WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2012 WAIRC 00770 CORAM : PUBLIC SERVICE ARBITRATOR COMMISSIONER S J KENNER HEARD : FRIDAY, 9 SEPTEMBER 2011, MONDAY, 30 JANUARY 2012, TUESDAY, 31 JANUARY 2012, MONDAY, 13 FEBRUARY 2012, MONDAY, 15 AUGUST 2011, MONDAY, 20 FEBRUARY 2012, FRIDAY, 17 DECEMBER 2010, TUESDAY, 21 JUNE 2011, WRITTEN SUBMISSIONS MONDAY, 29 AUGUST 2011, THURSDAY, 19 JANUARY 2012, FRIDAY, 27 JANUARY 2012 DELIVERED : TUESDAY, 21 AUGUST 2012 FILE NO. : PSA 44 OF 2010, PSA 45 OF 2010 BETWEEN : BRIAN DENZIL NEWMAN; CRAIG PHILLIP STEEL Appellants AND MR PAT ITALIANO GENERAL MANAGER TRANSPERTH Respondent Catchwords : Industrial Law (WA) - Public Service Arbitrator - Reclassification Appeals - Appeals against decision of Classification Review Panel - Arbitrator not bound by decision of Appeal Panel - Application of Wage Fixing Principles - Appeals dismissed. Legislation : Industrial Relations Act 1979 s 80E(2) Result : Appeals dismissed Representation: Appellants : In person Respondent : Mr D Matthews of counsel Reasons for Decision 1 The Public Transport Authority, for the purpose of enforcing railway legislation, maintains a prosecution service within its Security Services Branch. The level 4 position of Prosecutor is established to provide an effective and efficient prosecution service for the Transperth Train Operations Security Services Group. The two appellants are Prosecutors employed by the Authority. They have been dissatisfied with their classification as level 4 employees for a long period of time; indeed for the best part of the last decade. 2 This dissatisfaction has been reflected in a lengthy history of claims by the appellants to have their position reclassified to level 6. The position of Prosecutor was created in 1998 at a level 3/4 classification. An internal review took place in May 2001, which led to the position of Prosecutor being reclassified to level 4 and the position of Senior Prosecutor to level 5. It was recognised at the time, that the initial classification of level 3/4 for the Prosecutor position was incorrect and had not followed a detailed analysis of the role. A classification report on the position was prepared by an independent consultant in October 2001 which recommended that the revised level 4 classification was appropriate. In February 2003, a Classification Appeal Panel, under the relevant industrial instrument, rejected an appeal by the appellants against the level 4 classification determination. 3 In July 2008, a further evaluation of the position of Prosecutor was conducted by another external consultant, following a request by the appellants in January 2008 for a further review. This review also concluded that the level 4 classification was appropriate. A further appeal to an Appeal Panel was dismissed. Both Appeal Panels were constituted by former members of this Commission and a representative of each of the Union and the Authority. These two appeals are from the 2010 decision of the Appeal Panel. Appeal panel decision 2010 4 The Appeal Panel published detailed reasons for decision in dismissing the appeals. The Appeal Panel set out the grounds for the request for reclassification by the appellants and the “points of claim” advanced in support of their cases, at pp 3-4 of their reasons for decision as follows: “The grounds upon which the initial request for reclassification were made are set out in the relevant information provided to the PTA with the claim in the following terms. 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2107 “The following form the grounds for our request for reclassification: The position of Prosecutor was last classified in October 2001 at a level 4. Since this time there have been several structural and legislative changes that have increased the work value, responsibilities, duties and subsequent outcomes of the position. These factors are in addition to the original evaluation and are mandatory in the Prosecutor’s role in performing their functions of the position. The following points of claim: 1. The introduction of The Corruption and Crime Commission Act 2003 outlining the obligation to firstly recognize, Investigate and notify matters of "Misconduct". (Refer: Appendix 1) 2. The directive given by the Chief Executive Officer, instructing Prosecuting officers to view Video and CCTV footage prior to presenting the evidence in Court. (Refer: Appendix 2) 3. The Introduction of The Criminal Procedures Act 2004 and The Criminal Investigations Act 2006 in complying with obligatory stipulations placed on Prosecution departments. (Refer: Appendix 3) 4. The comparative determination analysis of Internal and external level 4/6 and 6 Positions. Showing similar duties, knowledge base, experience and responsibilities. (Refer: Appendix 4) 6. Structural Changes Including additional offices reporting directly to the position and officers under direct control. (Refer: Appendix 5)” 5 A number of witnesses gave evidence before the Appeal Panel, including the appellants. Mr Scudds is an experienced criminal lawyer with experience in railway prosecution matters. He gave evidence about the requirements of the Prosecutor position and compared it to the prosecution roles within the Western Australian Police, Department of Fisheries and the former Department of Planning and Infrastructure. His evidence was to the effect that he considered, based upon his experience, that the role of a Prosecutor at the Authority was more demanding than at Fisheries or the DPI and more aligned to that of a Police Prosecutor. Mr Scudds also gave evidence about the impact of changes to the Criminal Procedure Act 2004, in terms of the greater obligations on the prosecution to present their case for the defence. 6 Also called before the Appeal Panel was Mr Madden, who had experience as a Prosecutor with the Authority and also with the DPI. This evidence was to the effect that he considered the work of an Authority Prosecutor to be more difficult. Also called to testify was Mr Roderick, then a Prosecutor’s Assistant at the Authority. He gave evidence about the level of supervision and on-the-job training provided by the Prosecutor position in the Branch. 7 In relation to Police Prosecutors, evidence was also adduced from Sergeant Smith. He testified that in his view there were significant similarities in the work conducted by Police and Authority Prosecutors. Sergeant Smith also gave evidence about the level of support and assistance given to Police Prosecutors. Sergeant Smith referred to the fact that Police Prosecutors are drawn from the ranks of Senior Constable to Senior Sergeant, with cases being allocated according to the degree of complexity. More complex matters are allocated to more senior Prosecutors. A point noted by the Appeal Panel in relation to this evidence, was the level of training required for appointment to a rank. Also Police Prosecutors are required to undertake what was described as “an intensive four week Police Prosecutor’s course and to participate in ongoing structured training. Authority Prosecutors have no qualification prerequisite and training is unstructured ‘on the job’”: see p 6 reasons. 8 Having considered the evidence led by the appellants, aside from noting Mr Scudds’ evidence as to procedural changes implemented by the Criminal Procedure Act 2004, the Appeal Panel was not persuaded that the evidence had “identified any change impacting on the skill requirements or the nature of the work carried out by prosecutors generally or in particular, PTA Prosecutors.”: p 6 reasons. 9 The Appeal Panel referred to the evidence led by the Authority including that from Mr Ruthven, Mr Greenham, Mr Furmedge and Mr Caldwell. Additionally, as already noted, the Appeal Panel said there was insufficient change in the nature of the work, the skills required or the responsibilities of the role arising from changes to the Criminal Procedure Act 2004, such as to warrant an increase in the classification under the Work Value Principle established by this Commission. 10 Based upon all of the evidence, the Appeal Board made a number of specific findings. Firstly, it considered that the previous internal reviews, in particular that undertaken in May 2001, had properly assessed the role of Prosecutor and taken into account relevant considerations. In particular, the Appeal Panel noted that the JDF for the Prosecutor position, whilst listing the primary role and responsibilities of the position, may not identify each and every subservient function falling within that broad description. Examples cited included the provision of an advocacy service to the court and conducting legislative and case law research. The Appeal Panel concluded that these duties would fall within the general role and responsibilities of the position. 11 In relation to claims that the Corruption and Crime Commission Act 2003 introduced greater obligations on the Prosecutors to report allegations of corruption, this was rejected by the Appeal Board. The Appeal Panel concluded that the obligations imposed on the Prosecutors were no greater than any other public officer, in terms of reporting improper or criminal conduct. In relation to the effect of Prosecutors reviewing CCTV footage prior to presenting evidence in court, the Appeal Panel was not 2108 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. persuaded that this involved any significant net addition to the responsibilities of the role. It concluded that such a task was already contemplated within the prosecutor’s existing role requirements and did not support a reclassification. 12 In relation to the Criminal Procedure Act 2004, the requirement on Prosecutors to identify and present all possible defences as a part of their cases, prior to the defence putting its case, was acknowledged. The Appeal Panel concluded that the BIPERS review undertaken by Mr Veitch took this matter into account, albeit considering it a work volume rather than a work value issue. Whilst recognising this and that there had been an impact on the work of Prosecutors, the change to the BIPERS assessment was deemed an appropriate recognition of this factor. 13 The Appeal Panel considered the comparisons with other positions, advanced by the appellants in their cases. In particular, these comparisons involved the Police Prosecutor, and the Prosecutors at the Department of Fisheries and the DPI. The Appeal Panel noted that the JDF for the Prosecutor level 4 at the DPI was “almost identical to that of the PTA Prosecutor”: p 13 reasons. Having considered the evidence of Mr Veitch and his consideration of appropriate comparative positions, the Appeal Panel was not persuaded to reach a different conclusion to that arrived at by Mr Veitch on his analysis. 14 In terms of supervision and responsibility for others, the Appeal Panel considered the evidence of Mr Ruthven for the Authority, that the then JDF, as at July 2007, showed that two administrative staff were permanently assigned to the Prosecutions section. The Appeal Panel noted that Mr Ruthven’s evidence was that the JDF for the Prosecutor position was incorrect, and that in fact the two administrative staff were responsible to the level 5 Senior Prosecutor. It was the Authority’s intention to rectify this in the near future. However, the Appeal Panel accepted the evidence of Mr Veitch, when conducting his BIPERS assessment, that in fact the Prosecutors were responsible for the two administrative staff. This is notwithstanding Mr Ruthven’s evidence that this was in error. Despite this, however, the Appeal Panel was not persuaded that this factor had not been already taken into account in the overall assessment of the Prosecutor position and its current classification at level 4. 15 Finally, the Appeal Panel also reviewed the BIPERS assessments of the previous reviewers in 2001 and 2008, Mr Dawkins and Mr Veitch respectively. Having considered the assessments made by them, the Appeal Panel concluded that the most recent assessment by Mr Veitch supported the Authority Prosecutors being classified at level 4. 16 Having regard to all of the material before it, the Appeal Panel concluded that while there had been some changes in work requirements for the Prosecutor positions, which may shift the classification to the higher end of level 4, there had not been demonstrated such a significant net addition to the work value of the position to warrant its reclassification. Accordingly the appeals were dismissed. Present appeals 17 These appeals brought by the appellants raise largely the same issues for consideration, as were raised before the Appeal Panel. Whilst I am not in any way bound by the decision of the Appeal Panel, given the way in which the grounds of appeal were put, and the alleged errors made by the Appeal Panel, it will be necessary for me to have due regard to the conclusions reached by the Appeal Panel, in light of the evidence and submissions put in these proceedings. The grounds of appeal advanced by the appellants are identical. They run to some eleven grounds of appeal, with various sub-grounds developed in relation to a number of them. 18 It is convenient at this point, to refer to my earlier reasons for decision of 9 September 2011 (2011 WAIRC 00875). That decision dealt with a number of preliminary issues in relation to the present appeals. One such issue was the time of assessment of reclassification. The appellants contended that the date of the assessment of any changes in work value to the position of Prosecutor should be January 2008, which was the date the employees formally notified the Authority of the request for reclassification. This led to the proceedings before the Appeal Panel and its subsequent decision in 2010. The appellants sought the 2008 assessment date because there had been some changes to the position of Prosecutor since that time. The Commission determined that given the length of time that had passed since that initial request was made, it would be inappropriate to in effect, “freeze in time”, consideration only as at that date. Accordingly, the Commission indicated that it would take into account, in assessing overall the merits of the appeals, any changes which may have occurred in the role of Prosecutor up to the date of these proceedings. The appellants’ evidence 19 A number of witnesses were called by the appellants in support of their appeals. These included in the main, the witnesses who were called to give evidence before the Appeal Panel. It has been necessary to proceed in this manner because unfortunately, there was no transcript of the evidence given before the Appeal Panel. What follows is necessarily only a summary of the evidence and contentions. Further specific observations will be made about these matters when dealing with the individual grounds of appeal. 20 Mr Scudds is a barrister and solicitor of many years standing. Mr Scudds primarily practices in criminal defence work. He gave evidence about the role of Authority Prosecutors compared to the work performed by Police Prosecutors, gained from his experience in defending matters against them in open court. It was Mr Scudds’ view that from his experience, the Prosecutors employed by the Authority generally displayed the same skills in terms of research and advocacy, as the Police Prosecutors. Mr Scudds accepted, however, in cross-examination, that he may have appeared in about five to ten Authority prosecutions in the last few years. 21 In terms of other public authority advocacy roles, Mr Scudds testified that he has also appeared in proceedings dealing with applications for extraordinary driver’s licences which are conducted by Prosecutors from the former DPI, which is also a level 4 position. Mr Scudds’ evidence was his involvement was limited to these types of applications. He did accept that he was not aware of other duties that Prosecutors from that Department may be required to undertake. 22 In terms of the obligations on Authority Prosecutors, Mr Scudds noted the changes introduced by the Criminal Procedure Act 2004, which require the prosecution to put its closing address prior to the defence. This has the effect of requiring the prosecutor to anticipate the defence case as a part of trial preparation. While this is so, Mr Scudds did also accept in cross- 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2109 examination that regardless of this change, a good prosecutor will always turn their mind to the possible defences that could arise in relation to a charge as a part of thorough trial preparation. Additionally, in the case where the defence makes an opening submission, as they now can do, this also is of assistance to the prosecution. In terms of the general comparison with the Police Prosecutor position, Mr Scudds accepted that he did not have any detailed knowledge of the salary levels for Police Prosecutors, nor the basis on which rank promotions are obtained within the WA Police. 