Automotive, Metals, Engineering, Printing and Kindred Industries Union of Employees, Queensland v Abakos Digital Images Pty Ltd [2002] QIRC 102 (2002) 170 QGIG 357

357 Vol. 170 FRIDAY, 19 JULY, 2002 No. 13 ########################################################################################################################## # QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – power to recover unpaid wages and superannuation contribution Automotive, Metals, Engineering, Printing and Kindred Industries Union of Employees, Queensland AND Abakos Digital Images Pty Ltd (No. W29 of 2001) COMMISSIONER BLOOMFIELD 10 July 2002 Claim for unpaid wages – Award coverage in issue – Definition of “surveying” in Surveying (Private Practice) Award considered – Employer concerned not engaged in surveying (as defined) – Application dismissed. DECISION -- 1 of 5 -- 358 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 July, 2002 Background The Automotive, Metals, Engineering, Printing and Kindred Industries Union of Employees, Queensland (the Union) has made an application under s. 278 of the Industrial Relations Act 1999 for an order that Abakos Digital Images Pty Ltd (Abakos) pay unpaid wages amounting to $2,657.69 to Michael Knight. The Union alleges that Mr Knight was at all times during his employment engaged as a Cartographic Drafter within the meaning of clause 3.1(4)(b) of the Surveying (Private Practice) Award – State (the Surveying Award). Abakos, on the other hand, contend that Mr Knight’s employment was, at all times, regulated by the Draftpersons, Production Planners and Engineering Assistants’ Award – State (the Draftpersons Award) and its predecessor Award. It is common ground between the Union and Abakos that if Mr Knight’s employment is regulated by the Surveying Award he is owed the amount of money claimed. It is also common ground that if his employment is not regulated by that Award it is, properly, covered by the Draftpersons Award. Consequently, it is necessary to consider whether Mr Knight’s duties were such that they were covered by the Surveying Award. Award Coverage Clause 1.2 – “Award Coverage”, of the Surveying Award is (relevantly) in the following terms: “1.2.1 Subject to subclauses 1.2.2 and 1.2.3 hereof this Award shall apply (to the exclusion of all other awards or industrial agreements) to the classes of employees for whom rates of pay are prescribed herein who are employed within the industry of Surveying as defined in clause 3.1.1 of this Award. ….”. “Surveying” is defined in clause 3.1 – “Definitions” as follows: “3.1.1 “Surveying” means the act or process of determining the form, contour, position, area, height, depth or any other similar particulars of the earth’s surface, whether on land or water, or of any natural or artificial features on, below or above any part of that surface or planning the position or the length and direction of the bounding lines of any part of that surface, or of any such natural or artificial features thereof and includes the making or obtaining of a plan or plans thereof. It includes the acquisition, management, interpretation and analysis of data; the portrayal and dissemination of derived information in written, graphical, numerical, digital, photographic or magnetic media; and associated consulting, design, drafting, administration, management and technical support activities.”. It is necessary, therefore, to determine whether Abakos is in the industry of “surveying”. Deciding that question is not without difficulty because of the nature of the company’s activities. In order to decide the point it is necessary to consider the evidence given by the various witnesses and I do this below. Evidence and Submissions Mr E. Moorhead, who appeared for Mr Knight and the Union, said in his opening that Mr Knight’s duties were to take data from hard copy and soft copy sources and enter them into a CAD (Computer Aided Design) system in a format that was convertible to a Geographical Information System (GIS mapping system). He said Mr Knight was managing, interpreting and analysing data about the shape and contour of the land and of maps. Mr Moorhead also said that Mr Knight was involved in the portrayal and dissemination of derived information and the reading of graphical, numerical, digital, photographic or magnetic media. Mr Knight said his job title during his employment was “Cartographic Technician”. His duties involved digital data capture from hard copy plans to electronic media for inclusion on a GIS mapping system and included: (a) revising plans for inclusion into a GIS mapping system; (b) working from surveyors’ notes and plans to put plans into a CAD system in a Digital Cadastral Database (DCDB) for the creation of cadastral maps; (c) coding GIS databases from surveyors’ notes and original plans – which allowed for the inclusion of different forms of data, such as sewerage systems and electricity wiring, on cadastral maps. Mr Knight said he held an Associate Diploma in Cartography which he had completed in the Australian Armed-Services in November 1993. He said he used the skills he had developed during his Associate Diploma course in his position at Abakos. Under cross-examination Mr Knight conceded his job title was “CAD Operator” and not Cartographic Technician as he had stated in his written statement. He also conceded he had not created cadastral maps, although he used a cadastral base for the creation of the GIS package. Importantly, he also indicated that only two persons out of the company’s workforce of “about 2 dozen” had qualifications in surveying. His immediate supervisor was not one of those people. Mr Thistleton, who gave evidence on