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 COLLIE

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE W.G. TARR

DATE WEDNESDAY, 24 AUGUST 2005

CLAIM NO. M 16 OF 2005

CITATION NO. 2005 WAIRC 02634

CatchWords Breach of Federal Award/Certified Agreement; alleged failure to pay incremental increase.

Result Finding for the Claimant; increment should have been awarded with effect from 21 August 2003.

Representation 

CLAIMANT Mr S Bibby appeared for the Claimant

RESPONDENT Mr S White of the Western Australian Local Government Association appeared for the Respondent.

REASONS FOR DECISION

(Delivered extemporaneously at the conclusion of the hearing, extracted from the transcript and edited by His Honour)

Claim

1. This is a claim made by the Australian Municipal, Administrative, Clerical and Services Union - Western Australian Branch on behalf of an employee of the Shire of Collie, Ms Nyree Bartram.  The Shire of Collie is the Respondent in these proceedings and the claim alleges that the Respondent is in breach of the Local Government Officers (Western Australia) Award 1999 and, in relation to this employment, there is also an agreement being the Shire of Collie Enterprise Bargaining Local Government Officers Agreement 2001 which has been certified under the Workplace Relations Act 1996 and which also has application to employees of the Shire.

2. The breach claimed is that the employee, Ms Bartram, was not paid an incremental increase in her salary following the second year of her employment.

3. An agreed statement of facts has been filed in the Court in the following terms:

AGREED STATEMENT OF FACTS

1.   Ms Nyree Bartram (‘employee’) commenced employment with the Shire of Collie (‘employer’) on 20 August 2001 in the position of Recreation Centre Manager.
2.   The employee currently manages the Shire of Collie Roche Park Recreation Centre.
3.   The employee's employment anniversary commencement date is 20 August.
4.   The employee was employed under the terms and conditions of the Local Government Officers (Western Australia) Award 1999 (‘Award’) and the Shire of Collie Enterprise Bargaining Local (Government) Officers Agreement 2001 (‘Agreement’).
5.   The employee is classified as an ‘Officer’ as defined in clause 3.9 of the Award.
6.   The employee's first incremental review pursuant to clause 13.4.1 of the Award was finalised on 17 January 2003.  The employee was awarded an increment increase from 8:1 to 8:2 payable from that day.
7.   Payment for the increment level increase was backdated to the employee's commencement date.
8.   The review conducted on 17 January 2003 recommended the employee undertake a report writing course.  The course was authorized in writing by the Shire of Collie Corporate Services Manager Mr Jason Whiteaker.
9.   The respondent conducted a performance and salary review with the employee on 4 July 2003.
10. The respondent did not grant the claimant an increment increase from 8:2 to 8:3 on 4 July 2003.
11. The employee completed a report writing course conducted by the Western Australian Local Government Association on 15 August 2003.
12. The relevant clauses to determine the dispute are clause 13.4.1 of the Award and clauses 8 and 15 of the Agreement.

4. There does not seem to be a lot of dispute on the evidence.  It is the case that Ms Bartram commenced her employment in August 2001 and in January of 2003, after a review of her performance, she was awarded an incremental progression from a level 8:1 to a level 8:2.  She was employed on a level 8 and commenced the employment at the first point of that level being level 8:1.

5. There was a further performance review done in July 2003 and with an expectation, I presume, on her part that she would move to the next increment when the anniversary of her commencement of employment came about, but that incremental increase was denied by her immediate supervisor.

6. It is not in dispute that Ms Bartram's performance has been satisfactory and the reasons given for her not receiving the increment were set out in a letter signed by the manager of Corporate Service, Mr Jason Whiteaker dated 4 August 2003.

7. There are three points in that letter in relation to the non-incremental progression.  They were, and I quote:

•             Upon completion of your performance review I was satisfied that neither party, either at your previous review or during the year, had identified required new or enhancement of skills, required to be able to carry out your duties with the council.
•             Upon analysis of market conditions and employment (based on WALGA information) I was satisfied that your current remuneration was comparable, and in most cases in excess, of employees in similar roles within similar local authorities.
•             Upon analysis of your current remuneration with Managers within my department I was satisfied that your remuneration was comparable, and in some case in excess of employees undertaking a similar role.  I also noted at your review that while comparisons were made between Managers in the Corporate Services Department, in order to maintain equity, should a Manager prove to be achieving in excess of others this will definitely be taken into account.