23 In a similar vein was the evidence of Mr Pidco. Mr Pidco is presently a solicitor with the WA Police. He was a serving police officer for many years. He then qualified as a legal practitioner and commenced practice in the late 1990s. He practiced for a period of time in criminal defence work. Mr Pidco has also been engaged in law lecturing at universities and spent some time in the WA Police Prosecuting Division as a legal officer. Mr Pidco is presently a Senior Solicitor in the specialist crime portfolio within the WA Police. In terms of the comparative assessment of the work of an Authority Prosecutor and a Police Prosecutor, he saw little difference in the work involved between the two roles. 24 In Mr Pidco’s view, the same degree of skill is involved in the work of both Prosecutors and both have the same obligations on them as officers of the court. The process of trial preparation by Prosecutors at the Authority and Police was seen by Mr Pidco as being largely the same. This extended also to the approach to the discontinuance of prosecutions. He referred to the Director of Public Prosecutions Prosecution Guidelines and the 2008 policy of the Authority in relation to prosecutions. When he was taken to that part of the policy dealing with the withdrawal of charges, Mr Pidco confirmed that this was a similar approach adopted by the Police Prosecutors. He also confirmed that in general, in his experience, there would usually be the opportunity afforded to a Prosecutor during a trial, to seek a short adjournment to obtain instructions where consideration of amending or withdrawing charges may arise. 25 In terms of educational requirements, Mr Pidco testified that to train a Police Prosecutor, the most important attribute was the ability to absorb and put into effect what students are taught in the Police Prosecutors’ Training Course. Given Mr Pidco’s involvement in teaching this course, he equated the standard of education as being similar to an Associate Diploma TAFE level course or the first year of an undergraduate non-law degree course. 26 Whilst drawing comparisons between Police Prosecutors and the work of Authority Prosecutors, Mr Pidco accepted that most Police Prosecutors are drawn from the ranks of Sergeants or Senior Constables. These officers attain positions as Prosecutors generally through promotion through the rank structure. Additionally, it is the general practice that more complex police prosecutions are given to more senior officers within the Prosecution Section. As with Mr Scudds, when questioned about the work of the DPI Prosecutor position, apart from extraordinary driver’s licence matters, Mr Pidco was not aware of any other duties undertaken by this particular role. 27 In a similar comparative vein, was the evidence given by Mr McCaughey. Mr McCaughey was a former Senior Prosecutor at the Authority. He was involved in the establishment of the Prosecution Branch at the Authority from about 2001. Mr McCaughey is now retired. Prior to being employed by the Authority, Mr McCaughey was a senior officer in the WA Police. Mr McCaughey gave some general evidence about the establishment of the Prosecutions Branch and the role he played in supervising staff. Whilst he accepted that formal supervision was his responsibility, although he could not recall whether that was in his then JDF, he did give some “mentoring” responsibility to Prosecutors who would take trainees to court and discuss cases with them. 28 In terms of the work of Authority Prosecutors, Mr McCaughey testified that some case law research is involved as a part of the job of an advocate. In terms of the advocacy performed by the Authority Prosecutors, whilst acknowledging that most cases conducted by Prosecutors involved “mentions” (at least about 75%), those that go to trial would generally involve one day hearings, although there could be longer matters up to three days, from time to time. Mr McCaughey was asked about input Prosecutors had in relation to legislative amendment. He referred to the then new Public Transport Authority Act and an occasion where a difficulty was identified in initiating prosecutions. Mr McCaughey described the process where Prosecutors had some involvement in developing proposals for senior management, which in turn were transmitted to the Government, for legislative change. 29 An issue that appears to have been contentious in the past, the authority of Prosecutors to discontinue charges, was referred to by Mr McCaughey. He testified that when he was the Senior Prosecutor, he told his prosecution staff that they were able to amend or discontinue charges as long as they were able to justify their decision. This would include amendments or discontinuances which may occur on the day of the hearing. In cross-examination, Mr McCaughey was taken to an incident which occurred in 2005, where Mr McCaughey, in a document prepared by him, referred to the discontinuance of a charge which had been discussed and approved by Mr Furmedge, the senior manager responsible for the section. Whilst Mr McCaughey seemed reluctant to concede that it was the practice around this time to seek the approval of senior management before such a decision was taken, he accepted that the Authority now has a formal policy which requires prior approval. 30 In terms of any comparisons with Police Prosecutors, Mr McCaughey did acknowledge in cross-examination, that from his experience, Police Prosecutors have far less time to prepare cases for trial and regularly receive briefs very shortly before the date of a hearing. This contrasted with considerably more time available to Authority Prosecutors to prepare. Mr McCaughey also accepted that the Police Prosecutors are required to have a very wide knowledge of criminal offences and defences, in the course of their work. 31 A person with prior experience as a former DPI Prosecutor was Mr Madden. He is now a policy officer with the Authority but did occupy the position of Prosecutor for the former DPI for about four and a half years. Mr Madden testified that the vast bulk of work that he undertook as a Prosecutor with the DPI was in relation to applications for extraordinary driver’s licences. This amounted to about 80% of his workload. This work was largely routine and involved gathering information about the applicant, the applicant’s driving history and any extenuating circumstances to place before the court. 2110 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. 32 Also referred to in Mr Madden’s testimony, was work done by DPI Prosecutors involving infringement notices arising from multi-nova cameras. In these cases, the penalties usually involve relatively low level fines and no offences involve a potential term of imprisonment. Other work, such as prosecutions undertaken for the Main Roads Department, described as more complex in the position JDF, were not actually undertaken by Mr Madden on his evidence. The same applied to prosecution matters arising from other transport legislation, also contained in the JDF for the level 4 Prosecutor position. That is, Mr Madden accepted that his former position was responsible for the provision of those services, however, he was not required to undertake them. 33 In terms of the overall nature of the DPI Prosecutor position, Mr Madden accepted that the job was a responsible one, and involved keeping dangerous drivers off the roads. Additionally, in terms of workload, Mr Madden confirmed that on any day, he may have dealt with five or six extraordinary driver’s licence applications in the ordinary course. These did not, however, generally involve the calling of witnesses, as the only evidence was in the main from the applicant seeking the extraordinary driver’s licence. 34 Mr Donnelly is presently a Prosecutor at the Authority. Mr Donnelly is a legal practitioner admitted to practice in 2009. In terms of the comparison between the work of an Authority Prosecutor, and that of a Police Prosecutor, Mr Donnelly was in general agreement with the evidence of Mr Scudds and Mr Pidco. 35 Further evidence about the role of Police Prosecutors was given by Sergeant Smith. Sergeant Smith is presently a trainer in the Police Prosecutors’ Course and a Police Prosecutor. Sergeant Smith outlined the process at the WA Police Prosecutions Branch for the progress of prosecution briefs internally. From the initial laying of charges, a brief is prepared. Once an initial check is performed, the brief goes to the local prosecuting office and is listed for court. If the matter is dealt with on a first appearance then that concludes the file. If the brief is listed for an extended trial, it then proceeds to a local Brief Quality Manager for further review and checking to ensure it is thorough and complete before it returns to the allocated Prosecutor. Sergeant Smith also referred to the police internal classification system for trials as “A, B, C, and D class” trials at the central prosecutions unit. An assessment is made as to the complexity of a matter, the length of the trial being one of the criteria. It is then allocated a classification. Generally “A class” trials are longer than one day. 36 In terms of the progression to a Police Prosecutor position, Sergeant Smith outlined the rank and promotional system. Prosecutors generally come from the ranks of Senior Constables and Sergeants. The position of Police Prosecutor is a promotional position, and officers can obtain a promotion through the rank system to a position of Police Prosecutor. According to Sergeant Smith, generally it would take approximately seven to 10 years of service as a police officer, before an officer could reach the level of seniority to become a Prosecutor. 37 In terms of the day to day work, Sergeant Smith testified that in the normal course, Police Prosecutors often get very little notice of a trial. He cited an example where an officer could be notified by the court that a Magistrate was ready to hear a case with as little as ten to fifteen minutes notice to attend court and conduct the trial. In terms of amending or discontinuing charges, Sergeant Smith said that there is an internal procedure where generally, a Prosecutor will speak with a WA Police solicitor to get their views on any proposed amendment or withdrawal of a charge and to approve such a course. 38 Comparative evidence with prosecutions conducted by the Department of Fisheries was adduced from Mr Schofield, who is a Supervising Fisheries and Marine Officer which is a level 4 position. Mr Schofield has been employed in that capacity since about 1993. In terms of prosecution work, Mr Schofield testified that his duties include representing the Department in the Magistrates Court. This includes for mentions and some status hearings concerning recreational fisheries offences under the Fish Resources Management Act 1994 and Regulations. Mr Schofield said that he does not appear as a Prosecutor in contested trials as these matters are briefed out to the State Solicitor’s Office. This is also the case for commercial offences under the legislation. 39 In terms of background and training, Mr Schofield testified that Departmental Prosecutors are trained in-house. As to the overall breakdown in the duties of a fisheries officer, Mr Schofield said that prosecution work forms a relatively small part of his job. He confirmed that in accordance generally with the JDF for his position, about 70% of his work is associated with investigations. About 10% involves apprehension work, another 10% is prosecution work and finally, about 10% involves various leadership activities. 40 Evidence was also led from the appellants. Mr Newman commenced with the Authority as a patrol officer and in that position he completed a Certificate in Transit Security and Service and was appointed as a Railway Special Constable. Mr Newman also completed an Associate Diploma of Business and Legal Studies a few years ago. Mr Newman commenced as a Prosecutor with the then West Australian Government Railways in 1998. At this time, Mr Newman was involved in preparing the original JDF for the position. Mr Newman’s evidence in chief was largely based upon a sequential development of the grounds of appeal. 41 Commencing with ground 1.6.1, that concerning amendment to statute law, Mr Newman said that as a part of the reclassification request, a classification evaluation report was prepared by Mr Veitch of Shelby Consulting. A copy of this document was tab 6 in the Authority’s bundle of documents as exhibit R1. Mr Newman referred to his interview with Mr Veitch and in particular the reference to the comparative position of Police Prosecutor. Mr Newman noted that in the report of Mr Veitch at p 8, is a reference to the Police Prosecutor responsibilities and in particular that of “contributes to the amendment of statute law by undertaking research and special projects on a wide range of legal issues”. It was said by Mr Newman that the report failed to have regard to the role of Authority Prosecutors in performing a similar duty. 42 Mr Newman referred to some examples of this, in particular at exhibits A13 and A14. Exhibit A13 refers to a memorandum of 3 September 2008 from Mr Greenham, the then Manager Prosecutions and Projects, to senior management of the Authority, referring to a problem identified by the Prosecutors in relation to the signing of prosecution notices under the Criminal Procedure Act 2004. A number of options are outlined in the memorandum to address the issue. A further example in exhibit A14 was an email from Mr Newman to Mr Greenham in relation to the five year review of the Public Transport Authority Act. 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2111 A number of suggestions are made by Mr Newman in relation to the legislative review. The import of this testimony was clearly directed towards establishing that from time to time, the Authority Prosecutors do contribute to the amendment of statute law. In respect of exhibit A14, however, Mr Newman did accept that the request for information on possible amendments to the Public Transport Authority Act was widely distributed to many employees within the Authority. 43 In relation to case law research, Mr Newman referred to exhibit A12 which is notes made in relation to a case the subject of a trial in the Magistrates Court. The notes refer to various authorities and a discussion of the relevant legal principles. Mr Newman also referred to another document prepared by him in August 2008 concerning a prosecution under the Road Traffic Code 2000. This again made reference to various relevant authorities. When these issues were raised with him in cross-examination, Mr Newman did agree with the proposition put to him, that it is part of the duty of an advocate for the prosecution to consider relevant cases in preparing for trial as a matter of course. 44 In terms of input into policies and procedures, Mr Newman also referred to exhibits A13 and A14 in this regard. Additionally, Mr Newman referred to a request for suggested changes to the Transit Officers Operations Manual 2012 as further example of the contributions made by Prosecutors. Whilst Mr Newman said that these documents are not prepared by the Prosecutors, the import of the evidence was that from time to time they are requested to comment on internal procedures. 45 Mr Newman also referred to what were described as complex and protracted cases that he conducted some years ago. These were listed in the submission to the Appeal Panel in 2010. This submission referred to a two day trial in 1998, a two day trail in 1999, a five day trial in 1999, a two day trial in 1999, a one day trial in 2000, a three day trial in 2000, a two day trial in 2000, a one day trial in 2000, and a five day trial in 2000. The detail of these matters was not explored in evidence. However, Mr Newman did accept in cross-examination, that the number of lengthy matters in recent years is relatively few. Additionally, in terms of present workload, given the number of Prosecutors and matters listed for trial in recent months, the Prosecutors have one to two contested trials per month. Mr Newman accepted that there has been a very significant fall off in workload of recent times. 46 As to the capacity to conduct a wide range of different prosecutions, including those that might be categorised as A, B, C and D etc, Mr Newman referred to the appointment of himself and others as Police Special Constables under s 35(5) of the Police Act 1892. Reference to this is contained at exhibit A17, in which Mr Newman’s appointment as a Special Constable by the Commissioner of Police is set out. The appointment as Special Constable refers to the capacity for Mr Newman to commence prosecutions on behalf of the Authority for a range of Criminal Code (WA) offences committed on the Authority’s property. Allied to this, was the contention of Mr Newman in his evidence, and indeed a thread of the cases of both the appellants, that in exercising their powers as Special Constables, they are in fact appearing for the Commissioner of Police and are accordingly accountable to him under the Police Act. I will return to this issue later in these reasons. 