Mr Knight’s behalf, said Mr Knight had the knowledge and ability to carry out basic line construction and turned to his supervisor for clarification of ambiguous statements or interpretations of data where that was needed. Mr Thistleton said Abakos used cadastral information (as opposed to cadastral maps) “as a backdrop or a guide in the production of other products”. Mr Thistleton said Abakos was involved in the capture of data from soft digital information, from scanned information or from reading the information from paper plans or field books. Information was placed into a CAD system in the form of “dumb” lines. Such an example was an electricity grid system. After the grid was drawn in the form of lines, various attributes were applied to those individual lines using software. Examples of such attributes were: the voltage of the electricity line; the type of cable; the depth of the cable if it was underground; down to, in some instances, who had constructed the cable joints and the year in which that might have been done. Once the attributes were applied the data was converted by software to the client’s required GIS format. Mr Thistleton said there were rules in relation to the way that the work was done. There was to be no gaps in the line work and all the end points had to have the same geographical coordinates. The particular rules to be followed were usually supplied by the client. In situations where the rules could not be rigidly adhered to it was necessary to make a judgement or to seek the guidance of a supervisor. Under cross-examination Mr Thistleton agreed that none of Abakos’ employees had a title of “Cartographic Technician”. He also said that Abakos did not capture any cadastral information as such. Nor did it put together cadastral maps. He also agreed that the main aim of Abakos’ data capturing exercise was to make the information available for the particular client to interpret, to manage and to analyse. -- 2 of 5 -- 19 July, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 359 Mr Thistleton also indicated that Abakos performed a wide variety of work, including: • scanning and vectorising architectural drawings; • scanning and vectorising mechanical drawings; • scanning and vectorising patterns for laser cutting of fabric. In response to a question from the Commission Mr Thistleton gave an example of the tasks that would fall to a person at Abakos who was asked to process some mining plans. He said the mining company would be asked to provide reproduction material for the particular area they wish to have processed. With luck, the mining company would provide separate information, e.g. the contours would be separated from the drainage which in turn would be separated from roads, fences and things like that. It would be Abakos’ role to scan the individual sheets of reproduction material and clean the line work up from the raw vectors. Depending on the quality of the scan, staff may even “raster edit”, which involved a process of adding or deleting pixels to the image. After the task had been vectorised and the line work cleaned, staff would separate the various bits of data using computer software. The software would allow staff to produce separate drawings showing such things as the contours, the drainage, the sealed roads, the unsealed roads, the fences and so on. It was a question of what the client might want. Mr Thistleton said the staff had to interpret or “interpolate” the raw data because some of it was quite old, e.g. in feet and inches which had to be converted to metres and centimetres. The only management involved was in managing the plans. The only analysis was a validation process, “through the magic of digits”, to validate the data, e.g. to make sure the end points were lower than the start points in a sewerage system. Mr Peter Cross, a joint owner of Abakos until he left in 1996, said the company had commenced operations in 1989 to provide a bureau service for the conversion of hard copy drawings to data format and to develop software specifically directed at that type of conversion process. Mr Cross said the conversion process was the same as traditional map and drawing production techniques except the operators now used a cursor (like a mouse) instead of scribing or drawing tools. The hand conversion process was termed “hand digitising” and was labour intensive. It required good hand/eye dexterity and concentration during the line following or data input process. He said all the work at Abakos related to the conversion of hard copy data. The client provided the specifications for their work. The work undertaken by Abakos’ draftpersons consisted of line work with or without an annotation. Abakos had developed software to reflect the client’s specifications and, therefore, to authenticate the work completed by the draftsperson. As an example of the type of work which Abakos performed, Mr Cross spoke about a contract for Sydney Electricity. He said Abakos was supplied with a cadastral map which showed that organisation’s electricity assets. Abakos did not capture the cadastral features, just the electricity assets. In doing so it used various field notes that related to components on those maps. Once the data was inputted into the computer system it became data ready for use by the client in their own GIS system. The client received digital data from Abakos which enabled them to interpret, manage and analyse it as they saw fit with their own software. Mr Cross said if it had been 50 years ago Abakos would have laid sheets of transparent material over the maps and copied the electricity lines. However, Abakos now used a CAD system to draw the electricity assets. By using