Queensland Services, Industrial Union of Employees v Isaac Regional Council
[2016] QIRC 107
•17 October 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Queensland Services, Industrial Union of Employees v Isaac Regional Council [2016] QIRC 107 |
PARTIES: | Queensland Services, Industrial Union of Employees v Isaac Regional Council |
CASE NO: | D/2015/95 |
PROCEEDING: | Notification of Industrial Dispute |
DELIVERED ON: | 17 October 2016 |
HEARING DATE: | 29 September 2016 |
HEARD AT: | Brisbane |
MEMBER: | Deputy President Kaufman |
| ORDER: | The questions referred to me for arbitration are answered as follows: b(i) - yes; |
| CATCHWORDS: | INDUSTRIAL LAW - INDUSTRIAL DISPUTE - Interpretation of Award - whether a graduate is defined only as someone having a university degree - where a graduate has no relevant experience - whether an employee appointed above a specified level is not entitled to be considered a graduate - whether an employee appointed above a specified level is not able to progress through the general salary scale as per the graduate progression arrangements Industrial Relations Act 1999, s 747 |
| APPEARANCES: | Mr. N. Henderson for the notifier. |
Reasons for Decision
Background
By operation of s 747 of the Industrial Relations Act 1999 ('the Act') the Queensland Local Government Officers' Award 1998 (C'th) ('the award') is taken to be an award of this commission and is binding upon the Isaac Regional Council and the Queensland Services, Industrial Union of Employees ('QSU').
The Isaac Regional Council Certified Agreement 2012 was made on 27 July 2012 and expired on 30 June 2014, but continues in operation by force of s 164 of the Act. It governs the terms and conditions of employment of employees, who are called officers, of the council. It is to be read in conjunction with the provisions of the award, which continues to bind the parties despite the making of the Queensland Local Government Industry Award - State 2014. The agreement prevails where there is an inconsistency between it and the award, whereas the award operates where the agreement is silent.
A dispute has arisen between the parties as to the progression through the General Salary Scale of 3 year relevant degree holders, who utilize that qualification to undertake professional work within the technical stream, as well as 4 year relevant degree holders who are required to undertake work within the technical stream.
The dispute
The QSU has conveniently set out the nature of the dispute in its written submissions. I adopt paragraphs 1 to 8 of the QSU's submissions:
[1] This dispute concerns the operation of the graduate progression provisions embedded in the classification definitions of the Queensland Local Government Officers Award 1998 (’the 1998 Award').
[2] There are three classification streams in the Award attached to a unified eight level pay scale.
[3] The streams are Administration Services, Community and Environmental Services and Technical Services. The graduate progression provisions feature in each of the three classification streams of the Award in almost identical terms.
[4] These particular provisions enable what is effectively an accelerated progression through the classification range for employees with the necessary qualifications and a job which requires those qualifications
[5] The question is whether all such employees classified at the levels which contain the special progression arrangement are always entitled to the progression? The employees concerned in this dispute are employed as Planners with the respondent.
[6] The respondent contends that in the circumstances present in relation to their employment they are not so entitled, because they have not been employed as graduates. The respondent says that in the case of two of the employees, they were employed as Town Planners in positions as “technical specialists" at Level 4 and not as graduates. On the respondent’s case, because the employees were appointed to Level 4, they are not then entitled to progression as a graduate but would be entitled to progress in accordance with clause 8.5 of the Award.
[7] It is not in dispute between the parties that the employees in question are degree qualified and employed in positions which require them to utilise their qualification to undertake professional work within the stream. The dispute is whether they are entitled to be treated as graduates for the purpose of progression through the classification range.
[8] The applicant's case is that the provisions within the various levels which relate to graduates are specific provisions which apply to graduates (employees who fit the definition) and operate instead of any more general provision which would otherwise have effect.
The individuals
The circumstances of three individual people who were all appointed as town planners were used for the purpose of formulating questions as to how the progression through the salary scale should operate. They all hold relevant four year degrees.