47 An issue on which Mr Newman placed some emphasis was the capacity for Authority Prosecutors to exercise autonomy in the discharge of their duties. Mr Newman said that in court as a Prosecutor, he has the discretion to amend or discontinue charges. A number of examples were cited by Mr Newman in this regard. He said that there have been cases where after reviewing CCTV footage, it became apparent to him that there was no reasonable prospect of obtaining a conviction. He would in those cases discuss the issue with defence counsel, which could lead to a downgrading of a charge or its discontinuance. 48 The controversial aspect of this issue relates to the Authority’s Prosecutions Procedure of 2008. The evidence was that this procedure was implemented in part, following a review by the Corruption and Crime Commission of the Authority’s policies concerning the withdrawal of charges. Specifically at cl 5.9 the policy provides for a procedure to be followed by Prosecutors regarding the withdrawal of charges. This procedure specifies that charges, once laid, may only be withdrawn after review and with the authority of the Manager Prosecutions and Projects. This review involves the relevant Prosecutor and/or the Senior Prosecutor. In all cases, the policy requires that the Prosecutor making a recommendation for the discontinuance of a charge, is to provide reasons in support and the discontinuance is to be noted in a discontinuance book which is kept in the Prosecution Office. The policy deals specifically with the withdrawal of charges prior to and after they have been listed in court. In the latter case, the policy refers to a withdrawal prior to the mention of the matter. 49 The policy is said to be silent as to what a Prosecutor should do when in court and it becomes apparent that the charge should be withdrawn. It seemed on Mr Newman’s evidence that he did not consider that this policy had application once the Prosecutors were in a court building. This is so despite the terms of cl 5.9.1 which provides in part that “all charges that have been laid are only to be withdrawn after they have been reviewed by the Manager Prosecutions and Projects”. Mr Newman’s testimony on this issue referred to the difficulties that may be encountered by a Prosecutor in seeking instructions during the course of a proceeding. However, in cross-examination, Mr Newman accepted the broad thrust of Mr Pidco’s evidence, that in 99% of cases, the court would grant a brief adjournment during a proceeding for a Prosecutor to obtain instructions. Indeed it was Mr Newman’s evidence that he has never been refused such a request. 50 In terms of on-the-job training, Mr Newman gave evidence about a new proposed JDF that did refer to the training and mentoring of Trainee Prosecutors. However, he accepted that the JDF in question, prepared it seems in about 2010, is not the approved version and was developed during discussions with managers. 51 In terms of qualifications, whilst accepting that the current JDF does not require any prescribed qualifications as essential for appointment as a Prosecutor, Mr Newman said in reality all Prosecutors have completed at least the three month Customer Service Security Officer Special Constable course. Additionally, all Prosecutors have undertaken the Police Prosecutors’ course. Mr Newman referred to this in the context of appointments in July 2006, by the Commissioner of Police, of a number of Authority Prosecutors as Police Special Constables under s 35(a) of the Police Act 1892. 52 In essence, Mr Newman said that the Appeal Panel failed to have regard to this when it took into account a comparison of the position of Authority Prosecutor with other positions in assessing work value changes. On this issue, Mr Newman, in his statement tendered as exhibit A5, referred to errors by the Appeal Panel in misdirecting itself by concluding that all of the comparative positions used in the work value assessment, “conducted prosecutions and performed an advocacy service”. 2112 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. Mr Newman contended that, for example, the level 4 Fisheries Officer position does not provide an advocacy service and nor does the DPI Level 4 position. 53 Further in Mr Newman’s evidence, it is said that the Appeal Panel placed excessive weight upon the classification evaluation prepared by Mr Veitch in July 2008, by concluding that the Authority Prosecutors do not undertake a number of functions. These include conducting legal research and providing a court advocacy service in complex and protracted cases. The Appeal Panel therefore failed to attach any significant weight to these factors in work value terms. On Mr Newman’s evidence, other factors overlooked by the Appeal Panel included the fact that the Authority Prosecutors do contribute to the amendment of statute law; make a contribution towards the continual improvement process by having input into the development and amendment of Authority policies; and appear for the Commissioner of Police, since they were appointed as Police Special Constables in 2007. In relation to these matters, Mr Newman’s evidence was that Mr Veitch in his Classification Report, failed to have any proper regard to these duties of Authority Prosecutors, when comparing the position with other positions. 54 In relation to some of the evidence given before the Appeal Panel, Mr Newman said that the evidence given by Mr Scudds in relation to the difference between an Authority Prosecutor and Police and Fisheries Prosecutors, was misconstrued. The contention of Mr Newman was that Mr Scudds’ evidence of there being little difference in the job requirements of the Prosecutors from the Authority, Police and Fisheries, was taken out of context. What Mr Scudds meant by this, according to Mr Newman, was that Mr Scudds was unable to indicate to the Appeal Panel as to whether the Fisheries Prosecutor was an officer of the Fisheries Department or was a solicitor from the State Solicitor’s Office. 55 In relation to the withdrawal of charges issue, Mr Newman said that the Appeal Panel made errors in relation to the operation of the Authority’s Prosecution Policy, which came into effect in October 2008. Those errors are said to relate to a misunderstanding of what Mr Greenham, the then Manager of Prosecutions and Projects, had stated about the policy on the withdrawal of charges. That in fact, there was no pre-existing requirement for management approval in relation to withdrawal of charges prior to the policy being made in October 2008. Furthermore, Mr Newman said that the Appeal Panel also did not have regard to the autonomy of Authority Prosecutors to withdraw charges, at the time of the commencement of the reclassification application in January 2008. 56 In terms of the complexity of work undertaken by Authority Prosecutors, Mr Newman said that the highly complex and difficult “A” grade trails conducted by Authority Prosecutors were not taken into account by the Panel. It was suggested by Mr Newman that evidence before the Panel that it may take up to four years for the Police Prosecutor to be competent enough to conduct “B” grade trials, but not “A” trials, was supportive of this contention. Allied to this issue, Mr Newman testified that there was also no consideration given by the Appeal Panel to the autonomy exercised by Authority Prosecutors as to whether to proceed with charges, substitute or amend, and negotiate with defence counsel. 57 In general terms, Mr Newman said that the Appeal Panel overly relied upon the evidence of Mr Veitch and his Report, and failed to have proper regard to the differences between the nature of the roles of an Authority Prosecutor, and the DPI, Fisheries and Police Prosecutor positions. Furthermore, it was contended by Mr Newman that the Appeal Panel failed to properly appreciate the contentions advanced by the appellants about the effect of the Corruption and Crime Commission Act 2003 on the Authority Prosecutors, in terms of the obligations that legislation places on them to identify complex issues of law to avoid the wrongful conviction of an alleged offender. Allied to this issue, Mr Newman said that the Appeal Panel also failed to recognise that the obligation on the Authority Prosecutors to review CCTV footage prior to proceeding to court has placed a further responsibility on the Prosecutors to report to the Authority any matters adverse disclosed in such footage, prior to charges being heard. 58 Finally, Mr Newman referred to wide ranging challenges to the Appeal Panel’s review and assessment of the BIPERS analysis that was undertaken for their positions by Mr Veitch. 59 Some supporting evidence was given by Mr Steel, although Mr Newman was the principal witness for the appellants. Mr Steel has been an Authority Prosecutor for many years and undertook the Railway Special Constable Course. He is generally conversant with the various police offences and the powers of police officers. After he was appointed, as a part of his development, Mr Steel also completed the Police Prosecutors’ course. He described it as then a requirement of the position, but which is no longer. In cross-examination, however, Mr Steel accepted that there was no requirement in the current JDF for an Authority Prosecutor to have done such a course or to complete the relevant Certificate III course. He also agreed that there is more than one way to get the required knowledge to be a Prosecutor, not only through undertaking of formal courses of training. 60 In terms of his training, Mr Steel referred to being trained by Mr McCaughey as the then Senior Prosecutor and was also assisted by Ms Brooks who was then a Prosecutor. He described this as the “unwritten understanding”, at least until 2010, when it was “removed”. In terms of the duration of trials, Mr Steel testified that most trials are one day or less. However, occasionally, the Authority Prosecutors do longer matters. Mr Steel also accepted that about 12 to 15 months ago, there was a “blitz” to deal with a backlog of cases in the Prosecutions Section and the work load at that time was high. Now the work load has reduced significantly to what Mr Steel described as less than normal and relatively quiet. 61 In terms of the issue of authority to withdraw charges, Mr Steel said that up until 2008, he relied upon the approach instituted by Mr McCaughey at the time, to commit to writing the reasons for the withdrawal of any charges. Mr Steel referred to the new policy being introduced in 2008 following the review by the Corruption and Crime Commission. In particular, Mr Steel referred to a particular case involving a person the subject of charges, Mr Haegsrom, in a matter in 2010. Mr Steel was involved in a “charge negotiation”. He said he followed the procedures of the Authority “by the book” and received all the necessary approvals. The Corruption and Crime Commission investigated the matter and he considered that he was personally under investigation. Ultimately, however, Mr Steel said he was subsequently informed by Mr Furmedge, that he was “cleared of all the allegations”, some months after the process had begun. 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2113 62 In relation to the processes undertaken by Police Prosecutors, Mr Steel made the point that his understanding is that the internal processes for a Police Prosecutor’s brief involve various stages of review. This means that the final brief is generally of a higher quality than those of Authority Prosecutors, who have to remedy any defects as they are discovered. Respondent’s evidence 63 Mr Collopy is the Manager of Professional Standards and Integrity at the Authority. Mr Collopy has a military and investigative background. He has overseen the Prosecution Section since about March 2011. He provided some statistics in relation to the activity of the Prosecutions Section between that time and early 2012. Between July 2011 and January 2012 the section dealt with approximately 585 matters with 93% of those matters being mentions and 7% contested hearings. Of those, some 49% involved fare evasion matters. Of the 10 trials conducted, one was part heard and the others were one day listings. In the month of January 2012, there were 10 matters listed. The Prosecution Section has a staff of four Prosecutors including the Senior Prosecutor. Mr Collopy did concede, however, that matters going to trial are generally not ticketing matters, but involve other issues. Mr Collopy also referred to the appointment of Prosecutors as Special Constables under the Police Act to overcome the problem of prosecuting Criminal Code offences on the Authority’s property. He also noted that not all Special Constables have done the Certificate III course, but some do have a policing background. 64 In terms of qualifications for the position, Mr Collopy referred to the capacity for Prosecutors to come from either “in the system” as he put it, preparing briefs and presenting matters in court and who may have done the Police Prosecutors’ course as a part of their development. Alternatively, somebody may be appointed who has had previous legal experience. In Mr Collopy’s view, specifying the Police Prosecutors’ Course as an essential requirement would exclude those who have come from a non-policing background and would be limiting. 65 Mr Furmedge is the Director of Security Services for the Authority. In that position, Mr Furmedge is responsible for the overall security services portfolio. Mr Furmedge has a background in policing and has academic qualifications in security management and justice studies including criminal law. Mr Furmedge outlined the role of the Authority Prosecutors in general terms. The initial complaint or prosecution notice is prepared by a Transit Officer as the responsible case officer. That is then checked by a supervisor before the matter can proceed. In the case of criminal offences prosecuted by the Authority, the prosecution notice is required to be signed by a Special Constable, who are mainly supervisors. 66 Mr Furmedge referred to the issue of withdrawing charges and testified that Prosecutors do not have a general power to withdraw charges or offer no evidence in relation to them, without prior approval. Prior to 2008 when the Prosecution Policy was introduced, Mr Furmedge referred to a practice where withdrawals of matters were reviewed by the then Senior Prosecutor Mr McCaughey. Mr Furmedge said that there was a necessity to formalise the procedure, particularly after involvement of the Corruption and Crime Commission in a matter. Reference was made to internal memorandums to and from the then Manager Prosecutions and Projects, Mr Greenham, in July 2008, when the necessity for formalising the process for withdrawal of charges was highlighted. 67 The 2008 Policy applies to all prosecutions, including those initiated by Special Constables. In Mr Furmedge’s experience, whilst the requirement to discontinue should be relatively rare, given the various filtering processes to ensure a brief is adequate, as far as he is aware, the Prosecutors are making contact with senior management before any decisions to withdraw or amend charges are made. In the rare case where a Prosecutor was not able to make contact with senior management while attending Court, then at least as long as a Prosecutor attempts to do so, and is able to justify their decision in relation to a charge, Mr Furmedge could see no difficulty. 68 In relation to the amendment of statute law, Mr Furmedge confirmed that as Prosecutors work at the “coalface” then naturally their views are sought as to how Magistrates are applying the legislation and the identification of possible problems with it from the Prosecutor’s experience. The Prosecutor’s feedback is sought on these matters, which information is then progressed internally through senior management, legal advisors and the government, in relation to any legislative change that might be necessary. Mr Furmedge saw the issue of seeking feedback from Prosecutors as simply a sound management practice. 69 In relation to the development of policies and procedures, Mr Furmedge testified that the Authority consults with Prosecutors, as with all other staff, about policies and procedures that affect them directly. This is no more than the usual internal consultation that takes place with all staff. 70 In terms of training, Mr Furmedge confirmed that there was no formal training responsibility involved in the role of Prosecutor. However, he accepted that there is a degree of mentoring where, for example, the Prosecutors will take Trainees to court with them and discuss matters that they are dealing with. In this regard, he accepted that there is a degree of on-the-job coaching and mentoring provided by Prosecutors, although it is not a formal training responsibility. The formal training responsibility was that of the Senior Prosecutor. 71 In terms of qualifications for appointment as a Prosecutor, Mr Furmedge confirmed that the completion of the Police Prosecutor training course is not an essential requirement for the position. Whilst it is an advantage to have done such a course, as with the Certificate III course, it is not essential. The requirement to hold those qualifications was seen by Mr Furmedge as a potentially limiting factor, in that candidates for appointment could come from a range of backgrounds and have been involved with legislation from other areas. Mr Furmedge did, however, accept the benefit of undertaking such courses as a part of a Prosecutor’s professional development. 