Mason v Paroo Shire Council (No. 2)
[2023] QIRC 273
•20 September 2023 4 August 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Mason v Paroo Shire Council (No. 2) [2023] QIRC 273 |
PARTIES: | Mason, Barbara v Paroo Shire Council |
CASE NO: | B/2021/45 |
PROCEEDING: | Application – Recovery of unpaid wages |
DELIVERED ON: HEARING DATE: | 20 September 2023 4 August 2022 |
MEMBER: HEARD AT: | Hartigan DP Brisbane |
ORDER: | As to the question for arbitration: From 5 June 2018 was Ms Barbara Mason employed as a Senior Officer by the Paroo Shire Council pursuant to cl 4.2 Exemption of senior officers, as provided for in Division 2 – Section 1 (administrative, clerical, technical, professional, community service, supervisory and managerial services) of the Queensland Local Government Industry Award (Stream A) Award – State 2017? The answer is: No. |
| CATCHWORDS: | INDUSTRIAL LAW – RECOVERY OF UNPAID WAGES – Applicant seeking to recover unpaid wages – where the Applicant was employed as a Tourism Team Leader – question for arbitration agreed between the parties – whether Applicant was as a Senior Officer in accordance with the Queensland Local Government Industry Award (Stream A) – State 2017 – consideration of relevant factors – determination of liability – where the Applicant did not act as a Department Head – Applicant not a Senior Officer |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 475 Local Government Act 2009 (Qld) s 196, s 201 Local Government Electoral (Implementing Stage 2 of Belcarra) and other Legislation Amendment Act 2019 (Qld) s 116 Paroo Shire Council Non-Operational Staff Certified Agreement 2018 Queensland Local Government Industry Award (Stream A) 2017 cl 3, cl 4.2 |
| APPEARANCES | Ms M. Robertson from the Queensland Services, Industrial Union of Employees, for the Applicant Mr M. Heffernan from Supportah Australia, for the Respondent |
Reasons for Decision
Introduction
Ms Barbara Mason filed an application ('the application') in the Queensland Industrial Relations Commission ('the Commission') to recover unpaid wages pursuant to s 475 of the Industrial Relations Act 2016 (Qld) ('the IR Act').
Ms Mason seeks an order that her former employer, Paroo Shire Council ('the Council'), pay an amount of unpaid wages that Ms Mason contends she was entitled to be paid during her time as a Tourism Team Leader.
The question for arbitration agreed between the parties is as follows:
From 5 June 2018 was Ms Barbara Mason employed as a Senior Officer by the Paroo Shire Council pursuant to cl 4.2 Exemption of senior officers, as provided for in Division 2 – Section 1 (administrative, clerical, technical, professional, community service, supervisory and managerial services) of the Queensland Local Government Industry Award (Stream A) Award – State 2017?
Ms Mason contends that the provisions of the Queensland Local Government Industry Award (Stream A) – State 2017 ('the Award') and the Paroo Shire Council Non-Operational Staff Certified Agreement 2018 ('the Agreement') applied to her employment at the Council. Relevantly, Ms Mason contends that she was not employed as a Senior Officer. Senior Officers are exempt from the provisions of the Award.
The Respondent disputes Ms Mason's contentions and asserts that her employment was exempt from coverage of the Award on the basis that Ms Mason was a Senior Officer.
It follows, that the issue for me to determine is whether Ms Mason was employed by the Council as a 'Senior Officer' pursuant to cl 4.2 of the Award.
Senior Officer exemption under the Award
The coverage provisions of Division 2 – Section 1 of the Award provides for the exemption of Senior Officers. Relevantly, cl 4.2(a) provides for the exemption of Senior Officers as follows:
4.2 Exemption of senior officers
a)This Award shall not apply to any employer in respect of a senior officer where the employer and the senior officer concerned enter into a written contract of employment which states that this Award is not to apply to the terms and conditions of employment of the senior officer.
…
Clause 4.2(c) provides that for the purposes of cl 4.2 the term 'Senior Officer' covers the following positions:
4.2 Exemption of senior officers
…c)For the purposes of this clause, the term senior officer covers the following positions:
chief executive officer – a chief executive officer is a person appointed to the position as defined under the Local Government Act 2009 (Qld).
senior executive employee – is an employee of the local government entity concerned.
