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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:(07)3229-5957 Fax:(07)3229-5996
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SPENCER
C2002/3302
AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION
and
HINCHINBROOK SHIRE COUNCIL
Notification pursuant to section 99
of the Act of a dispute re
provisions applied to incremental
advancement for employee
INGHAM
9.35 AM, WEDNESDAY, 5 MARCH 2003
PN1
THE COMMISSIONER: Thank you. I'll take appearances, please.
PN2
MR I. BUCKLEY: If it please the Commission, Buckley, initial I. I appear on behalf of the Australian Services Union. With me I have the applicant, MR JOHN DELARUE.
PN3
THE COMMISSIONER: Thank you, Mr Buckley.
PN4
MR R. BEER: Thank you, Commissioner. My name is Beer, initial R. I appear for the Hinchinbrook Shire Council.
PN5
THE COMMISSIONER: Thank you, Mr Beer. I would ask the parties at the outset in this matter - the matter has been handed from Commissioner Bacon due to Commission and business matters, to myself. And reading the correspondence, I understand that the parties have sought the arbitration of this matter. It was originally filed as a section 99 dispute. So I would ask you to indicate for the record - or confirm that - the process that you're seeking from the Commission this morning?
PN6
MR BUCKLEY: Commissioner, on the applicant's part, the application was indeed by way of section 99. It was unable to be resolved through a conciliation process. It seems there were recommendations from the Commission in regards to the parties resolving it in-house. That has not been achieved, and consequently, a decision was made by the Council to take away an offer which had been put to Mr Delarue. In any event, we say that that has no relevance to the essential issue of Mr Delarue performing duties at the level 4, and we seek the Commission to arbitrate the matter in accordance with the award provisions, and indeed, the provisions of the Queensland Local Government Act 1993.
PN7
THE COMMISSIONER: The arbitration arises - the arbitration arises from the Award and Act?
PN8
MR BUCKLEY: As a consequence, yes - - -
PN9
THE COMMISSIONER: Right.
PN10
MR BUCKLEY: - - - of the conciliation which was brought before the Commission in terms of the Queensland Local Government Officers' Award.
PN11
THE COMMISSIONER: All right. So Mr Beer, it is a consent arbitration, as I understand it?
PN12
MR BEER: Well, yes, Commissioner, I understand that to be the case. And what Mr Buckley has said by way of the process of conciliation that has occurred is accurate, and the Union did seek for the matter to be arbitrated, and the Council is prepared to have the issue determined by way of the process that's currently in train.
PN13
THE COMMISSIONER: Right. So you're seeking a recommendation - a binding recommendation from the Commission?
PN14
MR BEER: Well, that might be up to Mr Buckley to make that call.
PN15
MR BUCKLEY: Well, I believe the appropriate section 111AA.
PN16
THE COMMISSIONER: Yes.
PN17
MR BUCKLEY: Yes, well that is the - that is indeed the intention of the applicant.
PN18
THE COMMISSIONER: Thank you. I just wanted to be clear from the outset the powers that you're asking the Commission to exercise the jurisdiction under, and the - the arbitration process in which we're - - -
PN19
MR BUCKLEY: Yes, Commissioner, my apologies. It is - is, in effect, for the - for the Commission to exercise its powers under section 111AA of the Act.
PN20
THE COMMISSIONER: Thank you, Mr Buckley. I should indicate to the parties that I have read all of the material that was provided to Commissioner Bacon in terms of the witness statements and the associated annexures to those. So just in terms of your cross-examination this morning, I've read all of the statements from the ASU, and in fact, the Hinchinbrook Shire Council.
PN21
MR BUCKLEY: And if I may, Commissioner, as a preliminary point - and knowing that you've been thrown in at the deep end, so to speak, in regards to this, and there is a - a fairly significant amount of documentation which you'll have to get your head around. Commissioner Bacon did have the benefit of some prior knowledge of what had gone on before. Now, he didn't seek responses to the - responses from the respondent in this particular matter - - -
PN22
THE COMMISSIONER: Yes.
PN23
MR BUCKLEY: - - - at the time. And do you wish, for the record, for Mr - Mr Delarue to respond to those particular contentions while he is in the box? I do realise that it is the practice of this Commission to gather the evidence-in-chief by way of the submissions and not to go further than that; and is that the way in which you wish to proceed?
PN24
THE COMMISSIONER: Well, certainly, Mr Buckley, I would like the matters to be fully enunciated before the Commission. So if, in fact, there are supplementary issues that you think will be necessary to respond to by way of additional questioning, whether that be in evidence-in-chief - and I think that's probably the appropriate way to deal with them, so that Mr Beer can cover those in any cross-examination he has of the witness, I'm happy for that to occur, so that all of the material is before me.
PN25
MR BUCKLEY: Thank you, Commissioner, I will proceed that way.
PN26
THE COMMISSIONER: Sorry, I should just say, Mr Beer, I didn't give you the opportunity to respond to Mr Buckley's confirmation that it was a section 111AA that was proceeding, but I assumed - - -
PN27
MR BEER: I thought I'd cover that. Commissioner, the - - -
PN28
THE COMMISSIONER: Yes.
PN29
MR BEER: - - - Council is prepared to have the matter determined.
PN30
THE COMMISSIONER: Thank you. All right. Mr Buckley?
PN31
MR BUCKLEY: Thank you, Commissioner. Commissioner, I call Mr John Delarue.
PN32
PN33
MR BUCKLEY: Now, witness, will you state your full name and address for the record, thanks?---Full name is John Michael Delarue, address is 20 Fisher Street, Ingham.
PN34
And are you an employee of the Hinchinbrook Shire Council and you work as an engineer and a surveyor with that employer?---Yes, I am.
PN35
Mr Delarue, would you have a look at the folder in front of you and go to section 2 - folio 2? Have you got that there, Mr - - -?---Yes, I have.
PN36
Now, that's a statement in respect to matter C202/3302, between the ASU and the Hinchinbrook Shire Council, and it's a statement of John Michael Delarue. Would you have a look at that statement, Mr Delarue, and confirm it is a true and correct record of the statement you have made?---Yes, it is.
PN37
And in respect to a number of attachments which are identified within that statement, Mr Delarue, do they follow by way of folio numbers in that folder?---Yes, they do.
PN38
Commissioner, I seek to have that tendered into the record.
PN39
THE COMMISSIONER: All right. We'll mark that as exhibit 1, and we'll mark the outline and submissions at a later date - - -
PN40
MR BUCKLEY: Thank you, Commissioner.
PN41
THE COMMISSIONER: - - - when the witness is finished. I would also ask, are there any other witnesses in the Courtroom this morning who aren't instructing in the matter? There's not?
**** JOHN MICHAEL DELARUE XN MR BUCKLEY
PN42
MR BUCKLEY: I don't have any, Commissioner.
PN43
THE COMMISSIONER: All right, thank you.
PN44
MR BUCKLEY: No, Commissioner, we will call two witnesses; they're both outside.
PN45
THE COMMISSIONER: All right, thank you.
PN46
MR BUCKLEY: Commissioner, what did you say, that was ASU - - -
PN47
THE COMMISSIONER: ASU Exhibit 1 - - -
PN48
MR BUCKLEY: Thank you.
PN49
THE COMMISSIONER: - - - will be the statement of John Michael Delarue.
PN50
MR BUCKLEY: Now, Mr Delarue, you made contentions within your statement regarding your - your grading with the Hinchinbrook Shire Council, and the fact that it is your firmly held belief that you are at a level 4 of the technical stream of the Queensland Local Government Officers Award, rather than a level 3 which you are currently graded at; is that correct?---Yes, it is.
PN51
Now, Mr Delarue, you've received and had an opportunity to look at responses from the principal surveyor, Mr Peter Mowat, and the manager of civil - - -?---Civil operations.
**** JOHN MICHAEL DELARUE XN MR BUCKLEY
PN52
- - - operations, Mr Bruce Leach; is that correct?---Yes, I have.
PN53
In respect to those responses, do you accept their contentions, Mr Delarue - - -?---No.
PN54
- - - in regards to their rationale?---No, I don't.
PN55
You do not. Mr Delarue, at any time during the process by which you committed yourself to resolve these matters as recommended by the Commission at an earlier date, did you ever refuse to undertake any form of professional development in terms of mathematical units?---No, I have not.
PN56
Have you personally been given any reference to those units and how you could access them from anybody in the Council?---No.
PN57
I have no further questions of this witness, Commissioner.
PN58
PN59
MR BEER: Mr Delarue, I might sort of start with where Mr Buckley started. I heard you say a moment ago that - in response to a question, had you ever refused any offer of any professional development by way of training courses or the like, you said no, you never refused?---That's correct.
PN60
So you're quite sure Council has never suggested to you that there could be some benefit to you in your position in being - in undertaking some additional training from, say, a tertiary organisation?---Nothing ever - nothing has ever been offered to me, no.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN61
You're quite sure?---Yes.
PN62
Okay. In that case, I might take you to the paragraph in your statement which appears on page 5. It is paragraph 24. And you say there:
PN63
Following the recommendations made by the AIRC on 26 July -
PN64
what were those recommendations?---The recommendations by the Commission was them to - for me to resolve - for me to resolve the position description.
PN65
And that - that was the only recommendation the Commission made?---As far as I'm aware, yes.
PN66
Do you recall receiving on around 19 March last year a letter from the Chief Executive Officer of the Council in response to your application for salary level reclassification? The letter appears as folio 17 in the ASU's documentation?---Yes.
PN67
I draw your attention there to paragraph 2, roman numeral I, where there is what appears to me to be certainly the suggestion, or at least the offer - that professional development studies - to quote there:
PN68
...would enhance your exposure and associated competence in the more formal aspects of engineering and surveying.
PN69
And I would suggest to you that is, in effect, an offer to undergo some professional development in relation to your position. You said there was none - you'd never been made - - -?---At that stage - at that stage, I seeked further assistance from the ASU, and the ASU informed me that they can - they cannot make that a condition of advancement to level 4. So that's why I just never - - -
**** JOHN MICHAEL DELARUE XXN MR BEER
PN70
You can't be compelled, is what you're saying?---Yes, correct - compelled, yes.
PN71
But nonetheless, in March of 2002, you were made an offer to do further professional development type studies. I - that's the way I read that letter. Do you read it differently? If so, can you tell me how?
PN72
MR BUCKLEY: Well, with respect, Commissioner, what Mr Beer is attempting to do here is to ask Mr Delarue to expound on the decision of the ASU in regards to the legality of the offer being made, when his inquiry to the ASU was on the bases of, "can they make me do this?" Now, it was the ASU's decision to say, "No, they can't." It's not within Mr Delarue's knowledge as an engineering surveyor to be able to answer Mr Beer in the way that he is suggesting he is requiring an answer from Mr Delarue. It is beyond his capacity.
PN73
THE COMMISSIONER: Well, I think Mr Beer was asking him - I understand the distinction between those two issues, but as I understand it, Mr Beer was pursuing whether an offer was made in relation to pursuing further professional development.
PN74
MR BUCKLEY: Yes, Commissioner.
PN75
THE COMMISSIONER: Perhaps you might ask - - -
PN76
MR BEER: Yes.
PN77
THE COMMISSIONER: - - - reframe the question?
PN78
MR BEER: Mr Delarue, I guess all I'm trying to establish is, you said you'd never refused an offer of professional development in a position. What I'm suggesting to you is that this letter of 19 March contains within it an offer to - and I quote:
**** JOHN MICHAEL DELARUE XXN MR BEER
PN79
Professional development studies would enhance your exposure, and appropriate assistance can be sought through the Council's staff education training policy.
PN80
And in fact, I know the background of the letter was discussion with you about how that might be effected. So I'm trying to reconcile your statement, that you've never been offered professional development studies and this letter. I'm wondering if you can assist me with that - - -?---It's there in the letter, but as for any discussion or further information apart from that, there was no - there was no - - -
PN81
Did you refuse to discuss what sort of courses the Council might have offered in connection with that letter?---No, I did not. I approached Peter Mowat and I asked him when - after the Commission - after the Commissioner asked me to sort out the problem about the PD. It was also a meeting with Peter Mowat to discuss the development program, and also maths study units. And I asked Peter Mowat on that day to discuss the maths study units, and he told me he's not - we don't need to talk about that now.
PN82
And what day was that?---I've got a - I have got a letter signed by myself and Peter Mowat. I can't exactly remember the date. Here we are: 23.8.2002.
PN83
And which folio is that in?---20 - 19, sorry. There was three key points, and I raised the issue of maths study units. I asked Peter what study units, and he said, "We don't want to talk about that now." We took care of - because the Commissioner requested me to sort out the position description and the staff development appraisal worksheet, I fulfilled my obligation.
PN84
Okay, well in that case, you're quite clear that an offer wasn't made, but when the suggestion was made, you queried it with Mr Mowat, and Mr Mowat indicated to you that he wasn't going to indicate to you which units could be studied?---Nothing. I had no correspondence of what units at all. I did no - I did not know what units of study they were asking for. They just summarised, "Units of study." Now, I didn't know which ones they were on about.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN85
Okay. We might move on. I'm sure Mr Mowat will have something to say about that in his evidence. I take you to the commencement of your statement, Mr Delarue, and I'm curious initially about the certificate that you hold for registration as a surveying associate. The - is that - can you explain to me your understanding of that certificate; is it a qualification?---It is a qualification, yes. In the Surveyors Board, it is - well, they say it's equivalent to an associate diploma and four years experience. How I achieved that registration was documentation of seven years practical experience in the fields of engineering, cadastral, topographic, hydrographic surveying and endorsement by two licensed surveyors outside of the Hinchinbrook Shire - well, one licensed surveyor outside of Hinchinbrook Shire and another licensed surveyor which does not longer work there as well, so endorsement by two licensed surveyors.
PN86
Okay. Sorry, I notice you said there it was equivalent to an associate diploma?---In the board's eyes, they see that registration as an associate is equivalent - to gain registration as a surveying associate, you have to have seven years practical experience documented or - which is equivalent to an associate diploma and four years experience.
PN87
Okay. I might just - I wonder if you're aware of the surveyors regulation from 1992 under Part 2 of the Act, section 6, Registration, where it says:
PN88
Qualifications of surveyor associates.
PN89
There are two paragraphs there. The first says:
PN90
For the purposes of the section following, the prescribed educational institutions, Queensland University of Technology, University of Southern Queensland, and any other educational institution recognised by the Board -
PN91
then it goes on to say that:
**** JOHN MICHAEL DELARUE XXN MR BEER
PN92
A person is otherwise qualified to be a registered surveying associate if a person has gained over a period of seven years practical experience in surveying sufficient to satisfy the Board or the person's capacity to maintain a high level of performance in the technical aspect of the practice of surveying.
PN93
?---Yes.
PN94
Okay. So there are actually two parts to that section. One is the formal qualification part and the second part is seven years experience, on the job experience, in effect.
PN95
MR BUCKLEY: With respect, that's not correct. Mr Beer is projecting a provision which does not exist in the Surveyors Act. He should read it correctly as it is written.
PN96
THE COMMISSIONER: Well, Mr Beer, I haven't quite caught up to - which file are you in? I have read that but I can't track it down.
PN97
MR BEER: Well, it's actually in the file; it's in a regulation, surveyors regulation which is attached - or part of the Act. I believe that it doesn't appear in any of the paper work you've got and I'm happy to make copies of that available. Commissioner, the point of the question is simply to draw a distinction between qualifications, associate diplomas and the like and what is, in effect, seven years experience and that they are two different aspects of this certificate which, I guess, I'm in the throes of making submission here, but the certificate itself is simply a recognition of service and proficiency at skill without being a qualification per se and I just wanted to get clear with Mr Delarue that what he holds is in fact a - is that certificate.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN98
THE COMMISSIONER: Well, I think as - sorry to cut you off, Mr Beer, but I think as Mr Buckley says, if there is a submission to be drawn on that, you will take me to the relevant provision specifically. If you were making a submission about the certification authenticity of that surveyor's associate position based on experience and in fact a formal qualification, you'll take me to that.
PN99
MR BEER: Yes, I might do that, Commissioner, with one of my witnesses later in the day.
PN100
THE COMMISSIONER: Thank you.
PN101
MR BEER: Thank you, Commissioner.
PN102
Mr Delarue, the certificate you hold was issued to you when?---1995 I do believe.
PN103
And the seven years experience required for that certificate was the - obviously the previous seven years?---Correct.
PN104
And can you tell us a bit about that certificate; what does it enable you to do?---Well, I'm bound by the Act.
PN105
Which Act is that?---The Surveyors Act of 1977. It also allows me to - well, actually, I've got it written down - written down. I've just got to find it. I wrote it all down. I sent a memo to - which explains it. Number 7, I do believe. Yes, the letter I sent council explains it there fully.
PN106
And that's folio?---Folio number 7. There's one I sent to the Mayor and councillors and there's another one as well I sent the chief executive officer and shire engineer, etcetera, explaining what - how I've received it and it's probably the second last paragraph. The second last paragraph and third last paragraph, explains it.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN107
Okay. Well, does it , for instance, allow you to do cadastral surveys?---Under immediate supervision or a licensed surveyor, yes.
PN108
And can you tell us what a cadastral survey is?---Yes, boundary reinstatement, subdivision, that's the legal side of boundary surveys.
PN109
And under the Act, who is authorised to do cadastral surveys?---Within the council?
PN110
No, well - - -?---Who is - - -
PN111
- - - under the Surveying Act?---A licensed surveyor.
PN112
And by the possession of this certificate - - -?---Well, anybody that's registered with the board that I have to have endorsement by, a licensed surveyor to practise cadastral surveys. I can do the survey work, yes. I can place the pegs, I can do all the field work, the calculations, do all the reinstatement and - - -
PN113
Is that then the complete job in terms of the cadastral survey or is there more - - -?---There's still plan drafting. There's - let me think about this. It's more or less - - -
PN114
Sounds like you don't do the entire cadastral survey - - -?---No. No, I don't.
PN115
- - - but you do a part of it?---Yes, that's correct. That's correct. I do a part of it.
PN116
The physical collection of surveying - - -?---Of the information, that's right. That's right. I have to physically work out the reinstatement, identify boundaries and things like that but as for the finalising of registered survey plans - - -
**** JOHN MICHAEL DELARUE XXN MR BEER
PN117
That's the responsibility - - -?--- - - - it's the responsibility of a licensed surveyor. That - this is correct.
PN118
And the information you collect is also under the auspices of a licensed surveyor?---Yes, of course.
PN119
So the responsibility rests with the licensed surveyor for the information that you would collect?---Yes, of course. I would not deny that.
PN120
Do you hold any other qualification apart from this certificate, any - - -?---Such as?
PN121
- - - certificates from an education institution, a TAFE or a university or a technical college?---Oh, apart from - you know, basic computer courses from TAFE and you know, chain-saw courses, first aid, you know, the usual run of the mill sort of thing.
PN122
I'm talking about more tertiary - - -?---Tertiary - - -
PN123
- - - qualifications, yes?---No.
PN124
Have you ever engaged in any of those sort done any of those sort of courses as part of a degree program or a diploma program?---Not since I finished school, no.
PN125
So your sole, single qualification is this - in respect to this issue is the certificate?---This is correct, yes.
PN126
I notice in paragraph 8 of your statement, you say that:
**** JOHN MICHAEL DELARUE XXN MR BEER
PN127
Prior to '95, the Council survey section had four people employed in it.
PN128
And you list them there as the principal surveyor, engineering surveyor and a survey technical assistant and an instrument hand and in 1995, which was the year you gained your surveying associate's certificate, there was a restructure, and can you tell me what the effect of that restructure was; how did it impact on those four positions in that department?---Right. The original principal surveyor there in 1995 came up for retirement.
PN129
What was his name?---Harry Berger.
PN130
Right. He retired - - -?---Yes, he retired and moved on. Consequently Peter Mowat was the engineering surveyor at the time, he finalised his study and became licensed so he moved into Harry Berger's position. I was - - -
PN131
Which was the principal surveyor - - -?---Which become the principal surveyor's position, yes. He fulfilled that position. They restructured myself into the engineering surveyor's position and then my position, the technical assistant's position, no longer existed and the instrument hand status the same. We still had the same instrument hand.
PN132
So the position you moved into was the engineering surveyor's position - - -?---That's correct.
PN133
- - - which was a new position or one that was previously occupied?---Well, it's the same position. It's still the engineering - yes.
PN134
I might just - - -?---Well - although they did re-draft a position description, so - - -
**** JOHN MICHAEL DELARUE XXN MR BEER
PN135
Commissioner, if I hand the witness some documents - Mr Buckley some material for the witness to express a view on. I'm handing both - Mr Delarue?---Thank you.
PN136
Just for your information, Commissioner, what I've - and Mr Buckley's, what I've handed up are in fact two position descriptions from around the time that we've been talking about with Mr Delarue.
PN137
You'll notice, Mr Delarue, the first there is a position job description for Mr Mowat and that's my writing there. That says pre-1995 and it's marked with a little "4/5" and that, I'm told by Mr Mowat, is the - and he will attest to this, his position description in the survey area prior to Mr Berger's departure. The second document is in fact a new position description which was drafted for Mr Delarue at around the time that he succeeded into the position of engineering surveying associate. Can I get you to confirm that that - you're familiar with that position description, the second document, the one that's headed John Delarue PD 1995?---Yes, I agree.
PN138
Is that - you agree with it?---I agree, yes.
PN139
Yes, that's the one?---Yes.
PN140
Can you just have a browse through both PDs and just tell me whether you think they're the same position? I flag my intentions here, Commissioner. You'll notice that the document I've handed up has got some markings on it which is - - -
PN141
THE COMMISSIONER: Yes, but all of them have been so marked.
PN142
MR BEER: - - - all of them have been marked and I guess my contention to the witness will be, well, the significant areas in the first PD, Mr Mowat's PD, which are significantly different to the second PD.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN143
MR BUCKLEY: Stop making submissions.
PN144
THE COMMISSIONER: You're going to put those questions - - -
PN145
MR BEER: Well, I'd certainly like to get Mr Delarue's reaction to what I put to him in that regard, that the positions in fact weren't the same, that the position that - - -
PN146
THE COMMISSIONER: Well, you might ask - direct those questions. I mean, I think you're specifically asking the witness to look at those underlined areas, are you, Mr Beer?
PN147
MR BEER: I am.
PN148
THE COMMISSIONER: Yes.
PN149
MR BEER: Can you express a view on those, Mr Delarue?---I beg your pardon?
PN150
Can you express a view on that - certainly in my belief, on my reading, they look different; do you believe they look - - -?---Yes, they are different, yes.
PN151
Well, they are quite different positions, you'd have to agree with me on that?---Well - - -
PN152
THE COMMISSIONER: Well, Mr Delarue, have you had an opportunity to look at those. I think Mr Beer's specifically asking you to look at the underlined - - -?---Yes.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN153
- - - in terms of the differences there or what he is suggesting are differences in relation to the areas that are underlined. I just want to make sure that you've had the opportunity to look at the documents?---Yes, I have, Commissioner, yes.
PN154
MR BEER: And do you agree or do you not agree that they're different?---That they're two different positions?
PN155
Yes, based on the content of the PDs?---Based on the contents of the PDs, yes.
PN156
Okay. So given that they're two different positions, logic says that you didn't then succeed from your position into Mr Mowat's position because Mr Mowat's position as we've just discovered is significantly different?---This PD was drawn in 1995 when I've just gained registration. I can't see where that position description - and this is after Peter Mowat has had 20 odd years experience in the engineering - I started at level 3. That's fair enough. That's a possible position description for a level 3 person coming in and just starting off as a surveying associate. This position description describes a surveying associate as being in the industry for 20 years. Of course this is going to be much more - what's the word, in depth position description than this one.
PN157
Mr Delarue, all I'm saying is that I don't think you were accurate in saying that, "While I was appointed into his former position as a level 3"; all I'm suggesting to you is that the positions were quite different, that you, in fact, took up a position which was manifestly different to the position that Mr Mowat was in, in 1995?---What I'm saying there is I've - the engineering - I still - the council has employed me as the engineering surveyor. That's it, simple, that as far as I know.
PN158
Right?---That's all I'm saying there.
PN159
You might be wrong, Mr Delarue, there - - -
**** JOHN MICHAEL DELARUE XXN MR BEER
PN160
THE COMMISSIONER: Well, we might mark those. Do you have any objection to them being marked as exhibits, Mr Buckley?
PN161
MR BUCKLEY: Commissioner, one is already contained within the folio and - which is John Delarue's PD at 1995 which is - - -
PN162
MR BEER: Commissioner, the other exhibit is Mr Mowat's - - -
PN163
THE COMMISSIONER: All right.
PN164
MR BUCKLEY: One has already been in the folio at position 10 which is John Delarue's position at 1995 and the other one is within the council's responses, as I understand. Providing there's no confusion, I've got within my head in terms of referring to the folios, Commissioner, that's all, and rather than unnecessarily referring to it as a separate exhibit when it's within the folio which has been presented to the Commission in a structured manner.
PN165
THE COMMISSIONER: All right. Well look, for the purposes of the record, since you've handed them up and addressed them to the witness, I might mark them as exhibit 2. I'm happy for you to refer to your - where they fall as folios and not refer to them separately, but just because they'll be separate documents, I'll mark them as exhibit 2 and they'll be the position descriptions pre-1995 and that post-1995 and I concede that they appear as separate folios in both of the evidence of Mr Mowat and that of Mr Delarue.
EXHIBIT #2 TWO POSITION DESCRIPTIONS, ONE PRE-1995 AND ONE POST-1995
PN166
MR BEER: As exhibit 2 though. They want to exhibit the two PDs because they were presented on the basis of being a comparison exercise.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN167
THE COMMISSIONER: Yes, that's correct, so they'll be exhibit 2 and there will be two documents under that exhibit.
PN168
MR BUCKLEY: Well, Commissioner, we started off with exhibit 1 with Mr Delarue's statement. It's normally the practice of the Commission to differentiate between the exhibits submitted by either party. Is this going to be as Local Government 1 or ASU?
PN169
THE COMMISSIONER: All right. Well, we can do it that way. There's two ways of doing it: either we put ASU and we have one consistent number of exhibits, and we just simply put on it whether it's ASU or - but if you prefer that method that's fine. But we will make that Hinchinbrook Shire Council, the respondent's, exhibit 1, and there will be two documents to that.
PN170
MR BUCKLEY: Thank you. Thank you, Commissioner. I notice the associate nodding vigorously so - - -
PN171
THE COMMISSIONER: I know clearly Commissioner Bacon uses that process. My associate uses the other, so I'll fall into line. I'm outnumbered today. All right, thank you. Sorry for the interruption.
PN172
MR BEER: Thank you, Commissioner. I'll move on from that.
PN173
So in 1995 you became a level 3 engineering associate, surveying associate?---That's correct.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN174
And the PD contained in exhibit 2 was the one that you commenced to work against or work to. When was that PD then next reviewed? I'll make it easy, I'll draw your attention to paragraph 11 of your statement?---Yes. Paragraph 11. Yes, 2001. Yes, that's - I was thinking, yes, they'd have to be in the next one.
PN175
So what ..... in 2001 was the statement from 1995 which for those five or six years had remained basically as - - -?---That's correct. yes.
PN176
- - - it was?---Yes.
PN177
And you sought to have it amended to reflect an increase in duties and responsibilities. What changes did you seek in that PD that required change?---Well, it was mainly just that more responsibility was cast upon me and the principal surveyor was - did not have to check my work all the time and things like that, you know, which sort of - as I've been in the position more time, the experience. Just the more experience that I've gained, it just - the more I've sort of - - -
PN178
So you've had six years experience under your belt, that's what - - -?---Yes.
PN179
- - - you're say?---Yes, that's right. I was, you know, more trusted to, you know, go my own and do my own work and you know.
PN180
Okay. So you sought to have - - -?---The supervision from the principal surveyor was much more minimal.
PN181
Was less?---Was less, yes. My responsibilities became more.
PN182
Okay, so in - - -?---That was - that's the main thing I think.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN183
In July 2001, your PD changed to reflect that. Is that contained in the documents that have been provided by the union? PD from 2001?---
PN184
MR BUCKLEY: Yes, it is but I don't wish to be leading the witness.
PN185
MR BEER: I'm happy for the witness to answer the question.
PN186
THE WITNESS: Sorry. I don't really understand what - - -
PN187
MR BEER: The PD that was changed from the 1995 version to the 2001 version, can you take me to in the folio where the 2001 - - - ?---Well, what you're saying is that: does this PD reflect what I do now? Is that what you're saying?
PN188
Yes, I'm trying to track how many PDs we're looking at here, and so far we've discovered there's one from '95?---Yes.
PN189
And there's one that was changed around July/August 2001 and that's the one we're looking at now in folio 16?---Yes.
PN190
And the copy I've got in the union's document here says that you agreed to contents of this PD including amendments to 1 and 2 on 23 August 2002?---That's correct.
PN191
So that then becomes for want of a better term, the agreed PD?---That's right but - - -
PN192
With those amendments?---?---You have to understand that at the time I agreed to this PD, I was under obligation from the Commissioner to agree to this PD. I had to push it through.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN193
So - - -?---I'd rather - personally myself, I'd rather have the PD that I used to have more so than this. I had to fight three times - - -
PN194
Are you suggesting you agreed to this PD under duress from the Commission?---Sorry.
PN195
Are you suggesting you agreed to this PD under duress from the Commission?---Not under duress in the Commission. I was fulfilling my obligation by the Commissioner requesting me to try and to sort out this problem.
PN196
Okay. So - - -?---I was - at the time I was ill. I had to come in. I had to take my long service leave because - due to illness, stress from all this and I was under a lot of pressure. There was - - -
PN197
You said a minute ago you'd actually prefer the preceding PD to this PD?---I would, yes. Originally until I got a couple of changes made, the last paragraph, the position provides relief in absence of principal surveyor. I had to fight with the Human Resources person three times to get that put on my PD and that - and I'd been doing relieving the licensed surveyor in his absence for many, many years before that was even put on.
PN198
In the absence of any obligation from the Commission to agree the PD, what would this PD otherwise look like?---Beg your pardon.
PN199
In the absence of your obligation from the Commission to agree this PD, if you hadn't had that obligation, what would this PD look like? Would it look like - - -?---Well, those amendments wouldn't be there.
PN200
Sorry. Wouldn't be?---No, they wouldn't be there.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN201
So this PD would still say level 3 instead of level 3/4?---That's correct.
