Queensland Services Industrial Union of Employees v Sunshine Coast Council
[2018] ICQ 5
•21 May 2018
INDUSTRIAL COURT OF QUEENSLAND
CITATION:
Queensland Services Industrial Union of Employees v Sunshine Coast Council [2018] ICQ 005
PARTIES:
QUEENSLAND SERVICES INDUSTRIAL UNION OF EMPLOYEES
(appellant)
v
SUNSHINE COAST COUNCIL(respondent)
FILE NO/S:
C/2017/17
PROCEEDING:
Appeal
DELIVERED ON:
21 May 2018
HEARING DATE:
28 November 2017
MEMBER:
Martin J, President
ORDER/S:
The Appeal is Dismissed.
CATCHWORDS:
INDUSTRIAL LAW – QUEENSLAND – AWARDS – CLASSIFICATION OF EMPLOYEES – PRINCIPLES OF INTERPRETATION – where Sunshine Coast Council previously directly employed Regulated Parking Officers - where services of labour hire company were engaged as Regulated Parking Officers – whether Regulated Parking Officers are classified under the provisions of the Queensland Local Government Industry (Stream B) Award State 2017 – whether a position description is to be used as the only means of classifying an employee under an award – whether specific reference to an occupation prevails over a general reference in classifying an employee under an award
CASES:
CFMEU v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696
Hindu Society of Victoria (Australia) Inc v Fair Work Ombudsman [2017] FCCA 423
Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200
Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18APPEARANCES:
N Henderson for the Queensland Services Industrial Union of Employees
P Mulrony for the Sunshine Coast Regional Council
In April 2016 a dispute arose between the appellant (the Union) and the Sunshine Coast Regional Council (the Council) about the employment of parking officers.
The resolution of the dispute led to a declaration by Deputy President Kaufman about the award coverage of such officers, that is, that the provisions of Division 3 of the Queensland Local Government Industry Award – State 2017 (now reflected in Division 2, Section 5, Schedule 1 of the Queensland Local Government Industry (Stream B) Award – State 2017) (the Modern Award) applied to them.
The Union appeals that decision on a number of grounds. An issue arose at the hearing of the appeal about the omission to refer the Deputy President to cl 58 in the Sunshine Coast Salaried Officers Certified Agreement 2011 (No 2) (the Certified Agreement) which makes specific reference to position descriptions as the primary source for classifying positions. This error on the part of both parties meant that the Deputy President was not directed to an important provision which was relevant to the issue he was deciding. Although the Deputy President was not alerted to this provision, the failure to take it into account constitutes an error. It was open to this court to return the matter to the Commission for further consideration, but after being assured by both parties that neither of them sought to lead any further evidence, it was determined that the matter should be dealt with finally on the appeal.
Background
Before 2015, the Council directly employed parking officers. In the middle of 2015 the Council restructured the branch in which parking officers worked and transferred the six parking officers it then employed into another area. It engaged the services of a labour hire company to provide its parking officer workforce. A conciliation conference was held following the notification of the dispute. After that conference, the Council decided to again directly employ its parking officers.
The Deputy President considered the Queensland Local Government Industry Award – State 2017, which came into operation on 28 February 2017. It contained Divisions 1 to 4, dealing with separate awards. For the Deputy President, the question to be answered was whether Division 2 or Division 3 of the Modern Award applied to the employment of the parking officers.
Division 3, Section 5 of the Modern Award specifically referred to parking officers and, for the Deputy President, was the appropriate award classification to cover the work of the parking officers.
The hearing in the Commission proceeded on the basis of an agreed statement of facts and some oral evidence from a senior employee of the Council. On that evidence, the Deputy President made the following findings:
“[12]... The council’s parking officers’ major function is the enforcement of the council’s parking regulations by checking whether vehicles have overstayed the time allotted to them at parking metres or in areas where an unmetered time limit applies. They necessarily perform ancillary functions such as issuing parking infringement notices, explaining to the drivers of vehicles who might engage with them the reason for the issue of an infringement notice and, on occasion, cooperate with police officers near school to issue warnings and explanatory information to parents and others who park illegally. They are also tasked with liaising with members of the public who might report alleged repeat parking offenders and then act on those complaints.”
The Deputy President compared the functions of the parking officers as he described them above with the provisions of Division 2 and Division 3 of the Modern Award. He said:
“[25]The Employees’ Award schedule [Division 3] provides specifically for the classification the subject of this matter - Parking patrol officer. Although absent the Employees’ Award schedule, the requirement in the Officers’ Award schedule that employees have a knowledge of policies, by-laws and regulations relating to their work area might have warranted a conclusion that division 2 covered them, that is not the case. Division 3 specifically refers to parking patrol officers and, in my view, is clearly the appropriate award classification to cover their work.”