(i)who reports directly to the chief executive officer; and
(ii)whose position ordinarily would be considered to be a senior position in the local government's corporate structure.
department head – is an officer appointed as such by the local government entity concerned who:
(i)is the principle decision maker or manager of a department or operationally distinct unit or part of the local government comprising a major function or program; or
(ii)holds a managerial, leadership or regulatory compliance position responsible for an operationally distinct unit or part of the local government, who may act independently subject to the local government's policy of the overriding administrative review of the chief executive officer and is held finally accountable for the performance of the unit or part of the local government.
…
In order for cl 4.2(a) to apply, cl 4.2(b) provides that the following conditions must be met:
4.2 Exemption of senior officers
…b)Clause 4.2 will only apply where the following conditions are met:
(i)Prior to the senior officer entering into the contract the employer has:
(A)brought the provisions of Division 1 and Section 2 of Division 2 of this Award to the attention of the senior officer; and
(B)if the effect of an exemption under this clause also means that the senior officer will no longer be covered by a certified agreement, that facts must be advised in writing to the officer;
(ii)a copy of the proposed contract is given to the senior officer or the person to be appointed as a senior officer seven clear days prior to the contract being entered into by the senior officer or the appointee;
(iii)the contract is voluntarily entered into by the senior officer of the appointee; and
(iv)at the time it is agreed and/or renewed the contract's terms and conditions do not result, on balance, in a reduction in the overall terms and conditions of the senior officer under this Award or relevant agreement certified under the Act.
Schedule 1 to Division 2 – Section 1 of the Award provides a description of classification levels. It also specifies that the following roles are classified as a Senior Officer:
(a) Directors of Engineering services;
(b) Deputy Chief Executive Officer;
(c) Deputy Director of Engineering services;
(d) Qualified Accountant; or
(e) Department Head.
Relevant to the contentions of the parties, 'Department Head' is defined as follows:
Department head
A Department head is an employee appointed as such by a Council who is the principal decision maker and manager of a department comprising a major function or program which occupies a significant proportion of Council resources and/or policy attention. A Department head may act independently, subject only to Council policy and the overriding administrative review of the Chief executive officer, and is held finally accountable for the performance of the functions and/or programs under their control/direction.
Relevant history and background of claim
Ms Mason commenced her employment with the Council on 3 October 2017 and was engaged in various positions throughout the course of her employment which ended on 9 July 2021.
Ms Mason held the positions of Casual Tourism Officer, Tourism Team Coordinator and Tourism Team Leader.
The position of Tourism Team Coordinator was classified as a level 3 role under the Award. Whilst Ms Mason was employed in the Tourism Team Coordinator role, a new position, Tourism Team Leader was created in 2018.
Ms Mason applied for the position of Tourism Team Leader, and after a selection process, was offered the role.
Upon commencing in the position of Team Leader, Ms Mason signed a written contract ('the contract').[1]
[1] Application filed 20 May 2021 – Attachment 'BM2'.
The contract sought to exclude the application of the Award to the employment by the inclusion of the following clause:
3. RELATIONSHIP TO INDUSTRIAL INSTRUMENTS
3.1 The Employee's employment is regulated by the Industrial Relations Act 2016 (the Act) and this contract and is excluded from the coverage of the Paroo Shire Council – Inside Staff Certified Agreement 2009 (Agreement) and/or the Queensland Local Government Industry Award – Stream A Award (Award), as varied from time to time.
3.2 The Employee acknowledges that prior to entering into this contract, Council has:
(a)brought the provisions of the Award to the attention of the Employee; and
(b)if the effect of an extension under the Award also means the Employee will no longer be covered by the Agreement, advised the Employee.
3.3 A copy of the proposed contract was given to the Employee seven calendar days prior to the contract being entered into by the Employee;
3.4 This contract is voluntarily entered into by the Employee; and
3.5 the contract's terms and conditions do not result, on balance, in a reduction in the overall terms and conditions of the Employee under the Award of the Agreement or the Act.
