Smith & Hohn v Noosa Shire Council - [2023] QIRC 103

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Smith & Hohn v Noosa Shire Council [2023] QIRC 103
PARTIES:	Smith, Darren (First Applicant) & Hohn, David (Second Applicant) v Noosa Shire Council Respondent
CASE NOS:	B/2021/61 & B/2021/69
PROCEEDING:	Application to recover unpaid wages
DELIVERED ON:	5 April 2023
HEARING DATES:	20 April 2022 16 August 2022 17 August 2022
MEMBER:	Pidgeon IC
HEARD AT:	Maroochydore
ORDER:	The applications are dismissed. The answers to the questions for arbitration are set out at [129], [130] and [254].
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – AWARDS – application for unpaid wages – classification of employees – application of award – where the first applicant is employed by the respondent as a Parks Contract Officer – whether the position is a technical position under the Queensland Local Government Award (Stream A) – State 2017 – consideration of position and duties undertaken by the first applicant – where the second applicant was formerly employed by the respondent as an Asset Systems Officer – whether the second applicant was entitled to the benefit of the Graduate Progression provision of the Queensland Local Government Award (Stream A) – State 2017 – consideration of whether the second applicant held a relevant four-year degree – consideration of whether the second applicant was required to undertake work within his engineering qualification –applications dismissed
LEGISLATION AND OTHER INSTRUMENTS:	Municipal Officers (Queensland) Consolidated Award 1983 cls 6, 20, 21, 22, 23, 25, 26 Professional Engineers Act 2002 (Qld) s 115 Queensland Local Government Award (Stream A) – State 2017 div 2, s 1, sch 1 Queensland Local Government Officer’s Award Agreed Trialling Document Queensland Local Government Officers Award 1992 Queensland Local Government Officers Award 1998
CASES:	Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 Association of Professional Engineers, Australia v The Lord Mayor, Councillors and Citizens of The City of Melbourne & Ors (1961) 97 CAR 233 Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth (1998) 82 FCR 175 Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Brisbane City Council [2022] QIRC 249 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 City of Wanneroo v Holmes (1989) 30 IR 362 George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566 Kucks v CSR Ltd (1996) 66 IR 182 Queensland Services, Industrial Union of Employees v Isaac Regional Council [2016] QIRC 107 Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 Short v FW Hercus Pty Ltd (1993) 40 FCR 511 WorkPac Pty Ltd v Skene (2018) 264 FCR 536
APPEARANCES:	N Henderson of the Queensland Services, Industrial Union of Employees for the Applicants T Wild of the Local Government Association of Queensland for the Respondent

Reasons for Decision

Background

Mr Darren Smith (the First Applicant) and Mr David Hohn (the Second Applicant), each…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QIRC 103
Decision Date: 5 April 2023

CaseChat Overview and Summary

The applicants, Smith and Hohn, brought an application against Noosa Shire Council in the Fair Work Commission, seeking unpaid wages. The applicants were previously employed by the respondent council and raised two main issues for determination: whether the first applicant's position as a Parks Contract Officer fell under the classification of a technical position as per the Queensland Local Government Award (Stream A) – State 2017, and whether the second applicant, formerly an Asset Systems Officer, was entitled to the benefits of the Graduate Progression provision in the same award.

The central legal issues revolved around the correct classification of the applicants' roles and their eligibility for specific award provisions. The first issue required the court to consider the duties and responsibilities of the Parks Contract Officer to determine if they met the criteria for a technical position. The second issue involved assessing whether the Asset Systems Officer possessed a relevant four-year degree and whether they performed work within their engineering qualification, thereby qualifying for the Graduate Progression provision.

The Commission meticulously examined the evidence provided regarding the applicants' roles and their qualifications. It found that the duties of the Parks Contract Officer did not align with the technical classification stipulated in the award, and thus, the first applicant was not entitled to the wages based on that classification. Similarly, the second applicant did not meet the requirements for the Graduate Progression provision, as it was determined that they did not hold the necessary four-year degree or perform work within their engineering qualification. Consequently, both applications were dismissed.

Orders

Orders of the court

The applications are dismissed. The answers to the questions for arbitration are set out at [129], [130] and [254].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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