City of Wanneroo v Australian Municipal, Administrative, Clerical

REASONS FOR JUDGMENT Introduction 1 On 25 August 2004 the Industrial Magistrates Court found that the City of Wanneroo (the City) had breached the Local Government Officers (WA) 1999 Award (the Award) by underpaying one of its Patrol Officers, Mr Michael Van Der Waarden. The basis of that finding depended upon Mr Van Der Waarden's classification under the Award. The City contended that he was a Community Services Officer (Welfare and ancillary services). The Australian Municipal Administrative Clerical and Services Union (the Union), which brought the proceedings, contended that he fell within the broader classification of 'Officer or Employee' and thus had entitlements to shift penalties which were not payable to a Community Services Officer. 2 On 7 June 2005 the Industrial Magistrates Court made orders for the payment of penalties owing to Mr Van Der Waarden in the amount of $438.99 together with interest. The Court also ordered that the City pay to the Union its disbursements of $40. It imposed no penalty. 3 The City has appealed against the Industrial Magistrate's decision on the basis that he erred in failing to find that the position of Patrol Officer was within the classification of a Community Services Officer under the Award. The City also argued that the learned Industrial Magistrate had erred in finding that it breached the Award by 'compelling' Mr Van Der Waarden to work a 40 hour week. It also argued that the Court had no authority to order the payment of the Union's disbursements. 4 In my opinion the learned Industrial Magistrate did not err in the way he approached the interpretation of the Award and in the conclusion that as a Patrol Officer, Mr Van Der Waarden was not a Community Services Officer within the meaning of the Award. The learned Industrial Magistrate did err in finding that the City had breached the Award by 'compelling' Mr Van Der Waarden to work a 40 hour week. However the finding as to an underpayment will stand subject to an adjustment in respect of the amount awarded. I am also satisfied that the order that the City pay the Union's disbursements was not authorised by law and should be set aside. Factual Background 5 In 2002 Michael Van Der Waarden applied for a position of 'Safer Citizens Patrol Officer' at the City. The position had been advertised in the following terms: SAFER CITIZENS PATROL OFFICERS - (10 Positions) Ref No 02/030 Salary: $31,213 - $33,785 pa The City's Safer Citizen Program is a proactive initiative established to expand and compliment existing community safety initiatives within the City. This progressive approach to community safety has many components, including an extensive safely [sic] patrol service. The successful applicants will have extensive experience in the Security field and effective interpersonal and customer service skills, along with demonstrated abilities in time management and conflict resolution. A current Certificate II Security Operation (or willingness to obtain one), police clearance, and an 'A' class drivers licence are essential. Shift work, including nights and weekend work will form part of the conditions of employment.' 6 Mr Van Der Waarden was appointed by the City to the position of Patrol Officer with effect from 2 September 2002. He occupied that position until 1 January 2004 under the terms of an Employment Contract (the Contract) with the City which he signed. 7 On 17 December 2003 a claim was lodged in the Industrial Magistrates Court by the Union. The City was named as respondent. The claim alleged that the City had failed to comply with the Award by not paying relevant shift work, overtime and weekend and holiday penalties to Mr Van Der Waarden. The claim was brought under the Workplace Relations Act 1996 (Cth) (the Act). 8 A statement of claim attached to the claim form referred to the Award and a Certified Agreement (the Agreement) to which both the Union and the City are parties. The Union claimed that the City had breached cls 21.6, 21.8.1 and 22.1.1 of the Award, read in conjunction with cl 13 and Appendix 1 of the Agreement by not paying Mr Van Der Waarden entitlements to shift work weekend and holiday penalties under cl 21.6, shift work penalties under cl 21.8.1 and overtime penalties under cl 22.1.1 for the pay period 4 July 2003. The Union claimed an amount from the City of $730.57 plus interest. It also sought an order for the assessment of fines and penalties with any financial penalty to be paid to it. The claim turned upon the Union's contention that Mr Van Der Waarden came within the definition of 'Officer or Employee' as set out in cl 3.9 of the Award. The City argued that he was a 'Community Services Officer (Welfare and ancillary services)' under cl 3.4 of the Award. 