Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union v Shellharbour City Council re: proposed restructure [2016] NSWIRComm 1001 Hearing dates: 23 - 25 March 2015 inclusive; Written Submissions: 10 April and 17 April 2015 Decision date: 18 January 2016 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Arborists: claim dismissed; Tractor Positions: claim for regrade declined; Recommendations issued re: Review of Position Descriptions and Re-evaluation of the Tractor positions. Catchwords: Dispute-s 130 notification-OO-Soft Job Evaluation System-PDs basis for completing Job Information Questionnaire-Alleged failure in review of PDs -Alleged failure to take into account varying skills levels required to operate machinery with implements-Incorrect valuations and grading-Alleged failure to obtain input from the Job Holder in completing the JIQ-Operators declined to provide individual input and feedback into the PDs-Commission declined to intervene to regrade the positions-Commission declined to intervene in Arborists claim-Recommendation issued re Tractor Operators PDs-Recommendation issued for re-evaluation of Tractor positions. Legislation Cited: Industrial Relations Act 1996 Cases Cited: NSW Local Government Clerical, Administrative, Energy, Airlines and Utilities Union and Gilgandra Shire Council [2010] NSWIRComm 1053; Federated Municipal and Shire Council Employees' Union of Australia, NSW Division and Cessnock City Council (IRC 3639 of 1999, 11 February 2000); NSW Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Lake Macquarie City Council [2011] NSWIRComm 94; Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division and Wollongong City Council (IRC 4508 of 2002); NSW Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union v Gosford City Council [2011] NSWIRComm 1026 Category: Principal judgment Parties: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (Notifier) Shellharbour City Council (Respondent) Representation: Mr G Golledge (Notifier) Ms M O'Neill (Local Government NSW) (Respondent) File Number(s): IRC 766 of 2014 | 2016/14916 DECISION Background 1. The New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (the USU), on 28 October 2014, filed a dispute notification pursuant to s 130 of the Industrial Relations Act 1996 (the Act) in which it sought the assistance of the Commission to resolve the following issues: 1. Council are proposing a restructure within the Parks and Garden section of Council; 2. The Restructure proposes that position descriptions be updated; 3. Council, in a majority of cases, proposed increased levels of responsibility and added additional tasks, but did not propose to increase the grading of those positions; 4. Council was also requiring employees who were incumbents, to re-apply for their positions; 5. Council was in breach of Clause 39 of the Award, as it had entered into meaningful discussions with either the employees or their union; and 6. Council was refusing to hold urgent discussions on the effects of the "updating" of position descriptions on the existing salary system. 1. The matter was listed for compulsory and private conferences on a number of occasions during which time the parties reached a resolution on a number of the positions which were in dispute. 2. A Certificate of Attempted Conciliation was issued in relation to the residual which are the subject of these arbitration proceedings. 3. At the commencement of the arbitration proceedings on 23 March 2015, Mr Golledge confirmed that the proceedings were confined to the job evaluation outcomes, that is, the grades of the positions of two residual classifications – the tractor drivers (Front Deck Mower (FDM), Tractor Operator and Tractor- Boom/Slasher) and the Arborist. 4. The Union sought a determination, pursuant to section 136 (1) of the Act, that the Respondent regrade all tractor drivers to Grade 9 of their salary system and regrade the position of Arborist to Grade 12. 5. The Commission was assisted by a site inspection conducted on the first day of the hearing. Council's Salary System 1. The Respondent's Organisational Development (OD) Department is headed by Ms Penie Batman who has held the position of Group Manager, Organisational Development, since 30 November 2011 having acted in that position from the end of 2009. The position includes responsibility for the Salary system and Job Evaluations. Ms Batman provided detailed descriptions of the both operate. 2. The Respondent utilises version 20 of the OO-Soft E-Comp Evaluation system, a web based system based on the Award Skill Descriptors and designed to assist in the evaluation and sizing of positions specifically within Local Government. It has a 32 grade salary system with 5 steps within each grade. 3. To undertake an evaluation, the system requires the use of a Job Information Questionnaire (the JIQ) being completed. The JIQ sets questions designed to analyse a position's level taking into the account seven evaluation factors. An analysis of the answers fed into the programme produces not only a location at the appropriate grade in the salary structure but also maintains relativities between positions. The Procedure Adopted by the Evaluators 1. The Position Descriptions (PD) in dispute were reviewed as a result of a restructure. 2. The normal procedure is for Group Managers and Supervisors in the area to develop the PDs in consultation with the staff in order to capture what the job requirements are the first instance. OD staffs then seek clarification on any matters that are not clear before undertaking the final drafting of the PDs. 3. The two OD staff members who were involved in the evaluation of the disputed positions gave evidence in the proceedings. Ms Linda Apolo, Human Resources Advisor, undertook the evaluation of the position of Arborist before proceeding on maternity leave in August 2014. Mr Paul Kiley, Senior Human Resources/Industrial Relations Advisor, undertook the evaluations of a number of other positions, including the remaining disputed positions. The Evidence 1. Mr Kiley provided a statement in the proceedings in which he pointed out that up until mid-2011, the following three positions were considered as mower operators (Grade 7) and no consideration was given to the skills required to operate the Tractor with implements and the Tractor Boom/Slasher. He had re-evaluated those positions using the method he described above resulting in the FDM Operator remaining at Grade 7 and the two other classifications, Tractor Slasher and Tractor Boom/Slasher, moving to Grade 8. Mr Kiley stated that, following discussions with Mr Colin Watt, then Group Manager, Works and Services, it was decided that the FDM Operator would remain at Grade 7, the Tractor Slasher would move to a Grade 8 and the Tractor Boom/Slasher would move to a Grade 9. 2. Mr Paul Kiley further advised that in or around 2012, consultants had recommended, following a review of the outdoor area, that Works & Services be split into City Services and Parks & Gardens as the current structure was not operationally efficient. Funding was approved and Group Managers for both of those units were recruited in or around April 2013. One of the structures proposed by Supervisors and Managers of Parks and Gardens, in consultation with staff, was selected on 22 September 2014. The Parks Manager position was created. Mr Scott Peter Rowe applied and was successful in gaining that position. 3. Mr Kiley gave evidence that the PDs, the subject of this dispute, had been reviewed during the structural review and therefore had to be re-evaluated. Generally, PDs are written by the Managers in consultation with the job holders. Where there is a permanent incumbent in the position, the review of the PD is conducted with the participation of that individual. In this instance, that procedure applied to all the tractor operators as there were full-time occupants in those roles and therefore had the "opportunity" to input into the review of the PDs for their positions. However, the exception was the Assistant Arborist and Arborist positions as there was no-one permanently in those roles. 4. Ms Batman stated that she was of the belief that the said positions had not increased in complexity but, rather, were merely a revision of the way the work was undertaken. There was input and feedback from employees on the PDs in dispute. Scott Rowe and Kathleen Parker never raised any concern with her regarding the evaluation outcomes of the positions in dispute. 5. Mr Kiley stated the PDs for the tractor operators were distributed for comment. No feedback was received within the timeframe provided for comment. Mr Rowe pointed out that the operators did not take advantage of that opportunity to have one on one input and referred the matter to the USU. The USU resisted providing any feedback prior to the gradings being undertaken and the PDs were forwarded to OD for grading without any input from the union or its affected members. Feedback was received from the USU until just prior to, and after, lodgement of the dispute notification. 