72 In terms of greater obligations imposed by the Corruption and Crime Commission Act, Mr Furmedge did not see any particular additional obligations imposed on Prosecutors that are not otherwise imposed on all public servants, as far as professional and ethical conduct is concerned. In terms of accountability for Prosecutors who are Special Constables, Mr Furmedge expressed the view that in the case of Criminal Code matters, the Prosecutors are not accountable to the Commissioner of Police, but rather the Authority, as the employer. The appointment as a Special Constable confers the authority to prosecute Criminal Code offences on the Authority’s property. However, this is more of an administrative matter rather than any change in accountability of the Prosecutors. 2114 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. 73 Mr Furmedge was also cross-examined about the impact of CCTV footage and how this has affected the work of Prosecutors. In his view, the direction made by the Chief Executive Officer of the Authority for mandatory viewing of CCTV footage makes the Prosecutor’s job easier not harder. In his assessment, the Prosecutors are able to use the CCTV footage to ensure that the briefs that they prepare are internally consistent and to highlight any difficulties that may be encountered if a matter was presented to the court. Mr Furmedge contrasted this to the work of Police Prosecutors, who mainly do not have the benefit of CCTV footage and who may have to orally negative various criminal defences during the course of their work. 74 In relation to changes introduced by the Criminal Procedure Act, Mr Furmedge was not of the view that pre-trial disclosure, or the requirement for Prosecutors to close their case before the defence, has imposed any additional burdens on Authority Prosecutors. In relation to pre-trial disclosure, Mr Furmedge’s evidence was that given the internal review process for briefs, by the time that they are ready to be presented to the court, briefs should be robust enough to deal with any possible difficulties. Additionally, as a part of case preparation, Prosecutors would be required to anticipate various defences that might be put by the defence in court. Nor did Mr Furmedge see any additional burdens placed on Prosecutors by s 55 of the Criminal Procedure Act, in relation to ex parte hearings. This is because in his view, Prosecutors have always had the responsibility to ensure that they have a prima facie case. The absence of a defendant should make no difference to this in his view. 75 In relation to the Veitch Report of 2008, Mr Furmedge affirmed that he was consulted by Mr Veitch in relation to the review of the Prosecutor’s role. He agrees with Mr Veitch’s conclusion generally in relation to the additional work value of Police Prosecutors, based on the nature of their responsibilities. In this respect, Mr Furmedge referred to the additional range of offences prosecuted by Police Prosecutors; the fact that they are often required to attend court and prosecute with little or no prior notice or preparation; and that in general, Police Prosecutors do not have the benefit of CCTV footage in the preparation of their briefs. 76 Mr Veitch was examined and cross-examined extensively. Perhaps this is not surprising given that he was the author of the July 2008 Report and the latter June 2011 Report, which was more of a “desktop” review. Mr Veitch is a senior and experienced person in the field of human resources and has some 30 years’ experience in job evaluation and classification in the State Government sector in particular. Mr Veitch outlined the usual methodology for conducting a classification assessment for a position within the government sector. This involves a review of the current JDF for a position which sometimes might be a few years old. Following this, interviews take place with the occupants of the position under review. This is followed by interviews with those who supervise the position. An assessment tool, the BIPERS, is then undertaken, which has a ten factor scoring system and is used extensively across government agencies. 77 The next stage involves looking for internal and external comparisons with the position under review. A work value assessment is then undertaken on the basis of the evidence and materials gathered, in terms of identifying any significant demonstrated increase in work value. The factors looked for are significant changes in a job in terms of responsibility, autonomy and decision making etc. Following this, a report is prepared and it is provided to the organisation with recommendations in relation to the classification concerned. Mr Veitch outlined the nature of the BIPERS assessment process, and what factors are taken into account and how the various ratings are achieved. 78 Specifically in relation to the Authority Prosecutors, Mr Veitch testified that he conducted two assessments of the positions, the first one in 2008 and the second, more brief review, in 2011. For the purposes of the 2008 assessment, the Report for which was tab 6 in exhibit R1, Mr Veitch outlined the process that he followed. Firstly he met with both the appellants to discuss their roles. Mr Veitch referred to the fact that the Prosecutors were reliant upon five key changes to their responsibilities, which have been referred to above in the decision of the Appeal Panel. Mr Veitch said he reviewed the responsibilities of the Prosecutor position, in light of the five factors raised by the appellants. Following this, Mr Veitch met with Mr McCaughey. He also met with Mr Greenham and Mr Furmedge to assess the position from their perspective. He then undertook a BIPERS assessment. 79 The next step involved a comparison with internal and external positions, looking for those positions which may have the closest match to that under review. Mr Veitch testified that he found a couple of positions which were a very good initial match to the Authority Prosecutor positions. In particular, was the level 4 DPI Senior Prosecutions Officer which contained seven duties of a total of 10 which were identical to that of the Authority Prosecutor. On that basis, from the perspective of comparative JDFs, Mr Veitch said he found a very strong correlation to exist. Another comparable position to the Authority Prosecutor role was the level 4 Supervising Fisheries and Marine Officer (Investigator), Department of Fisheries. From an assessment of these positions, Mr Veitch concluded that given that they were classified at level 4, the Authority Prosecutor positions were correctly classified. 80 In terms of a comparison with the level 6 Police Prosecutor position, Mr Veitch testified that whilst there were some similarities between this position and the Authority Prosecutor, there were two major differences. The first was the breadth of the Police Prosecutor role, in terms of the very broad range of offences that Police Prosecutors are required to prosecute. Additionally, Police Prosecutors generally do not have the aid of material such as CCTV footage for example. The second important distinction referred to by Mr Veitch was that the Police Prosecutor position, for salary purposes, is based on a rank structure and years of service, and not a job classification system based upon BIPERS etc, as is the case in civilian positions. 81 Accordingly, Mr Veitch referred to the fact that there could be a significant difference in remuneration between a sworn and unsworn officer, doing the same work. In Mr Veitch’s assessment, this made any comparison with the Authority Prosecutors’ classification level very difficult. Having heard the evidence in these proceedings relating to the work of Police Prosecutors, Mr Veitch testified that he had not altered his view in any way from that expressed in his 2008 and 2011 Reports. 82 Mr Veitch was asked about a further comparative position, that being the level 5 Senior Prosecutions officer at the then DPI. Mr Veitch said he examined this position carefully but noted that compared to the Authority Prosecutor, it undertakes some higher level work of a strategic nature and is involved in the supervision of other positions. When looked at in the context of the lower level 4 DPI position, with which many similarities were found, Mr Veitch said he concluded that the level 5 position 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2115 was probably more closely aligned to that of the Senior Prosecutor role at the Authority. In commenting specifically on the evidence given by Mr Madden, who occupied the level 4 DPI position, he noted that whilst Mr Madden’s evidence was that he spent most of his time on relatively simple extraordinary driver’s licence applications, for the purposes of classification review, he was focussing on all of the requirements and responsibilities of the position. Just because Mr Madden may have only been performing a small portion of the overall required duties, did not detract at all from the full range of responsibilities contained within the level 4 DPI position that an incumbent could be required to perform. 83 Similarly, a review of the level 4 Supervising Fisheries and Marine Officer Investigator position was undertaken. This position was noted as having some small prosecution component along with investigation responsibilities. Whilst it was a related activity, it was seen as a good comparison to the Authority Prosecutor role, along with the DPI level 4 position. 84 With the results of the BIPERS assessment, Mr Veitch noted that even though there was no formal supervision responsibility exercised by the Authority Prosecutors, given that there was a degree of mentoring and coaching of junior staff, Mr Veitch assigned some credit for this in his assessment. 85 The 2011 classification assessment was more of a review of the 2008 Report, in light of any changes that may have occurred. Mr Veitch testified that he was contacted by the Authority and requested to further review the position to establish whether any changes had taken place. Mr Veitch said he contacted Mr Steel, who did not wish to have any part of the further assessment. Whilst he did not specifically contact Mr Newman, Mr Veitch said that he assumed, from Mr Steel’s response, that the Prosecutors did not wish to take part. Contact was also made with Mr Furmedge and Mr Collopy, to ascertain from their perspective, whether any changes had taken place which would require him to alter his conclusions reached in 2008. He was told there were no changes to the position. The only change in his report was a minor reassessment of the BIPERS score from 317 down to 307 in relation to supervisory responsibilities. Mr Veitch confirmed that he maintained the conclusion reached in both his 2008 and 2011 Reports and stood by them. 86 Mr Veitch was specifically asked about a number of factors featuring in this appeal. Firstly was the Prosecutor’s contribution to the amendment of statute law. Mr Veitch said whilst he had heard the evidence given in these proceedings, it only served to confirm his view that the question of proximity to the ultimate decision is the crucial factor. That is, whilst a number of people may have an input into possible changes to legislation, it is proximity to the decision making, and hence the capacity to influence decision making, which is the most important factor. The same principle applied to the issue of developing and amending prosecuting policies and procedures. Mr Veitch said he had no doubt that from time to time the Prosecutors would, based upon their first-hand knowledge, be able to have input into policies. However, it is those ultimately responsible for the final drafting and authorisation of policy, that hold the greatest level of accountability on this factor. 87 Mr Veitch did not assign much weight to the issue of whether a Prosecutor could withdraw charges autonomously. He certainly understood that they could not. But despite this, from a classification perspective, Mr Veitch did not think any such responsibility would have other than a marginal influence overall on the work value of a position. In terms of the training and supervisory role of Prosecutors, Mr Veitch observed that he was aware of the evidence given about this factor. He differentiated between informal coaching and mentoring, where junior employees work with more senior employees, and structured training, where a person has responsibility for developing and formally assessing another officer. In terms of a general coaching and mentoring role, but not structured training, Mr Veitch did not see anything beyond level 3 or perhaps level 4, as an appropriate classification level for that sort of mentoring relationship. Contentions of the parties 88 The appellants made a number of submissions in support of the many grounds of appeal advanced in these proceedings. There was a challenge to the process of the BIPERS assessment undertaken by Mr Veitch on the footing that the job evaluation questionnaire conducted did not meet the requirements of the BIPERS Classification Determination Manual. As the Commission understood it, a number of challenges were made in this respect. Firstly, the questionnaire was completed by the appellants but was not considered by Mr Veitch and there was no questionnaire completed by the Prosecutors’ supervisors or managers. Secondly, there were no notes of the process provided to either Mr Newman or Mr Steel. Thirdly, the supervisors did not assign their assessment of the degree used for each factor or any subsequent review by high level management. Fourthly, there was no “meeting of the minds” which I take to be no comparison between the questionnaires as only one was undertaken. Finally, it is said that there was no discussion between the appellants and their supervision, in relation to the job evaluation questionnaire. 89 It was contended by the appellants that their performance of factors set out in grounds of appeal 1.6.1 to 1.6.4 inclusive, adds significantly to the work value of their position. These factors, which include the contribution to amending statute law; conducting case law research; contributing to the development of policies and procedures; and providing an advocacy service in relation to complex and protracted trials, were factors that Mr Veitch failed to take into account in both his comparisons with other positions and in his BIPERS assessment. In referring to Mr Veitch’s evidence, and his acknowledgement that some of these duties were not undertaken in the comparative positions but are a feature of the Authority Prosecutor position and hence contribute to its work value, this was said to show error. 90 Specific reference was made to the development of policies and procedures. The materials tendered by the appellants were said to support the fact that there are many examples where the Prosecutors bring matters to the Authority’s attention which lead to changes being made. It was contended that these matters do not feature in Mr Veitch’s reports. In referring to the DPI level 4 position the appellants emphasised in particular the fact that 70% of the work undertaken is relatively straight forward, extraordinary driver’s licence applications. These are brief and routine matters which do not involve Criminal Code defences, conflicting evidence and other matters arising, for example, under sentencing legislation. 91 In relation to the appointment as Special Constables under the Police Act, the appellants emphasised their view that the Prosecutors represent the Commissioner of Police in relation to Criminal Code matters. They also referred to some 2116 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. inconsistencies in the evidence between Mr Collopy and Mr Furmedge in this respect. Reliance was placed on the authority imposed on the Prosecutors by s 172 of the Criminal Procedure Act 2004 (WA). 92 As to the autonomy to withdraw charges as specified in ground 1.6.7, this was said to further add to the increase in work value for the position of Prosecutors. As the Commission understands the argument, it was contended that by acting on behalf of the Commissioner of Police as a Special Constable, an Authority Prosecutor by the terms of ss136, 137 and 138 of the Police Act, is governed by the authority of the Commissioner of Police. Although employed by the Authority, there is no legislative power supporting the Authority’s capacity to direct a Prosecutor to proceed or not with a Criminal Code offence. It is contended by the appellants that this hiatus places the Prosecutors in a precarious position. 93 As to the 2008 Prosecution Policy, it was submitted that whilst this provides some clarity, the relevant managers are not always available, despite the fact that as a consequence of cases into which the Corruption and Crime Commission has enquired, the onus is always on the Prosecutor to justify the withdrawal of charges. According to the appellants, these factors, along with the need to identify deficiencies in the prosecution case, have increased the work value of their position. 