Smith & Hohn v Noosa Shire Council
[2023] QIRC 103
•5 April 2023
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Smith & Hohn v Noosa Shire Council [2023] QIRC 103 |
PARTIES: | Smith, Darren & Hohn, David v Noosa Shire Council |
CASE NOS: | B/2021/61 & B/2021/69 |
PROCEEDING: | Application to recover unpaid wages |
DELIVERED ON: | 5 April 2023 |
HEARING DATES: | 20 April 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 represented by the Queensland Services, Industrial Union of Employees (the Union), have brought respective applications for unpaid wages against Noosa Shire Council (the Respondent).
The applications concern the operation of the relevant classification levels, including how an employee progresses through the classification levels, contained in the Queensland Local Government Industry (Steam A) Award – State 2017 (the Award). The dispute centres around how those provisions operate in relation to the individual Applicants.
For context, Mr Smith currently works as a Parks Contract Officer for the Council and is classified at a Level 4.4 under the Award. Mr Hohn was formerly employed by the Respondent between 14 January 2020 to 20 August 2021 as an Asset Systems Officer, Infrastructure Services and classified at a Level 4.3 under the Award.
The applications
On 22 July 2021, the Union, filed a Form 15 - Application to recover unpaid wages, superannuation contributions etc on behalf of Mr Smith. A subsequent application was filed on behalf of Mr Hohn on 23 August 2021.
Due to the commonality between the matters and in the interests of efficiency, at a mention on 2 December 2021, Vice President O’Connor ordered by consent that the matters be heard together.
Relevant legal principles
The approach to be taken when interpreting Award provisions in proceedings in the Queensland Industrial Relations Commission (QIRC) was considered by Merrell DP in Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Brisbane City Council (‘ARTBU v BCC’):[1]
[1] [2022] QIRC 249 (‘ARTBU v BCC’).
[73] In James Cook University v Ridd,[2] Griffiths and SC Derrington JJ provided a convenient summary of the established principles for the interpretation of an enterprise agreement approved under the Fair Work Act 2009. Their Honours stated:
[65] The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:
(i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes (1989) 30 IR 362 at 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53]; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]).
(ii) A purposive approach is preferred to a narrow or pedantic approach – the framers of such documents were likely to have been of a 'practical bent of mind' (Kucks v CSR Ltd (1996) 66 IR 182 at 184; Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]). The interpretation "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose" (Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2]).
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53]). It may extend to “… the entire document of which it is a part, or to documents with which there is an association” (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth (1998) 82 FCR 175 at 178).
(iv) Context may include "… ideas that gave rise to an expression in a document from which it has been taken" (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518.
(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v Hercus Pty Ltd (1993) 40 FCR 511 at 518).
(vi) a general construction is preferred over a strictly literal approach (George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties" (City of Wanneroo v Holmes (1989) 30 IR 362 at 380).
[2] [2020] FCAFC 123; (2020) 278 FCR 566.
Questions to be decided
The questions to be decided in this arbitration are:
B/2021/61 - Mr Smith
1.Does the position of Parks Contract Officer, based on the duties undertaken by Mr Darren Smith, constitute a Technical position for the purposes of the definitions in Division 2, Section 1, Schedule 1 of the Queensland Local Government Award (Stream A) – State 2017?
2.Do any of the qualifications held by Mr Smith fit within the description of Technical qualifications, in accordance with Division 2, Section 1, Schedule 1, Classification Descriptors, of the Queensland Local Government Award (Stream A) – State 2017?
3.If ‘yes’ to questions 1 and 2, do the ‘Technical’ qualifications held by Mr Smith need to be relevant to the Parks Contract Officer position in order for Mr Smith to access Technical Progression in accordance with Division 2, Section 1, Schedule 1, Classification Descriptors, of the Queensland Local Government Award (Stream A) – State 2017?
B/2021/69 - Mr Hohn
1.Does Mr David Hohn, in his position of Asset Systems Officer and in holding an engineering degree,
a) hold a relevant four year degree; and
b) is he required to undertake work within his qualification
to entitle him to the benefit of the Graduate Progression provision in the Level 3 definition in Division 2, Section 1, Schedule 1?
I intend to consider each of the questions for arbitration in turn, setting out the relevant submissions of the parties and relevant evidence before the Commission.
B/2021/61 – Mr Smith
1.Does the position of Parks Contract Officer, based on the duties undertaken by Mr Darren Smith, constitute a Technical position for the purposes of the definitions in Division 2, Section 1, Schedule 1 of the Queensland Local Government Award (Stream A) – State 2017?
Submissions of the First Applicant
To be eligible for advancement in classification for holding a technical qualification (see questions 2 and 3), Mr Smith must be a Technical Employee.[3]
[3] Applicants’ closing submissions filed 23 September 2022, [5].
The Union says that per Short v FW Hercus Pty Ltd,[4] the Commission can consider the history and should not be bound by a narrow literal approach.
[4] (1993) 40 FCR 511, 518.
To that end, the Union submits that the Technical Stream of the Queensland Local Government Officers Award 1992 (the 1992 Award) was populated by agreement of the parties and identified which jobs from the Municipal Officers (Queensland) Consolidated Award 1983 (the Municipal Award) would be classified into the Technical Stream. The Union says that these jobs, which are set out in the Queensland Local Government Officer’s Award Agreed Trialling Document (the Agreed Trialling Document) dated February 1992,[5] range from professional engineer to overseer and foreman and include both highly qualified jobs and jobs more likely to be held by persons with years of experience.[6]
[5] First Applicant’s outline of argument filed 25 February 2022, Attachment 2, Queensland Local Government Officer’s Award Agreed Trialling Document (February 1992).
[6] Applicants’ closing submissions filed 23 September 2022, [7].
Mr Henderson directed my attention to cl 22 of the Municipal Award, which includes the definition of a ‘Works Inspector’ as 'someone whose duties include the supervision and inspection of contract works', and cl 23 which defines a Technical Officer (Parks and Recreation) as someone who is 'employed on technical duties associated with parks and recreation projects who has a formal qualification in a course approved by the respondent at a tertiary education institution'. Mr Henderson says that the Municipal Award does not specify what degree is required, or from what type of tertiary institution the course was completed at, and says that this could be a university, a TAFE college or a college of advanced education and so forth.[7]
[7] T 1-11 – T1-12.
The Union says that Mr Smith has held a number of different titles over the years, but he has always retained 'one main specific task'. With reference to Exhibit 12, a position description of the Parks Contracts Officer last reviewed on 1 October 2014, the Union says that the task is to ‘Administer, supervise and inspect operations undertaken by contractors to ensure compliance with contract requirements including service standards.’
With reference to the various position statements which have applied to Mr Smith, the Union says that the task listed above at [13] was set out on commencement in the position,[8] then changed to include supervision of Council employees,[9] and then changed back to that listed in [13]. It is the current wording set out at [13] and in Exhibit 12 which is to be considered in this arbitration. The Union says that the duties undertaken by Mr Smith have evolved over time through the amalgamation and de-amalgamation of the Council, but have retained their technical complexion.
[8] Exhibit 9.
[9] Exhibit 15.
The Union notes that the position originally occupied by Mr Smith was classified at Level 3 but was regraded to Level 4. The regrading to Level 4 is noted on Exhibit 11 which is a position description for the position of Parks Contracts Support dated 12 March 2012. The Union points out that when the position was amended to remove reference to the supervision of day labour in 2014,[10] the classification did not change.
[10] Exhibit 12.
The Union submits that determining the correct designation of Mr Smith's position, Technical or not Technical, for the purpose of this matter, is not as difficult an exercise as it might appear to be. The Union points to Mr Smith's evidence that he is 'out and about checking the work undertaken by the various contractors'.[11] The Union says that Mr Smith's evidence was that he pulls the contractors up if the work is not satisfactory or if there is something amiss from a safety perspective. Mr Smith said that he inspects the machinery to make sure it is safe and operating properly, for example, he has to check that safety guards are fitted and operating properly. The Union says that Mr Smith's evidence in this regard was 'not shaken in cross-examination or contradicted by any of the Council's witnesses'.[12] The Union also states that Mr Smith is the person nominated to field enquiries about 'technical aspects' of contracts he is responsible for.[13]
[11] See, e.g., T 1-81.
[12] T 2-52, ll 3-60.
[13] T 2-53 – T 2-54.
The Union submits that the Municipal Award classification of ‘Works Inspector’ was someone whose duties include the supervision and inspection of contract works. The Union says that these duties are 'on all fours' with the principal purpose of Mr Smith's position.
The Union says that the Works Inspector position was included in the list of positions to be placed in the Technical Stream in the Agreed Trialling Document.[14] The Union submits that the Trialling Document sets out three new streams: the Administrative Services Stream, the Community and Environmental Services Stream, and the Technical Services Stream.[15]
[14] The Union submits that the Trialling Document was put together by the Local Government Association of Queensland (LGAQ) and the Municipal Officers' Association, or maybe the Australian Services Union, for the making of the 1992 Award.
[15] T 1-12, ll 38-40.
The Union argues that the earlier iterations of Mr Smith's position, Technical Assistant Works (Exhibit 9) and Works Technical Officer (Exhibit 10), were 'plainly properly described' as technical. The Union says that the Respondent 'appears to be arguing that the removal of the need to supervise directly employed Council employees is what changed the complexion of the position from Technical to Administrative'.[16] Mr Henderson submits that the Trialling Document 'gathers up the occupations that the parties have effectively agreed would be placed into each of those streams'.
[16] Applicants’ closing submissions filed 23 September 2022, [15].
The Union says that the Council has never given notice to Mr Smith that his employment had changed from technical to administrative to his detriment.
The Union says that in both the 1992 Award and the Queensland Local Government Officers Award 1998 (the 1998 Award), the supervision of contractors appeared through the classification definitions at Levels 4, 5 and 6 in particular. For reasons unknown, the references were removed from Level 4 and 5 during Award modernisation, but the reference to supervision of contractors remains in Level 6.
The Union suggests that the omission of supervision of contractors from Levels 4 and 5 could lay the foundation for a contention that employees who supervise contractors cannot be classified any less than Level 6, but says that the more likely explanation is that such work is part and parcel of the various classifications. The Union submits that the word 'contractor' is not defined and that it is used in the local government industry as a 'general descriptor'. The Union says that 'contractor' could mean 'any number of arrangements, from a contractor that is a business run as a company to a sole trader operation to an employer of a contract house, sometimes referred to as a labour hire employee'.[17]
[17] Ibid [19].
