Industrial Law - breach of award - claim by applicant that employes or respondent Shire entitled under Local Government Officers (Western Australia) Award 1975 to payment as a Foreman (A Grade) when paid as Foreman (B Grade) - examination of definition of both positions in Award - consideration of distinction between direct supervision by a foreman and incidental supervision by a manager - principles relevant to f1x1inq a penaity under Conciliation and Arbitration Act Words and Fhrases - "Foreman" Concitiation and Arbitration Act 1904 s.119(1A) Local Government Ufficers'' (Western Australia) Award 1975 sub-cls.5(12)-(16), para. 6(/)(T) MUNICIPAL OFFICERS ASSOCIATION OF AUSTRALIA v. THE SHIRE OF No. WE 25 or 12385 TOOHEY J. PERCH iy JUNE 1925 uy Pet lie lal Hed vio AUSTRALIA , WESTERN saUSTPALILA ! No. WA £5 ot s1y84 DISTRICT REGISTRY ! INDUSTRIAL DIVISION } BETWEEN: MUNICIPAL OFFICERS ASSOCIATION OF AUSTRALIA Applicant and THE SHIRE OF WANNEROO Respondent MINUTE OF ORDER JUDGE MAKING ORDER Toohey J. DATE OF ORDER 19 June 1985 WHERE, MADE Perth THE COURT ORDERS THAT: i. No penalty be imposed on the respondent. 2. The respondent pay to Victor Griffith Roberts the amount or $1,477.48. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules lf THE FEDEFsGL couet vP AUSTRALIA WESTEPE AUSTRALIA DISTRICT RESISTR.« INDUSTFEIAL OCIVISION BETWEEN: MUNICIFAL OFFICERS ASSOCIATION oF AUSTRALIA Applicant and THE SHIRE OF WANNEROG Respondent CORAM: TOOHEY J. 19 JUNE 1985 REASONS FOR JUDGMENT In this application the Municipal Officers Association ot Australia, an organisation within the meaning of the Conciliation and Arbitration Act 1904, seeks the imposition of a penalty on the respondent, the Shire of Wanneroo, for breach of the Local Government Officers' (Western Australia) Award 1975. The alleqed breach is a failure to pay Victor Griffith Roberts the rate of wages to which he was entitled under para.6(7)(f) ot the Award as a Foreman '(A Grade) between 23 February 1982 and 10 April 1985. The Association also seeks an order that the Shire pav to Mr. Roberts the amount of any underpayment. It was agreed between the parties that if there had been an underpayment, the amount due to Mr. Roberts was $1,477.48. dre a The root Tat Loh atk 7 zo hoo .eg7 ic. LE A TRIPS nagyow ime ani at arises in this wav. vlause 5 or the Award contains a number or detinitions including those or "Head Foreman". 'Foreman (8 Grade)" and "Foreman 'A Grade". The Shire emploved Mr. Roberts asa Foreman B Grade but the Association claims that he was entitled to be paid as a Foreman a Grade, the latter carrying a higher salarv. sub-clause 5:16) or the Award defines Foreman (A Grade? to mean "a Foreman other than a Foreman \B Grade) or a Head Foreman". Thus a person emploved as a foreman who does not answer the description of Head Foreman or Foreman (B Grade) must be a Foreman (A Grade) and be paid as such. Sub-clause 5(15) of the Award defines Foreman (B Grade) to mean: "(ar an officer who supervises the work of a section of the outside workers of a Local Authority under the direction of the Head Foreman, or (b+ a Foreman of a Local Authority witha revenue of less than $200,000 per annum". It was common qround that the Shire of Wanneroo has a revenue in excess of $200,000 a vear so that para. (b) of the definition may be disregarded. That leaves, for relevant purposes, as a Foreman (B Grade). an officer who supervises the work ot a section of the outside workers of a local authority under the direction of the Head Foreman. Sub-clause 5(14) defines "Head Foreman" to mean "a foreman placed in charge of not less than two other foremen". The issue between the parties has arisen because during the relevant period there was no-one who was ammo Tt Ry. Ar Lele SRL Lal. TO mga rk ema. unless GEM rs tv A Head fcreman. para. «2: of sunp-cl.5:15) ot the Award could not apply and, in the circumstances or this case, there could not be a Foreman (B Grade:. The Association did not contend that merely because there was no otficer classified by the Shire as Head Foreman, there could not be a Head Foreman tor the purposes of sub-cl.5(15). But the Association did arque that the Head Foreman must be properlv described as such: in particular it contended that on the facts ot the case Mr. Koberts could not be a Foreman (B Grade? because he was not an officer supervising the work of a section or outside workers under the direction of the Head Foreman. 'To understand this argument, some reference to the facts 1s necessary. Mr. Roberts was engaged for the Parks and Gardens Department of the Shire and his position was that of Foreman (B Grade) (Reticulation). He was responsible for maintenance and repair work on irrigation installations connected with the Shire's parks and aqardens. Within the Parks and Gardens department there were three Foremen (B Grade), of whom he was one, and a Foreman (A Grade). Immediately above the foremen was a Works Supervisor, John Barry Allen, above him a Deputy Superintendent, and above him a superintendent. In July 1983 Mr. Allen left the Shire. The person then holding the position of Foreman 'A Grade) was appointed temporary Works Supervisor. However in September 1983 there was a rearrangement of the staff structure of the Parks and Gardens department. The position of Works Supervisor was - iad ie wire. 2) SE IP ohh oo Tho Lerutys =superintcndent yno in turn was resronzible to the curerintendent. Daivd Fraser sears was appointed surerintendent and Kimberly Grant Trotter was appointed Leputy Superintendent. The Award does not contemplate a position of Works supervisor by that name. sub-clause 5(1Z) defines a "Works Overseer" to mean "the chief officer who is responsible to a superior officer for the supervision of all outside qeneral construction and maintenance work". Although Mr. Allen was paid according to the classitication appropriate for a Works Overseer, 1t seems that this title was desiqned more for work of an enaqineering nature. Sub-clause 5(13) contains a definition of "Supervisor of Parks and Recreational Facilities" in terms reasonably appropriate to the duties of Works Supervisor; but ut 1s umnecessary to reach a conclusion as to whether Mr. Allen and