PN202
And this PD would still say "Carry out engineering surveys with general direction" and not "broad direction"?
PN203
So you'd agree the position is a level 3 position?---No, I agree that's a level 3/4.
PN204
Okay. I notice you made a comment about the final sentence of the PD:
PN205
This position provides relief in the absence of the principal surveyor to the extent of acting as supervising engineering surveyor.
PN206
?---That's correct.
PN207
So you can't actually act up as a surveyor. What additional duties does a supervising engineering surveyor carry with it?---Extra duties. Well, all engineering inquiries, survey inquiries when the principal surveyor is not there. The only thing that I can't do is the legal side of cadastral surveying in the absence of the principal surveyor. Everything else I can perform.
PN208
What do you call the legal side of cadastral surveying?---Well, the legal side of things with land dealings and things such as those.
PN209
What do you mean legal dealings with land? What does that mean?---Well, dealings with land. It's so hard to explain.
PN210
I'd suggest to you it's not, if you know what cadastral surveying is?---Yes, well, yes, I do. I do, yes. Well, this - I can't - you've got to - sort of understand that I can't perform cadastral surveys on my own so therefore if the licensed surveyor is away on holidays, I can't step into his shoes and perform those types of surveys because there is legal implications that he has to sign off on; that's what I'm - - -
**** JOHN MICHAEL DELARUE XXN MR BEER
PN211
Put aside the legal implications for a minute, and just look at the technical requirements to do cadastral surveying you're equipped in your view to do?---Yes, all right. In the absence of the licensed surveyor while I'm relieving, I'm quite capable of going out and doing - picking up boundary locations, identifying boundaries and everything. But I can't actually place pegs or place new marks which become a registered mark, without the knowledge or the authority from the licensed surveyor. I - in all my survey work that I perform with the council be it engineering, surveys, or whatever, there is always an aspect of cadastral surveying in it; be it just location of boundaries, identification, all the calculations to work out position of boundaries. And also I go back to the office and I plot all those boundaries I fix. The only thing - the only thing that I can't do is actually place registered marks without the authority of the licensed surveyor.
PN212
That's a function of what is in the legislation?---That's correct.
PN213
But otherwise you can do all the other technical and scientific skilled aspects of cadastral surveying?---Yes.
PN214
Okay. As supervising engineering surveyor when you act up, how often does that happen?---Oh, at least once a year maybe twice depending on how often Mr Mowat likes to take holidays.
PN215
So it's for annual leave relief that you act up?---Exactly. Yes.
PN216
Yes. And when you do act up, are you paid the higher rate?---Yes, I am.
PN217
And that's as a result of what is in the award under Officers Performing Higher Duties section of the award that generates that payment?---Yes, I get paid a level 5A.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN218
And in that capacity, do you supervise any staff?---Yes, I do.
PN219
What staff do you supervise?---Well, I'll always supervising my instrument hand. He's my direct offsider. There's other people in the organisation be it labourers mostly: men out working on slashers and things like that, men from parks and gardens. At any one time, I could have anything up to maybe four. I've had up to four or five people under my direct supervision in the field, but I always have my instrument head. He's under my direct supervision in the field.
PN220
That's when you're acting in the supervising engineering surveyor capacity - - -?---No, that's - - -
PN221
- - - or that's otherwise generally?---All the time.
PN222
All the time. Okay. So your instrument hand, what is his name?---Frank Bushmaro.
PN223
And he reports to?---Well, he reports to Peter Mowat or he reports to me depending on the work.
PN224
If you're his supervisor, as you say you are, surely he reports to - - -?---We both supervise him. Peter Mowat might direct the work in the office but Peter Mowat can't supervise Frank Bushmaro when he's out in the field with me. If you're in excess of 50 kilometres from the office, he can't supervise him.
PN225
Okay. And where is that in the responsibilities of the position in your PD? Where is that covered?---In the current PD?
PN226
Well, in the agreed PD and I use that term advisedly?---Yes, well:
**** JOHN MICHAEL DELARUE XXN MR BEER
PN227
Assist and review work of other technical staff performing minor surveys and parts of larger survey projects.
PN228
Okay. So you say - - -?---Responsibilities of the position, point 6.
PN229
You say that amounts to supervision?---Well, yes.
PN230
These other - the four or five other staff in the field that you claim to be responsible for what other parts of council would they work for?---Sometimes water and sewerage; sometimes parks and gardens.
PN231
As supervisor, you're responsible for allocating them work?---Yes.
PN232
And ensuring the work is completed?---Yes. I give them tasks. It may only be menial tasks such as clearing lines with whipper snippers and things like that, but it's still - they're still under my supervision in the field, yes.
PN233
And who do you remain accountable to for ensuring that their work is done?---Me, myself? Peter Mowat.
PN234
So that makes the principal surveyor in charge of and accountable and responsible for people, water supply and sewerage area and the parks and gardens area; that's what you're saying? Through you, they're accountable to him to ensure their work is done?
PN235
No, I didn't think so.
PN236
THE COMMISSIONER: Was there an actual response for the record there?
**** JOHN MICHAEL DELARUE XXN MR BEER
PN237
MR BEER: The witness exhaled.
PN238
THE COMMISSIONER: I don't think that will show up on the record. So what was your response to that question?---Could you ask the question again, please?
PN239
MR BEER: What I was saying to you, it's your response, was that Peter Mowat is the responsible officer in council, and he is accountable for ensuring that people whom you supervise in the parks and gardens area, in the water supply and sewerage area, do their work to the require standards at the appropriate times?---While those people are out in the field working with me, they are my responsibility. And who do I answer to? Peter Mowat. That's what I was understanding that you were getting at. That's what I thought you were getting at.
PN240
Yes, well, I am. In the chain of accountability, it seems to stop - - -?---The chain of command, yes, of course.
PN241
It stops at Peter Mowat?---Exactly.
PN242
And I'm suggesting to you that a principal alone is in charge of people in the field and water supply and sewerage is - - -?---All right, okay.
PN243
Is a difficult - - -?---Put it in - - -
PN244
- - - proposition to accept?---Put it in different context, all right. If I'm out in the field and a fellow that is working under me cuts his leg off, well, I suppose it's my responsibility, isn't it? The buck will stop with me because I have to establish workplace health and safety. I have to establish a safe working environment for all these people. Peter Mowat can't do it from the office, but at the end of the day I suppose the buck stops with me. But overall, yes, the buck will stop eventually. The buck will stop with Peter Mowat.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN245
Going onto page 4 of your statement, I'm looking at paragraph 20, you, it says in the final paragraph there, filed a section 99 notification on 25 June and there were further attempts between Mr Stubbings and Mr Comino to resolve the matter but they had failed. What were those attempts? Can you tell me a bit about what attempts were made?---Sorry. Which paragraph was it?
PN246
Paragraph 20, the final sentence:
PN247
There was an attempt made between Mr Stubbings and Mr Comino to resolve the matter.
PN248
Mr Comino presumably acting on your behalf, Mr Stubbings, then HR, being manager for the Council acting on Council's behalf, made an attempt to resolve the matter. Can you tell me what attempts they made? What was suggested between the two of them that could be viewed as an attempt to resolve the matter which is in dispute, which is the grading?---The grading. Well, there was - it never got resolved. It's simple.
PN249
Well, did Mr Stubbings make a suggestion to Mr Comino that, "Hey, why don't we fix it like this"?---They - Mr Stubbings said that they have - I have to do further maths study and that was it. And Mr Comino said, "Well, you can't impose those conditions." And that's pretty well it in a nutshell.
PN250
Did Mr Stubbings - were you present at these attempts, these discussions?---31 May. Yes. I was present. I was present for that.
PN251
So you witnessed the discussion between Mr Stubbings and Mr Comino?---Yes.
PN252
And Mr Stubbings said what, suggested that you should do some further study?---That was Council's wishes, yes.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN253
And what was your reaction to that?---Well, I was - I've got no problem with doing study. I've got no - - -
PN254
Did you say so on 25 June?---I can't recall.
PN255
You can't remember whether you said yes or no?---I can't even recall if I was asked that question.
PN256
Well, it came up in the discussions. You've just said so. All I'm asking is, tell us about the discussion. What - who said what to whom about what? So far all I've been able to get out of you, Mr Delarue, is that Mr Stubbings suggested you do some further study?---Yes.
PN257
Now, you must have had a view about that?---Yes.
PN258
Given that it was critical to how this matter was going to be resolved?---Yes. But I was still under advice from the ASU that they can't make that a condition of me getting a re-grading.
PN259
So if you - am I safe to assume on that basis you refused any further study because it was a condition of re-grading?---No. I didn't refuse anything.
PN260
So what was the outcome?---The outcome? There was no outcome. We still agreed to disagree.
PN261
What were you disagreeing about?---Disagreeing that the PD was a level 3, disagreeing that the Council was imposing conditions for me for a re-grading which was unfair, which was outside the guidelines of the award, apparently.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN262
So the conditions you were saying were unfair were the requirement that Council was saying that you should do some further - - - ?---Apparently under the award, yes. That's what I was advised. I've got no objections to do study, but I was told that they cannot make it a condition for advancement to level 4 with my particular case. That's what I was told and I'm sticking to my guns. Yes.
PN263
In paragraph 23 you say that, part way down:
PN264
HSC had never provided me with any information on the maths study unit or whom will provide ...(reads)... I require to continue to perform my duties in the position I've held since 1995.
PN265
So that says that the Council is saying to do your level 3 job you need additional maths study units?---To do my level 3 job?
PN266
THE COMMISSIONER: Level 4 you mean, Mr Beer.
PN267
MR BEER: Well, he's currently at level 3.
PN268
You're currently at level 3?---That's correct.
PN269
And you've been doing that since 1995?---That's correct.
PN270
And the allegation is:
PN271
...that I require to continue to perform my duties in the position I've held since 1995 -
**** JOHN MICHAEL DELARUE XXN MR BEER
PN272
that additional maths study units are required. Who's saying that to you?---Who's saying that I have to do maths study?
PN273
When it says, "They allege" - meaning the Council - "that I require" those maths study units "to continue to perform my duties"?---Bruce Lynch, Peter Mowat.
PN274
Okay. And when did they indicate to you that you should do some further maths studies?---I can't give you an exact date. It was only a verbal conversation originally.
PN275
Can you place the time somewhere? I mean, this year, last year, last month, six months ago?---It could be 12 months ago.
PN276
So as long ago as 12 months ago you can recall a verbal conversation with Mr Lynch and Mr Mowat?---Yes.
PN277
Where they suggested to you some additional maths study units would be of benefit?---Could help. This was just after the original letter to Alan Harvey about the re-grading. Yes.
PN278
When they suggested that, what was your reaction?---Well, I'd seek advice of the union.
PN279
And after you'd done that, what was your reaction?---What was my reaction? I maintain I've got no problems with doing - I'll do the study if someone would tell me what study units they want me to take. No-one came to me and said, "John, this" - sat me down and said, "Right. These are the - we've looked it. These are the maths study units we want you to do." Nothing. So I've never ever said to anybody that I won't - wouldn't do it. I maintain that.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN280
So a position was never put to you along the lines that Council will re-classify you to level 4, virtually straight away, and that you would then undergo some further study in mathematical units which the Council would nominate for you?---Yes. Yes. I can do that. I can do that. But they're still making it a condition - - -
PN281
Hasn't that been put to you previously?---Yes, but that's making it a condition to go to level 4.
PN282
Well, that's going to level 4 and then fulfilling some further requirements that the Council has. That's why we're here arguing?---I know.
PN283
The Council's view is that they're happy to develop the job into - - - ?---Yes.
PN284
- - - a level 4 job?---I've got no problem with that. I've got no problem with that. What I've got the problem is it's making that a condition of me going to level 4.
PN285
Okay. So if Council didn't make - - - ?---That's my yike. Okay?
PN286
If the Council didn't make it a condition, they said, "Hey, John, look, level 4 from next Monday and you're enrolled in these courses"?---Mm.
PN287
"Away you go." Do you have a problem with that?---I'll have to think about it.
PN288
Take all the time you need?---I don't know. I don't know any more, to be honest with you. All this - this whole thing is giving me a bad taste in my mouth and I don't know any more, to be honest with you. I can't answer that.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN289
MR BUCKLEY: Well, with respect, Commissioner, what Mr Beer is trying to elicit from this witness is, would he be a party to a proposition which sought to undermine provisions of the award and, quite clearly, in accepting that, he would because the award is quite specific in terms of what its requirements are, and we would be objecting, even if Mr Delarue didn't, in regards to additional aspects being attached to award definitions which do not currently exist within the award as its structured. It's a legal requirement. He's got no obligation to have to answer that, in the respect that he abides by the award and the lawful requirement of the award. It's a hypothetical question.
PN290
THE COMMISSIONER: The question as to the awards, if - you might reframe the question. I understand that you addressed me on that particular point in relation to what the particular obligations of the witness are - the witness is in relation to the award, but just so I understand the question. You're asking the witness whether he'd be agreeable to move to level 4 and then undertake some studies, but that study would not be a requirement of the re-classification. It's something that the Council would like Mr Delarue. Have I rephrased that correctly or - - -
PN291
MR BEER: Well, yes, Commissioner. In the preamble to this matter, my instructions are, and it will come out in the witness evidence, that that is exactly what the Council, on a number of occasions, had offered Mr Delarue, and the way it's been interpreted by the union and Mr Delarue is, well, this is a condition which is not in the award. And in the interests of attempting to conciliate a resolution so that both sides walk away with something in the issue, this was the proposal that was put. And Mr Delarue refused any suggestion that he would do any further maths units. Now, I'm intrigued today to hear his evidence that, "No, I'm happy to do some additional training study, just as long as you don't tie it to level 4."
PN292
THE COMMISSIONER: Well, at this point what I might do is I am accepting a lot of submissions. I understand that, Mr Buckley, you're objecting in relation to - - -
**** JOHN MICHAEL DELARUE XXN MR BEER
PN293
MR BUCKLEY: I am, but, Commissioner, could I ask your indulgence that it may give both parties an opportunity, in the absence of any witnesses or any other people in the court room, if they withdraw for two minutes and I will allow Mr Beer to continue in this vein if I may respond to him, but outside the knowledge of the witness.
PN294
THE COMMISSIONER: Well, is it appropriate to do that at this stage?
PN295
MR BUCKLEY: Well, I think that - you see, Mr - - -
PN296
THE COMMISSIONER: I mean, the alternative is we continue with witness evidence and I ask for submissions to be kept until the appropriate time, and we simply put the questions to the witness at this particular time, because I understand that every time Mr Beer does make some reference to what's previously transpired in the conciliation of this matter, understandably you're going to want to address me on that as well. So it might be, at this stage, Mr Beer, that we address the witness with some questions. Mr Buckley, you're happy to proceed on that basis?
PN297
MR BUCKLEY: I am, along cross-examination lines, yes, Commissioner.
PN298
THE COMMISSIONER: And that might assist Mr Delarue with his time in the - reducing his time in the witness box, too.
PN299
MR BEER: I've lost my train of questioning, Commissioner.
PN300
THE COMMISSIONER: Well, at this stage, what we might do is just have a five minute break then to allow you to regather that, give the witness a short break. You're still under oath, Mr Delarue, but we'll adjourn for five minutes at this time.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN301
MR BEER: I appreciate that.
SHORT ADJOURNMENT [10.42am]
RESUMED [10.59am]
PN302
THE COMMISSIONER: Mr Beer?
PN303
MR BEER: Thank you, Commissioner. I have a few more questions for the witness before I close.
PN304
Mr Delarue, I take you to page 5 of your statement, on paragraph 25, and you refer there to a letter from the Council informing you that their offer of 19 March was withdrawn, and just to recap on that, that was an offer to undergo some further training or courses?---Yes, I believe so. Yes.
PN305
And - I'm trying to be clear about this. You actually had refused to entertain that idea on the advice of the union?---For me to move on for a re-classification to level 4, being the study to be a condition, yes.
PN306
What happened after that - - -
PN307
THE COMMISSIONER: Sorry, what was your answer to that? Yes?---Yes.
PN308
MR BEER: Can you explain to me why withdrawing that offer, given that you weren't going to pick it up, created, in your words, anxiety and stress?---I'm sorry. I'm not really getting on what you mean there.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN309
Well, I mean, they'd made an offer?---Yes.
PN310
And you'd said no, well, you definitely hadn't picked it up, and so the Council said, "Okay. Well, we won't offer him any more"?---Mm.
PN311
So I'm having trouble with understanding how that creates - why was that stressful and anxious?---It wasn't just that. It was the - there was - it was the way I was treated by certain people in the Council that put me under stress.
PN312
Who were those people?---Meetings. Todd Stubbings was the main offender. He no longer works with the Council.
PN313
And how did he treat you?---Well, first of all he lied to me. He - it's just - I don't know, he just treated - he treated me badly. He just, you know.
PN314
What lie did he tell you?---Something about being in contact with the union. I was asking him, quizzing him about contacts with the union, and he said he hadn't been in contact with the union, but he had. And it all just went sour from then. It was - there was animosity towards myself and other people in the Council. It just became very hard for me to go to work.
PN315
Who were those other people beyond Mr Stubbings?---Well, Peter Mowat, of course. I have to work with Peter. He's my supervisor, and it just became a very stressful environment for me to continue at work at that stage. I was under instruction from my doctor. He said, "You're not a well man." He said, "Take some time off."
PN316
And you did - how much time did you take off?---Almost three months.
PN317
And was that as stress leave or as long service leave?---Well, I took it as sick leave, but I ended up using just about all my sick leave up, and I took the rest of it as - off my own bat as long service leave.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN318
When did you last undergo a performance appraisal process?---Just the end of last year.
PN319
When was that, the exact date?---Gees, I don't know if it's in here, the appraisal sheet signed off. It would give an exact date, if I can find it. Attachment 18. August last year.
PN320
Can you explain in your own words what the outcome of that appraisal was?---Well, I seemed to meet all the outcomes and all the - I don't seem to be doing anything wrong in my job, and my job - I seem to be - everything seems to be at a good standard.
PN321
Okay. Now, at the end of that document there's a statement to the effect that:
PN322
A meeting between Peter Mowat and John Delarue to discuss position description agreement, staff development, appraisal worksheet and maths study units.
PN323
?---Yes.
PN324
So what was discussed between you and Peter Mowat about those maths study units?---Nothing. I broached the subject to Peter but yet he said to me, "We don't want to talk about that at this stage." This was - I drafted this letter up here when I was under obligation to the Commissioner to finalise and try and sort out my position description. Those three points were the three points that I had to deal with and sort out, but when it came to the maths study units, "We don't want to talk about that now" I was told.
PN325
So after this performance appraisal on 23 August, you went off on leave?---This was during sick leave.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN326
Sick leave, was it?---During sick leave. I came in on sick leave and actually done this during my sick leave, yes.
PN327
And since that time, Mr Mowat or Mr Lynch haven't been anywhere near you in relation to maths study units?---That's correct.
PN328
I've just got one more question, Mr Delarue. You're aware of the award provision in relation to technical services stream, level 4? Have you read the award?---I've read through the award, yes.
PN329
And have you done a comparison between your position description and level 4 in the award?---Yes, several times. Myself and my wife sat at home and went through it once. Another time we went through it with Mr Stubbings, Mr Harvey, Mr Comino and also Mr Lynch.
PN330
So you've had quite a few discussions with - - - ?---And another time - and just recently with Mr Buckley.
PN331
Can you tell me why, in that case, what are the grounds, what are the reasons for believing that your position description aligns with level 4 in the award?---Yes, well, I believe it does. I believe that my position description and the work that I perform for HSC falls in level 4 more so than level 3. Initially when I started the position, it was a level 3, but now, as my experience has progressed, I now feel as though I fit into level 4.
PN332
So in level 4 of the award there should be some suggestion that experience factors into progressing up the classification structure. Is that - - - ?---Well, yes.
PN333
Would you be able to point that out to me, if you hand me a copy of the - - -
**** JOHN MICHAEL DELARUE XXN MR BEER
PN334
Commissioner, I've handed up a copy of the award, Technical Services Stream, Levels 1 to 8. I have a copy here for yourself and one for - I think Mr Buckley should have a copy of the award.
PN335
MR BUCKLEY: I do.
PN336
THE COMMISSIONER: I'm assuming we're dealing with the same version of Mr Buckley's - - -
PN337
MR BUCKLEY: Yes, Commissioner, the definitions have not changed, which Mr - - -
PN338
THE COMMISSIONER: Yes, just for ease of reference, the same pagination. So, Mr Beer, you're asking the witness to - - -
PN339
MR BEER: I'm just asking the witness - Mr Delarue, you can take me to the various relevant sections of level 4 in the award to point out where you say your position corresponds to level 4 and not some other level?---
PN340
Skills, knowledge, experience and qualifications.
PN341
Is that where you mean - characteristics of a level? Which sections pertain to me?
PN342
Knowledge of statutory requirements at a level relevant to work areas -
PN343
well, yes.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN344
Knowledge of section programs policies and activities -
PN345
yes.
PN346
Sound discipline and knowledge gained through experience, training or education -
PN347
yes.
PN348
Knowledge of role or departmental structure in the service functions -
PN349
yes.
PN350
Specialists require an understanding underlying principles in the relevant disciplines -
PN351
yes.
PN352
Relevant four-year degree with relevant two years' experience -
PN353
no.
PN354
Or three-year degree and three years' relevant experience -
PN355
no.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN356
Associate diploma with relevant experience -
PN357
no.
PN358
Lesser formal qualifications and substantial years of relevant experience -
PN359
yes.
PN360
Obtained through previous appointments and service a study or equivalent level of expertise and experience to undertake a range of activities required -
PN361
yes.
PN362
Can I take you to level 3 in the award, some three pages back?---Mm.
PN363
Can you have a look through those and see which ones you don't qualify under?---Which ones I don't qualify under.
PN364
Entry level of four-year degree in relevant discipline -
PN365
is one but it's got -
PN366
or appropriate certificate and relevant experience -
PN367
yes.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN368
THE COMMISSIONER: So for entry level four-year degree is no. Is that your evidence, yes?---Yes.
PN369
It's all right, I'm just trying to confirm?---Yes, okay.
PN370
I want to clarify which part you're at. I'm just trying to follow?---Yes. Do you want me to go through all the steps of the award?
PN371
MR BEER: Well, what I was leading up to, I want to draw your attention to the dot point where it commences:
PN372
Where the prime responsibility lies in the technical field, officers at this level perform moderately - - -
PN373
?---..... perform under direct supervision, level 3.
PN374
No, no:
PN375
..... complex functions in various fields including construction, engineering, surveying and horticulture.
PN376
Can you see that?---Yes.
PN377
I guess my question is directed to you more how to - to what extent your position, your job, your work is substantially engineering surveying work - mainstream engineering surveying work and can you put a finger on that. Is it 60 per cent of the job? Is it 90 per cent of the job? Is it 10 per cent of the job?---90, would be - - -
**** JOHN MICHAEL DELARUE XXN MR BEER
PN378
So engineering surveying is - - -?---Is 90 per cent of my work, yes, that's correct.
PN379
And the other 10 per cent would be other ancillary duties?---Well, all right, let's rephrase that. All right. I might say that actually doing engineering surveys is probably maybe 75 per cent. There's also an element of level data propagation through the shire. There's placing of registered survey marks being benchmarks. There's also - there's paperwork. There's always paperwork. There's updating and maintaining survey records. Those are the three main areas that bring it up to the hundred per cent.
PN380
They sound like ancillary to the core functions?---They're a flow-on from the engineering side of things.
PN381
Okay. So about 90 per cent of your job is really engineering surveying?---Engineering surveys, 75 per cent.
PN382
So 75?---75.
PN383
75 per cent. I heard you say 90 per cent before?---Yes, I know. I thought about it and I made a mistake. I take it back. I say 75 is engineering surveys which are mostly the main major project as well.
PN384
Okay. And that's covered - I mean, I'm reading the words directly, "engineering surveying" is covered in level 3 of the award?---Yes.
PN385
So is the award wrong or is engineering surveying really a level 4 position? The people who wrote the award got it wrong or - - -
PN386
MR BUCKLEY: Well, I've really got to object here because you see Mr Beer is well aware that this award is a competency based award which is generic in terms of it covers a number of officers. It states there that it includes:
**** JOHN MICHAEL DELARUE XXN MR BEER
PN387
Construction, engineering, surveying and horticulture.
PN388
Now, that isn't exhaustive in regards to the technical issues which are performed. There's technical officers performing engineering functions as well and for him to suggest that that limits the persons to level 3 who perform those duties forevermore is a nonsense because if that was the case we wouldn't have levels 4, 5, 6, 7 and 8. That is the starting point for entry for those particular positions and it's quite clear, if he takes you to the relevant sections of the award where it says that this is the entry point for people performing these - nobody is saying that people entering the profession or a discipline do so always at the top end. There's a learning curve and that's where Mr Beer is deliberately trying to misrepresent what the award says to this witness. If he's going to quote the award he should quote it correctly in its entirety, not being selective.
PN389
THE COMMISSIONER: No doubt you'll cover that in re-examination, Mr Buckley.
PN390
MR BEER: So the type of engineering surveying you do, Mr Delarue, is in your mind of a higher order than that described at level 3 in the award?---Yes.
PN391
And it's of a higher order because of the length of experience you've got?---Just the technical aspects of the projects that I perform, yes.
PN392
So in 1995 you got a certificate for being a surveying associate which recognised seven years' of experience and your ability to perform to a high level technical tasks associated with surveying?---Mm.
PN393
And since 1995, in 2001, you have even further enhanced that ability through experience?---Yes, through experience, yes.
**** JOHN MICHAEL DELARUE XXN MR BEER
PN394
The engineering surveys you were doing in 1995 and 1996, are they different to the ones that you're doing today? I mean, obviously they're different in terms of different projects but in terms of the level and the requirement of skill?---My responsibilities in the actual projects that I do now, I've got more responsibility because Peter Mowat has got less responsibility. He doesn't have to check my work any more, you understand. Like back in 1995 when I started doing these type of surveys, each time I performed a project - and mind you, these are major projects, not just little jobs, little projects. They are mostly major projects. In 1995, yes, he had to check them, which was fair enough, which was good. I was on the learning curve. But present day, today - - -
PN395
That is, learning how to do engineering surveying to a particular standard?---Well, exactly, to a particular standard and to maintain a high standard. I haven't had anybody come back to me in the whole 12 years that I've worked at the council and no-one has ever come to me and said, "John, you've made a mistake." I have an impeccable record.
PN396
I have no more questions, Commissioner.
PN397
PN398
MR BUCKLEY: Now, Mr Delarue, I want you to be quite clear about the questions which have been put to you and the answers which you've given to Mr Beer in his cross-examination. He asked you in regard to your rejection of courses which have been offered to you in consideration of you going to level 4. Do you recall that?---Yes.
PN399
Now, Mr Delarue, was it ever a case that the level was offered to you on the basis that you would undertake a range of mathematical units and that the council would pay for your to do those particular units and meet the costs of you doing those particular units?---No.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN400
It's never been put to you along those lines?---No.
PN401
Has any council officer - Mr Stubbings, Mr Mowat, Mr Leach, indicated to you how you would go about accessing these particular units at any time?---No.
PN402
Have you made inquiries yourself?---Yes, I have.
PN403
And what have you discovered in regards to making those inquiries?---That I would have to go to USQ for a start.
PN404
When you say go to USQ, could you do that by external study?---Yes, I believe so.
PN405
And what would you have to be able to do to access the units in that degree course?---I would have to probably do some sort of a bridging course.
PN406
To enable you to do what?---Well, the GIS.
PN407
THE COMMISSIONER: What does that mean, GIS?---It's graphical information system, more or less what it is, yes.
PN408
MR BUCKLEY: Would you be able to gain access to a university course on the strength of your current educational qualifications?---I can't be sure.
PN409
What costs are associated with the course, are you aware?---Well, there'd be the HECS fee.
PN410
Has there been any suggestion that you would have to complete the whole of the course?---No.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN411
So what would you be enrolling in then, Mr Delarue?---To be honest I'm not completely sure which units they'd want me to enrol in.
PN412
Are you aware if the university would accept you on the basis of only undertaking one semester unit of an eight-year part-time university course?---I don't think they would.
PN413
Has the council ever explained it to you?---No.
PN414
Are you aware if the council have made inquiries of the university themselves?---I'm unaware.
PN415
Now, Mr Beer asked you some questions in regards to folio 17, if I could take you to folio 17. Now, that's a letter from the council to you dated 19 March. Have you got that Mr Delarue?---Yes, I have.
PN416
And, Mr Delarue, do you note at 1 it says:
PN417
An outcome has been determined and handed down by the chief executive officer based on the review panel's recommendations and supporting documentation. The outcomes are as follows: (1) that minor amendments be made to the engineering surveyor's position description as appropriate to reflect the greater level of autonomy that is currently expected of the position.
PN418
Does that say anything about you being deficient in you being able to perform the duties?---Yes, it does.
PN419
Well, how does that, tell?---I don't understand why it makes me deficient. I don't know where I am deficient. This is the thing.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN420
I think you've gone to (2). I'm talking about (1), Mr Delarue:
PN421
That minor amendments be made to the engineering surveyor's position description as appropriate to reflect the greater level of autonomy that is currently expected of the position.
PN422
?---Yes, sorry, yes, I misunderstand.
PN423
Now, there's only minor amendments made to the position description. Was that the previous position description which Mr Beer took you to which you said you'd rather have anyway?---No.
PN424
Well, which one was it?---It's the current one.
PN425
No, no:
PN426
That minor amendments be made to the engineering surveyor's position description.
PN427
?---Okay, sorry.
PN428
Does it say anything about you being deficient? It just says "a greater level of autonomy" doesn't it?---Yes, that's correct.
PN429
And then in (2):
PN430
that salary level 4 be awarded, subject to the fulfilment of the following terms.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN431
You had to enrol in or give a commitment to undertake suitable external studies:
PN432
Such as subject units from an associate diploma to better reflect the qualifications and competence expected of a level 4 position employee.
PN433
Well, no units have been identified at that particular time, have they?---No.
PN434
Were you aware that they were mathematical units at that time?---Well, I wasn't aware of which mathematical units. I wouldn't have a clue which units they were sort of wanting me to do. I had no idea what units they wanted me to do.
PN435
Had anybody identified any deficiency in your performance by way of performance appraisal up until this time which suggested that you had failed in your duties by not being able to do the calculations?---No.
