New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (obo Pereira) v City of Sydney Council

The job of a parking ranger

1. The role of parking rangers employed by the Council was described by Mary-Anne Priest, who is employed by the Council as the Manager, City Rangers, in the following terms: [1] "8. The purpose of the role of parking ranger is in accordance with the applicable Road Rules and Local Government Act 1993 (NSW) to promote turnover and equity to access parking in the local government area. This is achieved by issuing [parking] infringement notices (PINs) or cautions for non-compliance with parking laws. Community needs 9. In the City's local government area, there are approximately 6,000 streets and 33,000 car spaces on the street. There are approximately 260,000 residents in the City and many more businesses. In the City, pre COVID-19, there could be as many as 1 million visitors a day. The result of the above population is that there is competition for parking spaces. … 12. …I can say that the community expects compliance with parking laws and expects the City, through its parking rangers, to ensure that parking is regularly turned over by identifying non-compliance. This is important for rate payers as it ensures that customers and residents have access to parking."

The PDM Policy

1. The PDM Policy provides as follows: "Performance-based Salary Progression Eligible employees who meet the performance expectations of the City will be rewarded via the City's Salary progression process. Salary progression is based on employees meeting the expected performance standards and shall be assessed through the application of performance reviews in accordance with the performance and development management process outlined within this policy."
2. Ms Priest stated: [2] "58. The salary progression payment under the PDM Policy is a 'reward' payment made by the City to employees who meet performance expectations. This is part of driving and instilling a high-performance culture for the benefit of the community and rate payers." (Emphasis in original)
3. For the purposes of the PDM Policy, the performance of a parking ranger is assessed against a Work and Development Plan ("WD Plan"). The WD Plan currently used by the Council for parking rangers contains a table setting out the goals to be achieved by the employees and the means by which the employee will be assessed against those goals.
4. There are four goals contained in the Council's WD Plan. Only two are directly relevant for present purposes, namely: 1. "Demonstrates knowledge of relevant legislation and its application in the field." According to Mr Pereira's WD Plan for the year ending 30 June 2017 this was to be measured through "Evidence of a variety of cautions/pins [sic] issued. Uses correct offence codes". The WD Plan for the year ending 30 June 2018 described the measurement as "Demonstrated knowledge and evidence of using relevant legislation. Uses correct offence codes"; and 2. "Demonstrates effective planning and time management to ensure efficiency in the field." Mr Pereira's WD Plans for both of the years ending 30 June 2017 and 30 June 2018 stated that his performance against this goal was to be measured in part by the number of cautions or parking infringement notices ("PINs") he issued on average per shift over the year.
5. WD Plans operate across financial years, from July to June. They anticipate both a mid-year review and an end of year review. At the end of year review the employee's team leader determines the employee's "overall performance rating", which could be one of five outcomes: unsatisfactory, needs improvement, meets expectations, above expectations or outstanding. An employee who meets or exceeds expectations would be expected to receive salary progression in accordance with the PDM Policy.
6. Ms Priest deposed as follows: [3] "20. I recall attending meetings with Mr Jim Carter from the USU in March, June and August 2016 where the PDM Policy and the WD Plan goals were discussed. 21. I recall in the earlier discussions with Mr Carter, the City had discussed introducing a goal for a fixed number of PINs to be issued by parking rangers. However, through the consultation process, the City decided that [sic] to adopt a variable method of calculation using the average of the PINs issued by all employees each day over a 12 month period to measure performance. 22. I expressly recall discussing with Mr Carter that: 22.1 parking rangers will be assessed against the performance of their colleagues (i.e. there would not be a quota); 22.2 that where a parking ranger is consistently 25% or more below the average number of PINs (which for the purposes of the WD Plan includes cautions) issued by their colleagues, then that would trigger a discussion about the parking ranger's performance. 23. I specifically recall that Mr Carter agreed with that approach because it meant that factors which impacted on performance, such as major events or periods of rain, would be considered and parking rangers would be assessed against each other."
7. On 10 August 2016 Ms Priest, together with Zoe Stanton, the Senior HR Business Partner, Corporate Human Resources for the Council, conducted a consultation session with the Council's rangers to explain the terms and operation of the WD Plan. Ms Priest stated: [4] "24. I recall explaining the effect of the WD Plan goals to the parking rangers, at the workshops on 10 August 2016 and saying, with words to the effect: 'If you are 25% or more below the unit average for the month then your team leaders will work with you to review how you have spent your time'." (Emphasis in original)
8. Ms Stanton stated: [5] "28. I recall Ms Priest explaining, amongst other things, that within the goals there would be performance measurements to assess productivity and efficiency. Amongst several measures, Ms Priest said the City would examine the number of PINs issued by an employee based on staff averages. I also recall Ms Priest advising the employees that the City would only look at an employee's performance (and or [sic] commence performance management) if an employee's number of PINs issued was consistently 25% or more below the team average."
9. Terri-Lee Lyons, who is employed by the Council as the Operations Coordinator in the Parking Team, also attended the meeting on 10 August 2016. She stated: [6] "21. On 10 August 2016, Ms Priest conducted a consultation session with the entire Parking Unit at an all-staff 'muster'. I attended that muster. In that muster, Ms Priest made a presentation explaining the WD Plan and goals, their intention and how they would operate. I specifically recall Ms Priest explaining, amongst other things, that the goal of productivity would be measured against a number of key areas. … 22. It was explained the average number of PIN's [sic] would be determined by the overall productivity of the group (when reviewing the productivity, the following things would be factored in, leave, court dates, training, inclement weather, special events, unprecedented environmental factors at the time). 23. [It] was also explained that the City would only commence performance management if an employee's performance was consistently 25% below the Unit average cumulatively set by all Rangers in the Unit, measured against all the goals in the WD Plan." (Emphasis in original)
10. Ms Priest's and Ms Lyons' reference to the "unit", and Ms Stanton's reference to the "team", is a collective reference to all 92 parking rangers employed by the Council.

