Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Brisbane City Council [2002] QIRC 74 (2002) 170 QGIG 82

82 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 May, 2002 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application to make, amend or repeal award Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland AND Brisbane City Council (No. B630 of 2002) ENGINEERING AWARD – STATE COMMISSIONER BLADES 15 May 2002 Application for amendment – Brisbane City Council City Fleet – New position created – Level of recompense agreed – Whether wages or salary – Whether work value changes – Discretion of Commission to amend Award – Employer’s prerogative – Whether exercised in harsh unjust or unfair manner – No detriment to employee – No interference with Union membership – No obstacle to career progression – Application refused. DECISION This is an application by the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees (AMEPKU) for an amendment to the Engineering Award – State (Engineering Award) under the provisions of s. 125 of the Industrial Relations Act 1999. The application is opposed by the Brisbane City Council and leave was given to the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees (ASU) under the provisions of s. 329(b)(v) of the Act to be heard. That Union also opposes the application. The application seeks to amend the Engineering Award by inserting in “Schedule 3 (Brisbane City Council)”, a new clause providing for the pay and classification of Team Coordinator (City Fleet). These new positions have been introduced to replace other classifications known as Team Leaders which are currently paid under the Engineering Award. What Brisbane City Council has done is to classify those new positions as Band 5 under the Brisbane City Council – Salaried Staff Award 1992 (Salaried Staff Award) which is an award of the Australian Industrial Relations Commission. Both the AMEPKU and the ASU are bound by that Award. The new positions were advertised internally and quarantined to City Fleet employees. They have been filled with personnel appointed as from 17 April 2002. The matter was first raised with the Commission as a dispute on 28 February 2002 and although an early hearing was arranged, Council did not see fit to hold off the appointment procedure. Three of those appointed were promoted from the ranks of Tradespersons and one from the Salaried staff area. Opposition by the Brisbane City Council is raised to the amendment on the basis that the relief, if granted, would duplicate the current coverage of the Salaried Staff Award. It was alleged that the Team Coordinator position is a position widely used in that Award. It is alleged that there are clearly defined demarcation points between current Brisbane City Council wages Awards and its salaried Award that have been established over many years of award coverage. The ASU also alleges that the application seeks to duplicate provisions which are already available to the applicant and its members under the Salaried Staff Award. The applicant is a respondent to that Award and is not exempted from its provisions covering classifications concerned by this application. Further allegations by the ASU are that:– • there may be possible demarcation disputes between the applicant and the ASU; • the application appears to be structured so as to retain exclusive membership of those persons performing the work, rather than a genuine amendment to the Award to address an inequity in wage rates; • the grant of the application may serve as a precedent in other areas of the Brisbane City Council; • in a previous application to the Commission, the applicant gave undertakings to the then Municipal Officers Association (now the ASU) that they would not seek to use the extension of their callings into areas which were covered by existing awards or agreements; and • the applicant and the ASU have national agreements and memorandums of understanding relating to their respective industrial coverage, eligibility rules and lists of callings. Granting of the application would lead to those agreements being placed in jeopardy. The case was put by the applicant as a work value case under the provisions of Principles 7 and 11 of the Commission’s Wage Fixing Principles (2001) 167 QGIG 353. Mr Dettmer readily conceded that the purpose of the application was to put a fence around appointments to these positions as Schedule 3 of the Engineering Award deals solely with Brisbane City Council and the ASU does not have coverage under that Award. Mr Dettmer does not contest as inappropriate the rate of pay equal to Band 5 which has been applied by the employer to these new positions. The evidence reveals that there has been a restructure at City Fleet. Teams of employees evolved in the early 1990s and Team Leaders were introduced. Leading Hands became Team Leaders and as such, they were paid an allowance over and above their normal rate. The level of pay of a Team Leader was about the C7, C8 or C9 level of the Engineering Award with an allowance of $72.00 per week. Mr Forman was a witness for the applicant and part of his evidence was:– “The Team Leader position was supposed to rotate every twelve months and people were elected into the position. Candidates were anybody who was classified but wanted to get a go.”