100424950

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

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

CLAIMANT

 -v-

 SHIRE OF MUNDARING

RESPONDENT

CORAM MAGISTRATE WG TARR IM

DATE  WEDNESDAY, 8 SEPTEMBER 2004

FILE NO/S M 1 OF 2004 & M 2 OF 2004

CITATION NO. 2004 WAIRC 12774

_______________________________________________________________________________

Representation

Claimant  Mr M Kane appeared for the Claimant.

Respondent  Mr M Fitz Gerald of Fitz Gerald Strategies appeared for the Respondent.

_______________________________________________________________________________

Reasons for Decision

1         There are two claims for determination in these proceedings.  They have been heard together as one action and that has been appropriate as both the employees on whose behalf the claims are made are seeking to establish, in effect, their entitlement to the same classification.

2         The Claimant in both claims, the Australian Municipal Administrative Clerical and Services Union, is an organisation of employees registered pursuant to the provisions of the Workplace Relations Act 1996.

3         The Respondent, the Shire of Mundaring, is a Local Council established pursuant to the Local Government Act 1995 (WA) (the Act).

4         It is not in issue that both the Claimant and Respondent are named as parties in the Local Government Officers (Western Australia) Award 1988 (the Award) and are bound by the Award.

5         Both claims cover the period from 4 January 1998 to 4 July 1998 when, it is agreed, both employees were employed by the Respondent.  The Claimant argues that both employees were employed as “Law Enforcement Officers”, a classification defined in the Award at clause 5(g) and the Respondent has breached clause 35(d) of the Award when read in conjunction with clause 6 therein by not paying to each employee an entitlement to the loading as contained in clause 35(d) for the pay periods between January and July 1998.

6         It is argued by the Respondent that the two employees are not “Law Enforcement Officers” but are employed as “Community Services Officers (Recreation)”, a classification defined at clause 5(i) of the Award.

7         The loadings sought are additional rates provided in the Award for various employee classifications including Law Enforcement Officers but not Community Services Officers.  Clause 35(d) of the Award provides:

“Law enforcement officers who work, by agreement with Australian Services Union, their ordinary working hours over more than five consecutive days shall be paid a loading of 15% on all ordinary hours.”

8         The primary issue to be decided is whether or not the employees should be classified as Law Enforcement Officers or whether they are correctly classified as Community Services Officers (Recreation) as the Respondent has classified them or, alternatively, as the Claimant argues, do they come under “a general fall-back category”, as it was put, of “Officer or Employee” as defined in clause 5(a).  Clause 5(a) reads as follows:

“Officer or Employee” shall mean a person appointed by a Local Authority to one of the classifications in this Award, a person appointed by a Local Authority as a Trainee in accordance with the principles of the National Training Wage Interim Award 1994 as set out in Clause 79 – National Training Traineeships and I  Schedule 8 of this Award, 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 a Local Authority by the Local Government Act 1960-1985, its successor and/or any other Act.

9         When considering the definition of Officer or Employee and applying the ordinary meaning of the words used it is my view that it does not create a separate or alternative classification within the Award.  The definition applies to every person appointed by a Local Authority to any of the classifications in the Award and, therefore, must include Law Enforcement Officers and Community Services Officers.  It follows in my view that the definition is a general one for the purposes of the Award and the words “officer” and “employee” are used throughout the Award to generally describe a person who is employed by a Local Authority either in one of the classifications in the Award, as a trainee and as 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 a Local Authority by the Local Government Act and/or any other Act.

10     The last category of “Officer or Employee” is very wide and arguably could apply to a person so employed but not to one of the classifications in the Award.  If necessary I will return to this definition.

11     Clause 5(g) of the Award defines a Law Enforcement Officer as follows:

“Law Enforcement Officer” 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.

12     Community Services Officer (Recreation) is defined in clause 5(i) as follows:

“Community Services Officer (Recreation)” shall mean a person engaged by a respondent whose role is to initiate, co-ordinate, 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 Recreational/Aquatic Centre”.

