IN THE FEDERAL COURT OF AUSTRALIA) ) QUEENSLAND DISTRICT REGISTRY ) Q. No.1 of 1980 ) ) INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act 1904, s.123 BETWEEN: GERDA VOIGTSBERGER Applicant AND: THE COUNCIL OF THE SHIRE OF PINE RIVERS Respondent ORDER JUDGE MAKING ORDER: EVATT J. DATE OF ORDER: 15 December 1980 WHERE MADE: BRISBANE THE COURT ORDERS THAT: The respondent, The Council of the Shire of Pine Rivers, pay to the applicant, Gerda Voigtsberger, the sum of $8739.56. CATCHWORDS Industrial Law - "clerical officer" -"clerical duties" - "wholly or mainly" - The Municipal Officers' (Queensland) Consolidated Award 1968 and The Municipal Officers' (Queensland) Consolidated Award 1975 - Conciliation and Arbitration Act s.123. GERDA VOIGTSBERGER -v- THE COUNCIL OF THE SHIRE OF PINE RIVERS (Q. No.1 of 1980) CORAM: EVATT J. 15 December 1980 Brisbane IN_THE FEDERAL COURT _OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY ) Q. No.1 of 1980 ) INDUSTRIAL DIVISION ) IN THE MATTER of the Conciliation and Arbitration Act 1904, s.123 BETWEEN: GERDA VOIGTSBERGER Applicant AND: THE COUNCIL OF THE SHIRE OF PINE RIVERS Respondent 15 December 1980 EVATT J. REASONS FOR JUDGMENT By application dated 7 August 1980 brought pursuant to 8.123 of the Conciliation and Arbitration Act 1904 (the Act) Gerda Voigtsberger (the applicant) claims an amount of $8,739.56 being arrears of salary due to her from the Council of the Shire of Pine Rivers (the respondent), her employer for the six years (the relevant period) immediately prior to the date of the said application. The respondent is a body incorporated in Queensland pursuant to the provisions of s.6(2) of the Local Government Act 1936 as amended, capable of being sued in its corporate name. The applicant claims that during the relevant period she was entitled to the benefits of two Awards; first, from 7 August 1974 to 14 May 1975, the Municipal Officers' (Queensland) Consolidated Award 1968 as amended (the 1968 Award) and secondly, from 15 May 1975 to 7 August 1980, the Municipal Officers' (Queensland) Consolidated Award 1975 as amended (the 1975 Award). Such Awards, 1t is claimed, provided that she was entitled to be paid from 7 August 1974 to 30 June 1975 (the day before the date when equal pay under the 1975 Award commenced) as a female officer pursuant to Cl.11 of the Awards and from 1 July 1975 to 8 August 1980 as a ~-/2.. clerical officer pursuant to Cl.10(e) of the 1975 Award. The respondent denied first,that the applicant was a member of the Municipal Officers' Association of Australia an organization registered under the Act (the organization) and the organization bound by such Awards and secondly, that she was a female officer or a clerical officer within the meaning of the said Awards. The respondent admitted that at all material times the applicant was its employee within the meaning of s.123 of the Act and that it was a party bound by the said Awards. Further, it admitted that had the applicant been paid the amounts prescribed under the Awards in respect of her employment by 1t for the relevant period she would have received the sum of $8,739.56 in excess of what she actually did receive as wages. The applicant gave evidence which 1s accepted that she was a member of the organization during the relevant period. No questions were asked of her in this regard in cross~examination. Accordingly, the real issue for determination 1s whether her duties during the relevant period were such for which a salary had been fixed by the Awards so as to bind the respondent pursuant to Cl.4 thereof. From 7 August 1974 to 1 July 1975 when equal pay provisions in the Award became effective, Cl.10 provided for rates of salary for male clerical officers whilst Cl.11 made -/3.. provision for the minimum salary to be paid to female officers. At relevant times up until 21 November 1974 "officer" was defined in C1.49 as follows: "officer" - where the term officer is used in the award it shall mean any employee whose rate of salary is governed by this Award. On and after 21 November 1974 such definition (c1.48) reads: Where the term "officer" is used in this award it shall mean an employee whose rate of salary and/or conditions are governed by this Award. Clause 11 up until 1 July 1975 was the only clause governing rates of salary under the Award for females other than those carrying out duties of a professional nature such as draftswomen, tracers and librarians. Paragraph (a) thereof dealt with juniorfemale officers, para. (b) dealt with adult female officers whilst para. (c) and (d) respectively made provisions for additional payments for female officers who were operators of partiqular accounting machines and for senior typists and/or female clerks in charge of a specified number of typists. In addition, Cl.11 (b) made provision for Salaries of female officers appointed to particular grades. Other than the reference to "female clerks" in charge of a specified number of typists in Cl.11(d), Cl.11 made no reference to "clerks", or "clerical duties" and the wording in no way of the clause/suggested that its provisions were referable only to female officers carrying out clerical duties. Consequently from August 1974 until 1 July 1975, it 1s .