Mr Pereira's performance

1. Ms Lyons stated that she had noticed that Mr Pereira's performance had started to decline in 2016 and 2017. She had informal discussions with him with a view to identifying the causes for his perceived low performance.
2. On Mr Pereira's WD Plan for the year ending 30 June 2017, his manager entered the following comment at the mid-year review on 1 March 2017: "Sanderson is on a performance improvement plan from 17/2/17 to 12/4/17 to lift productivity/average to meet expectations."
3. The WD Plan bears a notation that Mr Pereira had refused to sign the mid-year review. At the same time, Mr Pereira made handwritten notes on the document in respect of the mid-year review raising some concerns with the basis on which he was being assessed.
4. Ms Lyons deposed that Mr Pereira was initially assessed as "does not meet expectations" for the year ending 30 June 2017. Despite this, he received a salary progression in accordance with the PDM Policy. Why this was the case was not explained.
5. On Mr Pereira's WD Plan for the year ending 30 June 2018, Ms Lyons, as his manager, entered the following comment at the mid-year review on 7 April 2018: "Sanderson consistently falls in the least productive category as far as number of PINs. Sanderson has the experience & knowledge, however a refresher with the training officer on beat planning is planned. …"
6. Mr Pereira signed that page of the WD Plan on 7 April 2018.
7. Also on 7 April 2018 Mr Pereira was placed on a performance improvement plan ("PIP"). The PIP, which was signed by Mr Pereira on 7 April 2018, identified the following areas for improvement: "Time management • PIN volume below the unit expectation and average • Excessive downtime Variety and quality of offences • Rangers should be issuing a variety of offences per month to demonstrate effective beat coverage eg: overstaying (ticket and no ticket), red signs, health and safety loading zone, residential zone offences. • Minimal error rate"
8. Pursuant to the PIP, Mr Pereira was accompanied on his beat on a number of occasions by his team leader, Glenn McGowan, and by a training officer.
9. The end of year review in connection with Mr Pereira's WD Plan for the 2017/2018 year was conducted on 8 August 2018. Mr McGowan gave Mr Pereira an overall performance rating of "needs improvement". As a consequence, he was advised in a letter from the Council dated 10 November 2018 that he did not meet the criteria to qualify for a salary progression for the 2017/2018 financial year. The increase that would otherwise have been paid to him pursuant to the PDM Policy was 1.5%.
10. Mr Pereira lodged a grievance with the Council on 28 February 2019 questioning the decision not to award him an increase in 2018. There ensued correspondence between the USU and Mr Pereira on the one part and the Council on the other, which continued throughout 2019.
11. In a letter to Mr Pereira dated 18 April 2019 the Council identified four areas in which his performance was unsatisfactory, which had resulted in the decision not to award him a salary increase. These were: 1. the number of PINs issued by him was significantly below the unit average; 2. he had demonstrated significant downtime in the field, adversely affecting his productivity; 3. there was a lack of variety in the PINs that he had issued; and 4. he had failed to download his electronic device daily.