The Union suggests that the duty to supervise contractors remains, and while it does not determine the argument one way or the other, it does add weight to the proposition that Mr Smith's role falls under the heading of ‘Technical’ in terms of the classification definitions.[18]
[18] Ibid [20].
The Union says that another enduring duty required of the position has been to support the Technical Officer or similar positions (Technical Officer in Exhibit 12). When Mr Smith commenced, this duty was to provide support to the Team Leader Technical Support and it can be 'reasonably inferred from the position descriptions that the type of support envisaged was not administrative support, as administrative support was separately referenced in other duties'.[19]
[19] Exhibit 9; Applicants’ closing submissions filed 23 September 2022, [21].
The Union also points to the reference in tender documents for Road Network Turf Maintenance to contact Mr Smith for enquiries in relation to 'Technical Aspects'[20] and the Technical Specification Mowing and Weed Control Services.[21]
[20] T 2-53.
[21] Exhibit 17.
The Union says that the Council attempted to 'trivialise the work performed by Mr Smith' and generally attacked the nature of the work. In support of this submission, the Union points to the opening submissions of the Council's representatives when it was said that Mr Smith did not perform any duties associated with street sweeping and that he had never undertaken those duties.[22] The Union says that these assertions were never put to Mr Smith and that they were 'directly contradicted' by Mr Hansen's evidence in cross-examination which was that Mr Smith was responsible for the work to be done to maintain the 'premier street in the municipality', Hastings Street, in relation to the sweeping of the footpaths, the gutters and the road adjacent to the gutters.
[22] T 1-16, ll 20-23.
The Union submits that having regard to the history of the Awards and taking a purposive approach rather than a narrow or pedantic approach, the Commission has a sufficient basis upon which to conclude that the position occupied by Mr Smith is a technical position.
Respondent's submissionsThe Council says that the duties performed by Mr Smith, in the position of Parks Contract Officer, do not constitute a 'Technical position' for the purposes of the Award. The Council also submits that the qualifications held by Mr Smith are not relevant to a technical employee for the purposes of technical award employee progression.
The current modern Award
The Council submits that there is no express definition in the Award as to what constitutes a 'Technical Employee'.[23] The Council points to the Cambridge Dictionary definition of 'technical' as ‘involving or needing special skills or knowledge, esp in science or engineering (= the design and building of machines, equipment and structures)’.[24] The Council submits that Mr Smith's prime responsibilities do not meet the definition of 'technical', nor do the duties fall within the Award descriptors specific to Technical employees.
[23] T 1-15, ll 41-44.
[24] Respondent’s closing submissions filed 7 October 2022, [5]; Cambridge Dictionary (online at 7 October 2022) ‘technical’.
The Council points to the Award's classification structure which has 'Additional responsibilities specific to Technical employees' and says that this should be considered in the context of the Award as a whole to assist in defining what constitutes a 'technical employee'.[25] The Council submits that consideration should also be given to the 'Additional Responsibilities' attributed to Technical employees at all levels below Level 4 (and Level 5) as it is appropriate to expect that an employee at Level 4 (or Level 5 for that matter) would be required to meet the specific responsibilities attributed to lower levels.[26]
[25] Queensland Services, Industrial Union of Employees v Isaac Regional Council [2016] QIRC 107, [28]; City of Wanneroo v Holmes (1989) 30 IR 362, 378-379.
[26] Respondent’s closing submissions filed 7 October 2022, [6].
The Council submits that the 'Additional responsibilities' specific to Technical employees refer to two possible employment 'sub-streams' in which Technical employees might be engaged, (a) where the prime responsibility is to supervise the work of outside employees; and (b) where the prime responsibility lies in a technical field.[27]
[27] Ibid [7]; T 1-16, ll 6-15.
The Council submits that Mr Smith's prime responsibility is not supervising the work of outside employees and that he does not supervise anybody,[28] whether indoor or outdoor employees,[29] and he has no direct reports in Council.[30] The Council further submits that Mr Smith does not directly supervise the employees of contractors engaged by the Respondent.[31]
[28] T 2-41, l 31; T 3-52, ll 2-4; T 3-18, ll 4-7.
[29] T 3-52, ll 2-4.
[30] T 2-41, ll 33-36; T 3-18, l 13.
[31] T 3-52, ll 24-29; T 1-16, ll 6-15.
With regard to the key responsibilities of Mr Smith's Parks Contracts Officer position description,[32] the Council notes that Mr Smith does not perform the duties associated with landscape maintenance and has diminished responsibilities in regard to street cleaning or sweeping services (albeit acknowledging that he retains some of those responsibilities).[33]
[32] Exhibit 12.
[33] T 2-41, ll 13-19; T 3-49, ll 44-45; T 3-50, ll 6-7.
The Council submits that Mr Smith's prime responsibility is that of contract administrator[34] and that this position is predominantly occupied with ensuring contractors engaged by the Council perform their various services and activities and carry out their contracted responsibilities to the required standard.[35] The Council says that this work is 'considered to be largely, if not wholly, administrative in nature.[36]
[34] T 3-42, ll 14-15.
[35] T 2-41, ll 25-28; T 3-18, ll 4-7; T 3-49, ll 32-35.
[36] T 2-43, ll 17-23; T 3-18, ll 20-21; T 1-16, ll 24-28.
The Council says that the Award specifically refers to technical fields as including 'construction, engineering, surveying and horticulture' and says that Mr Smith's prime responsibility does not lie in such a field.[37]
[37] T 2-42, ll 1-11; T 3-18, ll 16-18; T 3-18, ll 20-21.
The Council says that the duties performed by Mr Smith, and advanced in the Union's submission, do not support a view that Mr Smith is a Technical employee nor that such duties satisfy the 'Additional responsibilities specific to Technical employees'.
Ms Carlaw’s evidence
Ms Carlaw is the People and Culture Advisor for Noosa Shire Council.[38] Ms Carlaw was asked to look at Mr Smith’s previous role description of Park Supervisor Technical Assistant and his current role description of Parks Contract Officer. Ms Carlaw said that she believed that responsibilities numbered from 9 to 13 were removed from the Parks Technical Assistant Position and that those duties are not performed by the Parks Contract Officer position.[39] Ms Carlaw noted that the Parks Contract Officer position does not have as a responsibility to ‘supervise and inspect operations undertaken by internal staff’. Ms Carlaw’s understanding is that the Parks Contract Officer position is to ‘administer the contracts to ensure that the facility – sorry, facilities are maintained to a high standard.’[40]
[38] T 3-16, ll 11-31.
[39] T 3-16, l 43 – T 3-17, l 5.
[40] T 3-17, ll 12-15.
Ms Carlaw said that she does not consider Mr Smith’s role to be technical because ‘it’s administering contracts and when you look at the Award it says that there’s two additional responsibilities that are required for a technical role, which is to supervise employees and to work in the technical field, and I don’t believe that this role does either’.[41] Ms Carlaw said that there are no direct reports to Mr Smith and that she does not believe that he is ‘responsible for the performance of employees per se’.[42]
[41] T 3-17, ll 41-46.
[42] T 3-18, ll 1-13.
Ms Carlaw said that the Award refers to four disciplines as technical: horticulture, engineering, construction and surveying and that Mr Smith’s role does not fall into one of those disciplines. Rather, Ms Carlaw said that she would categorise the field of Mr Smith’s role as administration. Ms Carlaw also said that she considered the Certificate IV in Project Management to be an administrative rather than technical qualification.[43]
[43] T 3-19, ll 24-32.
Mr Henderson asked Ms Carlaw what she believed the effect was of removal of the supervision of internal staff from Mr Smith’s position. Ms Carlaw appeared to say that the impact related to progression under the Award. Although, Ms Carlaw agreed with Mr Henderson’s observation that the position began as a Level 4 and had always been a Level 4, whether Mr Smith supervised staff or not.[44]
[44] T 3-28, l 19.
Ms Carlaw said that in determining that Mr Smith’s role was not a technical role, she did not have regard to the Awards which preceded the Queensland Local Government Industry (Steam A) Award – State 2017 or the Trialling Document.[45]
[45] T 3-29, l 10 – T 3-30, l 5.
Ms Carlaw was shown Exhibits 20 and 22 which are role descriptions for jobs considered technical. That role description lists as an essential qualification, ‘Certificate IV in Civil Construction, Local Government Operational Works, Project Management or other relevant technical qualification or equivalent knowledge’. Ms Carlaw said that she did not consider the Certificate in Project Management to be a technical qualification and that she did not think that the part of the role description Mr Henderson referred her to implied that the Project Management Qualification was a technical qualification.[46] Ms Carlaw maintained that despite the language used in the position descriptions, Project Management was an area that would assist in the administration of the role but that it was not a technical qualification.[47]
[46] T 3-30, ll 23-43.
[47] T 3-31, ll 20-46.
It was put to Ms Carlaw that in the past Awards, Works Inspectors’ duties included supervision and inspection of contract works, that this aligned with her description of Mr Smith’s role as ‘administering contracts’ and that in the past, this role had been capable of being classified as a technical employee. Ms Carlaw said, ‘it would be taken into context of all of the duties required’.[48]
[48] T 3-32, ll 8-25.
Ms Carlaw agreed that administering contracts involved administering, supervising and inspecting contract operations undertaken by contractors.[49] However, in re-examination, Ms Carlaw was taken back to Exhibit 20, a technical position description, and she noted that that role description included a requirement to hold a Work, Health and Safety Competency Card and a course in General Safety Induction (Construction Industry) and said that this aligned the position with a technical discipline. Ms Carlaw also said that that role description listed as a duty: to directly supervise and control the day-to-day activities involved in construction projects. Ms Carlaw said this was a reference to a technical field and distinguished it from Mr Smith’s position. Ms Carlaw agreed that Exhibit 22 similarly made specific reference to the construction field and the need for a course in General Safety Induction and Working Safely in the Construction Industry.[50]
[49] T 3-32, ll 27-30.
[50] T 3-34, l 18 – T 3-35, l 31.
Mr Smith's duties and qualifications
Mr Smith’s evidence regarding his duties
Mr Smith commenced working for Noosa Shire Council in April or May of 1996 as a motor mechanic.[51] Prior to that, he completed an apprenticeship with the Australian Army.[52]
[51] T 1-58, ll 12-15.
