Paroo Shire Council v Mason
[2024] ICQ 11
•7 May 2024
INDUSTRIAL COURT OF QUEENSLAND
CITATION:
Paroo Shire Council v Mason [2024] ICQ 11
PARTIES:
PAROO SHIRE COUNCIL
(appellant)
v
BARBARA MASON(respondent)
FILE NO:
C/2023/39
PROCEEDING:
Appeal
DELIVERED ON:
7 May 2024
DELIVERED AT:
Brisbane
HEARING DATE:
2 May 2024
MEMBER:
Davis J, President
ORDER:
1. The answer given to the question is set aside.
2. The application is remitted to the Queensland Industrial Relations Commission to be determined according to law.
3. There is no order as to the costs of the appeal.
CATCHWORDS:
INDUSTRIAL LAW – AWARDS – CLASSIFICATION OF EMPLOYEES – where the respondent was an employee of the appellant – where the appellant is a local authority – where the respondent was Tourism Team Leader in the Council – where the Queensland Local Government Industry (Stream A) Award – State 2017 (the Award) applied to the appellant’s employees – where an employee is exempted from the Award if the employee is a “senior officer” – where a “senior officer” includes a “department head” – where a “department head” is “the principal decision maker or manager of a department or operationally distinct unit or part of the local government comprising a major function or program” – where the Queensland Industrial Relations Commission (the Commission) held the respondent was not a “department head” – whether the respondent was “the principal decision maker” as Tourism Team Leader – whether the respondent was a “manager” – whether the “Tourism Team” was a “department” – whether the Tourism Team was an “operationally distinct unit or part of the local government” – whether the Commission addressed the right questions – whether remittal was necessary.
LEGISLATION:
Local Government Act 2009
CASES:
Mason v Paroo Shire Council (No 2) [2023] QIRC 273
REPRESENTATION:
D Freeburn instructed by Clayton Utz for the appellant
N Henderson, Secretary, Queensland Services, Industrial Union of Employees for the respondent
The respondent, Ms Barbara Mason, was an employee of the appellant, Paroo Shire Council (the Council).
Ms Mason sought benefits to which she is entitled if her employment with the Council was subject to the Queensland Local Government Industry (Stream A) Award – State 2017 (the Award). However, Ms Mason is exempted from the award if she was employed as a “senior officer”. That question was determined in her favour by Industrial Commissioner Hartigan, as the Deputy President then was, sitting in the Queensland Industrial Relations Commission.[1] From that decision the Council appeals.
[1]Mason v Paroo Shire Council (No 2) [2023] QIRC 273.
Background
By cl 4.1 and 4.2 of Division 2, Part 1 of the Award:
“4. Coverage
4.1Coverage
(a)See clause 4 of Division 1 – provisions with common application.
(b)Subject to clause 4.2, this Section covers local government employees, other than those covered by another Section in this Division or another Queensland Local Government Industry (Stream B) or (Stream C) Award, engaged in the provision of administrative, clerical, technical, professional, community service, supervisory and managerial services.
4.2Exemption 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.
(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 fact 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 or 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.
(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 principal 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 only to the local government’s policy or 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.”
Ms Mason contended before the Commission that the Council did not comply with cl 4.2(b). That issue was decided against her.[2]
[2]Mason v Paroo Shire Council (No 2) [2023] QIRC 273 at [36].
Therefore, the only remaining issue was whether she was a “senior officer”. Apart from the definition in cl 4.2(c), there are other definitions[3] which define a “senior officer” and “department head”. Those definitions are different to the definitions in cl 4.2.
[3]Division 2 – Section 1 of the Award.
However, cl 4.2(c) provides “For the purposes of this clause,[4] the term senior officer covers the following positions”. Therefore, whatever other definitions may be present in the Award, the definitions which are relevant to cl 4.2 are those in cl 4.2(c).
[4]Emphasis added.
It was common ground both before the Commission and on appeal that the respondent was only a “senior officer” if she was a “department head”. Ms Mason, at relevant times, held the position of Tourism Team Leader. In summary, the Council’s case is that:
(i)the Tourism Team is a department or operationally distinct unit or part of the local government comprising a major function or program; and
(ii)Ms Mason was either the manager of the Tourism Team or the principal decision maker.
The decision of the Commission
After discussing the evidence, the Industrial Commissioner directed herself:
“[68]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.”
Then the Industrial Commissioner answered that question in favour of Ms Mason by reasoning:
“[69]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.
[70]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.
[71]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.
[72]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.
[73]As noted above, I am satisfied that Ms Mason’s interview panel did not accord with s 196 of the LG Act[5] 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.
[74]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’.”
[5]A reference to the Local Government Act 2009
The proper construction of cl 4.2(c)
As already observed, it was common ground that if Ms Mason was to be caught by the exemption in cl 4.2, she must be a “senior officer” because she is the “department head”.
