Meeryn Denise Hay v Shire of Dandaragan T/A Shire of Dandaragan
[2022] FWC 1543
•19 JULY 2022
| [2022] FWC 1543 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Meeryn Denise Hay
v
Shire of Dandaragan T/A Shire of Dandaragan
(C2022/2081)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 19 JULY 2022 |
Application to deal with a dispute – classification – principles of award interpretation -primary purpose test
The dispute
On 31 March 2022, Ms Merryn Hay (the Applicant) filed an application under s 739 of the Fair Work Act 2009 (Cth) (the Act) seeking to have the Commission deal with a dispute with her employer, the Shire of Dandaragan T/A Shire of Dandaragan (the Respondent) in accordance with the dispute resolution procedure in the Local Government Industry Award 2020 (the 2020 Award).[1] The Applicant is a casual employee who works as a customer service officer.
Shortly stated, the dispute concerns whether the Applicant is properly classified as Level 2 or Level 3 under the 2020 Award and also the Local Government Industry Award 2010 (the 2010 Award). The latter modern award is relevant because the parties seek a determination of the correct award classification as at the commencement of the Applicant’s employment on 21 November 2019. However, as there is no difference of substance between the relevant provisions of the respective versions of the awards, although there is a difference in whether the classifications are contained in Schedule A (2020 Award) or B (2010 Award), I have at times simply referred to the word ‘Award’ as denoting both the 2020 Award and the 2010 Award.
The Respondent maintains the Applicant is properly classified as Level 2 and the Applicant contends her role throughout her employment is better classified as Level 3. It appears uncontroversial that the Applicant is covered by the Award and therefore what is to be determined is whether the Applicant falls within a particular classification in the Award.
Prior to proceeding to hearing, the parties acknowledged that at the conclusion of the Applicant’s performance review in December 2021, the position of customer service officer (casual pool) was reclassified as a Level 3 position after some adjustments were made to the role by the Respondent. It is uncontroversial that the Applicant’s pay at the Level 3 rate (instead of Level 2) was backdated to the pay period following the performance review on 22 December 2021.[2] The letter informing the Applicant of the change read, in part:
After further discussions, we have determined that based on the level at which you are performing, and with a minor change to your position description, it is reasonable to re-classify your role from a Level 2 to a Level 3 classification under the LGIA.
Under your current LGIA classification as Level 2 Customer Service Officer (Casual), you are remunerated above the award rate of $22.46 per hour. Reclassifying your position to a Level 3 results in a pay increase which will be backdated to the period following your annual performance review, being 22 December 2021.
In light of the preceding context, it was apparent that the question asked of the Commission was whether at all materials times, the Applicant was properly classified as a Level 2 or Level 3 under the 2020 Award and the 2010 Award. However, given the similarity of the classifications in both Awards, if it was concluded that the Applicant was properly classified as Level 2 or Level 3 under the 2020 Award, it would follow that such classification would be equally applicable under the 2010 Award.
It was uncontroversial that: (a) there is a dispute between the Applicant and Respondent; (b) the dispute has been properly notified to the Commission; and (c) the requirements of the dispute settlement procedure have been complied with.
Background to the application
The Applicant applied for the position of customer service officer (casual pool) in October 2019.[3] Included in the Applicant’s and Respondent’s material, was a document titled ‘Respondent’s Customer Service Officer (Casual Pool) Information Pack October 2019’ (the Information Pack).[4] Within the Information Pack, was a Position Description, purportedly created on 2 October 2019 (the Position Description). The Position Description set out that the position was considered a Level 2 classification under the Award and was accountable to the Manager Customer and Community Services.[5]
Whilst the objectives of the Position Description were clearly stated in the document and will be traversed imminently, the Respondent submitted that its aim had been to establish a pool of casual staff members to ensure that there was the continuation of basic cover for the reception areas and phone customer service functions.[6] This in turn ensured that the visitor centre, library, and ‘shire office’ doors remained open for business on days when permanent full-time staff were absent.[7]
The ‘Objectives’ of the position were described in the Position Description in the following terms:
Provide an efficient and friendly first point-of-contact, customer service role across Shire of Dandaragan reception, library and visitor centre services in Jurien Bay, mindful of the positive public relations impact such a service offers.
…
To act as first point of client contact, respond appropriately, and assist in providing an effective reception, library and visitor centre service.