[52] T 1-58, l 18.
Mr Smith recalled that after working for three years as a motor mechanic, he transferred to a construction crew and worked as a labourer and truck driver undertaking work such as stormwater pit installation and drainage. Following that, Mr Smith moved to what was then called the Water Board and undertook ‘installation of trunk mains, water valves, reticulation’. From there, he became a patrol officer which is a ‘local laws-type position’. In that role, he patrolled ‘… animal control, parking [and] some illegal advertising signs’. Following that, Mr Smith was a ‘vector control officer’ for six months when the Council’s vector control officer was on an extended period of leave. He said that he was able to undertake the role but that he was required to obtain a pest management technician’s licence and a boat licence. Mr Smith then undertook a position as the ‘sediment control officer’ in which he would deal with builders and ‘make sure that they weren’t releasing… sediment into the waterways’.[53]
[53] T 1-58, l 25 – T 1-59, l 35.
Following these roles, Mr Smith said that he moved to the Technical Assistant Works position. Mr Smith recognised Exhibit 8 as the internal advertisement for the role that he saw. One of the requirements of that job was substantial experience supervising minor contacts or upgrades. Mr Smith’s evidence appeared to be that in his role in vector control, he had a small amount of experience in working with contractors working in public toilets and that he thought the role would entail similar tasks or have some crossover.[54]
[54] T 1-59, l 43 – T 1-60, l 2.
Mr Smith recalled that he was interviewed for the position by Mr Wayne Brogden who was ‘Team Leader Works’. When asked at the interview why he would be good in the role, Mr Smith said that he had spent time with sediment control and builders which made him confident that he could educate contractors and ‘get them to do the job’. Mr Smith did not recall being asked about his qualifications at that time.[55]
[55] T 1-60.
Mr Smith was taken to the position description for ‘Technical Assistant Works’.[56] Mr Smith recalled that he commenced supervising contractors when he started in the job but that he did not supervise anyone else.[57] Mr Smith was taken to the first of the key responsibilities for the role, which is to ‘Administer, supervise and inspect works undertaken by maintenance and service contractors.’ Mr Smith was asked what it meant for him to meet that responsibility. Mr Smith said that Council had an ‘auditing process’ which involved going to sites and scoring the standard of cleaning or mowing undertaken by contractors. He also explained that his role involved problem solving and supporting the contractors to undertake tasks, including where any obstacles arose. This involved determining whether the work was satisfactory and that the work was being done in accordance with the agreement.[58]
[56] Exhibit 9.
[57] T 1-61, ll 14-17.
[58] T 1-61, ll 14-36.
With regard to the second listed responsibility from the role description, ‘Negotiate variations with contractors’, Mr Smith said that his role involved making changes where necessary to specifications set down at a point in time. Mr Smith said that he would make a judgment about whether the quoted price was reasonable.[59]
[59] T 1-62, ll 1-6.
While the responsibilities of the role set out in the document included ‘prepare annual budgets’ and ‘monitor expenditure for budget areas’, Mr Smith said that he did not prepare the budget himself but that he would track the amount of money in the budget to forecast what would be needed next time.[60]
[60] T 1-62.
Mr Smith recalled that part of his role involved making judgments about whether to suspend a cycle of mowing during dry times when the grass did not need to be cut. He agreed that this would involve conducting an inspection and making a recommendation that the grass did not need cutting.[61]
[61] T 1-62, l 36 – T 1-63, l 3.
With regard to the key responsibility to ‘resolve problems with contractor performance’, Mr Smith said that he often had to do so, but not at a ‘high level’. Mr Smith said that Council was ‘lucky to have good contractors generally’ and that he was able to get them to do the work. Mr Smith said that he did not have major problems but that if things were missed, his role was to get them fixed up.[62]
[62] T 1-63, ll 5-13.
Mr Smith said that his role also involved liaising with other sections of Council, for example, if there was an event occurring in a park, he might have to vary the schedule to ensure that the park is mowed before the event.[63] Mr Smith said that another part of the role involved identifying hazards when he was onsite and passing that information on.[64]
[63] T 1-63, ll 15-24.
[64] T 1-63, ll 30-37.
Mr Smith said that when a contract came due, he would make sure the contract was current and reflected any areas added in, considering the performance of the existing contractor and whether they should come ‘back on’ or if they ‘weren’t the right contractor for the job’.[65]
[65] T 1-64, ll 4-12.
Mr Smith agreed that at the time he commenced in the role, one of the tasks involved checking sharps disposal containers. Mr Smith said that he does not undertake that task anymore.[66]
[66] T 1-64, ll 16-19.
Mr Smith agreed that to ‘carry out minor repairs within contract areas’ was a responsibility of the role but said that it is no longer part of what he does and that while at the time there was ‘some toilet seat replacement’, he did not recall having to replace light globes and believed that at that time there would have been electricians to do that work.[67]
[67] T 1-64, ll 21-26.
Mr Smith said that with regard to responsibility of ‘checking accuracy of invoices’, when the contractor’s invoices came in, he would make sure that the contractor was not overcharging or undercharging.
Mr Smith agreed that not long after he commenced with Council, there was an amalgamation and that he was given a new position description from the Sunshine Coast Regional Council.[68] Mr Smith was asked how the position varied he and said that he thought the position ‘basically just rolled on’. Mr Smith said that as time rolled on, he reported to different people and moved to the Parks Department in Caloundra but that initially his place of work was the same and in the early days, the work was the same. Mr Smith said that over time, that broadened and he ended up doing 19 contracts and landscaping contracts further south.[69]
[68] Exhibit 10.
[69] T 1-65, ll 17-22.
Mr Smith was shown a further position description dated 12 March 2012. He said that he did not recall being handed the position description but that he recalled the time and what was going on at that time. Mr Smith said that he did not recall this changing his work other than the landscaping aspect. Mr Smith agreed that the position description included some additional areas of responsibility: parks mowing changed to turf maintenance and there was the addition of street cleaning, sweeping and roadside litter removal. Mr Smith said that barbeque cleaning was not on the position description but that he continued to keep that as a part of his position. Mr Smith also said that he retained ‘beach cleaning’ but that it was wrapped up in ‘cleaning’.[70] With regard to the responsibility to ‘provide administrative support in relation to business activities’, Mr Smith said this entailed ‘just, like, the occasional email to a contractor, you know, with regard to performance, all those sort of things’.[71]
[70] T 1-65 – T 1-66.
[71] T 1-66.
Where the original position description referred to providing support to the Team Leader Technical Support, the new position description stated: ‘provide support to the parks and gardens team, park leaders, contract officer and operations manager’. Mr Smith said this meant that ‘essentially, they just left me to run the contracts’. Mr Smith did not recall there being any qualification required for the position and said that the position just seemed to roll over.[72]
[72] T 1-67.
Mr Smith was shown the position description for Parks Contract Officer Noosa Council dated 1 October 2014, which he was provided with after the de-amalgamation.[73] Mr Smith said that he was asked if there were any qualifications he had that needed to be put into the position description and he advised that he had a Certificate IV in Project Management. Mr Smith said that nothing was said to him about the job changing and that he did not expect the job to change. Mr Smith was of the view that the role had moved from a Level 3 to a Level 4 when the de-amalgamation occurred and that it had stayed at a Level 4. Mr Smith was asked about the circumstances which led to the job being moved from a Level 3 to a 4 and he said that he thought he may have requested it. Mr Smith said that there was no pay parity between the two councils and that he found that he was going to a role at one pay level and there were other officers doing a ‘like-type role’ and that he had asked to be changed.[74]
[73] Exhibit 12.
[74] T 1-68.
Mr Smith said that he was not aware of which particular stream of the Local Government Officers Award his position was classified in. Mr Smith recalled that the title of the position changed from Parks Contracts Support Officer to Parks Contracts Officer. Mr Smith did not recall any change in what he was expected to do at work following the change of title.[75]
[75] T 1-69.
Mr Smith was taken to Exhibit 11, the position description dated 12 March 2012, which provided for a key responsibility to ‘Administer, supervise and inspect operations undertaken by internal staff, contractors and day labour staff to ensure compliance with service standards set by parks and gardens services.’ Mr Smith was asked if he was doing all of those things. He said that he was not supervising day labour except for a time where another supervisor went on leave and he backfilled.
Mr Smith agreed that the services in parks and gardens included: landscape maintenance, turf maintenance, cleaning of parks infrastructure and public open space, including cleaning of public toilets, street cleaning, sweeping and roadside litter removal services.[76] Mr Smith said that the requirement to assist with financial aspects of services contracts was the same as it had been previously and that providing administrative support did not entail anything new.[77]
[76] T 1-69, ll 36-44.
[77] T 1-70, ll 1-10.
It appears that Mr Smith remained a part of the ‘Parks’ Department throughout this time and that ‘Parks’ was a part of ‘Civil Operations’. There was a point at which Mr Smith was reporting to Mr Brogden as the Technical Officer but after Mr Brogden left, he ‘just kind of slid back under the parks wing’.[78]
[78] T 1-70, ll 20-30.
Mr Smith explained that undertaking audit inspections involved going on site and conducting the assessment. The inspection checklists were originally paper based but then became an electronic document.[79] Mr Smith said that in undertaking the assessments, he used criteria ‘based on whether it’s desirable or the minimum standard or whether it needs rectification’. Mr Smith said that he follows the wording on the audits.
[79] Exhibit 13.
Mr Smith was asked about the circumstances which led him to undertake the Certificate IV in Project Management. Mr Smith said that an opportunity was offered to do the training through Noosa Council. Mr Smith said that his manager at the time thought it would be worthwhile for him to do so in his role. Mr Smith said that since completing the Certificate, he has used it in his role.
Under cross-examination, Mr Smith was taken to the role description for the Level 4 position dated 6 January 2009 and labelled version 2.[80] Mr Smith was taken through a number of responsibilities on that list and stated that while some of the wording in that document did not appear in the current document, he believed his role had not really changed in practice. However, Mr Smith said that his current position did not have a ‘callout’ requirement and that while he monitored expenditure through the contractor’s invoices, he did not do so with other invoices.[81]
[80] Exhibit 15.
[81] T 1-79 – T 1-80.