Nicole Hartney was appointed as a level 3 cadet town planner on 22 November 2010. She progressed to level 4 on 23 November 2012.
Emily Dwyer and Joseph Kirkwood were appointed as level 4 town planners on 16 April 2013.
The questions to be answered
The parties posed the following questions to be the subject of this arbitration:
a. Whether any of the employees [identified] are 'graduates' as contemplated by Schedule A - Technical Services Stream of the Queensland Local Government Offices' Award - 1998, and as such, entitled them as an Award minimum to progress from Level 4.3 to Level 5.1?
b. If these employees are 'graduates', as contemplated by Schedule A - Technical Services Stream of the Queensland Local Government Officers' Award - 1998, then whether;
i. the minimum award salary entitlement provides for a minimum commencement level at the 'appointment' level (Level 3 for the employees in question, as they poses [sic] a relevant 4 year degree); and
ii.if the 'graduate' is initially employed by Council at a classification level higher than the Award minimum appointment level for the 'graduate' as per 6(b)(i), (in this case level 4) does this entitle the graduate to progress to the first increment of Level 5 after having completed two years' service post that initial employment at Level 4?
After some discussion between the bench and the parties, it was accepted that the answer to question b(i) is "Yes". Thus, what is required to be answered by this arbitration are questions a and b(ii).
The relevant provisions of the award
It is necessary to set out in some length several provisions of the award.
Clause 7 of the award stipulates the general salary scale:
"7. GENERAL SALARY SCALE
7.1 The following salary scales will apply to officers not covered by clause 6 of this award who are classified in terms of the definitive criteria set out in Schedule A.
Band Total rate
$
Level 1 30,770
31,283
32,104
32,873
33,642
34,306
Level 2 35,085
35,854
36,623
37,132
Level 3 37,900
38,388
39,157
39,926
Level 4 40,694
41,463
42,128
42,897
Level 5 43,665
44,330
45,099
Level 6 46,380
47,661
48,943
Level 7 50,224
51,505
52,786
Level 8 54,324
55,861
57,399
58,842
60,285"
The rates are out of date, but the actual dollar amounts are irrelevant to this dispute. The current applicable salary scales are contained in the certified agreement in essentially similar terms.
Clause 8.1 of the award states:
"8.1 Officers will be classified in accordance with the classification definitions contained in Schedule A".
Clause 8.5 of the award deals with increments and progression through the salary scales:
"8.5 Salary increments
Movement to the next highest salary point within a level will be by way of annual increment subject to the officer having given satisfactory service for the prior twelve months …".
Schedule A – Division Description
"TECHNICAL SERVICES STREAM
LEVEL 1
Characteristics of the level
At the first level of the Technical Services stream, officers work under close direction and undertake routine activities which require the practical application of basic skills and techniques.
General features at this level consist of performing clearly defined activities with outcomes being readily attainable and clearly defined. Officers’ duties at this level will be closely monitored with instruction and assistance being readily available.
Freedom to act is limited by standards and procedures. However, with experience, officers at this level may have sufficient freedom to exercise judgement in the planning of their own work within those confines.
Positions initially at this level will involve officers in extensive on-the-job training including familiarisation with the goals and objectives of the work section.
Officers will be responsible for the timeliness of their work and required to use basic written and verbal communication skills.
Supervision of other staff is not a feature at this level. However, an experienced officer may have technical oversight of a minor works activity techniques.