9 In a judgment delivered on 25 August 2004 the learned Industrial Magistrate held that the Union's contention was correct. He found that Mr Van Der Waarden came within the definition 'Officer or Employee'. He made some consequential findings but no orders. He adjourned the case to a date to be fixed in relation to the orders to be made. 10 On 15 September 2004 the City instituted an appeal against the judgment. However at that time the Industrial Magistrates Court had not made any orders. When the matter came on for hearing on 18 April 2005 the appeal was adjourned having regard to the absence of any orders. The appellant was given leave to apply by written notice on or before 31 May 2005 to relist the appeal for hearing of submissions as to jurisdiction. In the event that it did not so apply the appeal would stand dismissed as from 1 June 2005 without prejudice to the right of the City to appeal against any judgment or order made by the learned Industrial Magistrate in the matter. Directions were also given that in the event that a new appeal were lodged on the same or similar grounds as the first appeal, then the appeal books and submissions filed in that proceeding could stand as the appeal books and submissions in the new appeal. 11 On 7 June 2005 the learned Industrial Magistrate made final orders as follows: '1. The respondent shall pay to Michael Van Der Waarden the amount of $438.99. 2. The respondent shall pay to Michael Van Der Waarden pre-judgment interest at the rate of 6% on the amount of $438.99 fixed at $26.34. 3. The respondent shall pay to the claimant its disbursements of $40.00. 4. There shall be no order as to penalty.' 12 The previous appeal having stood dismissed by reason of the orders made on 18 April 2005, a second appeal was instituted against the learned Industrial Magistrate's decision on 24 June 2005. The appeal was brought under s 422 of the Act. The Employment Contract 13 Upon his appointment Mr Van Der Waarden signed the Contract with the City. The position to which he was appointed, as designated in the Contract, was 'Patrol Officer'. Clause 1 of the Contract provided, inter alia: '1.2 The Local Government Officers' WA 1999 Award ("the Award") and the City of Wanneroo Certified Agreement 2001 ("the Agreement") apply to the employment but the terms of the Award/Agreement are not incorporated into this Contract. … 1.4 The Employee's duties are those set out in the position description attached to this Contract. 1.5 The Employer may vary the Employee's duties in the position description provided the variation is reasonable and the duties are within the Employee's skills, competence and training.' 14 A Position Description attached to the Contract set out the primary objectives of the position of Patrol Officer in the following terms: '. Undertake a public relations role in the delivery of Safer Citizens initiatives . Maintain high levels of internal and external customer service . Provide active liaison with members of the community whilst on patrol . To attend to community safety related issues including (but not restricted to) council buildings and property . To promote Community Safety and Crime Prevention methods throughout the City . Record observations and report in an appropriate and timely manner to supervisory staff or Police . Attend court and give evidence in a professional manner . Regularly liaise with Safer Citizen partners' In s 8 of the Position Description the extent of the authority of a Patrol Officer was described thus: 'Work within established council procedures and policies and to enforce Acts, Regulations and Local Laws as authorised by the Chief Executive Officer, in consultation with the Manager Ranger and Safety Services.' Under the item 'ALLOWANCES/SPECIAL CONDITIONS' the following two points were included: '. 40 hour week . shift loadings as per LGOA Award 1999' 15 Clause 3 of the Contract dealt with remuneration. Clause 3.1 provided: 'The salary range for this position is Level 3 $34,688 - $37,546 per annum for a 40 hour week. Upon commencement, the Employee shall be entitled to a rate of pay of Level 3 Step 1 $34,688.08 per annum for a 40 hour week, being the current Award/Enterprise Agreement rate for the position of Patrol Officer.' 16 Clause 5 referred to 'Hours of Work' in the following terms: '5.1 The Employee's usual hours of work will be an average of 80 hours per fortnight. Such hours may be worked on any day of the week with a maximum of 10 hours to be worked on any one day. 5.2 A roster of required working hours will be provided with at least 72 hours notice being given of any change in the roster unless the Employer and Employee agree to a lesser period of notice of any change in the roster.' There were also provisions for sick leave, annual leave, bereavement leave and public holidays, which are not material for present purposes. 