100424724

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND  SERVICES UNION OF EMPLOYEES, W.A. CLERICAL AND ADMINISTRATIVE BRANCH

CLAIMANT

 -v-

 CITY OF WANNEROO

RESPONDENT

CORAM MAGISTRATE RH BURTON IM

DATE WEDNESDAY 25 AUGUST 2004

FILE NO M 198 OF 2003

CITATION NO. 2004 WAIRC 12666

_______________________________________________________________________________ 

Representation

Claimant Ms J Boots (of Counsel) of Boots & Seaman Lawyers and with her Mr MP Kane.

Respondent Ms J Auerbach (of Counsel) and with her Ms L Gibbs (of Counsel) both of CCI Legal Pty Ltd.

_______________________________________________________________________________

Reasons for Decision

1         In this matter the issue before the Court is the correct characterisation of Michael Van Der Waarden (hereinafter referred to as “the Employee”), a former employee of the City of Wanneroo, who was employed subject to an employment contract which stipulated that the Local Government Officers (Western Australia) Award 1999 (the Award) and the City of Wanneroo Certified Agreement applied to the employment but were not incorporated into the contract.

The Claim

2         The Claimant alleges that the Employee was a Patrol Officer and that is akin to being a security officer, patrolling the city to report on anti-social activity, safety issues and suspicious activity and, as such, was employed to work shift work.  Accordingly the shift work and overtime provisions of the award should apply.

3         The Claimant contends that the Employee is entitled to certain shift penalties and overtime payments which have not been allowed for the period of the claim (being the fortnight ended 4 July 2003) and which gives rise to an underpayment of $730.57 (see annexure B to the Notice of Particulars).

4         The Claimant alleges that the Employee comes within the classification of “Officer or Employee” as set out in the Definitions clause of the Award.  Clause 3.9 of the Award provides:

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.

5         The Claimant maintains that the Employee comes within the term “any other person appointed by a Local Authority” contained in clause 3.9.

6         On the other hand the Respondent argues that the Employee is a Community Services Officer caught by clause 3.4 of the Award.  That definition is in the following terms:

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.

7         A Community Services Officer works rotating shifts so as to cover twenty-four hours per day, seven days per week.  Each shift being of ten hours duration with the total hours worked not exceeding an average of thirty-eight per week.  The shift times are:

• Day Shift – 7.00 am to 5.00 pm
• Afternoon Shift – 4.00 pm to 2.00 am
• Night Shift – 6.00 pm to 4.00 am

8         The Respondent maintains that the provisions of clause 21 – Shift Work and clause 22 – Overtime of the Award do not apply to the employment of the Employee and, accordingly, there has not been any breach of the Award as alleged.

9         It is common ground that, under clause 5 – Parties Bound of the Award, the Respondent is bound by the Award and it is agreed that the Employee was a Level 3 employee.

The Evidence

10     The Employee gave evidence in support of the claim and the Respondent elicited evidence from Ms Fiona Bentley, the Director of Community Development for the Respondent.

Michael Van Der Waarden (the Employee)

11     The Employee testified that he was employed by the Respondent for the period from 2 September 2002 until 1 January 2004.  He obtained his position when he responded to an advertisement for Safer Citizens Patrol Officers.  The advertisement was in the following form:

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 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.

12     He had been a Patrol Officer previously and was successful in his application.  Subsequent to gaining the position he signed an employment contract that had a Position Description attached to it.  That Position Description relevantly read as follows:

1.      POSITION IDENTIFICATION

Title    -    Patrol Officer

…

2.      REPORTING RELATIONSHIP

…

3.      PRIMARY OBJECTIVE(S) OF THE POSITION

• 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 stall or Police
• Attend court and give evidence in a professional manner
• Regularly liaise with Safer Citizen partners

4.      PERFORMANCE EVALUATION (Skills & Standards)

• Completed occurrences and paperwork in a timely manner
• Production and submission of Field and Action Reports
• Effective customer service and interpersonal skills
• Effective level of written and verbal communication skills
• Effective problem solving and time management skills
• Ability to interpret and administer all relevant Statutes, Policies and Procedures relating to Safer Citizens
• Working know ledge of relevant statutes, court procedures and legal methods of gathering evidence
• Promotion of Crime Prevention, Public Relations and Safer Citizens initiatives
• Effective front line customer service skills
• Demonstrated ability to work unsupervised but also as an effective team player
• Demonstrate at all times a professional and personal integrity
• Accuracy and timeliness in retrieving City information and operational data from the computer data base

5.      BRIEF SUMMARY OF DUTIES TO BE PERFORMED

DUTIES

Patrol precincts in a diligent manner and report observations

Attend complaints received in an expedient manner and address issues raised by customers appropriately