Liaise with the Manager Customer and Community Services regarding the provision, operation and development of reception, library and tourism services.[8]
The Position Description further listed a number of requirements of the position, which were categorised as either ‘Essential’ or ‘Desirable’:
Skills Essential Desirable Excellent organisational skills ü Satisfactory level of numeracy and literacy skills ü Good level of communication skills -both written and verbal ü Effective time management and public relations skills ü Sound keyboard and computer skills ü Good interpersonal skills ü Knowledge Knowledge of the local area and surrounding towns and attractions ü Knowledge of established practises and procedures ü Knowledge of library and information service ü Experience Previous customer service ü Qualifications and / or Training Current Federal Police Clearance ü Working with Children’s Check ü No formal qualifications required at this level N/A N/A
The key duties and responsibilities of the position were listed in the Position Description in accordance with the work area. For example, in the Visitor Centre the duties included:
a) Promote tourism to attract visitors and produce economic benefits for a particular region.
b) Provide a range of information on local resources in response to enquiries from members of the public.
c) Liaising with local operators to obtain information on accommodation and prices, ordering brochures, as required.
d) Retail duties including sales, cash handling, pricing, stock-take, banking and end-of-day reconciliation.
e) Booking of accommodation and tours using relevant booking system.
f) Undertake visitor centre duties, as required.[9]
Whilst working in the ‘Library’ the duties of a customer service officer encompassed:
a) Create and maintain records, details and information for library members.
b) Effect the issue and return of loaned items.
c) Carry out inspection of returned items for damage.
d) Regularly return items to shelves in correct order, having due regard to sorting standards such as the Dewey Decimal System.
e) Arrange and administer inter-library loans through a Virtual Document Exchange System and ensure compliance with all relevant loan terms.
f) Report damage and identity of person responsible for damage.
g) Carry out any other function as is required by Library Information Services WA from time to time.
h) Carry out any other functions consistent with these services.[10]
At ‘Reception’ the customer service officer could be expected to assume responsibility for the following:
a) Respond to all telephone and counter enquiries and where necessary, refer to the relevant officer and initiate appropriate action.
b) Provide a high level of customer service to all telephone and counter enquiries.
c) Enter outgoing mail and take to post office daily.
d) Receipt all money received daily including Sandy Cape and Refuse Site fees.
e) Download and receipt EFT payments.
f) Manage daily petty case requirements.
g) Assist with typing when necessary.
h) Purchase refreshments for staff room.
i) Take bookings and bond changes for halls and other Shire buildings to ensuring the correct charge is applied and provide debtor requisition forms to the Debtors Officer as applicable.
j) Provide assistance to administration and community services staff when required.
k) Any other duties consistent with the level of this position related to providing customer support within the Shire.[11]
The Position Description provided detail about the level of authority the position held, noting that work was performed under the direction of the Manager Customer and Community Services, and that the employee may exercise initiative or judgment within clearly established procedures and guidelines.[12]
The Applicant stated that from the commencement of her employment, her duties had been performed in accordance with the Position Description.
Award classifications
The 2020 Award sets out its classifications at Schedule A. Included in those classifications are the Level 2 and Level 3 classifications, both of which are set out below.
Schedule A – Classifications Definitions
This award structure consists of skill-based classifications defined according to the following skill descriptors. Various positions may also require employees to hold and maintain appropriate licences, certificates and/or tickets for the operation of machinery, plant and/or tools.
A.1Level 2
Level 2 covers operational employees undertaking duties and responsibilities in excess of Level 1 with relevant local government industry or equivalent experience.
A.1.1Authority and accountability: Completion of basic tasks involving the utilisation of a range of basic skills under established practices and procedures. Work is monitored under supervision either individually or in a team environment.
A.1.2Judgment and problem solving: Judgment is limited to the tasks to be performed and may involve the use of a limited range of tools, techniques and methods within a specified range of work. An employee may resolve minor problems that relate to immediate work tasks.
A.1.3Specialist knowledge and skills: Obtained through on-the-job training and workplace induction training. May include off-the-job training through accredited short courses.
A.1.4Management skills: Not required at this level.
A.1.5Interpersonal skills: Limited to basic communications with other staff and possibly with the public.
A.1.6Qualifications and experience: Completion of Year 10 and/or an appropriate labour market program or similar work/skills.
