Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Zoological Parks Board of New South Wales [2004] NSWIRComm 175

Industrial Relations Commission of New South Wales

CITATION : Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Zoological Parks Board of New South Wales [2004] NSWIRComm 175 NOTIFIER PARTIES : Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales RESPONDENT Zoological Parks Board of New South Wales FILE NUMBER: 1674 of 2003 CORAM: Sams DP Industrial dispute - award coverage of Operations Supervisors at Taronga Zoo - application to vary award - claim of underpayment for Operations Supervisors - declaration sought - job evaluation - whether position appropriately graded - whether duties performed consistent with position description - evidence of managers and supervisors - absence of line management - level of supervision and extent of responsibilities - appropriate comparisons - introduction of new classification. CATCHWORDS : Held, evidence of managers and supervisors preferred - respondent's comparisons not appropriate - position description not reflective of actual work performed - grading of position under valued - supervisors not paid appropriately for the work performed - higher duties accepted - Operations Supervisors comparable to new position - underpayment claim justified - parties directed to confer on implementing decision - liberty to apply in the event of disagreement. Industrial Relations Act 1996 LEGISLATION CITED : Exhibited Animals Protection Act 1986 Quarantine Act 1908 National Parks and Wildlife Act 1974 Re Dispute - Upper Hunter County Council re grading (No 2) [1973] AR (NSW) 759 CASES CITED : Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311 Holman v Holman [1964] 5 FLR 406 Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 HEARING DATES: 03/08/2004; 03/09/2004 DATE OF JUDGMENT: 06/25/2004

NOTIFIER Mr D Chin of counsel Instructed by: Jones Staff & Co LEGAL REPRESENTATIVES: UNION Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales RESPONDENT Ms R Banks, Solicitor Henry Davis York

JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 25 June 2004 Matter No IRC03/1674 Notification under section 130 by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales of a dispute with the Zoological Parks Board re Award coverage DECISION [2004] NSWIRComm 175

1 Pursuant to s130 of the Industrial Relations Act 1996 ('the Act') a dispute was lodged on 25 March 2003 by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ('the Association'). The dispute was with the Zoological Parks Board of New South Wales ('the respondent').

2 The dispute originally involved a proposal by the respondent to include within a new enterprise agreement covering works and trades employees, a classification of Operations Supervisor Assets. The Association contended that this classification involved work which was traditionally covered by its Award, the Zoological Parks Board of New South Wales Employees (State) Award 320 IG 900 ('the Award').

3 The dispute first came before the Commission for compulsory conference on 3 April 2003. At that time, Mr S Little appeared for the Association and Ms J Noack appeared for the respondent. The dispute was listed on a number of subsequent occasions during 2003. While the issue of award coverage was eventually resolved, the Association later contended that the position of Operations Supervisor had not been appropriately classified under the Award. This resulted in an underpayment claim for two of its members, Ms Deborah Law and Mr Colin Reid who had been employed as Operations Supervisors. The Association argued that the grading of Ms Law and Mr Reid at Clerk Grade 5/6 did not reflect the duties and responsibilities of the position. The position was therefore underclassified and should be graded at a minimum of Grade 7/8.

4 Considerable efforts were made by both parties to resolve the dispute in the context of a proposed wider restructure of the Zoo's Assets Division. However, no agreement could be reached with regard to both a reclassification of Ms Law and Mr Reids' positions and the under payment claims made by the Association on their behalf. Accordingly, on 14 November, I issued a certificate of unsuccessful conciliation pursuant to s135 of the Act, and issued directions for the arbitration of the dispute. In particular, the Association was directed to file and serve the form of orders and/or award it sought from the proceedings. The dates set for hearing were subsequently vacated at the Association's request and the matter proceeded to arbitration commencing on 8 March 2004.

5 The Association relied on the evidence of: Ms Mary Mikulandra Facilities Manager, Assets Division Mr Evan Yanitsis former Operations Manager, Assets Mr Paul Toole Organiser, Public Service Association and Professional Officers Association Amalgamated Union of New South Wales Ms Deborah Law former Operations Supervisor Mr Colin Reid Operations Supervisor The respondent called one witness: Ms Bettina Sammut Manager, Employee and Organisation Development

The Application

6 The Association filed an amended application on 5 March 2004. The application was in four parts: 1. A variation to the Zoological Parks Board of New South Wales Employees (State) Award ('the Award') in the terms stated in the attached Schedule A. 2. Orders that the Zoological Parks Board is liable to pay Ms Deborah Law and Mr Colin Reid the amounts of, respectively, $6134.52 and $4783.42 under the Award whereby the amounts claimed are calculated in the manner stated in the attached Schedule B. 3. An order that the Zoological Parks Board is not to dismiss Mr Colin Reid, including by purported reason of redundancy, in the course of the present industrial dispute; and 4. For the purpose of exercising the Commission's functions in making the aforesaid orders and variation to the Award, a determination in the terms stated in the attached Schedule C. For present purposes the order sought in (3) was not pressed.

7 The proposed award variation was expressed as follows: Notwithstanding the provisions of this clause, all persons employed in the position of Operations Supervisor and/or Asset Operations Manager (howsoever named or styled) within the Employer's Assets Division, including in particular Mr Colin Reid and Ms Deborah Law, shall be paid, as from 25th of March 2003, not less than the rate of pay per annum provided for Grade 7, 1st year, with progression to Grade 7, 2nd year, pursuant to the Clerks - General Scale set out in Table 1 - Rates of Pay in Part B - Monetary Rates, while they continue to perform the duties of Operations Supervisor - Assets Division and/or Asset Operations Manager (howsoever named or styled).

8 The determination sought by the Association was expressed in terms that would seemingly be covered by the award variation should it be granted. It was expressed as follows: A determination that, in remunerating its employee Mr Colin Reid, and of its former employee Ms Deborah Law, to the level applicable to the classification of Clerk Grade 5/6 under the Zoological Parks Board of New South Wales Employees' (State) Award ('the Award') from on or about 16 July 2002 and 21 October 2002 respectively, the Zoological Parks Board of New South Wales misapplied and/or otherwise acted in breach of the Award in that it failed to pay them the rate of pay per annum provided for Grade 7, 1ST year, with progression to grade 7, 2ND year, pursuant to the Clerks - General Scale set out in Table 1 - Rates of Pay in Part B - Monetary Rates of the Award, while they continued or continue to perform the duties of Operations Supervisor - Assets Division and/or Asset Operations Manager (howsoever named or styled).

The Association's Case

9 Mr Chin of counsel, in opening the Association's case, identified five grounds in support of the application: Firstly, the duties actually performed by Mr Reid and Ms Law were beyond the position description of the Operations Supervisor, Assets which was graded at 5/6. Secondly, Ms Law performed duties commensurate with her predecessor, Mr Simon Finlay, the Manager, Botanic Estate. Mr Finlay had been graded at 9/10. Thirdly, the duties performed by both Ms Law and Mr Reid were commensurate with the duties of Life Sciences Managers. Those employees were graded at Grade 9. Fourthly, Ms Law and Mr Reid had directly reported to the Operations Manager Assets, Mr Yanitsis. For various reasons his duties were substantially and significantly deferred to Mr Reid and Ms Law. Mr Yanitsis was graded at Grade 9/10. Fifthly, the actions of the respondent itself in its most recent proposal to restructure the Assets Division and to upgrade Mr Reid's position to a Grade 7/8, was consistent with the contention that in practical terms and at all material times, Mr Reid was performing duties at that higher grade.

The Evidence

10 Ms Mary Mikulandra has been employed as the Zoo's Facilities Manager, Assets Division for over two years. She is classified as a Senior Officer, Grade 2. Ms Mikulandra has two key areas of responsibility - the back log Assets Maintenance Programme and the Operations Section. Currently, the Operations Supervisors, including Mr Reid, report directly to her. Previously, they had reported to the Operations Manager (Mr Yanitsis).