It was put to Mr Smith that his role was really one of ‘contract administrator’, in that his prime responsibility is that of administering contracts to ensure that the obligations under the contracts are actually fulfilled.[82] Mr Smith said that there are administrative aspects to it but also supervisory aspects. Mr Smith said administrative aspects included ‘processing invoices, so checking invoices to see that they’re correct and then approving them for payment’. In terms of supervision of contracts, Mr Smith said, ‘I go out and make sure they’re doing the job that we’re paying the contractor to do.’
[82] T 1-80, ll 32-36.
Mr Smith said that at times when he is onsite identifying issues with the work, he liaises with the operations manager of the mowing contractor or a site foreman where there is one. However, Mr Smith identified that there are small contractors where the person doing the work is actually the contractor and so, he would be speaking to the worker directly. Mr Smith was asked if this meant that he was ‘supervising those persons’ and he said that he was. When asked what he meant by ‘supervising’ them, he said ‘Well, when I’m there, if they’re conducting the works, well then, I’m standing there, observing them doing the work’. Mr Smith was asked if the workers had a supervisor and he said that in the case of the worker being the business owner, there was no supervisor.
Mr O’Connor’s evidence regarding Mr Smith’s duties
Mr O’Connor said that he was the line manager of Mr Smith’s supervisor. Mr O’Connor was shown Mr Smith’s position description[83] and agreed that it generally describes the duties carried out by Mr Smith. However, Mr O’Connor said there had been some changes to the key responsibilities in the position description. Mr O’Connor said that contract administration of the landscape services is undertaken by the roads landscape supervisor and that the road street sweeping contractor is done by one of the work supervisors. Mr O’Connor clarified that some of the cleaning contracts have an element of street cleaning within them.[84]
[83] Exhibit 12.
[84] T 2-41, ll 9-23.
Mr O’Connor said that Mr Smith does not supervise the work of outside employees, has no supervisory role and does not have any direct reports within the organisational structure.[85] Mr O’Connor said that Mr Smith’s prime responsibility is ‘essentially, with the established contracts that Council has, ensuring that those specifications of the contract are administered and delivered out in the field by the – by Council’s appointed contractors’.[86]
[85] T 2-41, ll 30-36.
[86] T 2-41, ll 25-28.
Under cross-examination, it was put to Mr O’Connor that in a number of cases, the person undertaking the contract work Mr Smith is inspecting, is actually the contractor or the proprietor of the business.[87] Mr O’Connor agreed but said that he believed that the inspection or supervision was of the activities performed to fulfil the requirements of the contract rather than providing instruction on how to actually do the work or undertake day-to-day activities.[88] As an example, Mr O’Connor said he expected that Mr Smith would instruct a worker that a toilet needed to be cleaned to a certain standard but not provide instruction on the technique to be used in cleaning the toilet.[89] Mr O’Connor confirmed that if Mr Smith found that a contractor was not complying with the contract, it could lead to escalation and inspection. Mr O’Connor’s evidence appeared to be that if Mr Smith had concerns about a contract, that would be reported to his supervisor at Council and this would be part of the information available to the procurement team for renegotiation or varying of a contract.[90]
[87] T 2-59, ll 10-30.
[88] T 2-59, ll 32-45.
[89] T 2-60, ll 1-4.
[90] T 2-60, l 36 – T 2-61, l 45.
Mr O’Connor was asked what he would consider to be technical work. He said that technical work involves ‘providing direction of maintenance activities on infrastructure, maybe modifying parts of infrastructure. It may be as simple as just undertaking cyclic activities such as preventative maintenance, and rendering infrastructure safe’.[91]
[91] T 2-41, ll 38-41.
Mr O’Connor said that he considered a ‘technical field’ to involve the following types of roles in Council: horticulturists; carpentry in trades; civil maintenance staff with a Certificate III or IV in Civil Construction and Maintenance; activities involving ‘various works from concreting to… curb and channel repairs, to replacing guard rails…’.[92]
[92] T 2-42, ll 1-7.
Mr O’Connor said that Mr Smith was not performing any of the duties in the technical field which he had described and said that Mr Smith was working within the contract area and administering contracts.[93]
[93] T 2-42, ll 9-15.
Mr O’Connor said that Mr Smith has a motor mechanics trade qualification but that there was no need for him to use that qualification in his current role. Mr O’Connor said that Mr Smith has a Certificate IV in Project Management and that Mr O’Connor does not consider that to be a ‘technical qualification’. Mr O’Connor said that he had utilised the Project Management Certificate for staff to gain skills in organisation, prioritisation and allocation of work.[94]
[94] T 2-42, ll 30-38.
Mr O’Connor agreed that someone who has a technical job may benefit from the skills developed in a Certificate IV in Project Management and said that this is the intent of the course.[95]
[95] T 2-56, ll 29-33.
Mr O’Connor was taken to a position description for civil works supervisor[96] which lists a Certificate IV in Project Management as one of the essential qualifications for the position. Mr O’Connor was of the view that such a qualification would not be enough for someone holding a bridge supervisor’s role and said to hold ‘a Certificate IV and not have any experience in bridge construction or carpentry would be of concern to me’.[97]
[96] Exhibit 20.
[97] T 2-57, ll 1-18.
Mr O’Connor recalled the technical duties Mr Smith had suggested support an argument that he is a technical employee. These included: undertaking assessments of hand cleaning soap dispensers for public toilets;[98] the measuring of Council’s areas mowed under the mowing contract to ensure that mowed areas matched the amount being charged or adding in anything that would change throughout the course of the year; and some litter bins being put in more suitable locations for servicing.[99] Mr O’Connor said that he was of the view that these were not technical duties and that they were of an administrative nature or involved ‘just having conversations with relevant parties to site’.[100]
[98] T 2-43, ll 1-7.
[99] T 2-43, ll 8-14.
[100] T 2-43, ll 16-23.
Mr O’Connor was asked to consider the first key responsibility listed on Mr Smith’s position description, to ‘Administer, supervise and inspect operations undertaken by contractors to ensure compliance with contract requirements including service standards’, in the context of two documents, the technical specification for mowing and weed control services[101] and the Noosa Shire Council general conditions of contract for goods and/or services.[102] Mr O’Connor said that both of these documents were relevant to Mr Smith’s Parks Contracts Officer position which he said involved administering ‘what’s in black and white within these contracts, to ensure that the contractor is performing as per what’s been documented’.[103]
[101] Exhibit 17.
[102] Exhibit 18.
[103] T 2-44, ll 20-31.
Mr O’Connor said that contractors would nominate a contract officer who Mr Smith would liaise with. Mr O’Connor said that Mr Smith would utilise checklists[104] developed within Council’s system to ‘regularly, routinely and daily go out and undertake inspections... to ensure that those works are completed by the contractor’.[105] Mr O’Connor said that other than undertaking inspections, Mr Smith ‘may get some phone calls or customer requests, and respond to those where there may be feedback from the community on the quality of the work that may or may not have been done’.[106] Mr O’Connor gave examples of an area of brush cutting or mowing that may have been missed or a public toilet that had not been cleaned to schedule.[107]
[104] Exhibit 13.
[105] T 2-44, ll 36-45.
[106] T 2-45, ll 18-22.
[107] T 2-45, ll 18-25.
Mr O’Connor was asked what he considered to be a Level 5 under the Stream A Award. He said that a Level 5 would be very proactive, undertake a lot of planning, develop programs, initiate changes to a contract and implement those changes.[108] Mr O’Connor said that he had not observed Mr Smith performing any of that type of work to date. Mr O’Connor appeared to say that undertaking inspections and using the checklists is proactive work but that Mr Smith’s other work was reactive, coming through customer requests. Mr O’Connor said he did not believe there had been initiation of changes to contracts without the involvement of Mr Smith’s supervisor or other technical staff.
[108] T 2-45, ll 38-41.
Mr O’Connor agreed that the Stream A Award lists additional responsibilities specific to technical employees. With regard to the category which states the prime responsibility to supervise the work of outside employees, Mr O’Connor repeated his earlier evidence that Mr Smith does not supervise the work of outside employees. With regard to the second category, where the prime responsibility lies in a technical field, Mr O’Connor again reiterated his earlier evidence that he did not believe Mr Smith works in a technical field.[109]
[109] T 2-74, l 45 – T 2-75, l 17.
Mr O’Connor said that Mr Smith is responsible for ensuring that what is in a contract is carried out. Mr O’Connor was shown a document called a Park Safety Environmental Checklist which had been prepared by Mr Smith.[110] With reference to that checklist, Mr O’Connor was asked how a person would go about ‘identifying whether all of the guards are in place and in working condition on a particular piece of machinery’.[111] Mr O’Connor said that he would assume a visual inspection of the equipment would need to be undertaken and he agreed that having a qualification in motor mechanics would assist a person to carry out such an inspection.[112]
[110] Exhibit 19.
[111] T 2-52, ll 31-33.
[112] T 2-52, ll 37-42.
Mr O’Connor was taken to an invitation to quote document and shown a place on page 2 where it stated that enquiries in relation to technical aspects of the contract are made by writing an email to Mr Smith. Mr O’Connor said that Mr Smith’s nomination as the person to handle enquires about the technical aspects of the contract did not change his view about Mr Smith’s role not being of a technical nature.[113]
[113] T 2-54, ll 1-10.
Mr O’Connor disagreed with the Union’s contention that Mr Smith being the contact person for enquiries about herbicide application meant that he would be required to have either qualifications in horticulture or equivalent industry experience in order to field technical enquiries. Mr O’Connor said that he understood Mr Smith’s role as a contact person to mean that upon first contact, he would seek a response from the relevant staff to provide an answer.[114]
[114] T 2-54, ll 12-28.
Mr O’Connor also agreed that the words ‘whose duties include the supervision and inspection of contract works’ would summarise Mr Smith’s duties.
The Respondent says that Mr O'Connor’s evidence demonstrates that the work Mr Smith advanced as demonstrating 'technical work', specifically, 'assessments of hand cleaning soap dispensers, measuring mowed grass and the placement of litter bins for servicing' are not technical duties.[115] The Council also says that the maintenance of fishing line recovery units, also advanced by Mr Smith as demonstrating 'technical work' was work undertaken on his own initiative and not part of his position description.[116] The Council submits that maintenance work should be performed by cleaners/maintenance crew pursuant to the cleaning services contract.[117]
[115] T 2-43, ll 1-8, 8-13, 13-14, 17-23.
[116] T 3-61, ll 24-25.
[117] T 3-61, ll 32-33; T 3-62, ll 16-18.