-/4.- -4- clear, in my opinion, that being a female employee of the respondent and a member of the organization, the applicant who was then over the age of 23 years was entitled to the salary at the rate provided for by Cl1.11(b) of the Awards as varied from time to time. With the introduction of equal pay effective from the beginning of the first pay period which commenced on or after 1 July 1975 C1.10 and 11 of the Award were deleted and a new Cl.10 inserted. (Var1ation made 1 October 1975. Thereafter no Cl.11 appeared in the 1975 Award until 29 September 1976 when a new Cl1.11 dealing with computer staff was inserted. That Cl.11 was and is irrelevant to the present application.) The new Cl1.10 was headed "Clerical and Administrative Officers", Paragraphs (a) and (b) of C1.10 then read: "(a) A clerical officer shall mean and include an officer employed by a Local Authority wholly or mainly upon clerical duties other than one for whom specific provision has been made elsewhere in this Award. For the purpose of this provision, duties performed in the keeping of stock records and/or of a supervisory nature in a store conducted by a respondent shall be deemed to be clerical duties. (b) For the purposes of this clause,'Year of Adult Service' shall mean service as an officer with one or more respondents to this Award." Clause 10(c) set out salary payable to Junior clerical and administrative officers whilst 10(d) made provision for additional payments for a junior officer who matriculated in any faculty of the University of Queensland. Paragraph 10(f) and (g) made provision for rates of salary for adult stenographers and accounting machine operators on the one hand and adult typists on the other for the first five years of adult service, whilst cl.10(h)(1) and (3) made provision for the salary payable to y --/5.. adult clerical and administrative officers who were graded officers. Paragraph 10(e) provided for the minimum annual salary payable to adult clerical officers for the first seven years of adult service. A new Cl1.10(k) was added to the Award on 19 August 1976 effective as from 1 July 1975. Such clause defined a typist, a stenographer and anacounting machine operator. Further, on 29 October 1976 the definition of "clerical officer" in Cl.10 was amended by adding to the definition set out above the following words: "or one whose duties determined that she shall be classified as a typist, a stenographer or an accounting machine operator in accordance with the definitions in sub-cl.(k) of this clause". At that time additional irrelevant words were added to the last paragraph of that definition with reference to duties performed in a store and also to sub-cl.10(b). No claim was made on behalf of the applicant that she was at any time within the relevant period a typist, a stenographer or an accounting machine operator or that she had been appointed to any grade as referred to 1n Cl.10(h). Nor was it suggested that during the period 1 July 1975 to 7 August 1980 any other clause in the 1975 Award made provision for an appropriate salary classification for the --/6.. applicant. Consequently her claim for this period 1s made under Cl.10(e) and to succeed she must show that during this period she was an adult clerical officer within the meaning of that expression in para.(e) of C1.10. During this period a new Cl1.4A was added to the Award effective as on and from 23 June 1976. The relevant part of this clause reads: 4A(a) Where in the employment of any respondent there is no appropriate salary classification in the award for an officer presently employed or proposed to be employed by such respondent, The Municipal Officers' Association of Australia and the Local Government Association of Queensland shall be advised by the respondent of the duties of the position, and a conference between representatives of the Municipal Officers' Association and the Local Government Association shall be convened before any appointment is made. The conference shall consider and determine the appropriate salary and classification for the position concerned. If the parties are unable to agree, the matter may be referred to the Australian Conciliation and Arbitration Commission for determination. By letter dated 26 October 1978 the secretary of the Queensland Branch of the organization wrote to the respondent concerning various matters of complaint arising out of an inspection at the respondent's premises held by an organizer of the organization. Included in such matters was a complaint that the applicant was being paid at a rate not in accordance with the 1975 Award and that the respondent had not given any notice to the organization pursuant to Cl.4A of the Award in regard to her duties. The letter then set out a list of the various duties that it was claimed were being performed by the applicant namely, photocopying, compilation of Council Reports, keeping records of useage of --/7.. photocopying machine, maintaining this machine in clean working order, ordering of photocopying