Mr John Mangan v Moira Shire Council

[2012] FWA 6601

[2012] FWA 6601

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr John Mangan
v
Moira Shire Council
(C2012/4651)

COMMISSIONER ROE MELBOURNE, 2 AUGUST 2012

Alleged dispute concerning Classification of a position Description.

[1] On 20 July 2012 the Australian Municipal, Administrative, Clerical and Services Union (ASU) made an application under s.739 of the Fair Work Act 2009 (the Act) for Fair Work Australia (FWA) to deal with a dispute in accordance with a dispute settlement procedure. The dispute is pursuant to the Moira Shire Council Enterprise Agreement No 6 2010-2013 (the Agreement). The employer is Moira Shire Council (the Shire).

[2] The parties agree and I am satisfied that:

• The provisions of the disputes settlement procedure of the agreement can deal with a dispute concerning the appropriate classification of a position and that the relevant steps of the procedure have been followed.



• The Applicant is currently employed in a position which has been classified at Band 7. The Applicant and the ASU argue that it should be classified at Band 8. The Shire argues that Band 7 is the appropriate classification.

[3] The parties have agreed to accept the decision of FWA in respect to this matter. I conducted a conference on 1 August 2012. The parties agreed that it was appropriate to proceed in conference. The parties provided submission and documentary evidence in support of their respective positions. The parties agreed and I am satisfied that primarily I should have regard to the classification descriptions in the Award which is incorporated into the Agreement (the Victorian Local Authorities Award 2001) and the position description for the Applicant’s job. The position description is agreed between the parties. There is also a limited amount of other contextual information which the parties have provided which is relevant.

[4] The Award requires that:

“All aspects of the following definitions must be taken into consideration when classifying individual positions and typically individual positions will meet the criteria under each heading for classification into that Band.”

[5] The parties agree and I am satisfied that this requirement means that not every criteria must be met. That it in determining a particular level it is possible that some criteria may be at a higher level and some may be at a lower level than the level determined. However, it is not sufficient that a majority of the criteria be at the determined level. The Applicant is seeking to be classified at Band 8 which is the highest level in the structure.

[6] I have had particular regard for the requirements for Band 7 and Band 8 in the Award incorporated into the Agreement which are as follows:

“7. EMPLOYEE BAND 7

A position in this Band has the following job characteristics:

7.1 Accountability and extent of authority

7.1.1 Positions in this Band may manage resources and/or provide advice to or regulate clients and/or participate in the development of policy.

7.1.2 In positions where the prime responsibility is for resource management, the freedom to act is governed by policies, objectives and budgets with a regular reporting mechanism to ensure achievement of goals and objectives. Decisions and actions taken at this level may have a significant effect on the programs or projects being managed or on the public perception of the wider organisation.

7.1.3 In positions where the prime responsibility is to provide specialist advice to or regulate clients, the freedom to act is subject to professional and regulatory review. The impact of decisions made or advice given may have a substantial impact on individual clients or classes of clients.

7.1.4 In positions where the prime responsibility is in policy formulation, the work may be of an investigative, analytical or creative nature, with the freedom to act generally prescribed by a more senior position. The quality of the work of these positions can have a significant effect on the policies which are developed.

7.1.5 All positions in this Band would have an input into policy development within their area of expertise and/or management.

7.1.6 In the case of a Child Care Worker this may include a Director in charge of more than one child care centre or a Director of a child care centre undertaking duties in excess of those referred to in Band 6.

7.2 Judgement and decision making

7.2.1 These positions are essentially problem solving in nature. The nature of the work is specialised with methods, procedures and processes generally developed from theory or precedent. The problem solving process comes from the application of these established techniques to new situations and the need to recognise when these established techniques are not appropriate. Guidance is not always available within the organisation.

7.2.2 In positions where the prime responsibility is in policy formulation, the primary challenge will be intellectual and will typically require the identification and analysis of an unspecified range of options before a recommendation can be made.

7.3 Specialist knowledge and skills

7.3.1 These positions require proficiency in the application of a theoretical or scientific discipline in the search for solutions to new problems and opportunities.

