Municipal Officers Association of Australia v The Shire of Wanneroo

[1985] FCA 406

Re: MUNICIPAL OFFICERS ASSOCIATION OF AUSTRALIA
And: THE SHIRE OF WANNEROO
No. WA 25 of 1984
Industrial Law

COURT

WESTERN AUSTRALIA
DISTRICT REGISTRY
INDUSTRIAL DIVISION
Toohey J.

CATCHWORDS

Industrial Law - breach of award - claim by applicant that employee of respondent Shire entitled under Local Government Officers (Western Australia) Award 1975 to payment as a Foreman (A Grade) when paid as Foreman (B Grade) - examination of definition of both positions in Award - consideration of distinction between direct supervision by a foreman and incidental supervision by a manager - principles relevant to fixing a penalty under Conciliation and Arbitration Act

Word and Phrases - "Foreman"

Conciliation and Arbitration Act 1904 s.119(1A)

Local Government Officers' (Western Australia) Award 1975 sub-cls.5(12)-(16), para. 6(7)(f)

HEARING

PERTH
#DATE 19:6:1985

ORDER

1. No penalty be imposed on the respondent.

2. The respondent pay to Victor Griffith Roberts the amount of $1,477.48.

JUDGE1

In this application the Municipal Officers Associatio n of Australia, an organisation within the meaning of the Conciliation and Arbitration Act 1904, seeks the imposition of a penalty on the respondent, the Shire of Wanneroo, for breach of the Local Government Officers' (Western Australia) Award 1975.

1. The alleged breach is a failure to pay Victor Griffith Roberts the rate of wages to which he was entitled under para.6(7)(f) of the Award as a Foreman (A Grade) between 23 February 1982 and 10 April 1985. The Association also seeks an order that the Shire pay to Mr. Roberts the amount of any underpayment. It was agreed between the parties that if there had been an underpayment, the amount due to Mr. Roberts was $1,477.48.

2. The issue between the parties is a fairly narrow one and it arises in this way. Clause 5 of the Award contains a number of definitions including those of "Head Foreman", "Foreman (B Grade)" and "Foreman (A Grade)". The Shire employed Mr. Roberts as a Foreman B Grade but the Association claims that he was entitled to be paid as a Foreman A Grade, the latter carrying a higher salary. Sub-clause 5(16) of the Award defines Foreman (A Grade) to mean "a Foreman other than a Foreman (B Grade) or a Head Foreman". Thus a person employed as a foreman who does not answer the description of Head Foreman or Foreman (B Grade) must be a Foreman (A Grade) and be paid as such.

3. Sub-clause 5(15) of the Award defines Foreman (B Grade) to mean:
   
   

"(a) an officer who supervises the work of a section of the outside workers of a Local Authority under the direction of the Head Foreman, or

(b) a Foreman of a Local Authority with a revenue of less than $200,000 per annum".

1. It was common ground that the Shire of Wanneroo has a revenue in excess of $200,000 a year so that para. (b) of the definition may be disregarded. That leaves, for relevant purposes, as a Foreman (B Grade), an officer who supervises the work of a section of the outside workers of a local authority under the direction of the Head Foreman. Sub-clause 5(14) defines "Head Foreman" to mean "a foreman placed in charge of not less than two other foremen". The issue between the parties has arisen because during the relevant period there was no-one who was employed in the classification of Head Foreman. Unless there were a Head Foreman, para. (a) of sub-cl.5(15) of the Award could not apply and, in the circumstances of this case, there could not be a Foreman (B Grade).

2. The Association did not contend that merely because there was no officer classified by the Shire as Head Foreman, there could not be a Head Foreman for the purposes of sub-cl.5(15). But the Association did argue that the Head Foreman must be properly described as such; in particular it contended that on the facts of the case Mr. Roberts could not be a Foreman (B Grade) because he was not an officer supervising the work of a section of outside workers under the direction of the Head Foreman. To understand this argument, some reference to the facts is necessary.

3. Mr. Roberts was engaged for the Parks and Gardens Department of the Shire and his position was that of Foreman (B Grade) (Reticulation). He was responsible for maintenance and repair work on irrigation installations connected with the Shire's parks and gardens. Within the Parks and Gardens department there were three Foremen (B Grade), of whom he was one, and a Foreman (A Grade). Immediately above the foremen was a Works Supervisor, John Barry Allen, above him a Deputy Superintendent, and above him a Superintendent. In July 1983 Mr. Allen left the Shire. The person then holding the position of Foreman (A Grade) was appointed temporary Works Supervisor. However in September 1983 there was a rearrangement of the staff structure of the Parks and Gardens department. The position of Works Supervisor was abolished and the four foremen became responsible to the Deputy Superintendent who in turn was responsible to the Superintendent. Daivd Fraser Sears was appointed Superintendent and Kimberly Grant Trotter was appointed Deputy Superintendent.