6. Mr Rowe recalled meeting with Ms Batman, Kathleen Parker (Group Manager - Parks, Aquatics, Landfill and Stadium) and Ms Apolo regarding queries concerning the Supervisor gradings only as no queries had been received regarding the grading for the Arborists or the Tractor Operators. 7. Mr Rowe also recalled that once all queries had been satisfied, a toolbox meeting was held on 23 September 2014 at which the grades of the various positions were announced. Mr Kiley had attended that meeting to provide explanations and respond to queries. He further recalled that there was some robust discussion as to why the Gardeners remained at Grade 11. The Arborists and Tractor Operators' Grades were not challenged prior to the Commission proceedings. 8. Mr Kiley provided the following evidence in relation to each of the PDs he had evaluated: Front Deck Mower Evaluation The Council has six FDMs. The evaluation initially resulted in a Grade 7, a few points short of a Grade 8. He had discussions with the Parks Manager, Scott Rowe, and it became apparent that he had under-evaluated the use of the proposed mobile devices and also the fact that FDM Operators operate alone. He re-evaluated the position and those considerations were sufficient for the evaluation to come out at the lower end of a Grade 8 having scored 563.36 points. During cross-examination, Mr Kiley explained that the mobile device has not yet been implemented. It is a tablet device which records job orders electronically rather than on timesheets. Its addition was enough to take the front deck mower operator to the top of Grade 7 just over into Grade 8 but did not have any substantive effect on the other classifications. Mr Rowe explained that at the Tool Box meeting held on 23 September 2014 he had distinguished the skills associated with the use of the FDM Operator from those of the Gardener Labourers who had remained at Grade 7. The operators of the former are required to operate an out front mower and its edger attachment, are required to work alone with minimal direct on site supervision and to follow a mowing schedule. In addition, Mr Rowe advised that two of the existing FDMs have been upgraded to bigger machines with fold down wings and are twice the width of cut of a standard FDM and twice the dollar value. He explained that the Operators of those new machines have a similar responsibility to that of Tractor operators in terms of watching for objects whilst mowing due to their width being equivalent to that of some of the tractor mowers. Mr Rowe further explained that any of the six FDM Operators could be and will be asked to operate a tractor on any given day when one is available. On that basis, they will be expected to gain competence operating a tractor and the various implements. Mr Rowe advised that FDM Operators receive induction training following which they receive on-the-job training from an experienced FDM Operator who would then, at the appropriate time, certify them as competent, or not, on that piece of equipment. Tractor Boom/Slasher Evaluation The Tractor Boom/Slasher is required to have the highest level of skills that can be accounted for in the evaluation. The position has been graded as a 9 since 2011 reflecting that extra skill above the Tractor Slasher Operator position. However, as a result of the restructure, the evaluation in October 2014 resulted in a Grade 8 (Band 1, Level 3) having scored 619.02 points despite the fact that he had rated the position as requiring between 4-7 years' experience and requiring a comprehensive specialist knowledge and skill level in relation to the operation of both small plant operation and tractor with implement operation. The evaluation is not in relation to each implement individually, it is an evaluation of tractor with implements. Mr Kiley said he discussed his concern with Mr Scott Rowe, the Parks Manager, and agreement was reached, having regard to the fact that it was at the higher end of Grade 8 and given that the Council has experienced problems trying to fill the boom slasher role, to leave the evaluation at a Grade 9. He pointed out that it is a recognised different skill from a tractor, with either a flail mower operating at the front of the machine or a reach arm/boom mower attachment operating at the back cutting one end at a time. It is a high horsepower machine. Mr Rowe acknowledged that the machine requires an experienced Operator to operate it as there is a requirement to co-ordinate the movement of the tractor and the alternating movement of the arm mower working alone with minimal direct on site supervision. The Operator requires extensive "on the job" training given the above and given the greater degree of risk of throwing debris if not operated correctly. The Operator is also required to follow a mowing schedule. Tractor Operator Evaluation The PD for Tractor Operator has, on two occasions, 8 September and 31 October 2014, being graded at mid-range Grade 8 having scored 572.29 points. Mr Kiley pointed out that he had specified the level of experience required as being 2 years but less than 4. Mr Rowe acknowledged that the Tractor Operator is also required to follow a mowing schedule and work alone with minimal direct on site supervision using a variety of grass cutting implements. Mr Rowe explained that Tractor Operators receive induction training prior to receiving on the job training from an experienced Operator who would then, at the appropriate time, certify them as competent, or not, on the attachments. 1. The USU contends that the evidence provided by its three witnesses will indicate that the Council's Salary System, inclusive of the JIQ, is applied inconsistently, subjectively and on an ad hoc basis. 2. Mr Michael Leonard has been employed by the Respondent since March 1992 in the capacity of Manager Information Technology. He has held the position of USU Indoor Staff Delegate for the past eight years. 3. He has observed the operation of the Respondent's current salary system in both his roles as Manager and as Union Delegate and was able to provide the evidence below. 4. Mr Leonard stated that, in his opinion, based on his observations, and from matters raised with him by USU members, the salary system is both ineffective and inequitable. He provided the following reasons in support of that view: 1. The Group Manager Organisation Development recently admitted, at a Workplace Consultative Committee (WPCC) meeting, that there are only two people located in her department at Council who are trained in the operation of the software which underpins the salary system. Ms Batman pointed out that both she and all her team of seven have been trained in the evaluation system. She recalled that at the WPCC meeting, she had advised that two separate staff members independently undertake each job evaluation – in other words, each evaluation is done twice. 2. Those two people do not, and cannot, have detailed knowledge of the roles, responsibilities, skills and requirements of each of the wide ranging variety of positions in each of the following departments – information technology, civil engineering, urban planning, financial accounting, heavy equipment operation, horticulture and labouring. Ms Batman argued that the Evaluator is not required to have a detailed knowledge of each and every position in order to undertake the review. The evaluation process includes researching the position and seeking clarification, with the PD being the primary source of information as it contains the responsibilities, skills, knowledge and qualifications/experience required for the position. 3. Their limited understanding of the above are gleaned from the only tool available to them and that is the individual PDs which are developed by the position's supervisor and are designed to describe the general requirements of internally and externally advertised positions. Ms Batman pointed out, during cross-examination, that she had actually being invited to view the work being undertaken and to go through the various pieces of machinery and therefore she was reasonably familiar with the PDs in dispute. 4. There was no evidence to suggest that any of the supervisors has had specific or formal training in the correct development of PDs designed to enable their use for the purposes of the JIQ. 5. The PDs are supposed to be updated at each employee's annual performance review. Firstly, the performance reviews are sporadic. Mr Leonard cited himself as an example. He has not had a performance review in years. Secondly, the PDs are supposed to be updated at his employee's annual performance review if any changes to the positions are noted. It should immediately follow that the positions should, as a result of such changes, be evaluated through the JIQ process to determine if a change in the salary system structure is warranted. In that regard, PDs are rarely changed to reflect changing work practices on the ground. During cross-examination, Mr Leonard conceded that he had not been involved in this dispute prior to the filing of his witness statements nor had he been involved in the development of the four PDS which are the subject of this dispute and therefore was not aware as to whether or not they had been updated. 