7.3.2 Where the prime responsibility is in policy formulation, analytical and investigative skills are required to enable the formulation of policy options from within a broad organisation-wide framework.

7.3.3 An understanding is required of the long term goals of the wider organisation and of its values and aspirations and of the legal and political context in which it operates.

7.3.4 Knowledge of and familiarity with the principles and practices of budgeting and relevant accounting and financial procedures may be required.

7.4 Management skills

7.4.1 These positions require skills in managing time, setting priorities and planning and organising one’s own work and where appropriate that of other employees so as to achieve specific and set objectives in the most efficient way possible within the resources available and within a set timetable despite conflicting pressures.

7.4.2 In this Band, the position requires an understanding and an ability to implement personnel policies and practices including awards, equal opportunity and occupational health and safety policies, recruitment and selection procedures and techniques, position descriptions and employees development schemes. They would be also expected to contribute to the development and implementation of long term staffing strategies.

7.5 Inter-personal skills

7.5.1 These positions require the ability to gain co-operation and assistance from clients, members of the public and other employees in the administration of broadly defined activities and to motivate and develop employees.

7.5.2 Employees in this Band must also be able to liaise with their counterparts in other organisations to discuss and resolve specialist problems and with other employees within their own organisation to resolve intra-organisational problems.

7.6 Qualifications and experience

7.6.1 The skills and knowledge needed for entry to this Band are beyond those normally acquired through tertiary education alone.

7.6.2 Typically, they would be gained through completion of a degree or diploma course with several years of subsequent relevant experience. They might also be acquired through higher formal qualifications either in the field of specialist expertise or in management, together with a shorter period of experience, or they might be acquired through lesser formal qualifications with extensive relevant experience.

8. EMPLOYEE BAND 8

A Position in this Band has the following job characteristics:

8.1 Accountability and extent of authority

8.1.1 Positions in this Band may manage resources and/or regulatory or specialist units and/or develop and interpret policy.

8.1.2 In positions where the prime responsibility is for resource management the freedom to act is governed by broad goals, policies and budgets with periodic reviews to ensure conformity with those goals and a reporting mechanism to ensure adherence to budgets. Decisions and actions taken in this Band may have a substantial effect on the operational unit being managed or on the public perception of the wider organisation.

8.1.3 In positions where the prime responsibility is to manage regulatory or specialist units, the freedom to act is governed by the goals and policies of the organisation and by statute and subordinate legislation. Decisions and actions taken at this level may have a substantial effect on the community or sections of it.

8.1.4 In positions where the prime responsibility is to develop policy options and strategic plans, the freedom to act is wide and limited only to the areas nominated by Employer or the corporate management. The advice and counsel provided by these positions is relied upon for guidance and part-justification for adopting particular policies the impact of which may be substantial upon the organisation and/or the community.

8.2 Judgement and decision making

These positions generally involve both problem solving and policy development. Methods, procedures and processes are less well defined and employees are expected to contribute to their development and adaptation. The work will typically require the identification and analysis of an unspecified range of options before a choice can be made. Employees at this level will identify and develop policy options in their own functional area for consideration and choice by their Manager or by Employer.

8.3 Specialist knowledge and skills

8.3.1 These positions require proficiency in the application of theoretical or scientific approaches in the search for solutions to new problems and opportunities which may be outside the original field of specialisation by the employee.

8.3.2 An understanding is required of the long term goals of the wider organisation and of its values and aspirations and of the legal and socio-economic and political context in which it operates.

8.3.3 A sound knowledge of budgeting and relevant accounting and financial procedures is essential except for specialist positions where such knowledge may not be required.

8.4 Management skills

8.4.1 Positions in this Band typically involve the supervision of large numbers of employees or the supervision of tertiary qualified employees or employees with extensive experience.

8.4.2 Management skills are required to achieve objectives and goals, taking account of organisational and external constraints and opportunities.

8.5 Inter-personal skills

Positions require the ability to persuade, convince or negotiate with clients, members of the public, other employees, tribunals and persons in other organisations in the pursuit and achievement of specific and set objectives. Employees at this level must be able to lead, motivate and develop other employees.