11 Ms Mikulandra described the previous duties of Mr Yanitsis and the former Manager, Botanic Estates, Mr Finlay. Both positions no longer exist. Mr Finlay had been classified at Grade 9 and he had been responsible for 19 employees. Ms Mikulandra deposed that Ms Law had 19 employees responsible to her and Mr Reid 17 to 18. These included casual and contracting staff and volunteers.

12 Ms Mikulandra said that the management of the Assets Division was "self managed" in that the people involved (Mr Reid and Ms Law) were competent to undertake that management. Further, she said that the Operations Supervisors had considerable autonomy in the day to day scheduling of work. As a result, the line of reporting to Mr Yanitsis had very little impact on their autonomy. The reporting was largely only relevant to financial delegation. Operations Supervisors had a financial delegation of up to $1,000.00. In Mr Reid's case, this involved the purchase of wood, paint, nuts and bolts and in horticulture, fertilizers, compost and gardening equipment.

13 Ms Mikulandra deposed that the Operations Supervisors managed their own staff on a daily basis, unless the matter became a major issue. However, she could not recall Ms Law escalating a matter up to her level. Ms Mikulandra said that the Operations Supervisors also advised on staff training.

14 Ms Mikulandra referred to the liaison between Ms Law and the Life Sciences Managers. She said Ms Law was required to liaise on the suitability of particular plants for the exhibits and Mr Reid would advise on the work to be undertaken on the exhibits. In respect to the Zoo's Master Plan, Mr Reid provided options and recommendations on engineering infrastructure services. Ms Law advised on landscaping across the Zoo.

15 Ms Mikulandra said that from around May 2002 to April 2003 a number of her responsibilities were devolved to Mr Yanitsis and the Operations Supervisors. She said that as their supervision lessened, Ms Law and Mr Reids' responsibilities increased. Ms Mikulandra said about 70 per cent of her time was taken up with industrial relations issues, including negotiations for an enterprise agreement. Mr Yanitsis took over Fleet Management responsibilities and the Operations Supervisors spent considerable time on implementation strategies, including prioritising and allocating work and resources and checking on timeframes and budgets.

16 Ms Mikulandra said that once the Operations Supervisors' positions were filled it soon became obvious that there was a need to revisit their position descriptions. This commenced with a review of Mr Yanitsis' position in late 2002. However, this review was never completed. There had been some discussion about reviewing Ms Law and Mr Reids' positions, but it had not progressed. Ms Mikulandra was absent from the workplace from April 2003 until 22 January 2004. She agreed she couldn't comment on the work of Operations Supervisors during this time.

17 Ms Mikulandra deposed that in late 2003 Management decided to delete Mr Yanitsis' position. Ms Mikulandra believed that this would result in a significant upgrade of the Operations Supervisors' positions.

18 Ms Mikulandra was shown a position description dated January 2004 for the newly created Assets Operations Manager. The position was graded at Clerk Grade 7/8. Ms Mikulandra said that there was probably a 95 per cent overlap in the work of the new position and the actual work performed by Mr Reid and Ms Law. Ms Mikulandra accepted that the new position was graded at 7/8 as a result of the position of Operations Manager being deleted.

19 Ms Mikulandra accepted that all employees at various grades were involved in working parties according to their particular skills and experience. In respect to Mr Reid, she said he would make recommendations to the senior management on works and trades issues. In cross examination, Ms Mikulandra said that the Operations Supervisors were required to manage the quality of the job and the people involved in their teams. They would also provide advice on occupational health and safety issues.

20 Ms Mikulandra expanded her evidence on what duties were devolved to Mr Yanitsis in 2002/2003. In respect to Fleet Management, she said that this involved identifying options for specific vehicles that might be required and obtaining contracts for the vehicles. Mr Yanitsis described his duties in Fleet Management as assessing what vehicles needed to be replaced. He agreed it didn't involve day to day monitoring of the Fleet.

21 Ms Mikulandra was asked about Ms Law and Mr Reids' involvement in recruiting. One position was developed with Ms Law's involvement - that of Horticultural Liaison Officer. Ms Mikulandra emphasised that the senior management team relied on the information provided by the Operations Supervisors, based on their skills, expertise and understanding of the issues. It involved decisions related to the Master Plan for the Zoo. Their advice and recommendations had never been rejected.

22 Mr Evan Yanitsis was formerly employed as Operations Manager Assets at Grade 10. He resigned in October 2003. At the relevant time, Ms Law and Mr Reid had reported directly to him. Mr Yanitsis said that the Assets Division was not solely an operations division as it was involved in many other aspects of the Zoo's business.

23 Mr Yanitsis deposed that Ms Law and Mr Reid enjoyed a "huge amount" of autonomy in their day to day duties. Mr Yanitsis was asked about the duties and responsibilities of Mr Finlay's position - a position graded at Level 9. Apart from the grade and financial delegation ($1,000 vis a vis $5,000) he saw no difference to the duties performed by Mr Finlay and the Operations Supervisors. He said Ms Law managed the same number of staff.

24 Ms Law, as the first line of management, would informally deal with disciplinary issues in the first instance, such as absenteeism and attitude. In respect to budgeting, Mr Yanitsis had relied solely on Ms Law because he had no horticultural experience. She had also been involved in grading reviews and recruitment panels.

25 Mr Yanitsis agreed that he had no direct knowledge of the liaison between the Operations Supervisors and other senior staff. However, he said both Ms Law and Mr Reid were involved in research projects and in the development and training of staff. Ms Law and Mr Reid had a "large responsibility" for the safety and supervision of contractors and visitors.

26 Mr Yanitsis said that about six months after commencing employment, industrial relations issues occupied about 50 percent of his time. When Ms Mikulandra was absent, he took on more of her duties and the Operations Supervisors assumed more of his functions. Mr Yanitsis said he would very rarely override the recommendations of the Operations Supervisors; usually only in respect to budget constraints.

27 Mr Yanitsis was taken to his own "Major Accountabilities" and deposed that the majority of these accountabilities were devolved to Ms Law and Mr Reid. He said Ms Law and Mr Reid not only managed aspects of the Master Plan, but were researching and providing data to various working parties.

28 Mr Yanitsis referred to the review of the Assets Division in 2003. He said nothing happened after Ms Mikulandra and Mr Flinders (General Manager, Assets Division) were absent from work. After Ms Mikulandra left, Mr Yanitsis said his industrial relations responsibilities increased to about 90 per cent, and even more when Mr Flinders left. As a result, there was very little direct supervision of Mr Reid and Ms Law. This meant his position description didn't reflect what he actually did. He said most of the time he was trying to mediate between the Human Resources Department and staff. There were harassment issues and negotiations for the enterprise agreement. After the agreement was certified, implementation procedures needed to be put in place. Mr Yanitsis agreed that some of the issues involved his own employment, including harassment and a long list of his own complaints. He said he had resigned to get away from the problems he saw with the culture of senior management.

29 Mr Paul Gregory Toole, an organiser with the Association, provided an uncontested statement. Mr Toole's evidence dealt with his attendance at a meeting with the Zoo's management in November 2003 which discussed the restructure of the Facilities Branch of the Assets Division. Mr Toole subsequently handed over his responsibilities for the Association's Zoo members to Mr Stewart Little.

30 Ms Deborah Law was employed as Operations Supervisor from October 2002 to September 2003 at Grade 5/6. Prior to her appointment she had been employed from December 1999 as a horticulturalist. It was Ms Law's opinion that the position of Operations Supervisor was equivalent to the deleted position of Manager, Botanic Estate (Grade 9/10) and Life Sciences Managers (Grade 9).

