Australian Municipal, Administrative, Clerical and Services Union v Hume City Council
[2013] FWC 8401
•28 OCTOBER 2013
[2013] FWC 8401 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Municipal, Administrative, Clerical and Services Union
v
Hume City Council
(C2013/4890)
COMMISSIONER WILSON | MELBOURNE, 28 OCTOBER 2013 |
Alleged dispute in relation to position description and classification of Building Services Officers.
INTRODUCTION
[1] This matter arises with an application by the Australian, Municipal, Administrative, Clerical and Services Union (ASU) for the Fair Work Commission to deal with a dispute arising under an enterprise agreement to which the Hume City Council (Council) is bound. The agreement is the Hume City Council Enterprise Agreement (No. 5) 2010 – 2013 (Hume City Council Agreement). 1
[2] The application made by the ASU indicates that the “Hume City Council and its Building Support Officer employees cannot reach an agreed Position Description despite examples being given to management of work performed” 2.
[3] The main issue in the dispute is whether the Position Description for the Council’s Building Support Officer employees accurately reflects what they do, which leads to a question of whether the employees should be classified as band four or band five employees.
AGREEMENT CONTEXT
[4] Clause 3.2 (Dispute Resolution Procedure) of the Hume City Council Agreement provides a broad disputes procedure which encourages resolution of disputes first at the local level, with provision being made for disputes eventually to be referred for conciliation or determination by the Fair Work Commission as follows:
“(e) If the processes established in sub-clause 3.2(b) do not resolve the dispute or grievance, either party may refer the matter to Fair Work Australia for conciliation in the first instance and determination if attempts at conciliation fail.
(f) The parties agree, subject to sub-clause 3.2(i), to comply with any determination made by the Fair Work Australia in accordance with subclause 3.2(e).”
[5] The ASU application seeks for the Fair Work Commission to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (Act). That section allows for disputes to be dealt if, read in conjunction with s.738, an enterprise agreement includes a term that provides a procedure for dealing with disputes that “requires or allows the FWC to deal with a dispute”. I find that clause 3.2 of theHume City Council Agreementis a term that “requires or allows the FWC to deal with a dispute” in the manner prescribed by s.739.
[6] Also relevant to consideration of this matter is the Hume City Council Agreement’s clause 4.5 which provides for an annual review of position descriptions in order to ensure their currency;
“4.5 POSITION DESCRIPTIONS
(a) Position Descriptions (PO) shall be reviewed at least annually in consultation with the employee concerned and any agreed changes shall be signed by the employee and the supervisor/Manager.
(b) Any dispute over PDs or classifications shall be addressed through the Disputes Procedure of this Agreement in accordance with sub subclause 3.2, providing that such dispute shall not unduly delay the implementation of changes to an employee’s PD.”
[7] Part B and C of the Hume City Council Agreement incorporate as part of the agreement various provisions of the Victorian Local Authorities Award 2001, and relevantly the award classification descriptors. The relevant descriptors in this matter are Bands four and five, as they apply to the category “Employees and Childcare Workers other than Physical/Community Services Employees”.
[8] The broadest part of the classification structure is to provide eight bands of classification with progressively escalating responsibility and work value. Each classification band provides descriptors around six job characteristics as follows;
● Accountability and extent of authority
● Judgement and decision making
● Specialist knowledge and skills
● Management skills
● Interpersonal skills
● Qualifications and experience
[9] Some of the descriptors for the job characteristics show meaningful, objective differences in the skill and work required of the different bands, whereas others do not meaningfully illustrate the differences in the work of the respective bands. For example, there are objective differences in the “Accountability and extent of authority” and “Judgement and decision making” job characteristics of the two bands, and almost no distinguishable difference between the “Qualifications and experience” descriptors of the two bands.
DISCUSSION
[10] The parties provided considerable documentary material to assist the determination of this matter including the currently applying Position Description, the ASU’s preferred Position Description and examples of Band four and Band five Position Descriptions applying elsewhere within the Hume City Council (where the parties agreed the relevant positions were properly classified). In attendance to provide assistance about the work as actually operated in the workplace were Mr Simon Goncalves, a Building Support Officer with the Council and Mr Peter Jolly, with the Hume City Council Building Services.
[11] The matter has been heard by me through a conference of the parties which enabled a thorough discussion of issues in the workplace, the work actually performed, and the extent of any differences between the parties.
[12] The dispute between the parties has been ongoing for some time with the relevant employees and the ASU asking for the disputed Position Description to be updated to better reflect the duties actually being performed. There have been multiple discussions between the Hume City Council and the ASU and the employees on the subject for some time. In April 2013 the parties reached agreement to seek the assistance of the Fair Work Commission in resolving the dispute.