PN436
Mr Delarue, in terms of you wishing to progress on in a career of surveying, is it your desire to go beyond level 4?---No.
PN437
Why is that?--I'm 40 years old. My family has grown up, you know. My health is suffering. Maybe in a few years' time I'd like to maybe move away from this climate and move somewhere where it's a bit cooler. Surveying in the tropics here is very hard on the body and I don't know. I don't know what I want to do.
PN438
So from - and I don't wish to demean the way that you got there, Mr Delarue, but you've entered from the grassroots and worked your way up to a particular level?---That's correct.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN439
You've not been told that you're not performing at that level at any time?---That's right.
PN440
But you've got no desire to go where Mr Mowat has gone, to principal surveyor or something like that?---No, I have not.
PN441
Now, could I take you to in response to questions from Mr Beer about your registration being regarded as a certificate. Now, Mr Delarue, there is no question, is there, that the registration of surveyors performing as licensed surveyors, cadastral surveyors, engineering surveyors, mining surveyors, hydrographic surveyors, are all dictated by the provision of the Surveyors Act and the relevant regulations which accompany it?---That's correct.
PN442
And it be unlawful for you to put yourself as being able to practise as a surveyor in one of those disciplines unless you were registered, is that not the case?---That's true.
PN443
So - and is there a regulatory board in Queensland which regulates the profession under the terms of the Act?---The Surveyors Board of Queensland, yes.
PN444
The Surveyors Board of Queensland. And at folio 3 at the Surveyors Board of Queensland Policy on Registration of Surveyors and Associates?---Yes.
PN445
And it takes it to the relevant sections of the Act in regards to registration?---Yes.
PN446
And if I could take to folio 4, an extract of the Surveyors Act 1977, commencing at part 3:
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN447
Qualifications of Surveyors and registration.
PN448
And the second page is in regards to section 37, is the qualifications of surveyors, and by surveyors those are licensed surveyors who are unable to sign off on cadastral surveys, is that correct?---That's correct.
PN449
And then qualifications of surveying graduates, which is at section 38. And at section 38(a):
PN450
Qualifications of Surveying Associates.
PN451
And the qualifications under the Act says:
PN452
A person is qualified to be registered as a Surveying Associate if: (a) the person satisfies the Board that the person is of good firm and character and is a fit and proper person to be registered.
PN453
And (b):
PN454
Either of the following paragraphs apply to the person: (i) the person (a) has completed a course of study acceptable to the Board, and (b) is the holder of a diploma certificate or other qualification conferred by due examination by a prescribed educational institution; and (c) has attended over a period of four years practical experience in surveying sufficient to satisfy the Board of the person's capacity to maintain a high level of performance in all technical aspects of the practice of surveying. And (ii) the person is other qualified as prescribed.
PN455
And then in registers:
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN456
The Board shall cause to be kept a register of surveyors and a register of surveying graduates and a register of surveying associates, and the register shall be in the prescribed form .
PN457
And I understand, Mr Delarue, that the register is published in the Queensland Government Industrial Gazette on an annual basis, is that correct?---That's correct.
PN458
Now, if I could take you to section 42 of that same section, Licensed Surveyors. Now, there has been some talk about cadastral surveying, and Mr Beer took you to the leading requirements of being able to do it. And, Mr Delarue, as a surveyor, when you say the legal requirements, the cadastre if the document which is kept at law by lawful authorities which is under the auspices of the Titles Office which determine boundaries of freehold and Crown land in Queensland, is that correct?---That's correct.
PN459
And that the legalities go to the correct definition of those boundaries as it would affect commercial dealings with that land or some form of dealing with the land either by the Crown or by holders of that title at freehold, is that correct?---That's correct.
PN460
So when the Act calls for licensed surveyors it is persons who are able to determine the marks on a survey plan, examine field notes which come in and are able to verify if the information being received meets the requirements of the cadastre such that from a legal basis the local Authority or the persons who hold the title to that land are able to offer it with a description which adequately fits its area and its boundaries, etcetera. Is that correct?---That's correct.
PN461
So in the specific section for licensed surveyors where it says:
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN462
Wherein respect to the person registered as a surveyor or of an applicant for registration is a surveyor, the Board is satisfied that the person in question has gained such experience in cadastral surveying as is acceptable to the Board or is otherwise qualified as prescribed, then they get registered. And the Board may cause the registration of the person in the register of surveyors to be endorsed to the effect that the person may perform cadastral surveyors and such endorsement may be renewed by the Board from year to year when renewing such registration under section 41.
PN463
Now, my understanding is, Mr Delarue, that you as a practising engineering surveyor may go out and perform all of the necessary requirements of your discipline to determine a boundary and to verify where it is and to take marks of and to ..... permanent marks away from that particular boundary, that there is a requirement of driving a survey peg which is identified on the cadastre as having a particular identification and a particular identification point, is that correct?---That's correct, yes.
PN464
So other than driving that particular new peg, can you do that?---I can do all of that except place the peg. I can - well, there is another type of mark that I can place, and it is called a permanent survey mark. We use it in the Shire for level control. And in recent days the Titles Office and the Government have said, made it a regulation that when a new cadastral survey is performed they must tie into at least two of these permanent marks. So, in effect, they become actually, become a registered mark on a cadastral plan as well as a registered mark within the natural resources.
PN465
So you can drive in the thing, you can do all of those particular things?---Yes.
PN466
In terms of the cadastral survey?---Yes.
PN467
When you do that, you come back into the office, you work an auto CAD, do you plot the stuff out?---And civil CAD, yes.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN468
You make the plan and then you do all of the things which are necessary and then what do you do then?---For cadastral surveys?
PN469
Yes?---Well, I mainly just do the field work. The field work is probably 70 per cent, and the licensed surveyor will take my field notes and transcribe my field notes, turn them into the survey plan, do a couple of quick calcs, and submit the plan.
PN470
So you are out there with your theodolite or your ground station, of whatever it is that you are using?---Yes, I can place the marks in the ground under authority from a licensed surveyor, yes.
PN471
So, Mr Mowat?---He doesn't even have to go out there.
PN472
In total isolation of what you are doing?---Exactly, yes.
PN473
So you bring your field notes back providing when he looks at your field notes and he compares them with what was there on the cadastrals is currently recording?---Yes.
PN474
And then he merely transcribes what you have done onto that plan. And I understand that he, and he only, has the authority to sign it under the Act. Is that correct?---Yes. I can actually sign the plan but - and then he can endorse it, yes.
PN475
Mr Leach, as Manager, can't do it?---No.
PN476
And the Chief Executive Officer didn't?---No.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN477
Can anybody else in Council, other than Mr Mowat, do that?---No.
PN478
So all the work can be done for him, but he is the appropriate officer in terms of signing off?---On a registered plan, yes.
PN479
And so he is the accountable officer, isn't he?---Yes.
PN480
He is not supervising the survey, is he?---No.
PN481
But he is then accountable for it, under the Act?---Yes, that's right.
PN482
Commissioner, I have some examples, and unfortunately I only have the one copy, so I will give them to my colleague Mr Beer to have a quick look at before I hand them to the witness for verification. I do undertake to get copies of them during the luncheon adjournment.
PN483
THE COMMISSIONER: Yes.
PN484
MR BUCKLEY: And I will then re-submit them as tendered exhibits.
PN485
THE COMMISSIONER: Thank you.
PN486
MR BEER: Commissioner, I am not sure what I am looking at. It might be worthwhile to get to explain it, so I know what they are for.
PN487
MR BUCKLEY: Could I hand them to the witness for verification.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN488
THE COMMISSIONER: Whilst that is being done, I will indicate I didn't mark that copy of the technical person's experience, in the award. So I will mark that as HSC exhibit 2.
PN489
THE COMMISSIONER: And you have handed a bundle of documents to the witness, and you are going to take us to those, Mr Buckley?
PN490
MR BUCKLEY: Yes, very briefly, Commissioner.
PN491
THE WITNESS: These are what we call a form 6. It is a - it becomes a registered survey mark, it is a mark that is placed not necessarily in connection with a cadastral survey, but as a cadastral survey comes past they are, licensed surveyors are obligated to connect to these and they become a registered mark on the cadastre. Over the years I have done, placed numerous, I have lost count of how many I have placed, there are hundreds. Each time we do it we have to draw a sketch, it has to be forwarded to the Titles Office and the Natural Resources Office, and they rubber stamp it, pass it, yes, check everything, and send it back. The other document I have got here is a registered survey plan of a cadastral survey that I performed in the field. I have copies of field notes that I have given to Peter Mowat, and he has checked it and he drew up the plans. And that is about it.
PN492
MR BUCKLEY: And, Mr Delarue, when is that particular plan dated?---This one here?
PN493
Yes?---7 June 2001.
PN494
Now, you have to maintain your skills and your knowledge in terms of being able to do cadastral work?---Yes.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN495
So even if the one prior to that was sometime before?---Mm.
PN496
It makes no difference in terms of your maintaining your skills, knowledge and qualifications in terms of in terms of - - -?---No, you never forget. You never forget how to do it once you know how to do it.
PN497
Don't say it as easy as riding a bike, Mr Delarue?---Well, may be to me it is. I don't know.
PN498
Would you like to pass those over to the Commissioner.
PN499
THE COMMISSIONER: Well, I might actually, at this point, let Mr Beer look at them so that he can - - -
PN500
MR BUCKLEY: Right.
PN501
Now, in terms of the permanent survey marks, Mr Delarue, they form permanent marks on the national grid which has been developed across the whole of Australia?---Some are, yes. Yes.
PN502
And they require you to exercise diligence, perform calculations, do analysis of particular things?---Yes.
PN503
Yes. Does it involve the use of calculations?---Yes.
PN504
It has been suggested to you that you have failed in respect to the development of these marks?---Not that I am aware of.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN505
And in regards to section 46 of the Surveyors Act, Mr Delarue, which I referred to you before, the requirement of the Act is an annual publication of registered persons, and over the page finally at section 47, holding out as surveyor unlawful:
PN506
Subject to the section a person who assumes or uses ..... in combination with any other word or letter, the name or title of surveyor, or a name, initial, title or description having regard to the circumstances under which it is assumed or used, indicates or is calculated to indicate or is capable of indicating that the person is a surveyor, unless the person is duly registered under this Act, under surveyor, commits an offence against the Act.
PN507
That quite clearly indicates that we are not talking about a profession or a discipline which does not have significant import to the community and to the legislator generally, that they would need to legislate under these mechanisms to protect, does it not?---Yes, that's true.
PN508
Now, Mr Beer took you to elements of when the Department had been restructured. Now, just let me get it right, that you gained your registration in 1995, and at that particular point in time, you were under the title of Engineering Associate; is that correct?---I do believe it was - - -
PN509
Sorry, Surveying Associate?---Surveying Associate, yes.
PN510
Yes. And - can I take you to folio 10? Is that the position - job description which you had at the time?---Yes.
PN511
Now, Commissioner, that was previously entered as HSC1, so - - -
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN512
THE COMMISSIONER: Yes.
PN513
MR BUCKLEY: Okay. Now, under the position objectives, it says:
PN514
Liaise with the principal surveyor regarding work requirements, compilation of databases and discrimination of information.
PN515
In terms of liaison, do you receive detailed instructions from Mr Mowat?---Sometimes.
PN516
And other times?---There's no need for it.
PN517
Well, could you describe how you, in actual fact, perform your work, then, Mr Delarue?---I work - a project will - will come into the survey section, it always - all the projects go through Peter Mowat, and he'll - usually just verbally he'll come and see me, or sometimes I'll receive an e-mail - a copy of an e-mail that comes to him: Survey required, a certain area to a certain area. And then where it comes to details - any extra details, there might be a requirement for drainage to be looked at, or something like that, that I may not be aware of. And that's about it.
PN518
Now, Mr Delarue, if you go to C, it says:
PN519
Within the organisation - provide appropriate survey services with general direction.
PN520
Do you see that?---Yes.
PN521
Does Mr - Does Mr Mowat stand over you, or does he just say, "Go and do this"?---"Go and do this."
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN522
Go and do that?---Mm.
PN523
And are you aware if general direction is described under the terms of the Award?---No, I'm not aware.
PN524
Okay. And do you liaise with other Council officers to clarify scope and intent of service to provide?---Yes.
PN525
Does that mean getting detailed instructions from them, or are you liaising as part of doing your normal duties?---I would say I would be liaising as part of my normal duties.
PN526
Okay. The requirements of the job was that you were:
PN527
proficient in the technical skills associated with the usage, checking, calibration and adjustment of service equipment; proficient in survey data processing through Civilcan; developing analytical and computational skills; developing computer drafting skills; higher level of technical communication skills.
PN528
And (b) was knowledge:
PN529
Thorough knowledge of general survey weight practices, procedures, sound knowledge of Council survey systems, methodology; good working knowledge of survey data systems and records compilation and maintenance.
PN530
And the next one:
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN531
Sound working knowledge of survey computer and calculation applications.
PN532
Okay? Now, that was back in July of 1995, and you, presumably, have used calculation applications during that period of time; is that the case?---Yes.
PN533
Has it ever been brought to your attention that you lack the ability to be able to do the work associated with that surveying?---No.
PN534
And then the - then the key responsibilities over the page, at seven, general duties:
PN535
With general supervision, undertake a range of moderately complex technical activities requiring the application of established work practices and procedures with scope to exercise initiative.
PN536
And do you exercise initiative?---Yes, I do.
PN537
And the prime responsibility - and this was as a level 3, because this was your entry point:
PN538
The prime responsibility of the position lies in the technical field, and the officer must be capable of achieving outcomes which are well defined, and be prepared to assist the work review performed by other staff.
PN539
Now, in assisting in reviewing work performed by other staff, is that just your instrument hand?---No.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN540
Who else does it encompass?---Well, we have - we have - over the years, we've had several cadet draughtsman. Also I've had university students on holiday leave - - -
PN541
Vacational practice?---Vacation practice, yes, I've had quite a few of those over the years. I find it a little bit mundane, a bit of babysitting, but, oh well, someone has got to do it. But, yes.
PN542
And do you take them out in the field with you?---Yes.
PN543
Are you gone all day?---Yes.
PN544
Are they under your supervision while you're out there?---Well, yes.
PN545
When you're doing a survey and you have indicated to Mr Beer that you had other persons under your control and he was suggesting to you that these may have come from parks and gardens and therefore they weren't under your supervision - I understood you to have said that you're out on a survey and you wanted some area clear?---That's correct.
PN546
Now, is that for you to - is that so that you can get a line of sight, or what - - -?---Yes.
PN547
So that's - that's what it's about, then?---That's exactly right.
PN548
Okay. So it's to enable you to get a line of sight with your instruments between you and your instrument hand?---That's correct.
PN549
Or other persons you may be working with. Does the instrument hand automatically know what to do and where to go when you get to the job?---No. Although he is - he's pretty good. He's - - -
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN550
He's getting that way?---Oh, yes, he's pretty good. He's been in the job for over 20 years. He's pretty good.
PN551
Well, I would hope so, after 20 years, Mr Delarue?---Yes, he is good. He is good, that's why he's still there.
PN552
Do you give him direction?---Yes.
PN553
Do you tell him where to go and stand - do they still hold the staffs?---Yes, they do.
PN554
Does he perform other tasks associated with instrument hand work for you - - -?---Yes.
PN555
- - - by direction?---Yes.
PN556
In terms of - in terms of those other persons who accompany you on those field trips, do you - do you instruct them in terms of what you're doing, and do they participate to the extent that their performing some of the work?---Yes.
PN557
Do you consider that they're under your supervision?---Yes, I did.
PN558
Did Mr Mowat ring you and say, you know, "What are you doing now, Peter, right at this very minute?" Or do you go out on a morning and come back at night?---Go out in the morning and come back at night.
PN559
How much intervention does Mr Mowat or anybody else have in regards to how you perform your duties, Mr Delarue?---Generally, or in the field?
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN560
In the field?---In the field, well, very little. Very little.
PN561
And generally, what would it be?---Generally? Oh, I don't know. It's hard to say. A few times he - he comes and, you know, gives me - well, he gives me direction of which jobs to do, but that's about it. You know - - -
PN562
Do you produce - do you produce work reports?---Yes, I do.
PN563
How often do you produce work reports?---Monthly.
PN564
Monthly?---Yes.
PN565
So Mr - Mr Delarue gets a formal report every month about what you've been doing for that past month?---Yes, I put in my input of what I - what projects I've been working on and what I've completed for the month, and then - well, in the absence of Peter Martin, when he's away, I have to draft the - do the - do the reports for the engineering section. But when he's around, he drafts the reports, I get a copy and that's it.
PN566
In respect to - to you working and liaising with other people, do all work requests have to go through Mr Mowat?---No.
PN567
How does it work?---Well, it depends - depends. If it's a - if it's only a minor - if it's only a minor little project, well then there's no real need for anybody to go past Peter - Peter Mowat, no.
PN568
When you say, "a minor little project," what are you talking about?---Oh, just someone that comes in and wants a few levels taken at a certain area or something. That's a - to me that's a minor project.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN569
Can anybody do it? Can you send your chainman out to do it, or is it something that you would have to do?---Well, I probably could send my chainman, but I think I'd rather do it myself, you know.
PN570
Do you have to record that work?---Yes.
PN571
Do you put it on your monthly report?---Yes, yes, some. Some of those, yes, yes.
PN572
Are you in a position when you are approached to do that work to comply with the request, or to defer it?---Yes, I can comply with the request, yes.
PN573
Without reference to Mr Mowat?---Well, reference to Mr Mowat just for courtesy's sake. Because we've got to understand, we've got one vehicle, we've got one instrument hand and there's two surveyors, so we've got to liaise with each other quite often to fit in - fit in together so we can work together.
PN574
When you're out in the field, how - what type of communication do you have with the office?---Two way.
PN575
Two way?---Yes.
PN576
And a two way will work in all areas of the Shire?---Yes, pretty well, yes.
PN577
Okay?---As far as I know, they're - yes.
PN578
And if there's a need for you to make contact with anybody to ask for guidance, that would be the appropriate mechanism to - to use?---Yes, for sure, yes.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN579
How often do you use that?---Maybe once every six months. That's a rough - rough guess. Not very often. Not very often at all.
PN580
When the work is proportioned between you and Mr Mowat in performing your work, what system applies to the - who gets what jobs?---Well, I don't set the system, who gets what jobs. Peter Mowat, he's in charge - in charge of the survey section, he deals out the work - the jobs which I'm - which I'm supposed to do. It just - it just seems to be lately that I seem to be doing the bulk of the major - major engineering survey projects for work reconstruction, the - and that's - well, to me, they're the big dollar jobs - they're the big money jobs.
PN581
Okay. Could I take you to folio 24? Could you identify that document for us, please, Mr Delarue?---Yes, that's the copy of the survey index.
PN582
And what does - what does the information on there signify?---Fuelable, livable, date, remarks, meaning types of survey and where the survey was conducted.
PN583
Okay. Now, in the earlier pages, I note that there's not any initials on them, but in the - commencing from the fourth page in, there's - there's some initials, "PNM" and "JD". Is "JD" John Delarue?---Yes, it is.
PN584
And is "PNM" Peter Mowat?---That's correct.
PN585
Okay. And is it the case that when the jobs are listed or when they're put in here, it just shows the approximate proportion of who does what?---This is correct, yes.
PN586
Is there any distinction between PNM and JD in regards to the work which is recorded there?---Well, no, I wouldn't say so, no.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN587
Well, on page 4, for instance, if we just take one at random, it says, "Exelsby's Road and DTM Stone River Road intersection," and it's got "PNM" as the person. And then the one immediately under, "Industrial estate, DTM Drainmarket Street, Bruce Highway, Drain ....., JD". Is there any difference in the survey being performed there, or the type of work being performed?---No, none whatsoever.
PN588
Now, you're not suggesting, are you, Mr Delarue, that you in any way qualify to any greater extent or you - you say that you're capable of performing, you know, all of the work which Mr Mowat performs as a licensed surveyor. That isn't your gripe, is it?---No.
PN589
And it's not a case that you want to go through to level - you know, have automatic succession through to level 5 or anything else like that?---No.
PN590
No, okay. If I could take you back to folio 10, and your position - your previous position description. Under seven - sorry, under five at the top of page 3:
PN591
Analyse results: application of analytical skills in assessing survey data accuracy and acceptability.
PN592
Does that involve the use of mathematics?---Yes.
PN593
At seven:
PN594
Other technical staff: assist and review the work of other technical staff performing minor surveys or parts of larger survey projects delegated to them from this position.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN595
So if you do delegate - and it says that you can do it, according to that - you supervise them in regards to the performance of that work?---That's correct.
PN596
And then - and it says:
PN597
Ensure work is carried out to a satisfactory standard and safe work practices are observed.
PN598
Well, that's two elements, isn't it? It's the actual performance of the task at hand and the fact that there is an occupational health and safety aspect to - - -?---That's correct, yes.
PN599
- - - associated with it. So it's two elements?---Yes.
PN600
And then it goes on and you've got:
PN601
Plan drafting and maintain survey records - reports: provide monthly work reports.
PN602
You've indicated that you do that?---Yes.
PN603
Survey liaison: survey liaison with the principal surveyor and officers of Council's departments.
PN604
?---Yes.
PN605
So what other departments would come to you and ask you for your advice?---Water and Sewerage, Works Department - now, where are we - Health Department.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN606
And what ..... - - -?---They're the main three.
PN607
Are you advising from your - the aspect of you having the technical knowledge or are you just dragging things out of a record?---No, they're coming to me for technical information, or asking me to perform minor surveys for them, they're - or they're just doing general inquiries, chasing information.
PN608
Okay. And under Public Inquiries:
PN609
Public inquiries seeking information such as permanent mark levels location.
PN610
Those are the permanent marks - - - ?---That's correct, yes.
PN611
- - - we've referred to in these documents which have yet to be tendered?---Yes.
PN612
Flood Levels?---Yes.
PN613
Real Property Plans And Other Information. Do real property plans involve looking at the cadastre?---Yes, they are.
PN614
And 8;
PN615
Organisational Relationships etcetera. Report to the principal surveyor.
PN616
Now, you do do that. You've said that you report to him?---Yes.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN617
But you assist and review the work of other officers?---Yes.
PN618
That involves a supervisory aspect of what they're doing as it implies above?---I believe so.
PN619
And:
PN620
Liaise internally with council officers from all sections requiring survey services and/or making survey data base inquiries.
PN621
And that in (b) the extent of the authority which is given to you by council:
PN622
Supply information to public, private practising surveyors, other professionals, consultants and statutory authorities within council's policies and other statutory and/or regulatory requirements.
PN623
You do that?---Yes.
PN624
What type of interface do you have with those types of people then? How do you do that?---Well, we have a good working relationship with the local private surveyors. It's an ongoing thing and it has been for years. Statutory requirements with other authorities such as - in Townsville - the Titles Office, the Natural Resources Department, other surveyors with the Forestry Department here in town.
PN625
And in giving that information, presumably the extent of the authority is that you are speaking on behalf of council in order to divulge that information?---Yes.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN626
And give that information?---Yes.
PN627
That it be true and correct and accurate?---That's right.
PN628
Anybody ever suggested at any time that you've not done that in a manner or capacity which fulfilled your obligations to be due - under due diligence as performing as a surveyor?---No.
PN629
And then it says, "Set tasks and monitor work of instrument hand." Do you do that?---Yes, I do.
PN630
So from when he gets there on the morning, does he report to Mr Mowat, or does he report to you if he's working in the field with you?---Depends on which - who is working on which project, which project is in the field stage at the time.
PN631
So - - -?---The instrument hand only comes into play when there's actually field work happening. Like if I'm in the office and I'm doing paperwork, well, then he's not - he doesn't need to come and see me. If Peter is doing a field project, well, then he'll go and see Peter.
PN632
Now, I think in response to a question from Mr Beer, you indicated some percentage of time which you were out in the field, and that was greater than when you were in the office?---That's correct.
PN633
Okay?---Yes.
PN634
And would the instrument hand be accompanying you in the majority of that percentage which you were in the field?---99 per cent of the time.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN635
Okay. So you have control of him. You set his tasks from when he arrives in the morning to when he goes home at night?---Yes.
PN636
And direct him to do particular tasks?---Yes. Sometimes I send him out on his own. It depends what we're doing.
PN637
Okay. And finally it says, "Work with general direction". Okay?---Yes.
PN638
It's not Mr Mowat giving you detailed instructions as he would have to do a new entry graduate, something like that, or - - -?---Well, this is right, yes.
PN639
Okay. And then Accountability:
PN640
Is accountable to the principal surveyor for the efficient and effective provision of a range of survey services for the council.
PN641
So you're accountable to him?---Yes.
PN642
And you're accountable for:
PN643
The acquisition and processing of survey data of sufficient quality, extent, accuracy and precision to satisfy the demands of the investigation and design projects.
PN644
So the value of the information and the data you're given is reliant upon others' support to enable them to do a design or to implement a design and take it to fruition; is that correct?---That's correct.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN645
If the survey is wrong as a starting point, presumably you've got a problem some way down the track?---This is right.
PN646
Okay. And:
PN647
Accountable for the location, marking and placement of cadastral survey marks under the supervision of the principal surveyor (licensed surveyor).
PN648
Now, it says that you're accountable for going out and placing those marks under the supervision. And the supervision extends to the legislative requirement of the licensed surveyor signing the plan; is that correct?---That's correct.
PN649
Okay?---Not the performance of the work.
PN650
And:
PN651
Accountable for the setting out of works projects for construction by council.
PN652
?---Yes, I do all that.
PN653
And:
PN654
Accountable for the acquisition, processing, storage and survey data records including flood levels.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN655
?---Yes.
PN656
Okay. Now, and then 10 is Performance Skill Standards. And Mr Beer took you to a Staff Development and Appraisal worksheet, asked you when you had had performance appraisal. Do you recall that?---Yes, I do recall.
PN657
Now, you indicated in your response to Mr Beer that it was in August of last year and the officer conducting the review was Mr Peter Mowat, the principal surveyor, and then it goes through the employee's self-evaluation and then there's on section 2:
PN658
Position objectives and performance, planning engineering surveyor.
PN659
And it gives key responsibilities, objectives and standards and action plans and a statement of the outcome. Now, whose writing is it in statement of outcome?---Peter Mowat's.
PN660
So the responses there are Mr Mowat's?---That's correct.
PN661
And at the end of that performance and comment section 3, review of outcome, the supervisor records - and I presume it's his writing, Mr Delarue - "As per statement of outcomes" - and there's an initial there -
PN662
"I agree with the contents of sections 2 and 3". And are those Mr Mowat's initials?---Yes, they are.
PN663
And it's your initials with regard to the employee?---That's right.
PN664
And the supervisor's progress comments on the following page, third quarter, it says:
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN665
Work standards and work habits are of a very good standard.
PN666
And is that Mr Mowat's signature?---Yes, it is.
PN667
And then section 4, General Performance Assessment Factors. It goes through assessment of factors and then there's a number of tick a boxes?---Yes.
PN668
And the top four points have been - four sections have been ticked and it looks like you've scored an average there if the middle box represents an average?---We both agreed that you either achieve it or you don't so we just achieve - achieved; that was it.
PN669
..... achieved?---Exactly.
PN670
Okay?---That's what we agreed upon.
PN671
And then over at section 5, Training and Development Plan, and it says:
PN672
Development required.
PN673
Nothing filled in it, but it says:
PN674
Recommendations. Training to be reviewed later in the year.
PN675
Well, what does that mean? Was that referring to mathematical units or what?---I can't tell you. I don't know about that one.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN676
And the appraisee has signed and the appraiser has signed: that's you and Mr Mowat; is that correct?---That's right, yes.
PN677
Okay. Are there any adverse comments from Mr Mowat at that time in regards to the performance of your work?---No.
PN678
Did he raise the issues about the mathematical units?---I did.
PN679
You did?---I raised the question with him when we did this review and he said, "We don't want to talk about this now".
PN680
Presumably that's why he's written, "Training to be reviewed at a later time"?---Mm.
PN681
Right. Now, in respect to two questions from Mr Beer about the PD changing, so from 1995 up until August 2001, there was no - you were operating under the previous PD which we've just gone through?---That's correct.
PN682
Doing the things which were associated with that?---That's correct.
PN683
And then there's a restructuring in the council?---Yes.
PN684
And you're told that the PD has got - or the work that you're performing has got to reflect the new duties which the council is requiring you to perform. Is that correct?---That's correct.
PN685
Okay. Now, you said that there was a difference about getting the PD finalised. Okay? And in response to Mr Beer's question about how that - how you came to sign this, I understood you to have responded to him that it was a result of a recommendation from this Commission that for a proper review to be done of the position, there obviously had to an agreed position description?---That's correct.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN686
And is that the result of you - when you say you were complying with the Commission's recommendation that you settled on this?---Yes.
PN687
Now, I think Mr Beer suggested that there may have been - that you were reacting to some duress. And I understood you to have said that there was no duress on the part of the Commission, but there was some suggestion from officers in council that you should sign something which you weren't happy with?---I wasn't very happy with it but - - -
PN688
Were they prepared to go ahead with the review of your position description unless you did sign this?---No, they weren't.
PN689
So when there are elements added to the position description, it was by agreement that the amendments were contingent upon you signing it to enable your position description to be reviewed - sorry - to enable your level within the council to be reviewed?---Yes.
PN690
So this then was to form the basis of being looked at in accordance with the award definitions and some correlation reached between level 3 or level 4 on the strength of the position description. Was that your understanding?---Yes, it was.
PN691
Now, it's already been indicated in the letter to you where it was in folio 17:
PN692
That minor amendments be made to the engineering surveyor's position description as appropriate to reflect the greater level of autonomy that is currently expected of the position.
PN693
Now, does autonomy have anything to do with mathematical units?---I wouldn't think so.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN694
So we now end up at folio 16 with the position description which is now entitled Engineering Surveyor rather than Surveying Associate?---Yes.
PN695
And that reflects the trend within the industry to identify people with that designation rather than surveying associate?---That's right.
PN696
Performing that work?---Yes.
PN697
And the salary range is level 3 and 4?---Yes.
PN698
Yes. Agreed?---Yes, agreed.
PN699
And then the Objective of the Position. Now, we've gone from a fairly extensive four page document to two pages compressed?---That's right. I was not happy with that initially. Yes, it was the current trend in the council at the moment.