It appears that cl 3 of the contract has been drafted in such a way so as to address the matters in cl 4.2(b) of the Award.
It follows that the Respondent contends that cl 3 of the contract operates to exclude the operation of the Award and consequently, Ms Mason was not a 'Senior Officer' within the meaning of that term in the Award.
Ms Mason contends that she was not a 'Senior Officer' pursuant to the Award. Ms Mason also claims that she was not adequately compensated under her contract of employment and seeks an order for payment of unpaid wages of $37,665.28 pursuant to s 475(1a) of the IR Act. The Applicant's claim is particularised as follows:
Claim
Monetary value $
RDOs
$23,493.23
Overtime
$4,551.98
Locality allowance
$8,556.36
Annual Leave Loading
$103.17
Superannuation contributions
$60.30
Motor Vehicle use
$900.00
Total
$37,665.28
However, the parties have agreed that the issue to be determined in this arbitration relates only to whether Ms Mason was a 'Senior Officer' under the Award. The issue of whether there is an underpayment will only be considered following the release of this decision.[2]
[2] T1-117, ll 3-22.
Relevant legislative provisions
Section 475 of the IR Act outlines the power of the Commission to recover unpaid wages and superannuation as follows:
475 Power to recover unpaid wages and superannuation contribution etc
(1)On application by a person under section 476, the commission may order payment of the following for the period of 6 years before the date of the application –
(a)an employee's unpaid wages;
(b)an apprentice's unpaid tool allowance under section 137
(c)renumeration lost by an apprentice or trainees because the employer has contravened section 371(2);
(d)contribution to the approved superannuation fund eligible for an employee that are unpaid.
At the time Ms Mason was appointed to the position of Team Leader, s 196 of the Local Government Act 2009 (Qld) ('the LG Act') (as in force up until 2019) provided that:[3]
[3] See Local Government Electoral (Implementing Stage 2 of Belcarra) and other Legislation Amendment Act 2019, s 116.
196 Appointing other local government employees
(1)A local government must, by resolution, adopt an organisational structure that is appropriate to the performance of the local government’s responsibilities.
(2)The local government may employ local government employees for the performance of the local government’s responsibilities.
(3)The chief executive officer appoints local government employees.
(4)A panel constituted by the following persons appoints a senior executive employee—
(a)the mayor;
(b)the chief executive officer;
(c)either –
(i)if the senior executive employee is to report to only 1 committee of the local governments — the chair person of the committee; or
(ii)otherwise — the deputy mayor.
(5)The deputy mayor may delegate the deputy mayor’s functions under subsection (4) to another councillor of the local government.
(6)A senior executive employee, of a local government, is an employee of the local government –
(a)who reports directly to the chief executive officer; and
(b)whose position ordinarily would be considered to be a senior position in the local government's corporate structure.
(7)In this section –
function includes power.
…
Section 201 of the LG Act provides that the annual report must include the following information:
201 Annual reports must detail particular information about local government employees and councillor advisors
(1)The annual report of a local government must state—
(a)the total of all remuneration packages that are payable for the year to the senior management of the local government; and
(b)the number of employees in senior management who are being paid each band of remuneration; and
(c)if the local government has resolved to allow a councillor to appoint councillor advisors—for each councillor—
(i)the number of councillor advisors appointed by the councillor for the year; and
(ii)the total remuneration payable to all councillor advisors appointed by the councillor for the year.
(2)The senior management, of a local government, consists of the chief executive officer and all senior executive employees of the local government.
(3)Each band of remuneration is an increment of $100,000.
(4)To remove any doubt, it is declared that nothing in this section requires the exact salary of any employee in senior management to be separately stated in the annual report.
Witnesses
During the course of the hearing, Ms Mason called the following witnesses:
· Ms Barbara Mason;
· Mr Sean Rice, former Acting Chief of Operations at Paroo Shire Council from October 2019 until February 2020; and
· Mr Anthony Trace, former Chief Corporate Officer at Paroo Shire Council from January 2018 to December 2018.
The witnesses for the Council were:
· Mr Anthony James Koch, Director of Community Support and Engagement at Paroo Shire Council; and
· Ms Cassandra White, Chief Executive Officer at Paroo Shire Council.