13     Mr Alan Hill and Mr Peter Ewen are the two employees on behalf of whom the Claimant has brought these actions.

14     Mr Hill commenced with the Respondent with effect from 14 May 1984 when he was appointed to the position of Park Manager at Lake Leschenaultia.  With effect from 27 May 1988 the grading of the Park Manager’s position for salary purposes was aligned to that of Pool Manager Level 6, third year of experience (6/3).

15     Although Mr Hill made representations to have his position reclassified in the early part of 1990 based on the salary rates applicable to National Parks’ Rangers, the Respondent maintained that his classification should remain aligned to a Swimming Pool Manager and reclassified his position to a Level 8/1.

16     Following the introduction of salary broad banding Mr Hill’s position was translated to Level 5 Step 1.

17     While Mr Hill’s salary and levels increased, the evidence before me is that neither the main objectives of his position nor the principal duties associated with it changed between June 1993 and the 16 September 1997 position description which is relevant to the period of the claim.

18     The position objectives set out in the position description dated 16 September 1997 are as follows:

Objectives of Position:

Provide effective management of Lake Leschenaultia ensuring that the facility is well presented and maintained and that maximum benefit is derived from the facility by the local community

Within Service:

To assess, recommend and undertake ongoing improvements to the park which are in keeping with Council’s philosophy for the reserve.

Within Organisation

Liaise with other departments and staff on all matters effecting the development and day to day management of the reserve.

19     Also set out in the position description are the key duties/responsibilities.  They are separated into “Major and Significant” and “Minor” as shown hereunder:

Major and Significant

• Ensure the park is maintained in a clean and tidy condition and maintenance (lawn mowing, brush cutting, tree management, vandal damage repair, painting, furniture repairs and reticulation repairs) is regularly undertaken to a high standard.
• Ensure a regular programme of machinery and equipment maintenance is in place.
• Manage the financial operation of the Lake ensuring that Council's philosophical objectives and budget predictions are achieved.
• Reconcile all monies received and deposit on at least a weekly basis into Council’s bank.
• Maintain daily attendance and other records required by the Manager - Recreation Services.
• In conjunction with the Ranger Service, ensure a comprehensive fire management plan is in place and as a part of that plan arrange the installation and maintenance of appropriate fire breaks.
• Ensure staff receive appropriate training in a customer service environment and are multi-skilled and able to undertake the range of work related tasks required within the park.
• Attend to bookings relative to the camping ground and organising groups.

Minor

• Liaise with lessees operating within the park to ensure all lease requirements are being fulfilled.
• Liaise with police and local schools in relation to truancy and work experience.
• Assist the Manager - Recreation Services in the annual review of Lake admissions fees and prepare draft budget estimates by February each year.
• Participate on the interviewing panel in the appointment of new staff for the Lake.
• In August each year present to the Manager - Recreation Services an annual report on the operation of the Lake for the previous year.
• Attend to all inward and outward correspondence relevant to the lake and forward to the Manager - Community Services for signature.
• Prepare written reports as required on aspects relating to the management of the Lake.
• Provide First Aid and emergency services as required.
• Attend to park user problems as required.

20     The other employee, Mr Peter Ewen, commenced with the Respondent with effect from 21 December 1987 as a Park Ranger.  His commencement salary was equivalent to that of a Ranger, first year of experience.  With effect from 27 May 1988, as a result of a review of officer’s salaries following amendments to the Act, the grading of the Park Ranger’s position for salary purposes was aligned to the Pool Manager Level 4/1.

21     As in the case of Mr Hill, in 1994, as a result of the introduction of broad banding, Mr Ewen’s position of Park Ranger was set at Level 4 Step 1.  Likewise his position description for the purpose of this claim is that dated 16 September 1997 which sets out the position objectives as follows:

Objectives of Position:

Assist and support the Park Manager in providing effective management of Lake Leschenaultia ensuring that the facility is well presented and maintained and that maximum benefit is derived from the facility by the local community.

Within Service:

To maintain the park in a presentable condition to users and to undertake ongoing improvements that are in keeping with Council's philosophy for the reserve.

Within Organisation

Liaise with other staff within organisation to ensure the objectives of Lake Leschenaultia are achieved.