Mr Hansen’s evidence regarding Mr Smith’s duties
Mr Hansen is Mr Smith’s supervisor and commenced employment with Noosa Shire Council in January 2017.[118] Mr Hanson described Mr Smith’s predominant responsibilities as managing ‘two of our parks maintenance or maintenance contracts, that being the mowing and weed control contract and the cleaning of public amenities contract, so they are basically ongoing and daily work-type contracts’. Mr Hansen later clarified that the two contracts were undertaken by five or six contractors in total.[119] Mr Hansen said that part of the role involved conducting audits of the works, dealing with customer requests and dealing with variations to the contract, making sure that the contract is followed to the specifications.[120]
[118] T 3-49, ll 12-18.
[119] T 3-58, ll 11-34.
[120] T 3-49, ll 31-38.
Mr Hansen was taken to the key responsibilities on the position description[121] and was asked if any of those key responsibilities were not performed by Mr Smith. Mr Hansen said that street sweeping is a function of another team;[122] that there was an element of street cleaning within ‘at least one other contract’, and that supervision of contracts regarding landscape maintenance was generally done by another member of staff in terms of supervising contracts.[123] With regard to Mr Smith’s duties involving auditing, Mr Hansen was taken to Exhibit 13, the Landscape Evaluation Checklist. While Mr Hansen said that the contract subject of Exhibit 13 is no longer in place, he agreed that the audit conducted in Exhibit 13 is similar to the process undertaken by Mr Smith in auditing.[124]
[121] Exhibit 12.
[122] T 3-49, ll 43-45.
[123] T 3-50, ll 1-7.
[124] T 3-50, l 31 – T 3-51, l 7.
Mr Hansen was asked to describe exactly what Mr Smith’s role was with regard to the contracts he looks after. Mr Hansen said:
… predominantly, it’s auditing, it’s dealing with customer requests that are in relation to the functions of the contract. It’s liaising on a daily or weekly basis with the principals of those contractors, meeting them on site, going over some – you know, checking through to make sure things are being done… to specifications, liaising with the contractors, the principles and some of the staff to ensure that, you know, things are going okay, no issues… And it’s also working with scheduling changes throughout the year, according to season and around events and things like that. Also keeping track of expenditure throughout the year suing a contract tracker spreadsheet and processing invoices, so basically approving invoices for payment coming from the contractors.[125]
[125] T 3-51, ll 18-29.
Mr Hansen said that these contracts are generally on a five-year rotation. Mr Hansen explained that Mr Smith’s role in the tender process involves him assisting with specifications and refining them to ensure they are current regarding the type of work to be done.[126] Mr Hansen said that Mr Smith generally sits on the evaluation panel for tenders of the two contracts he is responsible for.[127]
[126] T 3-51, ll 31-40.
[127] T 3-51, ll 41-46.
Mr Hansen said that Mr Smith is not responsible for the supervision of employees of Council.[128] Mr Hansen said that some of the contractors have employees and some are owner-operators.[129] Mr Hansen’s evidence was also that Mr Smith did not directly supervise the employees of contractors. Instead, Mr Hansen said that Mr Smith ‘has a relationship with most of the people on the ground who have been there a while or that sort of thing and has a dialogue with them, but I don’t think directing them, as such. It would be more – if there was a direction required it would be done via the principals of the contracts’.[130]
[128] T 3-52, ll 1-4.
[129] T 3-52, ll 10-11; T 3-52, l 22.
[130] T 3-52, ll 24-29.
Mr Hansen was asked what aspects of Mr Smith’s work Mr Smith told him were of a ‘technical nature’. Mr Hansen recalled that Mr Smith had undertaken research into what options existed in terms of dispensers and soap, and what would be most effective and cost effective.[131] Mr Hansen also recalled that there had been a rollout of fishing line dispensers which had been done through the Noosa Integrated Catchment Association but was put into the Council cleaning contract for cleaners to service by way of removing the waste out of them. Mr Hansen said that this was something that was monitored by Mr Smith.[132]
[131] T 3-52, l 41 – T 3-53, l 2.
[132] T 3-53, ll 4-10.
Mr Hansen said he was not aware that Mr Smith’s job had previously been called a ‘technical assistant’.[133] With regard to whether the analysis of soap dispensers was a technical duty, Mr Hansen said that he was not saying that duty was technical or not and said he ‘… I don’t know. It depends on someone’s opinion of that. It has elements of… a technical component’.[134] With regard to the fishing line cleaning, Mr Hansen said that when those receptacles were damaged or blocked or requiring repair, ‘some of the time Mr Smith would do it himself because, you know, it was – he was just there and could do the job, rather than having to pass it on to other parts of Council to do’.[135]
[133] T 3-53, ll 33-34.
[134] T 3-53, ll 36-40.
[135] T 3-54, ll 1-7.
Mr Hansen agreed that it was a reasonable proposition that if Mr Smith was supporting the technical officer, he may be doing technical things.[136]
[136] T 3-57, ll 10-14.
The 1983 Municipal Award
The Council makes extensive submissions in response to the Union's reference to the Municipal Officers (Queensland) Consolidated Award 1983, the Local Government Trialling Document February 1992 and Mr Smith's 2007 position of Works Inspector and Technical Assistant.
[100]The Council then turns to the Union's reference to the Municipal Award and the Trialling Document and the position of Works Inspector and Technical Assistant position held by Mr Smith in 2007. The Council says that while the Union refers to 'Works Inspector', Mr Smith was never appointed to, nor classified, under the Municipal Award in such a capacity, and therefore cannot be said to have held such a role.[137] Further to this, the Council says that the Union's assertion that the Municipal Award classified a Works Inspector as a 'technical employee' is 'quite incorrect'.
[137] Respondent’s closing submissions filed 7 October 2022, [12].
[101]The Council submits that the basic structure of the Municipal Award is that clauses 7 to 34 each deal with a different group of municipal employees who are each separately named, described and granted a pay classification derived from a scale set out in clause 6. The Council says that Clause 20 is entitled 'Technical Classifications' and consists of more than four pages listing such employees and their classification descriptions which repeatedly referred to engineering and like roles. The Council says that many of the classifications are described as forms of supervisor, such as 'Technical Supervisor' and 'engineering supervisor' of various kinds. The Council says that cl 20 also refers to 'Technical Assistants' and 'Technical Officers' and that cl 21 does not make any reference to any form of technical employees as such but consists of five pages of description of surveyors of various kinds.
[102]The Council says that cl 22, 'Overseers, Foremen, et cetera', does not make any reference to, and is not concerned with, either of the groups of employees referred to in the preceding clauses, and in particular does not mention or refer in any way ‘technical employees of the kind specifically mentioned in clause 20.’ Clause 22 is solely concerned with: overseers, quarry managers, foremen in charge, foremen in general, and works inspectors. The Council says it is important that the employees mentioned in cl 22 are not included in the part of the Award that refers to 'technical employees', and there is no reference in cl 22 to technical work or technical employees. Further, the Council says that the only hallmark of any employee who is covered by the clause appears to be the carrying out of non-specific or generic supervisory duties.
[103]The Council submits that cl 22 of the Municipal Award did not intend to describe the employees mentioned in it as being 'technical employees'. The Council says that the expression 'technical employees' is actually used to describe the employees mentioned in clause 20 and that if it had been intended to also include the employees mentioned in cl 22, the draughtsperson of the Award could easily have done that.
[104]The Council says that the fact that cl 20 does not do so, and that clauses 20 and 22 are separated by an intervening clause 21, which itself adopts both the ‘AT’ scale (artisan and technical) and the ‘P’ scale (professional), indicates in the clearest possible terms that the adoption of the AT scale for the purposes of allocating a salary rate to employees mentioned in cl 22, does not have the effect of itself converting or designating any of the employees whose salary rates are drawn from the AT scale as being technical employees.
[105]The Council submits that for those reasons, the terms of the Municipal Award can be safely disregarded as having any bearing at all on the proper interpretation of the expression 'technical qualifications' or technical employees as where they appear in the current modern Award.
The Trialling Document
[106]The Council says that the Trialling Document emerged as a result of Award Restructuring approximately 30 years ago. The Council says that the classification structure that was trialled was developed in three streams which purported to absorb all of the previous award classifications: the Administration Services Stream, the Community and Environmental Services Stream, and the Technical Services Stream.
[107]The Council says the Trialling Document provides no information to show how the divisions between the streams were decided or the criteria adopted for that purpose. In the absence of an explanation as to those matters, the Council says that it is impossible to draw much assistance from the way in which the Trialling Document was prepared, as any kind of aid to the interpretation of the current modern Award.
[108]The Council says that that the trialling process was a paper trial only, and that the current modern Award has not adopted the same or similar structure to that recommended in the trial almost 30 years ago. The Council submits that in the time that has passed since the Trialling Document was prepared, there has been a massive shift in industrial standards, legislation and regulation and that it would be wrong to adopt a provisional paper trialling provision from the document as being a definitive description of a term used in a modern Award made 30 years later. The Council says that there is no line of inheritance between the Trialling Document and the current modern Award.
[109]The Council says that the placement of cl 22 classifications in the Technical Services Stream of the Trialling Document is entirely irrelevant to the meaning of the words ‘technical’ and all derivatives thereof and expressions using that word in the modern Award. The Council says that the structure of the Municipal Award is such that it cannot be said that Mr Smith is covered by a classification in that award to which he was never appointed, in circumstances where the existence of such a role is dependent upon a number of factors, including the active appointment of a person to that classification by their employing Council. The Council says that Mr Smith's position and duties have changed considerably since at least 2010 when he held the position of Parks Supervisor Technical Assistant, including the removal from the position description[138] of the requirement to supervise internal staff and removal of responsibilities items 9 to 13 and the key responsibility to 'Supervise and inspect operations undertaken by internal staff'. Further, the Council says that a position title itself is not evidence that the employee is a Technical employee.[139]
[138] Exhibit 15; T 3-16, ll 45-47.
[139] Queensland Local Government Officer’s Award Agreed Trialling Document (February 1992) 36.
