Mr Graham Poyzer The Corporation of the City of Adelaide T/A City of Adelaide

[2010] FWA 2464

[2010] FWA 2464

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Graham Poyzer
The Corporation of the City of Adelaide T/A City of Adelaide
(C2009/10539)

VICE PRESIDENT LAWLER SYDNEY, 6 APRIL 2010

Matter in dispute relates to classification level of Court Process Officer.

[1] This is an application pursuant to s.739 of the Fair Work Act 2009 for FWA to deal with a dispute in accordance with a dispute settlement procedure in, the Corporation of the City of Adelaide Workplace Agreement No 1 (Agreement),a workplace agreement made under the Workplace Relations Act 1996.

[2] The Agreement contains a 9 level broad-banded classification structure. The dispute relates to the proper classification of Mr Poyzer. Mr Poyzer is employed as the “Court Process Officer”, a position presently classified as Level 3. Mr Poyzer contends that the position is properly classified at Level 4.

[3] The parties agreed to arbitration of the dispute recognising that the nature of the issue in dispute and the respective positions of the parties were such that there was no significant prospect that the matter could be resolved through conciliation.

[4] The parties agreed to the following formulation of the central issue on which this matter turns:

Do the facts and circumstances of Mr Poyzer’s employment fall properly within the classification criteria for Level 3 or the classification criteria for Level 4? That question is to be answered by reference to whether or not there are significant discretionary decision-making responsibilities in relation to prosecutions.

[5] The classification definitions for Levels 3 and 4 are relevantly as follows:

“APPENDIX D - CLASSIFICATION STRUCTURE EXPLANATION OF CRITERIA FACTORS Overview

This section provides for a broad generic description of the essential factors required of a particular work level. It is intended that factors mentioned in one level of the criteria are also included in ensuing levels even though they may not be specifically mentioned.

…

Responsibility/accountability

This section refers to the extent of control or authority demanded by the position, the complexity of the tasks required to be undertaken and the associated responsibilities and the degree of accountability for actions and decisions.

…

Judgement/problem solving

This section refers to the need or otherwise to make distinctions and exercise discernment and the knowledge and techniques needed to be exercised in the solving of problems in the workplace.

…

LEVEL 3

Overview

Positions at this level require previous experience and/or practical knowledge and skills in order to undertake work which requires interpretation and a more detailed knowledge of standard procedures or practices. Incumbents may also be required on occasions to be involved in a range of work functions and contribute to interpretation of matters for which there are no clearly defined precedents.

…

Knowledge

Incumbents at this level should have a sufficient working knowledge gained through extensive on-the-job training to an equivalent standard or through completion of formal educational qualification (including an industry qualification). Incumbents need to be proficient in the application of standard procedures and practices, have a sound knowledge of operational methods within the work area and have an understanding of relevant Acts, Regulations, policies, precedents and practices. The incumbent should be able to undertake routine and non-routine functions and responsibilities not necessarily confined to their local work group or function. Incumbents in a supervisory position should have an understanding of personnel practices. Incumbents require an understanding of the function of their position in an organisation context.

Responsibility/accountability

Freedom to act limited by standards and procedures and by the nature of the work. The tasks to be undertaken, although dictated to a large degree by prescribed standards and procedures, are not generally routine in nature and allow for the regular exercise of initiative and discretion. Positions at this level may require incumbents to occasionally deal with unusual situations that may arise from time to time although assistance and advice is generally available.

Incumbents with supervisory responsibilities are accountable for ensuring that all subordinate staff are trained in safe working practices and in the safe operation of equipment and are made aware of all occupational health and safety policies and procedures.

Supervisory positions at this level require the incumbent to supervise, co-ordinate and plan the work of others, to determine priorities within the work group and monitor outcomes.

At this level, decisions and actions on routine matters can be taken which affect the local work group or functional area. In the case of decisions and actions which affect other work groups or functions, these decisions and actions will generally need to be referred to a supervisor. Incumbents at this level may recommend initiatives and developments which impact on the section. With the exception of positions at this level which are at the base graduate entry level, these positions will generally enable incumbents to work under limited direction and with minimal supervision.

Graduate entry officers will generally work under clear direction and routine supervision.

…

Judgement/problem solving

Incumbents at this level may be required to resolve problems which are non-routine in nature and which may extend beyond the incumbent’s local work area or function. The incumbent may be required to determine a range of alternatives and select the desired outcome from that range.

The use of judgement and initiative is required in achieving outcomes at this level.

…

LEVEL 4

Overview

Positions at this level may supervise resources and/or provide advice to or regulate clients and/or give support to more senior staff. In positions where the prime responsibility is for resource supervision, the freedom to act is governed by clear objectives and/or budgets, frequent prior consultation with more senior staff and a regular reporting mechanism to ensure adherence to plans. In positions where the prime responsibility is to provide specialist advice to clients or to regulate clients, the freedom to act is subject to close supervision or to clear guidelines. In positions where the prime responsibility is to provide direct support and assistance to more senior staff, the freedom to act is not limited simply by standards and procedures.

