C2003/6661, Transcript of Proceedings [2004] AIRCTrans 2908 (28 July 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 3012

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

C2003/6661

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION

and

REDLAND SHIRE COUNCIL

Notification pursuant to Section 99 of the Act
of a dispute re alleged incorrect classification
of Senior Advisor positions within the Council

BRISBANE

10.03 AM, MONDAY, 19 JULY 2004

PN1

MR R. TARNAWSKI: I appear on behalf of the Australian Services Union and on behalf of the applicants, Ms Zuber and Mr Mayes. And with me is my colleague MS A.HERZOG. At this point, Commissioner, may I also request permission for - following their appearances if Ms Zuber and Mr Mayes can join us at the Table.

PN2

THE COMMISSIONER: All right.

PN3

MR S. BENNETT: I seek leave to represent the respondent, Redland Shire Council. With me is MS N. A'KHAVARI, my associate, initial N. and also MR G. LEWIS, who is a Human Resource Manager for the Redland Shire Council. I also seek leave in due course for MR HOELSCHER, the Senior Human Resource Manager for the Redland Shire Council to join us at the Bar Table after he's given his evidence.

PN4

THE COMMISSIONER: Yes. I don't know whether leave is required for the purposes of - - -

PN5

MR BENNETT: In terms of people sitting at the Bar Table.

PN6

THE COMMISSIONER: Yes.

PN7

MR BENNETT: Yes. No, I was just following - - -

PN8

THE COMMISSIONER: Yes, indeed. I don't know if you're creating some new mini procedure. Yes, all right. Thank you, Mr Bennett. Now, Mr Tarnawski.

PN9

MR TARNAWSKI: Commissioner, we object to Mr Bennett taking part in these proceedings. The significant reason is that we don't believe there's any matter at law involved in this issue. It's a very straightforward new classification.

PN10

THE COMMISSIONER: Perhaps if I hear from you, Mr Tarnawski. I will hear Mr Bennett set out why it is he says leave should be granted. Yes, Mr Bennett.

PN11

MR BENNETT: Thank you, Commissioner. Well, Commissioner, I will obviously take you as a starting point to Section 42. Clearly you have a discretion under Section 42(3) to give leave for the respondent in this matter to be represented by myself. We submit that the relevant paragraph there in this matter is paragraph (b). We don't suggest that this is a case that would come under paragraph (c) where this matter could only - the client could only adequately be represented by counsel or solicitor, but we certainly strongly submit that there are special circumstances in this matter that make it desirable and entirely appropriate for the Redland Shire Council to be legally represented.

PN12

I take you to a decision of the Supreme Court of New South Wales, if I may, Commissioner, a decision of Smart J in Leighton - sorry, the Commissioner for Main Roads v Leighton Contractors Pty Ltd. I've got copies for the Commission and my friend. It's a decision that is often cited in arguments of this nature. If I could take you to page 11 of that decision. Smart J there just outlines what he says - and I think it's been generally accepted in this Commission as being the matters that a Commissioner should consider in determining any application for legal representation.

PN13

And if I can use that as a guide for the submissions I would make. The first matter that Smart J there refers to is the amount in issue. Now, Commissioner, in this particular matter the amounts directly in issue are not immediately clear, but there is - it is clear there is significant potential for wage claims to arise out of this matter in the event that the Commission finds in favour of the unions' applications.

PN14

THE COMMISSIONER: Mr Bennett, these are directed, is that right, to 42(3)(b)?

PN15

MR BENNETT: That's correct.

PN16

THE COMMISSIONER: These are 42(3)(b) considerations.

PN17

MR BENNETT: That's correct.

PN18

THE COMMISSIONER: All right.

PN19

MR BENNETT: We say there are special - all of these amount to special circumstances which would justify legal representation for the respondent in this matter. So certainly there is significant potential for wage claims to arise, but in relation to the amount in issue of, if you like, the potential financial risk for the respondent in this matter, what you will hear during the course of proceedings is that the council has been through, at great cost and great investment in both time and money, an extensive process of position evaluation, known as the PDPE process, Position Description Position Evaluation Process through which they engaged an external consultancy to appropriately review and classify all award based position to ensure that the council was both complying with the award and maintaining appropriate relativities.

PN20

There is potential in this case, given the claim that is made by the applicants, to significantly unravel that process. So, in short, whilst there may not be immediately great financial amounts in issue in this particular matter the financial stakes, stakes for the respondent, are considerably high.

PN21

THE COMMISSIONER: That would always be so, wouldn't it? That would almost always be so in any classification exercise, one expects then, Mr Bennett.

PN22

MR BENNETT: Not necessarily, Commissioner. But this is a case where, in particular, the council has just been through a very extensive review process and classification process. That process, as you're well aware, has already been before this Commission. I don't wish to labour that point greatly, but it is a process that this Commission has already, to a large extent, sanctioned. And, again, I say these claims have the potential to significantly unravel that process. Needless to say there are other individuals within the council who would be watching this case very closely with a view to potentially bringing their own claims.

PN23

THE COMMISSIONER: That would always be so, wouldn't it, Mr Bennett? If someone has a right in relation to any benefit that they might enjoy under an award or an agreement or a contract or under a statute; if someone has a right to request that the fairness or the rightness or the analysis which has caused their position to be described in a certain way, if the person has a right to have that subject to review, then wouldn't it always be the case that others might say that points that are agitated in that - in whatever it is that goes to the determination of the rightness or wrongness or the fairness or the legislative fit and so on and say that they might - with justice or with no support from whatever that case might reveal - they might say that's something that I want to seek some succour from? I'm thinking in terms of whatever makes this singular.

PN24

MR BENNETT: I take your point. I take your point, but only to a limited extent. What is significant here is the size of the respondent. It is a very large employer in which award classification relativities are significant up to a very reasonably senior level of officer and, indeed, manager. That does make it slightly unusual. I take your point that there will often be flow-on effects from any decision of this nature. What I'm saying is that in this particular case my client, the Redland Shire Council, is faced with very - potentially very extensive flow-on effects.

PN25

THE COMMISSIONER: I thought your point was that great care had been taken, in this case, by the respondent to undertake at arm's length the necessary analysis as to these grading questions, and that the Council, for its part, has a firmly held conviction that the process can't be impeached, that it was a fair process, and that if it can be shown that it was - it miscarried in some way that then might lead to other claims, either mischievous claims or claims that were justified in some way.

PN26

MR BENNETT: Yes, that's correct, Commissioner.

PN27

THE COMMISSIONER: All right, yes.

PN28

MR BENNETT: I say that's particularly in issue given the size and the nature of the respondent.

PN29

THE COMMISSIONER: And that's one of the - that sets this case aside from others. That's an aspect that goes to - - -

PN30

MR BENNETT: Just in terms of that first - - -

PN31

THE COMMISSIONER: - - - special circumstances.

PN32

MR BENNETT: The first issue raised by Smart J, the amenable issue. I don't for one minute say that is the most compelling argument.

PN33

THE COMMISSIONER: No.

PN34

MR BENNETT: I'm just taking them in the order - - -

PN35

THE COMMISSIONER: Sure.

PN36

MR BENNETT: - - - that Smart J put them. The second one that he gives is the nature and complexity of the issues. Now, Mr Tarnawski has been quick to say that there's no particular legal issues to be considered in this matter. That's not strictly correct. There is a jurisdictional point which I do wish to raise, and I flagged that for the Commission in correspondence last week. But even leaving that aside - even leaving aside the jurisdictional argument which is a technical legal argument, we say that the careful assessment and application of the award classification provisions is not a simple matter. It is a complex matter, and it's a matter which my client has elected to involve me in to provide legal advice, again particularly having regard to the ramifications for my client.

PN37

The third point that Smart J raises is the nature and extent of the evidence to be adduced and the cross-examination likely to be required and this, I would say, is probably our most strong argument in favour of legal representation. Cross-examination will be a very important part of this case for my client, Commissioner. There is considerable dispute about the work which the applicants claim to do and particularly their assessment as to how that work relates to the award. But, more importantly, the matters, as you're well aware, Commissioner - one of my client's senior managers has actually been subpoenaed by the union in this matter. That is a delicate matter and it's a matter which will require careful management on behalf of my client, both in relation to the scope that Mr Tarnawski should have in relation to examination-in-chief of a witness in those circumstances and then, of course, in relation to our own cross-examination of that witness. We say that - - -

PN38

THE COMMISSIONER: There's nothing unusual in that, is there, Mr Bennett? I mean, aren't these characteristics increasingly one expects these days of cases in the Commission but certainly perhaps over the last 15 years or so?

PN39

MR BENNETT: Well, Commissioner, I'd say - whether it's unusual or not I'd still say it's a very serious matter for my client, very serious matter.

PN40

THE COMMISSIONER: There's no doubting the seriousness, I think that can be said, and one expects that the same might be capable of being said for - on behalf of the ASU in relation to its membership in a more general sense as it advances their industrial interests, but as to these two people. So, I must say, I put this debate out but I'm seized of the seriousness of the matter. It's a matter that does have some complexity. Complex matters - forget complex, this is - the submissions and the material go to make that out as eloquently as your submissions, Mr Bennett, but I do see that this is not an issue that's joined in some light-hearted way or a way which is other than serious. I do see that. I accept that.

PN41

MR BENNETT: And my submission specifically on this point, Commissioner, is that the examination and cross-examination of the witnesses, particularly Ms Culverhouse, is a matter that my client is reasonable entitled to seek to be legally represented for. In the case that I've referred you to, the Leighton Holdings case, Smart J says:

PN42

To deny legal representation where extensive or skilfil cross-examination is desired is to preclude any effective investigation of the opponent's case and this is unfair.

PN43

That is a sentiment that has been echoed and reflected in a number of other cases both in this jurisdiction and in other similar jurisdictions where issues of legal representation are raised. I would submit, Commissioner, that it is entirely appropriate for you to grant leave to the Redland Shire Council to be legally represented in this matter given the cross-examinatin and examination-in-chief of the witnesses required, particularly where a senior manager of the respondent has been subpoenaed to appear.

PN44

The fourth matter raised by Smart J was the capacity and willingness of the party to represent himself and his experience in doing so. Now, that is a significant matter in this case as well, Commissioner, because as you now know the Human Resource Manager for Redland Shire Council, Mr Noel Hoelscher, is a key witness in these proceedings. Mr Tarnawski has made it clear that he is not prepared to allow Mr Hoelscher to remain in the hearing room during other evidence, and that's understandable. That would mean that it would be extremely difficult for my clients to proceed today in the event that you disallow my representation of them.

PN45

THE COMMISSIONER: All right. On that point - I don't want to interrupt your submissions as you go along, Mr Bennett, but the presence of a witness will be something that's determined by the Commission. I take what you've just put really to be an indication to me as you pass along that Mr Tarnawski is opposed, it seems, to this witness.

PN46

MR BENNETT: And all I've said is that's understandable. I can't argue with Mr Tarnawski's opposition to that but, more importantly, in relation to Mr Hoelscher's own evidence there is the issue as to how he can present the case and be in the witness-box at the same time. Now, I know - you know, the Commission has ways of overcoming those issues but it is still a significant issue which should be taken into consideration in relation to legal representation.

PN47

Mr Tarnawski, in correspondence, suggested to my client that it should be represented by the Local Government Association. Now, with respect, we say that there are good reasons why my client could choose not to be represented by that Association. For one thing, that Association features in the applicant's case in relation to an alleged classification carried out by that Association of one of the applicants. So they are, in a sense, impugned in this matter by the complaint.

PN48

In any event, there are a number of cases. I hand up just two by way of example. These particular cases come from the Queensland Industrial Relations Commission but they're, nevertheless, very relevant on this point. One is the decision of Vice President Linnane, the other a decision of Commissioner Bloomfield as he then was. Both of those decisions involve situations where the respondent in those matters had previously, in earlier proceedings, been represented by an industrial association but had elected, as the matters proceeded to arbitration, to be represented by solicitors or counsel. For example, in the decision, of Vice President Linnane in Renee Maree Le Pierres v Andrew Herzfeld Pty Ltd, on the second page - towards the bottom of the second page, the Vice President says:

PN49

I note that in the conference stage of this application the respondent was represented ...(reads)... represented by that industrial organisation of employers. It is entitled to that view.

PN50

And, similarly, Commissioner Bloomfield in the James Hardie case, Barber Cement Pipes and Building Products Manufacturing (James Hardie Australia Pty Ltd) Certified Agreement decision, a case between the Australian Workers Union and James Hardie Australia. The Commissioner acknowledged about a third of the way down the second page:

PN51

In reply, Mr Bennett, importantly in my view -

PN52

he said -

PN53

... that whereas the company had previously been represented by an industrial organisation it had reconsidered its position in light of the issues involved and now sought to be represented by a lawyer in the arbitral proceedings.

PN54

Further down the page the Commissioner says:

PN55

The respondent now wishes to be legally represented. That position should be respected.

PN56

I don't suggest for one moment that - - -

PN57

THE COMMISSIONER: Perhaps could I ask you there, as I read on - and note that the Commissioner said - - -

PN58

MR BENNETT: I'm happy to - I have no problem with that, Commissioner. Yes, sorry. The full - - -

PN59

THE COMMISSIONER:

PN60

It is important that all parties -

PN61

No, because I'm going to refer you to portions of Vice President Linnane's - Vice President Linnane also goes on with some comments that I thought have really supported your position as to another aspect that you've already dealt with. But the Commissioner goes on and says:

PN62

It is important that all parties involved -

PN63

I'm just looking to see how the Queensland Commission seems to apply this notion of representation and leave.

PN64

It is important that all parties involved are comfortable with their level of representation. In this instance it appears that the company is now not comfortable being represented by an advocate.

PN65

So, for my purposes, special circumstances would in part turn, if I apply this notion, to the comfort - and I'm not trying to - - -

PN66

MR BENNETT: No, thank you. I appreciate that, Commissioner.

PN67

THE COMMISSIONER: Rely on that word in some unnecessary way, but - - -

PN68

MR BENNETT: That is the point that I'm really trying to draw out, that - - -

PN69

THE COMMISSIONER: We will just see who - someone seems to be breaking into our proceedings. We haven't really got under-way, Mr Bennett. We will just see who it is. My associate will deal with it. All right. So I'm not conscious of that sort of test ever being operative in the Federal Commission, I must say, but - - -

PN70

MR BENNETT: I must admit other than the decision of Leighton Contractors - which is not a decision in the Federal Commission, I realise, but has often been cited in the Federal Commission, which indicates that - Smart J, at the end of that section where he deals with the capacity and willingness of the party to represent himself, he says:

PN71

A body or a person should not usually be placed in a position where, in substantial matters, it has to employ some agent because it is refused legal representation.

PN72

So there is that issue, I think - theme coming through the cases of a party not being prejudiced by not being able to be represented by the representative of their choice. The other question - the other points raised by Smart J are not so directly relevant to this case. He specifically refers to the questions of law which are likely to arise. We've already dealt with that. And whether granting leave is likely to shorten the length of the arbitration and reduce the costs of the arbitration. Smart J, himself, acknowledges that that can often - - -

PN73

THE COMMISSIONER: You had better be careful how you deal with this one, Mr Bennett.

PN74

MR BENNETT: - - - can often go either way. And, of course, the costs of a legal representation are not really relevant in this particular matter. Yes, Commissioner, there was only one other point and that is just going back to this issue about the respondent having elected to be represented by myself - have legal representation in this particular matter, notwithstanding having been represented by the Local Government Association in similar matters previously.

PN75

But it is important - there is a very significant, if you like, change of attitude in relation to this matter which my client flagged very clearly to the union when the previous issues were being aired before Commissioner Richards. And at that time the Council was represented by the LGA and, of course, those matters proceeded by consent. The Council made it very clear that it was effectively treating those matters as a litmus test of the PDPE process, but having been through that process and effectively having had the process fairly strongly approved it made it very clear to the union that it would not be taking the same sort of approach and it would be adopting a much more defensive approach in relation to any further claims.

PN76

I don't suggest that the Commission should necessarily take any view either way about that, except to say that I believe it shows that the respondent very clearly flagged that it was going to take a harder line. We've talked already about the potential for flow-on claims and potentially a floodgate of other claims and I respectfully submit that that's a matter that the Commission should take into consideration in having regard to my client's decision to be legally represented in this matter.

PN77

It has already played, if you like, a co-operative industrial approach in relation to a number of claims that arose out of the PDPE process. Having been through that and co-operated through that process I believe its decision to now take a harder line and press these matters as far as it possibly can should be respected. And I believe - - -

PN78

THE COMMISSIONER: I don't know whether that's relevant for leave, though, Mr Bennett, you see. It might be that you can - with all the reality that hopefully does pervade, Industrial Relations says, "Well, this is a phase three case. We're not pussy-footing around early on and we're not doing a whole range of other things. We're here and we're standing very upright and saying we resist these claims and we are concerned that there is some chiselling coming in to try and overturn what we regard as a tremendous system and it's something that we've invested a lot of time and money in".

PN79

And I understand that. In relation to leave, though, it strikes me that - well, whether the union or the council strongly resist or only partially resist or resist with a tough look on their face or all the sorts of different attitudes that you can have when you come along to the Bar Table here, I don't know whether it's relevant for leave. Because from my perspective, from the Commission's perspective, there's only really one issue here in all this and that is not how well - and how well spent was the money and how tight was the analysis or whether it's wrongly impeached or whether there are, in fact, some stalking horses or all those sorts of things, but rather in relation to these two people aspects about how they are to be graded from now on.

PN80

Now, that issue, the rightness of something or the various - no, I won't try and characterise it in too many ways because it might be that that will cast a shadow over what is yet to come. But it's - the consideration of those issues is like a guilt or innocence in an entirely different environment that perhaps you might be more familiar with - is a matter for judgment.

PN81

It's not a matter for - about which one looks and says, "What's the vigour with which this is being put? How much spirit is there behind the submission? How much oomph is there in their determination to resist a claim?" It's where is the justice of a particular case. It strikes me that that's always the key aspect, not whether you are 99.9 per cent of a warrior on the day or a 102 per cent warrior, as I can see that you want to be seen as being today.

PN82

MR BENNETT: Yes. With respect, Commissioner, I differ with you when you say that that's not relevant to your decision as to whether to grant leave. I mean, Section 42(3)(b) talks about whether there are special circumstances that make it desirable - - -

PN83

THE COMMISSIONER: Yes.

PN84

MR BENNETT: - - - that a party be so represented. And I would submit that particularly for those decisions from the Queensland jurisdiction that I referred you to, but also Smart Js analysis as well indicate that where a party has, with good reason after careful analysis, particularly having regard to the way a matter has progressed, elected to be represented legally. That is a matter which the Commission might regard as a special circumstance in itself. We say, and it's interesting Commissioner Bloomfield says, that's something that's certainly got to be taken into consideration if it's not enough on it's own. We're not suggesting for one second that that is the only issue here. We've made it very clear that we think there are other very significant circumstances.

PN85

THE COMMISSIONER: Yes.

PN86

MR BENNETT: But, cumulatively, our submission is when you take all of those matters together you would find that this is a case where there are sufficient special circumstances to justify the granting of leave.

PN87

THE COMMISSIONER: Yes.

PN88

MR BENNETT: May it please the Commission. They're my submissions.