Each of the witnesses executed affidavits which were tendered into evidence and comprised the evidence in chief of the witnesses. Each of the witnesses were called for cross-examination.
The Council accepts, that for Ms Mason to be excluded from the Award, a number of procedural steps are prescribed by the Award that act as a conditions precedent or a threshold that must be met by the parties. Although the onus rests with Ms Mason to establish that:
(a)she was not a 'Senior Officer'; or
(b)prior to signing the employment contract on 5 June 2018 that:
(i) the provisions of Div.1 and Div. 2 were not brought to her attention;
(ii) she was not provided a copy of the contract at least seven days prior to her entering the contract; or
(iii) to demonstrate that the contract was not entered voluntarily; or
(iv) there was a reduction in the overall terms and conditions of her employment.
Ms Mason submits that she was not employed as a 'Senior Officer' and the provisions of the Award and the Agreement consequently apply to her employment with the Council for the following reasons:
(a)the position held by Ms Mason does not fall into any of the following categories, as set out in Div. 2 of the Award, where a senior officer is either a:
(i)director of engineering services;
(ii)deputy chief executive officer;
(iii)deputy director of engineering services;
(iv)qualified accountant; or
(v)department head
('ground one')
(b)the interview panel did not satisfy the requirements of s 196(4) or (6) of the LG Act;
('ground two').
(c)As required by s 201 of the LG Act, Ms Mason submits that as Tourism Team Leader, she was not represented as senior management in any of the Council Annual Reports; and
('ground three')
(d)Ms Mason also contends that she did not voluntarily enter into the contract for Team Leader, pursuant to cl 4.2(b) of the Award.
('ground four')
Ground four
It is convenient to consider ground four prior to addressing grounds one, two and three.
The Council submits that Ms Mason was exempted from coverage of the Award on the basis of the terms of the contract of employment read together with cl 4.2(c) of the Award.
In this regard, the Council submits that Ms Mason was afforded a reasonable period to consider and seek clarity on any terms stipulated in the contract. In support of this, the Council provide in their submissions that the procedural steps outlined in cl 4.2(c) of the Award have been satisfied, as follows:
i.as per clause 3 of the Promotion Contract which Ms Mason by her own admission signed and therefore acknowledged,
ii.The Applicant was provided a copy of the contract at least 7 days prior to her entering into the contract as reflected in clause 3.3 of the 2018 Contract.
iii.The Applicant by her own admissions and by reflection of clause 3.4 of the contract, voluntarily entered into the agreement; and
iv.there was no reduction in the overall terms and conditions as the Applicant's base salary prior to accepting the role of team leader, was $55,737 with the 2018 contract providing for a base salary increase of $19,221 for a total of $74,958.
…
The Council submits that Ms Mason was fully informed of her contractual obligations and relies on cl 3 of the employment contract[4] for the position of Team Leader in this regard.
[4] Exhibit 6 – Employment Contract (5 June 2018) ('BM2').
Clause 3 of the contract provides that:
3. RELATIONSHIP TO INDUSTRIAL INSTRUMENTS
3.1 The Employee's employment is regulated by the Industrial Relations Act 2016 (the Act) and this contract is excluded from the coverage of the Paroo Shire Council – Inside Staff Certified Agreement 2009 (Agreement) and/or the Queensland Local Government Industry Award – Stream A (Award), as varied from time to time.
3.2 The Employee acknowledges that prior to entering this contract, Council has:
a)brought the provisions of the Award to the attention of the Employee; and
b)if the effect of an exemption under the Award also means the Employee will no longer be covered by the Agreement, advised the Employee.
3.3 A copy of the proposed contract was given to the Employee seven clear days prior to the contract being entered into by the Employee; and
3.4 This contract is voluntarily entered into by the Employee; and
3.5 The contract's terms and conditions do not result, on balance, in a reduction in the overall terms and conditions of the Employee under the Award or the Agreement or the Act.
It is clear that the purpose of cl 4.2 of the Award is to permit Senior Officers to enter into a written contract of employment which states that the Award is not to apply to the terms and conditions of the employment.