6. The Group Manager, Organisation Development has advised that there is a weighting applied to the answers to specific questions which affect the outcome of the JIQ (the level of budget control, the number of staff supervised and the qualifications required for the position). 7. Volunteers and casuals are not able to be included in the number of employees supervised despite the fact that there are positions that supervise significant numbers of casuals and volunteers, there is increased casualization and many casuals have been working continuously for extended periods. The effect of this inequity is increasing as those classes of persons require the same supervision, skills and assessments as full or part-time employees. Mr Leonard was referred to Section 4, Management Skills, of the JIQ. He conceded that the following were taken into consideration in evaluation positions: supervision/management of contractors (personnel); supervision of volunteers and casuals and the number of employees a jobholder is required to supervise. Ms Apolo argued that the job evaluation takes into consideration the number of personnel supervised, directly and indirectly, and the number of contractors and volunteers supervised. 8. The PDs developed by supervisors for their staff have been subject to tampering in relation to qualifications (desired or expected) by the OD unit to achieve a desired result with respect to the level of remuneration for that position. The incumbent does not have an input into any changes to their PD. Ms Apolo argued that the PDs are assessed based on the qualifications listed therein. 9. It was erroneous to suggest that the Budget Responsible Officer carries sole responsibility for the formulation, reporting and management of the budget when individual Union members were in fact creating and managing and reporting on every aspect of the budget for their area. He gave as an example a member he was representing who, he believed, would have been sanctioned if management had identified any errors in the creation or management of the budget in his area. He argued that the JIQ does not reflect that position. Mr Leonard conceded, during cross-examination, that the JIQ does take into account a person's responsibility for budget development for future expenditure and setting priorities for the allocation of funds. Ms Batman stated that while other staff may provide input into the budget process and may even have delegation to sign off on purchases, budgets per se are the responsibility of the budget responsible officer who is ultimately accountable for managing the funds. In addition, Ms Apolo pointed out that Section 2.5 of the Job Evaluation System measures the involvement of the position in developing budgets for future expenditure while Section 2.4 measures the level in which the job holder is held accountable for the outcome of events. 10. Despite the fact that, as Manager Information Technology, he is responsible for all facets of computerised system delivery, maintenance and support, it was extraordinary that he has never been privy to the software for producing the grades within the salary system. Mr Leonard conceded, during cross-examination, that it was not a requirement of his role that he undertake job evaluations through the OO-SOFT salary system nor had he been trained in that system. Ms Batman pointed out that the software is not on Council's system and therefore there was no requirement for the Council's IT staff to provide support or maintenance for it. 11. Staff are not provided with detailed information on the scores allocated to the questions they responded to and how they are achieved. They are merely provided with the result of the review of their position. It is rare for the employee and the OD staff member to agree on the responses to the questions. In fact, during his term as USU delegate he has only witnessed that occurring on one occasion. The rest of the time, their responses were vastly different. It is difficult to determine, therefore, whether the scoring has been carried out correctly and, as a result, whether the positions are being correctly evaluated. Ms Batman gave evidence that over 100 positions have been evaluated in the last four years of which only two were raised as grievances through Council's internal grievance procedure. 12. He recently issued a Notice of Motion to the Workplace Consultative Committee seeking the establishment of a joint sub-committee comprised of representatives from all unions and the Council with fixed terms of reference to review the principles and operation of the JIQ and ascertain its suitability or otherwise. 1. Mr David Ryman also gave evidence on behalf of the Union. He commenced employment with the Respondent as a FDM operator in 2004 and progressed to a Tractor Operator in 2011, a position he currently holds. He is required to hold a C class licence to operate both types of machinery as FDMs are allowed on the road albeit they are limited by their registration. He agreed during cross-examination that the requirement to hold a C class licence does not change if he is required to use the boom or slasher attachments. 2. He did not recall receiving any training in either position with this Council although he had received training in operating the tractor whilst in employment with another Council. He agreed during cross-examination that he had 15 years' experience in FDM and tractor operation. He also agreed that he possessed the specialist knowledge and skills for operational band 1 level 3. 3. When operating a FDM, he was required to mow around objects the tractors could not get close to as well as mow some open spaces. It did not require any attachments. Throughout the period of his employment with the Council, a mowing schedule was in place and operators of FDMs worked with minimal, direct on site supervision. 4. He had objected to relief work he was frequently appointed to on the tractor by the Respondent as both positions were paid at the same Grade 7 yet the tractors required higher skills (with or without the variety of attachments that can be fitted to them), greater responsibility and knowledge to operate in different terrains in addition to the requirement to operate them on the open road alongside traffic. 5. Mr Ryman provided a brief description of the attachments to the tractors exhibited during the site inspection: a) Pegasus: It is a rigid attachment attached to the back of the tractor, similar to towing a trailer as it has a chassis and wheels. It gives a cut of 20 feet and weighs 3 tonne. It has 65 grease nipples which require attention every day. It has 8 cutting blades and once the cutting height is set, it cannot be altered without switching it off and manually resetting it. It is difficult to tow in traffic. When travelling downhill, its weight pushes the tractor forward making braking difficult particularly given that the driver's seat is as high in the tractor as it is in a truck and the combined weight of the tractor and that attachment is about 8 tonne. It is also difficult to turn the tractor because of the weight of that attachment and its rigidity. The Operator cuts in a wide arc and if he were to turn too quickly, the drive shaft can snap. The Operator is required to watch four rear view mirrors to avoid fence line posts and avoid people and animals. He agreed that it was more difficult to operate than the Hay Cart. b) Stealth: It is attached to the back of the tractor. It has a 12 foot cut and weighs less than a tonne. It is mainly used to cut big open areas of reserves and sports ovals. It requires constant attention to avoid people and animals. There is the ability to cut with the middle blade while the two outside blades are up or to cut with all three blades. It utilises hydraulics for the raising of the wings via a hand lever located inside the tractor. Unlike the Pegasus attachment, it has the ability to double cut (the attachment is raised and used to cut then it is lowered to grass level to undertake another cut). Like the Pegasus attachment, extra care is required as the attachment moves up and down when the tractor is on the road. c) Slasher: It is attached to the back of the tractor and used mainly for slashing long grass on the sides of rural roads. It is the most difficult to operate. Given its width (it has a 6 foot cut) and the fact that it had a ridged ride which means that it does not ride along the ground and therefore does not adjust to undulating landscapes, the Operator needs to keep lifting it up to keep it level with the ground to avoid it digging into the earth and causing damage. The same applies when negotiating a turn in a tractor with that attachment. In addition, the Operator has to be constantly on guard to cut in a straight line because it is not possible to gauge the cutting width as the attachment is not as wide as a tractor. Mr Rowe explained that the slasher is also PTA driven but runs on skids. It is a fixed unit that has to be levelled up and down given the terrain it is on. He argued that, like the FDM, it would be set at an appropriate