Grounds relied on by USU

1. In broad terms, the USU presented its case by way of responding to or rebutting the areas of alleged poor performance set out at [29] above. It is convenient to adopt a similar approach.
2. At the outset I observe that the USU did not challenge the Council's evidence regarding the number and variety of PINs Mr Pereira issued. Rather, it contended that Mr Pereira's low performance compared with other parking rangers was due to factors outside his control for which he could not and should not be held accountable.

Below unit average results

1. The Council adduced evidence as to the average number of PINs issued by each parking ranger for the period 1 January 2018 to 31 December 2019. That evidence disclosed that: 1. the best performing parking ranger issued an average of 30.4 PINs per shift; 2. the mid-point for the average number of PINs issued by all parking rangers was between 17.1 and 19.06 per shift; 3. of the 10 parking rangers who were performing in the bottom quartile one was on workers compensation, three were new hires and five, including Mr Pereira, were on a PIP; and 4. Mr Pereira had the lowest results of all parking rangers with an average of 10.83 PINs per shift.
2. The USU contended that there were several reasons why it was unfair and unreasonable for the Council to rely on the average number of PINs issued by Mr Pereira compared to the unit average. In the first place, it was said that Mr Pereira was unaware that his performance would be assessed against the unit average target. Mr Szabo, an Industrial Officer of the USU who appeared on its behalf, submitted: [7] "Firstly, Mr Pereira asserts that he was not aware prior to the end of the assessment year in 2017 to 2018 that he had to achieve a specific unit average. It was not possible for him to attend to this issue as it was not raised with him prior to the end-of-year assessment and he was only given a few months to try and resolve the issue."
3. I do not accept these submissions for the following reasons: 1. Mr Pereira appeared to accept under cross-examination that he was aware that averages were used by the Council to measure performance. He had the following exchange with Mr Mattson, a partner of Bartier Perry who appeared for the Council: [8] "Q. Sir, you knew in the 2016 to 2017 year, the financial year, that averages were being used by the city to measure performance. Do you agree with that? A. Yes. Yes, I do. I do agree that they were using the averages but I disagree with it." 1. I am satisfied that Mr Pereira attended the meeting on 10 August 2016 referred to at [15]-[17] above. Mr Pereira denied having attended that meeting, although under cross-examination he appeared to prevaricate. Ms Stanton deposed, and maintained under cross-examination, that she could recall specifically seeing Mr Pereira in that meeting. She said that she "was specifically looking for him due to, you know, some of the matters I've dealt with him in the past in relation to his work plan. So I remember it very clearly that he was present." [9] I accept Ms Stanton's evidence. 2. Mr Pereira's WD Plan for the year ending 30 June 2017, which he signed on 10 October 2016, made reference to his performance being measured "based on unit performance". The notes entered by Mr Pereira and his manager at the mid-year review on 1 March 2017 are premised on Mr Pereira's performance being assessed against his co-workers. 3. On 7 April 2018 Mr Pereira signed the PIP which described one of the areas for improvement as being that his "PIN volume [was] below the unit expectation and average". I recognise that this was only a few months before the end of the 2017/2018 financial year, but there is no evidence that Mr Pereira raised concerns with or challenged the assertion that his performance was to be measured against the average of his peers.
4. The second argument on which the USU relied was that the statistical evidence led by the Council regarding Mr Pereira's performance was predominantly in respect of the period January 2018 to December 2019, and that there was limited if any statistical evidence of his performance for the period 1 July 2017 to 31 December 2017, being one half of the relevant review period in which he was found not to have met expectations. This is correct to a point. However I do not consider that it provides a basis on which to call into question the Council's assessment of Mr Pereira's performance.
5. The evidence shows that the Council had concerns with Mr Pereira's productivity and performance since 2016. Those concerns have in broad terms been consistent throughout the intervening period. For the USU's contention to have any bearing on this case it would need to be demonstrated that Mr Pereira's performance in the first half of the financial year was at such an extraordinarily and uncharacteristically high level to have offset any lower level of performance in the second half of the year. There is no basis on which such a finding could be made.
6. More particularly, it is worth repeating that the USU and Mr Pereira never sought to challenge the Council's contention that his performance was at a level below that of the other parking rangers. There was similarly no substantial challenge to the data on which the Council relied regarding Mr Pereira's productivity. The only significant contention in this regard was a statement by Mr Pereira that the averages for some rangers may be higher as a result of them working overtime. However, Ms Lyons stated that overtime is offered to all rangers. I do not consider that Mr Pereira has offered any basis on which to challenge the data adduced by the Council.