PN89

THE COMMISSIONER: Yes, thanks, Mr Bennett. Thank you. Now, Mr Tarnawski, that gives you something to - some ice to skate on.

PN90

MR TARNAWSKI: I haven't been convinced to withdraw the objection, Mr Commissioner. It's all right to quote (b) in isolation, however, I believe that (b) should be read in the context of the whole clause:

PN91

A party including an employing authority may be represented by counsel, solicitor or agent providing the following conditions apply: By leave of the Commission with the consent of the parties.

PN92

Well, obviously, that does not exist, and to that matter can I just preface by saying that at each conference when I allowed Mr Bennett to appear I raised the issue that should this matter go to full proceedings that I would not - and I would object and I would not agree to consenting to the appearance. I have discussed it verbally with them on a number of occasions, with Redland Shire Council, that we would object. Ample opportunity was given, including my correspondence to yourself and a copy to Redland Shire Council, that we would be objecting to this matter.

PN93

(b) By leave of the Commission granted on application made by a party if the Commission is satisfied that having regard to the subject matter of the proceedings there are special circumstances that make it desirable.

PN94

I put it to you that the Redland Shire Council in its application for leave has stretched the bounds of consideration in relation to this clause.

PN95

As I said earlier, this is not rocket science. We are discussing a situation where there were two people aggrieved who weren't able to participate in the PDE process that the Redland Shire Council makes great claim to. It's two years old, and if someone wants to convince me the roles haven't changed in the process of six months, let alone two years, then, you know, I'd be very surprised. And, three, which obviously we concur, has been available to them and was afforded to them and it was chosen not to participate.

PN96

In relation to - I'll just put a point forward that in respect of the PDPE process that there are great claims to its success, on their own admission in their submission, 176 positions were appealed after going through that process of which 51 - 51 were upheld internally.

PN97

THE COMMISSIONER: Yes, I'm aware of that.

PN98

MR TARNAWSKI: Now, the right of these two individuals, having not been able to participate in that, obviously there are flaws in the process otherwise the appeals wouldn't be upheld on the way here. And finally, may I just say I find it difficult to understand where Redland Shire Council is coming from in respect of this matter. Had we dealt with this in a civilised way, had I been able to communicate and sit around the table with Redland Shire Council and not just be told in the correspondence which I'm sure that you've seen, the two reasons why the appellants were not even to be considered, withdrawing an evaluation of their positions in the middle of the process because it's not a new position or role and there's been no - according to them, no significant change to the role or position. And that's why we're here. Every door with Redland Shire Council to negotiate this matter as an anomaly has been shut to the union.

PN99

Now, in respect to legal representation, Mr Commissioner, can I just say that I would have to get instructions should you go that way because I don't think it's reasonable that - this is an industrial forum, it's not a court of law - as I said before, it's a matter of judging the role statements - what's required of these people against the descriptors within the award - again, I don't believe that's rocket science no matter how complex.

PN100

It's not our fault that Redland Shire Council wanted to make this thing as complex as they possibly could, and I would have to get instructions - should this precedent be given on such a spurious matter, I would have to get instructions, with your leave, to see where I stand, because I'm not a person at law, I'm an industrial officer with the Australian Services Union and much to - I will make the statement - this is my first arbitration case and my only experience prior to this is in conference. And I think, if there is going to be a disadvantage, then that test should be relayed back to the two appellants in terms of their representation if you go to such a harsh extent. Thank you.

PN101

THE COMMISSIONER: Mr Tarnawski, do you want to say something - I'll just give you the opportunity, it might be that it slipped your mind, Mr Bennett addressed the issue of Mr Herzog - I hope I'm getting these names right - Mr Hoelscher, some representational issues, and it wasn't really teased out in a great deal of detail, but it seems to be that Mr Hoelscher - you know, Mr Lewis is at the Bar table and Mr Lewis is a person with whom I've had some dealings in some of the mechanical aspects of setting this case up and I think some dealings, in turn, with you. It seems that Mr Lewis is not able to take the case and Mr Hoelscher is the person who, if I understood what Mr Bennett put correctly - Mr Hoelscher is the person who would be the advocate in the event that Mr Bennett's application for leave is not accepted.

PN102

MR TARNAWSKI: Well, two points. I mean, I don't think Mr Lewis is ignorant of the process. He does come from a very extensive HR background in Queensland Rail. But, on the matter of Mr Hoelscher, I sought advice from my colleagues. There is precedent, and a number of precedents, to allow Mr Hoelscher to give his evidence first which would then free him up to participate at the Bar table. It's happened on a number of occasions as far as my colleagues are concerned.

PN103

THE COMMISSIONER: Do you mean he'd go first. You don't mean go initially, do you?

PN104

MR TARNAWSKI: Correct.

PN105

THE COMMISSIONER: At the very outset of the case?

PN106

MR TARNAWSKI: It's been done previously. Whilst it's not desirable, it has been - there are precedents that have been set according to my colleagues. I don't have the cases. I'm not privy to the actual cases but it has occurred, if that's the wish of the Redland Shire Council. But I just want to make the point that it's not as if this comes as a shock to them that I would be objecting.

PN107

THE COMMISSIONER: No, I understand that point, Mr Tarnawski. All right, thank you. Mr Bennett, is there anything you want to say?

PN108

MR BENNETT: Only, Commissioner, that that last proposal would be completely unacceptable to my client. It's not appropriate, we say, for Mr Hoelscher to give his evidence before the applicants.

PN109

THE COMMISSIONER: Now, Mr Bennett, it's the intention, is this right, of the Council to make the jurisdictional objection that was received in my chambers on Friday afternoon? Is that so?

PN110

MR BENNETT: Yes, Commissioner. That's not intended to be a particularly long-winded objection at all but we do wish to raise an objection in relation to the application of section 89A.

PN111

THE COMMISSIONER: Yes. And do you say that's a reason which also grounds your application for leave?

PN112

MR BENNETT: We do say that in itself is a complex legal issue and that's, of course, one of the range of factors for your to consider.

PN113

THE COMMISSIONER: Yes, all right. Thanks, Mr Bennett. I'm going to grant leave, Mr Bennett, to you and in doing so I indicate that the Commission's sole interest in this case is to hear if the matter, subject to whatever this jurisdictional obstacle is, is to hear what it is that's said for these two people and to hear what's said by the Council. Now, in accepting on very fine balance that your application for leave - I must say, I don't - it shouldn't be thought that I've accepted some of these grounds that have been put up there. These issues turn on a case-by-case basis, as much as anything, it seems to me. The Commission is not a court. It's a lay tribunal, and it has been since 1904. Well, perhaps it wasn't in 1904, but it has been for a very long time. The way we deal with evidence and the way we investigate the rightness and wrongness as that affects industrial matters is something which, I think, doesn't always lend itself happily to importation of principles.

PN114

So I don't accept some of the things that go - someone said, accepting Mr Bennett's lead, goes to somehow show that these things are thought to be right. Well, that wouldn't be so, but there does seem, to me, some practical complications - I don't know that they're insurmountable - in the presentation of the Council's case, and I wouldn't want it thought that any such issues, peripheral issues, went to make any more difficult, really, the illumination of what it is said, of the one part, requires review and to see the rightness of this - the position advanced by the ASU and, of course, of the other part, so ferociously restricted by the Council, to understand the way you've put your submissions.

PN115

So, Mr Bennett, leave is granted. Now, Mr Tarnawski, if, as we go along - I'll be cautious to endeavour to make sure that Mr Bennett's appearance doesn't disadvantage you in some way because, true it is, there are alternatives - representative alternatives available to Mr Bennett's firm. They are the industrial organisation to which this Council is a member, as well as the, I would have thought, skilful specialists that are engaged by the Council. But, equally, you are a representative of a registered organisation.

PN116

If you are concerned at some stage about the procedure or some particularly wily thing that you think is being done by Mr Bennett, and I don't seem to have become alert to it, you can say something, if you wish to, all right, because it may be a complex issue, there may be costs involved, and all those things. If you've got any difficulties as we go along, you tell me.

PN117

MR BENNETT: Yes.

PN118

THE COMMISSIONER: Of course, we're not there yet. There are some more difficulties for you. Mr Bennett is about to, I think, address on those. Are you, Mr Bennett?

PN119

MR BENNETT: Thank you, Commssioner.

PN120

THE COMMISSIONER: Mr Bennett, I might say I was surprised to receive that communication when it was given to me on Friday afternoon. It struck me as late.

PN121

MR BENNETT: I appreciate that, Commissioner.

PN122

THE COMMISSIONER: Just late, generally late.

PN123

MR BENNETT: And, indeed, it was, and I hope I made my apology in that regard clear - - -

PN124

THE COMMISSIONER: Well, you did.

PN125

MR BENNETT: - - - in the correspondence. And I think, particularly having regard to that, I don't intend to be long-winded on the point and I don't, for one moment, suggest that you should treat it as a separate threshold matter. I am assuming, particularly given the lateness of its being raised, that you will proceed to hear the matter in its entirety, but I would ask that you would give consideration to the point that I wish to raise. And that's - - -

PN126

THE COMMISSIONER: All right. Well, I'll just you to pause there, Mr Bennett, because that is - it's interesting to hear the way you put that. I had, in my mind, to ask Mr Tarnawski, indeed, whether he was ready to run, to counter you, and I say this before I hear, but it might be that your submission is going to be a brief one on this point, or it's not going to call up very many cases or be of a particularly complex nature. I just don't know, and that's why I've interrupted you to say this, but I suspect now that it won't. But it's - whether there's a concession in the way you've put your submission already is something that I can't be too sure of. It strikes me that perhaps there is, that is that you don't see this as a threshold submission that is required to be dealt with.

PN127

MR BENNETT: Yes. I do need to clarify that, and I appreciate you questioning it, Commissioner. I'm certainly not making a concession about the validity of the point I wish to make, but the cases that I will refer you to have, themselves, indicated that these sort of jurisdictional arguments are probably best considered in the light of hearing the full case, that, indeed, what needs to be assessed by the Commission is precisely what is the nature of the case that's being brought and that, perhaps, in fairness to all the parties, you can only properly assess that, having heard the case in its entirely.

PN128

THE COMMISSIONER: Yes.

PN129

MR BENNETT: And in that regard, that was the point I was wishing to make, was simply that I - - -

PN130

THE COMMISSIONER: I see.

PN131

MR BENNETT: - - - am not suggesting that this should be treated as a threshold issue. We are here and ready to run the whole matter.

PN132

THE COMMISSIONER: Yes.

PN133

MR BENNETT: That was the point I was wishing to make.

PN134

THE COMMISSIONER: Yes. All right. My concern was that with - I don't know what time on Friday Mr Tarnawski received this, but it may simply make - - -

PN135

MR TARNAWSKI: I received it this morning, this submission.

PN136

MR BENNETT: Well, with respect to my friend, I did send it early on Friday morning at the same time as I sent it to the Commission and I, in fact, had a telephone conversation with - - -

PN137

MR TARNAWSKI: Yes.

PN138

MR BENNETT: - - - Mr Tarnawski late on Friday to draw it to his attention.

PN139

THE COMMISSIONER: Yes.

PN140

MR BENNETT: But, nevertheless, I hear and take the point that we have raised this as a late matter and if that means that Mr Tarnawski needs to seek some appropriate opportunity to respond, then, of course, we would understand that.

PN141

THE COMMISSIONER: Yes. All right. Well, off you go.

PN142

MR BENNETT: Thank you, Commissioner. Commissioner, the issue arises, I think, specifically, out of the first paragraph of the union's submissions wherein they suggest that the LGA advocate had agreed that it was appropriate for this matter to proceed as a Section 99 dispute. Now, I'm not sure exactly what the union is referring to in saying that but, certainly, my instructions are very clear that the Local Government Association advocate had no instructions from the Redland Shire Council to make any such agreement.

PN143

If it is that the union is referring back to discussions that went on as a prelude to the various matters that were then dealt with by Commissioner Richards, my instructions are that it was made clear that that concession related only to those specific matters and that the Council clearly reserved to itself the right to vigorously defend any subsequent claims. And that is, indeed, what it is doing. Now, the matter, then, is before you as a Section 99 dispute, and Section 120 of the Act indicates that you have quite a wide discretion to make award or orders to try and resolve the dispute.

PN144

But Section 120 opens with the words, "Subject to Section 89A", and my submission on jurisdiction goes very specifically to the role in this matter of Section 89A. Section 89A specifically limits the jurisdiction of the Commission in dealing with industrial disputes, and it says that the dispute is normally limited to allowable award matters. Section 89A(2) lists the allowable award matters, and the one that is relevant to us is right up front, paragraph (a), "Classifications of employees and skill-based career paths".

PN145

Now, this sort of jurisdictional argument has been raised before the Commission in the past, specifically in the case of CEPU v Telstra Corporation, a decision of Commissioner Holmes, and in that case the respondent, Telstra Corporation raised two jurisdictional issues: one - the one that I've just flagged in relation to the scope of section 89A; the other jurisdictional issue which I'll raise in passing just for completeness, was an argument that in addressing this sort of case in addressing a claim that a person has been wrongly classified, the Commission was actually exercising judicial power of the Commonwealth rather than arbitral power. Now, that jurisdictional issue has been firmly dealt with and put to bed, I think, by a - - -

PN146

THE COMMISSIONER: That is the first bold submission you've made, Mr Bennett. I'm sure that it'll be revived. I don't invite it to be revived now.

PN147

MR BENNETT: I don't intend to revive it at this point. It has been dealt with by a Full Bench in Health Services Union of Australia v Dorevitch Pathology. That's the case I've just handed up to you, and, as I say, I don't intend to pursue that issue. But I do raise for you that the other issue, the section 89A issue was also raised in the Dorevitch case at first instance, and in fact in that case the Commission at first instance found that he did not have - that the Commission did not have jurisdiction, and he found that based on the judicial power argument, and it was the judicial power argument that was then overturned by the Full Bench.

PN148

Interestingly, the section 89A argument was raised before the Commission at first instance but not dealt with because the Commissioner had already found that he didn't have jurisdiction because of the judicial power argument, and as a result the section 89A issue was not dealt with at all by the Full Bench. So there is not, at least as far as our research goes - there is not a Full Bench authority in relation to the section 89A issue.

PN149

I return then to the Telstra case, which also dealt with both of these jurisdictional arguments, the judicial power argument and the 89A argument. Now, in this Telstra case, the Commission found that the section 89A argument was not successful in excluding the Commission's jurisdiction in relation to a classification matter very similar to the matter before you today and so you may well say, well, that's the end of it, the Telstra decision answers the question for me. But, that's - - -

PN150

THE COMMISSIONER: Whereabouts are you there? I'm sorry, Mr Bennett, I've momentarily - can you repeat that point, please?

PN151

MR BENNETT: Yes. I've isolated the two jurisdictional arguments, one being the judicial power argument and the other being the section 89A argument. Commissioner Holmes, in the Telstra case, found that the section 89A argument, did not exclude the Commission's jurisdiction, so it found against me if you like in terms of the argument I'm wanting to put. My submission to you is that Commissioner Holmes decision, with the greatest respect to the Commission, is distinguishable in this matter and it does not in any way bar you from finding that the claim that's brought by the union in this matter does not fall within the allowable award matters listed in section 89A(ii). I say that because there's much argument in the Telstra case about the phraseology of paragraph (a) of section 89A(ii) which reads:

PN152

Classifications of employees and skill-based career paths.

PN153

It seems to me to be generally accepted by the Commission that that phrase has to be read as a whole. And in the Telstra case it was able to be read as a whole because of the context in which that case was brought. The context of that was the introduction of a new organisational structure for the field service group of a particular division of Telstra. We're actually talking about a case that arose in the context of the introduction of a whole new structure for the organisation.

PN154

The case the ASU has brought before you today doesn't arise out of any re-organisational restructure of the respondent Council. They are isolated claims to the effect that two particular individuals, or two particular individual positions have been incorrectly classified.

PN155

THE COMMISSIONER: They had their genesis - I know I'm going to hear more about this - in the PDPE exercise and there's a great deal of restructuring and recasting of responsibilities. Going through the papers one sees that, but there's the feel that Redland is - I don't say it's ploughed all the time, but there seems to have been some tractor work being done. There have been reassessments and recasting and restructuring, and positions have altered and - - -

PN156

MR BENNETT: Well, as Mr Tarnawski was quick to say earlier, that was now a couple of years ago.

PN157

THE COMMISSIONER: Yes, that's right.

PN158

MR BENNETT: And our case is still that that whole process is at risk of unravelling because of these claims.

PN159

THE COMMISSIONER: I understand that, but your position now is, is this right, is that from the settled field come these two claims, and you're drawing a distinction between the Telstra case that Commissioner Holmes was dealing with where the issues before him arose in an environment where there was a new structure and it was a broader - - -

PN160

MR BENNETT: It was a case of a new organisational structure which we say is consistent with the operation of section 89A(ii) that the power that's granted to the Commission to deal with disputes is a power in the nature of an award making power setting up, if you like, classification structures and skill-based career paths, rather than what is being sought in this matter which is not the establishment of a career structure but rather the Commission to rule whether particular employees should be appointed to particular positions within the classification structure.

PN161

So, our submission is that what's sought by the union in this case does not come within section 89A(ii) in that the reference to skill-based career paths depends on the creation or definition of those classifications. We say that this is consistent with the industrial usage of the phrases "classification of employees" and "skill-based career paths", and that that interpretation is consistent with the structure of the Act.

PN162

THE COMMISSIONER: Of course it's classifications of employees, isn't it, and, Mr Bennett - so does that mean then that it would be within power to make an award which has a structure which meets the needs of an industry efficiently and causing a boon to productivity and having regard for all those general objects of the Act, so the Commission could go about its task legitimately and make an award which contained a classification structure and had regard in doing so for skill-based career paths.

PN163

MR BENNETT: That's right.

PN164

THE COMMISSIONER: And having made it, you'd then - the Commission would then be removed, as it were.

PN165

MR BENNETT: That would appear to be the intent of the legislature, yes, Commissioner.

PN166

THE COMMISSIONER: All right. And that's - and you contend for that? Do you say that's the way it should be seen?

PN167

MR BENNETT: That is my submission, Commissioner, yes.

PN168

THE COMMISSIONER: All right. Because I note that the principal objects direct one's attention to the Commission being required to ensure the maintenance of an effective award safety net, and of course it refers to fair and, if possible, minimum wages but also conditions of employment. And unless one thinks that works is static, and I suspect that there'd be support for the general proposition that it isn't static, it does change and it does require review from time to time, the conclusion that one would have to be content with from what you put a moment or two ago is that one could make an effective safety net of minimum wages and conditions of employment and then step away from it in so far as it related to classifications of employees.

PN169

MR BENNETT: Yes, Commissioner, except that as I understand the union's case here, there's no suggestion that there's anything wrong with the classification structure. This is very much a case that the respondent union has just misapplied the classification in these two particular cases.

PN170

THE COMMISSIONER: The employer has? Yes, I'm saying there's no - - -

PN171

MR BENNETT: The respondent employer.

PN172

THE COMMISSIONER: Yes. That's right. Or possibly, one doesn't know, but equally it might be that the Commission should vary the award. You see, I'm dealing with the award in so far as it affects Redland Shire Council. And that might - - -

PN173

MR BENNETT: With respect, that's not part of the union's claim at all.