31 Ms Law described her role as a complex one involving managing a staff of 19 employees, comprising highly qualified and experienced horticulturalists, arborists and bush regenerators. She said her role and responsibilities were more numerous and onerous then her original position description. Ms Law said some of her duties included responsibility for: i. recording flex days, shift changes and overtime of staff, ii. two additional staff, iii. regular advice and input into the Master Plan, iv. technical horticultural input into the preparation of tenders, v. occupational health and safety inductions for contractors, and vi. all requests for horticultural works, their planning, organisation and budgets.

32 Ms Law deposed that when Ms Mikulandra left the Zoo it had a dramatic impact for two reasons. Firstly, Mr Yanitsis assumed a lot of her responsibilities and Ms Law assumed some of Mr Yanitsis's duties. Secondly, there was an impact on staff morale which had to be dealt with.

33 Ms Law responded in detail to Ms Sammut's affidavit and made the following observations. a. The duties of the deleted Manager, Botanic Estate did not devolve to Mr Yanitsis in practice as his time was consumed by other duties. b. Ms Law was carrying out nearly all the duties and responsibilities of the deleted Manager, Botanic Estate and assumed a number of Mr Yanitsis' duties and responsibilities. c. Ms Law was primarily responsible for determining the priority for work requisition. d. Ms Law dealt with day to day staffing issues. Only extremely difficult, sensitive or persistent issues would be referred to the Operations Manager. e. Ms Law believed she made decisions at a high level and participated in meetings to implement the Master Plan. About 20 to 25 per cent of her time involved input with the Master Plan and other capital works activities. f. Ms Law had a significant degree of autonomy within her area of responsibility and liaised directly with other senior management concerning horticulture issues. She dealt with the Life Sciences Managers on a daily basis. She agreed that working autonomously was within the scope of her job description. g. Ms Law had active involvement in staff performance systems and the grading review process. h. Ms Law dealt with a broad range of visitor inquiries and was required to have an understanding of the principles of horticulture. She acknowledged that all employees were expected to handle visitor inquiries. i. Ms Law did not believe that the Operations Supervisor was equivalent to the Manager, Catering Operations.

34 In cross examination, Ms Law gave examples of the disciplinary matters she was required to deal with on a daily basis. Her role was largely to correct inappropriate behaviour. If the behaviour continued the matter would be referred "up the line". She agreed that day to day management of her team, including the authorisation of leave, was within the scope of her position description.

35 Ms Law said that she would input information via her managers to the Master Plan Implementation Steering Committee. Her direct involvement was in various project working parties. She agreed that other members of her team, with particular expertise, had also made contributions. In respect to volunteers, Ms Law said that this was usually on a monthly basis with school and TAFE groups at various other times.

36 Ms Law referred to the Horticulture Liaison position. This position would liaise between her and the Master Plan project groups. Ms Law also said she was involved in developing various operational procedures such as BROWSE collections (animal food) and safe work methods for the various sections.

37 Ms Law conceded that the position of Operations Supervisor was intended to develop over time with increasing responsibility. She said however, this actually occurred over a very short period of time - after about two months.

38 Mr Colin Reid commenced employment at the Zoo in 1988 as an electrician. He secured the role of Operations Supervisor in May 2002. Mr Reid said his position description did not list the many other tasks he had performed. He referred to the electronic work requisition system (previously a manual system) and duties previously performed by Human Resources, such as electronically recording overtime, flex days and rosters.

39 Mr Reid said that an increasing number of responsibilities and functions were devolved to the Operations Supervisor when Mr Yanitsis' and Ms Mikulandra's duties changed. As a result of other persons leaving he had, at one point, over 30 persons reporting to him. Mr Reid said that managing his team required frequently taking paperwork home. He had not claimed overtime.

40 In respect to the Master Plan, Mr Reid said he was involved in reviewing all gas/water/electrical services and co-ordinating the work of all tradespersons and consultants. He said he had a high level of responsibility and autonomy in other capital works projects, including the Asian elephant precinct and the "Backyard to Bush" project. His role was to prioritise and co-ordinate the work within time frames and schedules, as he knew what was happening "on the ground". He was also involved in attending meetings and liaising with contractors.

41 Mr Reid undertook major responsibility for the Master Plan Services and Engineering Audit with particular emphasis on advice to the external consultant on electrical matters. Mr Reid's experience meant that he knew where existing services were located and what condition they were in.

42 Mr Reid said he was involved in the maintenance work for the new commercial catering operations contract and for co-ordinating the services of contractors across the Zoo, such as painters and bricklayers. He said he discussed budgets with the Life Sciences Managers and had regular input and discussion with the Operations Manager about the requirements of the various teams and budgeting.

43 In response to Ms Sammut's affidavit Mr Reid believed his role was similar to the Life Sciences Managers. Mr Reid said his duties were to: a) manage up to 20 staff, including permanent, casual staff and contractors; b) manage and coordinate these staff, including managing the performance of subordinates and the preliminary stages of the disciplinary process; c) have a relevant Trade Certificate and knowledge of general maintenance and construction duties; d) have the ability to advise on pricing and quotations that may be required by the Life Sciences Divisional Manager; e) have daily communication with the Assets Operations Manager and Manager, Facilities and regular communication with all Life Sciences Managers, Commercial Services Managers and Function Co-ordinators; f) regularly liaise with Life Sciences Divisional Managers to formulate and program maintenance tasks on a priority, cyclic and immediate action basis; g) be responsible for staff and visitors to ensure that a safe and risk free environment is available every day of the year, and that the best visitor experience be obtained to the best of the supervisor's ability; h) responsibility for staff training to operate the Zoological Parks Board ('ZPB') 11,000 volt reticulation system and associated switching mechanisms. i) maintain a working knowledge of all emergency procedures in compliance with the ZPB departmental policy and procedures and relevant OHS legislation; j) outline up and coming projects and provide budget estimates.

44 Mr Reid said he did not believe the levels of management in Life Sciences were comparable because the Assets Division had additional responsibilities. Mr Reid said he did not believe that the Catering Services Manager was comparable to Operations Supervisors. Mr Reid's duties and responsibilities involved implementing the Master Plan, involvement in the Engineering Audit and knowledge of relevant legislation.

45 Mr Reid believed that he already undertook all of the major accountabilities listed in the new Asset Operations Manager's position. He also said he undertakes the majority of accountabilities listed in the Human Resource Management/Team Management and Leadership document, except for grading reviews and performance management. The only reason why he did not carry out these functions was that there was no formal grading system in place.

46 Mr Reid detailed his involvement in liaising with the Life Sciences Managers, supervisors and keepers and with day to day disciplinary matters, training and authorising staff leave. He said that there had been one or two incidents where he had reported a matter higher up the management line. Mr Reid gave an example of his involvement in the development of operational procedures over high voltage issues when he had liaised with Energy Australia.

47 In re examination, Mr Reid said he had full authority in prioritising the work, including making decisions in an emergency. Mr Reid was not aware of any of his decisions being overridden by senior management.

48 In respect to minor contract work, Mr Reid said he would contact the contractor, scope the work, induct the contractor, check and supervise the work.

The Respondent's Case

49 In opening the respondent's case, Ms Banks put that the Association's application, to the extent it sought a grading of the new position of Assets Operations Manager, was unnecessary. This was so because the new position was to be graded at 7/8.

50 Ms Banks said there were significant differences in the former position of Manager, Botanic Estate and the Operations Supervisors. The correct comparison was with Life Sciences Unit Supervisors. There was however, a clear recognition that over time, additional responsibilities would fall on the Operations Supervisors and that a higher grading may be appropriate. After independent assessment that is exactly what had occurred. She said that this had resulted in the deletion of the Operations Manager's position. The new Assets Operations Manager's position was not commensurate with the Operations Supervisor's position.