height and operated over normal ground, even over slightly undulating ground. He agreed that the slasher has to be lifted to turn it otherwise it would dig into the ground. d) Hay Cart – This attachment is used mainly when ovals are being scarified approximately once per annum. The Operator follows behind other tractors when the ovals are down to dirt and picks up the grass. e) Aerator or Verti Drain – It is used primarily to aerate sports ovals. It is attached to the 3-point linkage at the back of the tractor. The height on this attachment also has to be adjusted to avoid damage to the irrigation systems fitted to the ovals. f) Poison/Chemical Spray Tank – It is operated with a boom spray or hand held hose attached to the back of the tractor to the 3-point linkage. It has a boom arm attachment for spraying sports ovals for pests and diseases. The Operator is required to calibrate it for the mixture of poison to water and the rate at which the sprays are coming out of the tank to achieve the required speed. Precautions have to be taken in relation to wind, wind direction and velocity to avoid killing off healthy flora. The Operator is required to obtain a ChemCert certificate to operate this attachment. Mr Rowe pointed out that the Gardeners and labourers also use spray rigs albeit not with the boom arm. g) Lawn Levelling Blade – It is used on cricket pitches. It is also attached to the 3-point linkage on the tractor and is used solely to move dirt around. h) Lawn Leveller – It is used to spread between 20-50 tonnes of soil for top dressing ovals. It is also attached to the 3-point linkage on the tractor. i) Broom – This attachment is also attached to the 3-point linkage and is used to sweep debris from the runway at the airport. j) Fertiliser Spreader – It is attached to the back of the tractor with the 3-point linkage and is used to spread fertilizer on the sports ovals. k) Quick Hitch – It is used for towing containers onto the beach for lifeguards. l) Borer – It is attached to the drive shaft (PTO) and is used for drilling holes. m) Edger – It is used for edging the median strip for Roads and Maritime Services. n) Boom Arm – It is used to cut large rough areas where the grass is long (difficult slopes such as river banks, road verges and along creeks). It has a flail on the front. The boom arm and the flail cannot be used at the same time. More skill is required to operate this attachment as the Operator has to concentrate on the cutting attachment at the back of the tractor while controlling it with a joystick and driving the tractor at the same time. When using the flail, the Operator concentrates on the equipment in front of the tractor. Although it has been evaluated as a Grade 8, the Respondent has been paying the Operator as a Grade 9 over the past three years. Mr Ryman stated that, after a number of years of complaining, the Respondent, in 2011, regraded the 7 tractor operators to a Grade 8 citing the fact the tractor had a variety of attachments and more horsepower. The boom operator was regraded to Grade 9. 1. Mr Rowe pointed out that whether some implements require more skill to operate would depend on the individual implements as some are quite small and do not come in contact with the road. They are also on a bigger, faster machine as opposed to the FDM which is smaller and more at risk on the road. 2. The FDM Operators were recently upgraded to the lower end of a Grade 8. Mr Ryder agreed that the FDM is only able to drive on the road conditional on it being driven up to five kilometres from the Works Depot and for that reason, the Operator is required to take responsibility for a trailer and a ute to transport that piece of machinery beyond that range. The FDM is PTO driven and runs on jockey wheels. It has a lever that lifts and lowers the cutting blades. Once the blades are lowered and mowing commences, the Operator needs to avoid hitting obstacles, know which way to shoot grass, and avoid scalping areas. Mr Rowe agreed that the FDM has little jockey wheels which go over undulating ground without lifting it. He argued, however, that, on occasion, as with the slasher, the Operator needs to lift it up when it comes across an obstacle, go over the terrain and then lower it again. 3. During cross-examination, Mr Ryman agreed that pursuant to Operational Band 1, Level 3, of the Award, employees are expected to: 32.1 be multi-skilled (including operation of tractors with attachments); 32.2 apply defensive driving techniques; 32.3 operate large ride on construction machinery such as grader, backhoe and excavator, including a tractor; 32.4 operate ride on machinery in a confined space; 32.5 operate attachments to major plant items (including the Pegasus attachment); 32.6 have the same skills and level of judgment on the road as one would if they were towing a caravan on the back of their car; and 32.7 hold a farm chemical certificate. 1. In re-examination, Mr Ryder clarified that his only source of knowledge as to what was taken into account in the grading of the position was what he was advised by the Human Resources department of the Respondent Council. Mr Rowe, during cross-examination, agreed that Mr Ryder had mentioned to him that he did not believe that FDM operators and tractors should be assessed at the same grade but pointed out that Mr Ryder did not elaborate on those issues but merely pointed out that he would be taking them up with the union. 2. Mr Ryder did not agree that the reference to "confined spaces" included reference to median strips or areas around lots of trees. 3. During cross-examination, Mr Ryder agreed that the large ride on construction machinery referred to in the skill descriptors for Operational Band 1, Level 3, of the Award included tractors. He also agreed that the machinery referred to (grader, backhoe and excavator) were larger in size than a tractor. 4. Mr Ryder also agreed that the skill descriptors for Operational Band 1, Level 3, require the skill of being able to operate the tractor and the attachments to major plant items he described above such as the Pegasus, the Stealth, the Slasher and the Boom. 5. Mr Ryder further agreed, upon examination of the Job Evaluation printout, that the following had been taken into account: 37.1 The Tractor Operator position required the operation of large ride on construction machinery; 37.2 The requirement to have a Class C Licence; 37.3 The requirement to have a sound working knowledge of tractors with implementation operation; 37.4 The use of the attachments listed in his statement and observed during the site inspection; 37.5 The ability to utilise hydraulics; and' 37.6 The requirement to hold a farm chemical certificate; 1. In comparison, the job evaluation for the Tractor Boom Slasher position, Mr Ryder agreed, had taken into account in assessing the position as a Grade 8, the requirement to possess a "comprehensive" skill level in small plant operation (eg chainsaw, tractor operation with implements); [emphasis added] 2. Mr Ryder acknowledged that the Skill Descriptor of the FDM Operator requires a solid working skill of turf care and maintenance including lawn mowing, sporting fields maintenance and general garden labouring. He agreed that the FDM is an easier machine to operate than a tractor. 3. The Tractor Boom Slasher was evaluated at 619.02 points (at the higher end of the Grade 8 banding - borderline) as opposed to the 572.29 points scored by the Tractor Operator and the FDM Operator who scored 563.36 points. Nevertheless, they have all been graded as Grade 8 albeit the FMD Operator was at the lower end of the scale and the Tractor Operator was in the middle of the Grade 8 banding. Mr Ryder agreed that even though jobs can have different valuation points, they can still be the same grade. He also agreed that the Tractor Boom Slasher took into account higher skill knowledge than the Tractor Operator and FDM Operator. Mr Ryder accepted that the skills had been graded correctly. 4. Mr Ryder agreed that the levels of the machinery are pre-set prior to going out to do the mowing of the area and Operators are not required to continually reset the level while operating the machinery. 5. Mr Ryder also agreed that Operators, when mowing grass, operate in either gear A or B at a maximum speed of one kilometre per hour. The Arborist Claim 1. The crewing of the Chipper Truck was an Arborist and two labourers. The crewing proposed as a result of the restructure in the outdoor area is a Senior Arborist, an Arborist and a Labourer. 2. Ms Apolo gave evidence that, upon receipt of a request from the then Acting Group Manager of Parks, Aquatics, Landfill and Stadiums (PALS), and approval from the relevant Director, she commenced grading the Arborist and Assistant Arborist positions on 30 June 2014. 3. As was her custom, she conducted a comparison between the old PDs and the new PDs developed for both positions. She forwarded an email to the Manager requesting further information about the number of persons they supervised, both directly and indirectly. 