[13] The relief sought by the ASU, as contained in its Form F10 Application is “employees are seeking reclassification of their roles”. In conference, the ASU submitted that the Fair Work Commission should assist the parties by endeavouring to settle the Position Descriptions.
[14] Discussions in the conference showed the department concerned had been through a restructure in about 2010, with different workloads being introduced at that time. In addition, from 2011, workers had been rotated within the team. It is submitted by the ASU and the employees that the judgement required in the jobs has become weightier as a result.
[15] The work as it is performed surrounds the activities of the Council in relation to asset protection. Building work being conducted in the Hume City Council’s region sometimes has the potential to damage the Council’s assets. There are laws that regulate the protection of assets and the issuing of permits which are administered by Council staff. People infringing the laws run the risk of fines or prosecution. The department’s employees work with ratepayers, tradespeople and the building industry about problems that might arise and in particular to ensure that all concerned know what is expected of them. The Building Support Officers work alongside compliance officers who are called upon to inspect sites and deal with the problems which may arise in the field.
[16] The work of the department is very busy with a large amount of development being undertaken within the Council area. The Building Support Officers are called upon to not only process large numbers of applications for permits, but are also called upon to respond to phone calls, emails and personal visits to a counter. The largest part of the staff’s work appears to be dealing with the permit application paperwork and associated communications, mainly in the form of email but also in the form of phone calls. Building Support Officers must also support the Hume City Council’s compliance and debt recovery activities when they are required. This appears to be an increasing responsibility which the officers take seriously and which they see as justifying a higher classification, in order for the work to be done properly.
[17] As it was described in the conference, both the debt recovery activities and the court compliance activities are outsourced from the Council. A debt that requires recovery might come about either because a fine has not been paid, or because a field officer has issued an instruction for remedial works at a particular property, which are sometimes carried out on behalf of the Council by a third party, the cost of which needs to be paid by a nominated debtor. In the event that payment is not received voluntarily, the debt is automatically referred out to an external debt collection agency by a Building Support Officer. The debt collection agency is then expected to recover the money.
[18] If it is not recovered voluntarily, the debt collection agency will make a recommendation to the Council for recovery of the debt through the Magistrates Court. In order to determine the recommendation, the Building Support Officer liaises with Mr Jolly and, if the matter is to proceed to court, a Building Support Officer prepares a basic litigation brief for the solicitors who will appear for the Council in court. In the way it was described in the conference and in the supporting material provided, the litigation brief is a collation of the documentary and photographic evidentiary material for passing to the solicitor without the need for preparation by the Building Support Officers of witness statements and the like. Its preparation focuses on the basic evidential issues of status and address for service of the offending entity; demonstration of the debt; and that the debt has not been paid.
[19] In consideration of the material discussed in the conference, there are three critical differences arising between the parties’ interpretation of the duties of a Building Support Officer, namely;
- the extent to which they are called upon to provide an interpretation to clients of the asset protection laws in order for the client to understand their rights and obligations;
- the extent to which they are required to exercise judgement in the course of responding to or advising clients; and
- the extent to which they are required to make their own decision, and take responsibility for, a decision to authorise litigation at the end of the debt recovery process.
[20] The ASU argues that there is a significant need to provide interpretation to clients and that this requires knowledge of the underlying laws and how they operate and that without such knowledge it would not be possible to provide accurate advice to clients. On the other hand the Hume City Council argues that the enquiries are general in nature and that the responses to the enquiries are routine, and based on scripts or short template documents. The Council also argues that the judgement required to be exercised by a particular Building Support Officer is limited.
[21] In relation to the authorisation of litigation, the employees argue that this is a new function in the past few years, which was not part of the original position description and that this adds significant responsibility to their work. In contrast the Council, and in particular Mr Jolly, argue the decision to authorise litigation is taken by Mr Jolly (and in any event it is essentially a routine decision at the end of a process to recover money, where the step towards litigation will always be taken if the money owing has not been paid up to that point).
[22] The Council also argued that preparation of the litigation brief is a routine step based upon collating the available materials and submitting those to the external agency and solicitor. When the matter proceeds to the Magistrates Court the Building Support Officer is not required to give evidence.
[23] As referred to above, the classification bands applicable to the Hume City Council use six job characteristics to determine the classification of a job. The relevant bands use different criteria for assessment of employees engaged in “Physical/Community Service” jobs and those engaged as “Employees and Child Care Workers other than Physical/Community”. The latter criteria are applicable to the Council’s Building Support Officers.