PN700
So you've got more autonomy. Are you still performing the same range of duties what you were performing in your previous position description?---Yes.
PN701
And it's been condensed into this digest version?---That's right.
PN702
So the pre-requisite qualifications are:
PN703
Associate Diploma in Surveying with experience or equivalent considerable relevant experience to undertake the range of activities or registration as a Surveying Associate with the Queensland Surveyors Board.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN704
Well, you've already demonstrated that for the last six years by working within the position as the Surveying Association; is that correct?---That's right.
PN705
Skills and Abilities:
PN706
Provision in the technical skills associated with the usage, checking calibration and adjustment of survey equipment.
PN707
That was contained within the other but in different words in paraphrase?---Yes.
PN708
Proficient in survey data processing; analytical computation and computer drafting skills includes maths.
PN709
?---Yes.
PN710
Same as the ..... :
PN711
High level of technical communication skills.
PN712
And it says:
PN713
A moderate level of ability to utilise GIS applications.
PN714
So the moderate level would be commensurate with a level 3 or 4. It's not the same as if Mr Peter Mowat - is Mr Peter Mowat a level 6?---Level 7.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN715
A level 7. Mr Peter Mowat is a level 7. You'd expect him to be able to exhibit as a level 7, a greater degree of skill?---Of course.
PN716
So you're expecting his position description to say a high degree?---Yes.
PN717
So you at half his level, you would be moderate?---Yes.
PN718
There's nothing to be taken from that that you can't perform the work. It's just that at that level, you're only expected to go to a certain level?---That is correct.
PN719
Knowledge and Experience. Essentially the same as what you required before; is that correct?---Yes.
PN720
And then Additional Position Requirements. It says "Carry out engineering surveys with", and "general" has been crossed out, and "broad" has been put there. Now, was that to reflect the greater degree of autonomy?---Yes.
PN721
2:
PN722
Carry out cadastral surveys under the immediate supervision of the licensed surveyor.
PN723
Is it a requirement that you carry out cadastral surveys but under the terms of the legislation?---Under the terms - immediate comes under the terms of the - - -
PN724
But you still have to carry out cadastral surveys?---Yes.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN725
And under 3:
PN726
Carry out surveys for production of photogrammetric mapping and GIS developments.
PN727
?---Yes.
PN728
You do that?---Yes, I do.
PN729
You've been trained in that?---Yes.
PN730
4:
PN731
Application of analytical skills in assessing survey data accuracy and acceptability.
PN732
Did I reference the mathematical component again?---Yes, you did.
PN733
And then there's some calibration adjustment of equipment in good working order. Just by the by, Mr Delarue, the old theodolite and stuff and chain measures, do you still use those or is it all GIS stuff that you use?---We use what they call a total station now. It's got an inboard computer built in. We don't use the chain as much as we used to. We use the chain for measuring short distances. For long distances and mostly survey traversing and that it's got a built in measuring device. It's called an EDM. We constantly calibrate that every year. Level and staff we still use. GPS units we use from time to time. The Council doesn't actually have GPS units but we do apply GPS surveys, yes. For GIS mainly. For photo control surveys for GIS.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN734
Now, Mr Delarue, just one thing has come to me in terms of the cadastral surveying which I mentioned just previously. In the absence of Mr Mowat and Council were required to carry out a cadastral survey do you perform that cadastral survey and take it to a private practising surveyor and get him to do exactly what Mr Mowat does in terms of providing him with your notes. And providing he's a licensed and registered surveyor he can check it off, draft the plan and sign off on that?---I haven't to date but, yes, I could.
PN735
So Mr Mowat is in actual fact the accountable officer rather than the officer doing the work?---Yes.
PN736
And it's got nothing to do with, as Mr Beer tried to suggest, that really the Parks and Gardens Manager is in charge of the men who were doing the slashing if they are under your direct control. They were accountable to him but you're supervising them at the time. That would be the case?---Yes, it would.
PN737
Do they send out a foreman to do that job when they are working with you, or are you given the task of regulating?---No, the works department foreman, he will tell the men, "You have got to go out with John Delarue and the surveyors today. You have got to meet them at such and such a location, at such and such a time." And that is as far it goes.
PN738
Okay. Then, on page 2:
PN739
Assist to review the work of other technical staff.
PN740
That is essentially what was in the previous - condensed?---Yes.
PN741
Drafting of permanent map sketches, investigation and other survey plans.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN742
?---Yes.
PN743
Still there?---Yes.
PN744
Respond to inquiries seeking information.
PN745
So all of those other things about public - other professionals, consulting surveyors as being ..... - respond to inquiries?---Yes.
PN746
Okay. And then it just goes on to say what those other things are. And then finally:
PN747
This position provides relief in the absence of the principal surveyor to the extent of acting as supervising agent area surveyor.
PN748
Now, has anybody questioned your ability to perform those tasks in the absence of the principal surveyor?---No.
PN749
When he has gone on leave, have you been the person who has always done the work?---That is right, there has been question.
PN750
If he goes on professional development, he goes to a seminar or something else like that for two- or three days, do you act in that role?---Yes.
PN751
Okay. I haven't got too much longer, Commissioner.
PN752
THE COMMISSIONER: I am only looking at my watch because you are, Mr Buckley.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN753
MR BUCKLEY: Yes. I didn't want to be .....
PN754
And Mr Beer took you to a line of questioning in regards to you being absent from work and refusing to undertake study. Could I take you to folio 20? Now, that is a letter from the ASU to the Chief Executive Officer in regards to your absence from work, and it gives details of what you felt the circumstances were relating to your absence. And could I take you to folio 25? A letter from the ASU to the Chief Executive Officer, Hinchinbrook, dated 31 May, John Delarue classification, clearly spelling out that the contention of them offering of you a level 4 contingent upon you undertaking additional mathematical units was outside the scope of the award; is that correct?---That is what I believe to be correct, yes.
PN755
Does it state anywhere to your knowledge that you refuse to do those units, only that there is - that they cannot apply the heads of power to an award for which they have made no application for a variation to the award?---Yes, that is what I believe, yes.
PN756
And folio 26 dated 5 June where they say that there is no additional information that would support the changed outcome of the position review. Now, in terms of the position review, Mr Delarue, in terms of that letter from Hinchinbrook Shire Council to the Australian Services Union, were you aware that they ever did a matrix and compared the level 3 with the level 4 with the position description?---If they did, I was not aware of it.
PN757
Are you aware that that letter dated 5 June, with any review, was completed with a matrix comparing the positions with folio 16? The position description which you signed in August?---I am not aware of it.
PN758
Were you asked to participate?---No, I was not.
PN759
Mr Delarue, could I take you to folio 27? A letter from the ASU to the Chief Executive Officer requesting discovery in regards to this matter. And the request for information in regards to the evaluation?---Yes.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN760
And specifically to obtain copies of all of the ..... performance and formal warnings relating to Mr Delarue's incapacity as an engineering surveyor to fulfil the relevant responsibilities, specifically those relating to the mathematical incompetencies. And if I can take you then to folio 289, Shire of Hinchinbrook letter back to Australian Services Union, and obtain ..... so that there is nothing being identified in regards to those matters?---I can't help you there.
PN761
Okay. So the requirement for further study, which Mr Beer put to you was something which you should consider, was not something which was necessary to perform your duties?---Correct.
PN762
It was something which you could consider in terms of - as Mr Beer referred to it as further professional development, it was not contingent upon you performing your duties under your position description, was it?---True, yes.
PN763
Now, finally, Mr Beer took you to some references within the technical field stream of the Local Government Officers Award 1998, where there was a distinction which he drew in regards to levels 3 and 4, and he made a reference to - and it is within his submissions and contentions as well - that where the prime responsibility lies in the technical field, which yours does, that:
PN764
(1) apply established practices and procedures in the conduct of a range of technical activities including the fields of construction, engineering, survey, and horticulture.
PN765
Do you remember that?---Yes, I do.
PN766
Now, do you still have that folio there before you?---Sorry, which one was that?
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN767
THE COMMISSIONER: ..... HSC2. It was a separate document.
PN768
MR BUCKLEY: It was HSC2. It is not within the folio there, it is the loose-leaf section?---No, I haven't got it. I have only got two position descriptions, and the folio - sorry - I have got it, sorry.
PN769
Now, could I take you to the beginning of that section, not just where the dot point finishes, because Mr Beer quoted from level 2, not level 3. Have you got level 2 there? See the start of level 2?---Level 1, level 2, yes.
PN770
Does it say level 2?---Level 2.
PN771
Yes, okay. So if you level 2 characteristics of the level, Mr Delarue, and then you go down to the sixth paragraph, where it commences:
PN772
This level is the entry level for inexperienced officers who have completed an appropriate certificate and they require to undertake work related to that certificate.
PN773
Quite a distinction between them being experienced. It is a person who may have done at that time an associate diploma or a particular tertiary qualification and they have come in and do the work. Or it could be a horticultural certificate because it covers a number of aspects; is that correct?---Yes.
PN774
And the next paragraph says:
PN775
The fourth incremental step of this level -
PN776
so there is a distinction between a certificate and a higher tertiary degree is the appointment level from graduates with a relevant three-year degree to utilise that qualification to undertake professional work within this stream.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN777
Graduates will advance to the first step of level 3 after 12 months satisfactory service.
PN778
And then if you go over, ..... you will then come - still within level 2 - to Mr Beer's reference to apply established practices and procedures in the conduct of a range of technical activities, including the fields of construction, engineering, survey and horticulture. Now, my copy has fields of construction, engineering, survey and horticulture. There is no distinction between engineering and survey; it says engineering?---Right.
PN779
Quite distinct. Now, nobody suggests, Mr Delarue, one would imagine, that Mr ..... was prevented from going to level 7 because he was only performing surveys and it was considered to be moderately complex. Was that the case?---I don't know.
PN780
Well, he is a level 7?---He is a level 7, yes, but - - -
PN781
Level 3; could I take you to level 3? And here is the distinction. You go the bottom of the page - in my copy anyway - this is the appointment level for any graduate with a relevant four-year degree. There is a distinction between a person with a three-year degree and a four-year degree. A four-year degree in a batchelor of surveying would have meant the person did honours. He was required to undertake within the stream. And again, the demands fall and increase in the complexity. So it doesn't necessarily mean it is always moderately complex, there is an obvious conclusion to be drawn that you employee people with a higher level of qualification, knowledge and skills if you want a higher degree of work to be performed. So you would then go on. And then it goes on to where the prime responsibility lies in a technical field. Officers at this level perform moderately complex functions in various fields, including construction and there someone has then put engineering, surveying and horticulture. And I suggest that there is a typographical error, because it was in the previous one, engineering, surveying and horticulture. And again, there is provision for automatic progression through from level 3 to level 4 with:
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN782
Officers with certificate qualifications should be advanced to this level once they have obtained the appropriate qualification and have relevant satisfactory experience and undertake work related to the responsibilities under this level.
PN783
I mean level 4. If we go to level 4, under characteristics of the level, the final paragraph:
PN784
Graduates will progress to the first increment step of this level once two years service at level 3 is completed and will progress to the third increment step following an additional year of service.
PN785
So it is quite clearly indicated, Mr Delarue, that if one as a council has done - accepted your qualifications as a registered surveying associate, which fulfils the requirements of the Act. You have demonstrated a comparison with persons to perform the work under the terms of the award which calls for relevant experience and knowledge gained over a particular period of time. Would that be correct?---Yes, it would be.
PN786
And in terms of level 4, Mr Delarue, if I could take you to the characteristics of the level, which Mr Beer asked you to identify. Level 4, characteristics of the level, starting at the first paragraph:
PN787
At the fourth level of the technical stream officers at this level work under general direction.
PN788
Well, that is indicated in your position description; is it not?---Yes, it is.
PN789
All the functions that require the application of skills and knowledge appropriate to the work.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN790
Is that what you exercise?---Yes, it is.
PN791
Guidelines and work practices are generally established.
PN792
?---Yes, they are.
PN793
So you are working within those defined parameters, but it is at the level 4?---Yes.
PN794
You don't have to be making constant individual determinations in regards to what goes on at higher level in council for you to be able to exercise that, if you read that characteristic; is that correct?---That is correct.
PN795
..... at this level require the application of knowledge and skills which are gained through qualifications and/or previous experience in the discipline.
PN796
Then it goes:
PN797
Officers would be expected to contribute knowledge in establishing programs and/or projects in the appropriate work-related field. In addition, officers at this level may - may be required to supervise projects or part of the total works programs of a complex nature. The position may involve a range of work functions which could contain a substantial component of supervision or require officers to provide specialist expert advice in their relevant discipline.
PN798
You do that, do you not?---Yes, I do.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN799
Officers require skill in managing time, setting priorities, planning and organising own work, and that of subordinate staff where supervision is a component of the position to which the specific objectives.
PN800
In terms of you organising your field hand and the other people who are allocated to you, do you do that?---Yes, I do.
PN801
Do you decide when you are going to go out into the field, and manage your own time in regards to that?---Yes, I do.
PN802
Observing the courtesy of consulting with Mr ..... ?---Yes, I do.
PN803
Do you decide when you are going to come back?---Yes, I do.
PN804
Can you make determinations when you are out there, well, we won't do this job today, we will go on and do something else - - - ?---Yes.
PN805
- - - when you get out and you find something might be floating in a creek or something?---Yes, yes, I do.
PN806
And then you went through the requirements of the job and you indicated in all but those areas where there was a degree or an associate diploma that you had those attributes and the requirements to perform the work; was that correct?---Yes, it was.
PN807
And then the responsibilities says:
PN808
To contribute to the operational objectives of the work area. A position at this level may include some of the following imports of those of a similar value.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN809
So those written below I am not exhausting, and they can be supplemented with other things. Now, presumably, Mr Delarue, if we then go to your position description and compare them with what is required in these particular ones, there would be some correlation; would that be correct?---Yes, there would be.
PN810
So the first one is:
PN811
To undertake activities which may require the officer to exercise judgment and/or contribute critical knowledge and skills where procedures are not clearly defined.
PN812
Do you do that?---Yes.
PN813
Do you perform duties of a specialised nature requiring the development of expertise over time or previous knowledge?---Yes.
PN814
And presumably your cadastral surveying, and setting of your permanent marks, etcetera, would fall into similar categories?---Yes, it would.
PN815
Perform duties - sorry, identification of specific or desired performance outcomes; you do that?---Yes.
PN816
"Where prime responsibility lies in the professional field" - well, it doesn't, so we won't go there:
PN817
Where the prime responsibility is to supervise the work of outside employees, officers at this level.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN818
Now the prime responsibility, I would suggest to you, Mr Delarue, is not to supervise - it's not a foreman in charge of a gang; you've got somebody who works with you and you supervise and at various times, so it's not the prime responsibility. Would you agree with that?---Yes, it's not the prime responsibility.
PN819
Okay. So if we go on to the next one which is:
PN820
Where the prime responsibility lies in the technical field -
PN821
and would you agree with that?---Yes.
PN822
Yes:
PN823
Officers at this level 1 undertake projects which impact on the sections and the departments programs, carry out a variety of activities in the field of technical operations requiring initiative and judgment in the selection and application of established principles.
PN824
Nothing to say presumably by saying established principles that you've got to be exercising independent judgment and thought all the way through. You fall within an area whereby you're following within parameters and that's at a level 4?---Yes.
PN825
Okay. The organisational relationship:
PN826
Works under general supervision.
PN827
?---Yes.
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN828
Continuing:
PN829
Supervises employees, contractors, or other subordinate employees.
PN830
You do that?---Well, not so much contractors but employees and other subordinate employees, yes.
PN831
Right, fine, because it's "and/or"?---Mm.
PN832
Continuing:
PN833
And the extent of the authority, "require to set out" comes within defined constraints.
PN834
I assume you do that; you're told to go off and do a particular thing but you can't go off and lay on the beach?---That's it.
PN835
Okay:
PN836
Provide technical -
PN837
and you don't provide professional advice but you're required to provide technical advice; you do that?---Yes, I do.
PN838
And that's in your position description?---Yes, it is.
PN839
Okay:
**** JOHN MICHAEL DELARUE RXN MR BUCKLEY
PN840
Freedom to act governed by clear objectives.
PN841
?---Yes.
PN842
So presumably if you get out on the site, nobody tells you to go from - start at point A to point B to whatever. You just give your location and you're told to go out and you perform the work?---That's exactly right, yes.
PN843
Okay:
PN844
And the solution to problems generally found in precedents, guidelines or instructions.
PN845
So it doesn't say that you've got to be an Einstein; you can refer to various things, and you can seek assistance. Is that correct?---That's correct.
PN846
All within a level 4?---And I do seek assistance.
PN847
Okay?---When I need to.
PN848
Okay. No further questions.
PN849
PN850
MR BEER: Commissioner, I've only got two questions about this material here which I hadn't seen previously - - -
**** JOHN MICHAEL DELARUE FXXN MR BEER
PN851
THE COMMISSIONER: Yes.
PN852
MR BEER: - - - and I'd just like to direct one or two questions in relation to that.
PN853
The permanent sketch plan document, the form 6s?---Yes.
PN854
Are they done as part of a cadastral survey or are they - can they be done incidental to some other activity?---No, they're set up as a network in the shire. They're not necessarily placed as a cadastral survey. Some are. Those particular ones probably aren't.
PN855
So that comes out of a need to obviously have a permanent sketch plan but it may not have been as part of a much broader cadastral survey?---It's more of a major engineering project. They are placed on the major engineering projects.
PN856
For that, you'd used your engineering survey skills?---Yes, that's right. Well, you've still got to know where the boundaries on so you don't put it on private property. You've still got to have that cadastral aspect as well. You can't just put them willy-nilly anywhere.
PN857
And this one at the back here is a cadastral survey which you've been involved in?---Yes.
PN858
In when, 2001?---Yes.
PN859
How many of these would you have done?---Very few. Very few.
PN860
Two or three a year?---Yes, a couple.
**** JOHN MICHAEL DELARUE FXXN MR BEER
PN861
So they're by no means the major portion of your - - -?---No, it's not. It's not but, sort of, try and understand that, with engineering projects, there is still that aspect of cadastral surveys but not actually placing marks and changing dimensions of lots of - - -
PN862
Yes, so the skills are the same for an engineering survey as you would apply in - - -?---Cadastral.
PN863
- - - parts of this cadastral survey?---Yes, with cadastral, yes, very similar. You still were the same - apply the same sort of principles, yes.
PN864
No more questions.
PN865
THE COMMISSIONER: All right. I don't think we've marked those particular documents. They will be ASU exhibit 2.
PN866
MR BUCKLEY: Commissioner, can I submit them as a group and I'll photocopy them and give copies to my friend Mr Beer and to the Commission after lunch.
PN867
THE COMMISSIONER: Thank you. Yes.
PN868
MR BUCKLEY: Thank you.
PN869
THE COMMISSIONER: Well, at this point, it seems most convenient to adjourn for lunch.
**** JOHN MICHAEL DELARUE FXXN MR BEER
PN870
MR BUCKLEY: Commissioner, I may, for the sake of being able to talk to Mr Delarue, I have - obviously, I've got no further witnesses in regard to this, and I ask that Mr Delarue be discharged and allowed to sit with me at the Bar Table to give me instructions.
PN871
THE COMMISSIONER: Certainly. Mr Delarue, thank you for giving your evidence; you're free to move from the witness box?---Okay, thank you.
PN872
THE COMMISSIONER: It might be that I get - you've left those other documents there, haven't you? I think the - - -
PN873
MR BUCKLEY: Yes, he can leave them - - -
PN874
THE COMMISSIONER: You can take your folder; but the - yes, just in case we require reference with other witnesses, thank you.
PN875
MR BUCKLEY: The other folder is a witness folder which I made up for the convenience of the witnesses anyway so that can stay there as well.
PN876
THE COMMISSIONER: All right. Thank you very much. We might go off the record at this point.
LUNCHEON ADJOURNMENT [12.52pm]
RESUMED [1.45pm]
PN877
THE COMMISSIONER: Mr Beer.
PN878
MR BEER: Thank you, Commissioner. I'd like to call to the stand Mr Peter Mowat.
PN879
MR BEER: Now, Commissioner, if I can address some remarks to you first. There was some material put on which included a statement by Mr Peter Mowat and I believe your Bench file should contain a copy of that statement.
PN880
THE COMMISSIONER: Yes.
PN881
MR BEER: The same statement was delivered to Mr Buckley. I have the principal part of Mr Mowat's statement here. If I could hand that to the witness - - -
PN882
THE COMMISSIONER: Thank you.
PN883
MR BEER: - - - just to get him to confirm that that was in fact his statement?---Yes, that's my statement.
PN884
That's your statement. Thank you, Mr Mowat. Can you, for the Commission, just indicate your full name and position at the Hinchinbrook Shire Council?---My name is Peter Noel Mowat. The position at council is principal surveyor.
PN885
THE COMMISSIONER: Right. You're seeking to tender that, Mr Beer?
PN886
MR BEER: I am, Commissioner.
PN887
**** PETER NOEL MOWAT XN MR BEER
PN888
MR BEER: Now, before I pass you over to Mr Buckley, Mr Mowat, there are just two issues I want to deal with you quickly. The first issue is the offering of courses to Mr Delarue, and I notice in paragraph 17 of your statement, you'd made a statement there that you made information available to Mr Delarue about the offering of courses; can you just quickly recap for us what you know about the offering of any sort of courses for improvement of his skills as has happened over the past 12 months?---Yes. Shortly after the review panel decided to offer level 4 and asked that some study be done, I accessed the USQ, or University of Southern Queensland web-site and got information from there relating to their survey course. I also spoke to a lady, I don't recall her name. She was in charge of the distance education section there. At some stage shortly after I told Mr Delarue that the information was available and showed him where it was in my office so that if he wished to have a look at it and consider that information that it was there for him. When we spoke in August, we had a meeting there where we discussed this staff development and review, PDs and this mathematical component that was at issue and again, I advised him that I had the information there and if he wished to view it, he could. I also advised him that he didn't actually have to enrol in the full course to do any of these subjects, that he could actually take them one by one as stand-alone elements. That advice came from the person at USQ that I spoke with, the difference being that if you take the subjects just as a one-off, it becomes a full fee paying exercise and it's a little bit more expensive to do it that way rather than enrolling in the entire course and that's probably about it in relation to that.
PN889
Thanks, Mr Mowat. In his evidence this morning, Mr Delarue indicated quite clearly that he'd never refused an offer to do any further mathematical courses or any professional development type courses that had been offered to him; is that true?---To my knowledge, the only offer that has been made was in relation to the offer of re-grade which he rejected.
PN890
So an offer has been made to him and it has been rejected by Mr Delarue?---Yes, that's - as I'm aware, yes.
PN891
And he's done that to your face in meetings that you've sat with him?---I'd have to think about that. I don't actually recall him specifically mentioning the mathematical component but basically the rejection of the offer which was associated with that, yes.
**** PETER NOEL MOWAT XN MR BEER
PN892
Okay. The second question might be a bit longer one for you to answer and it goes to this issue which has been the subject of some discussion this morning about cadastral surveying, and you're a licensed surveyor, so you are equipped under the legislation to do cadastral surveying?---That's correct.
PN893
And I guess initially can you first of all, from your professional knowledge tell us what's involved in a cadastral survey?---Well, basically, it falls down to defining or redefining boundaries of land which could entail creating new parcels, creating leases, easements, and there's a whole host of other titles to land or varieties of titles to land, that the process can create. Components of actually completing a cadastral survey would include searching original documents to ascertain both dimensions, title, any encumbrances, etcetera, that might hinder or relate to the survey. You would then have field survey work to locate and measure between original marks, if any, or evidence of the boundary which might be occupation by buildings or fences. One of the key components is actually establishing the reinstatement which basically means getting back to the original intent that the survey or the original survey placed marks on the ground for. So you need to analyse the marks that you've found, relate those to the dimensions that originally existed and assess them in relation to the original intent plus make sure that any adjoining owners aren't adversely affected, etcetera, to come up with the position of a boundary as it should be. Then you would then place new marks or additional marks to suit the purpose for which you're doing the survey and then you need to create a plan and have that drafted and registered, etcetera, to complete the process.
PN894
In doing that, there are, I guess, a technical aspect to performing the survey, and also a legal aspect which is who is authorised under the various legislation to do the survey?---That's right.
PN895
Firstly, in relation to the legal aspect of who could perform survey, what can you tell us about that?---Legally, the licensed - well, a person who is registered as a surveyor with endorsement to perform cadastral surveys or land boundary surveys, is the person who is responsible for performing land boundary surveys under the Surveyors Act. He takes the ultimate responsibility for the completion and accuracy of the survey. However, that doesn't necessarily mean that he has to physically perform all the tasks associated with it but he has to - well, he's obliged to under the Act, to supervise any aspects that he doesn't perform personally and still take responsibility for those components.
**** PETER NOEL MOWAT XN MR BEER
PN896
So the legal responsibility issue is one that derives from legislation based on your ability to be licensed as a surveyor with an endorsement on your licence - - -?---That's correct.
PN897
- - - to perform cadastral surveying. And then the other part of the equation is the technical requirements, the skills, knowledge and ability to be able to perform the surveys?---Which - well, which in some part comes back to measurement skills, field-craft, and experience, I guess.
PN898
Okay. And in that regard, it's common practice, is it, in the surveying field for licensed surveyors to delegate some of those sorts of tasks to people who aren't licensed surveyors?---Absolutely, yes, it's very common.
PN899
And at Hinchinbrook Shire Council, how many cadastral surveys would you do in a year?---I've got it in my statement here, if I can look at that. I think, off the top of my head, it was a figure of five or six; something like that, on average, if I can find it. Yes, about five.
PN900
And as principal surveyor you'd be involved in all of those obviously?---Yes.
PN901
In relation to Mr Delarue, how many of those would he become involved in?---Very few.
PN902
And of those that he does become involved in, what would be his role?---At times I may require him to do part of the initial search for documents from our - within our office. At times the initial location of original marks could be involved and on one occasion I've had him place new marks as well.
PN903
And that's quite different from a sketch plan?---A sketch plan?
**** PETER NOEL MOWAT XN MR BEER
PN904
Commissioner, the document that was tabled this morning, if I could show the witness that document.
PN905
Mr Mowat, for your information this was handed up while Mr Delarue was in the stand and I think the point of handing it up was to demonstrate that Mr Delarue has some all-encompassing intimate knowledge of actual surveys and is involved with performing them and there are two parts to the document. There are a bundle of A4 size documents which are permanent mark sketch plans?---Form 6 sketch plans, yes.
PN906
And at the back there's a much larger document on A3 which appears to be a survey plan of what was a cadastral survey?---That's correct, yes, and field notes.
PN907
And field notes?---Yes, field notes attached.
PN908
With respect to the first bundle, the A4 size documents, what are called form 6s, are they done as a result of a cadastral survey or can they be done independently of a cadastral survey?---They can be done independently. They are quite - - -
PN909
For a different purpose other than a cadastral survey?---Yes. The form 6 is there to allow those permanent marks to be located. We have probably something like a thousand of those - probably no, sorry. If I take you to the ones in Ingham itself, there's probably about 1200 of those marks or that type of mark around the district. Many of those have little or nothing to do with boundaries. They may have connections to the boundary but not actually be associated with a cadastral survey.
PN910
So a form 6 could be done without needing to go into a full cadastral survey?---Yes.
**** PETER NOEL MOWAT XN MR BEER
PN911
Which is - - - ?---The form 6 actually comes in as part of the Survey Co-ordination Act, where if you place one of these marks you're required to submit a sketch of it.
PN912
Okay. So suffice it to say that because there's a permanent mark sketch plan produced doesn't mean there's been a cadastral survey done?---No.
PN913
Leading up to or as a consequence of it?---No, no. There is a requirement now under the survey regulations that all cadastral surveys must be connected to two permanent marks and in some cases where there are none a surveyor will place additional marks but they don't necessarily have to be there because of that.
PN914
I see. The document at the back, the A3 sized survey plan, what can you tell us about that? That was a survey done - I notice your signature is on it. However - - -?---That's correct.
PN915
- - - parts of this survey were performed by Mr Delarue?---That's correct, yes. John - sorry, Mr Delarue, did the field work associated with that survey in firstly locating original marks or additional original marks and subsequent to the reinstatement being calculated, which was done by myself, he placed the new marks on the ground as well.
PN916
Okay. Reinstatement calculation, is that something that Mr Delarue could have done?---Not normally, no.
PN917
Why is that?---As part of my responsibility under the Act, I would do that because it's up to me to assess the original marks versus the original intent versus the original dimensions etcetera, to make sure that the new marks we place are placed correctly.
**** PETER NOEL MOWAT XN MR BEER
PN918
I see. So without you doing that there is no cadastral survey in other words?---No, the reinstatement, it's a vital component.
PN919
Central?---Yes.
PN920
What sort of technical skills are involved in doing this reinstatement?---It's more - I don't know about the technical skills. It's more to do with realising what weight to give to particular evidence in relation to how the boundary can be re-established. In other words, you can have a range of evidence. It could be original pegs or other registered marks, which are primary evidence. It could be fence lines, it could be buildings. All sorts of things can come into it as evidence as to where the boundary was but you need to assess those and be aware of what weighting to put on it. You also need to be aware of what types of marks were placed and how they were placed at different stages through time and also aware of the potential errors that do occur at those different stages of survey history. In some cases it's a very simple matter. In others it gets quite complex.
PN921
Do you believe Mr Delarue would be capable of doing that sort of - - -?---Some of the very simple ones I'd be happy with him doing it, yes. Anything that was a little bit more complex, in any event, I would review it anyway. To date I haven't asked him to do it.
PN922
In any case, it's not part of his job to do that part of - - -?---No, I wouldn't consider it to be no, for a cadastral survey.
PN923
Just in relation to that, in terms of your knowledge of Mr Delarue's technical ability and capacity, do you have a view on that, in terms of his ability to complete a full cadastral survey? Is he capable? If not - - -?---I don't think he has the background knowledge to do that. As I said, there's quite a bit of formal study needed to get a background to particularly making sure that the reinstatement is correct and without having done that study and understanding that, I don't think so, no.
**** PETER NOEL MOWAT XN MR BEER
PN924
Is that a reference to the basic principles of - - -?---Sorry?
PN925
Is that a reference to the basic principles involved in surveying?---I'm not quite sure what you mean.