22     The key duties/responsibilities are likewise separated into “Major and Significant” and “Minor” as follows:

Major and Significant

• Clean and maintain the public toilets, camping ground and barbecue facilities on a regular basis.
• Maintain the lake and surrounding areas in a presentable standard, free of litter and refuse.
• Assist in the collection of fees from park users and ensure the public are adequately informed of the restrictions applicable to the use of the facility from time to time.
• Assist in the maintenance of orderly behaviour under the Local laws relating to Lake Leschenaultia and the requirements of the Dog Act.

Minor

• Assist with the on-going promotion of Lake Leschenaultia through day to day contact with users of the facility.
• Provide First Aid as required.
• Other appropriate duties as determined by the Park Manager.

23     Lake Leschenaultia is described in the Request for Tender prepared by a Project Management Consultant engaged by the Respondent in 1999, when consideration was being given to privatising its management, as follows:

Lake Leschenaultia is an important conservation and recreation reserve located approximately 50 kilometres east of Perth.  The lake is managed by the Shire of Mundaring under a Management Order from the Department of Land Administration.

The "C" class reserve covers an area of 168 hectares.  The lake was constructed as a dam approximately 100 years ago to provide water for steam locomotives using the Guildford to Chidlow rail line.  The lake holds approximately 530 mega litres of water and has a circumference of 3 kilometres.

The water quality is consistently good and the lake is surrounded by natural bushland and man-made white sand beaches.  It is regarded as a key recreation resource for the metropolitan area of Perth and, in particular, those people residing east of Perth.

24     In the same document the lake’s facilities and infrastructure are listed as follows:

Amenities at Lake Leschenaultia include the following -

      campsite with showers and toilet facilities;

      barbecues, both wood and electric;

      kiosk and cafe which can provide a range of both hot and cold food and drinks (eat-in or take-away);

      shade shelters and picnic areas;

      toilet facilities;

      walkways and trails;

      canoe hire;

      miniature railway track.

25     In the Respondent’s brochure for the lake reserve, under the heading of “A place to relax” it is described as a “stretch of clean clear water specially set aside by Mundaring Shire for leisure activities” and lists canoeing, swimming, cycling, walking, bird watching and barbecues as an example.

26     There does not appear to be any dispute between the parties that Lake Leschenaultia is a recreation facility and the above description and facilities are applicable to it.

27     Notwithstanding the position descriptions and the nature of Lake Leschenaultia as a recreation reserve the Claimant maintains that the employees herein should be found to be Law Enforcement Officers and not Community Services Officers (Recreation).

28     In support of this submission, evidence has been given by both Mr Hill and Mr Ewen of their duties and responsibilities relating to their appointments under specified legislation and By-laws.  In particular, section 29 of the Dog Act 1976, the Council’s By-laws relating to the illegal removal of timber, firewood and stone from Council’s property and probably more importantly, By-laws relating to Reserve No 23165 – Lake Leschenaultia (Lake By-laws).

29     Mr Hill’s evidence of his activities as an authorised officer under the removal of timber, firewood and stone By-laws suggests they were limited.  He said it may be that an occasion where people have removed or been about to remove timber occurred once a year.  He could recall an occasion when a person had loaded his trailer with firewood and was required to off-load it.

30     His appointment as an authorised person under the Dog Act 1976, he believed, was in case there was a dog attack at the lake.  There is no evidence of any such attack and there is no evidence of his need to use the powers given to him under that Act.  He gave evidence that the Lake By-laws authorisation enabled him to deal with any dog problems.  Any stray dogs were caged in a secure area of the workshop until collected by a Shire Ranger.  Otherwise, people with dogs were asked to keep them in their cars or leave the lake reserve.  It is interesting that both Mr Hill and Mr Ewen thought dogs were not allowed into the lake reserve yet the Lake By-laws provide that “A person shall not bring a dog on to the reserve or permit a dog to remain thereon unless the dog is at all times restrained on a chain, cord or leash” although there is evidence before me that the Local Laws Relating to Dogs revoked the Lake By-law’s dogs provision on 24 November 1997.  Neither Mr Hill nor Mr Ewen were given any authority under the Local Laws Relating to Dogs.