[24] The individual difference between the classification bands criteria is frequently subtle, and it is the aggregation of the differences which is ultimately determinative. The higher of the bands, Band five, has the following points of difference over Band four;
Accountability and extent of authority |
● “may supervise resources” and/or “provide advice to or regulate clients” and/or “give support to more senior employees” ● The freedom to act; |
Judgement and decision making | ● “the work may involve solving problems” ● “problems are occasionally of a complex or technical nature with solutions not related to previously encountered situations” ● “guidance and advice would usually be available within the time required to make a choice” |
Specialist knowledge and skills | ● Those “involved in interpreting regulations require an understanding of the underlying principles involved as distinct from the practices” ● “support employees also require an understanding of the role and function of the senior employees to whom they provide support” ● Employees “require an understanding of the function of the position within its organisational context, including relevant policies, regulations and precedents” |
Management skills | ● “require skills in managing time, setting priorities” ● If supervisory role “understanding of and ability to implement personnel practices” |
Interpersonal skills | ● Positions require “ability to gain co-operation and assistance from clients” ● Employees “expected to write reports in their field of expertise and/or to prepare external correspondence” |
Qualifications and experience | ● Skills and knowledge “might be acquired through completion of a degree or diploma course with little or no relevant work experience, or through lesser formal qualifications with relevant work skills, or through relevant experience” |
[25] The work of the Building Support Officers as presented is featured by four categories of duties;
- The application of basic knowledge of relevant legislation and policies to questions raised by ratepayers and builders and others;
- Assistance provided to field based compliance officers (such as in the preparation of the litigation briefs);
- Liaison with debt collectors about the progress of their work;
- Presentation of proposed litigation actions to Mr Jolly.
[26] A number of different Position Descriptions were provided to the conference for the purposes of illustrating the issues;
- The current Building Support Officer Position Description, classified as Band 4a, dated July 2010 3;
- Three current Building Support Officer Position Descriptions, Services Department, each classified as Band 4 4;
- Administration Officer, Statutory Planning Department, Band 4 5;
- Customer Service Officer, Customer Service Department, Band 4 6;
- Administration Officer, Learning Communities Department, Band 4 7;
- Customer Service Officer, Customer Service Department, Band 4 8;
- Administration Officer – Engineering Support, Infrastructure Planning Department, Band 4 9;
- Records Officer, Corporate Services Department, Band 4 10;
- Community Engagement Support Officer, Learning Community Department, Band 5 11;
- Debt collection Officer, finance department; 12
- Customer Service Systems Support Officer, Customer Service Department, Band 5 13;
- Contracts Administration Officer, Engineering Support Services Departments, Band 5 14;
- Ward Meeting Officer, Corporate Services Department, Band 5 15.
[27] In addition to the above material, the ASU submitted a draft Building Support Officer Position Description prepared as if the position was classified as Band five.
[28] There is internal consistency, to some extent, between the drafting of the Position Descriptions classed as Band four and those classed as Band five. That is, the position descriptions for positions at the same level have similar emphases.
[29] The Band four Position Descriptions provide an emphasis on complete tasks undertaken by the officers concerned, or tasks which are about the gathering or recording of information rather than analysing the information on making decisions over it. For example;
- “Scanning and storage of construction plans”; “assist with processing Dial before You Dig applications”; and “assist with site investigations to collect information and condition of drainage infrastructure” “assisting Traffic and Civil Design Staff with engineering surveys for design and setting out works” 16;
- “Provide accurate, timely and courteous information and assistance to customer in all aspects of Council operations…”; “Accurately perform BackOffice clerical and administrative tasks as required”; “effectively and efficiently manage customer’s service requests, complaints, general enquiries and transactions through effective questioning, negotiation and conflict management” 17;
- “Provision of administrative support to the Coordinator Hume Learning, including arrangement of meetings, scheduling appointments, filing and implementation of systems and processes”; “draft and prepare reports, slide presentations, letters, memos and other documents”; “draft and prepare agendas and associated papers for relevant committees and ensure minutes are distributed in a timely manner”. 18
[30] The Band five Position Descriptions indicate a greater amount of discretion or judgement on the part of the officer concerned, referring to activities such as “liaise”; “ensure”; “participate”; and “prepare”. For example;
- “Ensure compliance of contract tendering and quotation processed in accordance with Council policy”; “ensure quality control is maintained at all times”; “liaise with internal business units and service providers regarding tenders/quotations” “prepared tender/quotation documentation as required”; “assist with the preparation of tenders/quotation matrixes for the contracts evaluation panels”; “participate in evaluation panels when required” 19;
- “Undertake an analysis of rate and other debtors and recommend referrals to debt collection agencies”; “contribute to an actively participating in the implementation of revenue administration best practice and business process redesign” 20;
- “Recording and coordinating responses where required for all information service requests received”; “contribute into an annual process/procedural review of wards/Council meetings”; “collation and distribution of meeting agendas and minutes as required”; “development, review and assistance of procedures for tasks undertaken” 21
[31] After consideration of all the material before me, and especially the four sample position descriptions for Building Support Officers provided to the Fair Work Commission, the documents do not appear to be significantly at odds with the work actually undertaken by the employees concerned. That is, the information provided in these proceedings verified that the work actually undertaken by the employees is broadly consistent with the presently drafted position descriptions.
