013 is hereby dismissed for want of jurisdiction. I Tabbaa AM 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: 19 March 2014