The definition of “department head” has two limbs, subparagraph (i) (limb 1) and subparagraph (ii) (limb 2). The two limbs are not cumulative in effect. If an employee falls within the description of limb 1 or limb 2, the employee is a “department head” and is therefore a “senior officer” and consequently not subject to the Award.
Limb 1 has two parts. Firstly, it identifies the role of the employee. Secondly, it identifies particular parts of the local government organisation. If the employee has a prescribed role within a prescribed part of the local government, then the employee is a “department head” and therefore a “senior officer”.
Limb 1 identifies the role of the employee as either:
(i)the principal decision maker; or
(ii)the manager.
It identifies the part of local government as either:
(i)a department; or
(ii)an operationally distinct unit or part of the local government comprising a major function or program.
It is unclear whether the phrase “an operationally distinct unit” is limited by the words “comprising a major function or program” or whether those words only limit the phrase “part of the local government”. It is unnecessary to determine that aspect of the construction of cl 4.2(c) of the Award.
Limb 2 is of less importance to the current appeal as the Council says Ms Mason falls within limb 1. It does not rely upon limb 2 as an independent basis for exclusion. However, the Award must be read as a whole and the Council submits that there are features of limb 2 which inform the proper construction of limb 1.
Limb 2, like limb 1, defines the employee by reference to role. However, the role must be one that is independent, “subject only to the local government’s policy or the overriding administrative review of the chief executive officer”. Limb 1 also requires a degree of independence. The employee must be the “manager” or the “principal decision maker”. However, it does not depend upon any particular administrative relationship between the employee and the Chief Executive Officer (CEO). Limb 2 effectively requires independence from all administrative restraints other than those imposed by “the local government’s policy” or the CEO.
The appeal grounds
The grounds of appeal as amended are:
“By its decision dated 20 September 2023, the Commission made errors of law that vitiated the Commission’s purported exercise of power.
The errors of law made by the Commission are set out as follows:
1) The Commission failed to properly consider a relevant consideration - that is, Limb 1 to the definition of 'department head' in cl 4.2(c) of section 1 to division 2 of the Queensland Local Government Industry (Stream A) Award – State 2017 ('the Award'). Specifically, the Commission failed to properly consider whether Ms Mason was 'the principal decision maker or manager of a department or operationally distinct unit or part of the local government comprising a major function or program' ('Ground 1’).
Particulars of Ground 1 are as follows:
a)The Commission's decision turned upon whether Ms Mason's role as 'tourism team leader' was that of a 'senior officer' in the sense contemplated by cl 4.2. To answer that question, it was necessary to consider whether the position met the definition of 'department head' in cl 4.2(c).
b)Limbs 1 and 2 of the definition of 'department head' in cl 4.2(c) are presented as alternatives – that is, an officer will be a department head, and therefore a 'senior officer', if they meet either Limb 1 or Limb 2. Thus, the Tribunal was required to consider both Limb 1 and 2 separately.
c)Limb 1 required consideration of, firstly, whether Ms Mason was 'principal decision maker or manager' of the tourism team and, secondly, whether the tourism team was 'a department or operationally distinct unit or part of the local government comprising a major function or program.'
d)The Commission failed to properly consider either of the aforementioned matters.
e)The error of law identified in Ground 1 vitiated the Commission's purported exercise of power because the Commission forming a satisfaction or non-satisfaction that Ms Mason's position met the Limb 1 definition of 'department head' in cl 4.2(c) of section 1 to division 2 of the Award was necessary to properly determine the question for arbitration.
2) The Commission misconstrued the definition of 'department head' in cl 4.2(c) of section 1 to division 2 of the Award as necessarily requiring that Ms Mason have the capacity to act independently subject only to review or supervision by the chief executive officer. This was an error because Limb 1 to the definition of 'department head' in cl 4.2(c) of section 1 to division 2 of the Award' does not include any requirement of this kind ('Ground 2’).
Particulars of Ground 2 are as follows:
a)The Appellant repeats and relies upon the particulars identified above for the purposes of Ground 1 at subparagraphs (a) and (b).
b)There is no requirement in Limb 1 that Ms Mason have the capacity to act independently subject only to review or supervision by the chief executive officer. That requirement is unique to Limb 2.
c)Nevertheless, the Commission based its finding that Ms Mason was not a 'department head' upon the following:
i)the fact that Ms Mason, in her role as tourism team leader, reported to the chief communications officer (and not directly to the chief executive officer);
ii)that Ms Mason's position was at the third tier of Council's corporate structure - that, is below the chief executive officer (first tier) and the chief communications officer (second tier); and
iii)that Ms Mason's position was a part of Council's 'Executive Leadership Team'.
d)While the aforementioned matters were arguably relevant to the question of whether Ms Mason was in a 'department head' position under Limb 2, they were irrelevant to the inquiry under Limb 1.
e)The Commission's reasoning in this regard discloses a misunderstanding of the Award. Specifically, it discloses that the Commission misconstrued the definition of 'department head' in cl 4.2(c) as necessarily requiring that Ms Mason have the capacity to act independently subject only to review or supervision by the chief executive officer.
f)The error of law identified in Ground 2 vitiated the Commission's purposed exercise of power because it caused the Commission to fail to properly consider the relevant consideration identified in Ground 1.”