51 Ms Banks submitted that the issue in this case was not about greater levels of judgement in decision making. She emphasised that work volume was not a core issue for grading. The difference between the positions was the provision of strategic advice, as distinct to technical advice. Recommendations and advice to senior management was different to actual decision making. Day to day supervision of staff was different to the overall management of staff. Ms Banks put that the new position reflected the higher level of responsibility and a direct reporting to the Manager Facilities.

52 Ms Bettina Sammut commenced her role as the Manager, Employee and Organisation Development in November 2002. Her role includes: a) organisational structure; b) change management; c) position description development and review; d) employee development and policy.

53 Ms Sammut said the Assets Division was first established in July 2001 as part of the Zoo's Master Plan. She detailed the various duties of the Manager Facilities; Operations Manager and Operations Supervisors and attached the position descriptions prepared by Mercer Cullen Egan Dell ('Mercer'). At that time, Mercer had evaluated the Operations Supervisor at Clerk Grade 5/6, noting that if the role of Operations Manager was abolished it may be appropriate to grade Operations Supervisors at 7/8.

54 In her opinion, Ms Sammut believed the role of Manager, Botanic Estate was more senior and responsible than Operations Supervisors because: a) the Manager, Botanic Estate reported directly to an Executive Manager (General Manager, Western Plains Zoo) whereas the Operations Supervisor (Horticulture) reported to a Grade 9/10 Operations Manager, Assets. This meant that there was effectively two additional layers of management between the Operations Supervisor and an Executive Manager (that is, Operations Manager, Assets and Manager Facilities);

b) the Manager, Botanic Estate had worked autonomously, especially as there was no manager at the Taronga site, whereas the Operations Supervisor (Horticulture) was subject to day to day supervision by the Operations Manager, Assets;

c) the Operations Supervisor (Horticulture) had only very limited authorised financial expenditure delegation up to $1,000, whereas the Manager, Botanic Estate had authorised financial expenditure delegation of $5,000;

d) the Manager, Botanic Estate was responsible for performance management of subordinates, whereas the Operations Supervisor (Horticulture) was required to refer such performance management issues to the Operations Manager, Assets (rather than resolve those matters independently);

e) aspects of the Manager, Botanic Estate's role have been assumed by the Operations Manager, Assets or Manager Facilities including: (i) financial budgeting responsibility; (ii) discipline of staff; (iii) grading reviews; and (iv) convening recruitment panels.

55 In her opinion, Ms Sammut believed the role of Life Sciences Manager was a more senior and responsible role than the Operations Supervisor because: a) they manage up to 22 staff and 15 volunteers;

b) there is only one level of management between their role and a General Manager;

c) there was an active involvement with the management of the staff performance management system and grading review process;

d) of the requirement to possess a Zookeeper's Certificate, or qualifications in animal biology, management or related fields appropriate to the responsibilities of the position;

e) of the reporting lines which require the Life Sciences Manager to: i) communicate daily with the Operations Manager to discuss work requirements and provide information about relevant issues or events;

ii) liaise with other senior staff including Veterinary staff, Curators, Senior Life Sciences management and senior Human Resources, Marketing, Public Relations, and Assets Division staff;

f) of the responsibility for the formulation and maintenance of in-house animal husbandry manuals and quarantine protocols for all species within the division. This requires an extensive knowledge of the Exhibited Animals Protection Act , Quarantine Act and National Parks and Wildlife Act ;

g) of the responsibility to the appropriate Curator for the management of relevant components of the collection to ensure that the species management goals of the Board are achieved;

h) of the responsibility for coordination of Board approved research projects, including collection of information, provision of records, collection of samples and training of animals;

i) of the requirement to develop and train staff to maintain an educational, entertaining and relevant animal presentation and Keeper talk programme to visitors;

j) of the requirement to deal with a broad range of visitor enquiries;

k) of the requirement to have an understanding of the principles of species management;

l) of the responsibility for the safety of staff working with dangerous animals and further to ensure that the animal enclosures are safe to the public, staff and the animals held within them;

m) of the requirement to maintain a working knowledge of all emergency procedures in compliance with the ZPB departmental policy and procedures and relevant OH&S legislation;

n) of the requirement to hold, or be eligible to hold, a firearms license.

56 Ms Sammut believed that the more appropriate comparison was with the Manager, Catering Operations graded at Clerk Grade 5/6.

57 In November 2003 a further restructure of the Assets Division resulted in the position of Operations Manager (vacant since October 2003) being abolished. The three Operations Supervisor positions now report directly to the Manager Facilities and were upgraded, taking into account increased responsibilities due to the deletion of the Operations Manager. The regrading resulted in Level 7/8 being determined.

58 In oral evidence Ms Sammut said she was asked to get involved in the restructure of the horticulture department in January 2003. She had met with Mr Yanitsis, Ms Mikulandra, and Ms Law and gathered relevant information. At that time the review had not involved consideration of the Operations Supervisor role. Ms Sammut had also been involved in the Zookeeper grading process, the BROWSE strategy and the volunteer program. Ms Sammut was heavily involved in the development and review of operational policies and procedures in the Assets Division. She had day-to-day observation of the work in various sections of the Zoo.

59 In response to the Commission's inquiry, Ms Sammut had cause to make further comparisons of the Operations Supervisor position to other classifications such as Tourism and Group Sales (Grade 5/6), Administration Supervisor (Grade 5), African Unit Supervisor WP2 (Trade Level Keeper 5), Temporary Roar and Snore Supervisor (Grade 4/5) and Zoofari Reservation and Sales Coordinator (Grade 4) (Ex"D").

60 In cross examination, Ms Sammut agreed she had not been employed at the Zoo when Mr Finlay's position was deleted and had no direct knowledge of Mr Finlay's performance of his duties. She also agreed that while she did not observe the day-to-day tasks of the Life Sciences Managers, she had regular contact with them on HR issues and in the development of policies and procedures. She said she had a good understanding of their roles and those of the Zookeepers.

61 Ms Sammut accepted that she did not manage the Operations Supervisors, nor did she have any significant involvement with them, but she was involved in the Master Plan work groups with other staff.

62 Ms Sammut agreed that in some instances there may be differences between position descriptions and what occurs in practice. Ms Sammut acknowledged that it would be anomalous if two positions or grades of equivalent or comparable duties were graded differently. However, she believed that all the Zoo's positions had been appropriately graded.

63 Ms Sammut agreed that the existence of Mr Yanitsis's position was a major consideration in not grading the Operations Supervisors at 7/8. She was referred to the e-mail from Mercer which was sent four months before the Operations Supervisors were appointed.

64 In re examination, Ms Sammut was shown a reply e-mail from Mr John West, Acting Manager of the Assets Division to Mercer in November 2001. At that time, Mr West had recommended that the Operations Supervisors be graded at 9/10 in order to attract good quality candidates. Ms Sammut had not spoken to Mr West, but believed he had been confused about the gradings and was not aware of the Mercer gradings system.

65 Ms Sammut said a key distinction between the Life Sciences Managers and Operations Supervisors was the degree of supervision on a day to day basis. Ms Sammut said that while she had observed Mr Yanitsis directing Ms Law and Mr Reid, she had no knowledge of the degree of autonomy afforded to Ms Law and Mr Reid.

66 Ms Sammut agreed that at least from October 2003 there was only one manager between Mr Reid and the acting Facilities Manager. She acknowledged that the Zoo had taken no steps to regrade Mr Reid to 7/8.

67 Ms Sammut said that when Mr Yanitsis resigned it provided management with an opportunity to review the need for continuing his position. The Division however, was already being reviewed earlier in 2003 as a result of the Association's request to review the grading of the Operations Supervisors. She could not recall if there had been any specific discussion discussion about Mr Yanitsis's position prior to his resignation.