8. The last dot point reads:

• As no improvement / development strategy has been developed it goes without saying that I (Council) are happy with your current level of performance / development.

9. The award makes provision for incremental progression in clause 13.4 and clause 13.4.1 provides:

At the conclusion of each twelve month period following appointment to their classification or entry into a classification level, Officers shall be eligible for incremental progression if;

13.4.1(a)   The Officer has given satisfactory service over the preceding twelve months; and

13.4.1(b)   The officer has acquired and is required by the employer to utilise new and/or enhanced skills within the ambit of the level definition for his/her position or other skills where agreed at the staff development/performance review, and this has been certified in writing following, and as part of, the assessment process.

13.4.1(c)   In cases where the review is delayed the anniversary date shall not be changed and the increase, if any, will be paid retrospectively to the anniversary date.

13.4.1(d)   Movement to a higher level or classification shall only occur by way of a promotion or reclassification.

10. As the authorities require, a Court is to look at the ordinary and well understood words that are used and they are to be accorded their ordinary or usual meaning.

11. My view is that there can be only two reasons why an incremental progression should not be made and they are those mentioned in 13.4.1(a) and 13.4.1(b) and, provided an employee has satisfied both of those, the salary increase should be allowed.  In fact 13.4.1 contains the words "shall be eligible for incremental progression" which in the normal application means that it is mandatory.  It is not “may”, it is “shall be eligible”, if both of the criteria have been met.  There are only two criteria and it seems to me that the reasons Mr Whiteaker put forward in his letter dated 4 August 2003 (exhibit C), set out above, are misguided.  There is no provision in the clause for him to take into account market conditions and employment.  There certainly may well be if he had been setting a level, but this level has been set as a level 8 and there is no provision in clause 13.4 which allows him to take into account his view that the employee is being paid an appropriate amount when compared with other managers in his department.

12. It cannot be any clearer that there are only two criteria, being satisfactory service and the requirement in relation to training.

13. I must say that clause 13.4.1(b) is badly worded.  It reads:

The Officer has acquired and is required by the employer to utilise new and/or enhanced skills within the ambit of the level definition for his/her position or other skills where agreed at the staff development/performance review, and this has been certified in writing following, and as part of, the assessment process.

14. I think if one has to look at that long sentence and try and work out what it requires, it certainly requires, as a starting point, that the officer has acquired skills.  It could read "The Officer has acquired" to mean, in other words, that the officer is capable of utilising new or enhanced skills.  There is the requirement for the officer to be trained, I would have thought.  Otherwise, if there is no training and if the officer has not got the skills then he cannot be required by an employer to utilise the skills.

15. The next part is that the officer is required by the employer to utilise those skills and those skills must be within the ambit of the level definition for his/her position and in this case, those skills need to be within the ambit of a level 8 position.  It goes on to provide that there may be other skills where agreed at a staff development performance review and they could be, as it says, other skills that are relevant to the position or the officer's performance generally.  It goes on to say “and this has been certified in writing following, and as part of, the assessment process”.

16. So it seems to me, reading that sentence, that the officer needs to have the skill and if he/she did not have it initially he/she needs to have acquired that skill, and there needs to be a requirement by the employer for the employee to utilise those skills.  It seems to be, in relation to other skills, there needs to be some agreement and that the agreement needs to be certified in writing.

17. When I then look at the Enterprise Bargaining Agreement and go to clause 15 which is entitled “Training” and has a heading “Application and Approval of Training”, the provisions deal with the issue herein.  The clause reads:

15.1  The Collie Shire Council is committed to providing employees with adequate training related to work purpose in a specific field in an effort to enhance their career opportunities or address safety concerns in line with the organisations needs.  Training needs may also be identified through the annual performance review process or the manager/supervisor.

15.2  Where identified, employees shall undertake relevant training to enable them to perform their duties competently.

15.3  Employees may request of their immediate manager or supervisor the desire to undertake training.  The employee’s immediate manager/supervisor is responsible for the administration and approval of training requests or needs in line with Council’s annual budget limitations for their respective department and the approved Training Plan.  Approval or non-approval by the Manager/Supervisor will take into consideration the needs of the Organisation to have a certain number of employees trained in any particular field at any particular time.  ie: there may only be a need to have a certain number of employees trained in computer maintenance or grader/plant operation at any particular time.