Requirements of the job
Some or all of the following are needed to perform work at this level:
Skills, Knowledge, Experience, Qualifications and/or Training
• a developing knowledge of Council’s engineering and works functions and operation;
• basic knowledge of work area requirements (e.g. construction, maintenance and/or horticulture);
• a developing knowledge of work practices and policies of the relevant work area;
• no formal qualifications required at this level;
• as a training level, respondents are expected to offer substantial on-the-job training;
• it is desirable that officers are studying for an appropriate certificate
Responsibilities
To contribute to the operational objectives of the work area, a position at this level may include some of the following inputs or those of a similar value:
• undertake routine activities;
• apply established practices and procedures;
• where prime responsibility is for the technical oversight of work performed by outside employees, officers at this level may be required to arrange a minor works activity within established methods as part of the training process;
• where the prime responsibility lies in a technical/drafting field, trainee technical officers at this level apply established practices and procedures in the conduct of a range of technical activities.
Organisational Relationships
• works under direct supervision;
• experienced officers may have technical oversight of minor works activities.
Extent of authority
• work outcomes are closely monitored;
• project completion according to instructions and established procedures;
• no scope for interpretation.
LEVEL 2
Characteristics of the level
At the second level of the Technical Services stream, officers work under regular direction within clearly defined guidelines and undertake a range of practical operational activities requiring the application of acquired skills and knowledge.
General features at this level consist of performing functions which are defined by established routines, methods, standards and procedures with limited scope to exercise initiative in applying work practices and procedures. Assistance will be readily available. Officers may be responsible for the operational supervision of minor works programmes and/or may contribute specific knowledge and/or specific skills to the work of the Council. In addition, officers may be required to assist senior officers with major projects.
Officers will be expected to have an understanding of work practices and procedures relevant to their work area and may provide assistance to lower classified officers concerning established practices and procedures. In addition, officers at this level may be required to assist in establishing the objectives of the minor works project supervised.
Officers will be responsible for managing time, planning and organising their own work and that of subordinate employees. Supervisors at this level could be required to resolve minor work related issues within the project supervised.
This level may be considered the first level of supervision for minor works programmes/projects.
This level is the entry level for inexperienced officers who have completed an appropriate certificate and are required to undertake work related to that certificate.
The 4th incremental step of this level is the appointment level for graduates with a relevant three year Degree who utilise that qualification to undertake professional work within this stream. Graduates will advance to the first step of level 3 after 12 months’ satisfactory service.
Supervisors may also be appointed to this level if they have suitable experience and/or a post trade certificate. (Officers where possible should be encouraged to complete the appropriate certificate.)
Requirements of the job
Some or all of the following are needed to perform work at this level:
Skills, Knowledge, Experience, Qualifications and/or Training
• basic skills in oral and written communication with clients and other members of the public;
• knowledge of established work practices and procedures relevant to the work area;
• understanding of basic computing concepts;
• knowledge of policies and regulations relating to the work area;
• understanding of clear but complex rules;
• developing knowledge of statutory requirements relevant to the work area;
• application of techniques relevant to the work area;
• no formal qualifications required;
OR appropriate post-trade certificate relevant to the work area;
OR entry point for three year Degree/Associate Diploma/appropriate certificate without experience;
OR qualifications accepted as both relevant and equivalent;
OR will have attained in previous appointments or service an equivalent level of expertise and experience to undertake the range of activities required;
OR appropriate on-the-job training and relevant experience.
Responsibilities
To contribute to the operational objectives of the work area, a position at this level may include some of the following inputs or those of a similar value:
• undertake a range of practical operational activities requiring the application of established work practices and procedures;
• the limited application of initiative and/or judgement within clearly established procedures and/or guidelines;
• achieve outcomes which are clearly defined;
• where prime responsibility is to supervise outside employees:
(1)plan and co-ordinate the activities of employees within a single works function of Council;
(2)supervise the day-to-day operation of a minor works project;
(3) responsible for a minor works project/programme;
• where prime responsibility lies in a technical field:
(1)apply established practices and procedures in the conduct of a range of technical activities including the fields of construction, engineering, survey and horticulture;
(2)responsible for a minor project.
Organisational relationships
• works under regular supervision;
• where relevant, supervises minor works programmes/projects.