…

Responsibility/accountability

Work at this level is not generally limited by prescribed standards and procedures. The tasks undertaken will require the regular exercise of initiative and discretion and will require incumbents to occasionally deal with unusual situations that may arise from time to time although assistance and advice may not be readily available. Incumbents at this level assist in the development of routine policy and the establishment of practices and procedures for routine matters.

Incumbents with supervisory responsibilities are accountable for ensuring that all subordinate staff are trained in safe working practices and in safe operation of equipment and are made aware of all occupational health and safety policies and procedures.

At this level decisions and actions on routine matters can be taken which affect the section. In the case of decisions and actions which affect other sections, these decisions and actions will generally need to be referred to a supervisor. Incumbents at this level may recommend initiatives and development which impact on other sections.

Incumbents at this level will allocate resources, ascertain training needs and recommend appropriate training plans and ensure that the work area has in place sound and effective human resource policies and practices. Incumbents at this level may assist in long term staff planning.

Positions at this level enable incumbents to work under limited direction and with minimal supervision.

…

Judgement/problem solving

Incumbents at this level may be required to resolve problems which are non-routine in nature and which may extend beyond the incumbents immediate work area or function. The incumbent may be required to determine a range of alternatives and select the desired outcome from that range. In determining and selecting the alternatives the incumbent does not always have the benefit in non-routine matters, of precedents or accepted practice. The use of judgement and initiative is required in achieving outcomes at this level.”

[6] Action in relation to parking offences is invariably initiated by the issuing of a “parking expiation notice” (ie. an infringement notice) by a Council officer. The notice, attached to the vehicle in question, contains on its reverse side a form allowing the driver to elect to challenge the issuing of the infringement in court. The making of such an election is referred to within the Corporation of the City of Adelaide (Council) as an “election to prosecute”.

[7] Many motorists issued with a parking infringement notice pay on the notice with no further action required. If payment of the fine is not received in response to the notice left on the vehicle, reminder notices are sent to the registered owner requiring payment of the fine. I assume that these notices also contain an election to challenge the issuing of the infringement in court, that is, an “election to prosecute”.

[8] Where a motorist completes an “election to prosecute” and the Council decides to pursue the infringement this is done by way of prosecution initiated by the lodging of a complaint in the Court.

[9] If payment is not received in response to reminder notices and there is no election to challenge the infringement notice in court then the Council decides whether to apply for an enforcement order. That decision will involve a consideration of any representations and the application of policy guidelines in relation to the waiving of infringements. Enforcement orders are issued by a magistrate in chambers without a hearing attended by any party. A motorist receiving an enforcement order has a right to seek a review of that order. The Council will adopt a position in relation to such a review and will usually, but not always, defend the issuing of the enforcement order.

[10] In the last financial year there were some 20,000 enforcement orders sought by the Council. In the same period there were 46 “elections to prosecute”.

[11] Mr Poyzer’s evidence is that it is he that makes the decision as to whether “an election to prosecute” will be pursued by the Council and, where a decision to prosecute is made, he is the named complainant in all such prosecutions. Mr Poyzer is also involved in the processing of enforcement orders and the decisions to waive parking expiation notices in accordance with the guidelines, albeit this activity is also undertaken by other staff. Mr Poyzer’s case in the present matter focuses on his decision making role in relation to “elections to prosecute” rather than his decision making role in relation to the seeking of enforcement orders. I infer that it is accepted that decision making in relation to seeking of enforcement orders is not an activity that fall within the Level 4 classification description.

[12] Mr Poyzer relied upon correspondence and oral evidence from Mr Charles Muscat, a solicitor in private practice who has, for many years, conducted parking prosecutions on behalf of the Council. It appeared to Mr Muscat that Mr Poyzer was responsible for making decisions in relation to whether a prosecution should be commenced and for providing instructions in relation to prosecutions that were commenced. However, it became clear in his oral evidence that Mr Muscat was unaware of the internal processes in relation to the decision to proceed to a prosecution and it was a matter of assumption on his part that such decisions were made by Mr Poyzer because it was Mr Poyzer who communicated those decisions. It should also be noted that Mr Muscat gave evidence in some instances he had received immediate instructions from Mr Poyzer on whether the particular matter should be withdrawn or continued. Mr Muscat said the following in a letter to Mr Poyzer:

“For many years now I have taken my instructions in respect of parking prosecutions and related matters primarily from you. For example, all my emails are with you and I do not have an email address for another officer of the Council. You prepare the complaints and file them after you liaise with me on my availability. I collect the complaints from you and prosecute them in Court. If there is an issue with a complaint such as an offer from a defendant, a recommendation from a magistrate, difficulties with a case, the likelihood or value of a conviction I contact you, offer my advice on the matter and then take your instructions on behalf of the Council and act on your instructions. You are not bound to act on my advice. You receive my advice and instruct me of the final decision on the matter. I have not been specifically instructed by the Council to liaise with any other officer of the Council and have always accepted that I obtain my instructions from the Council through you. However, if I was to be contacted by a more senior officer of the Council I would also take instructions from that person. I have found my dealings with you to have always been professional and reasonable and you have always understood any advice I provided.