31     The Lake By-laws were introduced in 1982 and they provide for the good management of the lake reserve, generally providing for hours of admission, fees, control of the reserve, anti social behaviour, damage, fire lighting, posting of signs, discharge of firearms, camping, driving of vehicles, fishing, bathing, dogs, reserved areas and parking.  Provision is also made for penalties for the non-observance of the By-laws including the issue of infringement notices.

32     By-law 6 provides for the appointment of an authorised officer as follows:

6.    (1)   The Council may appoint a person to be caretaker or an authorized officer for the purpose of these by-laws.

(2)   An authorized officer is authorised-

(a)   to carry into effect the provisions of these by-laws;

(b)   to report to the Clerk on the working, effectiveness and functioning of these by-laws;

(c)   to recommend to the Clerk, the institution of prosecutions; and

(d)   subject to section 646 of the Act, to institute and conduct prosecutions as directed by the Clerk from time to time.

33     By-law 5 requires every person using the reserve to obey all reasonable directions of an authorised officer.

34     There can be no doubt on the evidence that both Mr Hill and Mr Ewen have had to use the authority given to them to deal with visitors who become objectionable because of their drinking, bad language and general anti social behaviour.  On occasions this has resulted in such visitors being evicted from the reserve.  On other occasions it has been necessary to arrange for the police to attend.  However the use of that authority was not for the purpose of either of them pursuing a prosecution or imposing a penalty by way of an infringement notice.  Their power to issue infringement notices was removed in 1994 and neither have been involved in prosecuting an offender.

35     It would appear from the evidence that Mr Hill and Mr Ewen have been able to manage the visitors to the lake reserve, progressively with more success, by, as Mr Hill said, being proactive in managing peoples behaviour and by dealing with any potential troublemakers before they get out of hand.

36     Does it follow therefore that because Mr Hill and Mr Ewen were authorised officers under the Lakes By-laws and from time to time ensured compliance with them that they were Law Enforcement Officers?

37     “Law Enforcement Officer” as defined in clause 5(g) is an employee “employed to patrol, within the geographical confines of a Local Authority” and it must follow that such is the first requirement.  The definition goes on to give purposes of the patrolling.  Firstly, for the purpose of watching, protecting or inspecting all property belonging to the Local Authority and to enforce one or more of the Authority’s By-laws or any Acts of Parliament which that Authority is empowered to enforce and secondly, patrolling for the purpose of enforcing one or more of the Authorities By-laws or any Acts of Parliament which that Authority is empowered to enforce.

38     It is not difficult, from the definition of “Law Enforcement Officer”, to see how a Shire Ranger, performing the duties set out in the evidence of Mr Thomas Bergin, the Respondent’s Senior Ranger, properly comes within that definition, nor is it difficult to see why Industrial Magistrate Cicchini came to the conclusion he did in the matter of Jensen v City of Melville 83 WAIG 3668, a case referred to me on behalf of the Claimant.

39     When considering an employee’s classification it has long been established that there are tests that should be applied.  These include the major and substantial employment test and the quality of work test.

40     These tests were affirmed in Doropoulos and Others T/A Swan Dry Cleaners v Transport Workers Union 69 WAIG 1290.  In that case the Full Bench of the Western Australian Industrial Relations Commission made reference with approval to the decision of Ludeke J in Merchant Service Guild of Australia v Fenwick & Co (Current Review 1973 5 at 7) quoting:

To ascertain the course of the calling of particular employees, it is not enough merely to make quantitive assessment of time spent in carrying out various duties.  In my opinion, not only should the nature of the work done by the class of employees be examined, but it is equally relevant to consider the circumstances in which they are employed to do the work; and if a worker is required by his employer to carry out diverse duties, the enquiry should be directed to ascertaining the principal purpose for which the worker is employed.