Extent of authority
• work outcomes monitored;
• freedom to act within established guidelines;
• plan and co-ordinate work for minor work programmes;
• solutions to problems may require the exercise of limited judgement, with guidance to be found in procedures, precedents, guidelines. Assistance available when problems occur.
LEVEL 3
Characteristics of the level
At the third level of the Technical Services stream, officers work under general direction in the application of procedures, methods and guidelines which are well established. However, graduates initially appointed at this level will be under the direct supervision of a senior officer.
General features of this level involve solving problems of limited complexity by using knowledge, judgement and work organisational skills acquired through qualifications and/or previous work experience. Assistance is available from senior officers. Officers may receive instruction on the broader technical aspect of work. In addition, officers may provide assistance to lower classified officers. Officers may be involved in a range of work activities in a specialised area and/or the undertaking of a number of minor works within the total works programme. Positions at this level also allow officers the scope for exercising initiative in the application of established work procedures.
Positions at this level may require the officer to establish goals, objectives and outcomes for their own particular works programme.
Officers will be responsible for managing and planning their own work and that of subordinates. Officers may be required to deal with formal disciplinary issues within the work area.
Supervisors may be required to supervise more than one component of the works programme. They should have a basic knowledge of personnel practices and be able to assist subordinate employees with on-the-job training.
Three year Degree holders shall progress to this level after the completion of 12 months’ service at the top of level 2. This level is the appointment level for any graduate with a relevant four year Degree who is required to undertake work within this stream. Graduates shall advance to the 3rd year incremental step after 12 months’ service and shall progress to the 1st step of level 4 after a further 12 months’ service.
Officers with certificate qualifications shall be advanced to this level once they have obtained the appropriate qualification and have had relevant satisfactory experience and undertake work related to the responsibilities under this level.
Requirements of the job
Some or all of the following are needed to perform work at this level:
Skills, Knowledge, Experience, Qualifications and/or Training
• thorough knowledge of work activities performed within the work area;
• sound knowledge of operational methods of the work area;
• may utilise professional and/or technical knowledge;
• ability to apply computing concepts;
• working knowledge of statutory requirements relevant to the work area;
• entry level for four year Degree in the relevant discipline;
OR entry level for three year Degree plus graduate diploma in the relevant discipline;
OR Associate Diploma with experience;
OR three year Degree plus one year professional experience in the relevant discipline;
OR appropriate certificate with relevant experience;
OR attained through previous appointments and/or study an equivalent level of expertise and experience to undertake the range of activities required.
Responsibilities
To contribute to the operational objectives of the work area, a position at this level may include some of the following inputs or those of a similar value:
• undertake responsibility for various activities in a specialised area and/or components of the works programme;
• assist in a range of functions and/or contribute to interpretation of matters for which there are no clearly established practices and procedures although such activity would not be the sole responsibility of the officer;
• where prime responsibility lies in a “professional” field under direct supervision:
(1)officers may undertake some minor phase of a broad or more complex assignment;
(2)provide assistance to senior officers;
• where prime responsibility is to supervise the work of outside employees, supervision may extend to several elements of the work:
(1)plan and co-ordinate minor works;
(2)exercise responsibility for a number of minor works and determine objectives for the functions under their control;
• where the prime responsibility lies in a technical field, officers at this level:
(1)perform moderately complex functions in various fields including construction, engineering surveying and horticulture;
(2)assist and review work done by subordinate officers;
• at this level there is scope for exercising initiative in the application of established work practices.
Organisational relationships
• graduates work under direct supervision;
• works under general supervision;
• operates as a member of a professional team;
• supervision of other employees.
Extent of authority
• may set outcome/objectives for specific projects;
• graduates may receive instructions concerning technical matters;
• freedom to act within defined established practices;
• problems can usually be solved by reference to procedures, documented methods and instructions. Assistance is available when problems occur.
LEVEL 4
Characteristics of the level
At the fourth level of the Technical Services stream, officers at this level work under general direction in functions that require the application of skills and knowledge appropriate to the work. Guidelines and work practices are generally established.