In his conclusions, the Deputy President observed:
“[27]The task of identifying under what award a person ought be classified requires an examination of the work performed and then ascertaining the award classification which is most appropriate to the work performed and to the environment in which the employee normally performs the work.[1] Although position descriptions can be useful, it may be the case that an employer does not require its employees to perform the full range of duties in a position description. It is ultimately a matter of ascertaining what it is that the employees do and then determining under what award that work best fits that is required.”
[1] Hindu Society of Victoria (Australia) Inc v Fair Work Ombudsman [2017] FCCA 423.
On 30 June 2017, the Modern Award was revoked and replaced with the following three modern awards that took effect on 1 July 2017:
·Queensland Local Government Industry (Stream A) Award – State 2017 [the Modern Award (Stream A)];
·Queensland Local Government Industry (Stream B) Award – State 2017 [the Modern Award (Stream B)]; and
·Queensland Local Government Industry (Stream C) Award – State 2017 [the Modern Award (Stream C)].
Relevantly, and for the purposes of clarification, Division 3 of the Queensland Local Government Industry Award – State 2017 (since revoked) is reflected in Division 2 of the Queensland Local Government Industry (Stream B) Award – State 2017.
The Union contends that the correct classification for the parking officers is to be found in Division 2 of the Modern Award (Stream A). In its submissions, the Council contends that the appropriate award is Division 2 of the Modern Award (Stream B).
Principles to apply
In the absence of any explicit direction to the contrary in an award or agreement, the matters to be considered when determining whether a worker comes within a particular description include:
(a)What is the major and substantial employment of the employee?[2]
(b)It is not merely a matter of quantifying the time spent on the various elements of the work performed - the quality of the different types of work done is also a relevant consideration.[3]
(c)If the award, properly construed, applies to particular employment, then its applicability cannot depend on arrangements between the parties which may, in some respects, be inconsistent with the provisions of the award.[4]
(d)Both “quality” and “quantity” are relevant when it comes to employee classification, subject always to the language employed in the particular industrial instrument.[5]
[2] Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18.
[3] Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18.
[4] Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200.
[5] CFMEU v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696.
Grounds of appeal
Three grounds were argued, namely, that the Deputy President:
(a) failed to take into account the position profile and its correspondence with the equivalent of the Officer’s award;
(b) erred by stating that the occupation is only contained in the equivalent of the Employee’s award when there is a reference to enforcing compliance with traffic by-laws in the equivalent of the Officer’s award; and
(c) erred by determining that the position description was not determinative of the award classification.
The award, the Certified Agreement and the position description
With the principles referred to above in mind, I turn to the provisions of the Certified Agreement, the award and the position description.
Clause 58 of the Certified Agreement provides:
“58.1Classification of positions in the Corporate Structure shall be in accordance with the full provisions of the Award subject to the following:
58.1.1All positions in the Corporate Structure shall have a position description which will be used as the primary source of classified positions;
…”
There is a “position profile” for parking officers. It provides:
“Key Responsibilities
· Act as an ambassador for Council in interactions with the community and provide accurate and timely information and advice regarding operations that falls within the responsibility of the Unit.
· Undertake proactive rostered regulated parking patrols in all regulated areas including metered parking areas including the issuing of infringement notices through the use of hand held devices.
· Responsibly operate and maintain equipment used to support the team.
· Assist with community education programs as they relate to the Community Response Branch.
· Actively participate in special projects and events by collating necessary flyers, tickets and surveys.
· Inform and educate the community, liaise with key stakeholder groups, on issues relating to road safety and parking.
· Provide professional technical advice and support in relation to Council’s Local Laws and State legislation for parking.”
How then, should the provision in cl 58.1.1 be used? What does it mean when it says “a position description … will be used as the primary source of classifying positions”? A preliminary question is: what are the accepted means used to classify a position? The answer will generally come from the principles referred to above, namely, by determining the major and substantial work done by an employee and then comparing that to the relevant award provisions. But, in these circumstances, the person undertaking the task is directed to the position description as the “primary source”.
The term “primary source” is one often used to describe historical or legal documents which provide direct or first-hand evidence of an event. That does not seem to be apposite in these circumstances. Rather, the term is more likely to be intended as a direction, that is, to direct a person seeking to determine what award coverage is appropriate to compare the position description with the award provisions. Further, the word “primary” can mean a number of things. It can mean the first in a series or the earliest. But, the more likely meaning is that of something being of the first importance, as in “that is our primary concern”.
Clause 58 does not provide that the position description is to be the only tool to be used in classifying a position, only that it is to be of the first importance in doing so. It does not prevent the process of classification to continue by considering other matters which are relevant.