PN926
Fundamental basic skills in surveying. I guess what I'm leading to is asking about what sort of mathematical - - -?---Yes, it's not necessarily a mathematical thing in relation to cadastral surveys. It is a broader knowledge type of question.
PN927
Okay. All right, I might leave that one just for the moment. Those are the two issues I wanted to cover.
PN928
THE COMMISSIONER: All right.
PN929
Just while you're doing that, I just wanted to clarify, that A3 document is the cadastral plan. Is that correct?---That's correct, yes.
PN930
And that's what you refer to that there's on average about five of those done per year?---It may be five of those or it - yes, there may be other documents for leases, that type - easements. But most of them would be similar to that, yes.
PN931
Right. And in terms of the reinstatement skill that you referred to, these form 6s are components that lead into the establishment of this cadastral plan?---Not necessarily.
PN932
No?---No. Those types of survey marks, probably the majority of ones we have in the shire have actually been placed in relation to engineering work. Many of those have been subsequently connected by cadastral surveys done by myself or other local surveyors. Mostly now, because there is a requirement to connect the two, so if there were two existing, they will, you know, just use those, rather than place new ones.
**** PETER NOEL MOWAT XN MR BEER
PN933
Can I just ask you - and Mr Beer, you're free to re-examine on any of this but there is attached to Mr Delarue's statement, I think it's the work book, Coleman's work book. It's a series of - - -?---Yes.
PN934
Those jobs now - and they've got some initials assigned to them; some of them are for you and some of them are for Mr Delarue. For example, the first one is the DTM Forest Beach and I've just picked on that one because one of these form 6s refers to Ingham Forest Beach Road. Are they related to the cadastral plan? Are they components of it or are they a cadastral plan themselves?---No.
PN935
No?---They're probably an engineering survey which generally requires a level value and most of those permanent marks initially were put in to retain that level value, to give the people that come and construct the roads something as a starting point. We also give those marks, where possible, a co-ordinate value, which relates to mapping co-ordinates, but most of those surveys there - - -
PN936
Well, say, for example, this one was on 21 October '94, DTM Forest Beach Bikeways, and it's got a comp number and there are marks where, "clearing eastern boundary, palm scrub reserve, plot in miscellaneous job file"?---Can I have a look at that.
PN937
Are you going to take the witness to this, Mr Beer?
PN938
MR BEER: Well, I wasn't.
PN939
THE COMMISSIONER: I simply wanted to establish what the relationship was between the two?---It's just that you seem to be mentioning two different jobs there, that's all.
PN940
Am I? That's - - -
**** PETER NOEL MOWAT XN MR BEER
PN941
MR BEER: Commissioner, what page are you on?
PN942
THE COMMISSIONER: I'm on the first page in that - - -?---Sorry about that.
PN943
It's only fair that you can see it?---That's two different jobs.
PN944
All right. But just the first job in terms of the bikeways?---The first one, yes, DTM Forest Beach Bikeways, and it's got a computer reference number there.
PN945
As I understand it, these jobs are sort of - if you progress through are split more or less between you and Mr Delarue?---At this early stage where there are no initials beside them, that's just the way the format of how they were being recorded in this book. Subsequent to that we started also recording them on a computer and that's where the broader page comes in.
PN946
Right?---And that reflects what goes into our database basically. That was just simply a - - -
PN947
I just wanted - - -?--- - - - engineering survey of a bikeway.
PN948
Right. So how does that relate to the cadastral plan?---It doesn't.
PN949
It doesn't?---Necessarily.
PN950
Right?---There's no cadastral plan that's produced by that survey. What would be produced are design plans which show where and how the workforce would construct the bikeway. The survey would have made connections to the boundary so that the design could be positioned so that it doesn't encroach on other people's property etcetera but there's no actual cadastral survey produced.
**** PETER NOEL MOWAT XN MR BEER
PN951
All right. And do you have to be a level 7 or a principal engineer to undertake that sort of work?---A principal surveyor.
PN952
My apologies?---That's okay. No, no. There are a range of people working doing engineering surveys from level 2 to level 5 that I'm aware of. You don't need to be registered as a licensed surveyor to do engineering surveys.
PN953
I ask that at the outset so that both parties can - I just wanted to clarify some jobs that we were talking about.
PN954
MR BEER: Thanks for that.
PN955
Just in relation to that, to put in context this exhibit, these permanent mark sketch plans, many of them would have been done by Mr Delarue but not as a result of or connected with any cadastral survey but as an engineering survey. That's what you're saying?---I'll jus have a quick look. I mean, they are produced in both instances, but as I said, the majority of these are actually placed in regard to (a) engineering surveys or (b) control surveys, which propagates our mapping datum through the shire. It's okay, I'll just take a minute and have a quick look and see what they are. I believe most of those, if not all of them, were placed in relation to engineering surveys or one may have been placed on a control survey.
PN956
And in that sense, the fact that Mr Delarue has performed these permanent mark sketch plans is not unusual. It's what his job is?---No, no.
PN957
Okay. If I can just bring it into a bit more sharper focus, for a cadastral survey you need to be a licenses surveyor and the regulations say that?---That's correct.
PN958
And that's what you are. You're a licensed surveyor?---That's correct.
**** PETER NOEL MOWAT XN MR BEER
PN959
So you can perform cadastral surveys. The legislation allows you to allocate parts of that cadastral survey to staff under your control whom you will supervise?---As long as they are a registered person as well.
PN960
And that's what Mr Delarue is by virtue of his certificate?---That's correct.
PN961
And in that sense you allocate field tasks to him which would factor into the broader cadastral survey?---That's correct.
PN962
And then you as the licensed surveyor are then responsible for producing the cadastral survey. So the level of responsibility - - -?---Yes.
PN963
- - - rests with you. Certainly Mr Delarue is accountable to you but the responsibility is yours?---That's correct, yes.
PN964
THE COMMISSIONER: Mr Beer, I just want to ask one more question on that. Have you finished that?
PN965
MR BEER: Probably not.
PN966
THE COMMISSIONER: No, no, you continue then.
PN967
MR BEER: Now I've lost my questioning, Commissioner, so I might let you ask - - -
PN968
THE COMMISSIONER: My fault, so I'll ask it while you - this particular document here, the Grassos Road - I'm not sure if I've got the pronunciation correct?---Grassos, yes.
**** PETER NOEL MOWAT XN MR BEER
PN969
Grassos, did that line up then with - I'm not sure if you've still got that. I'll get my associate to just hand you that series of work book allocations. I want to see - I'm just going by date and it appears in chronological order on 21 August 2000 so I think it's about 10 or so pages in, Mr Mowat. It's got "Location, Grassos Road" on the left-hand side?---Has it got a page number on top?
PN970
78, sorry?---Right, okay. Grassos Road - Didjintramol and Grassos Road. That's probably it. Yes, I think that's it.
PN971
So is it fair to say that you allocated that job to Mr Delarue?---Yes.
PN972
And you've asked him to what, put some permanent markers in place in relation to that particular - - -?---Yes, standard practice with engineering surveys is that we would place one of those marks approximately every kilometre.
PN973
All right?---If they don't already exist then we would place new ones.
PN974
All right. And you've signed - have you signed off on that particular - - -?---This one is not signed.
PN975
All right. Well, what's - - -?---Generally, yes.
PN976
How does that feature, then? What would happen with that? Mr Delarue would complete that particular document?---He - he would, yes, draw the sketch and probably complete the text on the back, as well.
PN977
All right. And would that be given to you?---Generally, yes.
**** PETER NOEL MOWAT XN MR BEER
PN978
And what would you do with that?---Oh, I'd check it and sign it as the Liaison Officer and forward it to Natural Resources and Mines.
PN979
All right. And what would then be done? How does that feature in the Council's engineering surveys? What importance does place: that if someone comes along to divert the course of the road or something to that effect, you have a permanent engineering marker there?---Yes. It serves a number of purposes. One is that, when they come to construct the road, they've got a reliable level marker every kilometre, at least. the other is that, when - if we go back to do further work there, perhaps survey further down the road, again, we've got a reliable mark to work on from and you can also use it then to reinstate or find your other survey marks that you've closed. It's a lot easier to find those than it is a deck spike or a small peg.
PN980
Could an instrument hand do - is that what they're called? I think the - - -?---Yes, we have an instrument hand.
PN981
Yes. Would they be able to undertake that work?---As in completing the sketch?
PN982
Yes?---Not normally, no.
PN983
What about undertaking field work?---As far as placing the mark, yes. As far as the survey connections, probably not.
PN984
Do you do similar work to that?---Yes.
PN985
Is there any differentiation between what you do with that particular - preparing that document and to its fruition?---It would - these are generally done to the standard that is required by Natural Resources and Mines. So, yes, if it wasn't up to that standard, either by myself or Mr Delarue, then we would re-draw it.
**** PETER NOEL MOWAT XN MR BEER
PN986
All right. And can it go through - can Mr Delarue prepare that whole document and authorise it?---He wouldn't generally sign it.
PN987
Why is that?---Simply because I'm the designated liaison person with Natural Resources and Mines.
PN988
And - - -?---And the other aspect is that I review them and make sure that they're up to the standard that's required.
PN989
Why can't Mr Delarue do that?---He probably could sign it. He probably could but it's - it's just the system we have in place, I suppose.
PN990
All right. Thank you, Mr Beer.
PN991
MR BEER: Just on that, Mr Mowat, he doesn't sign it because that's not the system?---Yes.
PN992
So that means he hasn't got that authority or that ability within his position to be able to sign off?---No.
PN993
Just one last question: these permanent mark sketch plans: they - do you check them? Once they're compiled by Mr Delarue - - -?---That's correct.
PN994
- - - do you check them?---I do, yes.
PN995
And when you do one of these permanent mark sketch plans - and you do do them - - -?---Yes, that's correct.
**** PETER NOEL MOWAT XN MR BEER
PN996
- - - who checks yours?---No one.
PN997
Because you're the responsible officer?---That's correct.
PN998
And Mr Delarue's work is checked?---That's correct.
PN999
But yours is not but, then, you're the responsible officer, in any event?---That's correct.
PN1000
I see. Thank you.
PN1001
THE COMMISSIONER: Mr Buckley?
PN1002
PN1003
MR BUCKLEY: Mr Mowat, what level are you, under the Queensland Local Government Officers level - - -?---Level 7.
PN1004
That's correct. Now, being level 7, that's under the Technical Services stream?---That's correct.
PN1005
And the level 7 obviously reflects the greater knowledge that you possess of having to perform the duties as the principal surveyor; is that right?---I believe that's correct.
PN1006
Yes. So there's an obvious differentiation between the work you are required to perform and the level which the Council is prepared to pay you, as distinct from Mr Delarue who - - -?---I'm sorry, but you've lost me there for a second.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1007
Well, I'll repeat it?---Please, yes.
PN1008
There is an obvious differentiation between the level 7 work which you perform as the principal surveyor to that required to be performed by Mr Delarue, as either a level 3 or a level 4. That would have to be the case, would it not?---I'm not - not really sure what you're - - -
PN1009
Why do they pay you a level 7?---Oh, well, in that case, no problem; not a problem: simply because I have a qualification and - and I am - ..... the words - because I have a degree qualification - and if you look through the award and follow the progression of someone who has a degree qualification and who is required to work - related to that degree qualification, you will see why I've got level 7. There is a distinct progression path - - -
PN1010
Yes?--- - - - and also because there are other tasks, apart from engineering surveys, that I'm required to perform.
PN1011
Well, you see, Mr Mowat, don't get the idea that I am denigrating you. I am one of the persons - - -?---No, no, I - not - not for one moment.
PN1012
- - - who are essentially in there representing you to make sure that you get those higher classifications - - -?---That's correct.
PN1013
- - - and is providing the career path for you - - -?---That's correct.
PN1014
- - - as you're probably aware?---That's correct.
PN1015
What I am trying to indicate to you, Mr Mowat, is that there has to be a distinction between the duties performed by a level 7, as distinct to those performed by a level 4?---I would think so.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1016
Yes. And the duties, principally in regard to you as the principal surveyor - you have the legislative authority to sign off on specific elements of surveying work required under legislation. That is one of the main factors, is it not?---I don't know that it's a main factor. It is a factor.
PN1017
Now, is Mr Delarue registered in accordance with the requirements of the Act to perform engineering surveys?---No.
PN1018
Well - - -?---The Act doesn't register persons to perform engineering surveys.
PN1019
Well, is he registered to perform as an engineer in a - surveying associate?---He's registered as a surveying associate, correct.
PN1020
Okay. And you - when I say "you", I'm talking about the Council - have determined that the term "engineering associate" as applied to Mr Delarue will reflect the current trend of calling them engineering surveyors. Is that correct?---Just getting mixed up with the terminology. Mr Delarue is registered as a surveying associate - - -
PN1021
Yes?--- - - - and we've got a classification of engineering surveyor.
PN1022
Yes?---That's - that's what you're getting at.
PN1023
Yes?---And - - -
PN1024
And his registration allow him to perform the work - - -?---His registration doesn't relate to engineering surveys.
PN1025
Well, what does the registration relate to?---Registration relates to cadastral surveys.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1026
Oh, so the registration, under the Surveying Act, says that he can perform cadastral surveys?---No. The registration allows persons who are registered to work on cadastral survey work.
PN1027
Okay. But the legislation requires a licensed surveyor to then endorse the work which is being performed?---No, he doesn't endorse the work that's performed. He takes responsibility for it.
PN1028
Takes responsibility. You are the accountable officer?---That's correct.
PN1029
Right. But the registration allows Mr Delarue to perform that work and, presumably, such work has been undertaken by Mr Delarue while in the service of Hinchinbrook Shire Council?---That's correct, to a limited extent.
PN1030
Right. Now, to a limited extent would normally reflect the fact that they're paying you level 7 and you would undertake the bulk of that work, would it not?---Generally speaking, yes.
PN1031
Yes. Is it not the case that, in a lot of the smaller shires, there is an engineering surveyor and the cadastral work gets referred to a consulting surveyor who then endorses or takes responsibility for the work performed?---That's probably generally the case, yes - - -
PN1032
Yes?--- - - - and in fact, we have out-sourced cadastral surveys ourselves.
PN1033
Yes. And so it would be possible, under the legislation, for Mr Delarue to perform the work of a cadastral surveyor, submit it to a professional licensed consulting surveyor or private practice surveyor with the required registration who could then verify the survey and satisfy the requirements of the Act?---It would be a very messy arrangement and I - I don't know if too many licensed surveyors would buy into it but it potentially could be done.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1034
Can I suggest to you, that's exactly what happened at Beaudesert Shire Council with regard to two persons, called Love and Tilley?---I have no - no - no knowledge of that but, yes, that could well be done. And as I said, to me it would seem a very messy arrangement.
PN1035
Are you aware of a precedent in regard to Mr Robert Love and Mr Mark Tilley?---I've heard but I don't really know much about it.
PN1036
Okay. We'll come to that in submissions. Now, you commenced work, Mr Mowat, as a cadet surveyor in 1974?---That's correct.
PN1037
And at that particular time, we didn't have the current award?---That's correct.
PN1038
And you worked under some other industrial instrument at the time in regard to that. Now, when you became a - when you commenced - sorry, I withdraw that. In 1992, when the awards were consolidated into the Queensland Local Government Officers Award, what level did you get translated to from the old award?---Somewhere in the middle of level 4.
PN1039
Somewhere in the middle of level 4. Okay. And you had a position description, prior to that time, which has been submitted, as I understand it, as LGA exhibit 1 and marked by Mr Beer as Peter Mowat, PD, as per 95, level 4/5. Now, you were translated at level 4 and you - in 1995, you were at level 5. Is that correct?---Five - yes, I would have finished my degree by then, I think - - -
PN1040
Yes?--- - - - and enrolled in 5, that's right.
PN1041
Now, Mr Mowat, it's your obvious choice to pursue your career as you see fit and you obviously had an horizon which you wished to reach. You had been with the same employer since you were a boy?---Pretty much.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1042
And it was your choice to pursue tertiary study which would enable you to go through to level 7. Okay?---That's correct.
PN1043
But when you were performing at level 4 and 5 - and if I could ask the witness to be given a copy of Local Government Exhibit 1. Do you see that there and it's been marked in pencil by Mr - it says:
PN1044
Peter Mowat PD pre '95, level 4/5.
PN1045
?---Yes.
PN1046
Okay. Now, would the - if you could now look at the Survey Associate, the other part in which it says:
PN1047
John Delarue PD 1995.
PN1048
?---Yes.
PN1049
Now, you were working in conjunction with each other at that particular time with a licensed surveyor over the top of you and an instrument hand. There were four people in the section, were there not?---No.
PN1050
In 1995 they weren't?---No, these - these two PDs weren't written until the other licensed surveyor had left.
PN1051
So when did the other licensed surveyor leave?---'95.
PN1052
In '95. So this isn't pre 1995 as Mr - - - ?---This one would be. This one isn't.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1053
That one isn't. Okay, so yours is?---This was created at the time that the other surveyor left and positions changed from a licensed surveyor, myself, Mr Delarue as a technical assistant or something like that, and the instrument hand back to - up to licensed surveyor - - -
PN1054
That's fine?---This, etcetera. Yes. So that's - - -
PN1055
So Mr Delarue's position description at that time was extracted from yours to essentially reflect what you had been doing prior to you becoming the licensed surveyor?---I don't think so.
PN1056
Well, how was it done then? Because let me take you to it. Let me take you to it?---So what you're - - -
PN1057
Well, you're here to answer - - - ?---Just to - - -
PN1058
- - - my questions, Mr Mowat. Unless it's to clarify a point?---I just want to clarify what you're asking, that's all.
PN1059
Yes?---So you're asking me if - - -
PN1060
THE COMMISSIONER: Well, perhaps you might ask the question again.
PN1061
MR BUCKLEY: Mr Mowat, the position which Mr Delarue assumed in 1995, and your elevation to the position of licensed surveyor, was essentially extracted from the work you had been doing previously as the surveying associate?---That's what - I'm not quite sure what you mean by extracted.
PN1062
Well, it would have to have some correlation. Let me put this to you: there was a licensed surveyor?---Yes, correct.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1063
A Mr - - -?---Berger.
PN1064
Berger. Yourself at level 4 or 5; is that correct?---That's correct.
PN1065
Level 4 or 5. Mr Delarue as a what?---Level 1 I think at that stage.
PN1066
He had been in the industry but wasn't - but hadn't received his registration at that particular point in time?---That's probably correct, yes.
PN1067
But on his way?---He was gaining extra experience here, yes.
PN1068
Okay. And an instrument hand. Four people?---That's correct.
PN1069
Is that correct?---That's right, yes.
PN1070
AN establishment of four. 1995 you moved to the position of principal surveyor?---That's right.
PN1071
Is that correct?---That's right.
PN1072
So you've taken over the duties of the previous person, principal surveyor?---That's right, yes.
PN1073
So Mr Delarue, in being elevated to surveying associate in 1995 must, by my reading of these two PDs, have taken up the majority of your previous duties?---I think if you read the PDs that you'll see that that's not necessarily the case.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1074
Well, in which case, if you're contesting my contention there, we will and you can tell me where the majority of the duties lie because they're here. Let us do it. Now, the title is surveying associate. Under yours, you've got engineering surveyor. Under Mr Delarue's, it's surveying associate. The stream is technical services. You've got no level although you've given in evidence that you were a level 4 or 5 at that particular time?---That's correct.
PN1075
This is level 3. The department section is Engineering, Surveying, as is Mr Delarue's. Now, the position objectives - objectives of the position:
PN1076
Provision of services to the Council. Be within the section.
PN1077
It says:
PN1078
Liaise with principal surveyor and/or engineers re work requirements. Manage digital service systems. Monitor tasks delegated to other officers.
PN1079
That's been removed from Mr Delarue's but that's only in regards to the manage the digital service system and monitor tasks delegated to other officers. Well, who was monitoring the tasks delegated to other officers when the field - the instrument hand was out in the field with Mr Delarue?---I beg your pardon?
PN1080
Well, you've got in yours:
PN1081
Monitor tasks delegated to other officers.
PN1082
?---Mm.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1083
Now, presumably you were monitoring the tasks which you may have given to a field hand when you were performing at the Surveying Associate position. Wasn't that the truth?---I've been monitoring works that Mr Delarue was performing.
PN1084
Yes. Okay. Now, what happens to Mr Delarue when he takes over those elements of your work and he's monitoring the instrument hand's work. Isn't that monitoring tasks delegated to other officers?---My question is monitoring what work?
PN1085
The supervision of the instrument hand in the field?---That's correct, and that would be a normal part of survey practice for any survey party, I do believe, wouldn't it?---Well, yes, but it's been taken out, but in actual fact he does it?---No.
PN1086
It's inherent in the position, is it not?---No. That - in the position description of mine, you've got there, "Monitor tasks delegated to other officers." Okay? That doesn't refer to the instrument hand at all. Not by my understanding of it at the time.
PN1087
Well, did you write the new position job descriptions for Mr Delarue?---That's correct.
PN1088
So you wrote and you took certain - so you took elements out to differentiate between him and you?---I beg to differ there.
PN1089
I'm just asking you the question?---Because the - - -
PN1090
THE COMMISSIONER: Well, he did answer it.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1091
MR BUCKLEY: Yes.
PN1092
THE WITNESS: I wrote the level 3 job description, which was approved by the Shire Engineer at the time, and it was written to suit the tasks that we required the person to do.
PN1093
MR BUCKLEY: Right, as a level 3 at the time. That's correct, isn't it?---That would be correct. Yes.
PN1094
Now, look, Mr Mowat, there's no tricks in this. I'm just going to try to get to the bottom of this. Now, the position description at that time reflected the fact that Mr Delarue was a newly registered surveying associate?---Correct.
PN1095
And that, in time, he would grow in the job; is that correct?---That's correct. That was the expectation.
PN1096
Now, how long did you expect him to take?---How long did I expect it to take for him to do what?
PN1097
Grow into the job?---My expectation is that he would probably perform most of the tasks to a reasonable level of competence immediately.
PN1098
And did he do that?---Yes. However - however, and if you read the PD, you'll see that there are - there is mention of development in a few instances there, and that's what we expected was that there would be some development of skills and knowledge over time.
PN1099
Now, the fact is, Mr Mowat, is it not, that you have been able to rely upon Mr Delarue, as evidenced by the survey index, for him to go out and perform those elements which you directed him to do, which would be expected of him as an engineering surveyor; is that correct?---That's correct. Yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1100
Have you got any evidence which you can give to the Commission to say that Mr Delarue has been unable to perform those and has been derelict in his duty?---No.
PN1101
Have you got any evidence to put towards the Commission which will demonstrate that the performance appraisals of Mr Delarue undertaken during those particular years that you had that system in place have been such that you've identified deficiencies in his diligence, in his ability to carry out the duties?---Mr Delarue has performed the tasks we've associated - sorry, allocated to him competently.
PN1102
Okay. Now, Mr Beer underlined certain things which were removed, but could I put to you, Mr Mowat, that the job description was one which you worked out with the engineer which would enable you, as the licensed surveyor, with one person down in the section overall, for you to perform the higher duties and for Mr Delarue to pick up on those duties which you had been performing previously prior to your elevation?---I don't think that's correct.
PN1103
What were you expecting him to do then? Were you going to do the lot? I mean, was it such that you would collect - that you'd taken on board your old role and the role of the licensed surveyor who vacated the role and you were doing both roles, and Mr Delarue was out there on a limb doing something entirely different?---The fact is that some of the tasks that I performed when I was at level 4/5, which Mr Delarue isn't required to do now, and probably is unable to do, I'm still doing.
PN1104
Well - - - ?---And the principal surveyor at the time when there were four people there was performing some of those tasks as well.
PN1105
But Mr Mowat, you, yourself, would have to expect that that would be the case. You're now being paid as a level 7?---Mm.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1106
You're not going to be paid level 7 for doing nothing. That's a fact, isn't it?---That's correct.
PN1107
Yes?---But, at the same time, one would expect that if someone was to be level 4/5 that they would perform the full range of tasks as well.
PN1108
Well, Mr Delarue hasn't been level 5, which you were in 1995?---That's correct.
PN1109
You've had him as a level 3?---That's correct.
PN1110
Now, over a period of time, there has been a change in the position description and in the nature of the work undertaken such that he is now performing work, with greater authority and greater autonomy, for which there should be a commensurate re-classification of the position?---Is that a question or - - -
PN1111
That's a question to you. I'm telling you that that - - - ?---I'm not sure how to answer it.
PN1112
- - - is the case, is it not?---I'm not sure how to answer that, other than to say - - -
PN1113
Well, yes or no?--- - - - other than to say that I don't think there have been any changes in the position description of any significance.
PN1114
Really. Okay. Could the witness - you've got the folder in front of you. Can I take you to folio 12?---12?
PN1115
12? Yes. Okay. Do you recognise that document, Mr Mowat?---It looks very much like the new format PD.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1116
I think you're on the wrong - it's a memo dated the 12th of the 12th, 2001?---Okay. It must be in front of that. Underneath, is it? Sorry.
PN1117
Okay?---No. That's - - -
PN1118
How about folio - - - ?---No, it's okay. Sorry. This is the right on.
PN1119
You've got folio 12?---Yes. I've got it.
PN1120
Okay. Do you recognise that, Mr Mowat?---Yes. I do.
PN1121
And you are the author of that?---That's correct.
PN1122
Okay. Now, you say - you mention in paragraph 2:
PN1123
This position carried out technical duties associated with engineering works projects under ...(reads)... engineer survey position where there was considerable emphasis on training.
PN1124
That was when he started?---That's correct.
PN1125
And then you say:
PN1126
Through the development of his survey skills and knowledge, John achieved registration as a survey associate ...(reads)... Associate Diploma or certified course and four years' practical experience.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1127
So you've confirmed that Mr Delarue achieved a significant milestone and that's been recognised by the Surveyors Board?---That's correct.
PN1128
Okay. You then go on to say:
PN1129
Upon the resignation of the previous principal surveyor in mid-1995 and the subsequent review ...(reads)... Surveying Associate Engineering Surveyor level 4/5, Survey Technical Assistant, level 1, Instrument and SAL, four to three positions.
PN1130
And you've Principal Surveyor, level 6/7, which is yourself, I assume?---That's correct.
PN1131
Surveying Associate, level 3, that's Mr Delarue?---Correct.
PN1132
And the instrument hand SAL, level 4.
PN1133
John was appointed to the Surveying Associate position in July 1995. It should be noted that ...(reads)... registered as a survey associate is commonly recognised as an engineering surveyor -
PN1134
Your own words, Mr Mowat -
PN1135
and generally uses the latter title to describe their level of expertise as it is more readily recognised by public and industry.
PN1136
?---That's correct because - - -
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1137
And then you go on to say - - - ?--- - - - no-one really knows what a surveying associate is outside survey circles.
PN1138
Thank you:
PN1139
Reviewing gradings across a range of other councils shows the following to be the norm. Level 1 ...(reads)... demonstrated a reasonable level of technical skills to be graded at these levels.
PN1140
And then:
PN1141
Level 4, Engineering Surveyor. This the general level for competent, experienced Survey Technicians ...(reads)... Those without formal qualifications progress to the top of level 4.
PN1142
Now, that's all that was required of the Council in regards to Mr Delarue's application. It wasn't to take him any further than 4, not to take him into 4, but 4 was going to be the limit.
PN1143
And some will progress to level 5 by demonstrating that they have gained the relevant skills and knowledge equivalent to an AD or certificate.
PN1144
That would have been the mechanism which would have required, if Mr Delarue had chosen to pursue it, him getting an associate diploma or going on or taking some other form of formal study, but not level 4. Others undertaken some formal training in specific areas before progressing to level 5. You seem to have had this thing that he was going to go to level 5, and I know you're suggesting that that's how it happens in the industry, but that wasn't Mr Delarue's claim. Now, you go on the Senior Engineering Surveyor:
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1145
This is the level for a person with formal qualifications or demonstrated equivalents and extensive experience. It may be the level of a Supervising Engineering Surveyor in smaller councils.
PN1146
Level 5. Level 6:
PN1147
Supervising Engineering Surveyor. There are only a few of these positions at this level in larger councils where they supervise four or five other supervisors, plus other support staff.
PN1148
And then you go on to Graduate Surveyors and Licensed Surveyors, such as yourself. Okay. You then say, Mr Mowat:
PN1149
The 1995 PD for the position of Surveying Associate was written to suit the needs to supply ...(reads)... skills and knowledge of engineering survey, but with only moderate experience.
PN1150
You identify it as being moderate experience. That's what Mr Delarue had. He stuck at it at the level 3 with the moderate experience.
PN1151
It was anticipated at the time of creating this Surveying Associate Position that the person filling ...(reads)... were not to happen, then a considerable amount of the principal surveyor's time -
PN1152
your time, Mr Mowat -
PN1153
would not continue to be consumed in verifying data quality and producing very detailed project instructions to achieve desired outcomes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1154
Well, I put it to you, Mr Mowat, that you do not produce detailed instructions to Mr Delarue. Mr Delarue has grown into the job, as you envisaged - as you write here in 2001, to the point where he is a level 4. And that was your - that was your desire. That was your intention at the time. And as late as 12th of the 12th 2001, you were espousing that in a written memo.
PN1155
John has, over the last six and a half years, developed his survey ability considerably and now ...(reads)... engineering surveyor and is required to do so. In light of the recent PD reviews -
PN1156
so you've reviewed the PD, the review of general grading trends and the original expectation, Mr Mowat, you write here, that the position of Surveying Associate would develop to a point of higher skill, knowledge and lesser degree of oversight. The logical conclusion to be drawn is that the position of engineering surveyor, as in John Delarue's current PD be graded at level 4. Quite clear. Quite clear. That was your professional judgment as Mr Delarue's supervisor, as the principal surveyor, what would be appropriate in the case of Mr Delarue, after he had submitted to you - - -
PN1157
THE COMMISSIONER: What's the question to the witness?