4. In the interim, she received a revised PD for the Assistant Arborist position from Mr Kiley. The revised new PD noted that the position required as an essential criteria "demonstrated experience in undertaking the following …." as opposed to the previous updated PD which required an "ability to undertake the following tasks…". She re-evaluated the position taking into account the revised PD and the response provided by the Manager. 5. Ms Apolo stated that the paper JIQ she generated had been reviewed by Susan Joy from OD who was also trained in the job evaluation system. 6. The evaluations points for the Assistant Arborist of 796.81 only just scraped in as a Grade 11 as that grade has a minimum evaluation points requirement of 791. The Assistant Arborist position had been evaluated as a Grade 11 Band 2/1 position. 7. Ms Apolo stated that she advised the Director of the outcomes by email on 10 July 2014. 8. Mr Rowe explained that Mr Nolan had been receiving higher grade pay (Grade 12) because he had been acting in the role of Arborist. That position has now been reclassified as Senior Arborist and regraded as Grade 13. 9. Mr Rowe further pointed out that the additional skills of rigging and rescues, designed to be gained on the job, had been added and taken into account in the regrading of that position. 10. Mr Nolan confirmed that he is currently employed as a relief Arborist Assistant and has been in that position for the past two years. His job is paid at a Grade 11, however, for the last six months he was being paid as a Grade 12 because of the requirement to drive the Chipper (Mulcher) truck. He stated that an induction is required prior to the operation of the Chipper truck because of the dangers associated with using that type of machinery. 11. Mr Nolan pointed out that two essential criteria have been added to the PD - a requirement to undertake rigging and climbing and a requirement to undertake rescues in trees. The former requires knowledge of trees, the ability to undertake a tree assessment before climbing, knowledge of climbing equipment, rigging and cutting tree limbs/trunks to the Australian Standards. The latter involves knowledge of procedures and possession of skills designed to minimise the risk of injury to the rescuer and a person in a tree who is unable to descend on their own as a result of an injury. 12. Mr Nolan also pointed out that an essential criterion in the current PD is attainment of a Certificate III in Parks & Gardens. He has attained that qualification. Ms Apolo pointed out that the revised PD requires a Certificate II in Arboriculture or equivalent and not a Certificate III in Parks and Gardens. 1. Mr Nolan argued against the proposal in the new PD that an Arborist be paid at Grade 11, the current grade for an Arborist Assistant, citing the additional essential criteria as the bases for his view. 2. During cross-examination, Mr Nolan acknowledged that the Assistant Arborist position had been evaluated as a grade 11 Band 2/1 position. He conceded that the comprehensive skill list contained in the PD included rigging and climbing as a requirement of being an arborist and undertaking arboriculture. He confirmed that he had received on the job training in both of those requirements. 3. Mr Nolan agreed that the evaluation of the Assistant Arborist position came up with a score of 796.81 points (at the low end of the evaluation points for a Grade 11 which is 791 points) compared to a minimum score for a Grade 12 of 870 points. Submissions 1. The USU relied on the evidence provided by Mr Ryman in relation to the difficulty, skills and knowledge associated with driving a tractor with any one of 13 implements over varying surfaces/terrains and on public thoroughfares. 2. Mr Ryman disagreed with the grading of the Tractor Operator position. The USU pointed out that the Respondent was unable to establish that Mr Ryman was either aware of how the JIQ process worked or his involvement in the development of the PD for that position or the relativity between the PD and the JIQ process. Mr Riley merely knew, via Mr Kiley, that the assessment had been carried out. It was submitted that the above demonstrates the ad hoc approach adopted by the Respondent in relation to grading positions. 3. All of the Respondent's witnesses, the Evaluators of the disputed positions, gave evidence that they relied primarily on the PD for the position and on the Manager/Supervisor having a comprehensive knowledge of the position being assessed otherwise they would approach the position holder to ascertain the skills and specialist knowledge required to carry out the role. The USU pointed out that Mr Rowe's evidence clearly demonstrated that he had little or no experience in the operations of a tractor or its implements. Despite that fact, neither he nor his supervisors discussed the position or grading directly with the tractor operators. 4. The USU noted that, during cross-examination of Mr Kiley, it was confirmed that the job holder was not provided with an opportunity to have any input into the JIQ system despite the fact that the system makes provision for the job holder to complete one of the sections in the assessment document. 5. The evidence from Mr Kiley was that job holders had an input into the development of the PDs. The evidence demonstrated that Mr Ryman expressed his concerns about the grading of several positions in Parks and Gardens, specifically the position of Tractor Drivers and Arborist, with both Mr Rowe and at the Council's Parks Reference Group but did not receive any response. It was pointed out by the USU that Mr Rowe had acknowledged that the issue was raised but was vague and evasive on the subject during cross-examination. 6. The USU drew attention to the fact that Mr Ryman has 15 years' experience in driving a FDM and 10 years' experience in driving and operating a Tractor with implements. That skill and knowledge was demonstrated during the site inspection when he explained and described, in great detail, the complexity of operating the 13 implements inspected and the skills and specialist knowledge required to be used in their operation. 7. In contrast, Mr Rowe had confirmed that he had no experience in driving or operating a Tractor with implements, little experience in driving a FDM and, in fact, last drove a FDM as an apprentice. Yet he opined that similar skills are required in operating both plant. The USU questioned his credibility given his lack of experience in the area. 8. The USU referred to the evidence by Mr Leonard who considered the operation of the JIQ and therefore the Salary System as ineffective and inequitable given that two OD staff members are responsible for completing the JIQs based on their limited understanding of the specifics relating to roles, responsibilities, skills and requirements of position in a variety of departments (Information Technology, Civil Engineering, Urban Planning, Financial Accounting, Heavy Equipment Operation, Horticulture and Labouring). 9. The USU argued that the Evaluators relied primarily on the PDs provided by Supervisors/Managers to assess and grade positions yet the PDs are general in nature and do not specifically isolate the skills and specialist knowledge required by the Job Holder. It was submitted that if the skills and specialised knowledge are not specifically spelt out in the essential elements of the PD, then the translation of the JIQ would be insufficient to attain an accurate grading. Both Mr Kiley and Ms Apolo confirmed that the PD and the JIQ merely referred to tractor and implements when the evidence demonstrates that there are 13 complex implements used as attachments to the Tractor. 10. The USU submitted that another example of the contention that the system is applied inconsistently, subjectively and on an ad hoc basis is the valid point raised by Mr Leonard, and confirmed by Ms Batman, that supervisors are not trained in the JIQ process (including developing and evaluating PDs, their criteria, skills and specialist knowledge). 11. The USU also submitted that the JIQ system is flawed because it does not recognise or reward points for specialised knowledge or skills required by the Job Holder. Mr Leonard, as delegate, provided as an example the staff member who had created, managed and reported on every facet of the budget for their area yet on the JIQ the response was "0" to the question "what budget are you directly responsible for?" He was given the explanation that the supervisor was the one who got sanctioned if the budget was wrong. In actual fact, the union member would have been sanctioned if errors in the creation or management of the budget were identified. 