Re City of Wanneroo v Michael Lindsay Holmes [1989] FCA 369; 30 IR 362

Re City of Wanneroo v Michael Lindsay Holmes [1989] FCA 369; 30 IR 362 - FCA 1989 case summary — Zoe

[54]

"7.1 This Officer has four main areas of

responsibility within the scheme:

7.1.1 To the Local Community. To establish

priorities and to co-operate with

existing services and agencies to

provide a comprehensive and quality

child care service which meets the

local needs.

7.1.2 To the Parents. To select suitable

Family Day Care givers; to be readily

available to counsel parents and advise

on existing services, possible

alternatives and to help (them) in

their selection of a suitable

placement; to encourage parents in

furthering their understanding and

knowledge of child development and

child-rearing.

7.1.3 To the Family Day Care-Givers. To

provide support services for the

selected care-giver and to promote the

further development (Training sessions,

playgroups drop-in centres, meetings,

referral to other agencies etc.)

7.1.4 To the Children. To foster the link

between parent-child-family care giver;

to use her knowledge and understanding

of child activities and development to

provide a service geared to the needs

of the individual child.

7.2 The Officer's work load involves the following.

7.2.1 The development and daily management of

the Family Day Care scheme in a

selected area.

7.2.2 Community liaison including explaining

the concept of family day care.

7.2.3 Publicity including recruiting Family

Day Care mothers and children to be

care (sic) for.

7.2.4 Selection of care-givers which involves

several lengthy interviews.

7.2.5 Placement of children with a suitable

minder (which involves at least one

interview with parents and an

introduction of natural parents and

Family Day Care Home).

7.2.6 Ongoing support of Family Day Care

mothers.

7.2.7 Administration including liaison with

and reporting to, the appropriate

administrative officer of the

sponsoring organisation. Liaison with

and reporting to the Office of Child

Care, Department of Children's Services

with regard to registration of Family

Day Care home.

7.2.8 Devising record systems and developing

application forms.

7.2.9 Arranging payment of subsidies.

7.2.10 Home visits initially to facilitate the

development of a warm trusting

relationship between care-giver and

child, then for play session leaving

equipment and observation and

evaluation of the progress of the child

in the Family Day Care home.

7.2.11 Report on child's placement.

7.2.12 Availability to natural parents to

discuss child's placement.

7.2.13 Transport in emergency situations.

7.2.14 Purchase and maintenance of equipment.

7.2.15 Emergencies (sickness in Family Day

Care home or of child in care).

7.2.16 Initiating and arranging support

services.

7.2.17 Keeping accurate statistical

information for Office of Child Care.

7.3 Undertake all other duties as directed by the

Chief Health Surveyor."

[57]

8. Assistant Welfare Officers working with her in this case, Kathleen Reid and Patricia Townsend, are allocated particular territories and duties in relation to care-givers in those areas. Their duties include regular visitation of at least monthly frequency. The Assistant Welfare Officers conduct in Mrs Good's presence interviews with prospective care-givers and explain various aspects of family day care including regulatory framework and safety policies. Where an applicant for a licence wishes to proceed with the application after the initial interview, Mrs Good follow up with a visit to the applicant's home which she assesses for safety and suitability for family day care use. The Assistant Welfare Officers deal with inquiries about the availability of day care services from parents within the areas for which they were responsible. When an inquiry is received the relevant assistant, with Mrs Good, looks at the records to see if there is a vacancy with a view to matching up the parent with a care-giver. Once a week there is a meeting of staff where Mrs Good and the Assistant Welfare Officers in Scheme 1 report on their visits to care-givers, how the various placements are faring and what jobs are coming up. If there is any major problem with a care-giver Mrs Good visits the care-giver herself. She personally handles interviews with parents whose child or children have been allocated to a particular care-giver, enrolls them in the scheme and helps them with any application for assistance with fees. Her duties also involve budgeting and the supervision of the toy librarian and play group leader. There is a play group facility at Kingsley House run by the play group leader and with toys provided from a toy library. Care givers use the playgroup from time to time. Mrs Good is required to send reports to the Commonwealth Office of Child Care every quarter stating how many children she has in care, how much money she has spent on fees, subsidy in that quarter and an overall picture of the financial situation of the scheme.