After a matter is finalised I advise you of the result. On occasions you have asked me to attend at the Council to discuss a difficult matter with other officers but that has been a rarity. I am not fully aware of the internal hierarchy of the Council and can only repeat that I have always taken my instructions from you.

When you have been on leave you have made arrangements with me on matters that may take place in your absence. In some situations I have held over matters until your return from leave so I may discuss a matter and obtain your instructions.”

[13] The first 5 documents in Exhibit 3 are standard procedures. Document 1 is entitled “Prosecution Procedure” and includes the following:

“SCOPE

This procedure is run to obtain a list of reports ready to be sent to Court for the issue of an Enforcement Order.

APPLICATION

This procedure applies to staff who is (sic) trained in this procedure and is (sic) located in the Administration section of Regulatory Services.

….

RESPONSIBILITY

Team Leader - Prosecutions

It is the Team Leader’s responsibility to ensure that the Prosecutions are adhered to (sic) in accordance with the Prosecution procedure.”

[14] Document 2 is entitled “Batch Processes - Court Update” and contains a procedure that “covers the process when a file is received back from Court.” It includes the following:

“RESPONSIBILITY

Team Leader

It is the Team Leader’s responsibility to ensure that this process is accomplished in a proficient and timely manner.”

[15] Document 3 is a procedure entitled “Court Extract” and “is a process to send reports marked ‘Prosecution Approved’ to the Courts Administration Authority, who will issue an enforcement order.” It includes the following:

“RESPONSIBILITY

Team Leader - Prosecutions

It is the Team Leader’s responsibility to ensure that the Court Extract is adhered to (sic) in accordance with the Prosecution procedure.”

[16] Document 4 is a procedure entitled “Elect to be Prosecuted” and includes the following:

“SCOPE

This procedure covers the process where a person elects to be prosecuted.

APPLICATION

This procedure applies to all Prosecution trained staff in the Administration section.

…

RESPONSIBILITY

Team Leader

It is the Team Leader’s responsibility to ensure that this process is accomplished in a proficient and timely manner.

Staff

Staff are responsible for understanding how to apply this procedure efficiently and are aware of their duties and responsibilities.

REQUIREMENTS

When a person elects to be prosecuted, this expiation notice is deemed to be withdrawn and the complaint decided (sic) whether a summons is to be issued.

...”

[17] Document 5 is entitled “Magistrates Court” and states that “[t]his procedure covers the process of appearing in Court” and is concerned with ensuring that enforcement order review applications are handled appropriately. It includes the following:

“RESPONSIBILITY

Team Leader

It is the Team Leader’s responsibility to ensure that this process is accomplished in a proficient and timely manner.

Staff

Staff are responsible for understanding how to apply this procedure efficiently and are aware of their duties and responsibilities.”

[18] Document 6 is a set of “Operating Guidelines” in relation to “Waiving of Parking Expiation Notices.” The introduction states that “[t]he purpose of these guidelines is to ensure that the correct procedure is followed for waiving of parking expiation notices by Council to ensure a high level of probity.” Section 2 deals with “Procedures for waiving of parking expiation notices for staff” and is concerned with notices issued to staff driving council vehicles. Section 3 deals with the waiving of notices for elected members of Council and section 4 deals with “Procedures for waiving of parking expiation notices for members of the public”:

“4.1 Consideration will only be given to the waiving of parking expiation notices incurred by members of the public if they satisfy the criteria outlined in the Offence Assessment Guidelines (Attachment D).

4.2 The exemption will only apply once a member of staff has substantiated that the offence was incurred as in 4.1 above.

4.3 Should the above conditions (4.1) – (4.2) not be followed, the offence will be dealt with in accordance with the procedures governing the prosecution of parking offences under the Expiation of Offences Act as applicable in the ordinary course of events.

4.4 The Chief Executive Officer, General Manager City Services and the Manager, Customer Service are able to waive expiation notices outside the conditions outline above (4.1) – (4.2) at their absolute discretion. Should the Chief Executive Officer, General Manager City Services or Manager Customer Service exempt an expiation notice outside the conditions then they must document and save the reasons for their decision. The section is regularly audited to monitor the number of offences that are waived.” (emphasis added)

[19] Attachment D is a set of guidelines specifying particular circumstances where a waiver should or should not be granted. The document commences with a list of “general exemptions for all offences” which is followed by a note stating: “If special circumstances apply refer request for exemption to Team Leader - always put notes in Pathway to explain any reasons.”