his temporary successor were each Supervisor of Parks and Recreational Facilities. The question rather is whether in each case those persons and Mr. Trotter, the Deputy Superintendent, answered the description of Head Foreman. The Association accepted that Mr. Roberts was an officer who supervised the work of a section of the outside workers of the Shire but 1t said that he did not do so under the direction of a Head Foreman, hence that he should have been paid as a Foreman (A Grade). The Award does not define toreman save that sub-cl.5(16) which detines Foreman iA Grade), a definition to which reference has already been made. contains this sentence: = - List Lark MDB mate re Chl. Tuer lL lauce anu -uo-clause «15: ot this clause shall also inciLude the term Curator where such term is used to describe a roreman emploved in parks, qardens and recreation arounds". The dictionary derinition ot "toreman" is not helpful. some assistance may be aqained from comments made by Watson J. in the Industrial Commission or New South Wales in the Foreman and supervisors Reference UCase, which comments he repeated in an application by the Association ot Foremen and Supervisors for an Award tor Senior Positions in the Brewing Industry - No. 207 of 1980. Watson J. said: "ft 1s a mistaken view if it is thought that an award can be made within the scope of the committee s constitution or, for that matter, the constitution rule of the association which 1S also relevant, for superintendents, supervisors, foremen or others as such. The words 'who exercise supervisory powers and duties in respect of other employees engaged in manufacturing processes' are restrictive in that respect. Clearly, a superintendent of a plant or section of a plant or a foreman who directly supervises leading hands and process and other workers engaged in the relevant manutacturing process can be embraced. However. a superintendent, for example, or other like classification whose primary function is management and who may only andirectly or incidentally supervise such employees, 15 mot embraced. To take the 1llustrations further, a senior foreman or a foreman, both concerned directly with supervision would fall within the scope of the Committee's constitution even though the senior foreman may represent a second level ot supervision. However, a manager or supervisor would not be aincluded simply because incidental to his main function, direct supervisors may be responsible to him or be intact supervised by him, or merely because he may have the authority to give instructions to employees directly and may worth To Lam Rl fo. Tt Taree to mist ase SuURGEVLLOrS.'. What emerges rrom this passage, I think, 1s the notion er direct supervision by a roreman and the further notion that someone who 15 2 manager or supervisor 15 not a foreman simply because. in the ccurse or his duties. he may supervise others. ([f these concepts are transposed to the position of Head Foreman, 1t follows that such a person 1s engaged in the supervision of Foremen (A Grade) and '(B Grade) and that this is his primary function. Some force 1s added to this conclusion by the language of sub-cl.5(15) of the Award which speaks of an officer supervising the work of a section of the outside workers under the direction of the Head Foreman 'emphasis added). There is no doubt that Mr. Roberts was responsible to Mr. Allen and later to Mr. 'Trotter but 1t does not tollow that he supervised the work of his section under their direction. The evidence indicates, particularly an the case of Mr. Trotter, that he did not. Two Job specifications were tendered relating to Mr. Roberts' position. The first was in force at the time of his engagement and the second came into operation about November 1983. Both specirications use the expression "as directed" in relation to varlous duties and it 1s apparent that in the case ot the first specification, this means directed bv the Works Supervisor and, in the case of the second specification, that it means directed by the Uerputv Superintendent. But ait does not follow that Mr. Roberts was supervising the work of his section under the b rn = ¢ : i th i W i K I" EH [ r t i] t if L r tL tl ; 'Ty - i a a fa o sub-ci.5:15; or the Award tor. in my view. the sub-clause contemplates a relatironshir between the Head Foreman and the other roremen roughly comparable to that between the roremen and those working in their fections. The iob specifications ror the Works Supervisor and Deputy superintendent show a wide range of responsibilities and duties including responsibilities and duties or an administrative nature which make it inappropriate to consider either as the Head Foreman. Indeed Mr. Allen and Mr. Trotter each agreed that he would not describe his job as that of a toreman or Head Foreman. In my view the Award contemplates a position of Head Foreman under whose direction the Foremen (A Grade) and (B Grade) supervise their particular sections or groups. Neither the position ot Works Supervisor nor that of Deputy Superintendent may fairly be equated with that position. It follows then that Mr. Roberts did not answer the description of Foreman 1B Grade) and was therefore required to be paid as a Foreman (A Grade). Counsel for the Association said that although the breach complained of occurred between February 1982 and April 1985, the Association accepted that there was but a single breach. That concession was fairly made, having regard to sub-s.119(1A) otf the Conciliation and Arbitration Act. This is not a case in which there was a flagrant breach of an award or a conscious attempt to pay an employee less than his entitlement. There was a qenuine difterence between the Association and the shire as to the meaning of the Award and I[ accept the statement by mths ELD Dy TLE Lede Dota tilt et bt tae "atace . - 22 --F ee ee a See ed we LE fn tne circumstances a penalty 15 inappropriate. Crostand v. W.F. Rolte and sons Pty. Ltd. tunreported decision Industrial Court, delivered 9 December 1976). I certify that this and the seven preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Toohey f (oles ssociate L Dated: 19 June 1985 ot Australian ee peters eee ee eee lyre seeroor 8 Cee en tren