94 Examples of cases where these matters have arisen are referred to in the documentary evidence of the appellants. In relation to on-the-job training and mentoring of trainees, dealt with in ground 1.6.8 and in part, grounds 10, 11.1 and 11.2, it was submitted that these functions are not performed by the comparative positions at the former DPI or Fisheries Department. It was contended by the appellants that the training duty was actually removed from their responsibility, following the commencement of the present appeal. Reference is made to the June 2011 Report prepared by Mr Veitch in this regard. The removal of this responsibility was for the purpose of reducing the work value of the Prosecutor positions. It was contended that taking into account this training function, there should be a revised BIPERS score which should lead the Commission to reclassify the position to at least level 5. 95 In relation to negotiation with counsel, dealt with in ground 1.6.9, the appellants contended that this is an aspect of their work warranting higher work value responsibility, which is not performed by the comparative DPI and Fisheries level 4 positions. It was submitted that the Authority Prosecutors are required to negotiate on a regular basis in relation to both contested matters and at mentions, in relation to a range of issues. In this regard, reference was made to the evidence of Mr Donnelly, to the effect that the negotiations with counsel involve a high level of responsibility and complexity. He referred to a particular case, where negotiation led to the discontinuance of the prosecution. Other examples are referred to in the documentary evidence. 96 In relation to ground 1.6.10, that providing guidance and advice in all aspects of the criminal law and in relation to a wide range of charges and investigations, the appellants contended that this feature of the Prosecutor’s work is not apparent in the comparative positions dealt with by Mr Veitch, at either the DPI or Fisheries Department. This is a factor leading to a higher work value contribution to the Authority Prosecutor position. 97 The requirement to assess the viability of proceeding with prosecutions is dealt with in ground 1.6.11. In this respect, the appellants contended that the Prosecutors are required to apply the “Statement of Prosecution Policy and Guidelines 2005” prepared by the Director of Public Prosecutions. This was confirmed in the evidence of Mr Collopy, Mr Furmedge and Mr Greenham. It was contended that this is in contrast to the comparative positions, which are not required to adhere to the general requirements of the DPP Guidelines, and thus adds to the work value of the Authority Prosecutor position. 98 The obligation to continually improve knowledge in relation to relevant statute law was advanced as a factor in ground 1.6.12. It was contended that the Prosecutors are required to maintain up-to-date knowledge of the relevant statue and case law and to use resources such as law libraries, to undertake their own independent research. This factor is not present in the comparative positions at the DPI as referred in the evidence of Mr Madden. Whilst the Fisheries Department level 4 is required to keep informed as to relevant statutes, there is no requirement to undertake ongoing legal research, as demonstrated in the evidence of Mr Schofield. 99 The reference to formal qualifications is contained in ground 1.6.13. In relation to this question, it was submitted that all Prosecutors have completed the Customer Service Security Officer course for appointment as a Special Constable. Furthermore, and in relation to ground 10.1 also, as a practical requirement, all Authority Prosecutors complete the Police Prosecutors’ course following their appointment. It was contended by the appellants that without the knowledge obtained from these courses, it would be impossible for the Authority Prosecutors to effectively undertake their roles. The submission was that if such training were not required, then Authority Prosecutors would not be sent on the courses in the first place. 100 Reference was made to the evidence of Mr Pidco, who described the content of the Police Prosecutor course as being at a TAFE Diploma level or the first year of a non-law university degree. In comparison, such training is not required or generally undertaken by the DPI or Fisheries level 4 positions. It was therefore contended that such skills obtained from the completion of these courses are not required to be exercised in those particular positions. Accordingly, it was submitted that the BIPERS assessment should be revised to at least the “trade or vocational qualification” which is degree three in Factor 1, dealing with education. 101 As an overall submission, in relation to the comparative positions, it was contended that the Authority Prosecutors perform at a higher level, have greater responsibilities, and are required to possess knowledge and skills not required to be demonstrated by the DPI and Fisheries Department level 4 positions. On this basis, it was submitted that the Authority Prosecutors should be at least classified as level 5. In short, and by inference, the appellants contended that a simple comparison, line by line, of the JDFs for the DPI and Fisheries Department level 4 positions, with the Authority Prosecutor JDF, does not paint the full picture. 102 The appellants referred quite extensively to the evidence of Mr Scudds and Mr Pidco and also of Sergeant Smith, when comparing the work and responsibilities undertaken by Authority Prosecutors compared to Police Prosecutors. It was submitted that on the evidence, a finding is open that the two Prosecutors require the same knowledge and skills in relation to the work that they do. It was also submitted that the evidence in relation to the success rates for both Authority Prosecutions and Police Prosecutions are broadly similar, which supports the contention of comparability. 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2117 103 Furthermore, in relation to the comparison with the Police Prosecutors, it was contended that the Police Prosecutors have the benefit of a well-resourced prosecution service and officers receive the benefit of extensive training, as they progress through the Police rank structure. They are supported by well-trained officers. By comparison, the Authority Transit Officers, responsible for the compiling of briefs of evidence to be prosecuted by the Prosecutors, receive only minimal training, and this extends to those that are required to supervise them. The contention of the appellants was therefore, that Authority Prosecutors carry an extra burden to ensure that the briefs of evidence are adequate and are required to attend to any deficiencies themselves. Furthermore, the Authority Prosecutors do not generally have access to experienced legal practitioners for guidance and advice. 104 In relation to the Reports of Mr Veitch of 2008 and 2011, a number of criticisms were advanced. It was contended that the conclusion of Mr Veitch that Prosecutors conduct prosecutions for relatively simple cases, is not consistent with the obligation on Prosecutors to prosecute Commissioner of Police authorised offences under the Criminal Code. Reference was made to the evidence of Mr Scudds, as to the difficulties in some of the matters dealt with by Authority Prosecutors. In relation to Mr Veitch’s conclusions regarding the “limited number of defences” dealt with by Authority Prosecutors, it was contended that this conclusion is inconsistent with the terms of s 36 of the Criminal Code, which extends to offences prosecuted throughout the State. It was submitted that this was also consistent with the evidence of Mr Furmedge. 105 In relation to the issue of use of CCTV footage, it was contended that Mr Veitch’s conclusion that this made the Authority Prosecutor’s job easier, was inconsistent with some of the documentary evidence before the Commission. In short, the appellants said that the availability of CCTV footage may work both for and against the prosecution, depending upon the facts of the case. As to Mr Veitch’s conclusion that the “majority of cases prosecuted by the position relate to fare evasion”, this was said to be incorrect and inconsistent with the evidence in these proceedings, including that of Mr Collopy. Additionally, the conclusion that most cases result in a fine was also inconsistent with the terms of the Sentencing Act 1995 and the evidence of Mr Furmedge. 106 Mr Veitch’s conclusion that “untrained employees have filed in for the Prosecutor where necessary”, is only relevant to appearances for mention, and not contested trials where legal argument may be required. This was said to be consistent with the evidence as to the Fisheries Department level 4, and the evidence of Mr Furmedge. 107 Furthermore, Mr Veitch’s conclusion that the Authority Prosecutor’s role was a “limited and repetitive one” was inconsistent with the proposition that no two cases have the same facts or issues arising, and therefore that conclusion was erroneous. It was submitted that Mr Furmedge’s evidence was supportive of this conclusion. 108 In relation to the conclusions of Mr Veitch regarding the work of Police Prosecutors, a number of submissions were made. Firstly, the conclusion that Police Prosecutors deal with a wide range of matters was not contested by the appellants. However, this is said to be a workload or work volume issue, and not a matter of work value. The conclusion as to Police Prosecutors dealing with complex issues requiring complex defences overlooked the work of Authority Prosecutors dealing with all defences under s 36 of the Criminal Code. Mr Veitch’s conclusion that a Police Prosecutor “has no supporting evidence supplied to certify the case”, in relation to, for example, access to CCTV footage, is not correct, and the general lack of independent witnesses available to Authority Prosecutors makes their work at least as demanding. Furthermore, Mr Veitch’s conclusion that Police Prosecutors “must investigate alleged claims”, and by inference Authority Prosecutors do not, is not consistent with the evidence. The appellants contended that in relation to their matters, investigation takes place through cross-examination in court proceedings. 109 Finally, Mr Veitch’s conclusion that Police Prosecutors “use a wider range of skills to extract required information, relying on sometimes conflicting evidence from witnesses”, is equally applicable to the work of Authority Prosecutors, as demonstrated in the evidence of Mr Furmedge, where he agreed that as with Police prosecutions, in Authority Prosecutions, there is always conflicting evidence. 110 In relation to the BIPERS assessment conducted by Mr Veitch in his 2008 Report, the appellants took issue with every aspect of his conclusions. It was contended that in relation to scope of activity; interpersonal skills; kind of problems dealt with; instructions received; influence on results; size of organisation or unit and personnel supervised/controlled, the rankings given by Mr Veitch to the Authority Prosecutors were too low and this adversely effected their classification determination. 111 For the Authority, counsel submitted that the evidence adduced in these proceedings, and the arguments advanced by the appellants, fall well short of establishing that firstly, the position of Authority Prosecutor was incorrectly classified at level 4 at the outset, or secondly, there has been any significant increase in the work value of the position since original classification, that would warrant a reclassification. 112 Since the original classification in May 2001, which led to Authority Prosecutors being classified at level 4, there have been three occasions, including two Appeal Panels, chaired by former Commissioners of this Commission, when the level 4 classification was affirmed as being correct. Whilst submitting that the Commission as presently constituted is not, of course, bound by the previous determinations of the Appeal Panels, it is contended that in particular, the most recent determination should be accorded appropriate weight. Furthermore, the evidence of Mr Veitch, the BIPERS assessment that he undertook, and the comparisons that he reviewed, confirmed the initial classification at level 4 was correct. As a general submission, counsel for the Authority contended that Mr Veitch’s evidence was thorough, cogent and was not seriously challenged by the appellants in cross-examination. 113 The Authority contended that the cases advanced by the appellants in relation to the comparative analysis undertaken by Mr Veitch and their criticisms of it, are without merit. Dealing firstly with the Police Prosecutor position, the Authority submitted that endeavouring to compare the level 6 position with the Authority Prosecutor position is erroneous. This is for a range of reasons. The Police Prosecutor position is not one which is classified in the same manner as positions are classified in the Western Australian Public Sector. The determination of classification and salary level of the Police Prosecutor position results from the WA Police rank structure. This provides that officers who have achieved generally the level of Sergeant are 2118 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. seen as eligible for appointment as Police Prosecutors. The attainment of the rank of Sergeant in the WA Police is dependent upon a number of factors, including the acquisition and discharge of a broad range of skills and responsibilities, over a substantial period of time. Those skills and responsibilities, acquired through progression in the rank structure, will generally be much wider than those necessarily required in the Police Prosecutor role. 114 It was therefore contended by the Authority, that making comparisons between the duties performed by a Police Prosecutor, with those of an Authority Prosecutor, is misleading and simplistic. 115 Furthermore, and even disregarding that factor for present purposes, the Authority submitted that there are many differences between the requirements of the Police Prosecutor and the Authority Prosecutor role. A Police Prosecutor, as a part of his or her ordinary duties, prosecutes a much broader range of offences, and hence is required to possess a broader knowledge of law, including all available defences. Police Prosecutors are required to prosecute all offences throughout the State. As the evidence disclosed, it was contended that Police Prosecutors are required to often prosecute cases with very little notice. By comparison Authority Prosecutors have a relatively large amount of time to prepare their cases. 116 Also, whilst acknowledging that it is more of a work load than work value issue, Police Prosecutors generally conduct much longer trials than Authority Prosecutors. In relation to the JDFs for the two positions, counsel for the Authority contended that the Police Prosecutor position has many more responsibilities in its JDF than the Authority Prosecutor position does. Furthermore, the contention by the appellants that the inclusion of factors such as “advocate on complex and protracted cases”, “conduct legal research” and “contribute to the amendment of statute law” in their JDF (as they submitted they should be) would support their reclassification, was erroneous. This is because of the other significant differences between the JDFs, highlighting the greater responsibilities of the Police Prosecutor position. 117 In relation to the DPI Senior Prosecutions Officer level 4, the Authority contended that this was an appropriate and helpful comparison with the Authority Prosecutor position. Mr Veitch’s evidence that there were seven areas of similarity between the two roles and that the JDFs were largely the same supported the conclusion that the comparisons between the JDFs for both positions was appropriate and valid. Whilst the appellants focused on the evidence of Mr Madden, that he only undertook a limited range of duties whilst in the DPI position, this was said to be irrelevant for the purposes of classification review. This was so, as Mr Veitch’s evidence clearly established that the responsibilities required of the position were much broader than the duties actually performed by Mr Madden, and the responsibilities in the JDFs for both positions were broadly very similar. 118 The Authority submitted that even having regard to the assertions of the appellants, that their existing JDF should include a range of matters as set out in grounds 1.6.12 and 1.6.13, the overall similarity between the JDFs for both positions remains valid for present purposes. Furthermore, the Authority contended that the assertions of the appellants that factors such as contributing to the amendment of statute law (ground 1.6.1), contributing to the development and amendment of policy (ground 1.6.3), autonomy in court to withdraw a prosecution (ground 1.6.7), and a requirement to complete the Certificate III course (ground 1.6.13), are not maintainable on the evidence led in the present proceedings. 