On the material, including the terms of the written contract of employment which was signed by Ms Mason, I am satisfied that the procedural steps to exclude the operation of the Award outlined in cl 4.2(b)(i)-(iii) are established.
I accept that Ms Mason contends with respect to cl 4.2(b)(iv) she relied on the Council's representation that the terms and conditions of the employment contract do not result in an overall reduction of the terms and conditions of her industrial entitlements. Given the evidence did not address this matter in detail (presumably because the parties argued that the quantum of an alleged unpaid wages be determined following the determination of liability, I am unable to form a final view with respect to this matter. Although by signing the agreement, which includes cl 3.5, which is a statement, "the contract's terms and conditions do not result, on balance, in a reduction in the overall terms and conditions of the Employee under the Award or the Agreement or the Act", it can be inferred that Ms Mason agreed to these matters.
However, the parties' compliance with these procedural steps will only become relevant upon the determination of whether Ms Mason is a 'Senior Officer' within the meaning of the Award. That is because cl 4.2 is prefaced on the basis that it operates to exclude 'Senior Officers' from the operation of the Award.
Grounds one, two and three
I will consider grounds one, two and three together as they are each relevant to my consideration as to whether Ms Mason is a 'Senior Officer'.
Ms Mason argues that the position held by her did not fit the description of Senior Officer within the meaning of that term as it appears in the Award, specifically with respect to cl 4.2.
In support of her position, Ms Mason relies on the Council corporate structure[5] which indicates that in her position as Tourism Team Leader she reported to a senior officer, namely the Chief Corporate Officer ('CCO'). Ms Mason would report to the CCO in the same way that other employees, such as the Librarian or the Team Leader Communities were required to report to the CCO. The corporate structure reveals that the role of Librarian, Manager, Community Services, Rural Lands and Compliance Officer and Manager, Tourism fall on the same line of the corporate structure and those roles also reported to the CCO.
[5] Exhibit 2 – Corporate Structure Paroo Shire Council.
Further, Ms Mason argues that the type of work she performed and how she performed it meant that the position did not fall within the definition of 'Senior Officer'. Ms Mason, in support of her position, relies on her evidence and the evidence of Mr Rice and Mr Trace together with documentary evidence including the Council's annual report and the organisational structure.
Ms Mason's evidence[6] was that she was not a member of the Executive Management Team. Ms Mason did not report directly to Council meetings although, on occasions, she would be requested to attend by the CCO. Ms Mason attached a copy of the Council's organisational structure to her affidavit.[7]
[6] Exhibit 4 – Affidavit of Ms B. Mason filed 9 June 2022.
[7] Ibid.
The corporate structure confirms that Ms Mason's position reported to the CCO. The CCO in turn reported to the Council's Chief Executive Officer ('CEO').
Ms Mason's evidence was that she reported to the CCO and that she had three staff, one permanent level 3 employee and two casual level 3 employees who reported to her.
Ms Mason also gave evidence that the Tourism budget was $500,000. Her evidence was that the budget was approved by the CCO who would present it to the CEO and finally Council for its approval.
Mr Rice who was employed as the Acting Chief of Operations from October 2019 to February 2020 and then as acting CEO from February 2020 until October 2020 also gave evidence.
Mr Rice stated that Ms Mason's position did not form part of the Executive Leadership Team ('ELT') whilst he was employed at the Council. He stated that the ELT was comprised of the CEO, the Chief Financial Officer, the Chief Operations Officer ('COO') and the CCO. Mr Rice's evidence confirmed that whilst he was acting CEO, Ms Mason did not report to him. His evidence was that Ms Mason reported to the CCO who then reported to the CEO.
Mr Trace also gave evidence. Mr Trace was employed by the Council from January 2018 to December 2018 as the CCO. He also acted periodically as the CEO. Relevantly, Mr Trace's evidence was that Ms Mason was not a member of the ELT and that Ms Mason and the other level 3 roles reported directly to him in the role of CCO. Mr Trace's evidence was that Ms Mason did not act independently, that she reported directly to Mr Trace and required his approval for the operation of the tourism function.