68 The minutes of the November 2003 meeting record that the "PSA have provided some justification for their claim" and "for some time there has been a concern about the effective supervision and management of the operations area". Ms Sammut believed that this last comment related to claims by staff of poor management by Mr Yanitsis. It had nothing to do with Ms Law or Mr Reid. There was also said to be some overlap between Mr Yanitsis and Ms Mikulandra's responsibilities.

69 Ms Sammut agreed that Ms Law did undertake certain performance management duties and she did not always refer such matters to Mr Yanitsis. Ms Sammut conceded her statement was not accurate in this regard.

70 Ms Sammut believed that the five positions in Ex "D" were equivalent positions to Operations Supervisors (see para 59). These positions were not included in her original affidavit, nor had she spoken to the occupants of these positions or their supervisors. In cross examination, Ms Sammut accepted that the Zoofari and Roar and Snore Supervisor positions were lesser graded positions and were not directly comparable. The Tourism and Group Sales Team Leader 5/6 had one direct report but a high accountability for raising revenue. The Administrative Supervisor had four direct reports and one casual. Ms Sammut accepted that at various times Ms Law supervised 19 staff and Mr Reid 27.

71 In re examination Ms Sammut explained that the comparable positions in Ex"D" involved different levels of accountability. The position she thought most comparable was the African Unit Supervisor, Western Plains Zoo, although she said, it was in a different trades area.

72 Ms Sammut did not believe Ms Law was involved in any formal disciplinary process of her staff. Rather, it was informal discipline on the job. She also noted the financial delegation of Mr Finlay at $5,000. Ms Sammut did not know the extent to which Mr Yanitsis relied on Ms Law in terms of budgeting.

73 In comparing the Life Sciences Manager position, Ms Sammut agreed that the requirement to maintain a knowledge of emergency procedures and 0H&S legislation was not a distinction with the Operations Supervisors. Training of staff was at a different level involving front-line supervisor training.

SUBMISSIONS

For the Association

74 Mr Chin helpfully provided a written outline of the Association's submissions. It conveniently summarised the Association's case as follows: 1) The Association sought orders and a variation of the Zoological Parks Board of New South Wales Employees (State) Award, in favour of its members Ms Deborah Law and Mr Colin Reid, in terms set out in the amended Application filed in the proceedings (see para 5).

2) The Association did not press the making of order 3 of the amended application in reliance upon an undertaking by the respondent with effect that Mr Reid's employment will not be terminated arising from the current restructure of the Facilities Management Branch of the respondent's Assets Division in the terms stated at the outset of the hearing.

3) It was uncontroversial that the respondent paid wages to Ms Law and Mr Reid commensurate with, respectively, Grade 5 and Grade 6 of the Clerks - General Scale at Table 1 of the Award as set out in schedule B to the amended application.

4) It was similarly uncontroversial that the Commission has jurisdiction to grant the relief sought: Re Dispute - Upper Hunter County Council re grading (No 2) [1973] AR (NSW) 759 and Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311.

5) The Association submitted that, pursuant to the Award: a) Ms Law ought to have been paid at a rate commensurate with the minimum rate for Clerk Grade 7 during her period of employment with the respondent in the position of Operations Supervisor, Horticulture from 21 October 2002 to 12 September 2003; and b) Mr Reid ought to have been paid, and ought to continue to be paid, at a rate commensurate with the minimum rate for Clerk Grade 7 during his period of employment with the respondent in the position of Operations Supervisor, Technical Services and/or Asset Operations Manager (howsoever named or styled) from 16 July 2002 to date and continuing.

The significance of grading the Asset Operations Manager position at Clerk Grade 7/8 6) The respondent had effectively conceded, by its actions, that the Operations Supervisors' positions held by Ms Law and Mr Reid were, and are appropriately graded at Clerk Grade 7/8 under the Award.

7) The uncontradicted evidence was that the position description for the "new" Asset Operations Manager position, which had been graded by the respondent at Clerk Grade 7/8, was substantially the same as the actual duties and responsibilities of Ms Law and Mr Reid.

8) The Commission should accept the evidence of Ms Mikulandra and Mr Reid on this matter by applying the general principle that, if a witness is accepted as credible, and the evidence is uncontradicted and neither inherently improbable nor unreasonable, it will generally be sufficient to satisfy a party's burden of proof. See Holman v Holman [1964] 5 FLR 406 and Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSW LR 419.

9) The continuation of Mr Reid's Operations Supervisor re-graded position in substance was consistent with the respondent's own characterisation of the current restructure. The devolution of responsibility from Mr Yanitsas to Ms Law and Mr Reid 10) The initial grading of the Operations Supervisor positions at 5/6 (which took place well before the positions were actually filled) presupposed the active supervisory involvement of the Operations Manager, Assets (Mr Yanitsis). Indeed, the evidence strongly suggested that this supervisory involvement was the key difference between according the Operations Supervisors a Grade 5/6, rather than Grade 7/8.

11) However, in practice, Mr Yanitsis provided minimal supervision to Ms Law and Mr Reid in circumstances where a substantial level of responsibility was, from May 2002, devolved from Ms Mikulandra to Mr Yanitsis and, consequently, from Mr Yanitsis to Ms Law and Mr Reid: a) About 70 per cent of Ms Mikulandra's time was occupied with industrial relations issues such that a lot of her work dealing with the Master Plan implementation strategy was moved down to the operations area with the effect that the Operations Supervisors became a lot more autonomous in their decision-making in terms of prioritising and allocating work and resources.

b) The overlap in responsibilities between Ms Mikulandra and Mr Yanitsis, and consequential flow on effect to the Operations Supervisors, was recognised at an early stage in October 2002 in that a review of the position descriptions within the branch was commenced with the authority of the General Manager of the Assets Division (Mr Flinders), but was not completed owing to the departures on leave of Ms Mikulandra and Mr Flinders in or about April 2003. This review was intended to eventually include the Operations Supervisor positions. c) Industrial relations issues occupied 50 per cent of Mr Yanitsis' time, rising to 90 per cent after Ms Mikulandra's departure in April 2003. A combination of this fact and his appointment as "Fleet Manager" caused Mr Yanitsis to significantly devolve his responsibilities to Ms Law and Mr Reid, including work prioritisation. d) Mr Yanitsis would meet formally with the Operations Supervisors at fortnightly meetings where Mr Yanitsis would have the " first opportunity " to put forward work priorities, but Ms Law and Mr Reid could " assess whether they thought it was important " in light of the true daily needs of the Zoo's operations. e) Ms Law and Mr Reid had received very little direct supervision from Mr Yanitsis; they were " lucky to see him ". f) Ms Mikulandra and Mr Yanitsis had relied heavily on the respective expertise of Ms Law and Mr Reid in regard to the information and advice provided on the implementation of the Master Plan and other work priorities. Ms Mikulandra cannot recall ever declining to accept recommendations and advice given by Ms Law and/or Mr Reid. Mr Yanitsis very rarely contradicted or overrode their recommendations. In most cases Ms Law and Mr Reid " would correct (Mr Yanitsis and Ms Mikulandra) and tell us what we were doing wrong " and he relied wholly on Ms Law's expertise, himself having " absolutely zero horticultural experience or knowledge ". g) Mr Yanitsis had no involvement in the development of operational processes which was the function of Ms Law and Mr Reid. h) Mr Yanitsis had limited involvement in liaising with Life Sciences Managers which was primarily the responsibility of Ms Law, Mr Reid and their trade staff. i) The Operations Supervisors were more involved in driving cultural change in terms of the positive attitudes and customer focus within their work teams. j) According to Ms Mikulandra, Ms Law and Mr Reid " would normally just handle the whole job and provide feedback to Evan as to how it's gone ". They also had " considerable autonomy in terms of scheduling the work that had to be undertaken, who was to undertake it and the way in which it would be undertaken and often they would advise us as to a decision they had made just for our advice ". k) According to Mr Yanitsis, Ms Law and Mr Reid " had a huge amount of autonomy in their day-to-day duties " and " they were very much managing their own areas ". 12) In any event, since Ms Mikulandra's absence from April/May 2003 there had only been one management level between the Operations Supervisors and the General Manager, Facilities. Ms Sammut accepted that since October 2003 the Operations Supervisors were formally required to report to the Acting Manager, Facilities which was contrary to the formal reporting hierarchy contemplated in their original position descriptions.