PN1158
MR BUCKLEY: Well, why has Mr Mowat's position changed from then to what he's now submitting on the Council's behalf on regards to this particular issue?---If you look at the witness statement, you'll see that this report was basically just an internal document that went to the review panel and other members of that panel had some doubts, as I did too, and felt that what I had looked at didn't really address the issue of the differences, or if there were differences between the current PD and it in relation to the level 3 and level 4. The other aspect of this is that the gradings and terminology that relate to engineering survey - survey qualifications in general aren't readily understood by some people and, in particular, our new HR officer had no knowledge of Mr Delarue's work experience or qualifications, etcetera, so in this report I've addressed those issues to outline what his background was, what his experience was, and I was able to get a bit of information from a few other councils where
**** PETER NOEL MOWAT XXN MR BUCKLEY
I knew some people to get some idea of what gradings around the traps were, because the difficulty I had was in differentiating between level 3 and level 4, and I hoped, actually, to get some indication from other councils as to what that - what was the leap from 3 to 4, because it's not really spelt out in the award, or not to me, anyway. So what I found was that there was quite a lot of people in the workplace at level 4, engineering surveyors. Unfortunately I couldn't get their PDs and what have you, so. And I also couldn't get any indication of why they had actually progressed from 3 to 4, which was rather unfortunate. The - so the context of this, really, is based on what gradings are being achieved in other councils more so that sort of reference to the award itself, which was a bit of a problem because we really did need to go back to that.
PN1159
Is that it, Mr Mowat?---I guess so, for now.
PN1160
Didn't you produce that report as a result of Mr Delarue submitting a request for reclassification for which you, as a principal surveyor, were asked to respond?---I was asked to respond as part of a process, an established process, within Council.
PN1161
And on 12 December - - -?---That's correct.
PN1162
- - - when you wrote those words you were quite prepared to put forward a proposition which you had no belief in then and that what you were espousing there - - -?---No, no, I don't think that's - - -
PN1163
Well, why do you say - - -?---Your words aren't correct.
PN1164
Why do you say, then, Mr Moffatt - - -?---Sorry, Mowat.
PN1165
Sorry, Mowat - that the logical conclusion to be drawn is that the position of engineering surveyor as in John Delarue's current PD - you make specific reference to his PD be graded at level 4?---Well - - -
PN1166
I put it to you, Mr Mowat, that that was indeed your position - - -?---That's correct. Looking at it on balance at the time - on balance at the time with the information that I had available to me I thought, well, yes, it probably tips to 4.
PN1167
Mr Mowat - - -?---So it would have been - would have been remiss of me thinking that to say that it shouldn't go to 4. And given that my report was part of the process of review in which there were at least three other people involved - - -
PN1168
But you, Mr Mowat, are the principal surveyor?---That's correct.
PN1169
You are paid as a level 7?---That's correct.
PN1170
You have the responsibility and the authority to be able to speak on matters pertaining to surveying in local authorities?---Within a local authority, yes.
PN1171
Yes. And in regards to the work performed by Mr Delarue, and you reached a conclusion which you espoused in that particular memo in conjunction with what you say was Mr Delarue's PD - not as what you were trying to just say earlier that it was just some general things in regards to Councils. You make - - -?---I beg your pardon?
PN1172
- - - specific reference to Mr John Delarue's current PD?---That's correct.
PN1173
But graded at level 4. Now - - - ?---But I make the point to you that my professional expertise is in surveying, not in interpreting industrial awards.
PN1174
Well, if it is indeed in surveying and you put together the position description, you do Mr Delarue's performance appraisals, you analyse and - - -?---Appraisal.
PN1175
Appraisal. You've only done one?---That's correct.
PN1176
Really? Well, isn't there a requirement for you to do more than one?---Absolutely correct, but he wouldn't do them.
PN1177
What do you mean wouldn't do them? You as the principal surveyor would have some control over that, wouldn't you, Mr Mowat?---If I requested - well, yes, I'm instructed by my supervisor to do them and request Mr Delarue to do them. If he refuses - - -
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1178
But you were in a position of authority, Mr Mowat. You can - there is a remedy for that in regards to persons not obeying a reasonable and lawful instruction. What did you do about that?---Pardon? What did I do about it?
PN1179
Yes?---Saw my supervisor.
PN1180
Okay. Now, where is that recorded on any diminished performance or appraisal to say that Mr Delarue refuses to do his performance appraisals? Wouldn't that have been the subject of some form of formal warning or disciplinary process?---It's all - we're getting off the track. It's all part of the same process why we're here; because there wasn't an agreed PD, we couldn't do the performance appraisal, could we, right? So that's why. And because this process was going on we just said, well, there's no point pursuing that issue at this stage. We'll do that when we can.
PN1181
And that was your general thing, wasn't it? That, well, there's no point in pursing that at this stage. You tended to push things aside such as the mathematical units issue. That's the case, isn't it, Mr Mowat?---I don't know what you're getting at. What are you - - -
PN1182
Well, isn't it the case when there was an opportunity to discuss mathematical units you pushed it aside and you didn't pursue it?---What opportunity was that?
PN1183
A number of opportunities where in performance appraisal, the one which you did, you didn't do it. You had an opportunity and you left it. You made a notation on the file to say that you'd leave it. That's correct, isn't it?---Mr Delarue didn't particularly want to discuss it.
PN1184
But you as his supervisor have some control over Mr Delarue, do you not?---Not in relation to what he wants to discuss in that regard. And if it's not important to completing the performance appraisal in his opinion or my opinion, why would I pursue it?
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1185
Now, Mr Mowat, when you wrote that memo and you assessed Mr Delarue's duties against the PD, did you get a copy of the award, the award definitions and compare the PD with the award definitions?---I'm not aware of award definitions. I don't know - - -
PN1186
Well, how could you, Mr Mowat, then, have reached any conclusion if you're not aware of award definitions - - -?---I know we have a copy of the award, but I'm not aware of having a copy of the award definitions. What does it - I mean, I do have an old ASU - at the time we changed from the old award to the current one there was a document that I got from the ASU which had a listing of definitions and stuff in it. I mean, I don't - is that it? What are you - - -
PN1187
Is that how you perform the request to do the reclassification; that you were just groping around?---Absolutely not.
PN1188
Okay. So you said - - -?---But I'm asking you for some information and you're not giving it to me.
PN1189
Well, I'll just ask you the question. I'll make it clear. You said that you performed it in conjunction with three other people. Who were those three other - two other people?---Well, three actually, because the - - -
PN1190
Three. Three other people. Sorry?---The CEO at the top end of things, but I mean - - -
PN1191
Chief executive officer?---No.
PN1192
Yes?---Well, the review panel consists of myself, the human resources manager and civil operations manager.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1193
Okay. Who is Mr Leach?---Who was - yes, that's correct. Who was then to report to the CEO.
PN1194
The chief executive officer, Mr Harvey?---That's correct.
PN1195
Human resources manager?---Todd - - -
PN1196
Stubbings?--- - - - Stubbings, yes.
PN1197
Are you saying that Mr Stubbings did not during that review process present the panel with a detailed analysis of the differences between level 3 and level 4 as required under the award?---He had - yes, we spoke about the differences, yes.
PN1198
You spoke about that?---The differences.
PN1199
Okay. So cast your mind back, Mr Mowat?---Mm.
PN1200
What were the essential differences between level 4 and level 3?---Level 3 and level 4? To my knowledge they - my interpretation of it, anyway, they boil down to a higher level of skill; in other words being able to take on tasks that are more complex and probably a higher level of supervision involved. In other words the person at level 4 would have some sort of supervisory role.
PN1201
Now, Mr Mowat, did you have copies of the award there in front of you as the panel and Mr Delarue's PD when you did this review?---Yes, we did.
PN1202
You did?---I believe so, yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1203
Okay. So you had copies of the award and the award definitions and you compared them to the PD?---We had individually reviewed the award and the PD and we spoke of the differences that we saw.
PN1204
Right. No, I asked - you see, I took you to that question before. What did you use? And I said, "Did you use the award definitions?" Did you use the award definitions personally when you did - - -?---Me personally, no.
PN1205
But you've just said, Mr Mowat - - -?---I don't know - - -
PN1206
- - - with the panel you had them - - -?---I don't know what you're referring to as far as these award definitions go.
PN1207
You've got no concept of what the award definitions are?
PN1208
THE COMMISSIONER: Well, I think, Mr Buckley, that Mr Mowat said that Mr Stubbings discussed the differences. That's how my notes reflect.
PN1209
THE WITNESS: No, well, I just don't understand what he means by award definitions.
PN1210
THE COMMISSIONER: Well, Mr Buckley, you put it to the witness.
PN1211
MR BUCKLEY: How would Mr Stubbings, as the human resource manager, know the differences between the levels of duties performed by Mr Delarue in his duties as a surveyor as against him having a general appreciation of levels applicable to the award but not specifically relating to surveyors?
PN1212
MR BEER: Commissioner, I don't know that the witness needs to answer a question about what someone else knows. I mean, he can answer - - -
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1213
THE COMMISSIONER: Do you have the definitions, Mr Buckley?
PN1214
MR BUCKLEY: Yes, I do, Commissioner.
PN1215
THE COMMISSIONER: Is it - - -
PN1216
MR BUCKLEY: I will take the witness to it. You see, the position with this witness, he says that he took part in a review process, yet he's not able to say what mechanisms he used to review the process. Now - - -
PN1217
THE WITNESS: I might if I understood what you were talking about.
PN1218
MR BUCKLEY: I'll try and make it a bit clearer for you. Now, just in respect to that, Mr Mowat, just let me take you to your witness statement, and attachments which you refer to is attachment 5.
PN1219
THE COMMISSIONER: Just a minute, Mr Mowat. You need to simply - - -?---Sorry. No, just I still don't really understand what he means - - -
PN1220
That's all right. Mr Buckley has a strategy. He's going to take you to - - -
PN1221
MR BUCKLEY: I'm going to take you to them?---Okay, sorry.
PN1222
I'm going to take you there, Mr Mowat?---That's fine.
PN1223
Now, have you got your witness statement there, Mr Mowat, with the attachments?---Yes, I do somewhere. Yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1224
Now, would you go to attachment 5?---I don't have any attachments.
PN1225
Well, they were submitted as part of the submissions which I assume formed part of your statement.
PN1226
THE COMMISSIONER: I think Mr - - -
PN1227
MR BEER: Attachment 5 is in fact exhibit 2, which - - -
PN1228
THE COMMISSIONER: I think Mr Beer did declare that he was - which one are you after, Mr Buckley? Attachment - - -
PN1229
MR BUCKLEY: It's under a - it's written on the document itself; attachment 5, but it's under a coversheet saying attachment 2.
PN1230
MR BEER: If I hand the witness my parcel of documents it might assist.
PN1231
THE COMMISSIONER: Thank you.
PN1232
MR BUCKLEY: Okay. Now, Mr Mowat, this is now your formal response to the manager, civil operations from the principal surveyor, letter of application for regrading from John Delarue dated 16.11.2001, and you've dated that 12 December 2001. And that reflects the document which I took you to previously, does it not?---That's correct, yes.
PN1233
That's your signature there?---That's correct.
PN1234
Okay. Now, can I take you to the next document in that series. It's over the page, you'll find. Is that memo to manager, civil operations?---That - yes, that's it.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1235
Okay. Now, this says:
PN1236
Memo to manager, civil operations, re engineering surveyor position review. Bruce, I agree with your comment e-mail 6th of the 2nd -
PN1237
So in February you responded to Mr Bruce Leach. Would that be Bruce Leach which you're talking about there?---That's correct, yes.
PN1238
Continuing:
PN1239
... that it is not obvious which level the PD fits best into. The problem I believe is substantially caused by the fact that the differences between level 3 and level 4 in the technical stream are quite subtle as expressed in the award.
PN1240
So you're saying at that particular point that you've had access to the award and that there's these subtle differences?---Yes.
PN1241
Okay. What are the subtle differences?---No, what I'm saying is the difference to me appear to be quite subtle. In other words, reading - - -
PN1242
Well, what are they?--- - - - reading one section of the award and comparing it to the other, the wording is very similar, and - yes, to actually differentiate between the two to me, it's quite difficult. Yes, well, the memo goes on.
PN1243
Yes, it does - - -?---And on and on.
PN1244
- - - and I'll take you to it, Mr Mowat?---Yes. Please do.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1245
Continuing:
PN1246
There are quite clear pathways for some sections of the award for AD types.
PN1247
Now, by that you mean associate diploma?---That's correct.
PN1248
Continuing:
PN1249
And within level 2 to 3 and between level 4 and 5. There is no problem identifying the path for progression. The leap from 3 to 4, however, is not defined in any clear way within the award. My understanding of the progression from level 3 to 4 has been gained from examining the award.
PN1250
You're saying there that you've examined the award?---Yes.
PN1251
Continuing:
PN1252
And comparing it to circumstances here and at other Councils who employ engineering surveyors.
PN1253
?---That's what I've attempted to do, yes.
PN1254
Continuing:
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1255
The level 3 surveyor assists and contributes to a range of functions but is not the responsible officer. At level 3 moderately complex tasks are performed and the person may set outcomes. It would be expected that assistance is available to level 3 officers when necessary. The level 4 surveyor is expected to undertake activities, ie assume responsibilities for the desired outcomes being achieve, not just assist or contribute. The range of tasks expected to be competently completed increases in complexity at level 4 and the officer is required to set outcomes within guidelines. Assistance is usually available, however, it would be a reasonable expectation that satisfactory solutions would generally be found by the level 4 officer.
PN1256
I suggest to you that Mr Delarue has demonstrated that to you in the performance of has duties, has he not?---To some extent, yes.
PN1257
I see. Where are the deficiencies?---Deficiencies?
PN1258
Yes. Where are the deficiencies - - -?---As in?
PN1259
- - - when you say to some extent? What are those exceptions?---What are the exceptions? What are the exceptions? Well, as I said, this is my view of the difference between those two areas, and, as I said, that's my interpretation of it or the best I could make of it. The exceptions to Mr Delarue fulfilling those requirements relate to the fact that he isn't able to complete some of the more complex tasks associated with some of the projects that we perform.
PN1260
Well, what are those complex tasks? What are they?---What are they?
PN1261
Yes?---Well, for instance, if we do - - -
PN1262
Within his level 4 duties?---No, his level 3 duties at the moment.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1263
Within his duties in his current PD at the moment - - - ?---Okay.
PN1264
- - - what are they? What can't he do?---Well, for instance, if we're doing a mapping project which we have done several in the last few years - - -
PN1265
THE COMMISSIONER: Sorry, what sort of project?---Mapping project.
PN1266
All right, thank you?---It basically relates to - to acquiring aerial photography so that you can create digital auto photos and map infrastructure, etcetera, from that. One of the requirements of doing this sort of mapping is that you have to place ground control and acquire map co-ordinance on that ground control so they can position the photography, etcetera, and get it through the mapping process. Whilst Mr Delarue was more than competent to go and do the fieldwork associated with placing those marks, drawing sketches of them so that the photogrammetrists can identify; quite capable of taking GPS equipment around to actually record readings on them. I wouldn't ask him to do or attempt to do the reduction and verification of the data at the finish.
PN1267
MR BUCKLEY: Because that would fit into your duties, wouldn't it, Mr Mowat - - - ?---No.
PN1268
- - - as a level 7 or a level 6?---Not necessarily, no.
PN1269
Well, why - where would the differentiation be? You see, you're saying that you're asking him - - - ?---The differentiation - - -
PN1270
- - - to do stuff in terms of verification of those matters. He goes out into the field, he does what he's required to do out in the field as a level 4 and then you're saying that he can't do the verification. It's exactly the same - exactly the same as the responsibilities which are exhibiting in you as a principal surveyor to do that final - that final point?---I would - - -
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1271
I put it to you, Mr Mowat, that you are manufacturing these reasons at this particular time as justification of some degree of deficiency in Mr Delarue's work, which has never been identified in performance appraisal or in any formal warning or deficiency which you've identified in seven years that he's been performing the duties?---If - if Mr Delarue had equivalent educational knowledge to someone with an Associate Diploma I would expect that they would be able to do that data production and verification and they would do it competently. Mr Delarue hasn't had that knowledge so I wouldn't expect him to do that.
PN1272
How many - - - ?---And similarly - similarly if I do no more than allocate tasks to him that he is quite adequately capable of doing then, yes, of course he will always do those tasks adequately. And he does those tasks quite well. And we are quite happy with the work that he does do.
PN1273
Okay. Well, I will come to that. Could I take you to the final paragraph of that memo?---Yes.
PN1274
"With these and a couple of other minor changes I believe the PD does fit level 4". So you say in December that it fits level 4 and you say in February it fits level 4?---Well, it could fit level 4 from - if we made some changes.
PN1275
"I believe the PD does fit level 4". That's what you've written there, isn't it?---With changes, yes.
PN1276
Yes?---But mind you - - -
PN1277
"These and a couple of other minor changes". Minor changes; what were the minor changes? Above is, "This position is responsible for assessing and achieving desired outcomes across the range of tasks allocated". Well, he does that. "Liaising with and decimation of information to consultants, contractors and Council officers within established guidelines". He does that, doesn't he? That was in his original PD, wasn't it, Mr Mowat?---I don't believe it was.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1278
Well, I'll show you that it was?---Maybe - maybe it does. Maybe it does.
PN1279
Could the witness be shown - - - ?---But what you - what you need to remember, of course, too is that - - -
PN1280
- - - LG1 again?--- - - - these weren't necessarily - these weren't necessarily the final be all and end all of any changes that we might have made. These were suggestions only.
PN1281
Yes, Mr Mowat, that is exactly my point because every time that there was a solution to this the Council have moved the goalposts in terms of Mr Delarue?---I don't believe that's the case.
PN1282
Well, it's not a question for you at this particular time, it's a question for Mr Leach, but where do you drive your heads of power to say that Mr Delarue has to achieve these other mathematical units outside the requirements and the definitions of the award? Where do you get that from, Mr Mowat?---Heads of power?
PN1283
Yes. What do you rely upon as your legal foundation to be able to say that Mr Delarue has to do these extra units to enable him to perform and be reclassified as a level 4?---See, I think you misinterpret that.
PN1284
I'm not misinterpreting anything, Mr Mowat. I do this all day every day?---Yes - - -
PN1285
There's no misinterpretation?---I - I don't doubt that but you can - you can read things into - that aren't there necessarily.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1286
Well, I - - - ?---But I don't dispute the fact that, as I've been made aware of, that was actually outside all provisions or something like that. But the point is there was an offer made that was - was thought to be a genuinely reasonable offer. That's - if that's been proved to be the wrong way to go about it, well, I'll accept that but - - -
PN1287
Well, Mr - - - ?---It was made in good faith and - - -
PN1288
Mr Mowat, what I'm trying to suggest to you is that you have demonstrated in written evidence that you, as the principal surveyor, assessed the position description to be a level 4. Now - - - ?---Yes. By the criteria I used, yes.
PN1289
Yes?---At the time.
PN1290
And you're the appropriate person to do it in that you know the job, you've performed the work, you supervise Mr Delarue in terms of the major projects and you've come to rely upon him in terms of going out and doing whatever he's required to do as a level 4 survey associate, do you not?---That's level 3 at the moment, I think - - -
PN1291
Yes?---- - - is the grading.
PN1292
Well, Mr Mowat, you're saying that now which is in direct contradiction - - - ?---No, no, no, I'm - - -
PN1293
- - - to the two - - - ?---No.
PN1294
- - - written documents which you have put in - - - ?---No, no, no.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1295
- - - on the 12th and then again on the 2nd in which you say the PD fits level 4?---Yes. But at the moment it's - the position is still - the point I'm making is at the moment it is a level 3 position. It hasn't gone to level 4 yet. I may have made a recommendation in that regard but - - -
PN1296
Well, how could - tell me then in offering the position to Mr Mowat at level 4 under the terms of the award how the Council would be able to reach a position that they could offer him that position and it doesn't fit what you're saying is the requirements of the level 4 under the award?---I don't know what you mean.
PN1297
Well, why would Council have made a determination - - - ?---Well, I could probably explain that to you.
PN1298
I'm all ears, Mr Mowat?---Righto. No, I just thought you were about to say something else, that's all. Sorry. No, in discussions there was - there was some doubt about whether it was level 3, level 4. Right? And we - we looked at it and sort of thought, well, if - it would be advantageous to have someone at level 4 but we didn't feel that Mr Delarue was - or had the skills currently to do that. So he was offered that - a level 4 immediately and asked to do some study to fill the gaps.
PN1299
THE COMMISSIONER: Who were the gaps? What gaps were you concerned about?---Well, without - without the formal education there are - - -
PN1300
This is the AD, the Associate Diploma equivalent?---Yes. Yes, which is like a two year - two year course of study full-time. But that gives you a very good grounding in a very broad range of survey aspects. It gives you all the basic survey maths. It gives you grounding in map projections, co-ordinates. It gives you information about land - land tenure, land dealings, geodesy, spherical trigonometry, all of the subjects that lead on to being able to do a broader range of tasks. And at the moment those - some of those aspects - I complete those simply because Mr Delarue either hasn't had - well, I haven't been able to teach him to do it. I'm no teacher. And he hasn't undertaken any of the study associated with it, which is - that's fine. So - - -
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1301
Can you give me some examples that - when you say the survey maths or the sorts of things that you do that as yet - - - ?---Well, for instance, we - we have progressively over many years propagated survey control through the district through those permanent marks. We level them. We also - or more importantly in this aspect we put a mapping co-ordinate value on them. And whilst the - the physical survey work to measure to them - John or anyone similar would have the field skills, the measurement skills, etcetera, to do that field work aspect of it. He hasn't got the - the background knowledge of how to use that information to create the mapping co-ordinates and to assess its accuracy, etcetera. So I wouldn't ask him to do that - that component of it. Similarly as I said before with mapping there are components of that that I wouldn't ask him to do because I know he doesn't have the - hasn't acquired the knowledge yet to do it.
PN1302
And those mapping co-ordinates, are they the things that appear on these cadastral - - - ?---No, they're just simply bearings and distances which - - -
PN1303
Well, where would those mapping co-ordinates appear?---Some of - some of those - if you look at the back of those form 6 sketch plans.
PN1304
Yes?---No, the ones - some have got text on the back, some haven't.
PN1305
Yes?---You might see on there that there is provision on there to - to insert co-ordinates on there and ask for any - - -
PN1306
It says height, those sorts of things?---Well, height is not a biggie. It's the latitude, longitude, eastern, northern type stuff that relates - - -
PN1307
All right. And they require the mathematical interpretation?---Yes. Yes, you can - you can do an approximate calculation in a small area and you don't get into too much strife but once you - once you start getting a bit more extensive there's a lot more factors that come into it to reduce it down and - - -
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1308
All right?---The other one is in adjustment of survey observations which is significant as well. But again John hasn't sort of got the background knowledge of - of how to do that.
PN1309
MR BUCKLEY: Now - sorry, Commissioner?---They may - these - that might not make much sense to you but those are a few of the areas anyway.
PN1310
THE COMMISSIONER: All right. And these were the subjects of - that you thought would - - - ?---Well, those were some of the areas that we would have looked at, yes, if we had gone that far.
PN1311
MR BUCKLEY: Okay. Could I take you to folio 17, please, Mr Mowat?---17.
PN1312
Sorry, folio 16. No, you will need that again?---Oh, okay, fine. 16?
PN1313
Yes?---Which is PD of the 23rd of the 8th. Is that right?
PN1314
It is?---Okay.
PN1315
Okay. Identify there within that PD that specific element which you say that Mr Delarue is not able to perform?---Which one?
PN1316
The one which you've just been talking about, the deficiency?---I never said it was a deficiency.
PN1317
Well, what - - -
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1318
THE COMMISSIONER: I think you called them gaps, didn't you?
PN1319
MR BUCKLEY: Gaps?---Yes. Yes.
PN1320
Well, where is the gap then?---Gap.
PN1321
Well, identify it?---The gap exists in the fact that those tasks are not asked to be performed.
PN1322
Well, you're not asking him to perform the tasks in the PD yet - it's not within the written document for which his position is evaluated against under the award.
PN1323
THE COMMISSIONER: But that's the level 3, isn't it?
PN1324
MR BUCKLEY: No, I'm talking about - it's level 3 and 4 here.
PN1325
THE COMMISSIONER: Right?---Yes, but that's not necessarily an agreed PD.
PN1326
MR BUCKLEY: What do you mean it's not an agreed PD? Isn't that, Mr Mowat, the PD which Mr Delarue was asked to put his signature on in order for you to do the review by the Commission?---That's correct. That's correct.
PN1327
Well, that is the document then which presumably you and your fellow officers - - - ?---As - as - - -
PN1328
- - - used to do the assessment, is it not?---That's correct.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1329
Is this the PD?---That's the PD, yes.
PN1330
Are you absolutely sure?---Pretty sure.
PN1331
Okay?---But - but - and the only reason I say that it's not necessarily an agreed PD is because my understanding is that - that Council hasn't actually agreed that it is a level 3/4 PD.
PN1332
But you've said here - amended it - and there's - whose signature is that?---No, I - where?
PN1333
The initial?---That's Mr Delarue's.
PN1334
Yes. And you've asked him to amend it - - - ?---The problem - the problem, as I understand it at that stage where this was done, was that we didn't have a PD that John was prepared to say reflected the duties. To do the review the change or the suggested change for Mr Delarue of general to broad and the suggested change of slash 4 didn't necessarily affect the review process, as I understand it.
PN1335
Right, okay?---So my understanding of this document is that - that the key to having it go through the review process was that the - the bulk of the statements in there that relate to the things that we actually do day to day are agreed. And the reason that we're here now is because we still don't agree about level 3/4. Does that make any sense?
PN1336
You make - did you, in conjunction with Mr Delarue, say that this was the PD under which he would be assessed?---I believe so, yes.
PN1337
And you knew that Mr Delarue's claim was for a level 4?---Obviously, yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1338
Obviously, yes. And you knew that he accepted that from the direction from the Commission that there had to be an agreed PD in order for the process to go ahead?---I believe so, yes.
PN1339
Now, could I take you to your statement and an attachment in your statement following the Geodetic Surveying Faculty of Engineering sheets which is entitled Position Review, Reclassification Process Guidelines as at December 2001?---That's - what number attachment is that one?
PN1340
It doesn't say. It's just following the list of - it's Mr Beer's responses. It's not marked?---So it's that list of the - - -
PN1341
MR BEER: Go to your statement, Mr Mowat.
PN1342
MR BUCKLEY: If you to your statement - - - ?---Oh, is that - - -
PN1343
MR BEER: Go to your statement and then go to the attachments. And that's in that document you've got in your lap.
PN1344
THE WITNESS: Okay. Oh, okay. Sorry about that. Too much paper.
PN1345
THE COMMISSIONER: I'm having difficulty finding it. Which one is it, Mr Beer? The statement. And where are we heading now, Mr Buckley? To - - -
PN1346
MR BUCKLEY: It's to - it's the Position Review, Reclassification Process Guidelines as at December 2001. It's a document which is like that and it follows those cadastral surveying faculty attachments.
PN1347
THE COMMISSIONER: Thank you.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1348
MR BUCKLEY: I assume you do recognise the document, Mr - - - ?---I would if I could find it. It's right at the back, is it?
PN1349
MR BEER: It's attachment one right at the front.
PN1350
THE COMMISSIONER: Right, okay?---Oh, okay, sorry about that.
PN1351
MR BUCKLEY: You've got that?---Yes. Yes.
PN1352
Now, is this the guidelines which you followed?---I believe so, yes.
PN1353
Okay. And when you say you believe so - - - ?---Well, yes then.
PN1354
- - - you were part - well, yes then. So you were part of the process and you, as a principal surveyor - in part of the review team you were following this process?---That's correct. To the best of my knowledge, yes.
PN1355
Mr Delarue puts his review classification in as one?---Yes.
PN1356
"Prior to any consideration of the SMASHA an impartial report will need to be done as a starter which reflects any justification elements in then now duties and views of the immediate supervisor". Could I put it to you that that was your memo of 12 December?---Well, that was - that was my attempt to do that, that's correct.
PN1357
Yes. "There would need to be identifiable changes in the PD, example, notable changes in duties of position and position requisites, level of supervision", etcetera. Now, presumably at some stage you then said that the changes were those identified in the memo to Bruce Leach where you said that there should be some changes but it still fitted level 4?---Yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1358
Yes, okay:
PN1359
Outcomes recommendations resulting from the staff development in the present program have been taken into consideration.
PN1360
Now he has had no deficiencies in regards to what he has been asked to do, has he?---No.
PN1361
Okay:
PN1362
Progress of the review request will be conditional upon the success of the assessment of an employee's actual performance against agreed objective and standards.
PN1363
So you reviewed the PD against the award definitions. Did you do that, Mr Mowat?---Yes, yes.
PN1364
You personally?---Sorry, can I just - when you say award definitions, you mean, what, the written award?
PN1365
Yes, the written award?---Okay, okay. Now, I am with you. Now, just when you said award definitions, as well previously, I was thinking well is there something else other than the award, that is all.
PN1366
Award definitions?---Award definitions, fine. Okay, now, I with you. Yes.
PN1367
You did that?---That's correct, yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1368
Okay?---Yes.
PN1369
A comparative evaluation should then be made up on the then now PD by the immediate supervisor, that is you, and the HRM, Human Resource Manager, and then onto the relevant Work Stream Manager for review submission. Whereabouts is that document?---Well, they are two documents, aren't they? No.
PN1370
Well, the comparative evaluation should then made up on the then now PD, where is that one?---Well, that is what my initial report of the 12th is supposed to be. And that is Mr Leach read that and said, oh look, this doesn't really explain the differences in the then, now and in relation to the PD.
PN1371
So you did then one on the second then?---Well, that was to address that issue, yes.
PN1372
And so with some minor amendments it still fitted level 4?---Well, that is what I thought at the time, yes.
PN1373
Yes. You didn't seek within that document, did you, Mr Mowat, even though it was on the 2 February?---Oh the February one, yes.
PN1374
You didn't seek within that document to make out any argument that there was an alleged deficiency of Mr Delarue in not being able to do the mapping work?---No, because the components that he had been asked to perform was fine.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1375
Well, isn't that exactly in regards then to what is in his PD being assessed against the award definitions. If it is not in his position description how can it have any effect whatsoever on him not achieving the level 4. If you have already come to the conclusion he already fits level 4, you adding something later is justification for not giving it to him is an after thought. And I put it to you, Mr Mowat, that it has always been your position that it was a level 4, and it is only recently where you were following a Council line, that you have changed your view and are now arguing on the basis of supporting a Council position rather than your firmly held and written evidenced view that it fitted on level 4, on two occasions?---In that I wrote both those reports. But you must also remember is that both of those reports were taken to that review panel and discussed and that on both occasions there were view expressed that put some doubt on my opinion. And I am open and honest about things, and if people make a suggestion to me that perhaps I haven't considered certain aspects then I am quite prepared to look at that.