17 Importantly, it was not in dispute between the parties that although the Contract specified a 40 hour week and 'usual hours' being an average of 80 hours per fortnight, Mr Van Der Waarden was paid, consistently with the Award and the Agreement, overtime on the basis that his ordinary hours of work were 38 hours as specified in the Agreement. The Award 18 The Award is known as the Local Government Officers (Western Australia) Award 1999. It is a variation award made pursuant to a decision issued by the Australian Industrial Relations Commission on 12 October 1999 of the former Local Government Officers (Western Australia) Award 1988. 19 By cl 5 the Award is expressed to be binding on Local Authorities named in its First Schedule in respect of all their employees whether members of the Union, the Association of Professional Engineers and Scientists, Australia and on the Union and that Association. 20 Clause 3 of the Award contains a number of definitions which include: '3.4 Community Services Officer (Welfare and ancillary services) shall mean a person engaged by a respondent whose role is to encourage, promote or conduct community pursuits and whose aim is the maintenance or improvement of general social and living standards with regard to family support, services, income, welfare, employment, education, health, housing, children's, youth, aged and domiciliary services, or who is primarily concerned with the social and living standards in the community and shall include an Assistant Community Services Officer. 3.5 Community Services Officer (recreation) shall mean a person engaged by a respondent whose role is to initiate, coordinate, encourage, promote or conduct recreational activities within a community and shall include an assistant in relation to such functions and recreation centre and swimming pool staff. Provided that this definition does not include a person employed in a clerical capacity, for example Cashier/Receptionist, in a Recreation/Aquatic Centre. 3.6 Community Services Officer (Arts, Theatre and Museum) shall mean a person engaged by a respondent whose role is to raise the community's awareness of existing programmes, exhibitions, events, groups and organisations relative to arts and to encourage a positive and continuing interest in the arts within a community. An Officer may be a Theatre Manager who is responsible for the supervision of Theatre workers and coordination and promotion of activities of the Theatre, or a Museum Supervisor who is responsible for the overall supervision, care and maintenance of an employer's Museum.' 21 Clause 3.7 defines a Law Enforcement Officer thus: '… shall mean an employee employed to patrol, within the geographical confines of a Local Authority, for the purpose of watching, protecting or inspecting all property belonging to the Local Authority and/or to enforce one or more of the Authority's By-Laws or any Acts of Parliament which that Authority is empowered to enforce.' It is not in dispute that the position occupied by Mr Van Der Waarden was not that of a Law Enforcement Officer within the meaning of cl 3.7. 22 Clause 3.9 defines the classification which the Union says applies to Mr Van Der Waarden, namely that of 'Officer or Employee'. That term is defined thus: 'Officer or Employee shall mean a person appointed by a Local Authority to one of the classifications in this award, a person engaged by a Local Authority as a Trainee in accordance with clause 16 - Traineeships, and any other person appointed by a Local Authority to a non-elective office necessary to the proper carrying out of the power and duties imposed upon the Local Authority by the Local Government Act, 1995, its successor and/or any other Act.' 23 Clause 13 relates to minimum annual salaries to be paid to officers. Clause 13.1 provides: 'The minimum annual rate of salary to be paid to Officers shall be in accordance with the rates set out in this clause.' Clause 13.5 sets out the general minimum salary scale. Mr Van Der Waarden was appointed to a Level 3 position. The general minimum salary scale so far as it relates to Level 3, as extracted from cl 13.5, is as follows: 'The following is the General scale of minimum annual salary rates payable, listed opposite level and the scale numbers referred to elsewhere in this award. Level Age Rate Level 3 $32,334 $32,966 $33,598 $34,491' It should be noted that these rates are to be read in light of the Agreement. 24 Clause 15.8.3 sets out characteristics of Level 3 positions (15.8.3(a)), the requirements of the job at that level (15.8.3(b)), the responsibilities of Level 3 jobs (15.8.3(c)), Level 3 organisational relationships (15.8.3(d)), the extent of authority at Level 3 15.8.3(e)). 