The Council contends that Ms Mason was a 'Department Head' within the meaning of that term in the Award. Accordingly, to determine if Ms Mason was a 'Senior Officer', regard must be had to the evidence with respect to whether Ms Mason was a 'Department Head'.
In support of its position, the Council relied on the evidence of Mr Koch and Ms White.
At the time of giving his evidence, Mr Koch was employed as the Director of Community Support and Engagement with the Council. That role was formerly known as the CCO and Mr Koch commenced in the CCO role in November 2019.
Mr Koch's evidence was that Ms Mason had responsibility for purchasing amounts within her delegation.
When Mr Koch first worked as the CCO, Ms Mason's financial delegated authority was $50,000 per transaction but was subsequently reduced to $20,000 per transaction. Mr Koch confirmed that Ms Mason autonomously purchased items within her financial delegation.
Mr Koch described having "courtesy conversations" wherein Ms Mason would go to him for mentoring and advice.
Mr Koch's evidence was also that Ms Mason was "fully" responsible for marketing and networking to grow the tourism spend within the shire. Ms Mason was the shire representative for the South West Regional Organisation of Councils. Further, Ms Mason was strategically and operational responsible for tourism.
Mr Koch's evidence was that Ms Mason was a member of the leadership team and that "we [being Mr Koch and Ms Mason] would meet most months but not every month".
The Council relied on the following matters, as relevantly summarised, in support of its position that Ms Mason was a Department Head and consequently a Senior Officer:
(a)Ms Mason was responsible for approximately 15% of council resources;
(b)Ms Mason was responsible for the recruitment of her own staff within the Tourism Department;
(c)Ms Mason attended and managed team meetings;
(d)Ms Mason played a key role in the leadership team;
(e)Ms Mason managed multiple projects with the Council; and
(f)Ms Mason would report to the former acting CEO Mr Sean Rice.
Further, the Council relied on the evidence in chief of Ms White to assert that the Applicant was finally accountable and the principal decision maker in her role as 'Department Head'. In particular, the Council submits as follows:
i.The Applicant was delegated $98,000 for use in the Bush Project;
ii.The Applicant managed the Hot Springs project, including extensive leadership facilitation which would at least be a $5 Million project.
iii.The Applicant lead the time tunnel project;
iv.The Applicant had direct communication with TMR to facilitate project delivery and approvals;
v.The Applicant achieved a $943,000 grant and reported directly to Ms White, further having direct communications with the Federal Government;
vi.approval of any additional projects or tourism expenditure would have to be reviewed by The Applicant before any steps were taken.
vii.The Applicant controlled staffing, including recruitment and selection decisions, recruitment panel chairing and even declining one of her staff members working from home flexibility;
viii.The Applicant was a key stakeholder member with the Outback Queensland Tourism Association; and
ix.The Applicant was further a key stakeholder member with the Southwest Regional Economics Development Committee.
…
In relation to ground two, Ms Mason contends that the interview panel did not satisfy the requirements of s 196(4) and (6) of the LG Act.[8]
[8][8] See paragraph [23].
Ms Mason's evidence was that she was interviewed by a panel comprising the HR Manager (Ms Frizzel) and the Chief Corporate Officer (Mr Trace). Ms Mason's interview panel does not accord with s 196 of the LG Act.
Section 196 relevantly operates to ensure that, inter alia, the Mayor and the CEO are involved in the recruitment of senior executive employees. The evidence in this matter is that Ms Mason was not interviewed for the role by a panel including the Mayor and the CEO. Ms Mason relies on this to support the submission that she was not a Senior Officer.
With respect to ground three, Ms Mason submits that in her role as Tourism Team Leader she was not represented in Council's annual reports as senior management. In this regard, the Applicant relies on s 201 of the LG Act which relevantly provides:
201 Annual reports must detail particular information about local government employees and councillor advisors
(1)The annual report of a local government must state—
(a)the total of all remuneration packages that are payable for the year to the senior management of the local government; and
(b)the number of employees in senior management who are being paid each band of remuneration; and
(c)if the local government has resolved to allow a councillor to appoint councillor advisors—for each councillor—
(i)the number of councillor advisors appointed by the councillor for the year; and
(ii)the total remuneration payable to all councillor advisors appointed by the councillor for the year.