13) Ms Sammut had conceded in cross examination on 9 March that the respondent gave no consideration to whether Mr Yanitsis' position was needed prior to his resignation.

14) The Commission should thus accord substantial weight to the view of Ms Mikulandra as the ultimate line manager of Ms Law and Mr Reid that they should have been graded above Grade 5/6, even with Mr Yanitsis' position in place. Appropriate Comparators 15) The Association contended that the appropriate comparators to the Operations Supervisor positions were the previous Manager, Botanic Estate (occupied by Mr Simon Finlay), and the Life Sciences Manager's position - both of which are graded at 9/10. In relation to the Manager, Botanic Estate: 16) Ms Law had worked under Mr Finlay and had direct knowledge of his duties. Consequently the Commission should accord substantial weight to her evidence, in particular, as to the similarities between her role and the Manager, Botanic Estate. In contrast, Ms Sammut only became employed by the respondent after the deletion of Mr Finlay's position and, in fact, had never met him. 17) Ms Law's assessment was corroborated by Mr Yanitsis and Ms Mikulandra: a) With the exception of the formal reporting line and the lower financial delegation, Ms Law's role was the same as Ms Sammut's account of Mr Finlay's position. b) The evidence of Ms Law, Ms Sammut, Mr Yanitsis and Ms Mikulandra was unanimous as to the same number of staff supervised by Ms Law and Mr Finlay (about 19 plus volunteers). c) Ms Law was the "first line" of management in terms of performance management and discipline of staff in her team. d) Ms Law had greater responsibilities than Mr Finlay in terms of the implementation of the Master Plan such as the planning and development of the "Backyard to Bush" precinct and the Western Perimeter Wall Stabilisation project. e) The mere fact of an additional layer of management had not necessarily affected the day-to-day autonomy of Ms Law. Ms Mikulandra stated that " having another line of management often means that you have got another level where you were advising on the things you are doing ". f) Ms Law had significant financial budgeting responsibilities. In relation to the Life Sciences Managers: 18) Both Ms Law and Mr Reid regularly worked with Life Sciences Divisional Managers.

19) The distinctions between Operations Supervisors and Life Sciences Managers sought to be made by Ms Sammut were invalid as: a) Operations Supervisors managed a similar number of staff. Mr Reid supervised from 20 up to 26 staff. b) Mr Yanitsis and Ms Mikulandra corroborated the evidence of Ms Law and Mr Reid in terms of their comparable duties in managing staff performance, liaising with other senior staff, coordinating of research projects, staff training, requisite trade qualifications, liaising with visitors and knowledge of occupational health and safety procedures. c) Ms Sammut had conceded in cross examination that the active involvement of Life Sciences Managers in managing staff performance referred to in paragraph 37(c) of Ex"C" was an inaccurate distinction because she accepted that Operations Supervisors, like the Life Sciences Managers, were also involved in conducting staff performance reviews. Operations supervisor responsibilities beyond the position description 20) The position description for Operations Supervisors expressly envisaged close, day-to-day supervision by the Operations Manager. For the reasons outlined above, the evidence overwhelmingly disclosed that this did not occur in practice.

21) The extent of work and level of responsibility involved in the implementation of the respondent's Master Plan, as well as the greater demands upon the time of Ms Mikulandra and Mr Yanitsis (and consequent inability to provide Operations Supervisors with close supervision), were not anticipated in the original position description.

For the respondent

75 Ms Banks, solicitor for the respondent, accepted that the Commission had jurisdiction to determine the application and should do so on the merits of the case.

76 Ms Banks addressed each of the contentions of the Association by submitting that there could be no argument that the position description reflected the job. Rather, it was claimed that the work actually performed by the Operations Supervisors was not reflected in the position description and that their jobs were, therefore not correctly graded. There was no evidence that Mercer had incorrectly graded the position. Ms Banks accepted that the Mercer exercise had been a theoretical process because the jobs had not existed at the time.

77 Ms Banks' fundamental contention was that the position description was accurate and the grading accurately reflected the appropriate level of responsibility and delegation. Ms Banks contended that the more recent restructure created a different position to that of the Operations Supervisor. The Zoo had an opportunity, with Mr Yanitsis's resignation, to review the levels of management and had decided that removing the Operations Manager position devolved a significant responsibility to the former Operations Supervisors. However, they were not equivalent positions. It was conceded that since October last year Mr Reid may have been eligible for higher duties payments. However, prior to October, the Operations Supervisor reported to Mr Yanitsis and the duties and responsibilities were appropriately described in their original position descriptions.

78 Ms Banks argued that the comparable positions proposed by the Association (Manager, Botanic Estate and Life Sciences Manager) were not valid. The breadth and scope of the compared positions were significantly greater than the Operations Supervisor. The delegations were different and the degree of autonomy and decision making was different. In any event, the Association was seeking a Grade 7/8 result, whereas both the comparators were Grade 9/10. Ms Banks proposed that the appropriate comparator was with the African Unit Division Supervisor or with the Catering Manager's position.

79 Ms Banks emphasised that it had always been the Zoo's position that the Operations Manager's position was to oversee the Operations Supervisors, notwithstanding they worked closely together and acted in a complementary way. Ms Banks referred to each of the major accountabilities of the Operations Supervisors' positions and compared them to the Operations Manager's major accountabilities. She submitted that the Operations Manager had an overseeing role and decision-making function which was at a higher level than the Operations Supervisors.

80 Ms Banks analysed Ms Law's evidence of the work she claimed to have performed and submitted that all of her duties and responsibilities fell within the scope of her original position description. Ms Banks said there was nothing in Ms Law's statements which assisted the Commission to come to the view that the position description didn't accurately encompass the work she was actually doing. Ms Banks noted that when Ms Law was asked if there were any tasks she performed outside her duty statement, she referred to only one matter.

81 Ms Banks referred to Mr Yanitsis's evidence that at one time he had been involved in HR issues for 90 per cent of his time. She submitted that, in fact, the majority of this time was Mr Yanitsis's own issues with HR.

82 Ms Banks detailed the work performed by Mr Reid and concluded that all his duties and responsibilities fell within the scope of his original position description. She noted that Mr Reid had not sought to overplay his role. His evidence reflected that he operated under supervision and direction. Ms Banks said that Mr Reid was a credible witness whose duties were within the scope of the position statement and reflected in the Mercer gradings.

83 Ms Banks submitted that neither Ms Law nor Mr Yanitsis had worked at the Zoo for a significant period of time. That being so, it would have been difficult for them to comment on Mr Finlay's role and duties. In any event, Mr Finlay had the final say on horticulture matters, as distinct to Ms Law's reporting line. Ms Law also gave evidence that she had not observed Mr Finlay's work closely, but communicated with him daily.

84 Ms Banks emphasised that the Association called no evidence from the Life Sciences Managers. The Association's evidence was limited only to the Operations Supervisors' roles in requisition and access to the animal exhibits. Ms Sammut had a more useful knowledge of the scope of the work of the Life Sciences Managers.

85 Ms Banks said that in reality, the number of persons reporting to Ms Law was 10 and to Mr Reid was 11. She conceded that this number might increase occasionally with contractors and volunteers.