. Mr Forman also believed that the new position of Team Coordinator was more or less the same role as Team Leader but without the rotation. In cross- examination, he said that the Team Leader was really the same as the old Leading Hand position. He believed that by maintaining the position as a wages position, people who had been Team Leaders in the past, i.e. people from the shop floor, would continue to be able to apply for and act in those jobs. He also thought that a wage earner was better served by his Union (AMEPKU). Mr Allen gave evidence for the applicant. He had performed the duties of both Leading Hand and Team Leader at City Fleet. Part of his evidence follows:– “The Team Coordinators are simply an outgrowth of the Team Leader positions which were in turn a more sophisticated and detailed Leading Hand position. The possibility that occurs out of the transfer of these Team Coordinator positions becoming salaried is that the current career path for wages employees would potentially be stymied, because other white-collar personnel from outside City Fleet would be able to fill these positions. I believe that this is a general view amongst wages staff at City Fleet.”. -- 1 of 4 -- 24 May, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 83 He also gave evidence that he believed that an allowance or rate of pay, as proposed by his Union, the AMWU (i.e. the AMEPKU), would be an appropriate way of remunerating the proposed Team Coordinators. He believed that the jobs needed to be quarantined. He also gave evidence that the people on the floor needed to know that the Coordinator was one of them. He was asked what was the advantage of new classifications under the Engineering Award and he replied “to maintain for our people a career path and that they would be covered by not only our Award and the protection it gives us but also by our Union”. He was not aware of anyone classified beyond C7 in City Fleet. The evidence indicates that the role of Team Leader, as a supervisor, would be quite ineffectual because, in my view, elected positions on a rotational basis would provide for little accountability or responsibility. There was a review of City Fleet by Price Waterhouse Coopers and the report, not surprisingly, said:– “The rotating Team leader role is not providing the benefits that were expected and inhibits effective maintenance management.”. The recommendation that was then made was:– “Re-introduce the formal position for team leader roles (supervisors) and eliminate rotation – it needs to be seen as a position of responsibility and authority rather than roster.”. The classification and salary rate for the position of Team Coordinator were the subject of discussion between City Fleet and the AMEPKU. The position was evaluated using the agreed Council Work Role evaluation system. It was the Union Delegate who suggested the Band 5 rate (although of course, not the Salaried Staff Award). Mr Boland the City Fleet Divisional Manager said that the new position was the first level of middle management, taking on significant responsibility and accountability, operating at the first level of strategic management. He said the Team Leader role operated at the first level of supervision but that the Band 5 Coordinator positions would be able to develop that role into the first level of middle management. The Team Leader role is the very important front line supervisory role and the Coordinator position is the very important first level middle management role. The change in structure from C7 with the $72 allowance to Band 5 does not provide a great deal of monetary increase. Progression beyond that C7 level is not usual. However, there is a progression in Band 5 which allows for further increases up to in excess of $100 per week. It is unlikely that an employer would provide such increases without extracting its pound of flesh and in this case, it seems to me, it comes in the form of increased responsibility and accountability and training. It appears to me from the evidence that the allegation that this role of Team Coordinator involves nothing more than that of the former Team Leader without the rotation must be rejected. Clearly the nature of the position has changed and I readily accept that the intention was to make the new position a middle management position. I am not satisfied that it could be said that these new Coordinator positions were the former leading hand positions. By classifying the new Team Coordinator positions as salaried positions at Band 5 under the Salaried Staff Award, the employees, whether Tradespersons or Team Coordinators, will suffer no disadvantages. New appointees have been from City Fleet Tradespersons who have obtained the appropriate qualifications. While the “Essential Key Selection Criteria” for the “Maintenance Team Coordinator” position does not specifically refer to a requirement for a Trade qualification, the first essential (Exhibit 4) reads:– “Substantial knowledge of and experience in fleet support activities including smash repair, fabrication and vehicle build or automotive/heavy equipment maintenance (as appropriate to the team function) in a value for money environment.”