stationery, offset printing, maintaining the offset printing machine in clean working order and associated duties, delivery of inter-departmental paper work, collection of mail from post office, general deliveries to and from city, preparing morning and afternoon teas for Councillors when required. Further, it was claimed that such duties were those of a "clerical officer" and as there was no provision in the Award for reducing a clerical officer's salary, the organization claimed that the applicant "must be paid 100% of the automatic adult clerical scale and that full payment of the Award salary must be made retrospective to a (stated date)". On 5 December 1978 the Shire Clerk of the respondent advised the Branch secretary of the organization that the complaint concerning the salary paid to the applicant had been referred to the Council's Industrial Committee. The Reports of the Committee were tendered (Ex. B). The report of its meeting held on 10 May 1979, after setting out the list of the various duties referred to in the Branch secretary's letter of 26 October 1978, states that it was "doubtful whether the said duties could be described as clerical but the list of duties was reasonably accurate". Included in such report is the following: "Mrs Voitsberger commenced duties with this Council on 17th January, 1974 at which time she was appointed as a "Messenger'Girl Friday" and was paid as a Messenger/ Cleaner under the Miscellaneous Workers' Award. In June, 1974 it was ascertazned that the classification of Messenger/Cleaner had been deleted from that particular Award and Council then had an option of paying her under either the "Municipal Officers" Award or the "Clerks and Switchboard Attendants" Award. --/8.. -8 - In July, 1974 it was resolved as follows:- "That the rate of pay now paid to Mrs G. Voitsberger is $58.19 per week and that as from the first pay period in July, 1974 Mrs G. Voitsberger be employed as "Messenger/Girl Friday" on a rate of pay equal to 80% of the Municipal Officers' Association's rate of pay for Third year Adult Service Female Officer (Clause 11b). Other conditions or Municipal Officers' Association's Award to apply". This rate of pay increased by automatic progression to 80% of 4th year service and 80% of 5th year service in 1975 and 1976 respectively. Subsequently, in view of her period of service to this Council, Mrs Voitsberger's rate of pay was increased to 83% of Adult Clerical Officer 5th year of Service, such increase being effective from July, 1977." Later in that report the following appears: "The main question would appear to be whether Mrs Voitsberger should be employed under the Municipal Officers' Association Award or some other Award, and consequently whether Clause 4A of the Municipal Officers' Association's Award is applicable. As Council in July, 1974 did place her under a Municipal Officers' Association Award rate with conditions of employment under the MOA Award, 1t would appear that Clause 4A of that Award would be applicable. The Committee may consider whether it is necessary for an application to be made to the Local Government Association and the Municipal Officers' Association for determination of a salary and classification applicable to the position held by Mrs Voitsberger." The matter was then stood over to the next meeting of the Committee to be held on 23 May 1979 when the Committee recommended: "Municiapl Officer's Association be advised:- (1) (2) (3) The Municipal officer's Association be advised Mrs Voitsberger is paid 83% of the Adult Clerical Officer rate of pay. She does not carry out the duties of a Clerical Officer as defined in the Award. Council cannot agree with the Municipal Officers' Association to pay Mrs Voitsberger as an Adult Clerical Officer. " ~/9.. The Committee's recommendation was adopted by the respondent Council at its meeting held on 4 June 1979 and the Branch secretary of the organization was advised of the Council's resolution, which followed verbatim the Committee's recommendation, by the Shire Clerk in a letter dated 6 June 1979. Although a reference was made in the minutes set out above to a possible application being made by the respondent in accordance with Cl.4A no evidence was before the Court of the organization or the Local Government Association of Queensland having been advised by the respondent that there waS no appropriate salary classification in the Award for the applicant during the period 23 June 1976 to 7 August 1980. As the matter could not be resolved between the organization and the respondent the present application was brought. As stated earlier the real issue in the application 1s whether the duties carried out by the applicant especially those after 1 July 1975 were clerical duties within the meaning of Cl.10(e) of the 1975 Award. Accordingly the Court has to consider the evidence in relation to the applicant's duties after 1 July 1975 in order to determine whether such duties were wholly or mainly clerical duties within the meaning of that phrase in Cl.10(e). The phrase "wholly or mainly" as used in Cl.10(a) is not defined. However, in the