119 In relation to the other particularised duties, such as conduct case law research (ground 1.6.2), provide an advocacy service in relation to complex and protracted trials (ground 1.6.4), and wide range of trials (ground 1.6.5), on-the-job training (ground 1.6.8), liaise and negotiate with opposing counsel (ground 1.6.9), provide guidance and advice to officers (ground 1.6.10), assess the viability of matters (ground 1.6.11), and continuing legal education (ground 1.6.12), taken collectively, all of these responsibilities could equally be included in the DPI level 4 position JDF based on the evidence. It was contended by counsel for the Authority, that the fact that these duties are not separately particularised, particularly having regard to the evidence of Mr Veitch, may simply be a drafting preference as they are in any event, an overall part of the job in each case. 120 As to the BIPERS assessment undertaken by Mr Veitch, it was submitted by the Authority that Mr Veitch’s evidence in relation to this process was not in any way challenged in the proceedings. Furthermore, there was no direct evidence led by the appellants to contradict Mr Veitch’s evidence in this regard. The suggestion put to Mr Veitch in cross-examination, that he in some way failed to apply the “Classification Determination Manual: Guidelines for Assessment and Determination of Classifications”, rendering his assessment ultra vires, was wrong. It was submitted by the Authority that it is the Chief Executive of the Authority who exercises the statutory power to classify. Moreover, the manual is merely a guide and does not prescribe the BIPERS assessment process. 121 The question of autonomy to withdraw charges was described by the Authority as being seemingly a central issue raised by the appellants. In referring to the evidence of Mr Veitch, the Authority submitted that even if this was so as contended by the appellants, but which is denied, this would not have effected Mr Veitch’s BIPERS assessment. This is because of Mr Veitch’s evidence, that the existence of such a power would be regarded as an ordinary incident of the particular position in question without fundamentally altering its nature. 122 The Authority submitted that regardless of the contentions advanced by the appellants about what they said were the legal sources of their power to withdraw charges, the reality is that the Authority has a policy in place which has been followed. This policy is a condition imposed on Authority Prosecutors by their employer and is an obligation imposed on them by their contracts of employment. It was contended by the Authority that to constantly speculate as to whether the power to withdrawal charges resides in particular pieces of legislation, is largely not to the point. It does not assist in determining any change in work value of the Authority Prosecutor’s position. 123 Overall, the Authority contended that there has been little if any change in the role and responsibilities of the Authority Prosecutor position since it was correctly classified at level 4 in 2001. Whilst some emphasis was placed upon it by the appellants, the Authority submitted that Authority Prosecutors have always prosecuted general criminal matters where offences are committed on Authority property, but did so as Special Constables under the Government Railways Act 1904. The only difference now is they do so as Special Constables under the Police Act 1892, which is essentially an administrative change in authority to prosecute. Furthermore, the matters raised by the appellants, including the obligation to view CCTV footage, 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2119 changes arising from the Criminal Procedure Act 2004 and the effect of the Corruption and Crime Commission Act 2003, have not added to the work value of the Authority Prosecutor position, let alone constituting a significant net addition to work value to warrant a reclassification. Consideration 124 It is important to always keep at the forefront of mind in this matter, that the test of whether a position should be reclassified is a need to demonstrate on the evidence, a significant net addition to the work requirements of a position to warrant the creation of a new reclassification or a higher classification. Some changes to the requirements of a position are not enough. The change to the duties and responsibilities of a position, or the conditions under which work is performed, must be substantial. This is the essence of the work value principle of the Commission’s Wage Fixing Principles, repeatedly applied in matters of this kind. The test is a strict one, to guard against over classification. 125 The appellants have set out many “grounds of appeal”, alleging various errors based on the evidence before the Appeal Panel. As I have observed, there was no transcript of the proceedings before the Appeal Panel which makes the consideration of their complaints difficult, as an appeal in the traditional sense. What the Commission can do is assess the issues raised by the appellants, on the evidence in these proceedings, to determine, in light of the Appeal Panel’s conclusions, whether a reclassification is warranted. Indeed, as the case for the appellants developed, in part it departed from the articulated grounds of appeal. In essence, the complaints really related to an alleged failure to have regard to significant differences, in work value terms, between the Authority Prosecutor positions, and those used for comparative purposes by Mr Veitch in his Classification Report. 126 Additionally, the appellants relied on the factors raised before the Appeal Panel, including the obligations imposed by the CCC Act; changes introduced by the Criminal Procedure Act; the viewing of CCTV footage; and the requirement to supervise staff, as supporting their claim to an increase in work value. 127 I will approach the determination of the appeals in this way also. Ground 1 – Duties and Responsibilities 128 The appellants abandoned grounds 1.1 to 1.5 at the outset of the hearing. The remaining grounds in 1.6.1 to 1.6.13 focus on a range of functions that the appellants say they perform and are not in the JDF for their position, and are thus not formally recognised. Others are said to not have been taken into account by Mr Veitch in his assessment of the position. 129 In general terms it is asserted by the appellants that the Appeal Panel failed to have regard to a range of responsibilities that are part of the role of an Authority Prosecutor, and the Appeal Panel failed to properly assess the work value of the comparative positions. These contentions broadly encompassed grounds 1.6.2, 1.6.4, 1.6.5, 1.6.8, 1.6.9, 1.6.10, 1.6.11 and 1.6.12 of the grounds of appeal. As to grounds 1.6.2 and 2.1 (conduct case law research) and 1.6.4 (conduct an advocacy service) specifically, these two issues were specifically identified by the Appeal Panel at pp 4-5 of its reasons. 130 At p 11 of its reasons, the Appeal Panel, in the context of the appellants’ then claim that their positions were never properly assessed, concluded that such responsibilities fairly fall within the overall duties in the position JDF of “provides an effective and efficient prosecution service for the Transperth Transit Operations Security Service Group”. This conclusion was plainly correct. Such responsibilities are part of the role of an advocate and prosecutor. It is not necessary to separately identify in the JDF each of these responsibilities. In my view, they are a subset of the overall responsibilities. No error or change has been identified. These responsibilities have always been part of the role and it is difficult to see how the job of an Authority Prosecutor could be effectively performed, without these functions being encompassed within it. 131 The approach to these matters adopted by the appellants highlights the problem they face. It seemed on the contentions advanced by the appellants that the fact that these responsibilities were not identified in the DPI or Department of Fisheries position JDFs, meant that their own positions carried a higher work value. Similarly, as above, the failure to identify these particular duties in the Authority Prosecutor JDF meant that they were under-classified. It followed, on this, submission that Mr Veitch, in not separately valuing these aspects of the Authority Prosecutor role, failed to have regard to relevant considerations in assessing the overall work value of the position. He also failed to have regard to the lesser work value of the comparator level 4 DPI and Fisheries positions. 132 The problem with this approach is that the specific sub-functions could equally be expressed in either or all of the JDFs for the Authority, the DPI and Fisheries prosecution positions. That is, it is to be assumed, as Mr Veitch stated in his testimony, that these functions are a “given” as part of the overall requirements of a prosecutor’s role. In his testimony, Mr Veitch considered that because of this, the inclusion of all or some of these sub-functions would not alter his overall assessment of work value. In my view, this conclusion was correct and nothing has been put by the appellants to cause me to not accept Mr Veitch’s conclusions in this regard. 133 Further, the failure to specify such functions separately in the JDF for the Authority Prosecutor provides no support for the proposition that the positions were not properly assessed in work value terms, from the outset. 134 A number of other separate aspects of the Authority Prosecutor role were identified by the appellants as said to support a reclassification. These included ground 1.6.1 (contribution to the amendment of statute law); ground 1.6.3 (contributes to the development and amendment of policy); ground 1.6.7 (autonomy in court to decide not to proceed with any charge); ground 1.6.13 (requirement to complete the Certificate III course). 135 Dealing first with the issue of contributing to the amendment of statute law. I have already outlined the evidence in relation to this matter. The appellants referred to two occasions when they were required to provide input to the review of legislation. The first involved an issue identified by the Prosecution Section in 2008 in relation to the signing of prosecution notices under the Criminal Procedure Act 2004. This led to written advice from Mr Greenham to senior Authority management, to alert them to the problem and to propose various options to resolve the issue. The second related to a five yearly review of the 2120 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. Public Transport Authority Act in 2009. Views were sought across all relevant areas of the organisation as to problems identified with the operation of the legislation and suggested changes to address them. 136 As to the latter issue, it is important to note that the input into the legislative review was sought across the Authority. Each relevant area of its operations made some contribution. The Prosecutions Section was involved only as to security related issues. There were other issues raised from different sections of the organisation. There is nothing unusual or particularly significant about the Prosecutors’ involvement. The evidence before the Commission was that this process took place as part of a regular legislative review and all areas of the Authority were involved. Once identified, issues were forwarded to senior management. It is from that level of responsibility that proposals for amendment to the legislation were taken to government. The Prosecutors did not have any particular overall responsibility for the implementation of reform. They were contributors, as were many others in the Authority. I do not consider that this involvement carries any particular work value component. 137 I agree with the conclusions reached by Mr Veitch in his testimony, that such a factor is given substantial weight only in circumstances where the office has a close and influential effect on the ultimate decisions taken to implement change. That is not the case with the input from the Prosecution Section, undoubtedly helpful though it was. 138 As to the contribution to the development and amendment of policy and procedures, an example referred to by the appellants was a revision of the Authority Transit Officer Operations Manual. Mr Collopy sought comment from a range of persons within the Authority, as to “possible omissions or major corrections”. Again, as with the review of the Authority legislation, whilst no doubt the contribution by the Prosecutors was valuable and helpful, this process does no more than reflect sound management, to obtain the views of those dealing first hand with these sorts of issues in the workplace. This is not a factor in my view, evidencing any particular work value factor which may have been overlooked in the past. 139 Also, I accept Mr Veitch’s assessment on this issue that it is ultimately those responsible for the final formulation and approval of a policy, who carry the major accountability. Whilst this factor was not specifically identified and addressed by the Appeal Panel, it does not advance the appellants’ case for reclassification in my view. 140 The next issue relied on by the appellants, and about which much evidence and many submissions were devoted, was the autonomy said to be possessed by the prosecutors to withdraw or amend a prosecution. I have summarised the evidence and submissions on this question earlier in these reasons. In support of this issue, many documents were referred to by the appellants dealing with cases conducted by them, in which a charge had been amended withdrawn or where no evidence was offered to the court. This issue is also linked to grounds 1.6.6 and 2.6, which deal with the issue of the appellants appearing for the Commissioner of Police as a Special Constable, when prosecuting Criminal Code offences on the Authority’s property. 141 This issue also concerns the terms of a policy introduced by the Authority in 2008 entitled the “PTA Prosecution Procedure (TTO)”. The purpose of the Procedure is “to provide for the uniform management of information contained in court briefs of evidences (sic) held by the PTA of WA and the obligations of employees representing the PTA in the lower courts of the WA judicial system”. 142 On the evidence, this policy was developed and introduced following a review by the Crime and Corruption Commission into the Authority’s approach to prosecutions, and the need for a formalised and transparent approach. The relevant part of the Procedure for present purposes is cl 5.9, dealing with the withdrawal of charges and is in the following terms: “5.9 Withdrawal Of Charges 5.9.1 All charges that have been laid are only to be withdrawn after they have been reviewed by the Manager Prosecutions & Projects. The review will involve consultation with the Senior Prosecutor and/or nominated prosecutor and the case officer. Where applicable, legal authorities will be considered. 5.9.2 Where applicable and if practicable, consultation with the PTA Solicitor and/or the State Solicitors Office may be sought prior to any decision to withdraw a particular charge. This should only be considered where the charge is indictable and it involves a high degree of complexity in the supporting evidence. 5.9.3 If a recommendation for discontinuance is supported the Manager Prosecutions & Projects will bring it to the attention of the Manager Security. 5.9.4 If the charges have already been listed by the courts, prior to the mention the defendant or the defence lawyer/solicitor will be advised. The advice will be in the form of written notification. Any such notification is to be placed upon the brief. 5.9.5 If the charges have not yet been listed for court, that is a summons matter that is to be compiled by the prosecutions office, after the review as detailed in 5.7 has been conducted, the accused will be notified in writing that the PTA will not precede with the charges. This written notification will be done by the prosecutions office. 5.9.6 In all other cases of matters being referred to summons by a case officer the withdrawal of charges is to be progressed consistent with Section 7, clause 10 of the Transit Officer Manual. 5.9.7 In all circumstances the prosecutor making the recommendation for discontinuance will provide the reasons supporting the recommendation, such reasons must be supported at law or to be in the public interest. If the recommendation is approved a notation is to be placed onto the court brief and an entry is to be made in the discontinuation book that is kept in the Prosecution Office.” 