the cadastral maps the company was merely giving the electricity assets some ground reference points. Mr Cross said Abakos’ draftpersons were never required to acquire, manage, interpret or analyse the data they converted from the hardcopy. Abakos was given raw data and asked to make a digital image which could be provided to the client as raw vectors or in a GIS format. If it was in the latter format it had particular attributes built in. Such attributes included, for example a reference number for a particular lamp post, the voltage of a particular electricity line, and so on. Mr Cross said his background was in surveying and he had a degree in that field. He could “absolutely” state that Abakos was not in the surveying business. Under cross-examination Mr Cross said the work which Abakos’ employees performed was all “… line work – taking line work off somebody’s hard copy and putting it into the soft copy. Whether the line works are veins of gold in mining … or electricity or water pipes or telephone lines or gas lines or parking meters, it’s all much the same …”. Mr Cross also agreed under cross-examination that cartography was the next step of surveying and that was the role of a topographic draftperson. Mr Jorge Pereira also gave evidence on behalf of Abakos. He said that Abakos operated two business sections: a software development division and a bureau services division. The main activity in the bureau was graphical manipulation of information. Mr Pereira said Mr Knight did work with hard copy sources, but his work was performed using MicroStation, which is a CAD system not a GIS system. The data inputted into the computer system using MicroStation was subsequently translated, using Abakos’ own software, to a format that could be imported by a client’s GIS system. Mr Pereira said that Abakos did not create cadastral maps. No surveying knowledge was required by any employee to work on the company’s CAD system. The company did not employ any Cartographic Technicians and no one had ever had such a title within the company. Mr Pereira also said Abakos did work on data conversion for public utilities networks, such as electricity, gas, water and sewerage. However, this was not the only source of its work. Abakos’ business was to create a digital copy of hard copy information provided to it. It could be asked to draw a line that symbolically represented a cable which had to be placed in a digital format at a certain distance from another line. However, the line could also represent some architectural information, mining information or information for a laser cutting machine in the fabrics industry. Mr Pereira said that data conversion was performed for each client based on a set of detailed specifications provided by the client. The skill required from Abakos’ CAD Operators was in reading the particular plans and interpreting the network or other information. CAD Operators were not involved in the management, interpretation and analysis of the data provided. The CAD Operators drew plans from the specifications and information which had been provided to them. There was no requirement for cartographic or survey interpretation or for exercising any judgement related to land features. In such contracts as the Sydney electricity contract, the project had involved the symbolic placement of electrical network information and assets on a geographically based system. However, the CAD Operators had to follow strict specifications relating to the placement of electrical components. -- 3 of 5 -- 360 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 July, 2002 In his submissions Mr Moorhead said that Mr Knight was employed to “take the next step” by taking data produced by a surveyor and putting it into a refined product that would meet the specification of the client. Mr Moorhead said the Surveying Award had a classification for such work, namely a Cartographic Drafter. Mr Moorhead said Mr Knight was required to interpret and analyse the maps and plans he was given and convert that material to a new electronic mapping system. This data was entered through the CAD system and later converted into the GIS mapping system for the individual client. In his submissions Mr Pereira again repeated that the company was not in the surveying industry. He said it was strange that it was being alleged that the company operated in the surveying industry when it only had one or two people that had some cartographic or surveying background. He specifically rejected Mr Moorhead’s assertion that the company created plans and/or maps. In response to a question from the Commission about the nature of the company’s contract with Sydney Electricity Mr Pereira said Abakos had been supplied with a digital copy of a cadastral map and had merely used its CAD system to symbolically represent Sydney Electricity’s assets over that cadastral map. Abakos did not create any of the information per se. It merely copied information through its computer systems and technology, using a set of rules provided by the client, to the final digital copy. Mr Pereira said that GIS data did not need to be shown as a map. It could be shown without any mapping reference. Conclusion In order to determine whether Abakos is engaged in the industry of “surveying” as defined in clause 3.1 of the Surveying Award it is necessary to consider the definition in clause 3.1.1 (above) in light of the evidence. I set out the definition in a different format to make that process simpler and more logical. To me, the definition reads in the following way: Surveying: • means the act or process of determining the form, contour, position, area, height, depth or any other similar