General features at this level require the application of knowledge and skills which are gained through qualifications and/or previous experience in the discipline. Officers will be expected to contribute knowledge in establishing programmes and/or projects in the appropriate work related field. In addition, officers at this level may be required to supervise projects or a part of the total works programme of a complex nature.
Positions may involve a range of work functions which could contain a substantial component of supervision or require officers to provide specialist expertise/advice in their relevant discipline.
Officers require skills in managing time, setting priorities, planning and organising own work and that of subordinate staff where supervision is a component of the position, to achieve specific objectives.
Officers will be required to set outcomes and further develop work methods where general work practices are not defined.
Graduates will progress to the first incremental step of this level once two years’ service at level 3 is completed and will progress to the 3rd incremental step following an additional year of service.
Requirements of the job
Some or all of the following are needed to perform work at this level:
Skills, Knowledge, Experience, Qualifications and/or Training
• knowledge of statutory requirements relevant to work areas;
• knowledge of section programmes, policies and activities;
• sound discipline knowledge gained through experience, training or education;
• knowledge of the role of departmental structures and/or service functions;
• specialists require an understanding of the underlying principles in the relevant disciplines;
• relevant four year Degree with two years’ relevant experience;
OR three year Degree with three years of relevant experience;
OR Associate Diploma with relevant experience;
OR lesser formal qualifications with substantial years of relevant experience;
OR attained through previous appointments, service and/or study an equivalent level of expertise and experience to undertake the range of activities required.
Responsibilities
To contribute to the operational objectives of the work area, a position at this level may include some of the following inputs or those of a similar value:
• undertake activities which may require the officer to exercise judgement and/or contribute critical knowledge and skills where procedures are not clearly defined;
• perform duties of a specialised nature requiring the development of expertise over time or previous knowledge;
• identification of specific or desired performance outcomes;
• where prime responsibility lies in a “professional” field officers at this level:
(1)discuss techniques, procedures and/or results with clients on straight forward matters;
(2)lead a team within a works programme;
• where the prime responsibility is to supervise the work of outside employees, officers at this level:
(1)exercise responsibility for work groups including the completion of work assignments, standards of work quality and/or compliance with regulations, codes and specifications;
(2)assist senior officers with the establishment of work programmes of a complex nature;
(3)responsible for a part of the works programme budget;
• where the prime responsibility lies in a technical field, officers at this level:
(1)undertake projects which impact on the sections and/or department’s programmes;
(2)carry out a variety of activities in the field of technical operation requiring initiative and judgement in the selection and application of established principles, techniques and methods.
Organisational relationships
• works under general supervision;
• supervises employees, contractors and/or other subordinate employees.
Extent of authority
• require to set outcomes within defined constraints;
• provide technical/professional advice;
• freedom to act governed by clear objectives and/or budget constraints;
• solutions to problems generally
LEVEL 5
Characteristics of the level
At the fifth level of the Technical Services stream, officers are subject to general direction from senior officers. Officers undertake a range of functions requiring the application of a high level of knowledge and skills to achieve results in line with departmental and/or Council goals. Officers adhere to established work practices. However, they may be required to exercise initiative and judgement where practices and directions are not clearly defined.
General features at this level indicate involvement in establishing sectional/departmental work programmes and procedures. Positions will include a range of work functions and may involve the supervision of a section or, in the case of small Councils, a department. Work may span more than one discipline. In addition, officers at this level may be required to assist in the preparation of or prepare the departmental budget. Officers at this level will be required to provide expert advice to lower classified officers.
Positions at this level demand the application of knowledge which is gained through qualifications and/or previous experience in the discipline. In addition, officers will be required to set priorities and monitor workflows in their area of responsibility (may include establishing works programmes in small Councils).
Officers are required to set work programme priorities, plan and organise their own work and that of subordinate staff and establish the most appropriate operational methods for the section/department. In addition, inter-personnel skills are required to gain the co-operation of clients and staff.