25 Part 6 of the Award deals with 'Hours of Work, Breaks, Overtime, Shift Work, Weekend Work'. Clause 19 provides for the hours of work. By cl 19.1.1 the average minimum is 38 ordinary hours to be worked by mutual agreement Monday to Friday between 7.30am and 6pm. Clause 19.1.2 provides: 'The average hours of work will not exceed 38 hours per week to be worked on one of the following bases: . 38 hours over seven consecutive days or . 76 hours over fourteen consecutive days; or . 114 hours over 21 consecutive days; or . 152 hours over 28 consecutive days; or such further extended cycles as agreed between employer and employees which produces an average 38 hours per week.' 26 Clause 19.5.1 provides in relation to Community Services Officers: 'Notwithstanding the provisions of 19.1.2 hereof, the ordinary hours of duty of Community Services Officers defined in accordance with clause 3 - Definitions of this award, shall not exceed an average of 38 per week, to be worked subject to 19.1.2 within a spread of ten hours on any day Monday to Sunday which shall include a meal break not exceeding one hour's duration, provided that Aquatic/Swimming Pool Officers shall be entitled to partake a meal whilst on duty without loss of pay.' 27 Shift work is governed by cl 21, which provides, inter alia: '21.1 The provisions of this clause apply to shift work whether continuous or otherwise rostered to work ordinary hours different to those provided under clause 19 - Hours. 21.2 An employer may work any section or sections of his/her work force on shifts but before doing so shall give notice of his/her intention to the Union and of the intended starting and finishing times of ordinary working hours of the respective shifts. 21.2.1 The ordinary hours of an Officer on shift work shall not exceed 38 hours per week, or an average of 38 hours over a two, three or four week work cycle.' 28 Clause 21.5 provides: 'A shift employee, when on afternoon or night shift, shall be paid for such shift 15% more than his/her ordinary rate prescribed by this award.' 29 Clause 22 deals with overtime. In particular, it provides: '22.1.1Overtime shall mean all work performed in excess of the ordinary hours on any day, or outside the spread of ordinary hours on any day, or in excess of the ordinary weekly hours and except as hereinafter provided, shall be paid for at the rate of time and a half for the first two hours of overtime on any day and double time thereafter. 22.1.2 All time worked after twelve noon on Saturday and all time worked on Sunday shall be paid for at the rate of double time.' 30 Clause 22.8 relates to 'Reasonable Overtime' and provides, inter alia: '22.8.1Subject to subclause 22.8.2 an employer may require an employee to work reasonable overtime at overtime rates. 22.8.2 An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to:…' There follow a number of factors such as risk to health and safety, personal circumstances, the needs of the workplace, the notice given by the employer of the overtime. The Agreement 31 The Agreement is the City's Certified Agreement 2001. It is expressed to apply to the City and to the Union and to: 'all current and new employees who are employed during the term of this agreement in accordance with the Local Government Officers (Western Australia) Award 1999 (Federal).' 32 The relationship of the Agreement to the Award is set out in cl 8 thus: 'RELATIONSHIP TO THE AWARD 8.1 This Agreement shall be read and interpreted wholly in conjunction with the Local Government Officers (Western Australia) Award 1999 (Federal). 8.2 Where the Award and the Agreement are inconsistent the Agreement shall apply in its entirety. 8.3 Award is interpreted as including any amendments made during the life of this Agreement.' 33 Clause 13 of the Agreement provides: 'WAGE MODEL All employees shall be entitled to a salary increase after the date of certification in the Commission, back-paid to the date of secret ballot (2 November 2001). Part time employees will be paid proportionately to the hours in which they work. Increases during the term of this agreement shall be in accordance with Appendix 1.' 34 Appendix 1 to the Agreement comprises the 'CITY OF WANNEROO SALARY SCHEDULE'. The Salary Schedule is set out by reference to the number of years from the comme ncement of the Agreement. Year 3 sets out two dates, 1 July 2003 and 2 November 2003 upon which the salary levels specified in the Schedule shall be struck. The relevant entries for Level 3 positions in Year 3 are as follows: Year 3 1 Jul 03/2 Nov 03 2% 2% Level 3 33111.30 33760.54 33911.15 34576.07 34710.99 35391.60 35839.59 36542.33