PN174

THE COMMISSIONER: No. But, of course, you've drawn my attention to the fact that relief is not limited.

PN175

MR BENNETT: Except by Section 89A.

PN176

THE COMMISSIONER: That's right. So in so far as classifications are concerned and skill based career paths, in giving effect to the fairness - going back to the principal objects, but also what those concepts that are sought to be encapsulated within 89A(a) to - that is classifications of employees and skill based career paths, you would say the Commissioner is not at large to vary the award?

PN177

MR BENNETT: I would in this case, Commissioner. I would, because, of course, this is not an award that's limited in its operation to this one employer.

PN178

THE COMMISSIONER: Yes. I should have said in so far as Redland Shire Council is concerned.

PN179

MR BENNETT: There's a great number of other parties who would be very significantly affected by any change to the classification structure - - -

PN180

THE COMMISSIONER: Yes.

PN181

MR BENNETT: - - - even, dare I say, a change that purported to be limited to Redland Shire Council.

PN182

THE COMMISSIONER: Well, yes. But in so far as Redland Shire Council is concerned - and I will ask you to put to one side this giving of notice to those other parties so they can come along to be heard. But - and I'm trying to apply - invite you to put your submission, because it's a principal submission really, as it might apply, say, to a house award where there aren't such considerations as other employers. So you say the Commission - what's advanced is that the Commission can make the classification structure having regard at the time, presumably, of making an award - having regard for career - skill based career path - I think I'm jumbling up those concepts, so I suspect you probably can - and then you're constrained.

PN183

MR BENNETT: With respect, Commissioner, I think this comes back very firmly to the point I was making earlier about the concession that the Commission should hear the whole matter, because I think you've got to the nub of the matter. You need to determine what is the case that's being run by the union. My understanding of the case that is being run by the union is that there's no suggestion whatsoever that they wish to change the classification structure. There is nothing in their material that suggests they have got any issue with the classification structure. Their issue is solely - simply limited to the suggestion that the Council has got it wrong.

PN184

THE COMMISSIONER: Yes, but you're putting a submission which is of a different sort, it strikes me, Mr Bennett. You're putting a submission from a slightly elevated point which, to some extent - and you've referred me to 120 - disregards the submissions that might be put possibly even in error, possibly well intended, but misconceived submissions. But you're talking now about powers, aren't you? And so it strikes me that what you're saying is that the Commission wouldn't be able to vary its award, having made an award - - -

PN185

MR BENNETT: No, sorry, I must stop you there because - - -

PN186

THE COMMISSIONER: Yes.

PN187

MR BENNETT: - - - I'm certainly not saying that.

PN188

THE COMMISSIONER: I see.

PN189

MR BENNETT: And if, at the end of the case, you took the view that what you were being asked to do was to vary the classification structure, then I couldn't argue that that was a matter that was outside Section 89A(a)(ii). But my understanding of the case that is being put to you is that that is not the case at all; that what you are being asked to do is apply the classification structure to particular individuals. Dare I say, you're actually being asked to apply it to two individual persons, not even to individual positions, but that's a matter that will develop during the course of the hearing.

PN190

But my submission on jurisdiction is strongly this. If that is what you are being asked to do, to apply the classification structure to two particular individuals or indeed their positions, then that is not a matter which properly falls within Section 89A(2)(a), generally classifications of employees and skill based career paths.

PN191

THE COMMISSIONER: And why wouldn't the classifications of two employees be caught by the phrase "classifications of employees"?

PN192

MR BENNETT: Because we submit, consistent with the arguments put by Telstra in the Telstra case, that what's intended by the legislature in relation to 89A(2) is for the Commission to have power over the establishing of classification structures and skill based career paths, not the direct interpretation and application of a particular classification structure to individuals or individual positions.

PN193

THE COMMISSIONER: Well, how do we - what about the maintenance of - the effective maintenance or the maintenance of the effectiveness - I will move those words around - in either construction, Mr Bennett. That's given as a principal object of the Act, to have an award safety net that has several characteristics.

PN194

MR BENNETT: To maintain the safety net, to maintain the classification structure and the appropriate relativities, but not to apply it to individual cases. That is my submission.

PN195

THE COMMISSIONER: Yes, all right. I see.

PN196

MR BENNETT: I'm not sure that I can take - - -

PN197

THE COMMISSIONER: No. Mr Bennett, are you aware that the National Wage Bench - a shorthand term that I've used - has in the Commission's wage fixing principles - has a - - -

PN198

MR BENNETT: A work value principle.

PN199

THE COMMISSIONER: - - - a work value principle.

PN200

MR BENNETT: Yes. I want to take you to the work value principle later.

PN201

THE COMMISSIONER: Well, do you say it's relevant on this point?

PN202

MR BENNETT: Well, no. Sorry, do I say it's relevant to this point?

PN203

THE COMMISSIONER: Yes.

PN204

MR BENNETT: No, I don't. I would say that the work value principle is intended to apply where there is a change in a position to such an extent that it necessitates an adjustment to a classification structure; some alteration of the relativities. And, indeed, the principle makes it very clear that that's a power that should be exercised very carefully because of the potential for leap-frogging and the inevitable flow-on effects of a change to a structure.

PN205

THE COMMISSIONER: Yes.

PN206

MR BENNETT: Again, I come back to - that my submission is clearly the change to the structure is within the Commission's power under 89A, but the mere - I shouldn't say mere - the application of the structure - a judicial, if you like, determination as to whether a particular position fits within the existing structure. Bearing in mind that our case is that these positions haven't changed. This is - on our version of events this is simply an application by the union to have the Commission assess two particular positions.

PN207

It's not a work value case to that extent. We say there hasn't been a change in these positions. It's certainly not a case that should necessitate the Commission reviewing the classification structure. And, as I say, my understanding of the union's case is that they are not seeking that. They are simply seeking to have the union - sorry, to have the Commission apply the existing classification structure to two particular individuals.

PN208

THE COMMISSIONER: Yes, thanks, Mr Bennett. Is that all you wanted to put?

PN209

MR BENNETT: That's all I wish to put.

PN210

THE COMMISSIONER: Thank you. Now, Mr Tarnawski, I want to first ask you - you've heard the way Mr Bennett has put the beginning of his submission and that is that he doesn't oppose the case going ahead and there's a balance of convenience notion that he's introduced. I won't say anything about it, but - so it strikes me that if you thought you were disadvantaged by the late arrival - although Mr Bennett says you had perhaps most of Friday - I don't know how much of Friday you had - the late arrival of the news of the objection to prepare your response to what's been put - now, I don't know that there's any great need to hear you on this point now. Alternatively you've heard - I don't know how full your discussion was or your dialogue with Mr Bennett on Friday - but if you would like a short adjournment now to put something, if you want to put something, then I would be very likely to grant it. I would also be very likely to have a cup of tea while you - during that adjournment.

PN211

MR TARNAWSKI: I would appreciate that. Yes, I would need to seek some advice, Commissioner - - -

PN212

THE COMMISSIONER: All right.

PN213

MR TARNAWSKI: - - - because the simple issue - I wasn't drawn to the actual case studies. The simple issue when I took it to our senior advocate this morning, he confirmed with me that the application of the award with these classifications is what we are seeking. The only reason that the individuals are involved is because, unless there's somebody in there flagging a grievance, we're never to know. If it remains a vacancy, then no one is disadvantaged and no one is in the shoe. It happens to be two individuals, but the roles themselves have role descriptions which we feel the wrong classification has been applied to.

PN214

THE COMMISSIONER: Yes. All right.

PN215

MR TARNAWSKI: So if I could seek - - -

PN216

THE COMMISSIONER: How long would you like to have, Mr Tarnawski?

PN217

MR TARNAWSKI: I'd like 15 minutes, if I may?

PN218

THE COMMISSIONER: All right. Well, 15 minutes is a happy amount of time for the purpose I'm going to put to it, and the Commission will adjourn for 15 minutes.

PN219

MR TARNAWSKI: Thank you, Commissioner.

SHORT ADJOURNMENT [11.13am]

RESUMED [11.38am]

PN220

THE COMMISSIONER: Yes, Mr Tarnawski?

PN221

MR TARNAWSKI: Commissioner, I sought instructions from my superior. Basically, we're not in a position to be able to - for obvious reasons, to debate a jurisdictional argument. There are two options, I suppose, that he's presented, that we proceed and raise the - and address the jurisdictional matter later on, but if you feel uncomfortable with that, Commissioner, we can - and feel more inclined because of the issues raised to dismiss the appeal under Section 131, we would certainly be back, anyway, under Section 131 through a board of reference, both under the provisions of the Act and also the relationship between my members and through the enterprise bargaining agreement at Redland Shire Council.

PN222

Those are the two options at this point in time that we see will be able to assist us in the matter. Should there be a grievance arising from - can be taken to the Industrial Relations Commission under the disputes section, if you're not consent to accept that as a Section 99 application, under clause 8.2.9 of the EB:

PN223

Where the issue cannot be resolved, the parties may also appeal to the AIRC for a decision in respect to an arbitrated response to the board of reference process.

PN224

So, basically, that's all I can offer at this point in time, Commissioner. It really is which way you would like this matter to proceed.

PN225

THE COMMISSIONER: Yes. Well, I must say I haven't quite followed that, Mr Tarnawski, and it might be useful for there to be a conference now. I'm going to go off the record and have a conference. It won't be necessary for anyone to leave the room.

OFF THE RECORD [11.41am]

RESUMED [11.57am]

PN226

THE COMMISSIONER: Well, we've had a conference in this matter. The people who are going to - the witnesses have left and the co-existence of the disputes procedure under the certificate agreement and under the award has been brought to notice in our conference, and Mr Tarnawski has, I think, indicated that, having taken the steps that one does in a dispute where a matter is not agreed, has lodged the Section 99, and it being said by Mr Tarnawski, in the conference, that the position had been reached which is described in 8.2.9 of the certified agreement. And Mr Bennett expresses the view that - - -

PN227

MR TARNAWSKI: This may assist, Commissioner.

PN228

THE COMMISSIONER: Just a moment, Mr Tarnawski.

PN229

MR TARNAWSKI: Sorry.

PN230

THE COMMISSIONER: Mr Bennett expresses the view that the Council, for its part, is here pursuant to the notification under Section 99, not as to a dispute joined over the correct or proper application of the agreement which is the way he's described the grievance procedure which might arise under Section 170LW, and it may be that the parties need to reflect on this. And that's, in my recollection, what's just happened in our conference. But, Mr Tarnawski, if you'd like to add something to what I've said. It's my intention, shortly, to hear your opening, or your first witness, but I'll give you the opportunity now of saying something, if you wish to - - -

PN231

MR TARNAWSKI: Just a clarification.

PN232

THE COMMISSIONER: - - - and then I'll hear from Mr Bennett.

PN233

MR TARNAWSKI: Dated 28 November 2003, our initial disputes Section 99 file - application; we had a separate paragraph after the initial statement:

PN234

Attempts to resolve this dispute in accordance with the disputes settling procedure have failed.

PN235

The problem here is that the very next paragraph actually says:

PN236

The award binding on the parties to the dispute is the Queensland Local Government Officers award.

PN237

Now, I can understand that, possibly, the Redland Shire Council would have viewed that as being connected, but they weren't. They were separate issues. And the disputes settling procedure failing is in respect to the processes required of us through 8.2.9 in the enterprise bargaining agreement.

PN238

THE COMMISSIONER: Mr Bennett, do you want to say something about that? I don't say you have to. You can say something about it later, if you want to.

PN239

MR BENNETT: Commissioner, do you want me to confirm - I think your summary of what was discussed in the conference was accurate. My client's position is that it has always understood that it was following the disputes settling procedure in the award. The union then filed under Section 99. There has never been any suggestion that this was a dispute over the application of the certified agreement, never been any suggestion that this matter was brought under Section 170LW, and to the extent that anyone wishes to advance the case otherwise, we would wish to defend that vigorously.

PN240

THE COMMISSIONER: Yes. All right. Well, thank you, Mr Bennett. I'm going to indicate to the parties that, to the extent that it's necessary, I reserve the right for them to address this issue again, and it's certainly something that I may raise with the parties as we go along. But for the present, Mr Tarnawski, I'm going to ask you to get under way with your case.

PN241

MR TARNAWSKI: Thank you. Well, as I tried to indicate earlier, Commissioner, our position is very simple. I really don't want to go through all the stuff but, unfortunately, I don't know where I left off and where I started, so you're going to have to tolerate giving me a bit of leeway here, I'm afraid. We contend that the - - -

PN242

THE COMMISSIONER: Mr Tarnawski, you can put your case as you like, and the best place to start is always the beginning, but you go along. There's no - we're not under any constraints. You put your cases any way you want to.

PN243

MR TARNAWSKI: We contend that the applicants, Ms Zuber and Mr Mayes, should - the appellants, should hold their classification at level 7 in the community environment services stream of the award, as opposed to the level 6 classification assigned by Redland Shire Council. The union drew the anomaly to the attention of the Council by letter dated 7 October 2003 which you have in your material under NJH10. The Council's response was to draw the attention to the union that the Council's policy was to assess role descriptions only if the role was a new one or had changed.

PN244

That policy was not a joint document. It's a policy from Redland Shire Council. We, obviously, would dispute the rights of any individual employee to challenge and attest whether they're being correctly remunerated under the terms and conditions of the award. Attempts to address the grievance with the CEO were fruitless, leaving the union no alternative but to making a Section 99 dispute application to the Commission, which led to two conferences and to this current proceedings. Following the last conference, it was evident that no resolution would be achieved between the parties, and the union sought arbitration on the matter. Further to counsel's submission, we accept that the PDPE process was carried out in relation to job evaluations in the Council during the course of 2001/2002.

PN245

The issue here, though, is that neither of the two incumbents the subject of this reclassification application were in their respective roles at the time of the PDPE process, where 17 of their colleagues' Senior Adviser positions were appointed to Level 7. We do not accept the policy referred to earlier, as I said, and were never consulted in its formulation. We take exception to and do not support the proposition that the previous conference before Commissioner Richards binds the union employees from seeking a re-evaluation of positions for the future. As has been presented, the union seeks the Commission to evaluate whether the positions held by Ms Zuber and Mr Mayes meet the award provisions for Level 7 classification.

PN246

At paragraph 14 of the Council's own submission, it has been presented that the Senior Adviser Leisure and Lifestyle Level 6 was restructured to create the Senior Adviser Cultural Services (SACS), and Senior Adviser Sport and Rec (SACR) positions. There is no mention that a further position was created out of those, which is the Senior Adivser Urban Parkland Management. And coincidentally, the incumbent went with that position and had been reclassified to a Level 7 position, with four other colleagues, and the upgrading was based on the same, identical position description that Ms Zuber and Mr Mayes have to work under.

PN247

Council's position is unsustainable as it's been previously presented. The position of Senior Adviser Environmental Health has also been elevated through the PDPE process on appeal to a Level 7 classification. The union's contention that Ms Zuber and Mr Mayes, had they been incumbent in their respective positions during the PDPE process, it is more than likely that they would have received their Level 7 classification, at worst, by appeal. And that's the simple matter as far as this union is concerned - along with the 17 other Senior Advisers within Redland Shire Council with the same PDs and the same position description. Thank you, Commissioner.

PN248

THE COMMISSIONER: And that's your opening and outline, is it, Mr - - -

PN249

MR TARNAWSKI: Correct.

PN250

THE COMMISSIONER: All right. Well, Mr Tarnawski, you're going to lead your - - -

PN251

MR TARNAWSKI: This - you - - -

PN252

THE COMMISSIONER: Well, I'll - - -

PN253

MR TARNAWSKI: You mean the opening submission - - -

PN254

THE COMMISSIONER: I'll hear - well, we'll just push on, Mr Tarnawski.

PN255

MR TARNAWSKI: Sorry. No worries. Thank you. I'd like to call Ms Zuber.

PN256

THE COMMISSIONER: Yes.

<PATRICIA ZUBER, AFFIRMED [12.07pm]

<EXAMINATION-IN-CHIEF BY MR TARNAWSKI

PN257

THE COMMISSIONER: Yes, Mr Tarnawski?

PN258

MR TARNAWSKI: Ms Zuber, you hold the position of Senior Adviser Cultural Services - - -?---Yes.

PN259

- - - with the Redland Shire Council?---Yes.

PN260

And you're a - at this point in time, your classification is Level 6?---Yes.

PN261

Are you conversant with your position description?---I am.

PN262

Would you have a copy with you - - -?---I do.

PN263

- - - which might make things easier. Ms Zuber, may I just take you through the primary purpose of the position, and I - - -

PN264

MR BENNETT: With respect, Commissioner, is that document - is that going to be tendered and marked as an exhibit?

PN265

THE COMMISSIONER: Yes. Yes, thanks, Mr Bennett.

PN266

MR TARNAWSKI: Sorry, Commissioner.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN267

THE COMMISSIONER: Now, Mr Tarnawski, I'm going to identify the earlier exhibits which were given exhibit numbers, and I have these as: T1, Redland Shire Council Evaluation Summary Senior Adviser Cultural Services. I think - T2: Redland Shire Council Evaluation Summary, Senior Adviser, Sport and Recreation; T3, Senior Adviser Sport and Recreation Award Level 6 and 7; and T4, Cultural Services Award Level 6 and 7.

EXHIBIT #T1 REDLAND SHIRE COUNCIL EVALUATION SUMMARY - SENIOR ADVISER CULTURAL SERVICES

EXHIBIT #T2 REDLAND SHIRE COUNCIL EVALUATION SUMMARY - SENIOR ADVISER SPORT AND RECREATION

EXHIBIT #T3 SENIOR ADVISER SPORT AND RECREATION AWARD LEVEL 6 AND 7

EXHIBIT #T4 CULTURAL SERVICES AWARD LEVEL 6 AND 7

PN268

THE COMMISSIONER: They're on the file and marked. So are you going to - does the witness have a copy of the witness statement - her witness statement, Mr Tarnawski?

PN269

MR TARNAWSKI: Yes, she does.

PN270

THE COMMISSIONER: Are you going to take Ms Zuber through that?

PN271

MR TARNAWSKI: To expedite the matter, I'd just ask Ms Zuber to confirm that that's her witness statement that's been presented.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN272

Ms Zuber, is that - - -?---Yes, it is.

PN273

- - - your witness statement?---Yes.

PN274

Okay.

PN275

THE COMMISSIONER: There's a signed copy on the file of a witness statement.

PN276

MR TARNAWSKI: Correct.

PN277

THE COMMISSIONER: I'll have my associate show you the marked Bench copy. Ms Zuber, is that - - -?---It is.

PN278

Can you have a look - and have a look at your - look at the back page of that document. Do you recall making that out?---Yes.

PN279

All right. And Mr Tarnawski, is that the - does Mr Bennett have a copy of that?

PN280

MR TARNAWSKI: We've issued all those witness statements to yourself and to - - -

PN281

THE COMMISSIONER: All right. And they're all the same are they?

PN282

MR TARNAWSKI: That's correct.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN283

THE COMMISSIONER: All right.

PN284

MR TARNAWSKI: There's been no amendments.

PN285

THE COMMISSIONER: Thank you. All right. And you have a copy of that there with you, do you, Ms Zuber?---I do, Commissioner.