A.2Level 3
Level 3 covers operational employees undertaking duties and responsibilities in excess of Level 2 and entry level administrative employees.
A.2.1Authority and accountability: Responsible for completion of regularly occurring tasks with general guidance on a daily basis. May supervise work or provide on-the-job training, based on their skills and/or experience, to employees of the same or lower levels.
A.2.2Judgment and problem solving: Personal judgment is required to follow predetermined procedures where a choice between more than 2 options is present. Work performed falls within general guidelines but with scope to exercise discretion in the application of established practices and procedures.
A.2.3Specialist knowledge and skills: Application of developed skills acquired through on-the-job training or accredited external training over a number of months. Positions may require demonstrated competence in administrative areas.
A.2.4Management skills: Not required at this level.
A.2.5Interpersonal skills: Employees at this level require communication skills to enable them to effectively communicate with clients, other employees and members of the public and in the resolution of minor matters.
A.2.6Qualifications and experience: Qualifications or relevant experience in accordance with the requirements of work in this level, which may be acquired through a Certificate II or a non-trades Certificate III, however described.
Applicant’s submissions
The Applicant submitted that the Award appeared to cover ‘administrative’ and ‘operational’ employees. In the Applicant’s view, working indoors, using computers and processing customer bookings and emails, answering the phone and attending to reception duties, were duties that were ‘administrative’ in nature. The Applicant added that even though her payslip referred to ‘Location: Jurien Admin’, ‘Fair Work’ had not been able to specify the classification she fell under.
The Applicant pressed that her work was not monitored under supervision and that she worked independently within the allocated department under the direction of the Manager of Customer and Community Services. This meant that she had discretion to exercise initiative and/or judgment within clearly established procedures and guidelines.
In respect to the attainment of ‘specialised knowledge and skills’, whilst the Applicant acknowledged that the Level 2 classification stated that this may be obtained through on-the-job training and workplace induction training, the Position Description required demonstrated experience relevant to the role to meet the selection criteria.
The Applicant further submitted that she was required to provide ‘an efficient and friendly first point-of-contact, customer service role across the Respondent’s reception, library and visitor centre services’. It therefore followed, according to the Applicant, that her ‘interpersonal skills’ were not limited to basic communications with other staff and possibly the public.
Regarding the minor changes that had been made to her position by the Respondent which resulted in her movement from Level 2 to Level 3, the Applicant submitted that the minor changes were included in ‘user manuals’ and as such, most of the duties had already been performed within the scope of the Position Description. The Applicant submitted that the minor changes did not alter the ‘essential skills’ stipulated in the Position Description.
Respondent’s submissions
The Respondent submitted that the casual pool of customer service offers provided an entry-level opportunity for individuals with limited experience or skills.[13] It noted that in the past, tasks assigned to the customer service officer had been undertaken by trainees, therefore demonstrating that the role provided an effective opportunity for new staff with limited skills and experience to enter the industry.[14] The Respondent added that maintaining an entry level, clerical style role, was within its workplace structure and desired goal of the position’s establishment.
The Respondent contrasted the casual customer service officer role with the role of the equivalent full-time position, observing that the full-time positions included various tasks requiring judgement and troubleshooting skills which would be considered administrative rather than clerical in nature. The Respondent explained that many of the duties undertaken by employees in the permanent roles of community services officer (library), tourism customer service officer and receptionist could be classified as Grade 3 or higher in accordance with the Award. The Respondent noted that it had excluded many of the duties undertaken by the staff in the permanent roles from the Position Description.
The excluded activities referred to by the Respondent included tasks such as: (a) weekly and monthly reconciliations and reports; (b) operator onboarding; (c) co-ordination of tourism information including production of regional visitor guide; (d) booking system establishment and relationship management with vendors; (e) social media and website updates; (f) maintenance of accreditation; (g) facilitate community development; (h) facilitate activities designed to improve community outcomes; (i) annual stock takes; and (j) prepare statistics and reports for management on community development and library outcomes and resourcing.
The Respondent acknowledged that the 2010 Award, which was in place at the time when the Position Description was established, did not include a definition of the terms ‘operational’ and ‘administrative’. This was the case notwithstanding that the terms featured in the preamble of the Level 2 (operational) and Level 3 classifications.