Comply with council guidelines and policy

Liaise as required with members of the public and actively promote strategies to improve individual safety

Complete and submit field reports and action reports at the completion of each rostered shift

Assist the Safer Citizens Team Leader as required

Maintain and expand knowledge of Security and related activities

Expand and employ knowledge of Community Policing and Crime Prevention techniques

Attend training courses as required

Maintain a current Security Licence

Provide effective front line customer service

Attend public relations and promotional opportunities as required including community events and visits to schools for educational talks

Provide after-hours customer service as required

Ensure patrol vehicle is clean and well maintained

6.      SELECTION CRITERIA (Skills, Knowledge & Experience)

Essential

• Effective verbal and written communication skills
• Demonstrated interpersonal skills related to conflict resolution and working within the team
• Demonstrated skills in public relations and presentation skills
• Demonstrated customer service skills
• Demonstrated ability to problem solve and time manage
• Demonstrated ability in recognising and maintaining high ethical standards
• Basic knowledge of computers eg Microsoft Word, Excel.

Desirable

• Demonstrated experience in Security field
• A current Senior First Aid Certificate
• Knowledge of Local Government, role and procedures

7.      QUALIFICATIONS

• Current Certification II Security Operations (or capacity to obtain)
• Current C class W.A. Driver License or equivalent
• A current police clearance

8.      OTHER SPECIFIC DETAILS OF POSITION

EXTENT OF AUTHORITY – 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.

LOCATION – City of Wanneroo

ALLOWANCES/SPECIAL CONDITIONS

• 40 hour week
• shift loadings as per LGOA Award 1999.

SPECIALISED EQUIPMENT OPERATED – Nil.

9.      CERTIFICATION

...

13     The remuneration was Level 3, step 1, $34,688.08 per annum for a 40 hour week, being 80 hours a fortnight with a maximum of 10 hours a day.  He worked with other officers as part of a team.  The position description states he is to receive shift loadings but he never received any.

14     He was required to have a current Certification II Security Operations licence, a C class driver’s licence and a current police clearance.

15     He testified that he had worked in security since 1988.  He said that he had been interviewed for the job and was told that the job entailed patrolling.  He received training by going out with other officers and being shown around the job.  He was on probation for a time and was supervised by one of the city rangers.

16     His duties were safety, security, patrolling and liaison with ratepayers.  He checked council buildings in the city’s four precincts and for that purpose was supplied with a council vehicle.

17     He dealt with anti-social activity, the safety of residents and security.  He inspected council property, recreation centres, libraries and aquatic centres.  He reported anti-social behaviour to the police or dealt with it himself, by talking to those concerned.  The police would be called upon in relation to any criminal activity or anything that was unsafe.  Sometimes other council officers would be called in.  Damage would be reported to the council and security alarms checked.  From time to time he answered telephone calls and attended to the content of telephone calls received by the council, including matters related to the Safer Citizens program.  Many of the calls would be from ratepayers.  He also liaised with the administration.

18     His evidence was that he attended three community events; a community centre, a fete and a youth group.

19     There was a great deal of paperwork involving daily community contact sheets that had to be filled in, and the writing of reports.  There was a team leader responsible to a ranger.  There were regular and special patrols, the delivery of documents to ratepayers and attending hot spots.

20     The witness said he was filling a patrolling position.  He said he had no qualifications or experience as a welfare officer or social worker.

21     Pay was received on a fortnightly basis for 80 ordinary hours at $16.83887 per hour and he worked 60 hours in the fortnight concerned.

22     Under cross examination he said that the contract of employment shows a salary of $32,462.06 and there was a figure of $34,688.00 being for a 40 not a 38 hour week.  He was always paid for a 40 hour week even if he did not work it.  Some fortnights comprised 70 and others 90 hours.  He sometimes worked extra hours filling in for a sick officer and he was paid the correct rate for overtime.

23     The roster was called the Safer Citizens patrol roster.  He reported to the team leader of Safer Citizens as the council had a Safer Citizens programme.  One of the objectives was to liaise with members of the community while on patrol.  He did not have to have security experience, a first aid certificate or knowledge of the role of local government.  He said he had to be eyes and ears of the police.

24     He agreed that he would report trees needing to be lopped and road potholes to the appropriate places.

25     He would deal with stolen bags, lost property and street lights that were out.  Rubbish and syringes would be dealt with or reported.  He could not arrest people and he was to be community friendly and stop minor damage.