PN286

All right. The full statement - - -

PN287

MR BENNETT: Commissioner, just before you go on - - -

PN288

THE COMMISSIONER: Yes.

PN289

MR BENNETT: - - - T3 and T4, are they copies of the award document relevant to the classifications; is that - - -

PN290

THE COMMISSIONER: T3 is a comparative chart.

PN291

MR BENNETT: Okay. I'm sorry.

PN292

THE COMMISSIONER: I'll hold it up. It's a - - -

PN293

MR BENNETT: So that's the union's - - -

PN294

THE COMMISSIONER: Mr Lewis will know a bit about this - - -

**** PATRICIA ZUBER XN MR TARNAWSKI

PN295

MR BENNETT: I understand that.

PN296

THE COMMISSIONER: - - - I think. Can you see that, Mr Tarnawski?

PN297

MR TARNAWSKI: Yes, sir.

PN298

MR BENNETT: So T1 and T2 are Redland's responses to T3 and T4.

PN299

THE COMMISSIONER: Yes. I think these are the documents that were drawn up as a result of the request of Commissioner Bacon, I think - I think. There's a bit of nodding happening, so it might be that's right. I'm sure I'll be told. Now, we've got a witness, though. You tender that statement, Mr Tarnawski?

PN300

MR TARNAWSKI: The witness statement is tendered, yes.

PN301

THE COMMISSIONER: T5 is Ms Zuber's witness statement.

EXHIBIT #T5 WITNESS STATEMENT OF PATRICIA ZUBER

PN302

MR BENNETT: I'm sorry about this, Commissioner, I just do want to make absolutely sure that we've got the current exhibits so we all know what we're talking about in terms of T1, T2, T3 and T4. My colleague is saying that the document we had marked as T1 from the last proceedings was actually the Redland Shire Council - - -

**** PATRICIA ZUBER XN MR TARNAWSKI

PN303

THE COMMISSIONER: I'm going to give my - my Associate has made a very snazzy - two Bench books for me. Normally I'm concerned about any daubings. I'm not so concerned today. I'm going to ask my Associate to give it to you. And I might - perhaps I should have said - I was really trying to save some time, but T1 is given the date 12 January 2004 and T2 13 January 2004.

PN304

MR BENNETT: Yes, and they actually have a Redland Shire Council stamp in the top left-hand corner.

PN305

THE COMMISSIONER: A wolf or - I don't know what it is.

PN306

MR BENNETT: I think it's supposed to be a bay actually, Commissioner, perhaps a koala's face as well; a bay with some sailing ships and a koala's face.

PN307

THE COMMISSIONER: I haven't been looking closely enough.

PN308

MR BENNETT: The lovely Redland Shire Council. You should visit there while you're here.

PN309

THE COMMISSIONER: We'll have some inspections. Mr Tarnawski will be - - -

PN310

MR TARNAWSKI: No, no objection at all.

PN311

MR BENNETT: And there is only four exhibits to date: T1, T2, T3 - - -

PN312

THE COMMISSIONER: Five now.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN313

MR BENNETT: And T4 and T5 is the statement. So it would seem that the Council's response to those evaluation documents, which was a fairly extensive matrix which I though was tendered at the last conference - - -

PN314

THE COMMISSIONER: Yes, there's material on the - - -

PN315

MR BENNETT: It will be tendered, in any event, as an exhibit.

PN316

THE COMMISSIONER: Yes, and I suspect it may be easier for the parties to go along and still do what you were going to do.

PN317

MR BENNETT: If we start with that base, and at least we know what T1, T2, T3 and T4 are. Thank you. I appreciate that. I apologise for holding things up.

PN318

THE COMMISSIONER: Yes. There is some material on the industrial file - well, on the notification of 9 September 2001 which sets out Redland Shire Council material, but I'm sure the cases will go along. I don't want to worry about the paperchase. All right, now, Mr Tarnawski, that's Ms Zuber's statement.

PN319

MR TARNAWSKI: May it please the Commission, too, could you - I'm going to now allude to the particular position description for Ms Zuber for cultural services which was attached to our documentation towards the rear, after the submissions and after the witness statement.

PN320

THE COMMISSIONER: Yes. Mr Tarnawski, there's a Senior Advisor - Cultural Services.

PN321

MR TARNAWSKI: That's it.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN322

THE COMMISSIONER: 3 October 2001, three pages; is that the document?

PN323

MR TARNAWSKI: Correct; that's it.

PN324

THE COMMISSIONER: Do you tender that?

PN325

MR TARNAWSKI: Yes.

PN326

THE COMMISSIONER: Well, that's T6, Senior Advisor position description.

EXHIBIT #T6 REDLAND SHIRE COUNCIL POSITION DESCRIPTION CSL009 - SENIOR ADVISOR - CULTURAL SERVICES

PN327

MR TARNAWSKI: The primary purpose, Ms Zuber, Senior Advisor - Cultural Services leads and manages the Cultural Services components and Community and Social Planning group. I would ask you to give a quick view of what that means in terms of how you feel that you meet those requirements?---Do you mean in general terms, Mr Tarnawski?

**** PATRICIA ZUBER XN MR TARNAWSKI

PN328

Correct?---I lead and manage the Cultural Services component of the Community and Social Planning group. It's a very particular specialised function that the position is engaged and requires to undertake by the organisation in relation to planning and policy development for the provision of cultural services and cultural facilities planning. So there are a number of strands, or key accountabilities in the role descriptor that include strategy and relationship management, leadership and management, policy development and advice and documentation. The structure of Council requires that the specifier division undertakes these roles and it's included in Council's outline of submissions, number 5, and it's under that framework within which I operate.

PN329

THE COMMISSIONER: Under these key accountabilities; is that what you're referring to?---The key accountabilities and also it's described in number 5 in the outline of submissions from Redland Shire Council. The specifier division is responsible for developing medium and long term tactical plans. It also develops - - -

PN330

Have you got something else there you're reading from?---I'm reading from the Redland Shire Council submission, Commissioner. Sorry to jump over to something else.

PN331

No. It's important for Mr Bennett to know what you've got there, that's all?---Yes, but it's just that it succinctly describes the specifier role as determined by Council which I undertake and which is reflected again in the position description.

PN332

MR BENNETT: I thank you, Commissioner. I don't think that's been tendered. I wonder if you could clarify the position.

PN333

THE COMMISSIONER: You say it hasn't been, Mr Bennett? What did you say then, I'm sorry.

PN334

MR BENNETT: I don't believe that document has been tendered.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN335

THE COMMISSIONER: But it's in your material, isn't it?---Yes.

PN336

MR BENNETT: Well, if that's a document prepared by my client, I think, it's the document - - -

PN337

THE COMMISSIONER: Is it in Mr Hoelscher's material?

PN338

MR TARNAWSKI: It's a very - opening submission, Commissioner.

PN339

MR BENNETT: It's actually the Redland Shire Council outline of submissions; is that the case?

PN340

MR TARNAWSKI: Correct.

PN341

MR BENNETT: Right. Yes, I'm not comfortable, I must say, with Ms Zuber quoting from that from the witness-box, with respect to my friend. I wasn't aware that she had that material in front of her. I would prefer if she was limited to documents specifically passed to her by my friend.

PN342

MR TARNAWSKI: I was seeking a definition of the specifier role.

PN343

THE COMMISSIONER: I beg your pardon, Mr Tarnawski?

PN344

MR TARNAWSKI: I was seeking clarification of a specifier role. I wouldn't ask Ms Zuber to read it from there.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN345

So, Ms Zuber, rather than read it from the submission if you'd like to just give the Commissioner the specifiers' role and how that functions within Redland Shire Council and how you fit within that structure, please?---Well, the structure in Council is that it's divided into a structure of specifiers and providers, with the providers, generally speaking, delivering the services and the specifiers, generally speaking, undertaking the policy development and planning and the strategic direction and setting out operation or capital works projects in the planning stage of long-term tactical plans and projects. So in the case of Cultural Services this is - covers libraries, museums, galleries, Performing Arts Centres, the whole range of the arts; creative industries, community cultural development, Indigenous culture, youth culture, so on and so forth. So there are - there are officers in Council that deliver services and programs and manage facilities to - under Council's corporate plan to deliver these services and it's our role to - or the position's role, I should say, to - to work with or in partnership with those provider areas to - to set up and monitor - or set up in the first place and monitor and review service level agreements and to undertake any research or options, development studies, those sorts of things, and evaluate and analyse those. It's all in conjunction with the providers, of course. And to set direction and develop policy and plans that enable the provider area to deliver its services and manage its facilities.

PN346

Ms Zuber, if you would turn across to the key accountabilities. Going through those quickly - - -

PN347

MR BENNETT: I'm sorry, Commissioner, what document are we referring to now?

PN348

MR TARNAWSKI: The role statement.

PN349

MR BENNETT: We're still in the role statement.

PN350

MR TARNAWSKI: We're still in the role statement.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN351

MR BENNETT: I apologise.

PN352

THE COMMISSIONER: This is T6, is it, Mr Tarnawski?

PN353

MR TARNAWSKI: Correct.

PN354

MR BENNETT: It might be an appropriate - I'm sorry to interrupt Mr Tarnawski, but I think there is a mistake in that document. At least the one we received from the Commission. The second page is marked - sorry, from the union. The second page is marked Draft Copy and dated at the bottom of 15 October. Is that the same for yourself, Commissioner?

PN355

THE COMMISSIONER: No, the second page of my T6 reads "3 October" and someone has put some colour, pink on it, but other than that there are no - and a little - another mark, but there's nothing to indicate it's a draft.

PN356

MR BENNETT: It may be our own - - -

PN357

MR TARNAWSKI: The one that is set out from the union is the one that you've got, Commissioner, 3 October.

PN358

MR BENNETT: All three pages. All right, I apologise.

PN359

THE COMMISSIONER: Someone has written "Sue Rankin" on mine.

PN360

MR BENNETT: Yes, on the front page.

PN361

MR TARNAWSKI: Yes, okay.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN362

THE COMMISSIONER: Have you got a copy of that, Mr Bennett? Have you got that? The 3 October document?

PN363

MR BENNETT: I seem to have the wrong second page, Commissioner, but that's all right. We will sort that out.

PN364

THE COMMISSIONER: All right.

PN365

MR BENNETT: I apologise.

PN366

THE COMMISSIONER: Go on, Mr Tarnawski.

PN367

MR TARNAWSKI: The area in terms of strategy, how does that fall - in terms of specify, sorry, may I just - are there any other Cultural - Senior Advisors, Cultural Services within the specifier group within the organisation?---No, no.

PN368

You're the only - - - ?---I am the only - - -

PN369

- - - Senior Advisor for Cultural Services within Redland Shire Council within the specifier function?---That's correct.

PN370

Okay. Now, you say that you developed strategies and policies?---Mm.

PN371

And the strategies within the organisation - for the organisation, how do you do that?---Through - through community consultation, through research that I undertake myself, through the identification and commissioning of studies, through - through discussions with other members - other members of staff. So sometimes it's as a part of other planning studies or sometimes it's unique to Cultural Services. But generally speaking through research, community consultation and the identification and commissioning of studies.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN372

And the phrase here or the paragraph here:

PN373

Research development and evaluation; range of strategic options for the planning, specification and delivery of cost effective Cultural Services.

PN374

THE COMMISSIONER: Where are you reading from there, Mr Tarnawski?

PN375

MR TARNAWSKI: Strategy?---From - yes.

PN376

Just at the top of the paragraph. Sorry, I - - -

PN377

THE COMMISSIONER: Yes. Thank you.

PN378

MR TARNAWSKI: Point one?---Yes. Sorry, I'm a little nervous. It's - I'm restricting it simply to the - to strategic planning studies. But, of course, flowing on from that is the specification of Cultural Services. So these studies underpin or provide information to enable Council to direct its budgets to particular strains of activity within the broad range of Cultural Services. I can provide examples if that would help. So, for example, I initiated a Cultural Facilities Study and flowing on from that a review of a particular Council public facility. And flowing on from that it was identified that there was a need for a Performing Arts Centre in the shire and so then it - I made recommendation that an option development study be undertaken and I - in all of these cases too, I should point out, as well as often instigating these studies from my work in the community that I also write the briefs and select the consultants and manage the consultancy project. It's not simply a matter of - as has been sort of suggested that we sort of hand over this work to the consultants and they just somehow do it and hand it back to us. There's a lot of evaluation required by the incumbent to identify the need for these particular consultancies and they are usually bringing in specialists and not doing the work for us. And I always work very closely with consultants and at the end of the day we have a set of recommendations that assist us in formulating strategic options and that results in - in guiding the service level agreements, which are reviewed quarterly and annually.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN379

THE COMMISSIONER: Can I just ask you to go back there, Ms Zuber. So the strategic options, what do they guide? They guide the - - - ?---They guide the - well, through - under the auspice of the service level agreement they guide and direct the delivery of services for the next however many years. So there's a continual and ongoing, if you like, monitoring and evaluation and - and consultation feed-back through performance reports, through, you know, various evaluation methods along the way that we undertake in partnership with the providers to enable us to be in a position to be able to make sure that the service level agreements reflect Council's corporate goals. It helps Council to achieve its corporate goals, but it also reflects what the provider areas are undertaking and that they are in line with what has been identified through the specifiers' community consultative work and their studies and research and the evaluation and ongoing monitoring that they are doing to - you know, to guide the direction of the delivery of those services. So, for example, if it's recognised that there is the need for another library in the shire, for example, which has just happened, now that's come through all of this work; all of this provider specifier partnering and the reporting, the performance reporting, the feedback, the community consultation, the recognition that there may be - that the shire is growing, that there's a major centre developing in another part of the shire; that the services that exist aren't going to cope in years to come. So what do we need to do? Do we need to undertake a feasibility study for a library in Victoria Point? Yes, we do. Who does that? The specifier does. In my case it's the Senior Adviser, Cultural Services; the only position that can do that, the only position that's required to do that in Council. So I then, which I did, write a brief obviously in partnership with my provider. I write the brief. I select the certain consultant. I commission the consultant - well, having set up the budget for this, of course, prior to this and I manage that project. And then at the end of that project we have a set of recommendations. And, you know, and in this case, yes, we do need a library at the southern end of the shire and this is the sort of library it should be. This is the size it should be. This is where it should go. This is who it should serve. So - and this is its relation to the island, for example, because we have a number of islands in Redland Shire. So - who have specific issues in terms of isolation and so forth. So then it's - through that process a Council's works budget is set up to - in this case set out the library and it was determined that this library would be use two floors of a commercial building, a shopping centre. That was going to be the best place so it's a lease. I mean, the lease is being negotiated by the property manager. I wrote a report, took the feasibility study to Council, spoke to it,

**** PATRICIA ZUBER XN MR TARNAWSKI

you know, and then the actual implementation is taken over by other members of staff in Council. As I say, the property manager to negotiate the lease. The project delivery office to manage the tenders for the set-out and Library Services to determine what sort of services they are going to place in this facility and what sort of layout they are going to have for the delivery of the service in that particular location. So - you know, so - those kinds - this is an example. And in terms of island libraries it's long-term strategies. We have a lot of community libraries, little community libraries. We, again, recognise that we really needed to take a good look at island libraries. They are very small libraries, they are very expensive. They are only able to open a very few hours a week, so we - we commissioned a review of island libraries and I've just completed an island library strategy and - and, you know, these are politically sensitive issues. And closing libraries - the members of the community would not be happy about the libraries being closed. Councillors were divided over it. So, you know, it's my role to help steer our way through these politically and sensitive issues and issues that might, you know, upset certain members of the community. So - and come up with a series of recommendations that are going to be politically acceptable and acceptable by the community, but at the same time rationalise island libraries so that they are sustainable and that - that Council will be able to - to service the whole shire through its mainland and island library services. So those are a couple of examples.

PN380

MR TARNAWSKI: Ms Zuber, you use the term "we". Could you just enlighten me as to what the "we" represents? Who is "we"?---"We" is my provider area, who is Cultural Services Manager. So I work very closely with her, in partnership, as required under the Service Level Agreement. And I would go so far as to say that Cultural Services Manager and myself have an exemplary working partnership and that we meet fortnightly, for example. We discuss every aspect of - from library services to cultural development, to the Redland Art Gallery, to museums and grants and a whole range of subjects that we deal with, yes.

PN381

And under the purchaser provider model - - - ?---Yes.

PN382

- - - is it a subordinate role that you place with your counterpart?---No, not at all. Not at all, no. We are - we are - we are - we do different jobs. I mean, the Cultural Services Manager obviously manages cultural services, which are primarily libraries, but my role is quite different. It's a strategic planning and policy development role.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN383

And the Cultural Services Manager implements?---She implements what I specify, but it's not - it's a partnership arrangement. It's not, you know - - -

PN384

And your counterpart - - - ?--- - - - an I direct, she does, arrangement.

PN385

And your counterpart in these deliberations, do you know what level that your partner is, the Cultural Services Manager?---She's a Level 7.

PN386

Thank you. I will lead on to your relationships and your partnering - your principal partners have suggested in the role statement of State Government - what is your relationship with the State Government?---State Government provide funding for - for regional arts development and for library stock; for the replenishment of library stock.

PN387

And in that relationship are you there negotiating with the State Government on your own or is there a senior officer with you?---There - we - well, Council puts in - I mean, I was also going to just add that State Government also provide capital subsidies for cultural facilities, so that's libraries. You know, so - you know, the Performing Art Centre, the gallery. So the set-out of the new library at Victoria Point will be eligible for a 20 per cent capital subsidy. So - I mean, I'm aware and need to be aware of the - of all of the possible sources of funding and subsidies for cultural facilities and other programs. So I need to be aware of that. Sometimes it involves my putting together submissions to the State Government, but the subsidies, the capital subsidies, there is an officer in Council who puts together those submissions, but I work with him to put those - you know, I give him the information that he needs in order to be able to put those submissions together. I mean, with major cultural facilities like the new Performing Arts Centre, of course, it does - I mean, that involves a number of people. It's a major facility, so it's - you know, I am one member of a team of people who are contributing to the development of this - this facility.

PN388

And at what level are these people - - -

**** PATRICIA ZUBER XN MR TARNAWSKI

PN389

THE COMMISSIONER: Mr Tarnawski, we're going to pause there. We're going to adjourn, in fact, until 2 o'clock. Ms Zuber, during the luncheon adjournment you can talk to people and do what you would normally do, except you can't talk about this case and your evidence. Do you understand that?---I understand that, Commissioner.

PN390

All right. The Commission will adjourn until 2 o'clock.

LUNCHEON ADJOURNMENT [12.43pm]

RESUMED [2.04pm]

PN391

THE COMMISSIONER: Yes, Ms Zuber, please come back to the witness-box.

PN392

MR BENNETT: Excuse me, Commissioner, at the outset before Mr Tarnawski resumes questioning, I've got an issue to raise in relation to the documentation that I believe Ms Zuber has present with her in the witness-box. This issue was raised earlier in the day. In fact I think you drew attention to it, Commissioner.

PN393

THE COMMISSIONER: Yes.

PN394

MR BENNETT: I've asked Mr Tarnawski about it in the break and it seems we have a difference of opinion. I would take the view that she, the witness, Ms Zuber, should not have reference to anything other than tendered documents that Mr Tarnawski hands to her, and preferably provides a copy to me. Mr Tarnawski takes the view that the witness can have access to and refer to any document that she likes including, I think, handwritten notes that she's made before hand. I wish to strenuously object to that and I would prefer that she be limited to referring to documents that have been properly tendered in the proceedings.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN395

THE COMMISSIONER: What's the position? Has the witness got some other material?