definition of "typist" in C1.10(k)(1) which was inserted in the Award in August 1976, /10 -10- the phrase is used in relation to certain duties. The definition then reads: "for the purpose of this definition 'wholly or mainly' means that the typing duties shall exceed 50% of the officer's working time". It was submitted that as a matter of construction the same meaning should be given to the phrase in Cl.10(a). However, in the circumstances of this case, I find it unnecessary to so decide as I accept the evidence that the duties of photocopying, compiling of Council Reports, keeping of records of the use of photocopying machines, ordering of photocopy stationery, collection and delivery of files and paper-work between the departments of the Council were the main duties of the applicant during the period commencing 1 July 1975 to August 1980. Tendered in evidence (Ex. T) was a "log" book kept by the applicant in which she detailed the times occupied in Carrying out her various duties from January 1979 through to August 1980. She gave oral evidence which is accepted that such times were in fact spent carrying out the respective duties as shown in the log book and, further, that such times were similar to those spent on such various duties during the relevant period before January 1979 and in particular after 1 July 1975. It is clear, in my view, that the percentage of time spent on preparation of morning and/or afternoon teas for Councillors and for general deliveries to and from Brisbane was but a relatively small percentage of her total weekly hours of work during this period. In this ./il. -ll- regard I prefer the applicant's evidence to that of Mr May, the Deputy Shire Clerk of the respondent Council, wherein he expressed his view as to the break-down, as a percentage, of the various duties performed by the applicant. A Mr D.J.M Blackmur was called in the applicant's case. Mr Blackmur is a B.Ec(Hons) and a Master of Literary Studies. Between 1966 until 1973 he held various posts in the Faculty of Economics at the University of Queensland and was for some time during this period a Planning Economist for the Shell Company of Australia. Since 1973 to date he has been a Lecturer in Economics and Industrial Relations, Department of Management, Queensland Institute of Technology, a tertiary institution. As part of his expertise he has conducted research into the technological changes in the white collar fields of employment and the impact of such changes on the Australian workforce. Included in such research work was research in relation to the work that 1s performed by clerical- staff in contemporary office situations. Mr Blackmur was present in Court at the time when the applicant gave her evidence. Whilst giving his evidence he had before him the table of the eleven duties which were referred to in the letter from the secretary of the Queensland Branch of the respondent dated 26 October 1978 and the minutes of the Council's Industrial Committee referred to earlier herein. He, having referred to the various functions performed within the modern office (including the growth of office machines such as reproduction machines and the like) expressed an --/12.. -12- opinion that there has been a growing specialisation in clerical functions being the result of the technological change of which reproduction is a very significant and important part. He was then asked to express a view as to the eleven different duties performed by the applicant. He dealt with each seriatim and after giving his reasons expressed the opinion that all the duties other than the last two duties namely, general deliveries to and from the City and preparation of morning and afternoon teas for Councillors when required, were clerical duties in the modern sense. The Court was referred to several decisions wherein various Courts have considered the meaning of the words "clerk", "clerical officers", "clerical duties" and "in any clerical capacity". (See In re Crown Employees (Clerical) Conciliation Committee, (1939) 38 A.R. 549, In re Crown Employees (Clerical) Award (No.2), (1950) 49 A.R. 119, In re Accountants and Secretaries Professional Officers' Association of New South Wales, (1955) 54 A.R. 505, In re Federated Clerks Union of Australia, New South Wales Branch, and Australian Workers' Union, (1971) 71 A.R. 419, Summons to show cause by New South Wales Industrial Commission on own initiative - Questions relating to performance of work by employees of John Fairfax and Sons Limited, No.114 of 1977 (Cahill J., judgment 3 August 1977, No.l not yet reported) and Re Keogh and Federated Clerks Union, Federal Court of Australia, Sweeney J., Q. No.7 of 1979, 19 October 1979, 1979 A.I.L.R. 438). In addition the meaning of such words as set out in the Shorter Oxford English, Collins and Webster Dictionaries were also referred to. --/13.. - 13 - In 1971,1n the matter of the Federated Clerks Union of Australia, New South Wales Branch -v- Australian Workers' Union (1971 A.R. 419) the New South Wales Industrial Commission had to determine whether a certain purchasing officer was engaged in a "clerical