[110]The Council notes that the position of Foreman Parks and Recreation, defined under cl 23(a)(i) of the Municipal Award as, 'an officer who supervises a gang, or gangs of workers employed in relation to the construction and/or maintenance work associated with a respondent Council's parks and/or recreation facilities' and the Parks and Recreation Technical Officer position, defined under cl 23(b)(i) of the Municipal Award as 'an officer employed on technical duties associated with parks and recreation projects who has obtained a formal qualification in a course approved by the employing respondent Council at a recognised tertiary education institution' were both categorised as positions that fell under the Community and Environment Stream of the Trialling Document as opposed to the Technical Services Stream. The Council says that this supports its submission that the historical and current meaning of a technical employee is an employee with prime responsibilities in supervising or engaging in technical fields of construction, engineering and/or scientific disciplines such as surveying, horticulture and the like.
Consideration
[111]The first question for arbitration requires me to consider whether Mr Smith’s position of Parks Contracts Officer, based on the duties he undertakes, is a Technical position as defined in the relevant part of the 2017 Award. The starting point for doing this is to consider the ordinary meaning of the words, read as a whole and in context.[140] I am also able to look to context and other documents. In approaching this task, I am guided by the principles set out above and considered by Merrell DP in ARTBU v BCC.[141]
[140] ARTBU v BCC (n 1) [73].
[141] Ibid.
[112]The Award does not contain a definition as to what constitutes a Technical employee. However, the Award does contain descriptors specific to Technical employees. References to Technical employees appear in the Award in the classification structure and through the provision of ‘additional responsibilities’ attributed to Technical employees at all levels below Levels 4 and 5. I agree with submissions that it would be expected that employees at Levels 4 and 5 would be required as part of their responsibilities to meet the responsibilities of the lower levels.
[113]Division 2, Section 1, Schedule 1 sets out characteristics, requirements, and responsibilities for each level. Included in each level are ‘additional responsibilities’ specific to Administrative employees, Community and Environmental Service employees and Technical employees.
[114]When turning to the ‘Additional responsibilities specific to Technical employees’, it is clear that there are two avenues or sub-streams of responsibilities which are stated to be undertaken by a Technical employee. These are:
·Where prime responsibility is for the technical oversight of work performed by outside employees; and
·Where the prime responsibility lies in a technical field.
[115]With regard to what may constitute a technical field, a review of the additional responsibilities for Technical employees shows different language at the different levels. Level 1 refers to ‘a technical/drafting field’, Level 2 refers to ‘a range of technical activities including the fields of construction, engineering, surveying and horticulture’ and Level 3 refers to ‘moderately complex functions in various fields including construction, engineering, surveying and horticulture’. Level 4 does not contain a reference to the technical fields but I am content that the technical fields as described in the lower levels should be assumed to be the basis of those descriptions at the higher levels.
[116]There was evidence to demonstrate that from time to time, Mr Smith would, under his own initiative but with the implicit approval of Council, undertake on the spot intervention such as repairing a fishing line receptacle or identifying a safety issue related to equipment, infrastructure or work being done.[142] There was also evidence that Mr Smith had, for example, undertaken work required to make a recommendation about soap dispensers in public toilets. However, it is clear to me that Mr Smith’s ‘prime responsibility’ did not lie in a technical field as I believe is envisaged by the inclusion of the fields of construction, engineering, surveying and horticulture in the Schedule.
[142] See above [97].
[117]While I note the example provided by the Union that Mr Smith is listed as a contact for enquiries about technical aspects of the contract on an invitation to quote document, my impression from the evidence is that this is a part of his position with regard to administering contracts and would involve Mr Smith seeking technical advice from the appropriate person in order to respond to the enquiry.
[118]With regard to the first of the additional responsibilities of a Technical position set out at [114], it is necessary for the evidence to demonstrate that Mr Smith’s prime responsibility was to ‘supervise outside staff’. In the Award, at Level 1 there is reference to ‘technical oversight of work performed by outside employees’, at Level 2, the reference is to ‘supervise outside employees’, at Level 3, the reference is to supervision of the work extending to several elements of the work, including planning and coordinating minor works. At Level 4 there is reference to exercising responsibility for work groups.
[119]There was evidence that Mr Smith is at times, involved in directly communicating with contractors about the work being undertaken as a part of the contract. I understand the argument made by the Union that in cases where Mr Smith is communicating with a sole contractor or owner-operator, he is effectively supervising the employee. However, I do not accept that this type of interaction constitutes ‘supervision’ as is envisaged by the Award. I accept the description of contract supervision put forward by Mr Hansen when asked what Mr Smith’s role was with regard to the contracts he looks after.[143] Interactions Mr Smith has with contractors result from his duties in administering the contracts under this responsibility. Mr Smith’s evidence was that in determining whether the contract was being complied with, he used a checklist or audit document which was pre-populated and where he recorded a ‘score’ for particular elements according to a 5-point scale. I accept the Respondent’s submission that Mr Smith’s prime responsibility with regard to contract supervision is more likely in the field of administration.
[143] See above [91]-[95].
[120]I have had regard to the Trialling Document and the Municipal Award given the Union’s argument that these documents provide a historical context as to how the description ‘technical’ has expanded over time. While the Union points out that the Trialling Document lists ‘Technical Assistants – Engineering/Works’ as being part of the Technical Stream, I note the Respondent’s submission that the existing Award classification of ‘Technical Officer – Parks and Recreation’ falls under the Community and Environmental Services Stream of the Trialling Document. It is therefore clear to me that the term ‘Technical’ as part of a role description did not of itself lead to a classification being deemed part of the Technical Services Stream. If I were considering the evidence about what Mr Smith’s role description requires and the evidence about the duties he undertakes and undertook an activity to backward map the position into the Trialling Document, I am of the view that it would likely sit under the Community and Environmental Services Stream. Though I would also observe that a range of the positions included in that document of February 1992 now either no longer exist or bear no resemblance to the positions to be found in a Council in current times.
[121]I also note that the Municipal Award lists Foreman (Parks and Recreation) and Technical Officer (Parks and Recreation) under cl 23, Parks and Recreation Staff. Clause 20 sets out Technical Classifications and lists Technical assistants – engineering/works, Technical officers – engineering/works, and Technical Supervisors – engineering/works. The structure of the Municipal Award is that from cl 7 to cl 34, various classifications are set out. There is no heading structure which places particular positions into ‘streams’ such as administrative, community and environmental services or technical services. I do not accept that cl 23 Parks and Recreation Staff is a sub-clause of cl 20 Technical Classifications. By way of another example from the document, cl 25 is Inspector – sewerage and/or water installation and cl 26 is Library Officers. While at some point in that document clauses appear to be grouped such that the roles falling under a particular area, i.e. community and environmental services sit together, this is not a consistent practice adopted in that document. I am of the view that best approach is to read each clause separately.
[122]For the reasons given above, I do not find that these historical documents are particularly helpful in determining whether the current role of Parks Contracts Officer held by Mr Smith falls under the Technical sub-stream of the 2017 Award.
[123]A number of position descriptions were considered during the hearing. I agree with the Union that the duties undertaken by Mr Smith have evolved over time through the amalgamation and de-amalgamation of the Council.
[124]Exhibit 9 is Mr Smith’s position description for Technical Assistant – Works. I have reviewed the key responsibilities for that position, the first of which is to ‘Administer, supervise and inspect works undertaken by maintenance and service contractors, to ensure compliance with contract conditions’. A review of the remainder of that position description makes it clear that what was being ‘supervised’ in that position was the contract itself, or the work product of contractors.
[125]It is clear that the position of Works Technical Officer set out in the Sunshine Coast Regional Council position description is very similar,[144] though it expanded the key responsibilities. The first key responsibility listed was to ‘Administer, supervise and inspect works undertaken by maintenance and service contractors, to ensure compliance with contract conditions’. This is the same as the previous position description and there is nothing contained in Exhibit 10 which leads me to believe that the two position descriptions were significantly different.
[144] Exhibit 10.
[126]Exhibit 11, the position profile for Parks Contracts Support Officer, Sunshine Coast Council, includes a change to the key responsibilities. In this position, the key responsibilities for the role includes: ‘Administer, supervise and inspect operations undertaken by internal staff, contractors and day labour staff, to ensure compliance with services standards…’. This document also lists ‘performance management’. It seems to me that an argument could be mounted that this position description may meet one of the Technical limbs of the 2017 Award given that it includes reference to staff and also includes performance management. The question would remain whether the work that was being undertaken was of a technical nature.
[127]However, Mr Smith’s current position for the purposes of this dispute is that of Parks Contracts Officer and the position description is Exhibit 12. This position description lists as a key responsibility, ‘Administer, supervise and inspect operations undertaken by contractors to ensure compliance with contract requirements including service standards…’. There is nothing in the key responsibilities listed in this Position Description which leads me to think that Mr Smith’s role either involved him working in a technical field or that he was directly supervising workers. Again, it appears to me that the supervision is of contracts, rather than individual workers. Mr Smith indicated that at times when he is in the field, he observes work being undertaken by contractors, however, it seems to me that Mr Smith would also be able to audit compliance with contracts by visiting sites at times when contractors are not present but work has been carried out.
[128]For the reasons given above, I am not satisfied that Mr Smith’s prime responsibilities fall under either ‘limb’ of the additional responsibilities of technical employees set out Schedule 1. As stated above, I do not think the work Mr Smith was undertaking was technical in nature.
[129]For the foregoing reasons, the answer to B/2021/61, Question 1, is ‘no’.
[130]As I have determined that the answer to question 1 is ‘no’, I am not required to go on to consider Questions 2 or 3 as consideration of those matters relied on a positive answer to Question 1. However, I make the following observations about the qualifications held by Mr Smith: a motor mechanic qualification would clearly be a technical qualification in the event that Mr Smith was employed in a technical field to which that qualification was relevant. A Certificate IV in Project Management provides a set of skills which could be applied in a range of fields. At Noosa Council, the Certificate IV in Project Management appears to be an essential or desirable qualification for someone performing some technical roles,[145] however it is clear that appointment to a position in the technical field would first and foremost require an individual to have a set of technical skills and knowledge. A Certificate IV in Project Management does not of itself provide technical skills and knowledge.[146] The evidence before the Commission demonstrates that there is no definition as to what a ‘technical qualification’ is. If one was a Technical employee and applying the skills and knowledge gained through the Certificate in undertaking their work, an argument could be made that the Certificate IV in Project Management would be sufficient for progression.
[145] Exhibit 20; Exhibit 22.
[146] Exhibit 23. The units in the TAFE Certificate IV in Project Management Practice are: ‘Apply project scope management techniques’, ‘Apply project time management techniques’, and ‘Apply project quality management techniques’. The elective units available vary, but could not be described as providing skills and knowledge specific to a technical field or discipline.