86 Ms Banks emphasised that a significant difference between Operations Supervisors and Life Sciences Managers and the Botanic Estate Manager was the interposing level of management. The Operations Supervisor's role was to provide advice and recommendations. Ms Law may have given informal advice on animal husbandry manuals and quarantine protocols. However, the Life Sciences Managers have this formal role. Life Sciences Managers had a greater role in research proposals and training. They are responsible for the core function of the Zoo - the management of the animals.

87 Ms Banks put that the grading of Operations Supervisor by Mercer was conducted and developed in consultation with Zoo personnel and in light of the review of the whole Assets Division.

88 Ms Banks said Mr Yanitsis exercised a level of management, control and supervision of the Operations Supervisors. This was borne out by the Association's own witnesses. Emergencies were an exception, but this was perfectly understandable. Even when Mr Yanitsis left, Mr Reid was still not managing priorities. The fact that Mr Yanitsis relied on Ms Law and Mr Reid was an appropriate level of trust in their expertise.

89 It was Ms Mikulandra's evidence that there were only two areas of her duties devolved to Mr Yanitsis - Fleet Management and involvement in the Master Plan. Further, Ms Mikulandra was absent from work for nine months and was not in a position to directly observe the work of the Operations Supervisors. The fact that she had relied and accepted Mr Reid and Ms Law's advice and recommendations was not unusual. While she had required explanation, it was ultimately her responsibility to make the decisions.

90 Ms Banks claimed that Ms Mikulandra offered no details of her industrial relations involvement and Mr Yanitsis only spoke of his implementation involvement of the enterprise agreement. The fact that Mr Yanitsis might not have supervised the Operations Supervisors as much as he liked, does not assist. Fortnightly meetings were held. Mr Yanitsis also involved himself in micro budgeting matters, such as the $17.90 meal tickets he was required to sign off.

91 Ms Banks said the new position of Assets Operations Manager was not the same as the Operations Supervisor. It involved a change of duties and responsibilities, additional management and decision making. She noted that Ms Mikulandra accepted it was a different position. The significant difference was the removal of one level of management.

92 Finally, Ms Banks said that both Ms Law and Mr Reid were valuable employees whose expertise was valued by their managers. Their position descriptions accurately reflected the work they had performed. There was no evidence that the position description was wrongly graded.

In reply

93 Mr Chin submitted that there was a sense of unreality with the Zoo's submissions. The issue was not the removal of one level of management, but the content and extent of the duties and responsibilities of Ms Law and Mr Reid. Mr Yanitsis's resignation in October 2003 was not the point. It was whether his position was necessary. That question was answered early in 2002.

94 Mr Chin referred to the criticism of the Association for not bringing evidence about the Mercer grading. No one knew what "magic formula" Mercer had applied. The issue was the actual "hands on" supervision by Mr Yanitsis. In any event, Mercer had actually recommended Ms Law be Grade 6.

95 Mr Chin put that it could not be said that Ms Mikulandra's view that Grade 7/8 of the new position was justified merely by deletion of Mr Yanitsis' position. Ms Mikulandra's view was that even with Mr Yanitsis' position, Ms Law and Mr Reid should have been graded higher than 5/6 and when Mr Yanitsis' position was deleted the grading should have been higher than 7/8.

96 Mr Chin put that the evidence was that Mr Yanitsis and Ms Mikulandra were involved in many industrial issues involving other staff and the enterprise agreement.

97 Mr Chin addressed Ms Banks' criticism of the Association for not bringing evidence from the Life Sciences Managers. Ms Law and Mr Reid cannot be criticised for their view. If their view was to be contradicted, the onus rested on the respondent to do so.

98 Mr Chin concluded by putting that it was not the point that the duties performed by Ms Law and Mr Reid fell broadly within their position descriptions. The point was the extent their duties were performed autonomously or under close supervision. The evidence overwhelmingly demonstrated that the level of autonomy they exercised warranted a higher grade - namely 7/8.

CONSIDERATION

99 The Commission has a number of reservations with the respondent's evidence in this case. Firstly, the respondent relied entirely on the witness statement and oral evidence of Ms Sammut. With all due respect, Ms Sammut only commenced employment at the Zoo on 25 November 2002 - a year after the Operations Supervisors classifications were created. Further, I note that Ms Sammut's employment did not commence until after Mr Finlay, Manager, Botanic Estate had left his employment at the Zoo and his position was abolished. It would seem unlikely that Ms Sammut would have any direct knowledge of what Mr Finlay's job description was in the context of how his work was actually performed.

100 Moreover, and again with all due respect, Ms Sammut's responsibilities are for organisational structure and change management thorough the Human Resources Department. She agreed that she had no significant involvement with the Operations Supervisors and had not been involved in the working parties they had participated in. Ms Sammut also conceded that she had no knowledge of the degree of autonomy afforded to Ms Law and Mr Reid. In view of these concessions, I accept the evidence of the Association's witnesses that the degree of autonomy exercised by Ms Law and Mr Reid was not recognised in their position descriptions, nor was it envisaged by the Mercer assessment in 2001.

101 In Ms Sammut's statement she sought to draw similarities with Operations Supervisors to the Manager, Catering Operations. I reject such a comparison. It hardly needs to be said that catering at the Zoo is not a core function of the Zoo's operations. It could not involve the level of interface (if at all) that Operations Supervisors had with the core Zoo functions of managing the animals and their environment.

102 Ms Banks' fundamental premise was that the Operations Supervisor position description and its grading were accurate. Even if they were, that is not the correct test to apply in this case. The question really was whether the work actually performed by the Operations Supervisors was reflected in the position description and therefore, were the occupants of the positions appropriately graded?

103 The respondent's case rested, inter alia, on Ms Banks' efforts to cross reference the major accountabilities of the jobs with the actual tasks performed by the supervisors. There was no doubt, as Ms Banks emphasised, that Mercers had developed the position descriptions for the disputed positions. However, in my judgement, there were obvious difficulties with the approach Ms Banks adopted in cross examining Ms Law and Mr Reid on the issue and her submissions on this point.

104 The most glaring difficulty was that the major accountabilities were so broad and generic, almost "motherhood" statements, that one could readily identify any task performed by any manager, including the CEO, and slot that task into the major accountabilities. I give a few examples: Manage the development of staff within allocated team to ensure that team members are able to maximise their performance through effective feedback and training opportunities. Monitor standards of quality, performance, timeliness, and compliance to ensure that the work of allocated team is performed satisfactorily, in a timely manner and in accordance with legal requirements and professional standards. Promote a customer service focus and drive cultural change within the team to contribute to the repositioning of the Zoo as a commercial, customer orientated organisation.

105 Ms Banks painstakingly took each of the specific tasks identified by Ms Law and Mr Reid and successfully slotted them in the major accountabilities. However, in my view this exercise was of little intrinsic value and certainly of no assistance in determining this case. I would also question the validity of the exercise when the persons who drafted the major accountabilities were outside consultants. Leaving aside the respondent's failure to explain the methodology used by Mercer or call evidence from any Mercer employee, I doubt such persons would have the detailed knowledge of the actual work performed or how it was performed. Moreover, the position descriptions were developed some months before the positions existed - in other words, as Ms Banks conceded, it was a theoretical exercise. Perhaps this explains the generality of the major accountabilities.

106 The weakness of the respondent's evidentiary case can be contrasted to the strength of the Association's case. The Commission heard evidence from the persons who had actual "hands on" responsibilities in the positions and evidence from direct management of these persons. In my view, the Association's case was overwhelmingly and compellingly supported by the evidence it relied upon.

107 To the extent that the witnesses for both sides offered contrasting opinions of the nature and responsibilities of the work of Operational Supervisors and what was actually occurring, I would prefer to accept the evidence of those who were, to put it one way, at the "coal face".