. It was submitted by Mr Thompson and I accept that an inference can be drawn that a trade qualification would therefore be necessary. The fact that the new Coordinators are to be employed under the Salaried Staff Award also provides for no disadvantage. The applicant Union has equal rights under that Award as does the ASU. Team Coordinators are not required to resign from the AMEPKU upon appointment but may remain as members. Selection to these new positions has been from the Trades at City Fleet. There is an appeal process whereby allegations of unjust treatment or exclusion in the selection process can be adjudicated. There is a “Merit Based Selection and Recruitment Guide – Getting The Best Possible Person For The Job” which is freely available and which provides information on appropriate rights and remedies. There is nothing to prevent Tradespersons who obtain the appropriate qualifications from aspiring to these positions. So much so that the evidence reveals that of seventeen current technical officer salaried positions in City Fleet, all were filled from the ranks of City Fleet workers. Mr Boland said that the new Coordinator positions were almost identical to the Band 5 Coordinator positions that existed in City Fleet in 1995. There are a large number of similar positions across Council doing very similar work which are also at Band 5 and it was these positions which were used as a precedent. It was then decided that, combined with the Delegate’s view that the level be Band 5 and with the precedents right across Council, the new positions be salaried at the Band 5 level. That seems to me to have been a reasonable basis upon which to classify the new positions. This is not a case where an employer is dictating membership of a particular union. Nor is it a case where an employer has decreed that everyone should go to salary rather than wages. It is a case where an employer has decided that a managerial role with increased accountability and responsibility is required. That decision was based upon a recommendation after an independent investigation. The classification as a salaried position was based upon a comparison with other similar positions and is compatible with equivalent Team Coordinator positions in other work areas of Brisbane City Council which are covered under the Salaried Staff Award. A question arises whether this is a case falling within the provisions of clause 7 or 11 of the Work Value Principles. There is no contest as to the rate of pay to be applied to these new positions. There was no change in work content over a period of time, there was no classification review within an award. The only issues appear to be union coverage and rights to progression. In amending an award, the Commission is given a discretion – s. 125 of the Act. The Wage Fixing Principles are “fundamentally guidelines ... intended to guide a Commissioner sitting alone on the question whether that Commissioner may deal with the matter or should seek the consent of the President to refer the matter to a Full Bench” – (1999) 162 QGIG 359 at 360. Principle 2 of the 2001 Principles provides that an award may be amended without the application requiring consideration by a Full Bench – “(e) To adjust wages pursuant to work value changes in accordance with Principle 7.”. The matter only needs referral to a Full Bench if the Commission is inclined to make or amend an award for reasons which fall outside the Wage Fixing Principles. -- 2 of 4 -- 84 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 May, 2002 Principle 7 Work Value Changes provides:– “(a) Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. ... These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this principle.”. In my view, what has occurred has not been a work value change. The employer has instituted a new position requiring different qualifications for appointment. The former Team Leaders did not perform this work, the added requirements for responsibility and accountability to name the main ones were absent from the position of Team leader. It was not as though the Team Leader’s job became more onerous. An entirely new position was created. The changes did not constitute a significant net addition to the position of Team Leader. Principle 11 provides that any extension to an existing award must be consistent with the Commission’s obligations under Chapter 5 (Awards) of the Act and that in the extension of an existing award to new work, the rates applicable to such work will be assessed by reference to the value of the work already covered by the Award. Neither the Wage Fixing Principles nor s. 125 of the Act interfere with the discretion of the Commission to make or amend an Award. There can be no doubt that the Commission has a discretion – see Application for Award for Medical Officers Employed by the Queensland Radium Institute (1957) 42 QGIG 188 and Williams J in Queensland Independent Education Union of Employees v Study Group Australia (1999) 161 QGIG 270. Section 124 provides that the Commission may make or amend an award to provide, among other things, fair and just employment conditions. There