B/2021/69 - Mr Hohn
[131]For context, Mr Hohn graduated from the Central Queensland University with a Bachelor of Engineering (Civil) with First Class Honours in 2017. At his time at Noosa Shire Council, Mr Hohn worked as an Asset Systems Officer.
[132]As discussed above at [7], the question for arbitration in relation to Mr Hohn’s application is:
1.Does Mr David Hohn, in his position of Asset Systems Officer and in holding an engineering degree,
[272] T 3-7, l 45; T 3-8, ll 1-5.
[273] T 3-8, ll 7-8.
[215]Furthermore, Mr O’Connor was shown Exhibit 4, a bundle of the defect codes, and he said that this document was predominantly prepared on the basis of work done by Ms Comrie who did not have an engineering degree. Mr O’Connor said that he did not think that engineering principles were used in the preparation of the defect codes.[274]
[274] T 2-36, ll 1-18.
[216]Finally, Mr O’Connor was shown a document in Exhibit 4 called Retaining Wall Defect Pick Up Guidelines, and noted that it was a document in draft and had not been used. When asked what the process would be to sign off on this document for use, Mr O’Connor said that sign off would be done by himself as the manager of assets along with working groups consisting of various experts to ensure that the guidelines were fit for purpose and able to be put in practise.[275] Mr O’Connor said that the working groups have representation from the design team which includes design coordinators, a designated Registered Professional Engineer of Queensland (RPEQ), representation from the works area and there may be representation from the buildings and facilities area.[276]
[275] T 2-36, ll 44-47.
[276] T 2-37, ll 1-4.
Evidence of Mr Turner regarding Mr Hohn’s application of engineering knowledge in his work
[217]Mr Turner is an engineer and is the design co-ordinator for capital works at Noosa Council. Mr Turner said that he has a Bachelor of Engineering and is an RPEQ Engineer. Mr Turner said condition assessments are primarily conducted by the asset team but that his team will conduct the asset condition assessments for specific capital works projects such as road upgrades.[277]
[277] T 3-37, l 39 – T 3-38, l 2.
[218]Mr Turner described professional engineering services as comprising ‘the application of engineering principles to construction or design processes and typically that entails some sort of advanced calculations or …scientific-based calculations’. Mr Turner said he had not provided direct supervision to Mr Hohn providing engineering advice or services and that he had never signed off on any professional engineering advice or services undertaken by Mr Hohn. Mr Turner said he was unaware of Mr Hohn applying advanced, scientific calculations in his work and that based on the evidence he had seen, he thought ‘probably not’.[278]
[278] T 3-38, ll 17-35.
[219]Mr Turner was shown the IPWEA Guidelines,[279] the Footpath and Cycleway Guidelines and the Retaining Wall Guidelines. Mr Turner observed that the documents had similar formats, similar images were used, and in ‘some instances the criteria are very, very similar’. Mr Turner said that in his opinion, engineering principles were not applied to create the guidelines and that it ‘was an exercise in data extraction’.[280] Mr Turner said that in the documents ‘there’s no advanced engineering calculations, there’s no outcomes, it’s taking pre-existing information and putting it in a new format and updating it.’ Mr Turner said there were no engineering principles used in taking the photos for the documents.[281]
[279] Exhibit 6.
[280] T 3-39, ll 5-47.
[281] T 3-40, ll 4-15.
[220]Mr Turner understood that Mr Hohn had put together the defect codes on his own.[282] Mr Turner’s opinion was that there was no engineering applied in putting the defect codes together and that it involved ‘standardisation of basically the defects, so giving them names… naming attributes’.[283]
[282] Exhibit 4; T 3-40, ll 37-38.
[283] T 3-40, l 45 – T 3-41, l 2.
[221]Mr Turner said that he did not think an engineering degree was required to produce the guidelines and assessment documents but that there may have been some benefit from having an engineering degree.[284] Specifically, Mr Turner thought the benefit would be ‘generic skills, so report writing, inquisitive thinking, the ability to research standards and things like that… while he’s not doing – using retaining walls as the example, not doing the calculations required to work out the loading and the impacts and work out the condition of the retaining wall from that aspect, there are some benefits in just being able to report write, communicate, and work in teams, which is also taught within an engineering degree’.[285] Mr Turner said he was aware that Mr Hohn was the chair of the Pathways Working Group but said that he did not think engineering principles were applied or a degree was required to conduct a working group meeting.[286]
[284] T 3-41, ll 37-42.
[285] T 4-42, ll 13-22.
[286] T 3-41, l 44 – T 3-42, l 3.
[222]Mr Turner was asked if he had gained any particular skill in asset management from his training as an engineer and said ‘nothing more than the same skills I was talking about before: report writing, communication, that sort of thing. Everything else I would have picked up since... my degree’.[287] Mr Turner was taken to the detail of the Professional Certificate in Asset Management Planning and he agreed that the skills developed in the course were more relevant to Mr Hohn’s duties than an engineering degree and would assist Mr Hohn in undertaking his role.[288]
[287] T 3-45, ll 10-15.
[288] T 3-46, ll 20-27.
[223]Mr Turner said that gathering data about the assets would involve using a tape measure, looking at the materials and knowing if they were concrete or timber. Mr Turner said this is common knowledge within the industry and would not necessarily require an engineering degree.[289] Mr Turner agreed it was possible that someone with engineering training may draw more from their inspection and said that they ‘might have a deeper understanding of how the materials are designed or built’.[290]
[289] T 3-42, ll 26-45.
[290] T 3-43, ll 11-15.
Mr Hohn’s desire to progress to Level 5
[224]Evidence was led regarding Mr Hohn’s desire to progress to a Level 5 classification. Mr Hohn says that a number of meetings were conducted about his position and he performed tasks beyond his job description. He said that he was advised by Ms Comrie and Mr O’Connor that the Council would not support changes to his position description without proof that he could undertake the tasks. [291]
[291] T 1-32, ll 15-25.
[225]The Council led evidence that Mr O’Connor and Ms Comrie held concerns regarding Mr Hohn’s performance and that Mr Hohn wanted to be progressed to a Level 5 a lot quicker than ‘he was showing in his performance’.[292] Mr O’Connor recalled a number of conversations in which Mr Hohn expressed his desire for a Level 5 classification as he held a degree.[293] Mr O’Connor’s evidence was that he advised Mr Hohn there are degree-qualified people working for Council in Level 4 roles and Mr Hohn would need to demonstrate continued improvement in systems and staff development to progress to a Level 5, and Mr O’Connor was not seeing that.[294]
[292] T 1-90, ll 13-24.
[293] T 1-90, ll 5-11.
[294] T 1-90, ll 13-24.
[226]Mr O’Connor said that he would expect a person progressing to Level 5 to demonstrate key attributes such as initiative and working independently and capacity to ‘undertake end-to-end processes with very little supervision or seeking advice or support from their supervisor’. Mr O’Connor was of the understanding that Ms Comrie ‘brought David back into the Tewantin office and had him undertaking specific tasks that were closer to her that she could provide support to him…’.[295]
[295] T 1-90, ll 30-44.
[227]Ms Comrie recalled Mr Hohn speaking to her about his view that his role should be classified as a Level 5. Ms Comrie said her view was that the role was not Level 5 and that a Level 5 employee is a person who ‘would be bringing new processes and new development of these processes and documentation to the organisation’.[296]
[296] T 2-84, ll 29-31.
[228]Ms Carlaw was aware that Mr Hohn requested that the position of Asset Systems Officer be reviewed.[297] Ms Carlaw said that she believed that the role was reviewed using the Mercer methodology and that ‘it came out as a Level 3’ but was then banded as a Level 3/4.[298] Ms Carlaw said that to be banded as a Level 5, a role would have ‘more substantial key responsibilities to meet the level 5 and a qualification to undertake those responsibilities.’[299] Ms Carlaw agreed that a graduate role would commence at a Level 3 but enable a graduate to move to Level 5 throughout their employment in the role.[300]
[297] T 3-21, ll 44-45.
[298] T 3-22, ll 4-21.
[299] T 3-22, ll 34-35.
[300] T 3-24, ll 6-10.
Evidence of Mr Woodcock regarding Mr Hohn’s application of his engineering degree in his work
[229]The Union led evidence from Mr Woodcock, a mechanical engineer of over 30 years’ experience. Mr Woodcock works at Sunwater and was asked about matters pertaining to the professional development of graduate engineers. Mr Woodcock said that if an engineer was researching or looking for information about what they were trying to do or achieve, they would typically go to the Australian Standards and look at industry practice.[301] Mr Woodcock said that once an engineer had ‘ascertained those standards’, they would apply those principles as they worked.[302] Mr Woodcock said that he would adopt industry practice and look to what other organisations are doing and ‘come up with something that fits our application and purpose’.[303]
[301] T 2-7 – T 2-8.
[302] T 2-8, ll 10-14.
[303] T 2-8, ll 16-23.
[230]Mr Woodcock agreed that the IPWEA standard[304] would be something that would be used by someone developing asset performance guidelines. Mr Woodcock was asked if he could see ‘engineering input’ in the retaining wall defect pick up guides and he identified references to the Australian Standards and the Building Act 1975 (Qld).[305] Mr Woodcock noted that he is a mechanical engineer and not a civil engineer. He then said that in developing the document, he would expect an engineer to go out and look at the physical asset, look at the standard and start looking at what type of defects may occur.[306]
[304] Exhibit 6.
[305] T 2-12, ll 36-41.
[306] T 2-13, ll 1-8.
[231]Mr Woodcock was asked if a non-engineer would be able to do the work involved in the asset pick up guide for retaining walls. He said, ‘you need the knowledge and understanding of, you know, the assets and, you know, that side of things’. He said that someone studying a degree in civil engineering would have that knowledge and agreed that a person with an engineering degree would ‘come in with a little bit higher knowledge’.[307] Mr Woodcock then said that a person developing the guide would need ‘a background in civil engineering’ and said that this could be through study or through working in the industry.[308]
[307] T 2-13, ll 10-30.
[308] T 2-13, ll 34-46.
[232]Mr Woodcock appeared to be of the view that asset management involves application of engineering knowledge but that once the asset management framework and guides for assessment are developed, it is a prescriptive standard that other people could look at or use.[309] Mr Woodcock said that a civil engineer would have a greater understanding of the properties of particular materials but could not confirm the types of things a person would cover regarding materials in a civil engineering degree.