Officers responsible for works programmes will be required to establish outcomes to achieve departmental/Council’s goals. Specialists may be required to provide multi-disciplinary advice.
Officers employed with technical qualifications shall progress to this level once they have completed 12 months’ satisfactory service at 4th incremental step of Level 4.
Graduates will progress to the first incremental step of this level on the completion of two years’ service at level 4 and will progress to the 3rd incremental step after a further year of service.
Requirements of the job
Some or all of the following are needed to perform work at this level:
Skills, Knowledge, Experience, Qualifications and/or Training
• knowledge of departmental programmes, policies and activities;
• sound discipline knowledge gained through experience;
• knowledge of the role of council’s structure and service;
• a relevant Degree with relevant experience;
OR Associate Diploma with substantial experience;
OR qualifications in more than one discipline;
OR lesser formal qualifications with specialised skills sufficient to perform at this level;
OR attainable through previous appointments, service and/or study an equivalent level of experience and expertise to undertake the range of activities required.
Responsibilities
To contribute to the operational objectives of the work area, a position at this level may include some of the following inputs or those of a similar value:
• responsible for a range of functions within the section and/or department requiring;
• a high level of knowledge and skills;
• undertake responsibility for a moderately complex works programme/project;
• undertake a minor phase of a broader or more complex professional assignment;
• assist with the preparation or prepare departmental or section budget;
• establish priorities and monitor workflow in area of responsibility;
• provide expert advice to lower classified officers.
• where the prime responsibility lies in a “professional field” officers at this level:
(1)under general direction undertake the tasks of a specialised and/or detailed nature;
(2)exercise professional judgement within prescribed areas;
(3)provide reports on progress of project activities including recommendations;
• where prime responsibility is to supervise outside employees, officers at this level:
(1)exercise operational responsibility for works programmes;
(2)exercise judgement and initiative where procedures not clearly defined;
(3)establish work programmes in small Councils;
• where prime responsibility lies in a technical field:-
(1)lead teams on moderately complex technical projects;
(2)exercise significant initiative and judgement in the selection and application of established principles, techniques;
(3)supervise the work of other staff;
(4)provide reports to management and/or recommendations on technical suitability of equipment procedures, processes and results.
Organisational relationships
• works under general direction;
• supervise other employees and/or contractors.
Extent of authority
• exercise a degree of autonomy;
• control projects and/or works programmes;
• set outcomes for subordinates;
• established priorities and monitor workflow in areas of responsibility;
• solutions to problems can generally be found in documented techniques, precedents and guidelines or instructions. Assistance available when required.
LEVEL 6
Characteristics of the level
At the sixth level of the Technical Services stream, officers operate under limited direction from senior officer(s) and undertake a range of functions for which operational policies, practices and guidelines may need to be developed.
General features at this level allow officers the scope to influence the works programme of the section, department and/or Council. Officers at this level will be expected to contribute to the management of the section and/or department, assist/prepare budgets, establishing procedures and work practices etc. In addition, officers at this level will be required to provide expert advice to lower classified officers.
Positions at this level will require responsibility for decision making in their particular work area and the provision of expert advice. Officers will be required to provide consultation and assistance relevant to the work section and/or department. Officers will be required to set outcomes for the work area for which they are responsible so as to achieve the objectives of the department and/or council.
Officers may exercise managerial responsibility for large work programmes, work independently as specialists or may be a senior member of a single discipline project team or provide specialist support to a range of programmes/activities.
Positions at this level may be identified by impact of activities undertaken or achievement of stated outcomes/objectives for the work area.
Managing time is essential so outcomes can be achieved. A high level of inter-personnel skills is required to resolve organisational issues, negotiate contracts, develop and motivate subordinate staff. Implement human resource management practices.