143 As I understood the contentions of the appellants, by their appointments as Special Constables under Part II of the Police Act 1892, and as representing the Commissioner of Police in prosecutions under the Criminal Code on Authority property, the Prosecutors are, whilst employees of the Authority, subject to the legislative authority of the Police Act and the Criminal 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2121 Procedure Act. In this situation, the Authority has no legislative authority over Prosecutors in relation to such matters. This is said to create a level of tension between their duties as employees and their obligations to the Commissioner of Police, as the argument ran. It was said that these responsibilities substantially add to the work value of their positions and Mr Veitch failed to understand or have proper regard, or indeed any regard, to these factors. The appellants also said that while the 2008 Procedure does provide some relief, it is not always possible to comply with it when in court. There was a further contention by the appellants that the terms of cl 5.9 of the Procedure are not clear and that it does not apply once a Prosecutor enters a court building. This is referred to above in Mr Newman’s evidence. I did not understand this argument. In my view, the terms of cl 5.9.1 are clear and unambiguous. It applies to all charges, once laid, irrespective of the stage reached in a particular prosecution. 144 Whilst the appellants made much of their appointment as Special Constables for the purposes of this issue, from all of the evidence it is clear that this step was taken by the Authority to overcome technical difficulties with the prosecution by the Authority of Criminal Code offences committed on Authority property. The appointment as a Special Constable does not make the Prosecutors police officers or members of the Police Force for the purposes of the Police Act: ss 34; 37 Police Act. This is subject to the protection from personal liability and recovery of damages for corrupt or malicious conduct, which is extended to Special Constables, by ss 137 and 138 of the Police Act. 145 Regardless, however, of the consequences of the application of the Police Act and other legislation, the fact remains that as employees of the Authority, the appellants are subject to, and are obliged to comply with, the 2008 Procedure. The evidence was that it is followed and there was no serious contention put that, in the event in the course of a defended trial, an amendment to a charge was necessary, the presiding Magistrate would not grant a brief adjournment in order for the Prosecutor to take instructions from senior management. This would enable the Prosecutor to obtain approval from the senior management of the Authority to take whatever steps the Prosecutor considered appropriate. 146 Even prior to the formal Procedure in 2008, it seems there was a practice in place whereby decisions to amend or withdraw charges were required to be subsequently justified in writing. In this regard I refer to the evidence of Mr McCaughey and confirmed in the testimony of Mr Furmedge. The appellants are also subject to the direction and control of the Authority as their employer, under their contracts of employment. 147 Given that ultimately the responsibility under the Procedure rests with the senior management of the Authority to approve the withdrawal of charges, I am not persuaded that there is any particular additional work value involved for a Prosecutor. Despite this, I refer to the uncontradicted testimony of Mr Veitch, to the effect that even if the Prosecutors had such autonomy, he considered that it would be part of the overall responsibilities of a Prosecutor and would not alter the nature of the position. It would not, on Mr Veitch’s assessment, cause a review of the BIPERS score he arrived at, on his review of the position. These issues were specifically referred to by the Appeal Panel and no error is disclosed in my view. 148 The current JDF for the level 4 Authority Prosecutor position does still provide for subordinate positions to be directly responsible to the position. The current JDF has been in place since 2007. It is under review. This issue has been contentious. At the time of the 2008 classification review undertaken by Mr Veitch, the two Prosecutions Assistants were claimed to be responsible to the then three Prosecutor positions, with an overall responsibility for about .6 FTE positions. Mr Veitch in his BIPERS assessment concluded that even taking into account the supervision of 1-2 staff, this would have a minimal overall impact on work value and amount to a possible ten point rating in the overall score. 149 In the Appeal Panel decision, the Panel accepted Mr Veitch’s assessment that there was, for the purposes of the BIPERS, an appropriate rating for supervision of staff, even though this was contested by the appellants before the Appeal Panel. It said the 2007 JDF was in error, having been based on an earlier JDF in 2003. Despite this, the Appeal Panel concluded it was appropriate for Mr Veitch to give this a rating. 150 In the “desktop” review undertaken by Mr Veitch in 2011, reference was made to Mr Furmedge’s observation that this issue was contentious before the Appeal Panel as in those proceedings, the Authority contended that the inclusion of supervision in the appellants’ JDF was in error. It was said that it has since been removed to reflect the actual position. This led to a revision downwards of the BIPERS score from 317 to 307, to reflect the removal of supervision and the training of staff. However, despite all of this, the approved JDF effective 26 March 2007, in evidence and annexed to both the 2008 and 2011 Classification Review Reports, still refers to two positions of Prosecutor Assistants as being under the responsibility of the Prosecutor. The evidence also refers to the on–the-job training and mentoring role of the Prosecutor in relation to trainees. I therefore consider it appropriate to restore this factor to the overall BIPERS score. 151 The present 2007 JDF does not require a specific qualification for appointment as a Prosecutor. The evidence of Mr Newman was to the effect that he completed the Certificate III course and that by now, all have completed the Police Prosecutors’ course. An assessment is to be made of the current requirements of the position and whether any change in work value has occurred. In my view, the requirements of the position have not changed in this respect. Whilst no doubt, as the Authority acknowledged in its testimony, the completion of the relevant courses is an advantage, in terms of the professional development of a Prosecutor, a requirement for such is not a pre-requisite for appointment. Candidates for appointment may come from a range of backgrounds. 152 I accept that a candidate for appointment who has practical experience in the application of legislation, and developed advocacy skills, but who may not have formal qualifications, may be suitable for appointment. I am also not persuaded that appointment as a Police Special Constable, as opposed to the prior appointments as Railway Special Constables, has materially changed the position. 153 Apart from three further discrete issues raised by the appellants, they being the impact of the Corruption and Crime Commission Act; viewing CCTV footage; and the procedural requirements of the Criminal Procedure Act, the remainder of the appellants’ contentions largely centred on the comparative positions used by Mr Veitch in his analysis. 2122 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. Ground 2 – Comparative Positions (2.1 – 2.6) 154 A major plank in the appellant s case in this respect was the comparison with the position of Police Prosecutor at the WA Police. This also seemed to be a key part of the attack by the appellants in the Appeal Panel proceedings. Similarly, is the contention of the appellants that the comparisons by Mr Veitch, relied upon by the Appeal Panel, as to the DPI level 4 and the Department of Fisheries level 4 positions, were erroneous. This is also touched on in ground 7 in general terms, repeating the assertions made elsewhere in the grounds of appeal. 155 Police Prosecutor positions are presently classified as level 6. However, of significance for present purposes, is the fact that Police Prosecutors classification levels are based on the WA Police rank system. That is, on the evidence, those appointed to Police Prosecutor positions are generally drawn from the rank of Sergeant, an officer having progressed from a police cadet to that level. Progression to that level requires the officer to have undergone the necessary training and to have a level of experience to enable the officer to occupy a number of operational positions within the WA Police. A Police Prosecutor may be re-deployed to an operational role if necessary. A broad range of skills is required and on Sergeant Smith’s testimony, candidates for appointment as Police Prosecutors are unlikely to have had less than seven to 10 years of experience as a police officer. 156 Thus, the attainment of a “level 6” classification for a police officer, based on the rank structure, is very different to the attainment of a “level 6” classification for a public servant. This point was illustrated on the unchallenged testimony from Mr Veitch, to the effect that there could be a substantial difference in the remuneration between a sworn and unsworn officer within the WA Police, doing the same work. 157 It is to be accepted that at first blush, when looking at an Authority Prosecutor and Police Prosecutor appearing in court on a matter, substantial similarities in the work done may exist. That is, both prosecutor positions involve criminal advocacy work in the lower courts. This much was referred to in the evidence of Mr Scudds and Mr Pidco. This point was also made in the Authority’s submission. However attractive this superficial comparison may be, a closer analysis of the positions reveals substantial differences. Leaving aside the issue of rank structure, the Police Prosecutor JDF shows the position to have a much broader role than the Authority Prosecutor position. The Perth Prosecution Division of the WA Police “has a state-wide strategic management and co-ordination role for all prosecution officers and is able to provide a diverse working environment in the Perth Magistrate’s Court, Perth Children’s Court, metropolitan courts and major country court locations throughout the State”. (JDF April 2007 Annexure 3 to Mr Veitch’s 2011 Report). 158 In the discharge of their responsibilities, a Police Prosecutor must also be able to prosecute the full range of criminal offences throughout the State, requiring knowledge of all the relevant offences and defences. On the evidence, Police Prosecutors often have very little time to prepare for trial and may be called upon to prosecute a matter in court with less than one hour’s notice. Also, on Sergeant Smith’s evidence, Police Prosecutors are called upon to conduct “A class” trials, those of some complexity, regularly. These matters are generally assigned to more senior and experienced prosecutors. 159 A detailed examination of the current JDF for a Police Prosecutor also reveals other substantial differences in the position. In terms of overall accountabilities/duties, the prosecuting aspects of the role are broad. This includes preparing reports on appeals and amendment of statutes and research in relation to this. A Police Prosecutor liaises with other Divisions of the WA Police and provides advice and guidance on prosecution matters. There is a substantial leadership and management role involving the formal training and development of staff, formal supervision and appraisal of subordinate staff and other duties. 160 Having considered all of the evidence in relation to this aspect of the appellants’ case, I am not persuaded that the Appeal Panel was in error in the conclusions it reached. Nor am I persuaded to any extent, that Mr Veitch’s testimony in both his initial 2008 assessment and his subsequent review in 2011 should not be accepted, as to the higher work value of the Police Prosecutor position. 161 The further comparisons upon which reliance was placed by Mr Veitch, and in relation to which the appellants challenged Mr Veitch’s assessment, were the Senior Prosecutions Officer level 4 position at the DPI and the level 4 Supervising Fisheries Officer (Investigation) at the Department of Fisheries. As noted, Mr Veitch, from a consideration of the JDFs, found the DPI level 4 position a particularly good fit, with alignment on seven out of 10 duties for both positions. A review of the JDFs for both the Authority and DPI positions shows a very considerable degree of alignment. Indeed, on Mr Veitch’s testimony, he thought that the Authority position JDF was probably based on the DPI level 4 role, because there was such a close correlation between them. 162 The process adopted by Mr Veitch as a senior and experienced consultant engaging in this work, of undertaking a comparison of the JDFs for the comparative positions, and the Authority Prosecutor position, is of itself unexceptional. The comparison undertaken was revealing. The JDFs for both positions have much in common in terms of key responsibilities. Both positions provide an effective prosecutions service for their respective agencies. The identified duties in each of the JDFs are very closely aligned. In my view, this comparison was a legitimate and useful tool in the overall assessment of the work value of the Authority Prosecutor positions. I see no error by Mr Veitch in his approach, or in turn, by the Appeal Panel. 163 A key point made by the appellants as to the DPI level 4 position was that on the evidence of Mr Madden, summarised above, the scope of the work performed in the position is narrow and focussed on extraordinary driver’s licence applications. Therefore the argument developed that the Authority Prosecutor position, performing in practice a broader range of prosecution matters, is intrinsically of higher work value. However, with respect, there is a fundamental misconception with this argument. The fact that an officer, as an occupant of an office, may only, at any given point of time, perform some duties required of an office, does not indicate the work value of the office. The work value factors relevant to a position are the duties and responsibilities that may be required to be performed by the holder of the office. Plainly on Mr Madden’s evidence, he was only required to perform a limited range of the duties that may be required of the DPI Prosecutor position. However, he may have at any time, been required to perform the full range of duties, which are closely aligned to that for the Authority Prosecutor position. 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2123 164 For example, the first duty of the DPI Prosecutor position is to conduct prosecutions including contested hearings in the Magistrates Court and the State Administrative Tribunal under a range of different legislation. The fact that Mr Madden did not undertake this work at the time is irrelevant to the work value considerations that arise in relation to this issue. Similarly, is the requirement to conduct prosecutions in various courts and the State Administrative Tribunal on behalf of Main Roads WA, which duties were also not performed by Mr Madden. Mr Veitch’s conclusions in this regard, in his evidence, were entirely correct from a work value perspective in my view. 165 As to the Department of Fisheries level 4 position, the appellants made much of the fact, not controversial, that prosecution work was a relatively small component of the overall duties of the office. This was the evidence of Mr Schofield. This is also consistent with the JDF for the position, which indicates that prosecution related activity accounts for approximately 10% of the overall duties. The bulk of the responsibilities of this position relate to investigation work, which on the JDF represents approximately 70% of the duties of the position. From the JDF, the investigation duties of the position are relatively high level. The position is also responsible for the apprehension of offenders and has a substantial supervisory and management role. 166 In my view, even though the prosecution component of this position is relatively small, given the investigative functions, the position for comparative purposes as a level 4 office, was appropriate. As Mr Veitch observed in his evidence, it “added weight” to his assessment, given the position had a similar level of responsibility. There was no error in this approach by Mr Veitch, or in the Appeal Panel’s conclusions in relation to this issue. Ground 3 – Position Not Properly Initially Evaluated (3.1 – 3.3) 167 This ground asserts that the previous Appeal Panel in February 2003 did not properly consider whether the Authority Prosecutor position was properly classified as level 4, and that the 2010 Appeal Panel could not have concluded that it was. Whilst the 2003 Appeal Panel regrettably, did not publish reasons for rejecting the appeals, the fact remains that the 2010 Appeal Panel considered all of the relevant material in relation to this issue and concluded that there was no substance to the allegations. As dealt with above, the fact that the JDF for the Authority Prosecutor does not list each and every task the appellants say should be in it, does not mean that the responsibilities claimed are not comprehended by the position. The Appeal Panel in 2010 made no error in this regard. Nor has anything been established in these proceedings, to call that conclusion into question. Ground 4 – Assessment of Mr Scudds’ Evidence 168 This ground was not pressed by the appellants. In any event, in the absence of a transcript of the Appeal Panel proceedings the allegation cannot be evaluated. The Commission has had the benefit of Mr Scudds’ testimony in these proceedings, all of which has been taken into account. Ground 5 – Withdrawal of Charges and Autonomy of Prosecutors (5.1 – 5.3) 169 This ground, as set out in subgrounds 5.1 – 5.3 has been dealt with earlier in these reasons and is not necessary to consider further. Ground 6 – Conduct of Complex Trials and Decision to Institute/Amend Charges (6.1 – 6.2) 170 The question of “A” grade trials and the complexity of trial work has been broadly dealt with earlier in these reasons in relation to the comparison with the work of Police Prosecutors. Whilst the Appeal Panel in 2010 may not have specifically referred to “A, B, C or D” class trials, in my view, it satisfactorily dealt with the key points in relation to comparisons between the Authority Prosecutor and Police Prosecutor positions, and their relative work value. 