The Respondent explained that for many decades it, and Western Australian Local Government entities, had in general, used the concept of clerical officers and administrative officers to classify office based positions.[15] This, said the Respondent, dated back many decades to when local government was part of the State based industrial relations system.[16]
In support of its contention regarding the delineation between clerical and administrative roles (or officers), the Respondent referred to a document titled ‘Local Government Officers’ (Western Australia) Award 1988 Without Prejudice – February 1988 – Draft 4 – C. No. 1262/87 (the WA Draft Award). Clause 12 of the WA Draft Award referred to ‘Classified Clerical/Administrative Officers’ and Clause 13 referred to ‘Clerical Officers’.[17] The WA Draft Award referred to a clerical officer as a person:
who performs under the supervision of a senior officer, a range of work from simple office tasks to clerical operations performed in conformity with clear rules or guidelines. In the performance of such work, officers may be required to use computer key stations and provide information to the public.[18]
Examples of clerical roles included ‘Typist’, ‘Stenographers’, ‘Punch Card Operators’, and ‘Word Processing Operators’. With regard to the ‘classified clerical / administrative officers’ classification, benchmark positions included ‘Accountant’, ‘Rates Clerk’, Secretary to Town or Shire Clerk’ and ‘Wages Clerk’.[19]
The Respondent argued that there was a distinct difference between the duties of a ‘clerical officer’ position and an ‘administration officer’ position. It pressed that the reference to ‘administrative employees’ in the 2010 Award was intended to capture administrative officers in the context as described in the WA Draft Award, and not simply all staff that work within an administration building.
It was the Respondent’s view, that as the 2010 Award and the 2020 Award intended to capture both office staff and works/outside staff, a clerical ‘type’ employee would fit within the more general term ‘operational employees’ referred to in both Awards. The Respondent cautioned that if its interpretation was not supported by the Commission, then both the 2010 Award and 2020 Award would require any officer working within an administrative building to always commence employment at Level 3 of the 2020 Award no matter the level and complexity of the duties being undertaken. The Respondent added that an interpretation unaligned with its position, appeared inconsistent with most Shire practices and a workplace history that had seen entry level positions commence with front counter/reception based roles and responsibilities.
Principles relating to award interpretation and classification disputes
The dispute at hand requires several matters to be addressed. The first, is whether a customer service officer (casual pool) falls within the scope of being an ‘operational’ employee or an ‘administrative’ employee. This first matter concerns the construction of the disputed classifications.
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd, Justice Katzmann outlined the principles relating to the construction of awards, which he observed were not in doubt:
Like any statute, the task of construing an award begins with the text: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 (“Wanneroo”) at [53] per French J. But the words of the award “must not be interpreted in a vacuum divorced from industrial realities” (Wanneroo at [57]). Regard must be had to the context and purpose of the clause (Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [14]) and the intention of the parties who made the agreement (Kucks v CSR (1999) 66 IR 182 (“Kucks”) at 184 per Madgwick J). The context includes the history (Short v F W Hercus Pty Limited (1993) 40 FCR 511 (“Short”) at 517–518 per Burchett J). It also includes the legislative background against which the award was made and in which it was to operate: cf. Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [30] per Gummow, Hayne and Heydon JJ.
An award is not a law but it has the force of a Commonwealth law. As it is neither a legislative instrument nor a rule of court but an instrument made by an authority, unless the contrary intention appears its interpretation is covered by the provisions of the Acts Interpretation Act 1901 (Cth): Wanneroo at 438 [51] – [52]; Acts Interpretation Act, s 46. That means that a construction that would promote the purpose or object underlying the award is to be preferred to one that would not: Acts Interpretation Act, s 15AA.
A narrow or pedantic approach is to be eschewed, but “[a] court is not free to give effect to some anteriorly derived notion of what is fair or just regardless of what has been written in the award” (Kucks at 184, approved in Ansett Australia Limited (subject to Deed of Company Arrangement) v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 at [8]). Cf. Wanneroo at [57] and Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) ALJR 1806; [2003] HCA 55 (“ACX Ltd v DCT”) per Hayne J at [115]. [20]
Having arrived at the construction of the disputed classifications, the dispute is thereafter resolved by ascertaining the work performed by the employee and then comparing that work to the classification descriptions in the applicable industrial instrument, construed in accordance with the established principles of construction for industrial instruments.[21]
The Commission and courts have applied what is known as the ‘principal purpose’ test to ascertain the principal purpose for which an employee is engaged when looking at award coverage and/or an employee’s classification. This requires an analysis of the duties performed and the circumstances under which they are performed.
In Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd, Besanko J stated:
Where the particular issue is whether an employee is engaged in a particular classification or class of work, then the Court takes a practical approach and will consider the aspect of the employee’s employment which is the principal or major or substantial aspect (Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18; Director of The Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 7)[2013] FCCA 1097at [77]). [22]
Within the Commission, the Full Bench has described the ‘principal purpose’ test in the following terms:
[9] In our view, in determining whether or not a particular award applies to identified
employment, more is required than a mere quantitative assessment of the time spent in
carrying out various duties. An examination must be made of the nature of the work
and the circumstances in which the employee is employed to do the work with a view
to ascertaining the principal purpose for which the employee is employed. In this case,
such an examination demonstrates that the principal purpose for which the appellant
was employed was that of a manager. As such, he was not ‘employed in the process,
trade, business or occupation of ... soliciting orders, obtaining sales leads or
appointments or otherwise promoting sales for articles, wares, merchandise or
materials’ and was not, therefore, covered by the Award.[23]
In the Full Bench decision of Lingli Zheng v Poten & Partners (Australia) Pty Ltd (Poten),[24] it was observed that the ‘principal purpose’ test described in the passage extracted from Carpenter above, had been applied in circumstances where what was to be determined was not whether the employee fell within a particular classification in the award but whether the employee fell within the incidence of the relevant award, which was described in terms of the specific work function of the employee. The Full Bench continued that it appeared that the ‘principal purpose’ test was singularly ill-suited to determine whether a person fell within one of the classifications in the Professional Employees Award 2020 (PE Award) [25] or the Information Technology Industry (Professional Employees) Award 2001,[26] because the classifications were expressed in highly generic terms and did not describe with any specificity the job functions required to be performed at each level.[27] The Full Bench observed that the classification descriptors in that particular award had been drafted primarily in order to determine, by reference to the degree of skill and responsibility being exercised, in which classification a person otherwise covered by the award would fall, rather than to identify whether a person is covered by the award at all.[28]
Poten addressed whether the applicant in that case was covered by the PE Award. Whilst the Full Bench identified shortcomings of the application of the ‘principal purpose’ test in the circumstances specific to the applicant in that case, what was required by the application of the ‘principal purpose’ test was explained. Referring to Carpenter, the Full Bench stated that the test required an examination of the nature of the work of the employee in question and the circumstances in which the employee is employed to do the work. This allowed the ‘principal purpose’ to be identified and thereafter compared to the classification descriptor in order to determine whether it falls within the scope of the descriptor.
Consideration
7.1Construction of the disputed classifications
The absence of a definition for the words ‘operational’ and ‘administrative’ has evidently proved to be a source of contention. From the Applicant’s submissions it can be taken that she prefers a construction that leans toward a meaning of ‘administrative’ that denotes office based duties that are customer facing. Examples of duties performed include, attending a reception desk, processing customer bookings, and responding to customer enquiries.
Like any statute, the task of construing an award begins with the text. The word ‘administrative’ denotes the following:
adjective relating to administration; executive: administrative ability; administrative problems.[29]
The word ‘administration’ encompasses multiple meanings, but the ones that appear most apposite, are as follows:
noun 1. the management or direction of any office or employment.
2. the function of a political state in exercising its governmental duties.
3. any body of people entrusted with administrative powers.
4. the duty or duties of an administrator.[30]
In contrast, the word ‘operational’ is said to denote:
adjective 1. of or relating to an operation or operations.
2. ready for use; in working order.
3. Military of, relating to, required for, or involved in military operations.[31]
With the word ‘operation’ meaning:
noun 1. the act, process, or manner of operating.
2. the state of being operative: a rule no longer in operation.
3. the power of operating; efficacy, influence, or virtue.
4. exertion of force or influence; agency.
5. a process of a practical or mechanical nature in some form of work or production: a delicate operation in watchmaking.
6. a course of productive or industrial activity: building operations.
7. a particular course or process: mental operations.
8. a business transaction, especially one of a speculative nature or on a large scale: operations in oil.
9. Surgery a process or method of operating on the body of a patient, as with instruments, to remedy injury, etc.[32]
However, these words are not to be interpreted in a vacuum divorced from industrial realities and therefore regard is to be had to the context and purpose of the clause and the intention of the parties who made the 2010 Award - where the Level 2 and Level 3 classifications initially surfaced inclusive of these words. Context of course includes the contents of the award itself and the history of the award.