These grounds of appeal are overly complicated. The Council’s argument is quite simple.
By Ground 1, it is contended that the Industrial Commissioner conflated the two limbs of the definition and failed to consider the various alternative elements of limb 1, critically:
(i)whether Ms Mason was a manager or principal decision maker; and
(ii)whether the Tourism Team was a department or an operationally distinct unit, or part of the local government comprising a major function or program.
By Ground 2, it is contended that the Industrial Commissioner erred by conflating the consideration required by limb 2, namely that the employee only be under the control of the CEO, with the requirements of limb 1.
Unusually in an appeal where the central question is one of statutory construction, the appellant seeks to have the case remitted to the Commission to be reheard. This course is pressed as the Council submits that relevant findings were not made.
Consideration
Some of the evidence before the Commission was not controversial. Ms Mason was Tourism Team Leader. The corporate structure of the Council is such that Ms Mason reported to the Chief Corporate Officer (CCO). The CCO reported to the CEO, who ultimately reported to the elected Council. Ms Mason was the senior person within the Tourism Team and was allocated a budget.
As earlier observed,[6] limb 1 has two parts. Before turning to the Commission’s determination of the first part (role of the employee), it is convenient to turn to the second, namely consideration of the part of the local government to which Ms Mason’s role attaches.
[6]Set out at paragraph [11] of these reasons.
In order to consider and determine that issue, the Commission firstly needed to determine whether the “Tourism Team” was a “department”. There is no specific consideration of that issue.
If there had been a decision that the Tourism Team was a “department”, then it would not have been necessary to consider the second issue as to whether the Tourism Team was an “operationally distinct unit or part of the local government comprising a major function or program”. Given that there was no finding that the Tourism Team was a “department”, the Commission’s handling of this second aspect needs to be considered.
The Commission did not specifically determine whether the “Tourism Team” was an “operationally distinct unit or part of the local government”. The findings that were made were:
(i)“ultimate operational responsibility” for the Tourism Team fell to the CCO;[7]
(ii)Ms Mason was in the “third tier” on the corporate structure, below the CEO (first tier) and the Chief Financial Officer, the COO and the CCO (second tier);[8] and
(iii)Ms Mason was not a member of the executive leadership team.[9]
[7]Mason v Paroo Shire Council (No 2) [2023] QIRC 273 at [69].
[8]At [70].
[9]At [72].
Because the Commission did not follow precisely the words of cl 4.2, the findings are, with respect, unclear. The fact that Ms Mason was answerable to the CCO does not of itself mean that the Tourism Team was not an “operationally distinct unit or part of the local government”. It could be that the finding in paragraph [69][10] was that, because the CCO had “ultimate operational responsibility”[11] and the CCO was not within the “Tourism Team”, the Tourism Team was not an “operationally distinct unit or part of the local government”. It could also be tantamount to a finding relevant to the first part of limb 1, namely that Ms Mason was not the “principal decision maker or manager” of the Tourism Team. It is just not clear what the Commission found.
[10]Set out at paragraph [9] of these reasons.
[11]Subject to the CEO.
There is not an express finding that the “Tourism Team” is “part of the local government comprising a major function or program”, although there is a finding that tourism “is an important function”.[12] That finding though is at the part of the reasons where the Commission is making general findings. It is not until paragraph [68][13] that the Commission turns to specifically consider the two limbs of the definition of “department head”.
[12]At [66].
[13]Set out at paragraph [8] of these reasons.
As already observed, the first part of limb 1 concerns the role of the employee. There are two questions, namely whether Ms Mason is “the principal decision maker” or whether she is “the manager”.
Again, the findings do not follow the terms of the definition. Even if the findings concerning Ms Mason answering to the CCO could amount to a finding that she was not the “principal decision maker” of the Tourism Team, there is no finding as to whether she was the “manager”. Further, there is no attempt in the judgment to identify the concept of “manager” and therefore questions arise as to whether the Commission properly identified the question which limb 1 called to be answered.
There are errors in the Commission’s approach. There are insufficient factual findings to enable me to conclude that Ms Mason is not a “department head” and therefore not a “senior officer”. As already observed, the Council seeks an order that the case be remitted to the Commission. It does not submit that it can, on the material, seek findings on appeal that Ms Mason is a “department head” and consequently a “senior officer” and therefore excluded from the Award.
The case will have to be remitted to the Commission. No submissions were made as to whether the matter should be heard by the Deputy President (as she now is) or some other member of the Commission. I shall make no order as to that issue and leave the matter of listing to the Vice-President. If some issue arises which a party wishes to raise, they can do so in the Commission.
No party took any issue in relation to costs and so there should be no order as to costs of the appeal.
Orders
1.The answer given to the question is set aside.
2.The application is remitted to the Queensland Industrial Relations Commission to be determined according to law.
3.There is no order as to the costs of the appeal.