[32] While of course, in any given circumstance there may well be slight departures from duties described in the description and those actually undertaken by an employee, whether occasionally or even regularly, this does not necessarily give rise to the proposition that the position description is incorrect either in its description or its classification. That is, by necessity, a position description is a summary of the duties undertaken. Plainly there may well be duties in addition to those set out in the summary, either because they have been overlooked in preparing the summary or because they have come along after the position description was prepared.
[33] The key question in considering either whether a position description is satisfactorily described, or whether the actual duties give rise to a claim that a different classification should be assigned, is the extent to which the differences which might arise are real and substantial, thus inexorably leading to a requirement to re-describe or reclassify the work undertaken.
[34] In taking this question forward, it is appropriate to consider each of the job characteristics set out for the respective bands as well as to consider how the work as described in the conference compares with the description of the work contained within the four sample Building Support Officer Position Descriptions provided to the Fair Work Commission.
Accountability and extent of authority
[35] The four sample Building Support Officer Position Descriptions referred to the performance of administrative and clerical tasks. In doing so they refer to activities such as “provide administrative support and advice to internal and external customers”; “compile, process and deliver reports, registers and documents to customers, residents and ratepayers”; “processing of applications made”; “provision of administrative and secretarial support”; “mail, facsimiles and record-keeping”; and “responding to telephone enquiries”.
[36] Both from the sample position descriptions and the material discussed in conference, the jobs do not strongly feature the higher descriptors of the job characteristics “Accountability and extent of authority”.
[37] Although the officers give advice to clients, it seems to be at the basic information level only; of the nature “this is how you apply” or “this is how you pay the fine and these are the implications if you don’t”, rather than “in the context of your problem, your options are ...”. The positions do not regulate clients in the sense of applying sanctions in order to achieve compliance; instead the regulation of clients is undertaken by the field based compliance staff who assess sites for their compliance; discuss their findings with clients in the field and if required impose sanctions. There is also a relatively low level of freedom to act; such freedom as is exercised is governed by the limited range of information that can be given to clients.
Judgement and decision making
[38] The sample Building Support Officers Position Descriptions disclose that the officers undertake a range of administrative processes, some of which are referred to above. It was verified in the conference that these processes are within the context of a fairly limited range of authority and discretion. While there is a set of applicable policies and procedures, it did not appear that the range of judgement to be exercised was extensive.
[39] While it is said by the ASU on behalf of the employees concerned that there is greater judgement in their roles after the changes which occurred to the positions in 2010 and 2011, this did not come out strongly either in the conference, or the material provided to inform the conference. It is possible that the reference to weightier judgement on the part of the officers concerned is a reference to the greater amount of knowledge which is required of an officer in a multitasking environment and one which is featured with narrower tasks and functions.
[40] The Building Support Officers’ “Judgement and decision making” functions therefore appear to be within well-defined objectives that do not require significant problem solving, or the solving of problems that are not related to previously encountered situations. The issues that appear to arise are mainly to do with the provision of information in response to questions; with the information being provided from a limited source of standard material.
[41] The Band five descriptors for this job characteristic refer either to solving problems or dealing with problems of a complex or technical nature. It is not apparent from the material presented that these features were present on a particularly regular basis.
Specialist knowledge and skills
[42] The information provided to the conference indicates that Building Support Officers need to have knowledge of the underlying regulatory base for asset protection regulation in order to successfully provide information to ratepayers, builders and tradespeople. For example the sample position descriptions refer to the position objective being “... to ensure that the duties and functions and responsibilities of the Council and the Municipal Building Surveyor under the relevant building control legislation and local laws are delivered and fulfilled in an accurate, efficient, effective, professional and informed manner…”.
