Queensland Services Industrial Union of Employees v Sunshine Coast Council
[2017] QIRC 78
•18 August 2017
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Queensland Services Industrial Union of Employees v Sunshine Coast Council [2017] QIRC 078 |
PARTIES: | Queensland Services, Industrial Union of Employees v Sunshine Coast Council |
CASE NO: | D/2016/28 |
PROCEEDING: | Notification of industrial dispute |
DELIVERED ON: | 18 August 2017 |
HEARING DATE: | 24 July 2017 |
MEMBER: | The Hon. L Kaufman Deputy President |
ORDERS : | 1. The parties are to file minutes of the orders to be made consistent with these reasons within seven days of the date of this decision |
| CATCHWORDS: | INDUSTRIAL LAW - INDUSTRIAL DISPUTE - Interpretation of Award – Regulated Parking Officers – which award governs terms and conditions of employment – ascertainment of duties performed |
| CASES: | Industrial Relations Act 1999 ss 229, 274(2) |
| APPEARANCES: | Ms M Robertson, of the Queensland Services Industrial Union of Employees, applicant |
Reasons for Decision
On 26 April 2016 the Queensland Services, Industrial Union of Employees gave notice under section 229 of the Industrial Relations Act 1999 of the existence of an industrial dispute between the union and Sunshine Coast Council.
The dispute arose from a decision of the council to outsource the employment of its parking officers and to stop directly employing them.
Background
Prior to mid-2015 the council directly employed parking officers. Their terms and conditions of employment were said to have been regulated by the Queensland Local Government Officers' Award 1998 (the Officers' Award) and the Sunshine Coast Council Salaried Officers Certified Agreement 2011 (No 2). The agreement, which applies to the council "and all its employees under the Local Government Officers Award 1998 [other than the CEO and the higher echelons]", is silent as to a classification structure.
The Queensland Local Government Industry Award – State 2017 (the modern award) came into operation on 28 February 2017. Division 2 of that award contains the classification structure that was previously contained in the Officers' Award. Division 3 contains the classification structure that was previously contained in the Local Government Employees’ (Excluding Brisbane City Council) Award – State 2003 (the Employees' Award).
In mid-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.
In June 2016, following a conciliation conference convened as a result of the QSU having notified the existence of an industrial dispute in relation to the use of a labour hire company, the council decided to again directly employ its parking officers. It currently employs some 17 parking officers under the provisions of Division 3 of the modern award. The QSU contends the parking officers should be employed under Division 2.
Despite the dispute having arisen in relation to the outsourcing of the work of parking officers and during the currency of the Officers' Award, the Employees' Award and the agreement, the parties are agreed that the question to be answered in these proceedings is whether the terms and conditions of employment of parking officers employed by the council are governed by Division 2 or Division 3 of the modern award.
The QSU contends that Division 2 of the modern award applies, whereas the council and the Local Government Association Queensland, which intervened, by leave, in the proceedings, contend that Division 3 of the modern award applies to the employment of parking officers.
The answer to the question that the parties want answered requires an understanding of the work performed by the parking officers. To that end I sought an agreed statement of facts, which I received on 11 May 2017.
What do the parking officers actually do?
Prior to the hearing I requested that the parties provide a supplementary statement of agreed facts specifically outlining the actual work performed by parking officers prior to June 2015 and presently. This was done.
In addition, because I was still expressing a lack of understanding as to the precise nature of the work performed by parking officers, the council called the only witness in the proceedings, Ms Sheryl Krome, Manager of Community Response, who has worked at the council for some 23 years. Ms Krome's responsibilities include parking matters. Ms Krome was asked to describe the typical working day for a parking officer.
Although Ms Krome went into some detail, the upshot of her evidence, as well as that contained in the supplementary statement of facts, is that 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 meters 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 schools 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 upon those complaints.
Prior to the 2015 restructure the council had directly employed its parking officers. It engaged them under the terms and conditions of the certified agreement, which provided, by clause 8, that it was to “be read and interpreted wholly in conjunction with the terms of the … [Officers' Award] as amended” provided that where there is any inconsistency between them, the agreement prevailed to the extent of any inconsistency unless the agreement is silent, in which case, the provisions of the award apply.