PN1376
Okay, well, what were those aspects?---Well, the key issue, or one of the key issues, any way, was raised as a simple question, was okay, what type of work or what duties is John doing now as opposed to when he first commenced. And I had no answer to it, because realistically there was no change.
PN1377
Well, there is a greater degree of autonomy, isn't there, Mr Mowat?---No, no, I am not talking about the autonomy, I am talking about the actual work that was actually done, right. And, you know, I realised then that, yes, while John is actually doing the work much more efficiently, realistically the type of work that he is doing hasn't changed. And the complexity, in particular, of the work hasn't changed. So that sort of put more doubt in my mind.
PN1378
But you have already indicated, Mr Mowat, that he has grown, it was always intended that he would grow into the position?---Yes, that's true.
PN1379
The work being performed was being performed a 4/5?---That's true.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1380
Why should he then remain as a level 3, when you yourself, when you yourself made an assessment - - -?---What you have missed there too is that he wasn't being asked to do the 4/5 components of the work, initially or since.
PN1381
All right. Now, let us go to folio 16?---Oh this one here. That is that PD, is it?
PN1382
That's it?---Oh okay.
PN1383
Now, I will go back to my original question: where within that, identify where within that PD are the requirements that he perform those mapping calculations which you have indicated was a deficiency, or you wanted him to do?---Well, if this is genuinely a level 3 PD, then I wouldn't ask him to do that.
PN1384
But you are saying that was a justification of offering him as a 4, so that he can?---Yes, if he gains the knowledge to do it, yes. If John had those skills and knowledge then certainly consider 4, but he doesn't have it.
PN1385
Well, let us have a look then, Mr Mowat, under additional position requirements:
PN1386
3, carry out surveys for production of photogrammetric mapping and GIS development.
PN1387
?---That's correct, yes.
PN1388
And that is what he is required to do?---Mm.
PN1389
And can you in actual fact say that in regards to the previous position description that that was a feature?---You are talking about my - oh hang on, you are talking about John's previous position description?
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1390
Yes?---Oh I will just have to have a look and see what it says. I don't recall off the top of my head what it was. Application of photograph skills as required in any survey project. So it is - the words may be slightly different, but it is basically the same. That is my understanding of it, any way.
PN1391
Well, you as a level 4/5 in your job description was exactly the same, photogrammetry, application of photogrammetric skills as required in any survey project. There was no distinction, was there, Mr Mowat, between what you were doing as a 4 and a 5, and was left in Mr Delarue's - - -?---I think the key word there though is as required. And the work that Mr Delarue was required to do he does well.
PN1392
Now, Mr Mowat, you have no matrix of the position description and the award definitions of level 3 and 4, which you can give to the Commission to show that you undertook an analysis of the position in light of the award and the PD?---I think that my memo would be, was it the second one?
PN1393
Okay, so you are relying upon that as the only document?---I think that demonstrates that I have made an attempt to review the award at that stage. And that would have been the second run through. I don't have written notes or anything on the first one, no. There may be somewhere amongst the private paperwork I had associated with the first report, a photocopy of the award definitions, as you refer to them, with some notes on it, perhaps.
PN1394
Okay. Could I ask the witness to look at HSC2, technical definitions?---Okay, so this is basically just the award definitions, is it?
PN1395
Yes, those things which I have been taking you to, Mr Mowat?---Okay, yes.
PN1396
Are you aware of all of these?---Yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1397
Okay?---Yes, it usually comes on pink paper.
PN1398
Now, you have indicated that you used the PD of 23rd of the 8th, to do your analysis, is that correct?---Which analysis?
PN1399
The one which the Council had relied upon to knock back Mr Delarue?---No, because the two reports and the offer were made prior to this and signed. The wording is substantially the same. I mean it is not exactly the same, but it is not actually that document, because it didn't exist at that stage.
PN1400
Well, you then - must then have done it on the basis of HSC1?---Which is the old - - -
PN1401
Duty statement?---No, no. It would have been a forerunner of this, in this format.
PN1402
Well, with respect, you are now saying that you performed an analysis of a job which - with a PD which Mr Delarue had no agreed to and that is what the Council have reached its determination on. You didn't use the duty statement which continues in force, that is Mr Delarue's duty statement, and I am not saying that you didn't use that one, it is some other thing which you dreamed up?---Excuse me.
PN1403
Well, Mr Delarue has no knowledge of it. It has not been submitted - - -?---Oh I beg to differ.
PN1404
It has not been submitted - - -?---I beg to differ, Mr Delarue had full knowledge of what was used, because Mr Delarue sat in when the HR Manager and myself and he went through that old award, old PD and wrote a new format PD.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1405
Mr Mowat, why does it not form, why does it not form any part of your own witness statement, why does it not form any part of the documentation which Mr Beer has submitted to the Commission, and why does it not form part of- - -?---I believe - - -
PN1406
Let me finish. Why does it not form part of the request for discovery which was made of the Council and submitted by the Council in respect to these matters, if it is not here?---You have a copy of it in your file though, I believe.
PN1407
Well, where is it?---I will find it if I can. I think it is there somewhere, if I remember correctly. If I can find it. JD6A.
PN1408
At 11?---Yes, that is what that means.
PN1409
So you are saying that then is the position description that you used?---As far as I aware, yes.
PN1410
And if it wasn't agreed?---That's correct.
PN1411
Well, how can you make an assessment - - -?---Well, can I just clarify that. It wasn't, as far as I was aware at the time, it wasn't agreed the level, but I wasn't aware of any dispute on any other aspect of it.
PN1412
But that doesn't reflect the broad direction and the level and the reference to relieving - oh it does - - -?---At that early stage when, subsequent to Mr Delarue's letter of application, this had been done prior to that, it was a couple of months, I think. I don't know the exact date, but this has been done before that letter of application. And I wasn't aware of any dispute other than the level. And that was evidenced by Mr Delarue's application for level 4.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1413
Okay, all right then?---Does that make sense?
PN1414
Yes, all right. Now, do we take it that JD6A then is the document which you and your fellow review panellists used in reviewing the level?---I believe so, yes.
PN1415
That is the one, okay?---I believe so, yes.
PN1416
Now - and did Mr Todd Stubbings, who you have indicated, and Mr Bruce Lee?---Leach.
PN1417
Sorry, Leach, participate?---In?
PN1418
In the review when you were doing it, and working through the award definitions and the position description?---The position review?
PN1419
Yes?---As in the - towards the re-grading, yes.
PN1420
THE COMMISSIONER: Mr Buckley, we might have a brief adjournment at that point.
PN1421
MR BUCKLEY: Yes, Commissioner.
SHORT ADJOURNMENT [3.45pm]
RESUMED [4.00pm]
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1422
THE COMMISSIONER: All right, Mr Buckley?
PN1423
MR BUCKLEY: Thank you, Commissioner.
PN1424
Now, Mr Mowat, I will take you then, and I realise that you can lose your train of thought, as all advocates do. Mr Mowat, I was asking you questions about the process which you and your fellow panellists undertook in regards to comparing the position description with the award definitions. And you directed me to folio 11, which I thank you for, to say that that was the document which you believe you used. Is that correct?---That's correct.
PN1425
All right. Are you happy that we use that document now in an analysis?---If that is the one that you wish, yes.
PN1426
Okay. Now just before I do that, I want to take you to folio 14, which is - it is a memorandum to Bruce Leach from Todd Stubbings?---Okay, yes.
PN1427
Subject, Salary Re-classification, John Delarue, and it is dated 16 January 2001. Do you see that?---Yes.
PN1428
Okay:
PN1429
A comparative evaluation was performed for John's position of Engineering Surveyor by the principal surveyor, you and the Human Resources Manager.
PN1430
Correct, is that right?---We sat down and discussed it.
PN1431
Yes:
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1432
This involved assessing award criteria for a level 4 officer, technical stream, against current and previous position descriptions.
PN1433
Okay, so you used two - - -
PN1434
THE COMMISSIONER: Is that a question?
PN1435
MR BUCKLEY: Yes, I am asking him to confirm it. Is that right?---I can't negate it. I mean if he says we used both, I assume we did. I don't necessarily recall that we did use the old one or not.
PN1436
Well, you were there, according to Mr Stubbings, Mr Mowat. You were either paying attention or you weren't?---It's a long time ago.
PN1437
And then he goes to make some observations:
PN1438
That since 1995 content of PDs for the position of surveying associate/engineering surveyor, have not varied to any great degree. That the title of engineering surveyor is more readily recognised in general. And against award criteria there was an argument for the position fulfilling much of the stated criteria, including that for responsibilities within the technical field. This reflects the increase in position autonomy and reduction in supervision required to undertake such duties. Additional variables impacting upon the nature of the role of engineering surveyor has also been identified, the level of skill and depth of knowledge of surveying principles, techniques and methods has progressed over recent years. Hence reduction in supervision required to oversee this position by the principal surveyor.
PN1439
Okay, so you are saying he has got all - - -?---That's correct. That's a fair comment.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1440
And:
PN1441
External market forces within the surveying industry influencing comparative remuneration levels. My support for the re-classification of John Delarue's salary level from level 3D to level 4A is subject to performance appraisal outcomes and consideration of reports, evidence provided as part of this review process.
PN1442
Now he has already had your reports to say that he should be a level 4?---Yes.
PN1443
He concurs that it should be a level 4A subject to the reports and evidence. The performance appraisal outcomes, which you conducted, suggests that there are no deficiencies with Mr Delarue?---No problems with the work he has been doing, no.
PN1444
Okay. So who on the review panel then said that it wasn't - if the HR person says that he fulfils the 4A - all right - who on the review panel led the arguments against him being reclassified? You've supported it. Mr - the human resource manager has supported it in light of what he says, with his qualifications. So who on the review panel led the arguments against Mr Delarue being reclassified?---I don't know that it was an argument against him being reclassified so much as questions were raised that - by Mr Leach that raised a few doubts in my mind and - I shouldn't speak for Mr Stubbings, but he did express doubts too.
PN1445
Is Mr Leach an experienced industrial practitioner in terms of human resource management and industrial relations?---I can't comment on that. I don't know, do I?
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1446
Well, you were on the panel with him. On what basis was he - on what basis was he putting doubts in your mind? Was it from a professional point of view about Mr Delarue not performing the surveys in which you'd have been able to - - -?---I believe I explained before that one of the - one of the questions that was raised by Mr Leach, and I thought it was valid, was that he asked - okay. If the duties are performed at that start off position, as a level 3 - when Mr Delarue took it up in '95 - what's the difference between the work that he's doing then and the work that he's doing now. Now, is that - - -
PN1447
Well, it's been answered by both yourself - - -?---And is it - - -
PN1448
- - - and Mr Stubbings?---No, not necessarily. Not necessarily.
PN1449
What do you mean not necessarily? We've got memorandums here under both yours and Mr Stubbings' hand - - -?---Yes.
PN1450
- - - which indicates that that is the case. There has been a change?---But there's a difference - there's a difference between - between doing something better with doing something more complex and the question really related to the complexity of the work, and whilst John is performing the duties that he does more efficiently, really the complexity hasn't changed.
PN1451
But you indicated within your reports that the position description had been developed such that the person would grow into the position. You appointed him as a level 3 with the view to the - eventually he would be able to perform a full range of duties. The level 4 position description which was written then - he was appointed as a 3 - - -?---Sorry. No, it was a level 3 position description then.
PN1452
No, that's what you classified him. I'm going to demonstrate to you, Mr Mowat, that those duties in that PD fall within level 4, and it's Mr Leach, I put it to you, who made a decision not based upon any professional knowledge of what Mr Delarue did, but on the basis of keeping his budgeting down?---I - - -
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1453
Well, I'll put that to Mr Leach, but I'm saying to you - - -?---Well, that's not a question I can answer, but I really don't think that's the case.
PN1454
That didn't - that didn't come into your consideration?---Not at all. In fact - in fact, if you have a look at my budget for the last year, it has been budgeted for Mr Delarue - - -
PN1455
No?--- - - - at level 4A.
PN1456
That's exactly the point which I want to make, Mr Mowat, because your consideration was as expressed in your written memos, that he was a level 4. Now, let me take you - let me take you then, Mr Mowat, to HSC1, which is the definitions - sorry, HSC2, the technical definitions?---Award?
PN1457
Yes?---Okay.
PN1458
Now, I want you to consult at the same time with folio 11. Can you do that?---11 is the PD, is that right? No. Oh, that's the old job description - the original from '95; is that correct?
PN1459
Yes?---Yes. Okay.
PN1460
No, sorry. It's - folio 11 is the one which you've just indicated was the one which wasn't agreed to, but which you did the - - -?---Oh, 11. Okay. I'm back one page.
PN1461
You've got that one?---Yes. Yes, that's the updated version.
PN1462
Which wasn't agreed to?---That would be - - -
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1463
Yes?--- - - - correct.
PN1464
THE COMMISSIONER: This is what you used for the analysis?---Exactly, yes.
PN1465
All right?---Yes. Although, according to Mr Stubbings, we had the other one as well, so - which we probably did, but there's that many pieces of paper floating around.
PN1466
MR BUCKLEY: Now, level 4 - at the fourth level of the technical services stream:
PN1467
Officers at this level work under general direction in functions that require the application of skills and knowledge appropriate to the work. Guidelines and work practices are generally established.
PN1468
Now, that's the case in terms of Mr Delarue, is it not?---Yes.
PN1469
And then it goes on to say:
PN1470
General features at this level require the application of knowledge and skills which are gained through qualifications and/or previous experience in the discipline. Officers will be expected to contribute knowledge in establishing programs and/or projects in the appropriate work-related field. In addition, officers at this level may be required to supervise projects or part of a total works program of a complex nature.
PN1471
That's the case, isn't it?---Not necessarily.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1472
Well, where does it - where does he not do those things?---Well, some of the knowledge isn't there to work at that level.
PN1473
Well, look at the position description then, Mr Mowat?---And - and working on that paragraph. I don't know that the latter half of that paragraph applies actually, either.
PN1474
Well, it doesn't say he has to; it says maybe?---No, but I'm just pointing out that it probably doesn't apply.
PN1475
But it probably doesn't, but then again at times, it probably does; isn't that the case?---"Officers will be expected to contribute knowledge in establishing programs and/or projects in the appropriate work-related field"; I don't think that's the case.
PN1476
Well, you don't think that Mr - - -?---"Officers at this level may be required to supervise projects or a part of a total works program of a complex nature"; no.
PN1477
Mr Mowat, the position description is at a certain level. It doesn't detract from you as a principal surveyor of exercising supervision over the whole of the section and the people who are accountable to you and you making decisions, but at this particular level, in terms of Mr Delarue going out and having people - told to go out and place a number of permanent marks, and in doing that, isn't that a project in terms of placing marks?---Well, it depends what you term a project. I mean, it's - what's a project?
PN1478
Well, are you saying then, if you don't know that, how can you say that it - that doesn't fit it?---No, no, I'm asking you what do you consider a project.
PN1479
No, I'm not here to answer your questions - - -?---Oh, sorry, my apologies.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1480
- - - Mr Mowat. The boot's on the other foot, I'm afraid?---Yes. No, that's okay. Well, to me - to me, if you're talking about supervising projects, you would be looking more at, say, within our works department where you have a construction project. That's what I equate a project to, whether you consider a finite survey of a piece of road as a project.
PN1481
Well, could I put this to you, Mr Mowat. See, you're trying to identify something and belittle it but - - -?---No, no, not at all. No, no, not at all.
PN1482
- - - a construction project has some finity unless we're building the - - -?---No, don't get me wrong.
PN1483
- - - Suncorp Stadium which seems to go on and on, but let's - mostly projects have a start date and a finish date. Now, we're not talking about building Suncorp Stadium but the project may be to establish permanent marks in terms of - - -?---It could be, I suppose, yes.
PN1484
- - - putting in a grid throughout the shire in permanent marks?---It could be. Could be part of a project, yes.
PN1485
Right, okay?---Okay.
PN1486
Continuing:
PN1487
Positions may involve a range of work functions which could contain a substantial component of supervision or require officers to provide specialist expertise advice in their relevant discipline.
PN1488
Well, his supervision extends to his instrument hand when he's out in the field, does it not?---Yes, they work together, yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1489
Yes. And is it not the case, Mr Mowat, that if they're clearing a line, that people may be allocated to Mr Delarue to undertake that work at the same time as you do in the project, and you may indeed do the same thing; that's the case, is it not?---I don't know that that's necessarily the case, because we would contact - say, for instance, if we needed a slasher to clear some grass or what-have-you, we'd generally contact the person responsible for those pieces of equipment, and we'd organise for the equipment to be on site. Now, as to who supervises, John would instruct the guy that "from here to there is what we want you to clear", but I don't necessarily know whether - - -
PN1490
But that isn't - - -?--- - - - who is actually in charge of him. I would assume - - -
PN1491
While he's on site and he's under the direction of somebody performing a survey, and Mr Delarue is required to instruct that person, the person is being supervised by a particular person who tells him to do a particular thing; takes instructions?---I won't buy into the definition of supervision.
PN1492
Continuing:
PN1493
Officers require skills in managing time, setting priorities, planning and organising own work and that of subordinate staff where supervision is a component of the position to achieve specific objectives.
PN1494
Now, I put it to you, Mr Mowat, that Mr Delarue does not come to you every morning and you give him a list of jobs which he's got to do that day or you give him specific direction of what he's got to do that day, does he?---Not every day, no.
PN1495
No?---But - - -
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1496
And he manages his own time when he's out in the field?---Yes, naturally, but basically the works that he does and when he does those, is dependent upon my assessment of the priorities and how they fit in.
PN1497
I'm not - - -?---So whilst he doesn't come to me every day, that's how it works.
PN1498
Mr Mowat, I'm not detracting from you - - -?---No, I don't think you are.
PN1499
- - - and I recognise your position as the principal surveyor - - -?---No, no.
PN1500
I recognise that you have a function within the department; I'm not trying to belittle your function or - - -?---I don't know - - -
PN1501
- - - detract from what you do within the organisation?---I don't know why you'd get the inclination to think that I thought you were because I don't. I was just explaining how it actually works on a day by day basis.
PN1502
Continuing:
PN1503
Officers will be required to set outcomes and further develop work methods where general work practices are not defined.
PN1504
Now, if he's out in the field - I mean, he's working within established guidelines, etcetera, but when he's out in the field, he's got to exercise some independent judgment from time to time, does he not, Mr Mowat?---He would have to assess each survey as it - or the circumstances of each survey and make appropriate adjustments to the methods that we use, but generally with a few years experience, you've probably seen most of the quirks that you're going to come up against so, yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1505
Yes, but he would be expected to, wouldn't he? Does he ring you up every time and say - - -?---At times, yes.
PN1506
Yes, he does. He seeks guidance and that's within the level 4. I'll bring you to that. At time he does, but as a general principle, how often does he contact you during the day to ask for guidance?---On occasions; not often.
PN1507
Not often. Requirements of the job - over the page, Mr Mowat - oh, sorry, I do beg your pardon. It's a different - same words, different - - -?---Different page.
PN1508
- - - formatted document:
PN1509
Requirements of the job: Some or all of the following are needed to perform the work at the level. Skills, knowledge, qualifications and/or training.
PN1510
He's got that; that right?---Well, that's the bone of contention, isn't it, the skills and knowledge.
PN1511
Well, Mr Moffatt, you've identified - - -?---Mowat.
PN1512
Mowat, sorry. Mr Mowat, you've identified one particular instance. The rest of the work of an engineering - - -?---I was asked to give an example. I gave an example.
PN1513
Yes, yes, but you've employed this person?---Mm.
PN1514
You've employed this person - - -?---Well, council's employed him, yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1515
Yes, for seven years within - doing the duties?---That's correct.
PN1516
And you've not been able to demonstrate that there's any deficiencies in terms of any written evidence, and you continue to employ him, no diminished performance and presumably, he's fulfilled the requirements of the job otherwise you'd have been able to exercise a remedy and dismissed him, wouldn't you?---And as I said before, that's probably correct, other than the fact that you missed the point that, as I said before, if I allocate the work that Mr Delarue is capable of doing, then you would expect that he would do it satisfactorily, and that's what's done.
PN1517
And that's what's done, yes?---And it's the - - -
PN1518
So there's no deficiency?---It's a matter of giving work that is at a suitable level of complexity and he can handle that. That's not a problem.
PN1519
Well, let's carry on. Let's carry on?---Yes, yes.
PN1520
Continuing:
PN1521
Knowledge of statutory requirements relevant to work areas.
PN1522
He knows that?---To what level or extent?
PN1523
To the level 4, Mr - - -?---What - - -
PN1524
Well, you tell me the difference between level 3 and level 4; I mean, if you're going to quibble over that, Mr Mowat, tell me the differentiation what you expect between a level 3 and a level 4 to that particular dot point. We'll get through this a lot quicker if you don't - - -?---But I don't think this is about getting through it quick, is it? It's about making - - -
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1525
THE COMMISSIONER: You asked the witness the question in relation to what statutory requirements - knowledge is required at level 4.
PN1526
MR BUCKLEY: Well, does he demonstrate that?---I believe he has an understanding of the Survey Act. He probably doesn't have an understanding of the Survey Co-ordination Act. So, you know, there are probably some gaps there that he doesn't have, right, which - to do the engineering survey work don't make a huge difference as long as he isn't required to do certain things.
PN1527
What steps have you taken in regards to instructing him on the second Act which you mention there so that he would be able to perform his duties; what - - -?---He's not required to perform any duties in relation to it, so - - -
PN1528
Well, why then, do you - why then do you raise this as an example of him not having knowledge because it says, and if you listen to the question and read it there, Mr Mowat, it says:
PN1529
Knowledge and statutory requirements relevant to the work areas.
PN1530
Now, if it's not relevant to his work area, the work which he's performing - - -?---But we're talking about level 4, aren't we?
PN1531
But Mr Mowat - - -?---Not level 3.
PN1532
Where within the position description - - -?---Oh, you're asking about level 3?
PN1533
No, I'm asking you - - -?---Or level 4.
PN1534
- - - about - we're talking about level 4 here - - -?---Yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1535
I'm asking you about where within the position description and the award does it have a reference to his knowledge of that Act; has he any ability to exercise any authority under that Act?---In relation to the permanent marks, yes, placing them, doing the form 6 schedules, etcetera.
PN1536
But you have said - you have said that you are the designated liaison officer?---That's correct.
PN1537
If Mr Delarue was the designated liaison officer it would be expected that he would then make himself aware of the requirements; that would be the case, wouldn't it?---You'd hope so.
PN1538
Yes, but you've never ever - you've assumed that. That's your job as the principal surveyor; that's your level 7 job?---To the - - -
PN1539
That's where your knowledge lies, Mr Mowat?---To the extent of that's required of him, he is aware of the requirements as far as putting those form 6s together which is what's required.
PN1540
And that's where he fits this particular requirement?---Well - - -
PN1541
THE COMMISSIONER: Are you saying to exercise this - the job at level 4, he requires extra knowledge of some statutory requirements?---I think it would be reasonable to expect that.
PN1542
And what would be those - what statutory requirements are they?---Oh, I think you'd need a very broad understanding of the Survey Act which relates to his registration as well as Survey Co-ordination Act and probably the Land Act.
PN1543
And what - - -?---Yes, there's several others that you would actually be exposed to if you went through the educational system.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1544
To do what practical job?---To do what practical job; oh, that relates to probably cadastral surveys to start with, the general requirements or the duty of care that you have when you're doing surveys.
PN1545
And how would you acquire that knowledge?---Well, you could acquire some of it by reading the Act but then you don't necessarily understand the Act fully by just reading it.
PN1546
Well, how would you go about it then other than - - -?---Oh, the associate diploma type courses cover the appropriate legislation.
PN1547
Has Mr Delarue been made aware that he has gaps - they're some of the gaps in his knowledge of these statutory requirements?---It has been an issue with the work that he's been doing.
PN1548
But in relation to his re-classification sheet?---Oh, only in the context that we work - well, if he had gotten to the point where we were negotiating which subjects he may undertake, that's where it would have come out there but we didn't get to that stage so - - -
PN1549
MR BUCKLEY: But you only identified mathematical units, Mr Mowat; there was no mention of any gaps whatsoever in any of these proceedings. That's the first which we've heard of this?---Where's the letter that - - -
PN1550
It's not even within your statement?---Where's the letter of - where's that letter of offer; can I have a look at that?
PN1551
THE COMMISSIONER: Yes, but you can't ask Mr Beer?---Oh, no. No, I wasn't actually looking at Mr Beer at all.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1552
MR BUCKLEY: Mr Mowat, would you just concentrate on what I am asking you, please. Just sit back - - -?---I'd like to have a look at that because I think - you've mentioned - - -
PN1553
THE COMMISSIONER: Just a minute, Mr Mowat. Mr Buckley, you asked the question in relation to mathematical units. Do you want the witness to identify where he made reference to these other statutory requirement knowledge at this point?
PN1554
MR BUCKLEY: I'll come back to that; I'm just concentrating on this PD at the present moment.
PN1555
THE COMMISSIONER: All right. Keep that to one side, Mr Mowat, and - - -?---Yes, I'll just - so I don't forget, because it relates to a ..... Mr Buckley is asking - - -
PN1556
MR BUCKLEY: Mr Mowat:
PN1557
Knowledge of section programs, policies and activities.
PN1558
He knows that, does he?---He has knowledge of it, yes.
PN1559
Continuing:
PN1560
Sound discipline knowledge gained through experience, training or education.
PN1561
He's got that?---To a limit, yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1562
To a limit. Well, isn't he sound?---In?
PN1563
In his knowledge?---Again, I'd have to say to a limit.
PN1564
To the level 4 limit. I mean, he's not as knowledgeable as you, Mr Mowat, nobody is suggesting he is. It's not a comparison between you and him?---Have I suggested that it was.
PN1565
Well, you tend to be answering in that vein, Mr Mowat?---I wouldn't have thought I had, actually.
PN1566
"Within a limit" - so what is his limit in regards to sound disciplinary knowledge? Where is his deficiencies in regards to disciplinary knowledge gained through experience, training or education? Give us an example of that?---Well, the best example I can give you is that in the course of his employment with council where he has gained a substantial proportion of his experience, the type of work that he's undertaken there really is a combination of a fairly narrow group of skills.
PN1567
But it's one which you have determined, which you have said was to go further - it was always envisaged that it would be further, and with time he would gain the skills and the knowledge. Now, you're saying that he hasn't done that?---He has gained the skills appropriate to perform those engineering surveys and the same types of skills are utilised in a variety of things such as the establishment of photo control where he does the measurement side of things and similar aspects like that. But to go beyond that to more complex tasks, he hasn't had the training or the experience.
PN1568
Well, isn't that your fault?---So it's my fault that someone doesn't take options?
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1569
No, no, no. What I'm suggesting to you, Mr Mowat, is this: you're saying that he hasn't had the training. Now, you're the principal surveyor. If you want him to perform those tasks you would have been the appropriate person to say, "Here's a development program. Go and do this. I want you to do this to enable you to do those tasks and as a function of a job"?---At any stage that John and I have talked about training as in formal training or formal education, he's rejected the idea. So I mean, if someone tells you they have no interest in pursuing that, and you have work for them that doesn't require them necessarily to do that and they do it well, then let them do it and that's what we've done.
PN1570
Mr Mowat, the local government industry have gone through 10 years of restructuring in every facet of its operations, from national competition policies to award modernisations, structural efficiency, whereby people's jobs have changed considerably, not least here in Hinchinbrook where there's been changes, the fact that you've changed the position description to reflect things that the Survey Department has been incorporating from an independent body into the Works Department under Mr Bruce Leach whereas before it operated as a separate organisation?---No, it has always - - -
PN1571
Separate section?---It's always been under the supervision of the engineer, always.
PN1572
Well, with the principal responsibility being carried by the principal surveyor. I mean, that's the function. The engineer cannot assume the responsibilities as you have as the principal surveyor. That's encompassed in you - - -?---The point I'm making though is that the survey section has always been part of the overall works section umbrella because that's why we exist.
PN1573
Yes, and I'm not contesting that. I'm only saying that there have been changes in regards to how it's structured?---As in what, the change from four people to three?
PN1574
Four to three, various other things which have happened?---Which other various - I'm sorry, I'm asking questions.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1575
So the local government industry, the council has changed, has it not?---In some aspects, yes.
PN1576
Yes?---But then you'd expect that.
PN1577
Yes. Now, that has resulted in councils requiring officers to perform peripheral duties and multi-skilling duties, all of which can be done through a process whereby the person has to do them as part of the duties after consultation and reasonable direction is given to them that that will now constitute part and parcel of their PD. Isn't that the case?---It may well be.
PN1578
And you had wanted any of those duties performed, it would have been within your capacity as the principal surveyor, in conjunction with the HR manager, to say to Mr Delarue, "This is what this job entails." Now, you're saying at this particular stage, not contained in your statement, not contained in any of the other documentation which has been sought through discovery, you're saying now at this stage, sat in the witness box, that these were reasons why you didn't do it. Never enunciated those reasons prior to this particular point, why?---No-one has asked the question.
PN1579
You didn't think it necessary to explain to Mr Delarue then why you were knocking him back on these reasons to give him an opportunity to resolve the issue? Wasn't it part and parcel of the process that Mr Delarue is given an opportunity throughout this period of time that you're referring to, and it's not just recently. You're saying over this period of time he's always knocked this back. Now, you had a remedy, did you not, at the time?---How do you mean? I'm sorry, I'm asking questions again.
PN1580
No, I'll explain to you, Mr Mowat. You would have been able to say that that was a function of the job which you required him to perform and it was within his PD?---Well, as I said before, if you have an employee who is performing the duties that you require him to do and performing those well and he has no interest in furthering his education, mind you, the opportunity is always there and always has been there if he wanted to.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1581
But if he doesn't want to go on to a level 5 or a principal surveyor?---No, no-one's suggesting that he ever said that.
PN1582
Well, that is the inference in terms of that he has to perform these additional mathematical units?---No, it isn't.
PN1583
Where in the award is it? Where in the award does it say that a person - and if we carry on with this, where within the award, Mr Mowat, which is there before you, does it say that officers will be expected to attend these additional requirements?---The expectation is - well, from our interpretation and reading of that section of the award, and again it's - - -
PN1584
Well, let's go back - - -?--- - - - expressed in that second report of - - -
PN1585
Let's go back and read it.
PN1586
THE COMMISSIONER: Wait a minute. Let the witness answer.