Schedule A sets out the classifications in the 2020 Award and Schedule B provides similar in the 2010 Award. In the 2020 Award, the following is said in the preamble for Level 4 and Level 5 classifications respectively:
Level 4 covers operational and administrative employees undertaking duties and responsibilities in excess of Level 3 and is the entry level for technical and trades employees.
Level 5 covers technical, administrative and trades employees undertaking duties and responsibilities in excess of Level 4.
The 2010 Award provides the abovementioned preambles to the respective classification levels, and also included are those that can be found in the 2020 Award for the Level 2 and Level 3 classifications.
The 2010 Award commenced on 1 January 2010 as a result of the decision of the Australian Industrial Relations Commission (AIRC) in 2009 (Modernisation Decision).[33] A number of instruments were considered in the modernisation process of this award, several of which contained classifications similar to those incorporated into the modern award. These instruments were:
a) Local Government (State) Award 2004;[34]
b) Local Government Officers (Western Australia) Award 1999[35] (the 1999 LGOA) and
c) Local Government Officers (Western Australia) Award 1989[36] (the 1989 LGOA)
Whilst transcripts and submissions from the award modernisation have been considered, they did not illuminate the meaning of ‘administrative’ or ‘operational’, as referred to in Level 2, Level 3 or for that matter the remaining levels within the 2010 Award.
In respect to the classifications, the Modernisation Decision revealed only that the classification definitions and wage rates included in the exposure draft were agreed by the ‘LGAs’ and the ‘ASU’.[37]
However, ‘administrative’ roles/classifications have been described in the pre-2010 Award instruments and were said to have been considered in the modernisation process. Turning to the 1989 LGOA, this award included a ‘clerical officer clause’ at clause 13, which set out at subclause 13(b) a definition of ‘clerical officer’:
For the purpose of this clause a clerical officer shall mean an officer who performs under the supervision of a senior officer, a range of work from simple office tasks to clerical operations performed in conformity with clear rules or guidelines. In the performance of such work, officers may be required to use computer key stations and provide information to the public.
At clause 13(d) the 1989 LGOA set out that:
Officers who perform under direction simple tasks of a repetitive nature requiring a very limited degree of initiative shall not proceed automatically beyond the salary level prescribed in subclause (a) hereof at 4th year of adult experience. Examples of the task include:
Messengers, handling mail, filing, telephonists, receptionists, photocopying, operation of stencil machines, sorting and collating vouchers/accounts.
Other clauses in the 1989 LGOA included clause 25 ‘library officers’ and clause 14 ‘data input operator’. Subclause 25.3 of the 1989 LGOA set out:
A library clerk who performs under direction, tasks of a repetitive nature requiring a limited degree of initiative shall not proceed beyond the salary prescribed at 4th year of adult experience. Typical examples include officers whose duties consist almost entirely of recording loans and shelving. Officers performing tasks which require greater degrees of skill and initiative shall proceed through the salary bar.
In contrast, clause 12 of the 1989 LGOA detailed the classification of ‘clerical/administrative officer’ as follows:
The classification of an adult clerical/administrative officer into one of the abovementioned levels shall be based upon the officer's degree of responsibility in the council's service and requirement to perform work at a level higher than that prescribed by clause 13 hereof which may include supervisory duties, and/or who may be required regularly to perform work of a confidential nature to a town or shire clerk or a departmental head. Relevant tertiary qualifications, ability and experience shall also be taken into account.”
Clause 12(iii)
“In assessing the duties and responsibilities of a position for the purposes of determining an appropriate classification, council shall refer to the definitions provided for the following benchmark positions and their salary gradings:
Benchmark positions
Minimum Classification Level
Accountant
5
Rates clerk
2
Secretary to town or shire clerk
2
Wages clerk
1
"Accountant" shall mean the officer (not being a treasurer as defined herein) who controls and supervises the performance of the accounting functions of a local Authority, including the responsibility for the preparation and presentation of financial statements to a senior officer.
"Rates clerk" shall mean the officer appointed as such and who is wholly responsible for the preparation and maintenance of a council's rating records, including dealing with ratepayers' complaints and enquiries on rates and rolls, processing claims for pensioner rebates, authorising payment of rates by instalments and issuing of summonses, preparation of rates and rubbish write-offs, supervision of other officers performing such tasks and any other assigned duties having similar work value.