7. The next argument on which the USU relied was that the allocation of work to Mr Pereira had been inequitable. Mr Pereira stated: [10] "26. Council stated that I had issued significantly less Pins [sic] than my colleagues. In response to this I believe this is because I had been unfairly given less productive 'beats'. A 'beat' is a zone that a parking officer is assigned to patrol. Some beats are well known to have more parking infringements than others on average. These are what I mean by productive Beats [sic]."
8. Ms Lyons deposed that beats are fairly allocated amongst the parking rangers. She accepted under cross-examination that some beats were busier than others and that the number of infringements that a parking ranger might identify on a given beat could vary day to day. She stated, however, that all beats are productive. Under re-examination she deposed as follows: [11] Q. You gave evidence that all beats are productive do you recall that? A. Correct. Q. What do you mean by saying all beats are productive? A. We sort of split the city into two so we have CBD beats so in the general CBD of the city and they're high turnover, cars are regularly coming and going and it can be perceived that this is a highly productive beat because there's more cars turning over. So with outer suburbs, Alexandria, Kings Cross, et cetera there's not the high turnover and you have to work more effectively and spend your day better to be productive so in the city the cars are turning over and you may not have to chalk up because it's mainly ticket parking, you're just looking for a ticket whereas in the outer suburbs you need to actually work to be productive. So both sorts of beats are productive in their own right. Q. Why are they productive in their own right? A. You have high turnover in the city so you have more people not buying tickets or failing to display a ticket and then you can go the outer lying areas where there's no ticket machine for example and you need to chalk or valve scan. If you don't do that you cannot demonstrate that a vehicle has stayed longer than allowed so you need to plan your day. You need to chalk up, you need to valve scan in order for that to be productive for you. Q. So you did mention in your cross-examination that some beats can be busier than others? A. Correct. Q. But you said all beats are productive? A. Yes. Q. In terms of those busier beats, how does that impact on a ranger's performance compared to those beats that aren't as busy but you still describe as productive? A. The average - most rangers are still able to obtain the average regardless of the beat they are on. So when I say by being productive, every single beat your average is able to be obtained on any given day."
9. The Council produced a table setting out the average number of PINs issued by all parking rangers on each beat for the period January 2018 to December 2019. There was little difference between the "most productive" beat (21.51 PINs) and the "least productive" beat (17.97 PINs). In either case, they are well in excess of Mr Pereira's average of 10.53 PINs per beat over the same period.
10. Even had Mr Pereira been placed exclusively on the least productive beats, there is still no reason why he could not have issued PINs within the mid-point range of 17.1 and 19.06 PINs per shift. However, the evidence shows that he was not confined to those beats. Further, for three months the Council agreed to place him on particular beats which he had identified as being more productive. The number of PINs issued by Mr Pereira remained low.
11. I do not accept that Mr Pereira's performance was unfairly and detrimentally impacted by being placed on less productive beats than other parking rangers.
12. The fourth ground on which the USU relied was that Mr Pereira's average was affected by him being required to work in the Council's complaint vehicle on a proportionately greater basis that his co-workers. Not a lot of attention was given to the work performed by a ranger when they are allocated to work in the complaint vehicle. As I apprehend the evidence, the complaint vehicle is used by the Council to respond to specific complaints about infringements. There is no certainty that a complaint will result in an infringement. Further, a significant amount of time might be spent by a ranger in travelling to and from locations of alleged infringements.
13. Ms Lyons deposed that there were 12 parking rangers who for different reasons could not be allocated to the complaint vehicle. Otherwise, she stated that the complaint vehicle was allocated randomly to parking rangers. Across the cohort generally, parking rangers were able to maintain an average number of PINs even when they were rostered in the complaint vehicle.
14. Mr Pereira had raised this issue in connection with his PIP. As a result, the Council determined not to allocate him to the complaint vehicle for approximately three months from May 2018. The evidence suggests that there was a significant improvement in Mr Pereira's performance for two out of three of those months, but he still remained below the unit average.
15. I acknowledge that only one of those months fell within the period which is most relevant for the purposes of these proceedings. However, the evidence argues against Mr Pereira's assertion that being placed in the complaint vehicle had a material impact on his ability to achieve the productivity expected of him.
16. Overall, I am not satisfied that Mr Pereira was allocated to the complaint vehicle on an unfairly disproportionate basis compared to other parking rangers, or that being required to work in the complaint vehicle explains or excuses the low level of PINs he issued.