is no acceptable evidence that the Team Coordinators have other than fair and just employment conditions under the Salaried Staff Award. There is no acceptable evidence that the objects of the Act, in particular s. 3(a), (f), (g), (i), (j), (l) and (m) have been compromised. An employer has a basic right to organise its business in the way in which it considers the most efficient manner (see Nutter C in Australian Sugar Milling Assn Qld, Union of Employers v Australian Workers’ Union of Employees, Queensland (1996) 152 QGIG 1861). Bloomfield C in Queensland Police Union of Employees v Queensland Police Service (1998) 158 QGIG 427, a case where a Management Development Program was made a pre- requisite for promotion, said at 431:– “Finally, I need to record that it would be an unusual occurrence for this Commission to interfere with a decision which is clearly a matter of management prerogative. Commission interference has traditionally been limited to circumstances where there has been some harshness, unjustness or the like experienced by employees as a result of management’s decision(s) or when management has made unfair or unreasonable demands on employees.”. The employer has a prerogative to create these new positions and if an independent recommended objective is to achieve added responsibility and authority and that can be achieved by making the position salaried and that is more suited to business needs, I think that decision also falls within that prerogative. There is some additional support for that view in Salaried Officers’ Award 1971, Department of Government Transport, N.S.W. Print M6303 where Hancock SDP said that the employer’s belief that one outcome was more economic than another is a factor to be weighed in the appraisal of the alternative claims. In these cases, it seems that the Commission should only interfere if there is something unjust or unreasonable. Mr Dettmer relied upon a decision of Mr Commissioner Cross of the Australian Commission in Applications by the State Transport Authority (STA), Victoria, the Australian Transport Officers Federation (ATOF) and the Australian Railways Union (ARU) Print H5282 (21 October 1988) where Cross C refrained from further hearing applications by STA and ATOF seeking the inclusion of a classification and structure for “freight officer” in the Railways Salaried Officers Award, 1960. The case does not really assist because it was decided on its own facts and circumstances which differ. An order was made to refrain from further hearing the application which would have resulted in former wages employees becoming salaried officers. The basis of the order was that:– . Traditionally the work of wages employees at freight centres had been covered by the ARU under a Wages Award. In this case, there has been no interference with that. These new positions are primarily supervisory middle management roles which, within the Brisbane City Council, are usually salaried positions. . The ATOF/STA application would allow ATOF coverage of certain work in the freight area it could not cover previously. The opposite is the case here. There are already other salaried positions with City Fleet and coverage of wages employees by ASU is not a result of the Council decision. . Should the ATOF/STA application be granted, scope for industrial disputation including demarcation arises. This is the fear expressed by ASU if the application be granted. . Advancement and promotional opportunities for wages employees could be jeopardised. That does not appear to be the situation here. This application has, as its basis, the retention of exclusive memberships of the AMEPKU and members’ rights to progression. There is no evidence that Tradespersons who obtain the appropriate qualifications will be disadvantaged and there are mechanisms in place to protect those who allege there has been inappropriate procedures or decisions made in appointments. The payment of salary to the new positions under the Salaried Staff Award does not force any appointee to resign from the AMEPKU. Both Unions have joint coverage under that Award. There is no dispute as to the monetary amount that should be paid to the new positions. In my view, it is inappropriate for the Commission to interfere. There is simply no reason to say that employment under the Salaried Staff Award is inappropriate, on the contrary, because of the requirement for significant responsibility and accountability, it is probably more appropriate to employ under the Salaried Staff Award in view of the failure of the previous arrangement which existed for Team leaders under the Engineering Award. While this application falls outside the Work Value Principles, there is no requirement to seek to refer the application to a Full Bench if the application is to be refused. -- 3 of 4 -- 24 May, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 85 The application is refused. B.J. BLADES, Commissioner. Appearances:– Mr A. Dettmer, for the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland. Released: 15 May 2002 Mr J. Thompson, with him Mr M. Dick, for the Brisbane City Council. Mr I. Buckley, for the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees. -- 4 of 4 --