capacity". Sheldon J. in his judgment in reference to that phrase said at p.421 "This phrase, in my view, must be read against the background of the way industry has developed and is now conducted. Clerical work in industry has long since moved from the Dickensian era of the high stool and the quill pen. The voice and the mind are now part of clerical stock-in-trade. So is the acceptance of responsibility and the exercise of discretion. The conception is fluid and progressive and recourse to a dictionary gives only partial help. It is impossible, and in any event it would be undesirable, to attempt to devise a code as to what in the setting of industry to-day can fairly be regarded as clerical work. But too fine a toothcomb should not be used in solving this question in particular cases." Later in his judgment his Honour said : "But the salient point is that for years clerical work has been regarded for industrial purposes as including more than mere recording and covers work of different kinds which no doubt leads to or results from recording but in fact is part of the general office administration system. That is why I deprecate dividing office functions too strictly by attempting to quantify the recording done by different members of the team and using this as the test." Again 1n a recent decision of the Court in an Application by Linehan under s.144 of the Conciliation and Arbitration Act re Keogh and the Federated Clerks Union (Q. No.7 of 1979 judgment 19 October 1979, not yet reported) Sweeney J. stated: .-/14.. -14- "I propose to deal firstly with the issue of eligibility. The relevant rule of the union provides coverage for persons 'engaged in any clerical capacity'. These are wide words but clearly not of indefinite width. They have been considered in a number of cases to which reference was made but I do not consider that this is an appropriate case in which to attempt any definition. The issue to which I direct my attention is whether at the time of the application Mr Keogh was engaged in a clerical capacity. A difficulty arises in view of, on the one hand, great changes which have taken place in office administration and records and in view, on the other hand, of the growing tendency to elevate the status of particular forms of employment by the use of new terms. So one finds that builders labourers become construction workers and what was once a clerical division of the Public Service becomes a clerical and administrative division and there is a growing and wide use of the term 'officers' which often seems unrelated to charges in employment." Further, in the decision in Co-operative Bulk Handling Ltd. -v- Australian Workers Union (W.A. Branch) - Industrial Union of Workers) and the Waterside Workers' Federation of Australia (W.A. No.2 and 3 of 1980, judgment 19 November 1980, not yet reported) a Full Court of the Federal Court of Australia stated: "In considering the conditions of eligibility for membership of an organization of employees it 1s necessary to bear in mind that the organization represents the industrial interests of a group or class of employees designated by reference to those conditions of eligibility. It is notorious that there are and have been great changes in all industries including the shipping and stevedoring industries, both in the degree of mechanisation and in the bulk handling and shipping of cargo and other goods. During the period of this change it is clear from the Statutes relating to the stevedoring and it seems to us most unlikely that the Federation in making changes 1n its conditions of eligibility intended that the words 'aterside worker" should thereafter always retain the meaning that they either then had or originally had. Rather we think it 1s a case where the words in Rule 6(a) are to be construed 1n accordance with their current denotation. Unless this 1s done serious restrictions would be placed on the effectiveness of organizations and the objects of the Act would 4G ~15- be adversely affected. Generally, see Lake Macquarie Shire Council -v~ Aberdare County Council (1970-1) 123 C.L.R. 327. I do not consider that the present application is an appropriate case to attempt a definition of the phrase "olerical officer" or "clerical duties" as used in Cl.10(a) of 1975 Award. I am satisfied on the evidence that the stated duties performed by the applicant other than general deliveries to and from Brisbane and the preparation of morning and/or afternoon teas for Councillors when required, were clerical duties within the meaning of Cl.10 of the 1975 Award. This being so she was entitled to be paid at the salary fixed by the Awards from time to time during the relevant period. It is admitted by the respondent that during such period the difference between what she was in fact paid and what she should have received in accordance with the provisions of the Awards amounted to $8739.56. Accordingly, I order that the respondent pay to the applicant the sum of $8739.56. Ieertify that this and the 4a.74 24 preceding veces pve a trun cary of the Roasons 7 rout Pereurvef his Honour m Mr Juct + £ volt Agucer late Tated: hfs 3/22