Excessive downtime and lack of variety of PINs

1. Although the Council identified excessive downtime and a lack of variety of PINs as separate performance concerns, it is convenient to deal with them together as the USU's position on each raises substantially the same issues. Mr Pereira stated: [12] "Significant Downtime 27. Council said that I demonstrated significant downtime in the field. Down time is the time it takes from the start of a shift to write down the first Pin. It is also the time between the subsequent Pins being issued. In relation to this point, I do not agree with this as I can only issue a Pin when there is an infringement. Walking the street looking for any infringement is not downtime in my view as I am still working. … Lack of Variety of Offences 29. Council said that I did not issue a variety of penalty notices. In response to this, I can only book what infringements I see which is what I do when I work. If there were other types of infringements occurring at my allocated beats I would have infringed them." (Sic)
2. The Council adduced some evidence regarding the variety of PINs issued by Mr Pereira. One table produced by the Council identifies 30 offences in respect of which a PIN might be issued. Of the PINs issued by Mr Pereira in the 2018 calendar year, more than 80% related to just seven offences.
3. Ms Lyons stated that "the City expects a far greater variety of offences to be detected and issued by rangers thereby demonstrating an awareness of all the applicable parking laws and the proper detection of all offences. A lack of variety of offences being issued may demonstrate a lack of knowledge, inability to plan work on a beat, or a preference to only issuing 'easier' PINs." [13] Under cross-examination Ms Lyons accepted that through these observations she was not suggesting that Mr Pereira lacked knowledge.
4. Ms Lyons further deposed: [14] "57. … Mr Pereira says that in his view he should not be considered as having excessive downtime if he is out on patrol. I say there is more to being a parking ranger than simply being out on patrol. The role requires understanding of the range of possible offences and effectively planning of [sic] your work to ensure that parking rules are being proactively enforced (and turnover is achieved for ratepayers). By measuring time between PINs being issued, along with other factors such as the variety of PINs issued, and the information downloaded from parking ranger's [sic] PDA, the City can get an understanding of the parking ranger's downtime. All these matters were considered in Mr Pereira's case and it was the City's view that his downtime was excessive and below the standard expected of the City because there were large gaps where Mr Pereira issued no PINs. 58. … Mr Pereira says that he can only issue the infringements that he sees. In response, I say that variety of tickets is linked to downtime and effective planning. Parking rangers are expected to proactively patrol for a broad range of offences which may involve chalking, valve stemming and the use of other techniques and then returning to an area to follow up. The variety of tickets issued indicates that the parking ranger is effectively planning their work. Mr Pereira's colleagues achieve a greater variety of offences than him."
5. Ms Priest stated that Mr Pereira's downtime exceeds that of other parking rangers and that the variety of offences for which he issues PINs is significantly below that of his colleagues. She observed that when he was accompanied on his beat by Mr McGowan or the training officer (in connection with the PIP), there was a marked improvement in the number and variety of PINs he issued and a reduction in his downtime.
6. Both Ms Lyons and Ms Priest accepted under cross-examination that the number of infringements identified by a ranger on a particular beat could vary day-to-day. Ms Lyons accepted that "you can't book what's not there". [15]
7. The difficulty for Mr Pereira is that the evidence reveals that since at least 2017 he had been consistently issuing fewer PINs, and a smaller variety of PINs, than the other parking rangers. Having found that Mr Pereira was not generally assigned to unproductive beats, to the extent that such exist, it could not credibly be suggested that for more than two years there was a consistently higher level of parking compliance on the beats to which Mr Pereira was allocated than those worked by the other rangers.