PN1587
MR BUCKLEY: Sorry?---That, you know, one of the things that - or I identify there was that the expectation would be that more complex tasks would be expected at level 4 and to perform those more complex tasks, the person would require some formal education or have experience in the workplace in those more complex aspects.
PN1588
Let's carry on, okay. So the requirements of the job, we're in level 4:
PN1589
Specialists require an understanding of the underlying principles in the relevant disciplines.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1590
He has presumably got that?---Sorry, where are we?
PN1591
It's the fifth dot point down?---Well, I don't know how you could have an understanding of the underlying principles if you haven't done the formal training because that's what you learn through formal training.
PN1592
But Mr Mowat, you see, you're putting an interpretation upon that which I will come to, and I will leave that there?---I can only read the words.
PN1593
Well, read the words in their entirety. Now:
PN1594
A relevant four-year degree with two years relevant experience.
PN1595
That's a formal requirement?---Mm.
PN1596
But he doesn't have that, does he, and Mr Delarue doesn't claim he has?---No.
PN1597
Continuing:
PN1598
Or a three-year degree with three years of relevant experience.
PN1599
Neither does he have that, does he?---No.
PN1600
And he doesn't have:
PN1601
An associate diploma with relevant experience -
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1602
does he?---No.
PN1603
And he doesn't have less formal qualifications with substantial years of relevant experience?---No.
PN1604
But he does have, because you've employed him under it and he's received his registration:
PN1605
Attained through previous appointments, service and/or study, an equivalent level of expertise and experience to undertake the range of activities required.
PN1606
I put it to you, Mr Mowat, in regard to your previous comment, that for Mr Delarue not to have that he wouldn't have got the job in the first place in terms of being appointed as a level 3?---Sorry, that's where you're mistaken.
PN1607
We'll go on to responsibilities:
PN1608
To contribute to the operation objectives of the work area a position at this level may include some of the following inputs or those of a similar value.
PN1609
It doesn't say - it says, "may include some of the following inputs or those of a similar value."
PN1610
Undertake activities which may require an officer to exercise judgment or contribute critical knowledge and skill where procedures are not clearly defined.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1611
He does that from time to time?---No, I don't think so. Not necessarily in the critical knowledge side of it because - - -
PN1612
Continuing:
PN1613
Perform duties of a specialised nature requiring the development of expertise over time or previous knowledge.
PN1614
He does that?---If you consider the general survey skills a specialised nature.
PN1615
Well, I do - you consider surveying to be a specialised skill, surely, Mr Mowat?---That's why I just made that statement.
PN1616
Yes.
PN1617
Identification of specified or desired performance outcomes.
PN1618
?---Generally speaking the setting of the standard, the desired outcomes, falls back to me and I'd be sure that Mr Delarue is aware of that.
PN1619
I'm sure he's aware of it and I'm sure he gives you the courtesy of letting you know that that is the case?---No, no, you misunderstand here. I said, I make Mr Delarue aware if there are specific desired outcomes. That's what I said.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1620
I'm not suggesting that you wouldn't, Mr Mowat, but I'm suggesting when Mr Delarue picks up jobs from the survey index which we referred to, do you give him detailed instructions about what is required?---If there's a specific aspect that the job is looking at. For instance, there's a job that's coming up shortly - actually we've done three surveys on the one piece of road but the middle piece needs to be done now. There are two specific aspects to look at. One is that there's a section of road that deteriorating and they're looking at rebuilding it. So you need to perform a survey in light of the fact that they're looking to rebuild that which may include widening etcetera. The remainder of the road, the key issue there is drainage so I'd make Mr Delarue aware that for that section we really need to be picky with the drainage aspects and for the remainder etcetera. But if there's a specific requirement that's there, yes, make him aware.
PN1621
When you're not there doesn't he exercise that?---He would - at times if I'm not there, if someone comes with a job, John would assess what they - I'm sorry, John would take in what they do or what they require and then we would discuss it, yes. Or I would go - - -
PN1622
Yes, but if you weren't there - - -?---Or I would go back to the person who required the job in the first place to make sure that we get the information from them.
PN1623
Yes, but if you're not there and you're not available and Mr Delarue is acting in your position, he acts as - - -?---Are you talking about when I'm on leave?
PN1624
When you're on leave or when you're absent in the field?---If it's only my absence in the field, then, yes, we would discuss it when I get back or he would - - -
PN1625
So everything waits until you get back. He never exercises any independent judgment in regards to assessing outcomes of doing a job?---Well, most - not most, in a lot of instances the outcomes are almost a standard part of the process, the survey process that we work to, all right. As I said before, if there are specific or some little idiosyncratic requirement for a particular job, then that's what we will discuss.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1626
THE COMMISSIONER: Mr Buckley, can I ask the witness.
PN1627
In terms of those responsibilities, if we take it the other way, which of those responsibilities were you concerned or prevented Mr Delarue from being classified in level 4?---Well, really, as I said, it all came back to the more complex tasks. Now, how you equate that to what it says here, we'd have to have a bit of a read through, but I guess one of them is - it probably comes back to that identification of specific or desired performance outcomes because the survey systems that we use or the desired outcomes, generally speaking, it's something that because I take responsibility for the outcomes, I'll make the judgment relating to that. So if a survey requires a particular technique to be used to achieve that outcome, then I'll make sure that John's aware of that and that he can do the job. But if I don't think that - well, I couldn't reasonably expect him to do that, then I'll do it myself. Or if, you know, it could be something - or, for instance, we had monitoring fill levels at the local refuse tip and it became a bit of a political issue and John had been doing the surveys for some time and because it got political and the councils were asking questions about it and wanted to be informed, kept up to date etcetera, rather than have John do the surveys I went and did them myself because that way I could completely answer their questions and take responsibility for that rather than leaving it with John.
PN1628
But that's only - I understand that. That may have been a particularly - - -?---Yes, I'm probably getting off the track.
PN1629
- - - politically contentious particular project?---Yes.
PN1630
Under responsibilities it does say - - -?---I'm getting off the track, I'm sorry.
PN1631
No, I take your question - take your answer. But under the responsibilities it says that:
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1632
This may include some of the following input or those of a similar value.
PN1633
?---Yes.
PN1634
I understand the project you're referring to seems to have some specific particular performance outcomes that may be more readily assessed in accordance with someone at your particular level?---Well, that's the judgment call that I've made on those and other tasks, yes.
PN1635
But in terms of the judgment or identification of specific or desired performance outcomes at level 4?---Yes, okay.
PN1636
I mean, what I'm interested in - and it may be where Mr Buckley is taking it, but as I understand it, in terms of requirements of the job, some or all of the following are needed to perform work at this level. Now, you've taken through some there that you say you've got question marks over. He has a formal qualification in terms of the surveying associate?---No, it's not a formal qualification. It's formal recognition of an attainment of skills.
PN1637
All right. So he satisfies that last dot point there?---Which is?
PN1638
Continuing:
PN1639
Attained through a previous appointment service and/or study, an equivalent level of experience to undertake the range of activities required.
PN1640
?---Yes, and no. Yes, he has form recognition of technical skills but not necessarily to the same extent as someone with an associate diploma because he hasn't got that formal background.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1641
Right. Well, what occurred then between - - -?---I am sorry?
PN1642
What occurred between the time when you wrote your memo that said basically I can see - and maybe this is where I need to gain an understanding - the position description, or the reclassification basically was supported by you, as I understand it?---Yes, well, on balance, I mean, it is - see, I have difficulty with ..... I mean, you can read through these sections in level 4 and you can probably read through the ones in level 5, and say, yes, that fits, too. To the average person there is not a lot of difference between them, and it is the same between level 3 and 4. The - it is subtle, okay. So I - that is why I went back and started having a look around to see what was happening in other councils. And it seemed that there were quite a lot of engineering surveyors in level 4, all bar one had formal qualifications, and that one was working towards them. And given that - given that they were in level and they didn't really have an explanation why they had gone onto level 4, other than - the only one I can think of was just the market forces. So on balance, I sort of thought, well, maybe it is - maybe it should be ..... and it would probably me remiss of me not to say that, you know, give me a shot at level 4.
PN1643
Well, between then and now, were you raising these concerns about the questions that Mr Buckley is putting to - - -?---I have always had concerns. But like I said, on balance I thought, well, maybe it does tip into 4. But where I really had concerns now - and basically that the ASU highlighted when they asked for a copy of that old 1995 PDF9, because I haven't looked at it for years, and when I started comparing it with Mr Delarue's PD, I sort of thought, well, gee, you know, there is - the level of complexity of the tasks that are in his level 3 PD and now are in his revamped new-format PD, they just don't stack up against the old level 4 or 5 PD.
PN1644
And that is what you were doing?---Yes. Yes, but never mind what I was doing, what is actually in the PD. And I started to think, well, realistically, if that was 4 or 5, that has to be 3.
PN1645
MR BUCKLEY: But you were being ..... though, weren't you, Mr Mowat?---Yes, after - - -
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1646
Yes?---After I had got my degree, yes.
PN1647
Yes?---And - and the only reason I translated into a level 4 was because I had done further study beyond the associate diploma as well. Otherwise when I was translated I would have gone from the engineering surveyor fifth year, whatever, into level 3.
PN1648
With respect, Commissioner, I interrupted your line of questioning; I do beg your pardon.
PN1649
THE COMMISSIONER: No .....
PN1650
MR BUCKLEY: You were translated under the 1992 translation; that is correct?---Yes.
PN1651
MR BEER: Yes, sorry about that.
PN1652
THE COMMISSIONER: That is all right. That is all right, you are being fired at from both sides?---No, it is okay.
PN1653
MR BUCKLEY: Have you finished, Commissioner?
PN1654
THE COMMISSIONER: Yes. I am just concerned that we will adjourn at 5 o'clock, Mr Buckley.
PN1655
MR BUCKLEY: Yes, Commissioner, I should be finished by then.
PN1656
THE COMMISSIONER: I am not wanting to shut you down, I am just wanting to give you notice of that.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1657
MR BUCKLEY: Now, Mr Mowat, if I could take you to - the prime responsibilities was not to supervise, although he does in terms of the instrument hand, so we can - - -?---No, it is not a supervisory position like an - - -
PN1658
But he - no, it is a form ..... in terms of ..... ?---Yes, yes.
PN1659
But he has supervisory duties in terms of an instrument ..... persons who are attached to him from time to time. But it is not the primary - it is not the - - -?---Primary means at all.
PN1660
Okay. So your primary responsibility lies in the technical field, okay?---Yes.
PN1661
..... ?---Yes.
PN1662
And so this is where the distinctions are, Mr Mowat, and if you have gone through the differences between level 3 and level 4, and level 5, this is where the distinctions lie?---Okay.
PN1663
Where the primary responsibility lies in the technical field, officers at this level; (1) undertake projects which impact on the sections or departments programs.
PN1664
Well, he does that, does he not, in performing his work? It would be an impact in him not performing the work?---Well, obviously. I mean, everyone that works there has an impact on it, yes.
PN1665
And:
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1666
(2) carry out a variety of activities in the field of technical operations requiring initiative and judgment in the selection and application -
PN1667
and this is where the distinction is because it says -
PN1668
of established principles, techniques and methods.
PN1669
So it is not a necessity for him to go outside of what the techniques, principles and methods are, which have been established within that work program. He doesn't have to show huge innovation all the time, he is working within established principles, techniques and methods, and he does that, doesn't he?---Certainly does, yes.
PN1670
Yes. Now, organisational relationships. He works under general supervision; isn't that the case?---That would be an appropriate wording, yes, which is what we have suggested.
PN1671
Supervises employees. He has his instrument hand and those persons who work under him. He probably doesn't do it with contractors, but it says and/or - or other subordinate employees; that would be the case, isn't it?---Yes, I suppose that is correct.
PN1672
And the extent of authority. Is required to set out, comes within defined constraints. You set the constraints, but he is required to set the outcomes. He goes off on a job, you say, "Go and do this job", and he sets the outcomes?---Not necessarily. I mean, the outcomes - the outcomes of the surveys are certainly within the - the outcomes are pre-determined.
PN1673
..... define constraints?---Sir, John isn't necessarily - well, he isn't - isn't required to set the outcomes. He may - - -
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1674
But he may ..... a chance?---He may have changed - he would have changed the outcomes, but he doesn't necessarily set the outcomes.
PN1675
It does not mean that you have got to have every single ..... ?---No, no, but - - -
PN1676
And if you are saying that that isn't the - - -?---But you have asked - you have asked me the question, so I have answered it.
PN1677
Yes, yes?---I mean, he is not required to set the outcomes.
PN1678
Yes?---I don't - you know, that is my understanding of it.
PN1679
Provide technical - he doesn't provide professional advice - but he provides technical advice?---He probably does on occasions, yes.
PN1680
Yes. And the freedom to act is governed by clear objectives and/or budget constraints?---Clear objectives.
PN1681
Yes. Is that right, yes. And the solutions to problems are generally found in precedence, guidelines or instructions, assistance is usually available. And that is the case as well, is it not?---That is probably a fair comment.
PN1682
Okay. Now, if I could take you to the PD. You have got skills and abilities. He has got to be proficient in the technical skills associated with the usage, checking calibration and adjustment of service equipment. He has demonstrated that, has he?---Sorry, where are we - skills and abilities?
PN1683
Yes?---Yes, with - with the emphasis on the technical skills there, yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1684
He is proficient in survey data processing through council's adopted CAB software?---Yes, he does a very good job there.
PN1685
Okay. Three analytical computational and computer drafting skills; got them?---At an appropriate level, yes, for what he is doing at the moment.
PN1686
Yes, level 4, Mr Mowat?---No, we are talking about level 3, aren't we?
PN1687
You are. 4 - high level of technical communication skills?---He's got an appropriate level of skill there, yes.
PN1688
Yes? And a moderate level of ability to use GIS applications? Okay. You don't have expect him to have a high level? You've indicated that there?---No. No - - -
PN1689
Knowledge and experience: a thorough knowledge of general survey work practices and procedures?---That's correct.
PN1690
And a sound knowledge of PC and calculator - survey calculation and applications?---Yes.
PN1691
And a sound understanding of statutory requirements pertaining to survey?---Yes. He's probably satisfactory there, yes.
PN1692
A sound working knowledge of survey data bases and records compilation and maintenance?---Not a problem there.
PN1693
And he's got a developing knowledge of Geodetic calculation and adjustment?---Yes. You'll find that that's probably a new one that's been put in there because we're moving fairly rapidly into GOS development and utilisation of that sort of data, so that's probably one of the very few things that did change in the PD review process.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1694
And additional position requirements: he's got a driver's licence. And responsibilities of the position: and he's to carry out engineering surveys with general direction from the principal surveyor?---Yes.
PN1695
That's what you require of him?---Yes, although there is the contention about general and whatever.
PN1696
No, we're not dealing with that?---Oh, okay.
PN1697
We're dealing with your - - -?---Oh, this one.
PN1698
- - - what you assessed - - -?---Oh, right, fair enough.
PN1699
- - - the PD which you assessed him on - - -?---Fair enough, yes.
PN1700
- - - general direction?---Yes.
PN1701
He's to carry out cadastral surveys under the immediate supervision of the licensed surveyor. You require him to carry out - you say there, you require him to carry out cadastral services under your direction?---Yes; could be required to, yes.
PN1702
Carry out surveys for production of photogramatic mapping and GIS development: you require him to do that, don't you?---We have, yes.
PN1703
Yes. And to have an application of analytical skills in assessing survey data accuracy and acceptability?---Yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1704
Calibrate, adjust and maintain survey equipment in good order?---
PN1705
Yes, sir?---Oh, sorry, yes. Yes.
PN1706
Yes, thank you?---I thought - thought you were ready for the next one.
PN1707
The transcript doesn't record a silent response?---Oh, my apology. Yes, yes.
PN1708
6 is to assist and review the work of other technical staff performing minor surveys or parts of larger survey projects?---Yes, but that's - that's meant to include the instrument hand and, at some stages, we have had additional labourers working with us or - whatever.
PN1709
Yes, but you put it in as a requirement and that - - -?---Oh, yes - no.
PN1710
- - - is the supervision of those persons, is it not?---Yes. No, no, no, I'm just explaining what it relates to, so - yes.
PN1711
Yes. Yes. Drafting of permanent mark sketches, investigation and other survey plans?---Yes, that's correct.
PN1712
Okay. He's to respond to inquiries seeking information from survey data bases?---Yes, that's correct.
PN1713
He's to compile, up-date and maintain Council survey related records to specified standards?---That's right, yes.
PN1714
And those specified standards are within the provisions of the Act - - -?---No.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1715
- - - and the Local Government Act?---No.
PN1716
They're not?---No. No. That relates to - we maintain records of the surveys we do. For instance, we have - well, that copy of the survey index that you've got there - - -
PN1717
Yes?--- - - - it's - it's actually almost superseded now, anyway. We've got a digital record of it, so every time there's a survey done of some sort or other, there's a record placed in that. There's a survey control data base which is downloaded from Natural Resources and Mines which gives us a listing of permanent marks. We maintain a library of survey field books and there's a library of survey plans that we've collected over a number of years. So there's a - information resources there that we - we - - -
PN1718
Okay. Yes. And so that falls into - generally found in precedence guidelines or instructions. It's instructions which he would be following? Yes?---So - hang on. Where are we there, again? Yes. Yes, yes, that's fine, yes.
PN1719
Yes?---Just lost me for a second.
PN1720
And participate in the activities of the technical service team?---That's - that's a new line in the PD that has been placed, I think, in every PD that's a - well, it's a bit of a - - -
PN1721
A capsule thing that - - -?--- - - - a bit of a motherhood thing to basically - - -
PN1722
Yes, okay. Okay?---I don't really know 100 per cent what it's supposed to mean.
PN1723
And then you indicate that the position provides relief, in the absence of the principal surveyor, to the extent of acting as supervising engineering surveyor?---That's right.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1724
You require him to do that?---Yes.
PN1725
He's got to be able to exercise a degree of judgment, not to the same complexity as what you - but you feel confident in him being able to relieve you in those periods of your absence, do you not, Mr Mowat?---Yes, yes. It was specifically put in there, that part about - to the extent of acting as supervising engineering survey so that other officers don't come and expect him to go out and do boundary type surveys in my absence.
PN1726
Well - - -?---Again, I'm not trying to belittle it but that's - that's why that exists there.
PN1727
Mr Mowat, that may exist there but you, yourself are aware that Mr Delarue is well aware of the constraints under the Act of him - - -?---Oh, yes.
PN1728
- - - performing boundary surveys, unless it's under your - - -?---Yes, but there's always the - - -
PN1729
- - - under your accountability?---There's always the temptation - there's always the temptation, when someone comes along, to say, well, all right, okay, I'll - I'll go and do it.
PN1730
And has he ever done that?---Well, once to my knowledge. Probably shouldn't have done a particular job but it - it was okay. It was okay. he didn't - didn't - didn't exceed - I was a but worried at first but it didn't exceed what he should have done, so - - -
PN1731
Did you take disciplinary action against him?---No. No. We spoke about it and it was - it was okay. Just when he initially told me about it, I sort of thought, "Oh, gee, no, he shouldn't have done that," but it was - it was all right. But that's just as an example of what could happen when someone comes along and puts a bit of pressure on you to do something.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1732
THE COMMISSIONER: Mr Buckley, that was the position description - just to confirm - that appears as JD6A?
PN1733
MR BUCKLEY: Yes, folio 11JD6A.
PN1734
THE COMMISSIONER: All right.
PN1735
MR BUCKLEY: And it was not agreed, that one, but it's what they proceed - - -?---Well, that's my understanding of it.
PN1736
THE COMMISSIONER: It was what was used for the assessment?
PN1737
MR BUCKLEY: What their - - -
PN1738
THE COMMISSIONER: Is that what you say, Mr Mowat?---Yes. This one was, yes. Yes, yes.
PN1739
Yes, that one?---That wasn't the - it wasn't actually an indication of agreement until August - later in the year.
PN1740
All right. That's - - -
PN1741
MR BUCKLEY: Now, I will conclude now and resume tomorrow - - -
PN1742
THE COMMISSIONER: Or - - -
PN1743
MR BUCKLEY: - - - or I can go on for a little bit longer and finish this witness.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1744
THE COMMISSIONER: Let's go, subject to how much Mr Beer has.
PN1745
THE WITNESS: I have actually got a copy of this.
PN1746
MR BUCKLEY: Sorry?---I have actually got a copy of this.
PN1747
You've got a copy of this? Well, good?---Way, way back, from ASU, yes.
PN1748
Now, Mr Mowat, in terms of the glossary of terms, then - - -?---Yes?
PN1749
- - - you're aware that it comes from the Queensland Local Government Officers Award, the agreed triune document which was put together by the Local Government Association, the Australian Services Union and APESMA. Is that correct? Do you have that? It's an extract from it?---Goes way back, yes.
PN1750
And the idea being, Commissioner, by way of brief explanation and not submission, is that the - in the translation, it enabled certain Councils who were trialing this to be able to translate persons from the old award to the new award and there were all singing from the same sheet of music in terms of what PDs were to get a uniformity across the industry. Now, did you apply these terms and their definitions to the descriptions of the work and the requirements of the PD and the award?---When? Sorry, but in - - -
PN1751
Well, in the review of the position. I mean, did Mr Stubbings and yourself and Mr leach and Mr Harvey utilise this tool for you to enable you to - - -?---I believe, when I initially wrote the PD, yes, definitely - - -
PN1752
Okay?--- - - - and at some stage in the review process, I have referred to it, yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1753
Okay?---In particular - in particular, further - later on in the review process, in particular, looking at that lack of supervision type stuff.
PN1754
Right. So you had available to you, then, Mr Mowat, a document which you could reasonably rely upon to be able to say that, by using a particular term, that's what you specifically meant and in relating to a reference document, you could say, "Well, this is what it says in the agreed document and that's why I used it."?---Well, only in the - whilst I have an old copy - because I don't know if this is an updated one or not - the copy I had dates back to '95 - - -
PN1755
Well, there's only - - -?---I'm not really aware of its standing or whether the terms and definitions in here really are held up - - -
PN1756
Well - - -?--- - - - you know, but, yes, I'll use it because - - -
PN1757
- - - Mr Mowat?--- - - - it helps makes sense of things.
PN1758
It's held up because - - -?---Well, I don't know .
PN1759
- - - the peak body - - -?---Yes?
PN1760
- - - the LGAQ and the unions have agreed to it as that document which they will both rely upon - - -?---Oh, right, okay.
PN1761
- - - in assessing and reviewing position descriptions and it's been used extensively in the Commission?---Yes. Right, but I - - -
PN1762
So you've had access to this - - -?--- - - - but I'm not - I wasn't aware of that but I thought it was quite good, yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1763
Yes. Did you have access to this when you were doing the review with your fellow panel constituents?---I don't know if they're aware of it or not but I certainly had a copy of it.
PN1764
Did you bring it to their attention?---No, I didn't have any cause to.
PN1765
Okay. So where we have, within the position - within the award, descriptions for level 3 moderately complex - would you just have a look on that first page and you've got "complex" - - -?---Oh, yes, yes.
PN1766
You've got "complex" and it tells you what it denotes?---Complex, yes, moderately complex, limited complexity, etcetera, yes.
PN1767
And moderately complex is to a lower degree than complex, less extensive, so the idea being is, if you say that, in your particular level, you would expect to find, presumably complex. Is that correct?---At times, yes.
PN1768
Okay, and in level 3 you'll get moderately complex and then limited complexity which is lower still, so there's a degree of descending complexity required?---Mm.
PN1769
And there's very complex which is out of order, but it's over the page; okay?---Okay.
PN1770
So there's a clear distinction on the levels in the award doing different degrees of complexity?---Mm.
PN1771
Okay. In terms of direction, which is on the second page - - -?---Direction, yes.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1772
There's "close direction, regular direction, general direction". General direction is the one which you've indicated to be appropriate?---Well, it's in both level 3 and level 4 and seems to fit - - -
PN1773
Yes:
PN1774
Officer who receives general instructions, usually covering only the broader aspects of the work. In some situations, detailed instructions may be necessary. The work of experienced and competent officers is subject to final checking -
PN1775
which you do?---In some cases, yes.
PN1776
Continuing:
PN1777
...and only as required progress checking.
PN1778
So you're quite happy in terms of putting that in to the position description?---That's right.
PN1779
That Mr Delarue can perform that work without you looking over his shoulder; otherwise, it would be close direction or regular direction?---Yes.
PN1780
Okay?---Well, basically at the beginning of things, it probably was close direction, regular direction - - -
PN1781
I'm not saying it wasn't?---No, no, I know, I just - but yes, it's progressed definitely - - -
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1782
Yes. That's general direction?---If I had to fit a definition, that would be appropriate.
PN1783
And that is one of the reasons why you indicated in your two memorandums was that Mr Delarue had indeed grown in the position and was at a level 4?---That's correct.
PN1784
And experience, take you to I think it's 88, it's shown as on the page; have you got that there, Mr Mowat?---Yes.
PN1785
You've got experience?---Yes, got that, yes.
PN1786
There's definitions there in regards to what is required and those are contained with the references to experiences within the award and the position description, and then if I could take you to the next page, Glossary of Terms, page 4 at the bottom there; knowledge - - -?---Sorry, page?
PN1787
It's right at the bottom, Knowledge, it's page - - -?---Oh, yes.
PN1788
Knowledge, gives you the general definition of it and then it defines the relevant areas?---Yes.
PN1789
And it says:
PN1790
Developing knowledge, a learning process which will lead to knowledge of.
PN1791
That's mentioned in your position descriptions, isn't it?---Probably is.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1792
Developing in - but then you've got sound knowledge, well founded, reliable?---Yes.
PN1793
Yes. And not just working knowledge which is just sufficient to perform the function which you're indicating that that's all you're expecting of him, but you're saying he's got to have a sound knowledge, well-founded, reliable; do you see that?---Sorry?
PN1794
Well, do you see that the sound knowledge is well-founded and reliable?---Oh, yes. Yes, sorry.
PN1795
And if you look at the PD which you work to, knowledge and experience, you put "thorough knowledge" in there which isn't defined - - -?---Yes.
PN1796
- - - so where does "thorough knowledge" go in; is it comprehensive or - I do beg your pardon. I withdraw that:
PN1797
Detailed thorough knowledge is complete.
PN1798
So it's a complete knowledge of general survey work, practices and procedures, and you've indicated there that he's got that. And 5, and which you said was an addition:
PN1799
A developing knowledge of geodetic calculation and adjustment -
PN1800
which is the learning process, so - - -?---It's an area - - -
PN1801
- - - you've got well-founded reliable knowledge in all the rest of the knowledge and experience, and a complete knowledge of the general survey work practices and procedures?---That's probably fair to say.
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1802
It is fair to say, and it's got to be said because that's what it says within the glossaries, Mr Mowat which you're familiar with. If I could just take it to page 7 which is one glossary term, "supervision". Now, in the area of supervision where it's stated, you've had general supervision, is that correct, in the PDs?---That's right, yes.
PN1803
So it's general supervision and you've actually referred to that term in your witness statement, haven't you, Mr Mowat, exactly as it's written there?---That's correct.
PN1804
Ongoing - not going into detail?---No better way of describing it.
PN1805
Yes. And that's why I suggest, Mr Mowat, that Mr Delarue's position relies upon him exercising within the defined constraints and within the parameters, required under the award, that he can do the job descriptions and the position requirements as under level 4, in exactly the way that you wish him to do, with general supervision, general direction and a sound knowledge or complete knowledge and without you having to worry about constantly supervising him or giving him direction and that you were quite truthful in your report assessment when you said that your original envisagement of how the role would develop would be that it would free you up to do other matters?---Yes.
PN1806
Mr Delarue has done that for you and you've made an assessment twice that he fits the level 4 requirement?---That's correct, based on the information I had at the time.
PN1807
No further questions.
PN1808
THE COMMISSIONER: Right, Mr Buckley. Mr Beer, it's up to you whether you want to proceed now, or in the morning. I have to be conscious to a degree that we're keeping the Registry staff downstairs, but it really depends on - - -
**** PETER NOEL MOWAT XXN MR BUCKLEY
PN1809
MR BEER: I'm happy to proceed now, though I probably will take some little time. It might be appropriate that we do come back tomorrow.
PN1810
THE COMMISSIONER: All right. How long do you think you'll be?
PN1811
MR BEER: Oh, it might be an hour.
PN1812
THE COMMISSIONER: All right. I think we should come back in the morning. We'll adjourn and reconvene at 9.30 in the morning.
PN1813
MR BUCKLEY: Commissioner, it may be that Mr Mowat is not aware of his requirement not to enter into any discussion with Mr Beer or any other officer of council while he is still a witness.
PN1814
THE COMMISSIONER: Well, I'm confident that Mr Beer is aware of it so - - -?---No problem.
PN1815
- - - Mr Mowat, you're still under oath - - -?---Okay.
PN1816
You're not to discuss your evidence with anyone?---All right.
PN1817
Thank you. All right. We'll reconvene at 9.30 in the morning. Mr Mowat, you're free to leave at this point, thank you.
PN1818
All right. What we'll do, we might go off the record. I'll adjourn these proceedings and we'll reconvene at 9.30 in the morning.
ADJOURNED UNTIL THURSDAY, 6 MARCH 2003 [5.14pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
JOHN MICHAEL DELARUE, SWORN PN33
EXAMINATION-IN-CHIEF BY MR BUCKLEY PN33
EXHIBIT #ASU1 STATEMENT OF JOHN MICHAEL DELARUE PN50
CROSS-EXAMINATION BY MR BEER PN59
EXHIBIT #2 TWO POSITION DESCRIPTIONS, ONE PRE-1995 AND ONE POST-1995 PN166
EXHIBIT #HINCHINBROOK SHIRE COUNCIL1 - DOCUMENTS PN170
RE-EXAMINATION BY MR BUCKLEY PN398
EXHIBIT #HSC2 TECHNICAL PERSON'S EXPERIENCE PN489
FURTHER CROSS-EXAMINATION BY MR BEER PN850
EXHIBIT #ASU2 DOCUMENTS PN866
WITNESS WITHDREW PN872
PETER NOEL MOWAT, SWORN PN879
EXAMINATION-IN-CHIEF BY MR BEER PN879
EXHIBIT #HSC3 STATEMENT OF P.N. MOWAT PN888
CROSS-EXAMINATION BY MR BUCKLEY PN1003
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