41     That test was followed in Zimmerman v ABC (1995) 62 S.A.I.R. 287 which also accepted the principle found in Briggs v Customtone Kitchens (1988) 24 I.R. 446 wherein Miller CIM of the Chief Industrial Magistrate’s Court, New South Wales said at page 452:

In my view the correct approach for the determination of the issue drawn from the decisions above referred to is to place the major emphasis on the major and substantial purpose or object of the complainant’s engagement rather than on the major and substantial time spent on the performance of the duties.  This view, in my opinion, is not in conflict with the view expressed by Sheldon J. in Ware v O’Donnell Griffin.

42     Evidence has been given of the history of the employment of both Mr Hill and Mr Ewen.  Both applied for advertised positions and were successful in gaining employment with the Respondent as Park Manager and Park Ranger at Lake Leschenaultia respectively.

43     I have set out the objectives of their positions on pages 6 and 8 herein.  Mr Hill’s generally require effective management of the lake reserve ensuring that the facilities are well presented and maintained and that maximum benefit is derived from the facility by the local community, to assess, recommend and undertake ongoing improvements to the park.  Mr Ewen’s require him to assist Mr Hill in his objectives.

44     Their respective key duties /responsibilities are set out on pages 6 to 9 herein.  Mr Hill’s duties are generally prefixed by words such as “ensure” or manage” whereas Mr Ewen’s duties require him to clean, maintain and assist.  The evidence of both employees is that they were involved in the hands-on maintenance and ongoing improvements, particularly during the summer season.  Mr Hill gave evidence that his job was more clerical and at page 18 of the transcript of proceedings he said:

“During the winter time particularly the --- the other rangers’ job is a higher level of maintenance than mine.  During the summer time all our positions are fairly similar.”

45     He went on to say that he did not think there were any duties that the rangers did that he did not.

46     It is because of the nature of Mr Hill’s and Mr Ewen’s duties and responsibilities that the Respondent argues they are not Law Enforcement Officers and are properly classified as Community Services Officers (Recreation).  That classification, as defined in clause 5(i), means a person engaged by the Respondent whose role is to initiate, co-ordinate, encourage, promote or conduct recreational activities within the community and shall include an assistant in relation to such functions.

47     There can be no doubt, on the evidence before me, that Lake Leschenaultia and the “C” class reserve in which it is situated is a place maintained for the recreation of members of the public and is used by them as such.  As is mentioned on page 10 herein it is described as being regarded “as a key recreation resource for the metropolitan area of Perth and, in particular, those people residing east of Perth” and as a “stretch of clean clear water specially set aside by Mundaring Shire for leisure activities”.  Those leisure activities are referred to also at page 10 herein.

48     It does not appear to be in dispute that it is Mr Hill’s principal responsibility to effectively manage that recreation facility with the assistance of Mr Ewen and others.

49     There appears to be some concern on the part of the Claimant that Mr Hill’s grading was aligned to that of a Pool Manager and that was why he was classified as a Community Services Officer (Recreation).

50     I was referred to the Health Act (Swimming Pools) Regulations and Mr Hill was taken through the qualifications required by Swimming Pool Managers to show that he did not have the bronze medallion, a first aid certificate, experience or qualifications for the handling of chlorine and other pool cleaning chemicals or knowledge of operating pool equipment.

51     It is not claimed by the Respondent that Mr Hill is a Pool Manager.  The evidence of Mr Kevin Bentley, the Respondent’s Executive Manager Community Services, is that “the grading of the park manager’s position for salary purposes was aligned to that of pool manager level 6, third year of experience” (see transcript page 120).

52     The classification of Community Services Officer (Recreation) as partly mentioned beforehand at pages 16 and 17 herein can easily accommodate both Mr Hill and Mr Ewen but then goes on to read “and (shall include) recreation centre and swimming pool staff”.  It is not requiring Mr Hill or Mr Ewen to be swimming pool staff to fit within that classification.

53     For the reasons I have given and applying the major and substantial employment test I find that neither Mr Hill nor Mr Ewen should or could be classified as Law Enforcement Officers and are properly classified as Community Services Officers (Recreation).

54     The claims therefore will be dismissed

WG Tarr

Industrial Magistrate