12. The USU further submitted that the fact that Council determined that the Boom/Slasher Operator should be paid as a Grade 9 when the position was assessed as a Grade 8 merely confirms that neither the JIQ nor the PD adequately recognise specialist skills and knowledge used by a tractor operator when implements are attached. It was submitted that the specialist skills and knowledge required to operate the Boom/Slasher are at the same level as those required to use and operate the 13 implements that attach to the tractors yet those individual skills have neither been considered not evaluated in any practical way. 13. The USU contended that the same distortions as described above apply to the evaluation of the Arborist positions. The Respondent would have the Commission believe that the same Grade applies to the Arborist and Assistant Arborist positions. Mr Nolan gave evidence that the only difference in both PDs is a requirement, as an essential qualification, for climbing and rigging and undertaking rescues. It was pointed out that common sense would dictate that the assistant position would require significantly less skills and responsibilities than the Arborist. 14. The USU noted that Ms Batman gave evidence that a re-evaluation of the PD may occur at the behest of a Manager or Supervisor for any reason and may result in a different score which could then result in a different grade. That would suggest, it was contended, that the JIQ process is open to subjective evaluation of grading. 15. The USU relied on the decision in New South Wales Local Government Clerical, Administrative, Energy, Airlines and Utilities Union and Gilgandra Shire Council [2010] NSWIRComm 1053 in support of its submissions that its members have not been appropriately evaluated. 16. In conclusion, the USU submitted that the Commission is possessed of jurisdiction pursuant to section 136 (1) of the Act to grant Orders requiring the Respondent to regrade the positions of tractor operator from a Grade 8 to a Grade 9 and Arborist from a Grade 11 to a Grade 12. 17. It was pointed out on behalf of the Respondent that the USU bears the onus of proof to demonstrate that Council erred in the evaluation and grading of the four positions in order for the Commission to intervene in this matter. It was submitted that the USU has failed to do so. 18. It was submitted that it would not be appropriate to adjust outcomes merely because employees hold the view that their positions should be of a higher grade. 19. The Respondent noted that Mr Ryman, under cross-examination, agreed that the Council's salary system complied with the requirements of the Award, particularly in regards to the skill descriptors. It was submitted that the skill descriptors are the prime determinants for the correct placement of a position within the Bands and Levels of the Award. 20. The Respondent relied on the following decisions as supporting that contention: Federated Municipal and Shire Council Employees' Union of Australia, NSW Division and Cessnock City Council (IRC 3639 of 1999); New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Lake Macquarie City Council [2011] NSWIRComm 94 and Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division and Wollongong City Council (IRC 4508 of 2002). 21. It was also submitted that the Respondent's 2-step process used to evaluated the disputed positions was in line with his honour's decision which required each individual position to be broken down into various headings – responsibilities, skills and duties – and evaluated individually. 22. His Honour further held that the Award Bands and Levels require the Skill Descriptors to be considered and acknowledged that they are not of equal weight or value. The Respondent pointed out that in the present matter, the weightings are pre-programmed within the OO-Soft System and are not determined by the Respondent. 23. It was submitted that PDs are developed by the Supervisor and Managers with employees being required to provide feedback. The evidence indicates that input and feedback was sought by the Respondent in relation to all the tractor positions. The Commission was reminded of the evidence of Mr Rowe who stated that the substantive position holders had not taken advantage of that opportunity preferring to allow the USU to provide feedback on their behalf. 24. The Respondent argued that there is no requirement for Evaluators to have a comprehensive knowledge of every position they are evaluating. Whatever information they require which is not clear from the PD which sets out the skills, levels of experience and qualifications required for the position is sought out from the Supervisor or Manager or the position holder. 25. Mr Rowe gave evidence that clarification was indeed sought and provided in relation to the positions in dispute. It was submitted by the Respondent that the evidence therefore demonstrates clearly that the Evaluators were utilising and implementing the job evaluation system in a proper and correct manner. 26. The Respondent denied the assertion that the weightings of the job evaluation system are able to be manipulated to produce a pre-determined grading outcome. It was pointed out that the evidence clearly demonstrates that Council does not know which sections of the OO-Soft system have a higher weighting and therefore the system cannot be manipulated. 27. The Respondent acknowledged that a number of positions requiring different levels of skills or knowledge can be graded the same. A case in point being the evaluation of all FDM and other Tractor positions as Grade 8 despite the fact that all had different skill levels and knowledge level and all had been allocated different evaluation point outcomes from the OO-Soft System. That outcome, it was submitted, was because the grades have minimum and maximum evaluation points assigned to them by the system. The FDM had the lowest evaluation points of the three positions (563.36)and therefore was at the low end of Grade 8. The evidence demonstrates that the skills level required to operate a Tractor with implements had indeed been taken into account in the grading of the positions. Mr Ryman had conceded in cross-examination that a solid knowledge requirement of Tractor with implements was taken into consideration when the position was being evaluated resulting in a points score of 572.29 which placed the position in the mid-range of the Grade 8. For its part, the Tractor Boom/Slasher position was evaluated on the basis that it required comprehensive skills to utilise the Tractor with implements. It resulted in a points score of 619.02 which placed it at the top end of Grade 8. 1. The Respondent pointed out that it was not disputed that the current incumbent, who had been paid as a Grade 9 prior to the restructure, continues to be paid the Grade 9 rate of pay, despite the fact that the Tractor Boom/Slasher position has been evaluated as a Grade 8. That was an administrative decision made by Mr Kiley on behalf of Council. 2. In conclusion, it was submitted by the Respondent that all the required skills and knowledge associated with each of the attachments used on the tractors (including Boom/Slasher) had been taken into account and evaluated correctly and the Union has failed to demonstrate otherwise. 3. In relation to the Arborist position, the Respondent pointed out that Mr Nolan had agreed that the evaluation, which resulted in a grading of Grade 11, had taken into account the specific requirement for climbing and rigging in addition to all other skills and knowledge requirements. It was also noted that Mr Nolan had agreed that training had been provided in climbing and rigging. Nevertheless the position had scored 796.81 evaluation points which is at the lowest end of the scale for that grade given that the minimum evaluation points for a Grade 12 position is 870. 4. It was submitted that the evaluations were applied correctly and the Commission ought not to intervene in the grading of the said positions. 5. In conclusion, it was pointed out by the Respondent that there was no evidence before the Commission that the gradings have been manipulated by Council nor was there any evidence to demonstrate a departure from the normal evaluation process by which Council evaluates all its positions. On the basis that there has not been an error in the application process or that the process for evaluating the positions had been incorrect, no intervention of the Commission is required. 6. If the Commission was against the Respondent in relation to any or all of the positions, and was minded to intervene, then it was the Respondent's submission that it cannot determine the grade of the positions. A recommendation would be required, pursuant to section 136 (1) (a) of the Act to have the positions re-evaluated through the system (see New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union v Gosford City Council [2011] NSWIRComm 1026 at 282). Consideration The Salary System 1. Clause 1, Overview, of the booklet titled "Structure of the Award, (Book Four of the Local Government Award Restructuring Implementation Kit)" states: The current 400 classifications under the six existing awards will disappear. The new award will not list classifications at all. It will provide a skill-based structure which will allow, in an objective and impartial way the proper assessment of a rate of pay for all employees in the industry. It will allow career development and use of the full skills of employees and allow council to provide better services for the community. The new award will provide an assessment of the value of work, instead of relying upon historical relativities, gender biases and other relics from the past… The new salary structure will allow councils the flexibility to design jobs which meet the needs of the council and the needs of the employees…. This book provides comprehensive information about how employees should be placed in the new award and how, using tasks, skills and competences, councils will be able to determine in consultation with their employees where employees are placed…. The new award will allow councils and their staff, through the consultative committee, to redesign jobs to incorporate broader functions and encourage multiple skills…. 