4. The Award does not contemplate a position of Works Supervisor by that name. Sub-clause 5(12) defines a "Works Overseer" to mean "the chief officer who is responsible to a superior officer for the supervision of all outside general construction and maintenance work". Although Mr. Allen was paid according to the classification appropriate for a Works Overseer, it seems that this title was designed more for work of an engineering nature. Sub-clause 5(13) contains a definition of "Supervisor of Parks and Recreational Facilities" in terms reasonably appropriate to the duties of Works Supervisor; but it is unnecessary to reach a conclusion as to whether Mr. Allen and his temporary successor were each Supervisor of Parks and Recreational Facilities. The question rather is whether in each case those persons and Mr. Trotter, the Deputy Superintendent, answered the description of Head Foreman. The Association accepted that Mr. Roberts was an officer who supervised the work of a section of the outside workers of the Shire but it said that he did not do so under the direction of a Head Foreman, hence that he should have been paid as a Foreman (A Grade).

5. The Award does not define foreman save that sub-cl.5(16) which defines Foreman (A Grade), a definition to which reference has already been made, contains this sentence:
   
   

"The term 'foreman' in this sub-clause and sub-clause (15) of this clause shall also include the term 'Curator' where such term is used to describe a foreman employed in parks, gardens and recreation grounds".

1. The dictionary definition of "foreman" is not helpful. Some assistance may be gained from comments made by Watson J. in the Industrial Commission of New South Wales in the Foreman and Supervisors Reference Case, which comments he repeated in an application by the Association of Foremen and Supervisors for an Award for Senior Positions in the Brewing Industry - No. 207 of 1980. Watson J. said:
   
   

"It is a mistaken view if it is thought that an award can be made within the scope of the Committee's constitution or, for that matter, the constitution rule of the association which is also relevant, for superintendents, supervisors, foremen or others as such. The words 'who exercise supervisory powers and duties in respect of other employees engaged in manufacturing processes' are restrictive in that respect.

Clearly, a superintendent of a plant or section of a plant or a foreman who directly supervises leading hands and process and other workers engaged in the relevant manufacturing process can be embraced.

However, a superintendent, for example, or other like classification whose primary function is management and who may only indirectly or incidentally supervise such employees, is not embraced. To take the illustrations further, a senior foreman or a foreman, both concerned directly with supervision would fall within the scope of the Committee's constitution even though the senior foreman may represent a second level of supervision. However, a manager or supervisor would not be included simply because incidental to his main function, direct supervisors may be responsible to him or be in fact supervised by him, or merely because he may have the authority to give instructions to employees directly and may from time to time do so, bypassing his direct supervisors".

1. What emerges from this passage, I think, is the notion of direct supervision by a foreman and the further notion that someone who is a manager or supervisor is not a foreman simply because, in the course of his duties, he may supervise others. If these concepts are transposed to the position of Head Foreman, it follows that such a person is engaged in the supervision of Foremen (A Grade) and (B Grade) and that this is his primary function. Some force is added to this conclusion by the language of sub-cl.5(15) of the Award which speaks of an officer supervising the work of a section of the outside workers under the direction of the Head Foreman (emphasis added).

2. There is no doubt that Mr. Roberts was responsible to Mr. Allen and later to Mr. Trotter but it does not follow that he supervised the work of his section under their direction. The evidence indicates, particularly in the case of Mr. Trotter, that he did not.

3. Two job specifications were tendered relating to Mr. Roberts' position. The first was in force at the time of his engagement and the second came into operation about November 1983. Both specifications use the expression "as directed" in relation to various duties and it is apparent that in the case of the first specification, this means directed by the Works Supervisor and, in the case of the second specification, that it means directed by the Deputy Superintendent. But it does not follow that Mr. Roberts was supervising the work of his section under the direction of these officers in the sense contemplated by sub-cl.5(15) of the Award for, in my view, the sub-clause contemplates a relationship between the Head Foreman and the other foremen roughly comparable to that between the foremen and those working in their sections. The job specifications for the Works Supervisor and Deputy Superintendent show a wide range of responsibilities and duties including responsibilities and duties of an administrative nature which make it inappropriate to consider either as the Head Foreman. Indeed Mr. Allen and Mr. Trotter each agreed that he would not describe his job as that of a foreman or Head Foreman.

4. In my view the Award contemplates a position of Head Foreman under whose direction the Foremen (A Grade) and (B Grade) supervise their particular sections or groups. Neither the position of Works Supervisor nor that of Deputy Superintendent may fairly be equated with that position. It follows then that Mr. Roberts did not answer the description of Foreman (B Grade) and was therefore required to be paid as a Foreman (A Grade).

5. Counsel for the Association said that although the breach complained of occurred between February 1982 and April 1985, the Association accepted that there was but a single breach. That concession was fairly made, having regard to sub-s.119(1A) of the Conciliation and Arbitration Act. This is not a case in which there was a flagrant breach of an award or a conscious attempt to pay an employee less than his entitlement. There was a genuine difference between the Association and the Shire as to the meaning of the Award and I accept the statement by counsel for the Shire that this is in the nature of a test case. In the circumstances a penalty is inappropriate. Crosland v. WR Rolfe and Sons Pty. Ltd. (unreported decision of Australian Industrial Court, delivered 9 December 1976).