[59]

10. Evidence was also given by Joan Mary Bowler, the Co-Ordinator of Scheme 2 otherwise known as the Whitfords Family Day Care Scheme. From 1981 to August 1985 she worked out of Kingsley House. In August 1985 the Whitfords Scheme acquired its own premises. Mrs Bowler's evidence as to the nature of the day care service and her role in it was to much the same effect as that given by Mrs Good. Initially she had the services of Dawn Adams as an Assistant Welfare Officer, services which were shared with Scheme 1. Later when Ms. Adams was engaged full time in Scheme 1, Linda McGowan was employed as Assistant Welfare Officer for Scheme 2. Asked about the duties of the Assistants Mrs Bowler said they were to maintain the regular visitation programe to care-givers. As to the degree of supervision she exercised, Mrs Bowler said that when carrying out visits to care-givers they operate on their own. However they usually discuss their visits and any problems with her on return to the office. In addition there are weekly staff meetings. At these staff meetings there is discussion of problems affecting particular children and the question whether referral to some other agency is indicated. One of the functions of the Assistant Welfare Officer involves organising social activities or excursions for care-givers and children under their care. This, according to Mrs Bowler, affords the care-givers an opportunity to come together and discuss common problems. It also gives to the children an opportunity to mix in a larger group than that available in the care-givers home. Mrs Bowler and Mrs Good in their respective Schemes make the decision whether a particular event should be organised and then leave it to be organised by the Assistant. This involves the Assistant in making bookings and contacting care-givers. In relation to the playgroup arrangements within Scheme 2, Mrs Bowler said that because of space limitations at the Kingsley House at the time that both Schemes operated out of it, she decided to start a regional playgroup at Whitfords. This was organised by Dawn Adams. Mrs Bowler decided that more regional playgroups would be desirable and another was organised at Heathridge by Linda McGowan. Ms. McGowan also had the idea of starting a drop-in centre for care-givers. Mrs Bowler obtained approval for this from the appellant, approached a local church and obtained the use of a room. Ms. McGowan then started the centre up and ran it for three or four months until a toy librarian was appointed to Scheme 2 who took over the running of the centre as part of her duties.

[61]

12. The Assistant Welfare Officers were also called to give evidence as to their various functions. That evidence was to the same general effect as that of the two co-ordinators. Linda McGowan was first employed by the appellant on 16 August 1983 as a casual social welfare officer until March 1984 when she became a member of the permanent staff. Initially she was asked to organise what she called "outreaching playgroups" for both Schemes 1 and 2. This involved researching the needs of care-givers in the Scheme areas and the best locations for the playgroups to meeting those needs, arranging transport for care-givers who required it and considering the numbers and ages of children who were involved so that playgroups would be suitable for the care-givers they were trying to reach. She also had to buy equipment and liaise with other agencies in relation to the facilities. Through her involvement with the playgroups Ms. McGowan got to know the care-givers and the children. They asked for other support services and she discussed these with the co-ordinators, Goode and Bowler. They felt that if Ms. McGowan were to follow up these contacts with visits to the care-givers homes, they could be used as a means of educating them in the proper discharge of their duties. Her hours of employment as a casual were increased to give her time to make these visits. After she became a permanent employee in March 1984 Ms. McGowan was no longer responsible for the playgroups. Her services were utilised in visiting care-givers and providing support services within Scheme 2. She said in evidence that she was responsible for all visits within that Scheme and had to organise each month who was to visit whom. She described her role in organising the drop-in centre which, she said, involved finding premises, purchasing equipment, arranging attendance and advertising. The centre was in the nature of a facility enabling care-givers to come along at whatever time they required, for however long they wanted for relaxation and advice on problems that they might be experiencing.