Some parts of the position description are capable of applying to a large number of jobs. The first item, for example, provides:
“Act as an ambassador for Council in interactions with the community and provide accurate and timely information and advice regarding operations that falls within the responsibility of the Unit.”
That is, with respect to whoever thought it useful, little more than puffery. To “act as an ambassador for Council …” gives no guidance at all unless the meaning of “ambassador” is made clear. It is not.
The Modern Award (Stream A) – Division 2 – Section 1 – Schedule 1 – Level 2
This is the section of the award which the Union says applies to parking officers. It refers, in particular, to the position description and these parts of the requirements and responsibilities of employees contained in Division 2, Section 1, Schedule 1, Level 2 of the award:
·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;
·knowledge of policies, by-laws and regulations relating to the work area;
·understanding of clear but complex rules;
·application of techniques relevant to the work area;
·developing knowledge of statutory requirements relevant to the work area;
·perform tasks of a sensitive nature including the provision of more than routine information;
·undertake inspectorial duties involving the enforcement of general by-laws/regulations, assist more senior employees with special projects;
·perform tasks within a community service program requiring knowledge of established work practices and procedures relevant to the work area
None of those requirements or responsibilities make particular reference to parking officers except, perhaps, to the responsibility to “undertake inspectorial duties involving the enforcement of general by-laws/regulations”. This might be seen as incorporating what the Deputy President found to be the major function of parking officers: “the enforcement of the Council’s parking regulations by checking whether vehicles have overstayed the time allotted to them at parking metres or in areas where an unmetered time limit applies”.
The Union also argues that there is a direct connection with parking officers through the provision in Level 1 of the following:
“Additional responsibilities specific to Community and Environmental Services employees:
•Undertake routine library duties involving routine shelving, issues and returns;
•Enforce compliance with traffic by-laws and regulations at an elementary level.”
Further, the Union argued, the incorporation of the reference compliance with traffic by-laws in Level 1 gave a different complexion to the requirements in Level 2.
It must be noted that this was another feature of the award which neither party argued before the Deputy President.
The Modern Award (Stream B) – Division 2 – Section 5 – Schedule 1 – Levels 3 and 4
This is the section of the award which the Council says applies to parking officers. This schedule deals with operational services. Level 3 is described as follows:
“Employees perform a broad range of tasks requiring developed industry skills. Employees would exercise a broad knowledge of construction and/or maintenance activities and either individually or as part of a team be able to undertake a substantial proportion of typical projects. The work would be performed under general supervision.”
Level 3 goes on to provide:
“Occupations normally associated with this level include:
…
•Parking patrol officer – first 12 months;”
Level 4 is described as follows:
“Employees perform a more highly skilled and often, specialised tasks. In some cases these tasks would require formal training and involve the holding of an appropriate authority. A sound knowledge of Council by-laws or legislative provisions relevant to the area of the work would also be a feature. The work would be performed under general supervision.”
Level 4 goes on to provide that activities normally associated with this level include general by-laws enforcement (with relevant experience) and that:
“Occupations normally associated with this level include:
…
•Parking patrol officer – thereafter;”
Consideration
It is well recognised that to properly construe an award one must read the instrument as a whole, and that one must construe any particular provision so as to render it harmonious with the instrument as a whole and so as to give due and proper effect to the purpose and policy of the instrument.[6]
[6] Park Avenue Motor-Hotel Pty Ltd v Beck (2007) 184 QGIG 78.
It is also well accepted that a generous interpretation should be preferred to a strictly literal approach:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”[7]
[7] Kucks v CSR Ltd (1996) 66 IR 182 at 184.
The interpretation advanced by the Union would require that the references to “parking patrol officers” in the Modern Award (Stream B), Division 2, Section 5 be ignored. While the requirement to use the position description as the “primary source” might support the Union position so far as the application of the Modern Award (Stream A), Division 2, Section 1 is concerned, it cannot be used to overcome the inconsistency which would then arise when consideration was given to the Modern Award (Stream B), Division 2, Section 5. The problem with the interpretation advanced by the Union is that it favours the fairly general descriptions in the position description over the specific reference to “parking patrol officer”. Clause 58 does not prohibit consideration of the whole of the award, it only requires that the position description be a primary source for interpretation. Where, as here, there has been a clear reference to a particular occupation, then it will prevail.
The Deputy President favoured the Council position on the case as it was advanced by the parties. While I accept that he erred, through no fault of his own, by not taking into account the matters which were raised for the first time on appeal, those matters do not assist the appellant.
The Regulated Parking Officers employed by the Sunshine Coast Regional Council are properly classified under the Queensland Local Government Industry (Stream B) Award – State 2017 at Division 2, Section 5, Schedule 1 (Classifications – Operational Services) at wage Level 4.
The appeal is dismissed.
0
5
0