1. There was no dispute between the parties as to the Salary System utilised by Council. 2. There is no award requirement to utilise an evaluation tool. Nevertheless, the Respondent utilises version 20 of the OO-Soft E-Comp Evaluation system, a web based system based on the Award Skill Descriptors and designed to assist in the evaluation and sizing of positions specifically within Local Government. It has a 32 grade salary system (albeit only grades 6 – 26 are currently used by Council) with 5 steps within each grade. 3. To undertake an evaluation, the system requires the use of a JIQ being completed. There was no dispute between the parties that the JIQ is compliant with the Local Government (State) Award 2014 skill descriptors. The JIQ sets questions designed to analyse a position's level taking into the account the seven evaluation factors set out below. An analysis of the answers fed into the programme produces not only a location at the appropriate grade in the salary structure but also maintains relativities between positions. Book Four summarises the descriptors as follows: 1. Key Responsibilities 2. Authority and Accountability – the authority or the freedom the employee has for making decisions, the impact of these decisions and the level of responsibility for these decisions 3. Judgment and Problem Solving – the demand for analysis and evaluation of issues and the need for creative reasoning and innovative decision making 4. Management Skills – the scope and complexity of activities involving degrees of planning, organising, performing, co-ordinating and reviewing 5. Interpersonal Skills – the skills required for negotiating, influencing and gaining cooperation from others 6. Qualifications and Experience – the education, training and experience required to perform the job 7. Specialist Knowledge and Skills – the sum total of knowledge and skills that is acceptable for the performance of the job. Both breadth and depth of knowledge and the ability to apply the knowledge is necessary 1. There was no dispute between the parties that the Respondent's salary system is also compliant with the Award skill descriptors. The Award provides that the descriptors are not intended to be of equal value and can be weighted differently for the various departments within a Council. 2. The software is not on the Council's system. Evaluators have their own log in to the OO-Soft site to access and undertake job evaluations. 3. There is a weighting built into this job evaluation program as there is with any other evaluation system but the Evaluator does not know the weight of each question nor is the evaluator able to alter or adjust the weightings. Each question in the JIQ has a weighting that then produces a score, the sum of which produces evaluation points which correspond to a Grade within Council's Salary System. The system identifies the appropriate Award band and level placement for the position being evaluated based on the responses in the JIQ. 4. In the General Guidelines of the JIQ, it is noted once again that the questionnaire is about assessing jobs, not personal attributes or performance. It also requires a description of what is required of a job, not the characteristics of the current jobholder. It is obvious from his evidence that Mr Leonard has not grasped that concept as his evidence is that specialised knowledge/skills by individual Job Holders ought to be recognised. 5. The Commission was assisted by the vast knowledge of Mr Ryman in relation to the application of each implement. It is noted, nevertheless, that the implements are not all in use all year round. For instance, the Hay Cart is used approximately once per annum, the Verti Drain is only used when an oval is to be aerated and so on. 6. It is noted that the General Guidelines are written on the basis that the Jobholder has an input into its completion. For example, the Guidelines advise: 4. When completing this questionnaire, try to think of the job within the context of the work of the organisation. Imagine where the job above you and jobs below would be placed on the questionnaire. [Emphasis added] 6. In all questions, there is provision to add comments or examples to explain your choice of a response. This may assist the supervisor to understand your choice of that response. However, your comments will not be taken into account in determining the classification of the job. 7. Once you have completed the questionnaire, it will be passed to your supervisor to complete. For all questions the jobholder and supervisor each decide the appropriate response for the job. Usually the jobholder responds on the left-hand side of the question and the supervisor the right. 9. You and your supervisor will then review and hopefully agree on the responses to each question. Each Council will determine a mechanism to resolve differences between the supervisor and jobholder. 1. The JIQ proceeds to set out the skill descriptors and allows for the Jobholder to complete the section on the left and the Supervisor to complete the section on the right. That has not occurred in relation to the positions in dispute. There has been no input from the Job Holder and the Supervisor is only consulted when clarification is required or when a query is raised as to the outcome. In addition, Mr Rowe's evidence is to the effect that he has little or no experience in the operation of a tractor or its implements. The Commission is not being critical of Mr Rowe. He is not required to have detailed knowledge of the tractors and implements to be an effective supervisor. However, it is all the more reason why the Job Holder should have an input into the evaluation process. 2. The USU witnesses gave evidence that changes to the PDs are supposed to be discussed at annual reviews. I accept the Respondent's submissions that just because there has been a change in the way the work is done does not necessarily result in a change to the PD or the grade of the position. It is only where there have been significant changes that the PD is evaluated. PDs may be updated as a result of a performance review, introduction of new technology, legislation, efficiency or work re-distribution, or restructure. In this instance a restructure had occurred. 3. The present position is that a request for a position to be evaluated or re-evaluated must be made by a Manager to a Group Manager. It must be accompanied by the approval of the Director of the area from which it is being requested when it is forwarded to OD department. That is not to say, however, that a Job Holder or their union is precluded from making application to the Manager or Group Manager to consider a re-evaluation of their position. 4. Evaluation is a 2-step process – firstly, the development of a PD and secondly, the evaluation of that PD. The OD staff member conducting the evaluation gathers the information from the PD through questioning other parties as needed, such as the Manager. 5. The evaluation process considers the relativities of a job within the organisation structure and the skill descriptors in the Award. It also takes into account relativities between similar areas (eg civil works and parks) where similar skills, machinery, qualifications to operate machinery and licenses are required). As recognised earlier in Book Four, the evaluation is based on the job requirements not the person doing the job or their performance. 6. Each grade has a minimum and maximum evaluation point and the scale is broad across the grade. Therefore, even if there are amendments to the PD and the evaluation points increase, it does not necessarily result in an increase in the grade. This concept needs to be grasped by the Job Holders and kept foremost in their minds – certainly the skills possessed by Mr Ryman are unquestionable but that does not translate to similar skills by other operators yet the evaluation needs to be based on an assessment of the position and not an assessment of Mr Ryman. 7. In addition to being trained in the job evaluation system, Ms Batman also supervises a team of 7 all of whom are trained in the evaluation process albeit the majority of the evaluations are conducted by the two Human Resources Advisors (Susan Joy and Linda Apollo). Each evaluation is done twice and they are independent of one other. 