(2)The senior management, of a local government, consists of the chief executive officer and all senior executive employees of the local government.
(3)Each band of remuneration is an increment of $100,000.
(4)To remove any doubt, it is declared that nothing in this section requires the exact salary of any employee in senior management to be separately stated in the annual report.
It is apparent from the above, that the purpose of s 201 of the LG Act is to create transparency with respect to the remuneration and number of employees employed by Council in senior management roles. Ms Mason attached relevant annual reports of the Council in her affidavit. It was not identified in any of the annual reports that Ms Mason was considered senior management whilst she was employed at the Council. Ms Mason relies on this to support the submission that she was not a 'Senior Officer'.
The evidence relied on by the Council in support of its contention that Ms Mason was a Department Head and consequently a 'Senior Officer' within the meaning of the Award was that she had delegated responsibilities including financial responsibilities and performed the senior role within tourism for the Council.
It does not seem to be controversial that in the performance of her duties, Ms Mason had delegated responsibilities including with respect to managing a budget. I also accept that tourism is an important function for the Council and that Ms Mason had some autonomy with respect to the tourism projects she worked on.
Further, Mr Koch who gave evidence for the Council confirmed under cross-examination that he was responsible for approving matters relating to the Tourism function which fell outside Ms Mason's financial delegation and that he would undertake Ms Mason's performance reviews.
However, to accept that Ms Mason was a 'Department Head', I must accept that in accordance with the definition of the Award:
(a)the principle decision maker or manager of a department or operationally distinct unit or part of the local government comprising a major function or program; or
(b)held a managerial, leadership or regulatory compliance position responsible for an operationally distinct unit or part of the local government, who may act independently subject to the local government's policy of the overriding administrative review of the chief executive officer and is held finally accountable for the performance of the unit or part of the local government.
On the balance of the evidence, I conclude that Ms Mason, in her role, directly reported to the CCO who held the ultimate operational responsibility subject to the CEO, for the tourism function at Council.
Further, the Council's corporate structure supports a conclusion that, together with the Librarian, Pool Manager, Community Services Manager and Ms Mason's role of Tourism Team Leader were each categorised as tier three roles on the corporate structure. The second tier of the corporate structure is the Chief Financial Officer, the COO and the CCO. The first tier is the CEO.
The corporate structure supports the evidence of Ms Mason, Mr Rice and Mr Trace as it shows that Ms Mason's position reported to the CCO.
The combination of the evidence of Ms Mason, Mr Rice and Mr Trace support a conclusion that:
(a)Ms Mason was not considered to be a member of the Executive Leadership Team;
(b)in the performance of her role, Ms Mason directly reported to the CCO as did other level three roles;
(c)in reporting to the CCO, Ms Mason required the CCO's approval for the operation of the tourism functions; and
(d)Ms Mason had a delegated budget which was indicative of her role as a 'level three' position within the organisational structure.
As noted above, I am satisfied that Ms Mason's interview panel did not accord with s 196 of the LG Act and that her position was not referenced as a senior management position in any annual report pursuant to s 201 of the LG Act. Whilst these matters may not in and of themselves, support a conclusion that Ms Mason is not a Department Head, they lend general support to the notion that she was not considered to be a 'Senior Officer' by the Council. However, I have placed limited weight on these matters in forming my ultimate conclusion.
I find that in the performance of her role as Tourism Team Leader, Ms Mason did not act as a 'Department Head'. Accordingly, based on the evidence heard before the Commission, I find that Ms Mason was not a 'Senior Officer'.
In response to the question for my determination in this arbitration. I answer: "No".
Order
I make the following Order:
As to the question for arbitration:
From 5 June 2018 was Ms Barbara Mason employed as a Senior Officer by the Paroo Shire Council pursuant to cl 4.2 Exemption of senior officers, as provided for in Division 2 – Section 1 (administrative, clerical, technical, professional, community service, supervisory and managerial services) of the Queensland Local Government Industry Award (Stream A) Award – State 2017?
The answer is:
No.
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