15.4  An organisational training plan will be developed within the first 6 months of this agreement in consultation with the EBA Consultative & Implementation Committee and the appropriate Manager/Supervisor taking into consideration the needs of the organisation to have a certain number of employees trained in any particular field at any particular time.  Council agrees to annually budget a sum of money to commence implementation of the training plan.

15.5  Staff will be nominated for training programs in accordance with the principles of the Equal Employment Opportunity Act and paragraph 15.3 listed above.

15.6  Where possible training will be conducted by accredited training providers such that employees receive appropriate accreditation for the skills and competencies acquired.

15.7  A schedule of existing training skills will be developed to assist in the development of the Organisational Training Plan required under paragraph 15.4.

18. Clause 15.1 is a statement.  Clause 15.2 makes it a requirement, and I would have thought that it would follow there that it is where an employer has identified that an employee needs training to enable them to perform their duties competently.  It is for the employer to identify the type of training that is to be undertaken.  Clause 15.3 allows an employee to request that he/she undertake certain training and that then is assessed by the employer and approval or non-approval is given by the manager/supervisor, taking into account the needs of the organisation, and so on.

19. Clause 15.4 provides that an organisational training plan will be developed within the first 6 months of the agreement, in consultation with the EBA Consultative & Implementation Committee and the appropriate manager/supervising, taking into consideration the needs of the organisation to have a certain number of employees trained.  So once again, 15.4 provides for training which is organised by the employer and not the employee.  Clause 15.5 again places a responsibility on the employer to nominate staff for training.

20. Under the heading of "Training" in clause 15, it is the employer who has the involvement, except where under 15.3 an employee makes a request to be trained in some area.

21. It follows, in my view, that clause 13.4.1(b) must be an employer initiated provision.  It cannot be a provision left to an employee.  There needs to be a requirement by the employer for the utilisation of new provisions. It could be a situation where a nurse, for example, is on a level 8 and there was a new computer system introduced into the nursing station and if that computer system was used throughout the hospital then it would not be unusual for an employer to say to the nurse “You have to learn how to use this computer programme and I will then do what is necessary for you to get the required skills to do that”.  That is a situation where, as I have indicated, something new has come into the duties that fit within a level 8 position.

22. To have this any other way would give an employer the power to refuse to pass on an incremental increase where the employee has done nothing wrong and the position duties may not have changed since the last incremental increase.  There cannot be the situation where that provision would give the employer an opportunity to refuse, in my view, an increase on a whim, or as I suspect in this case, for some other reason.  Certainly, it is well out of the scope of the award to consider an incremental progression based on an analysis of the market conditions or the current remuneration of other employees or other managers.  That type of assessment has no place in the award under clause 13.4.

23. The only training that has been identified by the employer is the Local Government Report Writing Course which is, as I understand, a one day course.  That was identified in January of 2003 and the uncontradicted evidence before me is that Mr Whiteaker intended giving Ms Bartram the information she required so that she could do that course.  He did not follow that through and by the time the July 2003 review was done, that remained outstanding through, it would seem, no fault of the employee.

24. It follows, and seems to be credible evidence, that at that time, on 7 July 2003, Ms Bartram was given a copy of whatever it was which allowed her to get on to the Government Report Writing Course and it seems that she then did quickly follow that up and find that although the course was being run mid-August, she was able to secure that.  So it seems to me she has complied with the request of the employer to do the only training that she has been asked to do.  The evidence before me, however, is that she did a lot more than that on her own initiative and she produced as exhibit D the courses that she undertook between October 2002 through to the letter and report writing course on 15 August 2003.  I would have thought that if there were any issue being taken or there was a requirement to consider any training that had been done by Ms Bartram then she certainly has got herself involved in doing courses and attending conferences which I would have thought would be to the benefit of the Respondent, the Shire of Collie.

25. For the reasons I have given, I find that there has been a breach of the award and that the Respondent did not have grounds for denying Ms Bartram the increment that the award entitles her to.  I am satisfied on the balance of probability that the case has been made out and will succeed.

26. My finding is for the Claimant and that an increment should have been awarded to Ms Bartram with effect from 21 August 2003.

27. I do not know how long it will take the parties to calculate the quantum for any order I might make so I will adjourn sine die the proceedings for the lodgement of a consent order.

WG Tarr

Industrial Magistrate