PN396

MR TARNAWSKI: I have no - I don't know what prepared documents Ms Zuber has. Obviously it's to make her feel more comfortable in the situation and she's brought along some documentation that she would like to refer to to refresh her memory in relation to certain matters. I don't know.

PN397

THE COMMISSIONER: You'd have to ask Ms Zubra what she actually has on her possession.

PN398

MR TARNAWSKI: Ms Zubra, what have you got in the box there with you?---I only have the documents that have been here presented, I thought, or to the Commission in reference to this case and apart from a few notes. That's all. I don't have anything that's, you know, outside of - I mean I didn't know this was a sort of memory test or something like that. I mean, they're just to make me feel - yes, as Mr Tarnawski said, a bit more comfortable because it's difficult when you're nervous to bring to mind, to recall to mind everything that, you know, you feel you need to say in order to properly represent the position.

PN399

THE COMMISSIONER: Yes, all right. Thank you, Ms Zuber. Well, you prepared this statement, haven't you?---Yes.

PN400

Which I've marked as T5 and you haven't really been taken through it, and you've got that in front of you. And have you got T6, which is the Community and Social Planning Group?---Position description.

PN401

Position description, Senior Adviser - Cultural Services position description?---That's right.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN402

All right. Now, you don't - do you object to them, Mr Bennett?

PN403

MR BENNETT: No, not at all, Commissioner, no. It's the other - the notes, I think, that Ms Zuber's referring to that I object to.

PN404

THE COMMISSIONER: Okay, yes.

PN405

Ms Zuber, now, you've got some handwritten notes, have you? Have you been referring to them?---No, I haven't.

PN406

All right. Well, just pop them over. You haven't found it necessary, because you've been dealing really with the material?---Yes.

PN407

I would have thought - perhaps I'll just conclude what I was going to say before you agree with me, then agree, but - fluently - but if, Ms Zuber, you either have a lapse of memory and you feel that - although you then know that there's something else you wanted to add but you can't think what it is or you become aware of something that you would like to refer to, then you might mention - whether it's Mr Tarnawski or Mr Bennett, if you think to give a proper response to the question partly to test your memory, you see - so it is partly what you thought it wasn't, partly that, but although this isn't really a memory test today, this is an opportunity for you to tell the truth and put your best foot forward. I would think Mr Tarnawski would have it and Mr Bennett would probably agree if pressed that that's what it's all about, too. So, if you want to refer to other things and you dry up as you go along with your answer, which hasn't been something that's happened to date, then tell your interlocutor that - tell whichever of these gentlemen it is that you'd like to refer to the notes and then they'll know where you are. All right?---Yes.

PN408

Off you go, Mr Tarnawski.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN409

MR TARNAWSKI: Where we left off we were talking about your partnership arrangements with various organisations?---Yes.

PN410

We got to the State government and you referred to your dealings with the State government in terms of grant applications. Do you do that dealing on your own in isolation?---Sometimes, and sometimes in - with other officers. Sometimes I might apply for a grant application on my own. I put in a submission, for example, for a capital subsidy for the Redland Arts Gallery, which I wrote myself and put the material together and actually - and took it in and spoke to the Project Officer in Arts Queensland and presented the submission to him, and that was successful and the Redland Art Gallery received a 20 per cent major cultural infrastructure capital subsidy. But other capital subsidies - as I was saying before, there is an officer in Council who submits those subsidies, but I brief that officer, and he submits them.

PN411

We'll move on to corporate governance. What I'm trying to do is get an appreciation of what level of dealings with officers. I mean, are we talking level 2 or level 3 officers where you actually get the detail, or your dealings within the Council with these - with your role?---The other financial officer, I believe he's a level 7, I'm not quite sure.

PN412

So it's the higher level that you're dealing with officers throughout the organisation?---It's officers on the same level as myself or higher, yes.

PN413

You alluded to working with consultants previously and I'd like you to elaborate, not for too long though, but your relationship with consultants, is it a matter of just dumping the stuff out and the consultants, they do it all and you collate it?---No, certainly not. As I was saying before, it's a question of identifying what particular consultants are needed for particular projects. It's not a question of just merely handing over the work to somebody else. I mean, often an awful lot of work has been done already because you've already identified a need and you've already scoped what's required in order to be able to bring yourself to a point where you can make recommendations to Council - informed recommendations to Council so that they can make a decision, and so

**** PATRICIA ZUBER XN MR TARNAWSKI

sometimes it means bringing people - consultants with particular expertise. So, I mean, for example, when I identified the need for a public art policy, it happened to coincide with the beginning of the review of Redland Planning Scheme, so it was opportune to try to introduce, I felt - and this is, you know, from all of my work and dealings with the community and managing a number of public art projects, but it would be a good opportunity to try and set up a Percentage for Art Program so that whereby developers contribute 2 per cent for art or 1 per cent for art, as they do in other places and it's a number of councils in Victoria that do this and, you know, with Council leading the way so that Council's capital projects - the above ground projects would lead the way by contributing a percentage to art themselves. Now, that was quite complex, you know. I mean that required some technical expertise in terms of town planning, so I brought in a consultant who was a social planner, cultural planner and a town planner. So he worked with me and in talking to development assessment officers and land use planning officers and, you know, looking at the legislation and, you know, infrastructure charges and all of those sorts of issues, to try and determine how we could set up a Percentage for Art program - set up a public art fund and set up a capital contribution program and, as I say, a developer contribution. So, it was quite complex, and he worked with me and we developed the policy and we workshopped it with the councillors and with the executive leadership group and in the end - at the end of the day, Council didn't feel ready. They didn't feel ready to take that on. It was quite difficult and controversial so we didn't go ahead with it, but it was - it formed a basis of a policy and the consultant no longer, you know, was required so then I wrote the policy. You know, I wrote the public art policy and took it as far as I possibly could in terms of laying the ground for the public art fund and - so that in the future that could be taken up by myself or someone else. So I wrote the policy; I wrote guidelines and I wrote procedures, and I wrote the report and I took the policy guidelines - well, I took the policy to Council and - for approval, and then the guidelines to the General Manager for approval. And the procedures - although I wrote them - they actually went through the provider area to that manager for approval and - and I sit on the advisory panel that I set up as part of those guidelines and procedures to ensure that public art projects are managed in a consistent way by Council and - under the policy that was developed. But of course, all of that was undertaken with a lot of consultation. I'm not saying that it's just - you know, there were just - what I thought should happen; not by - not by any means. I undertake a lot of consultation with internal and external stakeholders in order to be able to reach a position where I can write a discussion paper and draft a policy, and you know - so the Level 6 requirement which - which states

**** PATRICIA ZUBER XN MR TARNAWSKI

that this position would contribute to policy development is way below the actual work that the incumbent undertakes in regards policy because I write policy; I've written a number of policies, and they form, you know, the basis of the guidelines and procedures that sit under them. So - and it's the same with the Redland Art Gallery. I brought into a consultant to assist me with some of the - the technical details in regard to materials conservation and curatorial practices, and collection management, and deaccessioning, and those sorts of more technical aspects of art gallery collection and exhibition policy. But I pooled all of that information together and actually finalised policies and guidelines, and you know - and that's very important for Council because it's important that the - the gallery presents exhibitions that are suitable - that are suitable for the public, and that meet a range of public needs so that, you know, for example, that they're educational or - or for indigenous artists or local artists or touring shows or - so that there is a balance, a mix - you know, an acceptable mix. So - so I suppose I'm - what I'm pointing out is, is that I - we - or I - I can only speak for myself, but in this position I bring in consultants really very much on an as-needs basis for particular requirements.

PN414

So it's - some would suggest that you actually don't do the policies; you involve yourself, but you don't actually write the policies, so in a very quick - - -?---In a - well, referring again to the Council submission, the words that are used are "may be involved", and that's simply not the case. I write policies.

PN415

When you pull these people together, do you actually lead and manage those people in terms of those projects?---Yes. I - yes, I manage the projects, I write the briefs, select the consultant, manage the project, edit the drafts, write the report, take it to Council, and follow it up.

PN416

And how often are your submissions rejected or amended by other - - -?---Never.

PN417

- - - high level officers?---Never. I have a very high success rate of getting policies through Council; very few questions. They're always very thoroughly researched and by the time they get to Council they're pretty spot-on.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN418

And how often are you - do you accompany those submissions to actually respond to - - -?---I always accompany. ..... that the manager presents or, you know, speaks to the report first, or presents it. I sit next to her, I answer all the technical questions that the councillors ask.

PN419

Thank you. I won't labour leadership and management any more, then, if that's the case. Policy development and advice; we've covered that. Is there anything you wish to add in relation to leading the effective translation of governance and cultural services strategy into align corporate policy?---No, I mean - I mean every report I take to Council is under the Community and Well-being corporate goal, so it is aligned to corporate policy and - - -

PN420

You've referred to "the corporate goal" a number of times. What involvement do you have with the corporate goal in terms of cultural services?---Well, I mean, I was consulted during the development of the corporate plan some years back and, you know, helped to - to - in the drafting of the statements that refer to - include reference to cultural services.

PN421

Okay. We touched upon Service Level Agreements previously. Your relationship - you - to refresh my memory, your relationship with that is on a partnership basis. The initiation of Service Level Agreements - could you possibly just give a bit of an idea as to how - - -?---Well - - -

PN422

- - - that's developed - the Service Level Agreement?---Yes. Well, you know, as Council underwent a restructure a few years back, I was very much involved in the - I was on the specifier area at that time. I was Cultural Development Officer and so I - we were very involved in writing - we wrote a business plan, in fact, for Cultural Services, so I was very involved with that, and that formed the basis of the Service Level Agreement. But that was quite an extensive document, and - which was, you know, honed down to - to a much briefer document, ultimately, but at that time the specifier was Senior Adviser Leisure and Lifestyle, who had Urban Parks and Sport and Rec and Cultural Services in her portfolio. But she - it was such a big portfolio she - she had very little to do with Cultural Services, so in actual fact, as Cultural Development Officer, I

**** PATRICIA ZUBER XN MR TARNAWSKI

undertook a lot of the - the - well, the cultural development aspects of the Service Level Agreement. I think I wrote most of them in the first draft of the first Service Level Agreement. I pretty much wrote all - all of the specifications with the Senior Adviser Leisure and Lifestyle - you know, obviously she had to agree that it was acceptable, and she, of course, took it through up to Council, through the General Manager. But - and then as - and then when I took up this position as Senior Adviser Cultural Services - because this - the first, you know, as the first officer in this position I then - you know, I obviously knew that Service Level Agreement very well, having written a lot of it, and I - then our role is to - I mean, there's - there's performance reports that go to Council because, you know, the - because there are measures in - in the Service Level Agreement, so I have a kind of monitoring role in that regard, and if there - and most of the time they're fairly straightforward, but there are times where there are variations, and I - I - I have to - you know, my manager will ask, "Why is there this variation?" and I will - you know, should be in a position to be able to answer why there is this particular variation, and that's taken up through a report to Council. But we - at the end of the year we - I get together with my providers and discuss the Service Level Agreement and look at what we're doing and where we're going, and whether we need to make any changes to it for the following year, and I - those changes are made and - in draft, and then they go to the general managers to be discussed, and they very rarely knock them back. And we're interviewed - we're brought to an interview table where we're saying, "Well, these are the changes we're recommending"; "Why are you recommending them?" "Well, because of this, this, this and this", "Okay, fine, well we'll let that go through", or "We won't" for - you know, they may have - - -

PN423

There's a suggestion, though, that the provider - it would be strange provider - purchaser/provider split for the provider to actually do the evaluation of Service Level Agreements; would that - is that the case in Redland Shire Council?---That's right. Yes. I mean, that - that's the - that's the formal procedure, but - but in actual fact, in reality it - we work together. I mean, we work as - in partnership, you know - and we're - and it's not a cut and dried clear split; it's not black and white; it's - there's a lot of grey areas. Cultural Services Manager and myself negotiate a lot on what we will undertake, and I mean, there are some aspects of - of the work - of her work that I undertake, and I - it's just more convenient - I have more knowledge, you know. For example, as manager, public art projects - but strictly speaking that should be managed in the provider area, but I will manage them if that's the best thing to

**** PATRICIA ZUBER XN MR TARNAWSKI

do. And equally in the provider area, you know, for example, the local history librarian had done a lot of work on historical cemeteries in Redland Shire and some Indigenous cemeteries. She had a lot of information, a lot of photographs. We really needed to put a historical cemetery management plan together. Now, we had no budget to do it, so she agreed to draft it. Now, technically speaking, you know, in this divide I should be putting together that management plan, but as she already had a lot of the information she put it together. I - and we had an agreement. I said, "Okay, right, you do the - put the plan together. I will write the report. We will take it to Council together" and that's what we did. You know, so there's a lot of - the kind of negotiating of who will do what in - and at the end of the day we just want to - to get the work done, to deliver - you know, to have the best possible service - - -

PN424

In respect to the projects - - - ?--- - - - being delivered to the community.

PN425

Sorry?---Sorry.

PN426

In respect to the projects that are being conducted, how many at any one time would you be running, in terms of consultants - dealing with consultants?---It varies and it varies according to the size of the projects. I mean, at the moment - I mean, in the last year we've had a few very large projects. You know, the planning for a new library, the planning for a Performing Arts Centre. You know, so there's not very many projects but they are quite large projects. And there's been a number of smaller ones, you know, upgrades for the libraries and - and before that I was managing the tender process for a new library management system, new software for the library because, you know, they had been using a DOS based system and they needed a windows based system, so I managed that process. But obviously all the technical input came from IT and library IT staff, but I just managed the process. So, you know - and - I'm trying to think of something else. I've dried up. That's enough.

PN427

As long as you're comfortable. I turn to the selection criteria, the essential criteria. I would like you to quickly run through 1 to 8 and acknowledge as to whether you perform these duties and the significant parts that compliment, obviously, what the key accountabilities are. The first one is significant achievement in the application of policy, legislation, funding, service provision and evaluation to a diverse range of cultural services, such as major cultural venues and cultural development. Yes?---So my achievement generally - in general terms or in Council or background or - - -

**** PATRICIA ZUBER XN MR TARNAWSKI

PN428

As far as your role that you're being paid to do?---Significant achievement; well, the - policy legislation. Well - - -

PN429

No, it's not just the - in the application of policy, legislation, funding, service provision and evaluation to a diverse range of cultural services.

PN430

THE COMMISSIONER: Perhaps it's not clear what you're asking, Mr Tarnawski?---No, I'm not actually, sorry.

PN431

MR TARNAWSKI: Okay. It's selection criteria one?---Yes.

PN432

THE COMMISSIONER: Yes. Well, have you got that document there, Ms Zuber?---Yes.

PN433

All right. Well, it would help me, Mr Tarnawski, if in posing this question - rather than there to be perhaps an open-ended comment about it - if it can relate to - at some point to an aspect of the competing contentions. So if you think it's more representative of something or - I mean, I'm happy to have - - -

PN434

MR TARNAWSKI: All I'm suggesting - is asking Ms Zuber does she believe that she meets the essential criteria that's required of - - -

PN435

THE COMMISSIONER: Well, if that's what you want to ask, there you are, Ms Zuber, there's the question?---Yes.

PN436

MR TARNAWSKI: Number 2?---Yes.

PN437

The strategic planning, the effective development and evaluation of operational plans, service level agreements and operating policies and guidelines in a Cultural Services environment?---Yes.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN438

Number 3?---Yes, very much so.

PN439

Number 4?---Yes.

PN440

Number 5?---Yes.

PN441

Number 6?---Yes.

PN442

Number 7?---Yes.

PN443

And number 8?---Yes.

PN444

What I would like is for you to address those criteria in terms of how you believe you've done that within the confines - as succinctly as possible in your everyday role within the organisation that you apply that?

PN445

MR BENNETT: Well, Commissioner, if it will assist and save time, it's not part of our case that we suggest for one moment that Ms Zuber doesn't meet those essential criteria.

PN446

THE COMMISSIONER: It's not an issue that Ms Zuber doesn't do those things, it acknowledges that she does do those things.

PN447

MR TARNAWSKI: That's correct. And I accept that - if that's to expedite the matter I accept that confession on the part of my colleague. Because it is critical to ours that they meet the descriptors of Level 7. Because it's significant achievements, it's not just input or parts thereof. So I just want to make that very, very clear.

**** PATRICIA ZUBER XN MR TARNAWSKI

PN448

Ms Zuber, is there anything else you would like to elaborate on in respect to the role statement itself?---No.

PN449

It's consistent with the Level 7 Senior Advisers in respect of disciplines?---Yes, it's exactly the same as the Level 7 Senior Adviser's - - -

PN450

Ms Zuber, how long have you been involved in the Cultural Services industry?---Over 30 years.

PN451

Have you qualifications in respect to that?---I do have some, yes. A Graduate Diploma in Community Cultural Development and Local Government Diploma in Cultural Planning and I've undertaken numerous courses throughout my career, but my - I think my biggest credibility is the extensive - the number of years and the extensive knowledge and work that I have in the industry.

PN452

Thanks, Ms Zuber. Is there anything else you want to finish off on in terms of - that hasn't been covered that you would like the Commissioner to know?---I suppose what's missing for me from - from a lot of this is the fact that we - we initiate a lot, Commissioner. You know, we - a lot of this work is initiated by the Senior Advisers. It doesn't sort of come down from above. It comes out of the work that we do. So I just would like to make that statement.

PN453

That is why your expertise is so critical. Thank you?---Thank you.

PN454

THE COMMISSIONER: Yes, Mr Bennett.

PN455

MR BENNETT: Thanks, Commissioner.

<CROSS-EXAMINATION BY MR BENNETT [2.31pm]

**** PATRICIA ZUBER XXN MR BENNETT

PN456

MR BENNETT: Ms Zuber, you're a Senior Adviser, aren't you?---Yes.

PN457

That's your position title, Senior Adviser, Cultural Services. Is that correct?---That's correct.

PN458

You're not a manager, are you?---No.

PN459

Whereas your colleague that you said you worked very closely with, the Cultural Services Manager, she's a manager, isn't she?---Yes.

PN460

So, for example, she oversees the management of, I think, seven libraries. Is that correct?---No. Well, there's a few small ones. There's two mainland libraries.

PN461

So how many libraries does the Cultural Services Manager manage?---She manages the two mainland libraries. There's a small library on Russell Island and a branch library on - no, actually they are all community libraries. So they are actually run by the community. And there's a mobile library service and an outreach library service. But they are run by - by branch librarians. She doesn't run them herself.

PN462

She's responsible. She oversees the management of the libraries?---The - the - no, there are branch - there are branch librarians and outreach librarians who manage those libraries and those mobile library and outreach services. The Cultural Services Manager doesn't manage those particular libraries.