[20] Document 7 is a single page entitled “Prosecutions Procedures” and contains a check list of 20 items. This is set of low-level, mechanical instructions, apparently in relation to the seeking of an enforcement order as distinct from an “election to prosecute” matter.

[21] Documents 8, 9 and 10 are examples of the active involvement of Mr Poyzer’s then team leader in relation to prosecution decisions in respect of two individuals and a company.

Consideration

[22] The policy documents relied on by the Council demonstrate that, as a matter of formal policy, responsibility for decisions in relation to whether “election to prosecute” matters are pursed rests with Mr Poyzer’s team leader rather than Mr Poyzer.

[23] Documents 8, 9 and 10 of Exhibit 3 demonstrate that Mr Poyzer’s team leader was involved in making decisions on whether to prosecute in at least three matters. Those documents do not demonstrate that the team leader has been making decisions in relation to all or most matters. Mr Poyzer did not seek to deny the effect of those documents. However, he maintained, in effect, that it was he who made discretionary decisions in relation to in the vast majority of “elect to prosecute” matters. Mr Muscat’s evidence provides some proper corroboration of Mr Poyzer’s evidence, at least in relation to decision-making in response to requests for instructions from Mr Muscat. The Council called no oral evidence and instead relied on the documents in Exhibit 3 and cross-examination of Mr Poyzer. If the thrust of Mr Poyzer’s evidence was incorrect then some other person was making the relevant decisions and I would have expected the Council to call that person as a witness or at least call specific affirmative hearsay evidence to that effect. That did not occur. In the absence of witness evidence contradicting Mr Poyzer’s evidence on the role he actually plays in relation to decisions to prosecute in “election to prosecute” cases, I accept the thrust of his evidence. I find that as a matter of practice, Mr Poyzer has been making decisions on whether to prosecute in most “election to prosecute” cases. I find that Mr Poyzer makes all or almost all decisions in relation to requests for instructions from Mr Muscat on the conduct of prosecutions instituted in relation to such matters.

[24] I accept the unchallenged submission on behalf of the Council that Mr Poyzer’s position, when it was first established, was intended to be, and properly was, a Level 3 position. However, I find that over time a situation developed where Mr Poyzer came to be making most decisions in relation to “election to prosecute” matters and that this involved Mr Poyzer in “significant discretionary decision-making responsibilities in relation to prosecutions” and thus , on the parties’ agreed question, was work that brings Mr Poyzer within the Level 4 classification. Mr Poyzer did not give any evidence of an explicit decision or direction from his Team leader or any other manager that he, Mr Poyzer, make decisions in relation to “election to prosecute” matters. It is more likely than not that this is a situation that simply evolved in absence of an explicit decision or direction. Nevertheless, this is a situation where a practice has been allowed to develop that is contrary to the formal policy of the Council in relation to “election to prosecute” matters. There is no reason why Council should be prevented from regularising the decision-making in relation to “election to prosecute” matters and bring it into conformity with the policy so that it is the team leader rather than Mr Poyzer who makes those discretionary decisions.

Conclusion

[25] My determination is as follows. It is for the Council through the Chief Executive Officer to determine whether or not Mr Poyzer should continue exercising the discretion he has been exercising as a matter of fact in relation to “election to prosecute” matters. If it determines that he should then Mr Poyzer should be reclassified from Level 3 to Level 4. If it determines that ordinarily Mr Poyzer should not be exercising that discretion then Mr Poyzer’s current classification of Level 3 should remain unchanged. In this context I note that an occasional exercise of discretion on election to prosecute matters would not meet the criterion on which the parties are agreed and that a restoration of primary decision-making to the team leader would not preclude the Council from requiring Mr Poyzer to prepare a recommendation on the decision the team leader should make. However, irrespective of the Council’s decision in that regard, Mr Poyzer should receive back pay to reflect pay at the rate for a Level 4 classification for the period commencing at the time Mr Poyzer first raised a dispute over his proper classification level as revealed in the records of the parties. In the event that the parties are unable to agree on that matter I will conduct a further hearing to determine the proper period and/or proper amount of back pay. In the particular circumstances of this case I do not think it would be fair to require the Council to make back pay before the time that Mr Poyzer first claimed an entitlement to be reclassified to, or paid at, Level 4.

VICE PRESIDENT

Appearances:

Ms Sara of Australian Services Union for the applicant.

Mr P Welsby of The Corporation of the City of Adelaide T/A City of Adelaide for the respondent.

Hearing details:

2010.

Melbourne via video-link with Adelaide:

5 January.

2009.

Adelaide:

30 November.

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