8.6 Qualifications and experience

8.6.1 The skills and knowledge needed for entry to this Band are beyond those normally acquired through a degree course and experience in the field of the employee’s specialist expertise alone.

8.6.2 Typically, the necessary skills and knowledge would be gained through further formal qualifications in the field of expertise or in management, or through at least four years of experience in another specialised field.

8.6.3 Alternatively, they might be acquired through lesser formal qualifications together with extensive and diverse experience, or intensive specialist experience.”

[7] The parties agree that the position meets the requirements for Band 8 in respect to Accountability and Extent of Authority and Interpersonal Skills.

[8] Having heard the parties I am satisfied that the position meets the requirements for Band 8 in respect to Judgement and Decision making because the position description read as a whole requires a high level of responsibility in respect to the development of policy in the specialist area of waste management. I am also satisfied that the work of problem solving and policy development is in an environment where the range of options is not specified and is broad and where the Applicant has responsibility to develop processes without close definition. This is consistent with the requirements of 8.2 of the Band 8 descriptor.

[9] It is distinguishable from the requirements at Band 7.

[10] Having heard the parties I am satisfied that the position meets the requirements for Band 8 in respect to Qualifications and Experience. Although the level of qualification held by the Applicant is not at the degree level it satisfies the requirements of 8.6.2 and 8.6.3 of the Award Band 8 criteria.

[11] The most difficult areas are those of Specialist Knowledge and Skills and Management skills. The skills of the position in these fields appear to be well matched with Band 7. The spreadsheet produced by the Council which aligned the elements of the position descriptor with elements in the Band 7 descriptors illustrate the overall character of the management responsibilities of the position and of the level of specialist knowledge and skills.

[12] In respect to specialist knowledge and skills it is possible that the Applicant’s position meets the requirements of 8.3.2 and 8.3.3. An examination of the key responsibility areas and duties in the position description demonstrates that the position requires considerable knowledge of and interchange with the broader legal, socio-economic and political context both internally and externally. This suggests that 8.3.2 may be met. It is also possible that the level of financial knowledge and skills may meet the requirement in 8.3.3. In this sense it is distinguishable from the requirements at Band 7.

[13] There is no doubt about the application of theoretical and scientific approaches. I am satisfied that this is sufficiently applied to new problems and opportunities. It is not required that this be outside of the original field of specialisation. However, it is not clear that the requirements in this area are sufficient to distinguish from Band 7 and meet the requirements of 8.3.1.

[14] It is possible to argue that the Applicant’s position meets the requirements of 8.4.1. The Applicant is responsible for 14 employees and also for working with a range of contractors and consultants. The employees are not highly qualified but many of them are experienced. The ASU argues that in the context of a small Shire 14 employees can be regarded as a large number of employees and that if I do not accept this then the Applicant is responsible for supervision of employees with extensive experience.

[15] The Applicant’s position meets the requirements of 8.4.2. The range of external stakeholders and regulations which the Applicant is required to manage would support such a conclusion.

[16] However, overall it is difficult to be sure that the level of management in these respects significantly exceeds what is required for Band 7.

[17] It is not an easy task and it is understandable that the ASU and the Shire came to different conclusions and were unable to reconcile their differences.

[18] On balance I am satisfied that the position meets the requirements for Band 8 except in respect to management skills and specialist skills and knowledge where it is unclear as to whether the position exceeds the requirements for Band 7.

[19] Taking into account all of the circumstances I determine the following as the resolution to the dispute:

• The position is assessed as meeting the requirements for Band 8 except in respect to management skills and specialist skills and knowledge where it is unclear as to whether the position exceeds the requirements for Band 7.



• The Applicant and the Shire are to review the position description by end November 2012 with a particular focus on management and specialist knowledge and skill requirements.



• If as a result of this review the Shire accepts that the position should be reclassified to Band 8 then FWA should be advised and the file will be closed. A decision should be made prior to the 14 December 2012.



• If as a result of this review the Shire does not accept that the position should be reclassified to Band 8 and the Applicant still disputes the matter then there will be a further determinative conference before FWA and a final decision binding on the parties will be made at that time.

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