PN463

Does the Cultural Services Manager oversee the management of the libraries?---She's Manager of Cultural Services - - -

PN464

Sorry, Ms Zuber, we're going to get through this much quicker this afternoon if - that's an open and shut question. Does the Cultural Services Manager oversee the management of the libraries?---Well, I don't - - -

**** PATRICIA ZUBER XXN MR BENNETT

PN465

"Yes" or "No"?---But why are you asking this? I mean, you know very well that her title is Manager, Library Services. And there's a hierarchy in Council through which - under which - where a number of staff members sit who actually manage those services. So there are corporate librarians, there's a technical librarian, there's a collection of librarians that - - -

PN466

But she's ultimately responsible for the libraries?---She's - she has - only has a small number of staff reporting to her directly who manage those libraries.

PN467

I'm happy with that answer, thank you. And the art gallery, does she have over-site management - over-site of the art gallery?---There's a Cultural Development Officer who manages the gallery.

PN468

And who does that officer report to?---And she - he report to the Cultural Services Manager.

PN469

So you said that the Cultural Services Manager has a small number of staff directly reporting to her. Do you know how many?---I don't off the top of my head, no.

PN470

If I was to say seven, would you disagree with that?---No.

PN471

So she could have seven direct reports?---I'm not sure at the moment.

PN472

And I put it to you she's got 105 indirect reports?---Yes, I'd say.

PN473

Do you agree with that?---I don't know the exact number.

PN474

But certainly you don't disagree that she's got in the vicinity of 100 indirect reports?---I suppose not.

**** PATRICIA ZUBER XXN MR BENNETT

PN475

And I don't expect you to be familiar with these precise numbers, but if I put it to you that the Cultural Services Manager oversees an annual operating expenditure of $6,800,000; is that a number you feel comfortable with or - - - ?---There's a - - -

PN476

Do you think that would be about right?---- - - library services budget, yes.

PN477

And capital expenditure? The Cultural Services Manager oversees the capital expenditure of $1,400,000 a year. Does that sound about right to you? Sorry, you'll need to answer for the transcript either yes or no?---Yes.

PN478

Ms Zuber, who manages your work area then?---Well, our supervisor is Manager, Community and Social Planning.

PN479

Right. And you report to the Manger, Community and Social Planning?---Yes.

PN480

Is that correct? Yes. So she manages your, would you call it a work area - Community and Social Planning is a unit?---Yes. Well, yes, it's a unit and - yes.

PN481

So she's the manager of that unit?---Yes.

PN482

You don't manage a unit, do you?---No. I operate as a specialist and I manage a special function.

PN483

That's right. Yours is, I think you said earlier, a strategic planning and policy role?---Yes.

PN484

It's not a management role?---No.

**** PATRICIA ZUBER XXN MR BENNETT

PN485

That's right?---But I do lead and manage projects.

PN486

Yes. What I'd put - what I'd call control and coordination of projects; is that correct?---I'd call in management of projects. In fact my position description designates it as "lead and manage".

PN487

Basically it's the control and coordination of projects?---It's the leadership and management of projects.

PN488

And that's a level 6 accountability, isn't it?---It's a level 7 accountability, too, because I think in the award it says level - the level 7, from memory, yes, managerial responsibility or operates as a specialist in a specialist function.

PN489

The control of - what we were talking about was the control and coordination of projects. That's a level 6 accountability, isn't it?---It's a level 7 accountability as well.

PN490

Well, sorry, the question I've asked is, is the control and coordination of projects a level 6 accountability? I guess by the fact that you've said "as well", you are agreeing with that?---It's both, 6 and 7. It depends on the project.

PN491

THE COMMISSIONER: In fact there's a number of accountabilities that appear in both level 6 and level 7, aren't there, Mr Bennett?

PN492

MR TARNAWSKI: Commissioner, if I may, if the questioning is going to go into the level of - to the descriptors, would there be any objection to Ms Zuber being made available the descriptor so she can work - look at them and talk to them?

PN493

MR BENNETT: I'm quite happy with that. In fact, I'm happy to tender copies of the award, Commissioner.

**** PATRICIA ZUBER XXN MR BENNETT

PN494

THE COMMISSIONER: It won't be necessary to tender that. I have a copy of the award. A copy available for the witness?

PN495

MR BENNETT: If I could - just so that we're all working from the same document, Commissioner, if Ms Zuber can see that and - I don't know if that is the same version of the award that you've got, Commissioner, but that way the page references would be the same.

PN496

THE COMMISSIONER: Yes, all right.

PN497

THE WITNESS: What page is it?

PN498

MR BENNETT: Sorry, we're right at the back, Ms Zuber. Page 103 is where level 6 starts. So on page 104, at the bottom of the page, in terms of responsibilities, it says:

PN499

Where prime responsibility is in a professional field... -

PN500

and I put it to you that that would cover your situation. Do you agree with that? Do you see yourself as being in a professional field?---Yes.

PN501

An officer at this level controls and coordinates projects. Do you see that at the bottom of page 104?---Yes.

PN502

So that's a level 6 accountability, isn't it?---Sorry, I don't know what you're getting at.

PN503

Well, just if - - -

**** PATRICIA ZUBER XXN MR BENNETT

PN504

THE COMMISSIONER: Do you see that will be - what you have to do is, if you can focus on the questions being asked?---Yes.

PN505

And with that question in mind, provide an answer. That's what has to happen?---Okay. It's that I just get the distinct feeling I'm being manipulated.

PN506

All right. If Mr Bennett asks you a question, it will help me if you focus on what the question is that's being put and respond to it.

PN507

MR BENNETT: I apologise, Commissioner.

PN508

And to you, Ms Zuber, I've had you in the wrong stream there. The stream we should be looking at, as I understand it, starts on page 85 of that document. That would us in the Community and Environmental Services stream. Does that sound correct to you?---That's right.

PN509

THE COMMISSIONER: Mr Bennett, there are some notations of the document that has been handed to me. Are they meant to be there?

PN510

MR BENNETT: They've only just been drawn to my attention, too, Commissioner. I wasn't aware that it had been annotated in that way.

PN511

THE COMMISSIONER: It might be I have your working copy, that's all. Sometimes this happens.

PN512

MR BENNETT: I apologise, Commissioner, that - I've asked for that to be copies and obviously my secretary didn't realise that the copy that she was copying had marks in it, but I believe we have some clean copies here. Commissioner, I believe in the bundle of documents that you were provided there were just the relevant pages, level 6 and level 7 of the award. On that particular document it's pages 74 through 77.

**** PATRICIA ZUBER XXN MR BENNETT

PN513

THE COMMISSIONER: I don't know. That may be exactly right, but is that in the - - -

PN514

MR BENNETT: I believe it's in the bundle of documents that we provided to you.

PN515

THE COMMISSIONER: Mr Bennett, I'm happy to use this award. You see, as soon as I see a notation that really provides some sort of commentary, you do become a bit nervous because you think, well, there could be something else. It may be there's no problem and I'm happy to push on with it.

PN516

MR BENNETT: I'd be quite happy if Ms Zuber might give that one back to us and I'll provide her with one of these clean copies just of the relevant part. I'll just show my friend, and he can satisfy himself that we've got the right bit.

PN517

MR TARNAWSKI: You certainly have.

PN518

MR BENNETT: That was quick. You must be very familiar with it.

PN519

MR TARNAWSKI: I certainly am.

PN520

MR BENNETT: Well, I apologise for that.

PN521

THE COMMISSIONER: So we're at page 85 now, are we?

PN522

MR BENNETT: Now at page 75 of that document, which I think is page - - -

PN523

THE COMMISSIONER: Mr Bennett, I might give this back to you. There's a fair bit more I've just discovered - - -

**** PATRICIA ZUBER XXN MR BENNETT

PN524

MR BENNETT: Yes.

PN525

THE COMMISSIONER: - - - of these comments.

PN526

MR BENNETT: Sorry. So now, Ms Zuber, what have you got in front of you now?---So this is Level 6, characteristics of the level.

PN527

Yes?---And I'm on the second page, "Responsibilities". "Professional Field" you were just referring to.

PN528

And what are you comparing that to there?---I've - pardon? This is - this is - this is the Level 6. I did actually have a copy of the Level 6 - - -

PN529

You've got - - -?--- - - - characteristics.

PN530

- - - a copy of the award there, is it?---Yes, that's correct. Yes, but I didn't realise I actually had it in my paperwork.

PN531

Okay.

PN532

THE COMMISSIONER: Mr Bennett, I'm working on my copy of the award. It may - so let's press on - - -

PN533

MR BENNETT: Well, we're in level - - -

PN534

THE COMMISSIONER: - - - and we'll see if it - - -

**** PATRICIA ZUBER XXN MR BENNETT

PN535

MR BENNETT: We're in level 6.

PN536

THE COMMISSIONER: Level 6 I can handle, yes.

PN537

MR BENNETT: And under the sub-heading of, "Responsibilities", that last dot point there - so for you, Ms Zuber, it's on page 75 - and we were talking before, if you recall, about the prime responsibility lying in a professional field, which, I think you agreed, applied to you - and under that dot point, sub-paragraph number (2) talks about "control and coordinate projects". So that's a level 6 accountability, isn't it?---Yes, except my - my role descriptor requires me to lead and manage projects.

PN538

And in fact if you turn then - - -?---So the terminology is quite different.

PN539

If you turn, then, to page 76, you see the heading there, "Extent of Authority", which is still at the end of - it's part of the Level 6. There's a dot point there of "Accountability", "May manage a work area", and below - beneath that, another dot point, "Manage significant projects". Those are all Level 6 accountabilities, aren't they?---Those two that you mentioned, the - - -

PN540

Are Level 6 accountabilities, aren't they?---Control - well, obviously; they're listed here; yes.

PN541

That's right. We may return to that award - if you might just put that aside for the moment. Now, Ms Zuber, the proposals that you develop, do you have a final sign-off on those proposals?---And what do you mean by "proposals"?

PN542

Well, you've said, for example, that you research and put together proposals to Council; I think you referred to various examples. Do you have the final sign-off on those?---I - well, we don't refer to them as "proposals".

**** PATRICIA ZUBER XXN MR BENNETT

PN543

What would you refer to them as?---I mean, it - well, it sounds very simplified to say that. I mean, there's budget proposals, for example, that are actually called "project proposals".

PN544

Well, do you have final sign-off on them?---So I develop those and submit them to my manager and she - - -

PN545

You submit them to your manager, yes?---Yes, indeed. Well, yes.

PN546

Yes?---And she submits them to the General Manager and so forth up the line.

PN547

Up the line, yes. And you talked earlier about Service Level Agreements. Is it the same in relation to those? Do you submit them to your manager?---Well, there are a number of people involved in the - in the development of - well, I say - I mean, there have already been developments, but in - in Service Level Agreements - - -

PN548

So again you don't have final sign-off on the Service Level Agreements - - -?---There are a number of signatories.

PN549

- - - do you? No?---But I have a major role as - as a - - -

PN550

Of course, as a - - -?--- - - - as designated in my Service - - -

PN551

- - - as a Senior Adviser?--- - - - in my role descriptor.

PN552

That's right?---And it's - you know, it's not a question of maybe being involved. I mean, it's a - an essential role that I play - yes.

**** PATRICIA ZUBER XXN MR BENNETT

PN553

Nobody - nobody suggests otherwise, Ms Zuber. You explained, I think, a little to the Commission earlier the Specifier Provider Model that operates within the Council. Can you just confirm for me, your position now sits on the specifier side of Council, doesn't it?---It does.

PN554

So you don't have responsibility for the control and evaluation of operations, do you?---Only as it - only as it relates to the Service Level Agreement. And I do, to an extent, in - in the - when one writes policies and guidelines, they don't just simply stop there; you know, I mean, there is a role that we play in ensuring that those - that the - I mean, the gallery, for example, that it operates under the jurisdiction of the policies and guidelines that have been formulated for it, you know, so I do, as I say, sit on the advisory panels of, probably, art and - Art - Redland Art Gallery, and I do that in order to oversee the implementation of the policies and guidelines.

PN555

Sure?---Yes.

PN556

But you don't have responsibility for the control and evaluation of operations, do you?---The - well, as I say, there's a - there's just a monitoring role in - in - in that the - there are key performance indicators that the operational area are - are required to provide through this - through this structure.

PN557

Yes?---Through the specifier provider, through the specifiers, through the Service Level Agreement, key performance indicators and the requirements of the Service Level Agreement, they are required to - to report through by collecting data and - and writing reports - - -

PN558

You're not suggesting that they report to you?---It comes through - it - I play a role in it.

PN559

You play a role?---I'm not the only person, no.

**** PATRICIA ZUBER XXN MR BENNETT

PN560

You're not suggesting - - -?---I'm not suggesting - - -

PN561

- - - that they report to you? You're not responsible for it, are you?---There is a responsibility - - -

PN562

You play a - - -?---I have a responsibility - - -

PN563

- - - play a role?---I - no, I have a responsibility. I have a responsibility as in role descriptor; it's not that I am not - have no responsibility at all. That is just completely untrue, and I'm not saying I am solely responsible; of course not. There are a number of players in the - - -

PN564

You're not suggesting that the Cultural Services Manager somehow reports to you as the Senior Adviser Cultural Services, are you?---She report - yes, the - I have a role - - -

PN565

She has a reporting line to you, does she?---She has a reporting line - not - not directly to me, but I have a role to play in - - -

PN566

No, no - well, just answer that question - - -?--- - - - in monitoring those reports.

PN567

- - - does she have a reporting line to you?---Not - well, of course not directly to me.

PN568

No. Okay. That's enough. Thank you?---Yes. You know that.

PN569

And outcomes for specific projects, they're established by the Provider division, aren't they?---The outcomes for which projects?

**** PATRICIA ZUBER XXN MR BENNETT

PN570

For any project that you're involved with?---The provider area has - what did you say?

PN571

The provider division establishes the outcomes, don't they?---Of my projects?

PN572

Yes?---No. No.

PN573

You don't establish the outcomes for projects?---Yes, I establish the outcomes of my projects.

PN574

That are being developed by the provider division?---Well, that's their projects. They - they establish the outcomes for their projects; I establish the outcomes for my projects. They're quite different.

PN575

The reality is that you have a planning role in these projects and then you - - -?---Yes, and I run planning - - -

PN576

- - - hand it on - - -?---I run planning - - -

PN577

- - - you hand it on to the provider division - - -?---No, I run planning projects; I run planning projects that I am responsible for and that I manage, and that I am responsible for the outcome of.

PN578

Of the planning project?---Yes. Well, they're no less important than the providers, and they're not - - -

PN579

I see?--- - - - projects; they're - they're the delivery of services and programs. They don't run projects. They - they manage services and programs, and they're responsible for the services and programs that they manage, and they are - - -

**** PATRICIA ZUBER XXN MR BENNETT

PN580

Projects involving - - -?--- - - - required to have certain - - -

PN581

- - - involving - - -?---Yes.

PN582

- - - much, much larger budgets, aren't they?---Oh, yes, larger budgets, yes.

PN583

Yes, larger budgets. See, your counsel, Mr Tarnawski, tried to suggest that because you're in partnership with the Cultural Services Manager, that somehow it was unfair - at least he seemed to imply this - that it was unfair that the Cultural Services Manager was a Level 7 but you're a Level 6. Do you agree with that? Is that what you think?---Well, it's not - it's not my - it's not my place to - to say whether - what level she should be on.

PN584

There's a quantum leap between the level of responsibility that you have and the level of responsibility that the Cultural Services Manager has, isn't there?---She has a different kind of responsibility. It's a different kind of responsibility. It's a different job completely. You can't compare.

PN585

Do you have any staff reporting to you?---You can't compare.

PN586

Do you have - sorry, we're moving on. Do you have any staff reporting to you?---I have - I have - I have not reporting as - as if - as I, as a supervisor, no. But I do manage staff on projects.

PN587

I wonder, do you still have the position description, T6? Do you still have a copy of that? I wonder if Ms Zuber might see the position description, T6. Have you got that still?---Yes.

PN588

On the front page of that under Organisational Relationships there's a specific heading, isn't there, of Supervisors? What does that say, just for the record, Ms Zuber?---"Nil".

**** PATRICIA ZUBER XXN MR BENNETT

PN589

"Supervisors nil", doesn't it?---Yes, it does.

PN590

Ms Zuber, do you have authority to bind the Council to a contract with a third party?---Only Council has the authority to bind itself to a contract. I write contracts.

PN591

Do you have some delegated authority to enter into, for example, consultancy agreements?---Well, yes, it's part of my - that's in my role. I mean, I am required to - to undertake research, so whatever I need to do to undertake that research and if that involved commissioning a consultant, then I have - I mean, it's not written anywhere, but, I mean, there is obviously, through the role descriptor and through the fact that I'm undertaking those roles and responsibilities, a delegated authority to enter into an agreement with a consultant. I mean - - -

PN592

Do you sign off on the agreement with the consultant?---I do sign the agreement, yes.

PN593

Is there any limit on that?---On the - - -

PN594

Is there any limit on your authority in that way? Can you spend $100,000?---Probably up to 100, yes. It's my - - -

PN595

$100,000?---I have signed off on contracts of $60,000.

PN596

I put it to you that you've got delegated financial authority up to $5500?---Well, I - - -

PN597

Is that figure familiar to you?---Yes, it is.

**** PATRICIA ZUBER XXN MR BENNETT

PN598

It is?---But what I was talking about was signing the contract. What you're talking about is - is signing off on the - on the purchase requisition.

PN599

The level of your authority - - - ?---I can't - I have up to $5000 delegation.

PN600

Your limit is up to $5000 delegation, isn't it?---Yes, but that's just to sign. I would have to put the invoice through to my manager, yes, the purchase requisition. No, actually that's not true. The purchase requisition I would put through my manager because she has a greater financial delegation, but the sign - I would sign - you know, I would write the brief.

PN601

But your financial delegation is limited to $5500?---The financial delegation is, yes.

PN602

Okay?---And that's the same with all of the Senior Advisers. All 17 Level 7 Senior Advisers have the same financial delegation.

PN603

Sure. Now, if I could turn to your witness statement. You've got a copy of that. In paragraph 3 of your statement there you say in relation to your position, Senior Adviser, Cultural Services, that the position had been evaluated as being at Level 7 by the consultants engaged to undertake the PDPE project. That's just not right, is it?---Hold on a second. I just haven't got my witness statement yet. Sorry, what was that again? What did you say? Could you repeat the question, please?

PN604

You say there at paragraph 3 - - - ?---Yes.

PN605

- - - that your position, the Senior Adviser, Cultural Services, had been evaluated as being at Level 7 by the consultants engaged to undertake the PDPE project?---That's what I was told at the time.

**** PATRICIA ZUBER XXN MR BENNETT

PN606

Who told you that?---The - the Manager - the Manager of Community and Social Planning at the time told me that.

PN607

I'm sorry, who is that?---His name is Ted Cleary.

PN608

How long ago was that?---That was - I don't know. I can't remember. Two and a half, three years ago.

PN609

Well, you didn't say that in your statement, did you?---Something like that. Say what?

PN610

You didn't say in your statement "Ted Cleary told me a few years ago over a sandwich that the position had been evaluated as being Level 7 by the consultants"?---I didn't no.

PN611

You've sworn to that as a true statement in this Commission?---Oh, well, perhaps that was a mistake then.

PN612

It might not be right, might it?---Well, that's what he was told. And that's what I was told and that's what he said to me. And it wasn't over a sandwich, it was a formal discussion. He told me that it had been evaluated by the consultants and that they were surprised that it had come back at a Level 7, because the other Senior Advisers at the time were on Level 6. That's what he told me and that's all I can say.