171 In any event, even though it is more of a work volume issue, the evidence supports the conclusion that Police Prosecutors are required to conduct a higher volume of longer cases than are the appellants. Such work is more the norm for Police Prosecutors, where it is far less frequent for the appellants, based on their own oral and documentary evidence. 172 As already noted, the issue of autonomy to withdraw or amend charges, and liaison with the opposing counsel etc., has been considered earlier in these reasons. Ground 7 – Weight to be Attached to the Evidence of Mr Veitch 173 This ground seemed to be a broad “catch all” attack on the credibility of the evidence and reports of Mr Veitch in the Appeal Panel proceedings. Most of the issues, to the extent reference was made to grounds 1.6.1 to 1.6.13 inclusive, have been dealt with earlier in these reasons. However, as a general observation, to the extent that this ground and the grounds of appeal and submissions generally raise this issue, I reject it. On the contrary, I found Mr Veitch to be a very credible witness. He has extensive experience in classification matters in the public sector. Mr Veitch’s explanations for the conclusions he reached in his classification assessments for the appellants’ position were cogent. His testimony was not seriously challenged in cross- examination. Nor was it challenged by the calling of expert evidence in rebuttal by the appellants, as pointed out by the Authority in its submissions. Just because the appellants disagree with the conclusions reached, does not make them wrong. Ground 8 – Corruption and Crime Commission Act 174 By this ground, it was asserted that the Appeal Panel misunderstood the appellants’ claim in relation to the effect of the Corruption and Crime Commission Act. In my view this was not so and this remains the position in these proceedings. Nothing in the submissions or evidence in these proceedings about the Corruption and Crime Commission Act has any effect on the work value of the appellants’ position. Obligations on public officers to report unlawful or corrupt conduct has universal application and it does not place any special burden on the appellants. Ground 9 – CCTV and video footage 175 This ground alleges that the Appeal Panel was in error in failing to recognise that the Authority’s direction to view CCTV footage in all prosecutions places an extra burden on them to report potential adverse findings to the organisation. It is therefore contended that this increases the work value of the appellants’ position. 2124 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. 176 I accept on the evidence, that the capacity to view CCTV footage prior to a trial, may, but not in all cases, make the job of a Prosecutor easier. It will depend on the circumstances of the case whether this is so. I refer to the testimony of Mr Scudds in this respect. However, I fail to see how this task increases the work value of the position. Either way, thorough case preparation by an advocate, whether as acting for the prosecution or for the defence, means a review of all of the available evidence. This naturally would include any CCTV or other video footage, if available. In my opinion, the Appeal Panel’s conclusion in relation to this issue was entirely correct. Tasks of this kind are comprehended within the overall requirements of the position of Authority Prosecutor. Ground 10 – BIPERS Assessment (Factors 1-9) 177 A BIPERS assessment is a standard tool used in public sector classification determination. It contains ten factors against which a ranking is given for a position. The factors include education; experience; scope of activities; interpersonal skills; kinds of problems; instructions received; influence on results; size of organisation; number of people supervised; and subordination level. Each factor is given a rating score. The overall score is then compared to a range of scores that are assigned to various classification levels. By their nature, there is a degree of subjectivity in the process, as demonstrated by the somewhat different scores awarded by Mr Dawkins in 2001 and in turn Mr Veitch, in 2008. Importantly, a BIPERS assessment is only one tool in the overall process of classification assessment. 178 Mr Veitch testified that for the purposes of an overall ranking, the accepted approach is to only move a classification by one level if it is well into the next range. On his evidence at least half way. Mr Veitch confirmed that the BIPERS assessment is only one part of the classification assessment process that he adopts. 179 The Appeal Panel noted the divergence between the BIPERS assessment undertaken by Mr Dawkins in 2001 and by Mr Veitch in 2008. The appellants have in these proceedings challenged most of the ratings, as they did before the Appeal Panel. The Appeal Panel noted that Mr Dawkins rated the Authority Prosecutor overall score as 286, which is five points into the level 4 classification band. Mr Veitch rated the position as 317, which is 2 points into the level 5 band. Later, in his 2011 desktop review, Mr Veitch gave the position an overall score of 307 to reflect the reduction by 10 points for the removal of the supervision factor. 180 As to Factor 1 – Education, Mr Dawkins rated the position as Degree 3, reflecting a year 12 or a trade/vocational qualification at certificate level. Mr Veitch rated it as a Degree 2, reflecting a year 10 certificate of education or equivalent. The appellants contended that Mr Dawkins’ assessment was correct and the position should be scored at Degree 3. This was based on the contention that in practice, all Prosecutors have done the Certificate III course and have also now completed the Police Prosecutors’ course. Reference was made to the appointment of Authority Prosecutors as Special Constables under the Police Act, in this regard. 181 The Appeal Panel concluded that as the JDF for the position does not specify a minimum educational requirement for a Prosecutor, the assessment by Mr Veitch was appropriate. This remains the case now. Whilst possession of or progress towards a post-secondary or tertiary qualification is seen as desirable, it is not specified as essential. What is specified as essential is demonstrated experience and understanding of prosecution procedures. 182 Mr Veitch in these proceedings stood by his assessment of this factor in his testimony. It is the case, as observed by the Appeal Panel in its decision, that it might be open to question why the JDF does not specify a minimum education requirement. However, the fact that it does not, does not lead me to consider Mr Veitch’s assessment to have been erroneous. 183 As to Factor 3 – Scope of Activities, both Mr Dawkins and Mr Veitch rated this at Degree 3. The appellants assert is should be rated at Degree 4. They refer to a number of activities of the position which they say lead to a Degree 4 assessment. Despite the written submissions of the appellants on this question, Mr Veitch was not cross-examined about his assessment on this factor and nor was there any contradictory evidence led. There is no basis upon which the Commission can conclude that Mr Veitch’s assessment on this factor was erroneous. 184 The next issue was Factor 4 – Interpersonal Skills. Mr Veitch rated this Degree 5 and the appellants contended that it should be rated higher at Degree 7. The earlier assessment done by Mr Dawkins also rated this matter at Degree 5, consistent with Mr Veitch’s analysis. The thrust of the appellants’ contentions was that because they communicated, through advocacy, with magistrates and opposing counsel, this constituted high level communications that affected the Authority at the highest level. Mr Veitch’s assessment of this factor was that the use of the concept “external” for communications purposes, is where for example, chief executives and very senior managers of agencies deal with persons outside of their department or agencies on matters with major implications for the organisation, for at least 25 per cent of their time. An example cited by Mr Veitch, was where a senior executive would negotiate on an issue across multiple agencies with significant long term implications for the organisation. Whilst Mr Veitch was cross-examined quite extensively about this matter, I am not persuaded that his evidence or conclusions were broken down or established to be erroneous. He gave a full explanation of the reasons for his assessment and in my view, the appellants have not established to the contrary. 185 In relation to Factor 5 – Kind of Problems, whilst Mr Veitch rated this at Degree 9, this was significantly higher than the rating given by Mr Dawkins who rated it at Degree 6. The appellants contended that the appropriate rating was a Degree 11. This was on the basis that it is consistent with the criterion of working on assignments of an analytical nature etc. A similar claim was made before the Appeal Panel where the appellants challenged Mr Veitch’s assessment of this factor at Degree 9. Degree 9 as referred to by the Appeal Panel, applies to “work of mostly a non-routine nature, requires the development and improvement of methods and, as a rule, results in reports or extensive syntheses.” The Appeal Panel agreed that the higher rating awarded by Mr Veitch on this factor was more appropriate than the lower rating awarded by Mr Dawkins, in recognition of the changes introduced by the Criminal Procedures Act 2004 and the Criminal Investigation Act 2006. The Appeal Panel also concluded that the higher level ratings, of Degree 10-12 would normally only be awarded to the most senior managers and chief executives, being at the maximum of the range. 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2125 186 On the basis of all of the evidence, I am not persuaded that Mr Veitch’s assessment, upheld by the Appeal Panel in 2010, has been established to be erroneous. 187 The next, Factor 6 – Instructions Received, was awarded a Degree 8 by Mr Veitch. Mr Dawkins in his 2001 review awarded this at Degree 7. The appellants contended that, consistent with the argument about autonomy to decide how to proceed with a prosecution, it should be awarded at least a Degree 9. This was also linked on the appellants’ submission, to the issue of their conducting prosecutions on behalf of the Commissioner of Police as Special Constables. When this factor was put to Mr Veitch in cross-examination, he explained that he assigned the Degree 8 rating to this factor as a mid-point range. 188 That is, the capacity to make independent judgements and autonomous decision making was not at the low level nor was it at the very high end. Mr Veitch reached this view because the appellants had some autonomy but in view of the 2008 Procedure in relation to withdrawing charges, ultimately the responsibility for decision making on this issue rests with senior management. Additionally, given the circumstance where an Authority Prosecutor may need to make a final decision themselves, albeit justifying it after the event was a relatively infrequent occurrence, he considered the mid-point rating to be appropriate. 189 In my opinion this assessment has not been shown to be incorrect. The overarching effect of the 2008 Procedure is a relevant consideration. Whilst the Prosecutors do exercise some autonomy, it is not complete. There was no error demonstrated in relation to this matter. 190 The next factor was Factor 7 – Influence on Results. Mr Veitch rated this at Degree 4 and the appellants considered that it should be rated at Degree 6. Mr Dawkins in his assessment rated it at Degree 4, consistent with Mr Veitch. The appellants contended that their function is at “the pinnacle of law-enforcement”, and a part of maintaining a safe rail system and protecting the revenue for the Authority. Mr Veitch in his testimony said that he assessed this factor by looking at upper and lower levels. Degrees 5 and 6 deal with primarily advisory and consultative functions which was not applicable. Degree 6 involves “considerable influence on output of the function, with the function being security”. Mr Veitch did not consider that Degrees 5 or 6 would be applicable. 191 However the rating below that of Degree 4, which involved four aspects of “responsible, coordination, control and development” as a discreet area, was appropriate. According to Mr Veitch, the position has authority to coordinate assignments which are at least partly routine. He considered that was the appropriate level for influence on results. Given the rating Mr Veitch accorded to this factor was consistent with Mr Dawkins, and given his explanation in his evidence, I am not persuaded that that rating was erroneous. 192 As to Factor 8 – Size of Organisational Unit, Mr Veitch assigned this factor at Degree 5. The appellants considered that this factor should be considered in the context of the fact that prosecutors represent WA Police when dealing with Commissioner of Police authorised offences. With the WA Police being a much larger organisation than the Authority, this warrants a higher rating on this factor. Mr Veitch said this factor was simply based on the number of employees of the organisation and is not variable. In my view it cannot be disturbed. 193 Finally, as to Factor 9 – Personnel Supervised/Controlled Mr Veitch, as already referred to earlier, assigned this factor at Degree 2 in his 2008 Report, but scaled it back to Degree 1 in his 2011 desktop review. This was because of what was said to be the removal of the “contentious reference to supervising or regularly straining staff.” (sic). As I have already indicated, in my view, the 2008 assessment should be restored at Degree 2. 194 Accordingly, overall, in my view, the BIPERS assessment score should be restored to the assessment made by Mr Veitch in 2008, that being a score of 317. This returns the BIPERS assessment to two points above the top of the level 4 point range, at the level of Mr Veitch’s 2008 Report. This does not, however, affect overall, the integrity of the conclusions reached by Mr Veitch in his 2008 Report, upheld by the Appeal Panel. 195 As to the appellants’ challenge to the procedure adopted by Mr Veitch in performing the BIPERS assessment, I am not satisfied on the evidence that there has been any material flaw in how the BIPERS assessment was conducted. The manual referred to is only a guide. It does not mandate any process, the non-observance of which would, without any more, invalidate the process. Mr Veitch followed established practice for conducting the assessment and the appellants have not established that they were dealt with unfairly in any way. Conclusion 196 Despite the minor adjustment to the BIPERS assessment just referred to, having considered all of the oral and documentary evidence, I am not persuaded that the appellants have established that their position should be reclassified above level 4. The evidence has not established that there has been any significant change to the position of Authority Prosecutor since the review was undertaken by Mr Dawkins in 2001. More particularly, for the purposes of this appeal, it has not been established in my view, on balance, that the assessment by Mr Veitch, and the consideration of the appellants’ case by the Appeal Panel, has been shown to be erroneous. Nor am I persuaded on all of the evidence, that it has been established by the appellants that the position of Authority Prosecutor was incorrectly classified at level 4 in the first instance. Whilst no doubt, as the Authority said in its written submissions, the appellants have an “earnest and commendable view of the importance of their job”, they have not been able to establish a case for reclassification, consistent with established principles. 197 Accordingly, I would dismiss the appeals. 2126 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. 2012 WAIRC 00771