Although clause 20 of the agreement deals with wage and salary increases and part 10, appendix 1 provides a schedule of wages, it is to schedule A of the Officers' Award that regard was to be had to understand the characteristics, job requirements, responsibilities, organizational requirements and extent of authority of the various position classifications of those covered by the award. These provisions are now contained in Division 2 – Section 1 – Schedule 1 (Classifications – Administrative, technical, community service, supervisory and managerial services) of the modern award (the Officers' Award schedule).
Clause 4 of the Officers' Award provides that it is binding on the employers and relevant unions in respect of all their officers “whose duties, responsibilities, work description or remuneration are contained within its terms and generally upon officers engaged in work of an administrative, managerial, community, environmental, technical or professional nature …”. This award was colloquially referred to as the “indoor staff award”.
The union submits that the currently employed parking officers’ terms and conditions of employment are properly to be regulated by the Officers' Award schedule; more specifically that they should be classified at Level 2 of that schedule.
The union points to the requirements of that position, in particular that they have “knowledge of policies, by-laws and regulations relating to the work area”, to make good its contention that the officers' schedule applies to the work of parking officers.
It is clear that parking officers are required to have knowledge of policies by-laws and regulations relating to the regulated parking of vehicles within the council’s area of responsibility. They are not required to have such knowledge in other work areas, such as animal management, footpath trading, dealing with litter and so on.
The modern award also incorporates the classification structure of the Employees' Award. The council contends that division, Division 3 – Section 5 – Schedule 1 (Classifications – Operational Services) (the Employees' Award schedule) of the modern award properly governs the terms and conditions of employment of the council’s parking officers. More specifically, council submits that its current classification of the parking officers at level 4 of that schedule is correct.
The Employees’ Award was not referred to in the agreement, so it is not necessary to have any regard to its terms in determining this aspect of the matter. Further, the Employees' Award has no clause equivalent to that of clause 4 of the Officers' Award, so it is necessary to turn to the classification structure in the Employees' Award schedule to ascertain those classes of employees that fall within its purview.
The union relies on history, as well as its interpretation of the two awards to support its claim. However, the fact that in the past the parties were content to apply the terms and conditions of the Officers’ Award and the agreement to the parking officers is not determinative. The answer to the question posed by the parties is a matter of mixed fact and law; it requires that the work performed by them be ascertained and then a consideration of the terms of the competing awards to find the best fit.
The union compared the position descriptions in the council’s position profile with the descriptors in the Officers’ Award schedule and the Employees’ award schedule. It submitted that the work described in the position profile is a better fit with the Officers’ Award than the Employees’ Award. I disagree. The Officers’ Award schedule requires that employees have “knowledge of policies, by-laws and regulations relating to the work area”. The Employees’ Award schedule contains the classification structure. It deals generally with what can loosely be characterized as “outdoor staff”. At level 4 a “sound knowledge of Council by-laws or legislative provisions relevant to the area of work would also be a feature”.
As well as parking officers to whom such a requirement is relevant, beach inspectors, by-laws patrol persons and animal patrol persons are also classifications of people who would be expected to have a working knowledge of the relevant council by-laws and legislative provisions. Parking patrol officers fit more comfortably with these occupational groups than they do with those found in the Officers’ Award schedule.
Significantly, it is only the Employees’ Award that refers to the occupation of Parking patrol officer.
Conclusion
The Employees' Award schedule 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.
The union places weight on the fact that prior to 2015 the council engaged its parking officers under the Officers' Award. As I said, that is not determinative of the issue. In any event, at that time they performed additional duties to those associated with parking, such as a responsibility for enforcing council’s litter regulations.
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] FCA 423
As my brief analysis of the classifications covered by each division has shown, the Employees' Award schedule, division 3, rather than the Officers' Award schedule, division 2, provides the best fit for regulated parking officers.
Section 274(2)(b) of the Industrial Relations Act 1999 empowers the Commission to make a decision it considers appropriate, irrespective of the specific relief sought by a party and by sub-section (c) to make an order it considers appropriate.
The parties are to file minutes of the orders to be made consistent with these reasons within seven days of the date of this decision.
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