108 Ms Banks rejected Ms Law and Mr Reids' opinions that their roles were equivalent to those of the former Manager, Botanic Estate (Grade 9/10) and the Life Sciences Managers (Grade 9). Strictly speaking however, that is not what the Association was seeking through its amended application. The claim was a regrading to Grade 7/8.

109 That being said, even accepting that Mr Finlay had some additional responsibilities for Western Plains Zoo and higher financial delegation than Ms Law, the differences in my assessment, were not of such magnitude as to justify a difference in Grade 5/6 for Ms Law vis a vis 9/10 for Mr Finlay. I should say that I do not regard the difference in financial delegation as a matter of much significance.

110 As I have said, in any event, the claim of the Association was not for 9/10 but for 7/8. In my view, this grade was correctly pitched having regard for the substance of Mr Finlay's position and the actual duties and responsibilities performed by the Operations Supervisors. The same observation might also be made for the one level of reporting less than Life Sciences Managers (Grade 9) had over the Operations Supervisors. In all other major respects I accept the comparability of the Life Sciences Managers with the Operations Supervisors.

111 I think the most interesting turning point in the history of this matter was the Zoo's decision in November 2003 to abolish the role of Operations Manager Assets and the establishment of a new position of Assets Operations Manager. The effect of this decision was to upgrade the duties and responsibilities of the Operational Supervisors, most particularly Mr Reid. It seems to me that this decision merely reflected the reality of what had been happening in practical terms for some time and probably about two months after the positions were originally created.

112 It might well be said that Management has now recognised and accepted what the Association had been claiming from the outset of this dispute; namely, that the grading of Operations Supervisors was plainly undervalued. This proposition would seem to be corroborated by the fact that concerns were first expressed a few months after Mr Yanitsis' appointment. In addition, I note that the minutes of the meeting to discuss the new structure in November 2003 records the following: PSA have provided some justification for their claim ... For some time there has been a concern about the effective supervision and management of the operations area.

113 As I earlier mentioned, the Commission found the evidence of Ms Mikulandra and Mr Yanitsis to be most helpful in understanding the scope, nature and responsibility of Ms Law and Mr Reid as Operations Supervisors. It seems plain, in a practical sense, that Ms Law and Mr Reid had a wide range of duties and responsibilities across a broad spectrum of the Zoo's operations, involving interface and communication with other senior managers, even including the CEO.

114 Ms Mikulandra's evidence included the following: i. the Assets Division was " self managed " because the people involved, including Mr Reid and Ms Law were competent to undertake management duties.

ii. Operations Supervisors had considerable autonomy in the day to day scheduling of work. The line of reporting to Mr Yanitsis had very little impact on this autonomy.

iii. Ms Law managed 19 employees and Mr Reid managed 17 to 18 employees.

iv. Operations Supervisors were responsible for their day to day staff issues and discipline and advised on staff training, including occupational health and safety needs.

v. Operations Supervisors liaised with Life Sciences Managers as to the suitability of plants in the exhibits (Ms Law) and works undertaken in the exhibits (Mr Reid). Mr Reid provided options and recommendations on engineering infrastructure services.

vi. When Ms Mikulandra was involved in industrial relations issues and later absent for nine months, much of the work devolved to Mr Yanitsis who in turn devolved responsibilities to the Operations Supervisors. This involved less supervision, prioritising and allocating work and resources and checking on timeframes and budgets.

vii. In late 2003 there was discussion concerning a review of the Assets Division. Ninety-five percent of the work of Operations Supervisors overlapped with the position description of a new position Asset Operations Manager (Grade 7/8).

115 The Commission accepts Ms Mikulandra's evidence that the duties and responsibilities of the newly created Assets Operations Manager (Grade 7/8) were 95 per cent of those performed by Operations Supervisors. Having so found, it must follow that the original grading of Ms Law and Mr Reed at 5/6 was manifestly incorrect and inappropriate.

116 Mr Yanitsis deposed to the following matters: i. Ms Law and Mr Reid enjoyed " huge autonomy " in their day to day duties.

ii. Ms Law's duties were no different to the Manager, Botanic Estate, save for the financial delegation. Ms Law and Mr Finlay (former Manager, Botanic Estate) managed the same number of staff.

iii. Mr Yanitsis relied solely on Ms Law's advice because he had no horticultural experience.

iv. Ms Law was involved in grading reviews and recruitment panels. Ms Law and Mr Reid were involved in research projects and the development and training of staff. They had responsibility for the safety and supervision of contractors and visitors.

v. Many of Mr Yanitsis' own major accountabilities were devolved to Ms Law and Mr Reid particularly during Ms Mikulandra's absence when Mr Yanitsis spent about ninety percent of his time on industrial relations issues. As a consequence, there was very little direct supervision of Ms Law and Mr Reid.

vi. Operations Supervisors had regular intervention with the Life Sciences Managers. Ms Law even liaised with the CEO on horticultural issues.

117 Even if I be wrong about the actual position description of the Operations Supervisors, it was clear that Ms Law and Mr Reid were performing many of the duties and responsibilities of other senior managers, including Mr Yanitsis.

118 Due to the general industrial dynamic at the Zoo and the absence of Ms Mikulandra, Mr Yanitsis said he was engaged for 90 per cent of his time in industrial issues. Much of his operational duties were devolved to the Operational Supervisors without supervision. Ms Sammut accepted that the key distinction between the Life Sciences Managers and the Operations Supervisors was the intervening level of management of Mr Yanitsis' position and the degree of day to day supervision. This proposition was seemingly supported, in retrospect, by the e-mail from Mercer four months before the positions were actually created. There it was recognised that a major factor in not grading the Operations Supervisors at 7/8 was the reporting line to Mr Yanitsis. In view of the evidence of the Association's witnesses, it seems incontrovertible that the key distinctions which Ms Sammut identified were not evident in practice.

119 In these circumstances, it is my opinion that both Ms Law and Mr Reid would have been entitled to higher remuneration than Level 5/6 in light of what they were expected to do at the time.

120 There is one final matter that I am compelled to comment on. Mr Yanitsis deposed that he often had to act to mediate between the staff and Human Resources. He claimed to have been harassed by senior management which was one of the reasons why he resigned. These were truly amazing and unbelievable admissions. I am not quite sure what has been going on at the Zoo in recent years but I am deeply troubled by what is plainly an unhealthy industrial environment. I am aware of the many recent disputes which have found their way to the Commission. Whatever is the cause/s of this unsatisfactory environment, it clearly warrants investigation at Board level.

121 For the aforegoing reasons, I am comfortably persuaded that the Association has made out its substantive case. The question then arises as to the relief which should be awarded in these proceedings. Ordinarily, I would not consider it necessary to vary an Award to give effect to the re-grading of one or two individual employees. My reluctance to do so is strengthened by the fact that the positions under examination no longer exist in the form they previously did. Moreover, Mr Reid is now graded at 7/8 and Ms Law has left the Zoo's employment. The practical result in this case is to conclude that Ms Law and Mr Reids' positions were not correctly graded and they are therefore entitled to the difference in salary of grades 5/6 and 7/8 for the relevant time as claimed by the Association.

122 Having said that, I propose to direct the parties to confer within 21 days in order to discuss the most appropriate mechanism for implementing the Commission's determination of this matter. The simplest and most obvious result would be for the Zoo to make the payments to Ms Law and Mr Reid as claimed by the Association in part 2 of the amended application. However, should there be no agreement on the matter, liberty to apply is available to both parties.

123 In that eventuality the Commission will determine any appropriate orders and/or variations to the Award to give effect to the conclusions reached herein.

124 Subject to this proviso these dispute proceedings are now concluded.

Peter J Sams, AM Deputy President

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.