[309] T 2-14, ll 14-24.
[233]The thrust of Mr Woodcock’s evidence was that if a civil engineer was preparing an asset management plan, there would need to be some engineering input and information used and that a person with engineering training would approach development of the material on the basis of the knowledge that they have.
[234]Under cross-examination, Mr Woodcock was taken to the overview brochure for the Asset Management Planning Certificate. It was put to Mr Woodcock that Mr Hohn could have easily obtained the knowledge and skills to prepare the draft asset management plan and a risk management plan from completion of the Certificate course. Mr Woodcock disagreed and said that the asset management plan would need input coming in from both outside and within Council. He said that the person could prepare the plan but would need expert subject matter to input into it.[310]
[310] T 2-19 – T 2-20.
[235]Mr Woodcock was asked to compare the IPWEA document[311] to the Footpath and Cycleway Conditional Assessment Guidelines.[312] Mr Woodcock agreed that the two documents were very similar but noted that the Noosa document contained photos consistent with the Noosa assets.[313] Mr Woodcock said that it would not be unusual to copy material or update it for specific assets.[314] He also said that he could not see evidence of engineering-type calculations in the document.[315]
[311] Exhibit 6.
[312] Exhibit 2.
[313] T 2-23, ll 12-33.
[314] T 2-24, ll 3-11.
[315] T 2-24, ll 28-30.
[236]Mr Woodcock said he believed that Mr Hohn used his engineering background in putting the guidelines together.[316] It was put to Mr Woodcock that Mr Hohn’s development of the Retaining Wall Defect Pick Up Guideline is not an example of ‘professional engineering services’ per the Professional Engineers Act 2002 (Qld) as the definition does not include ‘an engineering service that is provided only in accordance with a prescriptive standard’. Mr Woodcock disagreed and said that while the guideline was a prescriptive standard, Mr Hohn had developed it and therefore provided an engineering service.[317]
[316] T 2-25, ll 11-14.
[317] T 2-25, l 20 – T 2-26, l 3.
[237]Mr Woodcock agreed that the position description for Mr Hohn’s role did not require an engineering qualification and said that this would not be surprising given it appears to be an administrative and database role.[318] However, Mr Woodcock maintained that Mr Hohn’s engineering degree would have been drawn upon more than the Certificate in Asset Management in terms of producing the guidelines.[319]
[318] T 2-26, ll 19-30.
[319] T 2-27, ll 1-12.
[238]At the conclusion of Mr Woodcock’s evidence, I confirmed with him my understanding of the evidence which was that a person putting together an asset management plan but who did not have an engineering degree may need to look further for information that a person with an engineering degree may more readily be able to locate. Mr Woodcock agreed that this was the case.
Evidence about whether Mr Hohn was undertaking engineering services under the supervision of an RPEQ
[239]Mr O’Connor said that in his view, Mr Hohn did not undertake engineering services and that he did not work under the supervision of an RPEQ. Mr O’Connor said that he was not aware of Mr Hohn undertaking any work under the supervision of Mr Hull. Under cross-examination, Mr O’Connor agreed that Mr Hohn would speak to Mr Hull on most days but said that he was not aware of what they talked about on a day-to-day basis and said that he was not privy to any conversations between Mr Hohn and Mr Hull regarding engineering matters.[320]
[320] T 2-70, ll 7-11.
[240]Ms Comrie said that Mr Hohn had a desk within the building where Mr Hull was the workshop manager but that Mr Hohn did not report to Mr Hull.[321] Ms Smith said that Mr Hohn was not directly reporting to Mr Hull and that she would find it unusual if Mr Hull was supervising Mr Hohn.[322]
[321] T 2-90, ll 1-3.
[322] T 3-7, ll 33-34.
[241]Ms Smith said that if she were in the position Mr Hohn was undertaking and came across a retaining wall that was in poor condition, she would feel like it was her responsibility to let someone such as Mr Hull know about it.[323]
[323] T 3-11, ll 33-35.
[242]Ms Comrie said that if the ‘field support’ element of the position held by Mr Hohn was removed, it would become a ‘heavily system oriented’ position and that this would make it more complex. Ms Comrie said that as the system changed, all of the positions changed.[324]
[324] T 2-92, ll 27-47.
[243]Ms Comrie was asked a range of questions about the position description for the role which is now a Level 5 and includes as ‘essential’ the education requirements previously seen as ‘desirable’. Ms Comrie observed that there had been changes to the role and said that Mr Hohn’s engineering degree would meet the essential requirements in the event that Human Resources considered engineering a ‘related field’.
Consideration
[244]While Ms Comrie and Ms Smith said that an engineering degree was not required to complete the duties of the position, they also said that they do not have an engineering qualification themselves[325] and therefore it is difficult to know whether they would have a different view about whether Mr Hohn was applying knowledge gained from his degree.
[325] T 2-95; T 3-10, l 1.
[245]While I do not doubt Mr Woodcock’s professionalism and skill as a mechanical engineer, or that he gave evidence to the best of his knowledge as someone who does not work at Council and has not been involved with Mr Hohn’s work, I did not find his evidence particularly persuasive as it went to characterising Mr Hohn’s work as requiring the application of civil engineering principles and skills in the duties undertaken. I found the evidence of Mr Turner, a civil engineer who is familiar with Council’s civil assets, to be more persuasive. I have taken into account that Mr Turner works for Council and was a witness called by the Respondent, however I found him to be a reliable witness who provided straightforward and honest answers to the questions asked of him regarding Mr Hohn’s work and matters pertaining to civil engineering principles.
[246]While it is clear from the evidence that there were steps taken to provide Mr Hohn with tasks which may have fallen more within his area of interest and experience, I am not of the view that these were new tasks created for him as a result of his engineering background. The evidence indicated that Mr Hohn did not have the information technology experience or skill to enable him to seamlessly adapt to the new role. However, it was necessary to gather asset data, establish the guidelines and set up the defect codes and so while other team members addressed the technological side of things, Mr Hohn focused on these tasks. It seems to me that the tasks Mr Hohn was undertaking were required to be done and had Mr Hohn not undertaken those tasks, Ms Smith, Ms Comrie, or another employee would have done so. Further to this, it appears that Ms Comrie, as Mr Hohn’s supervisor, was the person most likely to supervise and approve his work and provide him with feedback. Ms Comrie is not an engineer.
[247]I note that Mr Hohn was commenced at Level 4 in a role banded 3-4 in recognition of a set of general skills Mr O’Connor thought he may bring to the role as a result of him holding a university degree and his previous experience. I did not form the impression that it was the engineering degree specifically, rather than a view that holding a degree of any kind would mean that Mr Hohn had a particular set of generic literacy, IT knowledge and communication skills. In addition to this, I note Mr Turner’s evidence about the general skills one gains through study at a degree level which may add to one’s effectiveness. I am not persuaded that this evidence means that Mr Hohn was required to apply his engineering knowledge and skill in his role, rather that he benefited from the general skills developed in his degree, along with his previous work experience. These are skills which could arguably be gained through experience and on the job training, however, commencement at Level 4 reflected a recognition of Mr Hohn’s probable possession of such skills as a result of his previous study.
[248]It is not surprising that Mr Hohn may have been able to undertake some tasks more efficiently as a result of holding an engineering degree and experience, or that he may have been able to undertake some of his tasks without needing to consult with or refer to other staff. However, I am unable to find that a person with a different degree or set of experiences would not similarly be able to apply their knowledge and skill to achieve a similar satisfactory outcome.
[249]Mr Hull was not called upon to give evidence at the hearing. While the Respondent’s witnesses were aware that Mr Hull and Mr Hohn were co-located at the depot and it did not appear to be controversial that Mr Hohn and Mr Hull would communicate about matters, there was no evidence before the Commission that Mr Hull supervised Mr Hohn’s provision of engineering services. I am unable to identify any work undertaken by Mr Hohn that would fit the definition of engineering services undertaken to the extent that Mr Hull would be required to supervise in his role as an RPEQ.
[250]The Union submits that the requirement is not that Mr Hohn needs to be carrying out the work of a professional engineer exclusively, but only that he be carrying out, some, not all of his work within the qualification. The Union says that this is not a high bar and that the requirement is ‘to no doubt safeguard against employees who are degree qualified being employed in a way which derives a benefit for the employer from having access to the higher level of skill, without having to pay the appropriate rate to an employee who has made a substantial investment in time and money to acquire the qualification’.[326] However, it must also be the case that where a person who has a degree chooses to apply for a position which does not require one, it does not follow that they should be paid as though they are in a position for which a degree was required. The evidence does not persuade me that Mr Hohn was performing work beyond that which was envisaged by his position or that the work he was allocated required him to hold an engineering degree or apply engineering knowledge and principles.
[326] Applicant’s closing submissions filed 23 September 2023, [66]
[251]Mr Hohn’s evidence was that when undertaking his work, he was using his engineering knowledge. I have no doubt that a person who holds an engineering qualification may approach tasks or problems from a perspective based in a particular way of thinking. Similarly, a person with a creative arts degree may approach tasks or problems from a different perspective. People are shaped by the study they undertake and the experiences they have. Adopting a ‘way of thinking’ and applying to it whatever day-to-day tasks we undertake, be it at work or beyond, is not necessarily something that can be switched on or off. We cannot ‘unknow’ the things we have learnt, but bringing our prior knowledge, gained through a degree or through other experiences to whatever tasks we undertake is not the same as undertaking, or being required to undertake work within that discipline.
[252]Having established based on the evidence that Mr Hohn’s day-to-day work could be undertaken by someone who did not have an engineering degree and that the position had no requirement at all for an engineering degree or any other degree for that matter, I am not satisfied that Mr Hohn’s engineering degree was relevant to his position. Further, I am not satisfied that the extensive evidence about the work tasks undertaken by Mr Hohn set out from [165]-[223], demonstrates that he was required to undertake work within his qualification.
[253]While there was evidence led about changes to the position description since Mr Hohn has left Council, I do not find this evidence compelling in circumstances where the question before me relates to the work Mr Hohn was undertaking during the time he was employed at Council under the role description relevant at the time.
[254]For the foregoing reasons, I find that in B/2021/69, the answer to the question for arbitration is ‘no’.
Order
1. The applications are dismissed. The answers to the questions for arbitration are set out at [129], [130] and [254].
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