26     He said he delivered packs containing information from the respondent to new residents, mostly personally.

27     Patrol officers were abolished and replaced by more rangers.  The rangers were law enforcement officers.

28     The respondent produced a file containing the Employee’s notes that were made by him of his patrols.  These documents show that he reported graffiti, contacted and checked that library staff were alright, checked on ratepayers at a caravan park, checked on the condition of a toilet where sexual activity often took place, spoke to mini-mart staff where there had been alleged hold up problems, dealt with community centre staff, a man on a driveway, ladies on a verge, checked council buildings for damage, spoke to a lady at a hairdressing salon where there had been public behaviour problems, delivered resident packs (mostly in person), collected a person’s shoulder bag that had been left somewhere, checked on a deli and a petrol station, checked anti-social behaviour in a public place relating to cars doing burn-outs, looked into children throwing sand across the road, reported a burnt out car, attended to parking at a library, vandalism, building alarms going off, an injured animal on a golf course, a blocked drain at a tennis court, reporting flood lights left on over night, spoke to a woman where alleged domestic violence and tended to her until the police arrived.

Fiona Elizabeth Bentley

29     Ms Bentley is, I find, well qualified in the area of local government.  She stated that there was a Safer Citizens programme in the city prior to her arrival.  It had started with a report in 2000 as a result of community concerns relating to law and order and safety.  It concerned a visible presence by the council in the face of inadequate police resources.  It also had an educational aspect.  It involved work with other agencies, workshops and seminars.  It was aimed also at anti-social behaviour generally and on specific occasions.  It was to be more community oriented than the City of Stirling patrols which had been put in place.

30     The six parts of the programme were community events, community education, the patrol service, urban design, graffiti and coastal ranger service. It was funded by a ratepayer levy of $21.00.

31     There was a perception of more crime rather than that in fact being the case. The Respondent wanted the community to feel safer.  The programme was aimed at safety rather than enforcement of safety.  Ten patrol officers were appointed. They were to be highly visible in the community.  They were expected to be on the road and in contact with people and to give information and support.

32     The welcome pack that was distributed contained information about the City.

33     There was some union concern that really the Patrol Officers should be more properly called Enforcement Officers.  The city had other Law Enforcement Officers.  The Patrol Officers had no law enforcement powers.  The witness said she thought that the Employee thought that he was more in the line of law enforcement.  She said the Employee did some security work.  The Employee was a Patrol Officer, not an Activity Officer or Children Services Officer or financial counsellor.

34     The witness had been out on patrol to see what was in fact done.

35     The salary was $32,462.06 for a 38 hour week but as the Employee worked 40 hours there was an extra 2 hours paid for at time and a half and that brought the sum to $34,688.00.

36     Under cross examination she stated that there were several categories within the Community Services Officer classification.  They were welfare and ancillary, recreation, arts, theatre and museum.

37     She admitted there had been some sort of related dispute before the Australian Industrial Relations Commission.

ONUS ON THE CLAIMANT

38     The onus is on the Claimant to prove that the Employee is not a Community Services Officer.

RESPONDENT’S ADDRESS

39     The respondent referred to the matter of Kimberley Frederick Richardson, Industrial Inspector v Action Food Barns (WA) Pty Ltd 65 WAIG 1087.

40     The test is whether on the facts the substantial nature of the work in terms of the purpose to be achieved by it was of the nature of a Community Services Officer.

41     A review of the evidence was undertaken and it was pointed out that in the matter of an Application by the Municipal Officers’ Association of Australia to vary the Municipal Officers’ (South Australia) Award 1973(1) Print F6817 it was noted that Community Service Officers are employed in a variety of functions.

42     The Respondent maintains that the matter is to be decided on what the primary function of the Employee is and the question posed was whether it is simply a matter of looking after the community’s welfare.

43     The recent case of Jensen v City of Melville 83 WAIG 3668 was quoted and said to be distinguishable as that matter involved security and law enforcement services together with relevant powers.

44     In the subject matter the Employee did quite a bit in relation to looking after city property.  He also interacted with the community.

45     The Respondent submitted that the calculations made by the Claimant should have all used the rate of $16.428 per hour rather than $16.838; the latter rate being the hourly rate including the extra payment for the two additional hours overtime.  It relates to the 40 rather than the 38 hour week.

46     The decision of the Western Australian Industrial Appeal Court in James Turner Roofing Pty Ltd v Peters 83 WAIG 427 was submitted as authority for the fact that if there is an alleged breach of an award then only the award rate can be enforced, not a higher rate and that as the incorrect figures have been used the claim should be dismissed.  The first proposition is accepted but the following contention is rejected.  An error in calculation should never prevent the merits of a claim being considered.

47     Then there was a question of a set off as only a two week period has been used showing a number of hours worked when the following two weeks there were a different number of hours worked and that has ramifications in relation to the overtime claim.