particulars of the earth’s surface, whether on land or water, or of any natural or artificial features on, below or above any part of that surface; • means the act or process of planning the position or the length and direction of the bounding lines of any part of the earth’s surface, whether on land or water, or of any natural or artificial features on, below or above any part of that surface; • includes the making or obtaining of a plan or plans thereof; • includes the acquisition, management, interpretation and analysis of data; • includes the portrayal and dissemination of derived information in written, graphical, numerical, digital, photographic or magnetic media; • includes associated consulting, design, drafting, administration, management and technical support activities. It is clear from the evidence that Abakos is not engaged in any of the activities mentioned in the first dot point above. Abakos is not engaged in the act or process of determining the form, contour, position, area, height, depth or any other similar particulars of the earth’s surface. Similarly Abakos is not engaged in the act or process of determining the form, contour, position, area, height, depth or any other similar particulars of any natural or artificial features on, below or above any part of the earth’s surface. Leaving aside those aspects of Abakos’ business which clearly do not relate to surveying (such as architectural drawings and inputting data associated with laser cutting equipment in the fabric industry), it is clear from the evidence that Abakos relies upon maps and other information provided to it by its clients. This material already records the form, position, height, depth etc. of any natural or artificial features which the company has been asked to convert to a vectored or digital format. The evidence also does not support any argument that Abakos is engaged in the activities set out in the second dot point. Abakos is not engaged in the act or process of planning the position or the length and direction of the bounding lines of any part of the earth’s surface. Nor is it engaged in the act or process of planning the position or the length and direction of any natural or artificial features on, below or above any part of the earth’s surface. It merely copies such information into its computers using a CAD system. The third dot point seems to relate to the activities undertaken at either the first or second dot points (or both). On the basis that Abakos is not involved in the activities set out in the first or second dot point it logically follows that it is not involved in the making or obtaining of a plan which records the outcome or results such activity or activities. The fourth, fifth and sixth dot points clearly relate to activities which are conducted in association with the primary aspects of surveying i.e. those tasks/activities mentioned in the first and second dot points, respectively. In my view the reference to “data” in the fourth dot point is a direct reference to the result or outcome after the activities mentioned in the first and second dot points have been undertaken. If the point was not so restricted it could be read to include, for example, activities such as those performed by a research assistant within a stockbroking firm as well as a whole range of other activities which might be performed by people who are required to acquire, manage, interpret and analyse data. The dot point cannot be read to have such a wide possible effect. The reference to “portrayal and dissemination” in the fifth dot point is, again, clearly a reference to the result of the activities undertaken in the first two dot points. Abakos is not involved in the portrayal and dissemination of such information per se. It receives information already prepared by its clients. Its task is not to portray and disseminate that derived information. Its task is to copy what is given to it through its CAD system to produce vectorised or digital data. The use to which that data is put is up to the client. Similarly, the reference to “derived information” in the same dot point must be a reference to information derived from the activities mentioned in the first and second dot points. Again, if not so restricted, the term could have reference to a whole range of persons in a wide variety of industries which have nothing to do with surveying. Finally, the reference to “associated … activities” in the sixth dot point is designed to be a catch all provision to draw in other professional and quasi- professional activities which are closely related to the activities mentioned in the first and second dot points. The meaning of the words must be taken from the context in which they appear. They cannot have independent application and meaning. Accordingly, I determine that Mr Michael Knight was not employed under the Surveying (Private Practice) Award – State during his period of employment with Abakos Digital Images Pty Ltd. Given such finding it is accepted by the applicant Union that Mr Knight’s employment was covered by the Draftpersons, Production Planners and Engineering Assistants’ Award – State and its predecessor Award and there was no underpayment of wages. As such, Matter No. W29 of 2001 is dismissed. -- 4 of 5 -- 19 July, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 361 The Commission determines and orders accordingly. A.L. BLOOMFIELD, Commissioner. Appearances: Mr E. Moorhead, on behalf of the Automotive, Metals, Engineering, Printing and Kindred Industries Union of Employees, Queensland and Mr Michael Knight. Mr G. Periera with Mr P. Kipsgaard, on behalf of Abakos Digital Images Pty Ltd. Released: 11 July 2002 -- 5 of 5 --