Requirements of the job
Some or all of the following are needed to perform work at this level:
Skills, Knowledge, Experience, Qualifications and/or Training
• discipline/specialist skills and/or supervision/management abilities exercised
• within a multi-disciplinary or major single function operation;
• discipline knowledge gained through experience, training or education;
• appreciation of the long term goals of the organisation;
• detailed knowledge of programme activities and work practices relevant to the
• work area;
• knowledge of organisation structures or functions;
• comprehensive knowledge of council policies relevant to the section/department;
• knowledge of statutory requirements relevant to the discipline;
• Degree with substantial experience;
OR Associate Diploma with substantial experience;
OR lesser formal qualifications with a combination of experience, expertise and competence sufficient to perform the duties required at this level.
Responsibilities
To contribute to the operational objectives of the work area, a position at this level may include some of the following inputs or those of a similar value:
• undertake significant work programmes and/or projects involving the use of
• analytical skills;
• provide advice on matters of complexity within the discipline;
• undertake a range of duties within a discipline, including problem definition,
• planning and the exercise of judgement;
• provide advice on policy matters and contribute to their development;
• negotiate on matters of significance within the section and/or department, with other bodies and/or members of the public;
• where prime responsibility is in a “professional” field, an officer at this level:
(1)provides support to a range of activities or programmes;
(2)controls and co-ordinates projects;
(3)contributes to the development of new techniques and methodology;
(4)provides expert/specialist advice/assistance relevant to the discipline;
(5)supervises/manages the operation of a discrete element which is part of a larger office;
(6)supervises technical staff and on occasions other professional staff within the discipline;
(7)provides consultancy services for a range of activities;
• where prime responsibility is to supervise outside staff, officers at this level:
(1)control and co-ordinate the works programme within budgetary constraints;
(2)supervise large outside workforce and/or contractors;
(3)exercise a degree of autonomy, within budgetary constraints, in establishing works programmes;
• where the prime responsibility is in a technical field, officers at this level:
(1)undertake duties which involve more than one discipline;
(2)contribute to the development of new techniques and methodology;
(3)provide a consultancy service for a range of activities.
Organisational relationships
• works under limited direction;
• supervision of employees and/or contractors.
Extent of authority
• may manage a work area (advice available on complex or unusual matters);
• exercise a degree of autonomy;
• manage significant projects and/or works programmes."
[Words bolded and italicised are my emphasis]
Levels 7 and above deal with managerial officers and are not relevant for the purposes of these reasons.
The submissions
The parties filed rather lengthy and somewhat convoluted submissions. In my view it is not necessary to deal with the submissions in detail because the issue to be decided can be disposed of rather more simply.
The essence of the council's submission is set out in paragraph 12 of its submissions:
"It is Council's submission that the term 'Graduate', for the purpose of the graduate progression arrangements prescribe [sic] within Levels 2 to 5 of Schedule A to the Award, relate to a narrow category of employees whom [sic] possess a 3 or 4 year university Degree in a relevant discipline related to the work they are performing, but also, importantly, were initially appointed by Council to Level 2 or 3 on account of not possessing work experience relevant to their Degree qualification."
In other words, the council contends that a graduate, for the purposes of the award, is a person who, if a 3 year degree holder, was appointed to the fourth incremental step of level 2 or, if a 4 year degree holder, was appointed to level 3. The corollary of this contention is that a 3 year degree holder who is appointed above level 2 or a 4 year degree holder who is appointed above level 3 is not a "graduate" for the purposes of the award.
Applying this definition, the council submits that neither Ms Dwyer nor Mr Kirkwood is a graduate because each was appointed to level 4.
The consequence of applying the definition favoured by the council is that neither of these individuals would be entitled to progress to the third incremental step of level 4, after the completion of one year's service at that level as they had initially been appointed to the first step of level 4. Nor would they be entitled to progress to the first incremental step of level 5 on the completion of two years' service at level 4, or to the third incremental step of that level after a further year of service.