CLAIMANT’S ADDRESS

48     Jensen v City of Melville (supra) was quoted and submitted to be applicable.

49     Counsel for the Claimant also cited the decision of the Industrial Appeal Court in Norwest Beef Industries and Another v Australian Meat Industry Employees Union 64 WAIG 2124 in support of the fact that the plain meaning of the clause was to be relied upon.  The whole award should be considered without additional outside information.  Awards are not an art form

50     The decision of the Australian Conciliation and Arbitration Commission (as it was then known) in an Application by the Municipal Officers Association of Australia to vary the Local Government Officers (Western Australia) Award 1975 re salaries and definitions – community services officers, numbered C 5761 of 1981 was quoted.  That was a decision dealing with the addition of an officer called a Social Welfare Officer to the Award which is under consideration here.  They were to discuss problems in the community with the community.  They changed to be more professionally oriented, with appropriate qualifications.

51     Following an outline of the history of the clause, Counsel for the Claimant submitted that the Employee was not caught by the clause quoted by the Respondent.

52     Law Enforcement Officer has its own particular definition in clause 3.7 and it is to be highlighted that there are no definitions for the positions of many city officers in the Award.

53     The question is whether a Patrol Officer doing what the Employee did comes within the definition set out in clause 3.4.

54     The obvious differences in this situation to that in Jensen v City of Melville (supra) stems from the fact that Jensen had to inspect council properties and attended to some enforcement of by-laws.

55     It was emphasised that there is a breach of the Award as the work time is 40 not 38 hours a week.

56     As an “Officer” the Employee would be paid shift and overtime allowances.

57     The Claimant conceded that under James Turner Roofing (supra) there can be no claim seeking the enforcement of over award payments. It was also conceded that the correct hourly rate for the purposes of calculation is to be $16.428.

58     The Claimant pointed out that in the fortnight following that before the Court the Employee worked 70 hours but was paid for 80, and this gives rise to the set-off submission by the Respondent.  There is nothing in the contract of employment, however, which states that there was an additional two hours incorporated at time and a half rates.  There is nothing to allow that set-off.  There should be no set-off of the amounts paid in the 90 hour fortnights with that paid in the fortnights when 70 hour is worked.

59     A formal application to amend the hourly rate to $14.428 was made by the Claimant.

FINDINGS

60     At the conclusion of addresses I referred the parties to the following authorities:

• The Federated Clerks’ Union of Australia v Cary 57 WAIG 585
• Doropoulos and Others T/A Swan Dry Cleaners v Transport Workers Union 69 WAIG 1290
• Federated Miscellaneous Workers Union v Shire of Rockingham Child and Youth Care Trust 65 WAIG 1147

61     Those cases really put forward the test of major and substantial part of the work and mentioned other indicia that should be considered all of which were mentioned in the authorities quoted by Counsel appearing herein.

62     I have to decide whether the Claimant has proved on the balance of probabilities that the Employee comes within the definition of “Officer or Employee” as set out in clause 3.9 of the Award as contended for by the Claimant or within the definition of “Community Services Officer (Welfare and ancillary services)” as set out in clause 3.4 as contended by the Respondent.  Really I have to decide the matter based on what the Employee did during the relevant fortnight.

63     For the reasons that follow, I find that the contention of the Claimant is correct.

64     There has to be a welfare component in the work carried out and in this case there was some such work.  The encouragement, promotion and conduct of the community pursuits must be, and were, to improve general and social living standards but, and here is the problem, it must be in relation to those topics family support, services etc.  The Employee had nothing to do with most of those areas; he was a Patrol Officer patrolling the City for the City’s benefit.  Those topics were not the major and substantial part of his work.  The only applicable heading was “services” and he did far more than that and most of the work he carried out was not on that list.  His work was far from primarily concerned with the social and living standards of the community.

CONCLUSION

65     I find that the Employee must come within the definition “Officer or Employee”.

66     For the sake of completeness I also decide that compelling work for any more than 38 hours breaches the Award.

67     I allow an amendment of the hourly rate to $16.428 and note that the sum claimed will have to be recalculated using the amended hourly rate.

68     I allow the claim for set-off on the basis of the James Turner Roofing (supra) case.  I decide in line with that authority that there can be no prosecution to recover payments above the Award.  Also in this regard I draw the parties’ attention to item 1 of paragraph 21 of that decision which states:

If no more appears than that (a) work was done; (b) the work was covered by an award; (c) a wage was paid for that work; then the whole of the amount paid can be credited against the award entitlement for the work whether it arises as ordinary time, overtime, weekend penalty rates or any other monetary entitlement under the award.

69     As there is a claim for a penalty and costs, I will hear the parties in that regard and otherwise in relation to the orders to be made on a date to be fixed.

RH Burton

Industrial Magistrate