[78]

1. The Learned Magistrate misdirected himself and

consequently erred in law by having regard to

the Award definition of "Social Worker" when

in fact the case purely concerned the question

of whether the employees, the subjects of the

application fell within the Award description

of "Social Welfare Officer".

2. The Learned Magistrate erred in law in failing

to make any or any sufficient findings of fact

after three days of evidence upon which to

condition his conclusion that each of the

applicants carried out the duties of a "Social

Welfare Officer" as defined in the Award.

3. The Learned Magistrate erred in fact and in

law in holding that the appellant's employees

carried out the duties of "Social Welfare

Officers" (as defined in the Award) in that

there was no sufficient evidence that the said

employees "initiated, co-ordinated and

promoted social welfare activities" (this

expression to be read conjunctively rather than

disjunctively) within the relevant district.

4. The Learned Magistrate erred in law to the extent

that he found (sub silentio) that each of the

applicants "initiated" social welfare activities.

5. The Learned Magistrate erred in law in failing

to distinguish what in this case the relevant

social welfare activity was for the purposes

of the Award definition of "Social Welfare

Officer" (ie. in failing to distinguish

between the overall scheme for child

minding/care in which the applicants worked

and which was a social welfare activity and

the tasks carried out by each applicant within

the scheme which were of a clerical,

administrative or inspectorial nature rather

than being properly characterised as social

welfare activities in their own right).

6. The Learned Magistrate erred in law and fact

in finding that the employees did the job of a

Social Welfare Officer - there being no

findings of fact in his judgment to identify

what in fact the job of a Social Welfare

Officer at the City of Wanneroo was and

whether each of such officers' tasks were

performed by the employees - the evidence in

the case establishing that the employees did

not carry out all the duties of the Social

Welfare Officer.

[129]

47. The definition of Social Welfare Officer being in form a description of a class of persons by reference to the range of their responsibilities goes on to include "without limiting the foregoing...one or more of the following: care for the family, children, the aged and supportive counselling". This fractured and illogical prose may be met by a generous and liberal approach to interpretation. That does not put it beyond criticism. 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. While that fact has been seen as supporting a rule of strict construction - Cranford-Webster v McFarlane [1947] SAStRp 3; (1947) SASR 162, 166 (Mayo J.) - it must not be forgotten that proceedings for breach of an award are not criminal in character - Gapes v Commercial Bank of Australia [1979] FCA 9; (1979) 38 FLR 415 disapproving Vehicle Builders' Employees Federation of Australia v General Motors-Holdens Pty Ltd (1977) 32 FLR 100. Accepting the serious and binding nature of industrial awards, a strict approach is not in my opinion appropriate and would be inconsistent with the general principles of interpretation to which I have already referred. Where there is, as in this case, a drafting error embodying logical absurdity which goes beyond the merely typographical, the Court should proceed cautiously before effectively re-writing it in an intelligible form - see generally Pearce - Statutory Interpretation in Australia 2nd Ed. paras. 19-21. Exercising all due caution, I am satisfied that the reference to "care for the family, children, the aged and supportive counselling" is intended to set out specific examples of the "social welfare activities" to which the award relates. If a person can be said to have been appointed by the Council to initiate, co-ordinate and promote child care activities within the District, that person will answer the description of a Social Welfare Officer. It is not sufficient that a person be appointed to only one of those tasks, all three elements must be present to a greater or lesser degree. And if that means that the coverage of the award is deficient in certain cases, then the remedy may lie in its further variation.

At a glance

Court

Decision date

Before

Source

Judgment (135 paragraphs)

Re City of Wanneroo v Michael Lindsay Holmes [1989] FCA 369; 30 IR 362 (12 September 1989)

Parties

Legislation Cited (28)

Cases Cited (15)