"Secretary to town or shire clerk" shall mean the officer appointed as such and who, in addition to typing and/or stenographic duties, is required to exercise initiative in facilitating the work of a town or shire clerk, including work of a confidential nature, recording and preparation of agendas and minutes of council and committee meetings, drafting of correspondence for the clerk on matters arising out of such meetings, communicating with ratepayers and councillors on behalf of the clerk, supervision of other clerical staff and any other duties of a similar work value.
"Wages clerk" shall mean an officer appointed as such and who is wholly responsible for the preparation and maintenance of time and wages records to facilitate correct payment of employees; the processing of workers' compensation claims; the interpretation of relevant awards, long service leave, superannuation, workers compensation and taxation provisions; arranging authorised deductions from pay and correct remittance of such amounts; the preparation of group certificates; the preparation and maintenance of relevant statistical data; dealing with routine enquiries made by employees and unions; and the supervision of other clerical officers assisting in the performance of such duties.
It is discernible from the pre-2010 Award instruments, namely the 1989 LGOA, that a ‘clerical officer’ was a classification distinguishable from a ‘clerical /administrative officer’, the latter classification encompassing duties and responsibilities of greater complexity, responsibility, judgment, and problem solving. Furthermore, the ‘clerical/administrative officer’ classification required a level of qualification and a skill set not found in the ‘clerical officer’ level. In my view, the ‘Benchmark positions’ in clause 12 of the 1989 LGOA provide sufficient indication of the level of experience, qualifications, skill, knowledge, judgment and accountability, associated with the ‘clerical/administrative officer’ classification.
A consideration of the historical context of the 2010 Award clearly indicates that there was a difference between a ‘clerical officer’ and a ‘clerical/administrative officer’ in the predecessor instruments. However, neither classification or job role is referred to in the context of the 2010 Award and 2020 Award.
When one considers the ordinary and plain use of the term ‘administrative’ by reference to the definition provided in the Macquarie Dictionary and in the context of the predecessor instruments, it is evident that the term denotes an undertaking that is of greater complexity and responsibility then that of the old ‘clerical officer’ position under the 1989 LGOA.
It was the Respondent’s view that the 2010 Award and the 2020 Award intended to capture both ‘office’ staff and ‘works/outside’ staff in the Level 2 classification. With a clerical ‘type’ employee falling within the more general term ‘operational employees’ referred to in both Awards. I consider that the Respondent’s view is not absent merit.
The classification descriptions in the Award cannot be construed in isolation. They must be construed in the context of the Award as a whole. The term ‘operational’, is not limited in its scope such that it only delineates or distinguishes between ‘outside’ and ‘office’ staff. Likewise, the term ‘administrative’ does not simply denote that work performed by an employee within a structure such as an office, library or tourist centre, results in the classification of the employee as an ‘administrative’ employee. The Award contains no such limitation. Furthermore, when one considers the generic descriptors utilised by the classification levels within the Award, such a limited construction cannot be sustained. For example, neither the Level 2 nor Level 3 classification provide any indication of benchmark positions, such as those that could be found in the 1989 LGOA.
This leads me to the conclusion that the term ‘operational’ as referred to in the Awards is not limited to what would colloquially be referred to as ‘outside staff’. I consider that the Level 2 classification in the Award, by use of the word ‘operational’, would extend to those roles that are ‘clerical’ in type, in the sense of the classification of ‘clerical officer’ in the 1989 LGOA. The plain and ordinary meaning of the word ‘operational’ extends to an act, process, or manner of operating or a course of productive or industrial activity. This is to be distinguished from the term ‘administrative’ which points towards the management or direction of any office or employment.
It follows that the position of customer service officer does not automatically fall under the Level 3 Award classification because its duties are performed within the Respondent’s office, tourist centre or library. It may fall within the Level 2 or 3 classification however that is dependent on having ascertained the work performed by the Applicant and then comparing that work to the classification descriptions in the Award.
7.2The classification
When the nature of the Applicant’s work is examined in the context of the circumstances in which she is employed to do the work, it is evident that the principal purpose of her role as a customer service officer (casual pool) is to act as the first point of client contact, to respond appropriately to enquiries, and assist in providing an effective reception, library and visitor centre service.