PN613

Commissioner, I wonder if Ms Zuber might see this document.

PN614

THE COMMISSIONER: Yes.

**** PATRICIA ZUBER XXN MR BENNETT

PN615

MR BENNETT: She should have seen it before?---Yes.

PN616

I've got a copy for yourself, Commissioner. It probably should be marked as an exhibit. Just take a moment to have a look at that, Ms Zuber. Have you ever seen that before?---No. What's the - this is - what are you showing me?

PN617

That's the report from the Council's file in relation to the PDPE evaluation of your position. You've never seen that before?---Oh, that was undertaken afterwards. Oh, yes, yes, sorry.

PN618

It was undertaken - - - ?---Yes, this - this was - - -

PN619

It was undertaken by - I would put it to you - I'm happy for you to challenge me on this, but I put it to you it was undertaken by the consultants Corporate Services at the request of Council - sorry, Corporate Success?---Corporate Success.

PN620

THE COMMISSIONER: It's a bit like the name of an Act. There is legislation these days that seems to have titles that suggest all sorts of things. Yes. So do you understand that question, Ms Zuber?---Yes. Well, yes, Corporate Success were the third lot of consultants that Council engaged to - in the process of this project. I - I was under the impression that the - that the position had already been - but it had definitely been evaluated because the letter that I received from the HR Manager said - it stated that it had been re-evaluated; that the position had originally been advertised at Level 7 and then been re-evaluated. So it obviously had been evaluated at 7 by somebody at some point in time. I was under the impression it was the consultants, but - - -

PN621

MR BENNETT: Well, Ms Zuber, I'm giving you this opportunity to correct your sworn statement. You've said that a position had been - - -

**** PATRICIA ZUBER XXN MR BENNETT

PN622

THE COMMISSIONER: Yes, Mr Tarnawski.

PN623

MR TARNAWSKI: Commissioner, if we may help, the letter that Ms Zuber has just referred to - - -

PN624

MR BENNETT: I'm not sure that's in connection, Commissioner.

PN625

MR TARNAWSKI: Well, it's clarification. I will do that in cross-examination.

PN626

THE COMMISSIONER: All right.

PN627

MR BENNETT: I think re-examination is the proper - - -

PN628

THE COMMISSIONER: Yes.

PN629

MR TARNAWSKI: Re-examination then.

PN630

MR BENNETT: This probably - this is - it should be, I think, probably marked for identification or tendered.

PN631

PN632

THE COMMISSIONER: Yes. Well, are you going to tender it through someone later on?

PN633

MR BENNETT: It is attached as an exhibit to Mr Hoelscher's affidavit.

**** PATRICIA ZUBER XXN MR BENNETT

PN634

THE COMMISSIONER: All right, look, we won't get too fancy about this. I'm going to mark this as B1.

PN635

MR BENNETT: Thank you, Commissioner.

PN636

THE COMMISSIONER: This is classification of Level 6, Training and Policy.

EXHIBIT #B1 CLASSIFICATION OF LEVEL 6, TRAINING AND POLICY

PN637

MR BENNETT: Now, if you could turn to the back page of it, please, Ms Zuber, the Position Evaluation Report. That's the report of the assessment done by Corporate Success in relation to the position Senior Adviser - Cultural Services. Do you agree with that?---Yes.

PN638

At a time when you were acting in the position apparently?---Yes.

PN639

You were actually interviewed about it, weren't you?---No. I was present at the interview. The senior - the person who was Senior Adviser - Leisure and Lifestyle was interviewed. I was just present.

PN640

And what, according to Corporate Success, was the position evaluated at then. According to that document that you've got in front of you, what was the position evaluated at, what level?---Well, this subsequent position evaluation was evaluated at 6, but the first evaluation was evaluated at 7.

PN641

Sorry, what's the first evaluation?---The evaluation of the position before it was advertised at 7 internally and externally. It was advertised in Council and it was advertised in the Courier Mail. It was - - -

**** PATRICIA ZUBER XXN MR BENNETT

PN642

Yes, we all know that it was advertised at 7?---And it was evaluated at 7 prior to that.

PN643

Says who? Says this bloke you had a conversation with a couple of years ago?---He's not a bloke. He was a manager of Community and Social Planning. He told me it had been evaluated and it was advertised at 7, for heaven's sake. I mean, it was out there - - -

PN644

It was advertised?---- - - in the public arena for many weeks.

PN645

I put it to you it was advertised by mistake?---Eleven people applied for it.

PN646

It was advertised at level 7 by mistake?---Rubbish. I'm sorry, I don't agree with that.

PN647

Well, you don't know to the contrary, do you, Ms Zuber?---I know it was evaluated because the letter I got from the HR Manager told me that it had been re-evaluated, which indicates that it was evaluated in the first place. Now, that came from the manager of HR.

PN648

Your statement purports to suggest - - - ?---Was he lying?

PN649

- - - that the position was evaluated as level 7 by the consultants engaged to undertake the PDPE project, doesn't it. Now, you agree with me now that that must have - you must have been in error on that?---Well, I've only got your word for it.

PN650

But you accepted that the document that the document that you've got in front of you is the position evaluation report from Corporate Success who were the consultants engaged to do the PDPE?---They were one of the consultants. There were three lots of consultants that undertook that project. They were the last lot of consultants so - - -

**** PATRICIA ZUBER XXN MR BENNETT

PN651

Yes, the other two consultancies didn't proceed?---It's possible that they may have been evaluated by the previous consultants, I don't know, but it was definitely evaluated. Someone in HR evaluated that position, there's no doubt about it.

PN652

Well, can you produce any evidence for that, Ms Zuber?---I will if you give me some - if we could call someone who was there at the time in the Senior Adviser - - -

PN653

Have you ever seen any documentation to support what you're saying?---Well, I would suggest that the - - -

PN654

No, just - have you seen any documentation to support what you're saying?---Well, why would Council advertise - - -

PN655

No, I'm sorry - - - ?---- - - a position - - -

PN656

I'm sorry, Ms Zuber, just answer the question. Have you ever seen any documentation to support what you're saying?---Can you repeat what I'm supposed to have been saying?

PN657

Have you ever seen any documentation to support your assertion that there was a previous evaluation by an external consultant - - - ?---I haven't.

PN658

- - - prior to the document that you've got in front of you now?---No, we weren't - - -

PN659

No?---We wouldn't - - -

**** PATRICIA ZUBER XXN MR BENNETT

PN660

Thank you?---We wouldn't have been allowed to - - -

PN661

Now the document- - - ?---- - - see those.

PN662

- - - that you have in front of you is the evaluation prepared by Corporate Success. Do you agree with that?---Yes.

PN663

And what did Corporate Success evaluate the position at, what level?---They evaluated it at 6.

PN664

THE COMMISSIONER: Mr Bennett, before you go on, I don't want to interrupt your cross-examination - - -

PN665

Ms Zuber, why do you agree, or why is your evidence now that this is the Corporate Success evaluation?---Well, there are two evaluations, Commissioner.

PN666

Sorry, Ms Zuber, did you - can I just ask the question, what makes you agree with Mr Bennett that this is a Corporate Success evaluation? Is there something there that tells you that that's what it is?---Well - - -

PN667

Do you know the way they would lay their work out? Is that how you - how are you coming to that position?---I see what you mean. Yes, there isn't actually anything that says on here, is there, that it is a Corporate Success - - -

PN668

You may just know through a whole range of other ways that you know things in life?---Well, the only reason, I suppose, that - I mean, was that there was a consultant at the interview with the senior - the previous incumbent. There was a consultant there. That interview was conducted by a consultant not by someone from HR, so I can only presume that person was from Corporate Success.

**** PATRICIA ZUBER XXN MR BENNETT

PN669

Do you think they were? Do you know who they were, the consultants, present?---I don't know exactly, no, I don't, I have to say. We were - I was called in. The interview was called and I just went along - it was actually called with the previous incumbent and I went along and sat in on it and it was conducted by a consultant. So, I mean, I don't know for sure that that person was from Corporate Success but presumably he was. If Mr Bennett is right, I don't know. But I - - -

PN670

Well, is this - as I understand your evidence, you see, what can be said about it, Ms Zuber, I think you've agreed that this is a Corporate Success evaluation. Do you agree with that?---If that consultant was from Corporate Success yes.

PN671

All right. And you don't know that person's name, do you?---I don't. It was a long time ago. No.

PN672

All right. Thank you.

PN673

Yes, Mr Bennett?

PN674

MR BENNETT: Ms Zuber, at paragraph 16 of your statement you refer to a position evaluation report. Is that this document that you're talking about?---Sorry, where was this?

PN675

In paragraph 16 of your statement you say something about the - your refer to the position evaluation report?---I'm relating to the level 6 position evaluation report.

PN676

The one that's in front of you?---Yes.

PN677

Which we just confirmed - we just ascertained was prepared by - you at least know for sure that it was prepared by the external consultants. You've taken it from me that that was Corporate Success; is that correct?---Well, presumably.

**** PATRICIA ZUBER XXN MR BENNETT

PN678

Well, sorry. You've referred to this position evaluation report in your statement?---Yes.

PN679

When you referred to it- - - ?---Yes.

PN680

- - - is this the document that you had in mind?---Yes.

PN681

Thank you. And that was prepared, to the best of your knowledge, by some external consultant?---By an external consultant, yes.

PN682

Someone that you would assume has expertise in assessing classifications?---Yes.

PN683

And they reached the conclusion that the position was properly evaluated at a level 6, didn't they?---They did.

PN684

That document, while you've got it in front of you, on the left-hand side of the page it goes down the level characteristics that the consultant identified as applying to your position. Do you disagree with that list of level characteristics?---Sorry, say that again? The level characteristics - - -

PN685

The document that you've got in front of you, the position evaluation report - - - ?---Yes.

PN686

- - - lists on the left-hand side of the page a number of level characteristics under a heading:

PN687

Positions at this level identified by impact or activities undertaken or achievement of stated outcomes or objectives for the work area.

**** PATRICIA ZUBER XXN MR BENNETT

PN688

Do you agree with that list?---What do you mean there?

PN689

Do you think that's - - - ?---What do you mean by agree with the list?

PN690

Do you think that is a fair assessment of the level characteristics for your position?---Well, these are level characteristics for level 6 and some of them correspond with my - with the position that I hold but some do not.

PN691

You say that some of those level characteristics don't apply to your position?---Some of the - some of them are under par, if you like.

PN692

All right. And what about on the right-hand side then, the rationale which the consultant used for evaluating the position at level 6? Do you disagree with some of that rationale? Do you say that some of that is incorrect in its application to your position?---No, it's not - it's correct. It's not incorrect.

PN693

So the consultant wasn't misinformed about your position when he or she made that assessment?---No.

PN694

In paragraph 8 of your statement you refer to this memo from Ms Culverhouse, which I understand - I gather is fairly central to your case. did Ms Culverhouse do some detailed analysis of your position with reference to the award classification description before she wrote that memo?---No.

PN695

Do you say that she was in that memo expressing an opinion that your position was wrongly classified?---She felt that the - all of the Senior Advisers in our unit - under - have the same roles and responsibilities - and level of responsibilities and that we undertook the same work and that we should, therefore, be classified at the same level.

**** PATRICIA ZUBER XXN MR BENNETT

PN696

So she thought it was an equity issue, did she?---She did.

PN697

She wasn't actually suggesting that your position - that she had done any analysis and concluding that your position was wrongly classified at Level 6, was she?---She knows our positions and she knows what we do very well, better than anyone.

PN698

But you just said she hadn't done any thorough - - - ?---But she hadn't done an - not an evaluation.

PN699

In fact, in her memo she was just asking for the - - - ?---As such - - -

PN700

- - - relevant Human Resource person to do a review, wasn't she?---No, she asked for the equity issue to be looked at a review. It was the HR officer - - -

PN701

I will have to correct you on that. Let's call for the document?---She - the HR officer suggested that the best way of going about it was to - anyway, I'm - excuse me, Commissioner, I feel as though I'm on trial here. Can we not have questions couched in a way that it's more straightforward? I mean, I haven't done anything wrong.

PN702

THE COMMISSIONER: No, Ms Zuber. Well, Ms Zuber, the difficulty is, of course, that a lot of the conclusions and the feelings you have about your job are contested. And so it's very difficult. But I'm sure that Mr Bennett would be the first to say on behalf of Mr Lewis, no doubt, that the value of the work you perform isn't in any way sought to be deprecated or denigrated. But there is notwithstanding that a disagreement unfortunately about where it lies in relation to this document. And because we haven't been able to - or it's not been possible for there to be any other way of resolving this difficulty that sees you in that cubicle. I've spent my whole adult life - later adolescent life, I might say, avoiding that cubicle, but you're in it and unfortunately you have to answer questions put by Mr Bennett. And it's true that he's trying to sheet

**** PATRICIA ZUBER XXN MR BENNETT

home advantage about these things, all the subtleties of these debated points in the way that you sometimes detect and object to in the way that he's doing. You don't want that to go to your disadvantage or to - to have the effect of meaning that points that are in your favour are overlooked or that sharp points in your favour can be somehow dulled or diminished. Now, you've got Mr Tarnawski to come along after you and he will do some mopping up and I'm listening pretty carefully to what Mr Bennett is doing, so it is important from the subjective point of view that last minute of mine or two minutes is almost impermissible. But don't be too worried about it if you can. And it's not always easy in these circumstances to divorce yourself from the issue that's in contest here and there's a tug-of-war. So don't - but do - Mr Bennett is not - and the Council will not want you to think that they are not in some way thinking that your work is not highly valued, but there is, at the beginning of the day and the end of the day, a disagreement about where it's to be classified. And that sees us here doing this. But it's not meant to draw blood and it's not meant to make you feel very bad at all. Is it, Mr Bennett?

PN703

MR BENNETT: Not at all, Commissioner.

PN704

THE COMMISSIONER: So it isn't easy. Take a deep breath. And my associate will keep you absolutely full to the brim with water and we will see if we can go on. If necessary we can have a short break.

PN705

MR BENNETT: Of course.

PN706

THE COMMISSIONER: Would you like to have a short break?---Yes, please.

PN707

All right. Well, a short break for my purposes is going to be 10 minutes so the kettle can be fired up. So it's a 10 minute adjournment. Don't discuss your evidence, Ms Zuber?---No, I won't, Commissioner.

**** PATRICIA ZUBER XXN MR BENNETT

PN708

All right.

SHORT ADJOURNMENT [3.19pm]

RESUMED [3.36pm]

PN709

THE COMMISSIONER: Yes, Mr Bennett.

PN710

MR BENNETT: Thank you, Commissioner. I would like to hand this document to Ms Zuber. Again, Commissioner, it is attached as an exhibit to Mr Hoelscher's affidavit and I tender it for identification.

PN711

THE COMMISSIONER: Yes, all right. Well, I will mark that as B2. It's Ms Culverhouse's communication to Ms Sprott.

EXHIBIT #B2 COMMUNICATION FROM MS CULVERHOUSE TO MS SPROTT

PN712

MR BENNETT: Now, Ms Zuber, is that the memo that you're referring to at paragraph 8 of your statement?---Yes.

PN713

And I think just before the break you were saying or suggesting that - sorry, I take it back. I had suggested that all that Ms Culverhouse did in that memo was to ask Ms Sprott, who was a Human Resource Officer within the Council, to undertake a review of your position. And I think you were disagreeing with me. Now that you've had an opportunity to look at the memo and refresh your memory do you still disagree with me on that point?---Oh, well, it's just splitting hairs. I mean, yes, she is asking for a review because she thought there was - - -

**** PATRICIA ZUBER XXN MR BENNETT

PN714

That is what she's asking for, isn't it?---Yes.

PN715

And I think you told me before the break that Ms Culverhouse hadn't done any detailed analysis of your position; that really the reason for that memo was that she was concerned about what she considered to be some inequity between the officers that report to her. Is that correct?---That's correct.

PN716

So, Ms Zuber, I put it to you this way. If Trevor Green's position was a Level 6 would you be here today?---Probably not.

PN717

Is it possible that Mr Green's position has been wrongly classified as a Level 7?---It's not my place to say.

PN718

I wonder if Ms Zuber could see - or you may already have it in front of you, Ms Zuber, T1. Exhibit T1, which is the document that - - -

PN719

THE COMMISSIONER: Have you got those Ts, Ms Zuber?---Which - I haven't got anything that's marked T.

PN720

That's all right.

PN721

MR BENNETT: The document that Ms Zuber and the union originally prepared as the incumbent evaluation rationale. No, I think - I don't think that's the wrong one. That's the one with the koala in the corner. That's the Redland Shire Council document. I think that was T3. T1, I think - - - ?---That's T1.

PN722

- - - was the - no, sorry, I've got them around the wrong way, have I? I might be asking for T3 then.

**** PATRICIA ZUBER XXN MR BENNETT

PN723

THE COMMISSIONER: This one with more columns?

PN724

MR BENNETT: More columns. And it says on the right-hand column is "Incumbent Evaluation Rationale".

PN725

THE COMMISSIONER: It's a consultant's delight, this one. It's got everything in it.

PN726

MR BENNETT: That's right.

PN727

THE COMMISSIONER: T3?---This is for Sport and Recreation.

PN728

MR BENNETT: We're nearly there. So maybe it's T - we had written it down as T3, being - - - ?---T4. This Cultural Services - - -

PN729

So T4 is Cultural Services. Now, Ms Zuber, you use the word "sole" a lot in this document. Sorry, I should have asked you, can you identify that document?---Yes.

PN730

Did you help prepare that?---Yes.

PN731

You use the word "sole" a lot. For example, in the second paragraph:

PN732

The incumbent is required to act as an autonomous independent senior specialist and is the sole position providing expert advice...,

**** PATRICIA ZUBER XXN MR BENNETT

PN733

and so on. And over on page 3, second paragraph, again you talk about the position providing expert advice and is solely responsible for identifying and developing policy. In light of the response that Council put in to that document now and the various debate that we've had, even today in the Commission, do you want to review your use of the word "sole" in this document? Do you think that's still appropriate? Do you - sorry, too many questions. Do you stand by your use of the word "sole" in that document?---Yes.

PN734

You do. So other people don't have input into providing expert advice, for example, on cultural disciplines?---They're not required to by the organisation. I - the Senior Adviser - Cultural Services position is required to provide advice.

PN735

What about the Cultural Services Manager? Does the Cultural Services Manager have - provide some expert advice in relation to cultural disciplines?---She's not required to as part of her role.

PN736

Well, you say in this document that your position is the sole position providing expert advice. Is it or is it not the sole position providing expert advice?

PN737

THE COMMISSIONER: Just a moment, Mr Bennett. Yes, Mr Tarnawski?

PN738

MR TARNAWSKI: Commissioner, I mean, it 's the same question. Whether he agrees with Ms Zuber's view of it or not, she's responded to that and I think that's what's possibly causing some of the things. She's responded. She said yes but he doesn't like the answer so we go and do it a different way. I just don't know whether that's going to help the situation or help the proceedings. He's got enough witnesses coming through that are going to obviously disagree.

PN739

THE COMMISSIONER: Yes, thank, Mr Tarnawski. Well, I permit that question. Go on, Mr Bennett.

**** PATRICIA ZUBER XXN MR BENNETT

PN740

MR BENNETT: Thank you.