[43] In considering the “Specialist knowledge and skills” job characteristic, the information provided discloses that the officers are required to interpret regulations and to do so with an understanding of the underlying principles, which is a feature of the skills of a Band five employee. It was not clear on the basis of the information provided to the conference the extent to which this feature of the work of building support officers went beyond “an understanding of function of the position within its organisational context, including relevant policies regulations and precedents…”, which is the Band four descriptor for this job characteristic.
[44] It is possible therefore that the Building Support Officers Position Description requires updating to reflect the boundaries of the interpretation which officers are required to undertake in this regard. All things considered, it is unlikely that this feature of the Building Support Officers’ work alone, and in isolation from evidence of higher work value on the other job characteristics, is sufficient to press for reclassification of the jobs.
Management skills
[45] Overall, there was insufficient information before the conference to discern much about the duties undertaken by the employees concerned in relation to the management skills job characteristic. The sample position descriptions indicate that employees are to “ensure the personal work plans, objectives and priorities are prepared and maintained to ensure personal workloads, timelines and rosters are managed and achieved”. The information available to the conference indicates that the team is led by a team leader and that individuals within the team self manage their time and other activities to some extent, as would be expected for an officer of this type in this sort of work environment.
[46] As a result, the information before me in relation to the “Management skills” features of the work does not strongly show which band applies to the Building Support Officers. This is because the Band five descriptors distinguish the work of that band mainly through reference to priority setting and supervision, which were not referred to in the material provided.
Interpersonal skills
[47] The conference discussed the work of the building support officers in supporting other council staff, ratepayers, builders and tradespeople in their compliance with the asset protection regulations. This information demonstrates the employees concerned need to have good skills in interacting with internal and external clients, which is reflected within the sample position descriptions. For example the sample position descriptions include “ability to empathise with and respond to the needs and feelings of colleagues and customers in a constructive and positive manner” and “ability to identify customer needs and expectations, decide the appropriate action and respond accordingly”; and “ability to gain cooperation of and communicate both verbally and in written form with a broad range of people from diverse backgrounds and cultures”.
[48] The Band five “Interpersonal skills” descriptor distinguishes the level through reference to an expectation that employees at that level will “write reports in their field of expertise and/or to prepare external correspondence”. The information in this matter discloses the Building Support Officers generate correspondence and reports that are routine and largely generated through short correspondence templates. As a result, it would appear this aspect of the classification criteria is more closely aligned to the Band four level than to Band five.
Qualifications and experience
[49] In relation to the “Qualifications and experience” aspect of the classification criteria, there is insufficient information before me that would indicate the overall qualifications and experience of the incumbents particularly fall into the descriptors of either band. The sample position descriptions include “demonstrated knowledge and experience in the administrative processes and procedures of a local government building control office or progress towards completion of a recognised qualification in a relevant field or substantial relevant experience” and “experience in providing high quality technical and administrative support and customer service in a building department environment”.
CONCLUSION
[50] As a result of this analysis and a consideration of the alternate job descriptors before me, it is apparent that the work of the Hume City Council Building Support Officers as presented to the conference does not depart significantly from, and appears to be broadly consistent with, the currently applying position descriptions.
[51] Further, consideration of the work undertaken by the building support officers in conjunction with the other sample position description submitted, together with the six job characteristics relevant to classification of work discloses that the position descriptions being used by the Hume City Council are not inconsistent with the approach used by the Council for description of the work of other positions in accordance with the classification criteria of the Hume City Council Enterprise Agreement.
COMMISSIONER
1 Agreement ID AE881476
2 Form F10, para 4
3 ASU submission, Attachment A10
4 Hume City Council submissions, position descriptions dated March 2012, January 2009 and May 2011
5 May 2013, submitted by Hume City Council
6 June 2013, submitted by Hume City Council
7 June 2013, submitted by Hume City Council
8 June 2013, submitted jointly by the parties, identified as "not the subject of dispute between the parties"
9 August 2010, submitted jointly
10 March 2013, submitted jointly
11 June 2013, submitted by Hume City Council
12 July 2012, submitted jointly
13 March 2013, submitted by Hume City Council
14 March 2013, submitted jointly
15 July 2012, submitted jointly
16 Administration Officer – Engineering Support, Infrastructure Planning Department
17 Customer Service Officer, Customer Service Department
18 Administration Officer, Learning Communities Department
19 Contracts Administration Officer, Engineering Support Services Department
20 Debt Collection Officer, Finance Department
21 Ward Meeting Officer, Corporate Services Department
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