As I understand the submissions of the council, clause 8.5 of the award applies to Ms Dwyer and Mr Kirkwood (albeit it concedes that clause 8.5 does not apply to graduates) with the effect that they would only advance by one incremental step in level 4 every 12 months, and would not advance to level 5. The council submits that "movement to a higher classification Level would be by appointment only." It premises this submission on the basis that "upon employment they were appointed to positions as technical specialists, being Level 4 Town Planners, and not as 'Graduates'."
By necessary implication, council's submission in respect of Nicole Hartney is that she should be treated differently because she was initially employed as a "graduate", having been "initially appointed by Council to Level 2 or 3 on account of not possessing work experience relevant to their Degree qualification". Given that she completed the requirements for her degree as a Bachelor of Regional and Urban Planning at the end of 2010 and her only relevant work experience seems to have been a six week stint as work experience placement with the council in May 2010, I am prepared to accept that she did not have work much work experience relevant to her qualification when she commenced as a cadet town planner. She was appointed as a cadet town planner at level 3, first increment, on 22 November 2010. On 10 December 2012 she was reclassified as a "level four (4) increment (1) Planner, effective Friday, 23 November 2012,"[1] having served at level three for two years. It is notable that neither her letter of appointment as a cadet town planner, nor the letter notifying her of her reclassification as a "level four (4) increment one (1) Planner" refers to her having been appointed as a graduate. Likewise, Ms Dwyer and Mr Kirkwood were appointed as level 4 town planners, not as "technical specialists".
[1] CB pp.153 - 156
During questioning from me, Mr S Blaney, who appeared for the council, conceded that Ms Hartney should have been reclassified to the first incremental step of level 5 in December 2014, having completed two years' service at level 4 and implicitly that she should have progressed to the third incremental step in that level a year later.[2]
[2] T1-21
Mr Blaney sought to differentiate between Ms Hartney and the others on the basis that she had been "employed earlier than the other two."[3] He argued that the relevant work experience that they had had with other employers should not be taken into account for the purposes of automatic progression through the salary structure as required for graduates, they not having been "initially appointed by Council to Level 2 or 3 on account of not possessing work experience relevant to their Degree qualification".
[3] T1-21
This submission is unsustainable. It illogically seeks to differentiate between similarly qualified employees (all of them graduates with a relevant degree) on the basis of what point in the salary scale the council initially placed them. Further it seeks to draw an unwarranted distinction as to whether they gained relevant experience at the council or elsewhere. It seeks to import words and concepts into the award, which are not necessary for the efficacious progression of degree holders, graduates, through the salary scale.
Although strictly speaking, it was not necessary to appoint Ms Dwyer or Mr Kirkwood at level 4, it was appropriate to do so given their respective levels of relevant experience.
The words of the award are clear. Graduates, whether they be three or four year degree holders, must advance through the classification structure in accordance with the progression specified therein. There is no warrant for differentiating between a graduate who commenced employment with the council at level 2 or 3 and one who commenced at level 4. The definition of graduate advanced by the council is tortuous and unworkable and not one contemplated by the award. That there is a differentiation between the progression of officers employed with technical qualifications and graduates strengthens the argument advanced by the QSU. There is a progression for graduates in the classifications streams, which I have highlighted above. It is logical and appropriate for officers of the council who hold relevant degrees. Mr Blaney accepts that it operates instead of clause 8.5 in respect of graduates.
Mr Blaney, correctly, submitted that the words of the classification structure, particularly those relating to graduate progression, should be considered in the context of the award as a whole. Doing so leads to the conclusion that the ordinary definition, a person who holds a degree, should be given to the word "graduate". Progressing all relevant degree holders in accordance with the requirements of the award clearly promotes the purpose of advancing them through the scale in the manner prescribed. The injustice in holding back employees such as Ms Dwyer and Mr Kirkwood merely because they were appointed at level four is manifest.
The questions must be answered:
a. Yes
b. (i) Yes
b. (ii) Yes
Order accordingly.
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