8. Once the evaluation is completed, it is checked by another member of the team or by Ms Batman prior to the result being communicated to the relevant Director and Managers. There are occasions when Managers disagree with the outcome and Ms Batman meets with them to go through the evaluation. PDs may be changed either before or after an evaluation if further information/clarification is provided on the work performed resulting in the position being evaluated more than once. The Procedure Adopted by the Evaluators 1. The PDs in dispute were reviewed as a result of the restructure. Group Managers and Supervisors of the area developed the PDs in consultation with the staff in order to capture what the job requirements are the first instance. OD staff then sought clarification on any matters that were not clear before undertaking the final drafting of the PDs. 2. Ms Linda Apolo, Human Resources Advisor, undertook the evaluation of the position of Arborist Assistant which became Arborist and also the Arborist position which became the Senior Arborist. As a result of Ms Apollo proceeding on maternity leave, Mr Paul Kiley, Senior Human Resources/Industrial Relations Advisor, was required to undertake the evaluations of a number of other positions, including the remaining disputed positions. 3. Both Ms Apolo and Mr Kiley described their approach in the evaluation process in the manner set out below: i) A request is received from a Director for an evaluation of an attached PD which has been updated and reviewed; ii) The PD is read to ascertain the key responsibilities, the responsibility level of the position, level of risk associated with the role and level of knowledge of the role. If necessary, queries are raised with the relevant Manager and scenario based examples may be sought. The level of risk is then compared to other areas within the organisation. If a Manager is not aware of the requirements of specific positions, questions would be asked of the Group Manager or Supervisor. On occasions Ms Apolo has asked the position holder directly. iii) Where a regrade is being sought, the old PD is compared against the new PD to determine what changes had occurred. The position is reviewed within the context of the organisation as a whole, other areas and other positions within the same area and where they sit within the grading system. An evaluation of a new role or a significant change in the PD will require additional discussions and analysis of the requirement of the PD with the Manager; iv) Assessments are based on whether there is a required basic, solid or comprehensive knowledge of matters and that is evident on the PDs. Requirements such as "the ability to…", or "demonstrated knowledge of …" or "understanding of…" are used to ascertain the level of responsibility of the role. v) A paper based JIQ is completed and reviewed independently by another member of the OD team who is trained in the system. Both Officers compare their results; vi) The required data is entered into the JIQ based on the skill descriptors set out in the Award; vii) The system then produces evaluation points and the grading is determined by the system given the evaluation points; viii) The evaluated grade is compared with the responsibilities of other roles of similar grades. If there is a discrepancy, the work is re-checked; ix) The Manager who made the original request is advised of the result; x) If an issue is raised about the result, further clarification is sought on the responsibilities and qualifications of the said role. If the assumptions made in relation to those matters was incorrect, then the PD is reviewed to correct any anomalies and the position is then re-evaluated repeating the above procedure; and xi) A spread sheet records the JIQ, the date received and date completed. 1. There is no doubt that the Evaluators have been well trained in the evaluation process and I do not accept that they applied the system inconsistently or subjectively or on an ad hoc basis. 2. I concur with the statement by Bishop C in Gilgandra Shire Council that any challenge to an evaluation process requires an employee and their union to establish a proper basis and evidence for reconsideration of the evaluation applied. 3. I note the numerous admissions made by the witnesses called on behalf of the union in relation to the evaluation process. I do not accept, on the present evidence before the Commission, a case has been made out for the grant of Orders requiring the Respondent to regrade the positions of tractor operator from a Grade 8 to a Grade 9 and Arborist from a Grade 11 to a Grade 12. 4. Having said that, in Lake Macquarie City Council, his Honour, Harrison DP found that the process of the job evaluation was correct given that it was based on the PDs being the basis for the evaluation and the evaluation system utilised by the Council was consistent with the enterprise agreement. That view was consistent with the decision in Wollongong City Council. 5. Nevertheless, it is apparent, from a scrutiny of the JIQ, that input from the Job Holder and their Supervisor is required in the completion of that questionnaire and that did not occur in relation to the positions in dispute. 6. Mr Leonard gave evidence that the PDs are supposed to be updated if any changes to the positions are noted during each employee's annual performance review which, in themselves, are sporadic. Mr Leonard cited himself as an example. He has not had a performance review in years. He went on to add that it should immediately follow that the positions should, as a result of such changes, be evaluated through the JIQ process to determine if a change in the salary system structure is warranted. In that regard, he added, PDs are rarely changed to reflect changing work practices on the ground. Mr Ryman also gave evidence of the trouble he went through trying to get a regrading of the 7 tractor operators to a Grade 8. 7. The evidence of both Mr Leonard and Mr Ryman was not refuted in that regard. The evaluation process includes researching the position and seeking clarification, with the PD being the primary source of information as it contains the responsibilities, skills, knowledge and qualifications/ experience required for the position. The PDs therefore need to be as up-to-date as they can be at all times. 8. Nevertheless, it is noted that, on this occasion, the PDs were revised by the Council and were provided to the tractor operators to provide input and feedback. Mr Ryman stated that he had raised concerns about the grading of several positions including all those positions that are the subject of this dispute. Mr Rowe acknowledged that the matter was raised with him. Yet the individual Job Holders did not provide any direct feedback on their PDs but referred them en masse to their union for comment. 9. I do not accept the assertion, given the evidence before the Commission, that the weightings of the job evaluation system are able to be manipulated to produce a pre-determined grading outcome. I accept that the system cannot be manipulated. I do accept, however, that input is required on the PDs at first instance and then participation in the completion of the JIQ is also required from the Job Holders to the extent required by that Questionnaire. 10. For the reasons set out above, the Commission will intervene to recommend that the Job Holders in the Tractor classifications provide their Managers with input in relation to the their PDs and once agreement is reached on the PDs, the JIQs be completed in the manner envisaged by that job evaluation system. 11. The Commission is satisfied that the correct procedure was followed in relation to the Arborist positions as there were no incumbents in those positions at the appropriate time. 12. It needs to be accepted that if that process is followed, the ensuing evaluation may or may not result in a different result being achieved. 13. It needs to be kept in mind that, in addition to the observations made above, Book Four states that multi-skilling would be expected at that level and, in relation to skills, the Tractor Operator is required, amongst other things to – * Understand, explain and operate large ride-on construction machinery working to levels as grader, backhoe and excavator; * Understand, explain and operate ride-on machinery in confined spaces; and * Understand, explain and operate major plant items utilising hydraulic, pneumatic or electronic controls or circuitry. Recommendation 1. The Industrial Relations Commission of NSW recommends that: 1. The Tractor Operators classifications (Front Deck Mower, Tractor Operator and Tractor – Boom/Slasher), the subject of this notification, provide input and feedback into the development of the Position Descriptions for their role; 2. Pursuant to section 136 (1)(a) of the Industrial Relations Act 1996, the position of Tractor Operator be re-evaluated in accordance with the requirements of the Job Information Questionnaire; 3. The parties are to confer in relation to the timetable for undertaking the steps outlined in recommendations (1) and (2) above given the time of year and the fact that some of the relevant persons may still be on leave; and 4. The claim in relation to the Arborists' positions is hereby dismissed. 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: 05 February 2016