When one considers the Applicant’s explanation of her role and the materials that accompanied both the Applicant’s application and the Respondent’s response to the same, it can be seen from the ‘essential’ requirements of the role that it involves relatively uncomplicated matters of basic customer enquiries in respect of being the first point of contact at the reception, tourist centre or library. However, it is an indubitable fact that the position requires daily communication with the public and with local operators – this is not a mere possibility, but a predominant part of the role at hand.
The Level 2 classification contemplates interpersonal skills that extend to basic communications with other staff and possibly the public. This runs contrary to what is required of the Applicant in her position where she is effectively representative of the Respondent organisation. It is also apparent that on a day-to-day basis, the Applicant’s work is not monitored under supervision but instead she is responsible for completion of regularly occurring tasks with general guidance on a daily basis – hence her reporting line to a manager. Albeit I am appreciative that the Applicant is placed where required to fill in for the absence of a full time or part time substantive position, within the Respondent organisation – with those positions taking on greater responsibility.
Little direct evidence was provided regarding the supervision of other employees’ work or the provision of on the job training to employees of the same or lower levels. Regarding the type of enquiries encountered and the problem solving engendered by the same, little evidence was advanced. It is therefore difficult on that basis to determine whether an exercise of personal judgment is required to choose, for example, between two options where there are predetermined procedures. However, I observed that the Position Description refers to a discretion to exercise initiative and / or judgment within clearly established procedures and guidelines.
The extent of this exercise of judgment perhaps sits in contrast to the position objectives within the Position Description. One objective includes liaising with the Manager Customer and Community Services regarding the provision, operation and development of reception, library and tourism services. One might consider that a position that contributes to the development of such services within the Respondent organisation would necessitate a level of judgment and problem solving skill that surpasses that of judgment limited to the tasks to be performed and the resolution of minor problems that relate to immediate work tasks. However, the objective appears somewhat aspirational when one considers the extent of authority attributed to the customer service officer position within the Position Description.
Notwithstanding, when the key duties and responsibilities of Position Description are considered in light of the evidence relied upon by each party, it is clear that the preponderance of the work undertaken by the Applicant is the provision of customer service duties which are heavily dependent on an employee possessing effective communication skills and having the ability to resolve minor matters.
With the stated primary purpose for customer service officers being to act as first point of client contact, it follows that the classification in Level 3 of the Awards is the appropriate classification.
Conclusion
The dispute question is answered with the following conclusion:
At all material times the Applicant was properly classified as a Level 3 under the 2020 Award and also the 2010 Award.
DEPUTY PRESIDENT
Appearances:
Ms. M Hay on behalf of herself;
Mr. B Bailey and Mr S. Clayton on behalf of the Respondent.
Hearing details:
30 July 2022 (video hearing)
[1] PR736911; MA000112.
[2] Digital Hearing Book, 173.
[3] Ibid 63.
[4] Ibid 10.
[5] Ibid.
[6] Ibid 186.
[7] Ibid.
[8] Ibid 13.
[9] Ibid 14.
[10] Ibid 15.
[11] Ibid.
[12] Ibid 16.
[13] Ibid 186.
[14] Ibid.
[15] Ibid 189.
[16] Ibid.
[17] Ibid 256 - 259.
[18] Ibid 259.
[19] Ibid 256 - 259.
[20] [2013] FCA 638, [27] - [30].
[21] Inna Grobovsky v United Protestant Association T/A UPA [2015] FWC 2504, [14].
[22] [2016] FCA 621, [27].
[23] Carpenter v Corona Manufacturing Pty Ltd[2002] AIRC 1562 (Carpenter).
[24] [2021] FWCFB 3478 (Poten).
[25] MA000065.
[26] AP812692CAV.
[27] Poten ( n 24) [45].
[28] Ibid.
[29] Macquarie Dictionary (online at 18 July 2022) ‘Administrative’.
[30] Macquarie Dictionary (online at 18 July 2022) ‘Administration’.
[31] Macquarie Dictionary (online at 18 July 2022) ‘Operational’.
[32] Macquarie Dictionary (online at 18 July 2022) ‘Operation’.
[33] [2009] AIRCFB 945 (Modernisation Decision).
[34] AN120316.
[35] AP787011; Print H4182.
[36] GOV006.
[37] Modernisation Decision (n 33), [141].
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