PN741

THE COMMISSIONER: Perhaps you could put the question again.

PN742

MR BENNETT: Well, Ms Zuber, is your position or is it not the sole position providing expert advice in relation to cultural disciplines to the Council?---It's the sole position that's required by Council to - that is designated by Council to provide that advice, and that's recognised in a number of places but it - you know, other people obviously are holders of knowledge and information and if requested can provide advice, but it's - - -

PN743

But does the Cultural - - - ?---It's a requirement of my position.

PN744

Does the Cultural Services - - - ?---Policy development and advice, I mean, it's a requirement.

PN745

Does the Cultural Services Manager provide advice about cultural disciplines to the Council?---No.

PN746

Never?---Well, she's not required to under - in her position so, for example, I take the reports to Council. I am required to provide that advice as part of my role. It's - she's a manager.

PN747

You keep saying - - - ?---I mean - - -

PN748

You keep saying you're - - - ?---Well, that - that's why - that's why I used the word "sole" in this context. It's in - you're taking it out of context.

**** PATRICIA ZUBER XXN MR BENNETT

PN749

Well, that's not what you said in your document, though, is it? You don't - the word - - - ?---Well, perhaps I could have written it in a better and more articulate way, but this is just about articulating, you know, maybe you'd have articulated it in a different way. But it's - what I'm trying to put - get across is that it's the only position in Council that has - is required, that, you know, has a designated role to play in providing expert advice regarding cultural planning, cultural services to Council, because we are the interface between the provider and Council. So I - you know, that's a designated role and that's why I used the word "sole" because I - there is no other Senior Adviser - Cultural Services.

PN750

No. I take that point, Ms Zuber?---That's my point.

PN751

There is no other Senior Adviser - Cultural Services?---That's what I meant by that. That's what I meant by that.

PN752

All right. I'll - - - ?---Perhaps you would have articulated it differently but that's - that's the way I articulated it.

PN753

It might have been interpreted as suggesting that your position was the sole position that - - - ?---Well, that's obviously - I mean, I mean - - -

PN754

But - sorry, let me just finish?---Sorry.

PN755

I think in your own evidence-in-chief today you gave quite extensive evidence, and I don't take any issue with it, but you gave extensive evidence about the partnership relationship between specifier and provider and the fact that these things are done always as part of a team. That's - that was my concern and I think Council's concern with the way you kept using the word "sole" throughout this document you prepared?---Well, I think it's misleading to say keep using the word "sole", because I think I've only used it once, twice, I don't know.

**** PATRICIA ZUBER XXN MR BENNETT

PN756

Three times?---Three times, you know, so that's - and always in the same context, so that's hardly sort of, you know, trying to labour the point across a number of issues. It's just in regard to expert advice, I am required to do that and I am in the - the sole designated provider of that advice. Other people obviously have knowledge. Everybody - you know, all officers do, and if they are asked, you know, they - but they are not required to do so.

PN757

But you stand by - - - ?---I am required to.

PN758

You stand by your earlier evidence about the partnership teamwork environment of the Council, don't you?---Yes, I do.

PN759

You say at the bottom of page 3 of this document that you're responsible for setting the work outcomes for Cultural Services within the Community and Social Planning Group. Now that's not accurate, is it?---Where is that, sorry?

PN760

The second last paragraph on page 3. You say:

PN761

In addition the position is responsible for setting the work outcomes for Cultural Services within the Community and Social Planning Group.

PN762

That's not quite accurate, is it?---Well, not the specific work operational outcomes. Not operational outcomes.

PN763

Who sets those outcomes?---Well, I mean within - you see, we are operating at a - at a level where we're setting direction. We're setting strategic direction which guides, I suppose, work outcomes, and that's how I interpreted it - interpreted that aspect of the award. So, I mean, perhaps there again it's - it could possibly be misinterpreted as meaning somehow that I am responsible for the operational outcomes of Cultural Services but it's just through the service level agreements and through policy - through policy development and

**** PATRICIA ZUBER XXN MR BENNETT

the service level agreements. They do set outcomes but they're high level strategic outcomes. I'm not talking about the, you know, on the ground delivering the service, the operation - the actual operations of each of the areas of Cultural Services, the operational areas. That's not what I was trying to say.

PN764

Although you go on in that paragraph to say:

PN765

This is achieved through the development of capital and operational projects.

PN766

So, I think it could have been read that that's what you were - - - ?---Well, that's not what I intended.

PN767

All right. But even within Community and Social Planning, I would put it to you that even within that work area, you're not ultimately responsible for setting your own work outcomes, are you?---Yes.

PN768

Surely your manager, the Manager - Community and Social Planning has that responsibility, doesn't she?---No.

PN769

She says that she does?---Well, she has - she takes responsibility for what I - what we undertake.

PN770

Because she's the manager, isn't she?---Because she's the manager.

PN771

Right?---But I - we - you know, the incumbents in these positions set their own work outcomes. We - you know, in other words we - I mean we're very, very much involved in identifying the activities and the projects that we're going to undertake, you know, and we put up - we put together the project proposals for the budget and we put - you know, so we're - we - we define those. Obviously, they've all got to be ratified.

**** PATRICIA ZUBER XXN MR BENNETT

PN772

Yes?---But - but we - - -

PN773

That - I don't dispute that?---You know what I mean? So that - and then within - with any - any one financial year, the projects and activities that we - we have - have - that we have a budget allocation for - and some that we don't - we undertake, and we set our own - we write our own work plans; we set our own deadlines; we - you know, I mean, obviously, in relation to other requirements and deadlines, but - - -

PN774

I know. Those - - -?---So in that - in that - in that regard - in that - that's what I was meaning by setting out our own work outcomes.

PN775

What about, on the policy side of it, further up that same page - page 3 - you talk about having "sole responsibility for identifying and developing all cultural corporate policy guidelines and procedures"?---Within Cultural - Planning Cultural Services.

PN776

Well, who has final sign-off on the policy review schedule?---We put up the policies that need to be reviewed. The schedule is just the list.

PN777

But you don't have sole responsibility for these policies, do you?---Yes.

PN778

What, you have final sign-off on them?---No, the Council approves them. They have to go to Council to be approved. Council has final - - -

PN779

Your - the Manager Community and Social Planning doesn't have any input into that?---If I - if I - if I say that a policy needs to be reviewed and needs to be included on the policy review schedule, obviously I will inform her at my weekly meeting with her that that's what I'm doing, and if she disagreed, I suppose she could say so, but if she doesn't and it goes on the list, and that becomes part of the policy review schedule. And then I determine - she says, "Well", you know, "Okay, this policy needs to be" - "to be reviewed" or "developed"; "How long will you need to do it?", and I'd say, "Well, we can finish it by February", and that's what goes on the policy review schedule.

**** PATRICIA ZUBER XXN MR BENNETT

PN780

And what about the Policy Review Committee? What do they have to do with it?---The Policy Review Committee. I don't know, actually, to tell you the truth - no. I think there are some policies - they - what they probably do is go through the policies, because there are some policies that will have review times on them, and they probably go through them and pull them out and say, "This one's due for review", "This one's due for review", "Put it on the list". But the new ones, they have - they come through from the specifier. I mean, I don't know of instances now, under this structure, where policies come from the provider. They - they're instigated through the specifier - that's part of what we do.

PN781

Now, on page 6, again, of that document, towards the bottom of the page, you say that the position "exercises managerial responsibility for multi-disciplinary projects"; you're not suggesting, are you, in using that word, "multidisciplinary", you're not suggesting that these projects constitute a multidisciplinary operation as that term is used in Level 7 of the award, are you?---I'm not quite sure what you mean.

PN782

THE COMMISSIONER: Mr Bennett, the witness has got my copy of this document. Is there another copy? Because I must say, I'd be advantaged by having - - -

PN783

MR BENNETT: Yes.

PN784

THE COMMISSIONER: - - - my copy back.

PN785

THE WITNESS: Actually, I've got my own copy, if you'd like that back up, then I can use this one.

PN786

THE COMMISSIONER: There we are.

**** PATRICIA ZUBER XXN MR BENNETT

PN787

MR BENNETT: Thank you. I could have referred you - it's exhibited again to Noel Hoelscher's affidavit, so - - -

PN788

THE COMMISSIONER: Everyone seems to have it, in any event, Mr Bennett. The witness had it in some independent way.

PN789

MR BENNETT: All right. Thank you. So - - -

PN790

THE COMMISSIONER: And whereabouts were you? You were on page 6, was it, Mr Bennett?

PN791

MR BENNETT: Yes. Sorry. On page 6 of that document, in the bottom right-hand corner. Now, Ms Zuber, I'm in the award document on page 77 of that document that I gave you. Commissioner, that's in Level 7, under the sub-heading, "Responsibilities" - talks about - the second dot point talks about:

PN792

exercising managerial control involving the planning, direction, control and evaluation of operations which include providing analysis and interpretation for either a major single discipline or multidiscipline operation.

PN793

I've asked Ms Zuber, but I'll ask again, having clarified that, where you say, on page 6 of your rationale that:

PN794

The position exercises managerial responsibility for multidisciplinary projects, for example, the Redland Performing Arts Centre Development Study

PN795

you're not suggesting, are you, that that constitutes a multidiscipline operation?---What do you mean by "multidiscipline"?

**** PATRICIA ZUBER XXN MR BENNETT

PN796

You see, I put it to you that you've used the word, you know, "multidisciplinary projects" there, but at the end of the day, they're just projects, aren't they? They're just development planning projects which are more than adequately covered by the accountabilities of Level 6, for example, "Manage significant projects", which is on page 76 of that document that I showed you. Quite different from talking about "exercising managerial control involving the planning, direction, control and evaluation of operations" "for either a major single discipline or multidiscipline operation". In short, I'll ask the question this way - - -?---Well, it probably refers more to the - - -

PN797

The Redland Performing Arts Centre Options Development Study is not an operation, is it? It's just a project?---It's - what do you mean? It's a project, yes.

PN798

It's a project; yes?---Yes.

PN799

THE COMMISSIONER: Mr Bennett, I'm going to interrupt you by asking you, Ms Zuber, what - when you give the Redland Performing Arts Centre Options Development Study as an example of that which precedes it, and the sentence preceding that, can you see it? You give that as an example of your position exercising managerial responsibility for multidisciplinary projects. What is there about that development study which makes you call it a multidisciplinary project?---Well, I suppose it's because of the number of stakeholders that are involved.

PN800

Thank you.

PN801

MR BENNETT: Just finally on that document, Ms Zuber - and you've said this a bit in your evidence today, too - talked about projects you've been involved with being controversial or politically sensitive, does your manager, Ms Culverhouse, think that the projects that you are involved with are controversial or politically sensitive?---Some of them, yes.

**** PATRICIA ZUBER XXN MR BENNETT

PN802

I put it to you that she doesn't it; that she doesn't think they're controversial or politically sensitive?---Well, closing island libraries is pretty controversial and politically sensitive.

PN803

Have you asked her specifically what she thinks?---I haven't asked her specifically, but - - -

PN804

So you don't know what she thinks?---I - yes, I believe she does. In our discussions - we've had a lot of discussions about how to handle the island libraries - to treat it - plan how to - how to proceed with it because - because of that issue; because of exactly that.

PN805

Well, would you be surprised if I said that in her instructions to the Council in putting together their response to your incumbent rationale, she said that the projects you were involved in were neither controversial nor politically sensitive?---I am surprised.

PN806

Okay. Coming back to your statement at - I'm on page 11 of that statement now, you talk quite a bit about managerial responsibility there at paragraph 15?---Where are we now, sorry?

PN807

Page 11 of your statement?---My statement. Page 11 of my, is it the most recent one?

PN808

The statement that you've tendered - the witness statement - - - ?---The witness statement.

PN809

- - - which you've tendered in these proceedings?---Which paragraph?

PN810

Paragraph 15 at the top of page 11. We're talking about managerial responsibility here?---Yes.

**** PATRICIA ZUBER XXN MR BENNETT

PN811

We've already been through this earlier in the cross-examination and I understand that you're not a manager, so we just need to clarify what you're saying here about the extent of your managerial responsibility. In the first paragraph there under clause 15 you talk about leading and managing cultural service components of the Community and Social Planning Group. Now, I put it to you that that's classically a level 6 accountability. If you have a look at page 75 of that award - copy from the award, at the bottom of the page - third from the bottom it talks about - it says:

PN812

Supervise/manage the operation of a work area.

PN813

Is that how you would describe managing the cultural services components of the Community and Social Planning Group - - - ?---Well, it's - - -

PN814

- - - in managing the operation of a work area, isn't it?---It's managing a special function. It's a special function. We operate it especially. See, it's the other part of - - -

PN815

Do you think it could be described as a work area?---It's the other part of that award characteristic, isn't it, which is managerial responsibility or operating as a specialist or managing a specialist function.

PN816

I'm just putting it to you?---Yes, I know that but it's - - -

PN817

You talk there about managerial responsibility. It's not the sort of managerial responsibility that's talked about in level 7?---Well, I mean we identify that because it does seem to be the main areas of contention, but I mean - - -

PN818

But it's just - - - ?---It is a managerial responsibility in that you're managing projects and that you are required in the role descriptor to lead and manage.

**** PATRICIA ZUBER XXN MR BENNETT

PN819

Projects or a work area, so the projects - - - ?---And special - or special functions.

PN820

Projects picks up at the - on the next page, doesn't it, page 76:

PN821

Extent of authority, manage significant projects.

PN822

Again that's a level 6 accountability, isn't it?---It's a lead and manage - it's just different in use of words but, I mean, there is a managerial role that we play and we are required to lead and manage a special function and, you know, a lot of this is written for, you know, more for the provider area, really. I'm sorry, it's very - it's difficult to objectively - - -

PN823

Well, see, Ms Zuber - - - ?---- - - answer that under the award.

PN824

You're purporting in your statement to try and suggest that you have managerial responsibility consistent with a level 7 accountability and I'm simply pointing out to you that the sorts of examples you give here at paragraph 15 of your statement fit absolutely neatly into the accountabilities listed under level 6: supervise, manage the operation of a work area and manage a work area, and manage significant projects and/or functions. Those are level 6 accountabilities, aren't they? That's a pretty short question, Ms Zuber, I'm reading them straight out of that level 6 accountability?---I think it - - -

PN825

Are they level 6 accountabilities?---I think - I think that we do a bit more than that.

PN826

Well, now, I just - - - ?---I don't think so. No, I don't.

**** PATRICIA ZUBER XXN MR BENNETT

PN827

You say they're not level 6 accountabilities?---No, I don't think so. I think that what we undertake is a little more than that.

PN828

If you have a look at the copies of the award that you've got there - it's an excerpt, pages 74 through 77?---I'm sorry, but I've answered the question.

PN829

Well, Mr Tarnawski is absolutely right, I don't like the answer so I just need to clarify something?---No, I've answered - - -

PN830

At the bottom of page - - - ?---- - - the question, Mr Bennett.

PN831

At the bottom of page 75?---I've answered the question. I really - I can't go over and over and over saying the same thing, you know - - -

PN832

Well, I'm sorry, but you've just - - - ?---- - - three different ways.

PN833

You've just told the Commission that something that's right there in front of you in writing isn't there, so I can't let that go. I'm sorry.

PN834

THE COMMISSIONER: Well, you're both sorry. Keep on posing questions and at some point I may stop you, Mr Bennett, but I certainly won't stop you at the moment. So if you want to put a question - - -

PN835

MR BENNETT: Thank you, Commissioner.

PN836

Can I just take you - and I promise we'll move off this as quickly as we can, but at the bottom of page 75 - have you got that document now?---I don't. Hang on. What are we looking at? The level 6?

**** PATRICIA ZUBER XXN MR BENNETT

PN837

The copies - yes, level 6, pages copies out of the award, at the bottom of page 75 under the heading "Responsibilities", third from the bottom, subparagraph number 5 says:

PN838

Supervise/manage the operation of a work area.

PN839

Doesn't it?---It does.

PN840

Do you agree with that now, that it does?---Yes, but I would say - I would say we fit more under - under, you know, managing specialised functions - a specialised function to achieve results in line with divisional corporate goals. I would say our managerial responsibilities fit more under that level 7 responsibility than they do - I think it goes beyond the level 6.

PN841

So you're telling me, are you, that the cultural services components of the Community and Social Planning Group don't constitute a work area?---I think they constitute a special function.

PN842

Why don't they constitute a work area, Ms Zuber?---Because it's - it's not an operational work area. It's a function.

PN843

It's the area - - - ?---We are operating - - -

PN844

It's the area that you work in, isn't it?---We're operating as specialists.

PN845

What about on page 76 under "Extent of Authority", the third dot point says"

PN846

Manage significant projects and/or functions.

**** PATRICIA ZUBER XXN MR BENNETT

PN847

?---Sorry, where is this?

PN848

Page 76?---I haven't got page - yes, hang on.

PN849

Under the heading "Extent of Authority", so it's just before it goes on to level 7, the last dot point:

PN850

Manage significant projects and/or functions.

PN851

Now, in your statement under paragraph 15 - - - ?---No, that's very confusing.

PN852

You talk about:

PN853

The position evaluation report states in part that the position exercises managerial responsibility for a project/work area.

PN854

?---I'm sorry, you've lost me.

PN855

Okay?---Sorry.

PN856

There are two - we're looking at two documents: your statement - have you got paragraph 15 of your statement in front of you? Okay? And as well in front of you you've got the copies from the award which deals with - which sets out the accountabilities for level 6 and level 7 which is what this is all about. Are you with me so far?---Could I be excused for a moment, please?

PN857

THE COMMISSIONER: Where are you going, Ms Zuber?---I'm sorry, I just don't feel very well.

**** PATRICIA ZUBER XXN MR BENNETT

PN858

Perhaps you can go and - you can have Ms Herzog see how Ms Zuber is.

PN859

MS HERZOG: She has a blood pressure problem, Commissioner, so - - -

PN860

THE COMMISSIONER: All right. Well, go along and you can see to the witness. We'll adjourn for a short while.

NO FURTHER PROCEEDINGS RECORDED [4.10pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

PATRICIA ZUBER, AFFIRMED PN257
EXAMINATION-IN-CHIEF BY MR TARNAWSKI PN257
EXHIBIT #T1 REDLAND SHIRE COUNCIL EVALUATION SUMMARY - SENIOR ADVISER CULTURAL SERVICES PN268
EXHIBIT #T2 REDLAND SHIRE COUNCIL EVALUATION SUMMARY - SENIOR ADVISER SPORT AND RECREATION PN268
EXHIBIT #T3 SENIOR ADVISER SPORT AND RECREATION AWARD LEVEL 6 AND 7 PN268
EXHIBIT #T4 CULTURAL SERVICES AWARD LEVEL 6 AND 7 PN268
EXHIBIT #T5 WITNESS STATEMENT OF PATRICIA ZUBER PN302
EXHIBIT #T6 REDLAND SHIRE COUNCIL POSITION DESCRIPTION CSL009 - SENIOR ADVISOR - CULTURAL SERVICES PN327
CROSS-EXAMINATION BY MR BENNETT PN456
EXHIBIT #B1 CLASSIFICATION OF LEVEL 6, TRAINING AND POLICY PN637
EXHIBIT #B2 COMMUNICATION FROM MS CULVERHOUSE TO MS SPROTT PN712