Failure to perform daily download of electronic device

1. This issue can be disposed of quickly. The evidence did not reveal a persistent or serious failure by Mr Pereira to conduct a daily download of his personal digital assistant. Rather, there was evidence that he had failed to do so on one occasion only, in circumstances in which he may not have been at fault. By itself, this issue would not have warranted an adverse finding as to Mr Pereira's conduct or performance.

Fairness of relying on PIN averages

1. The USU further contended that it was unfair to assess Mr Pereira's performance based on unit averages. This echoed in some ways matters already raised, namely the extent to which Mr Pereira or any other parking ranger had control over the number or variety of PINs that they might issue. The USU argued that the number of PINs Mr Pereira issued is not necessarily reflective of the effort, attentiveness or amount of work he put into his job.
2. An immediate hurdle for the USU is that the evidence reveals that the performance goals set out in the WD Plan and the measures by which rangers would be assessed against those goals were established following significant consultation with the USU in 2016. The uncontroverted evidence of the Council is that the relevant union official at the time, Jim Carter, agreed to those elements of the performance management system which the USU now seeks to challenge.
3. In any event, I do not consider there to be anything unfair in the approach taken by the Council. I do not accept Mr Pereira's assertions that there is any inequity in the way in which parking rangers are treated, whether in terms of the allocation of work or otherwise. I observe in this regard that Mr Pereira was not the only ranger whose underperformance against the unit averages resulted in them being placed on a PIP: see [32(3)] above.
4. Performance measures such as the number and variety of PINs issued by a ranger, and any resultant downtime, provide an objective and quantifiable basis on which to assess their performance. The use of averages allows for a levelling out of the fluctuations to which Mr Pereira referred. In circumstances where rangers are treated consistently, there is nothing inherently unfair and objectionable in an individual's average performance being measured against that of the group.

Conclusion

1. As the Council submitted, it is well recognised that an industrial tribunal will not lightly interfere with the right of an employer to manage its business as it sees fit, unless the demands made of employees are unjust or unreasonable: see Re: Ambulance Service of New South Wales and Broken Hill Town Employees' Union [2004] NSWIRComm 73 at [11] and the cases referred to in that decision at [12]-[19].
2. There is nothing unjust or unreasonable in the expectations imposed on Mr Pereira by the PDM Policy or WD Plan, or in the way in which Mr Pereira has been treated by the Council. The USU has provided no basis on which the Commission should interfere with the Council's decision not to award Mr Pereira a salary progression from 1 July 2018.

Order

1. The proceedings are dismissed. Damian Sloan Commissioner

Endnotes

1. Statement of Mary-Anne Priest, 10 August 2020
2. Statement of Mary-Anne Priest, 10 August 2020
3. Statement of Mary-Anne Priest, 10 August 2020
4. Statement of Mary-Anne Priest, 10 August 2020
5. Statement of Zoe Stanton, 10 August 2020
6. Statement of Terri-Lee Lyons, 10 August 2020
7. Tcpt, 14 September 2020 p 4(27-31)
8. Tcpt, 14 September 2020 p 22(34-37)
9. Tcpt, 14 September 2020 p 42(38-40)
10. Statement of Sanderson Goodwin Pereira, 6 July 2020
11. Tcpt, 14 September 2020 pp 67(17)-68(1)
12. Statement of Sanderson Goodwin Pereira, 6 July 2020
13. Statement of Terri-Lee Lyons, 10 August 2020 at par 31
14. Statement of Terri-Lee Lyons, 10 August 2020
15. Tcpt, 14 May 2020 p 61(22) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 February 2021