Brisbane City Council v Australian Municipal Administrative Clerical & Services Union [2003] FCA 106

FEDERAL COURT OF AUSTRALIA

Brisbane City Council v Australian Municipal Administrative Clerical & Services Union [2003] FCA 106

WORKPLACE RELATIONS - appeal from Industrial Magistrates Court - whether Council in breach of the Brisbane City Council Salaried Staff Award 1992 for not paying overtime to Council employee - whether Regional Support Co-Ordinator in the Transport Department is the immediate supervisor of bus operators WORDS AND PHRASES - "immediate supervision" Workplace Relations Act 1996 (Cth) ss 178 and 422 Macquarie Dictionary, 3rd ed BRISBANE CITY COUNCIL v AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL AND SERVICES UNION Q 158 of 2001

DRUMMOND J 21 FEBRUARY 2003 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 158 OF 2001

BETWEEN: BRISBANE CITY COUNCIL

APPLICANT

AND: AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL AND SERVICES UNION

RESPONDENT

JUDGE: DRUMMOND J

DATE OF ORDER: 21 FEBRUARY 2003

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 158 OF 2001

BETWEEN: BRISBANE CITY COUNCIL

APPLICANT

AND: AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL AND SERVICES UNION

RESPONDENT

JUDGE: DRUMMOND J

DATE: 21 FEBRUARY 2003

PLACE: BRISBANE

REASONS FOR JUDGMENT

1 This is an appeal under s 422 the Workplace Relations Act 1996 (Cth) against the decision of a magistrate made under s 178 the Workplace Relations Act imposing a penalty on the Council for breach of the Brisbane City Council Salaried Staff Award 1992 ("the 1992 Award"). Both parties invited me to deal with the case on the basis that in hearing this appeal the Court has all the powers to review findings of law and fact available on an appeal by way of re-hearing. None of the evidence put before the magistrate was controversial. 2 By its complaint, the Union alleged that a Mr Gaylard, who was employed by the Council as a Regional Support Co-Ordinator ("RSC") in the Transport Department, was, during the period referred to in the complaint that commenced on 22 September 2000, required by the Council to work a 38 hour week when, under the 1992 Award, he was only required to work a 36Ľ hour week; the complaint went on to allege that during the period in question, Gaylard was underpaid because he was not paid for the 1ľ hours he worked each week additional to the 1992 Award standard at overtime rates, but only at ordinary time rates. 3 This case was provoked by the major restructuring of the Council's Transport Department operations that appears to have commenced in the early 1990s and to have taken a number of years to fully implement. A new Award, the Brisbane Transport Regional Officers Award 1994 ("the 1994 Award"), came into force in January of that year in the course of this restructure. This 1994 Award created a new classification of "Regional Officer", which replaced a number of classifications, including Inspector, Depot Officer, Control and Area Officer that had previously applied to employees in the Council's Transport Department. Gaylard had started work in the Transport Department as a bus driver. By 1994, he was employed as an Area Officer. When the 1994 Award came into effect, it appears that he was reclassified as a "Regional Officer" under that new Award. In 1997, as part of the on-going restructure of the Transport Department, a new classification of "Regional Support Co-Ordinator" was established in the 1992 Award and staff members employed as "Regional Officers" under the 1994 Award were moved from that Award to the new classification of RSC in the 1992 Award. However, not all persons employed as "Regional Officers" under the 1994 Award were transferred immediately to this new classification of RSC in the 1992 Award. All such transfers were not completed until 22 September 2000. In the interim, there were extensive discussions between the Union and the Council dealing with a range of matters. These included the particular salary band which was to apply to persons who had been employed as "Regional Officers" under the 1994 Award after they were transferred to the new RSC classification in the 1992 Award; other matters comprised the terms and conditions that were to apply to the transferred officers under the 1992 Award, where different terms and conditions had applied to those officers when they were under the 1994 Award. One of these differences is that the ordinary hours of duty prescribed by cl 18(a) of the 1994 Award was 38 hours per week, whereas the ordinary hours of duty prescribed under cl 19(a) of the 1992 Award are 36Ľ hours per week. As Mr Tarnawski, the Union Industrial Officer, observes in his evidence, "overtime entitlements have changed accordingly". It appears that when persons like Gaylard were transferred to the 1992 Award as RSCs on 22 September 2000, no variation was made to cl 19(a) of the 1992 Award to change their ordinary hours of duty prescribed by cl 19(a) to the 38 hours per week that had been prescribed for them under the 1994 Award. In any event, the magistrate recorded in his reasons the agreement of the parties that, during the period in question, Gaylard was required by the Council to work a 38 hour week. 4 The parties fought the case both before the magistrate and in this Court on the assumption that the outcome of the prosecution and the appeal turns on the proper construction of cl 19 of the 1992 Award. The critical issue is whether bus drivers also employed by the Council in its Transport Department were "under [Gaylard's] immediate supervision" within the meaning of that expression in cl 19(b) of the Award. 5 The magistrate held that Gaylard was not the immediate supervisor of the bus drivers within the meaning of cl 19(b). He considered that officers would have other employees "under their immediate supervision" for the purposes of cl 19(b) only if they were required to work the same hours as those they were said to supervise. That was not the case with Gaylard. 6 An RSC can be called upon to perform three broad classes of duty. At all relevant times Gaylard has only performed depot duties as an RSC though he can be called on to perform the control room and the road duties of an RSC. The Transport Department operates a number of bus depots to which the necessary drivers are assigned. A number of RSCs are also assigned to each depot. Gaylard has performed depot duties only at the Virginia and Bowen Hills depots, the satellite Bracken Ridge depot being administered by the bus drivers themselves. 7 It is a feature of the duties of a RSC including one performing depot duties, as was Gaylard at all presently material times, that he or she does not work the same hours worked by any particular driver or particular team of drivers attached to the particular depot. Bus drivers, now called "bus operators", are employed by the Council under the Brisbane City Council - Bus Transport Employees' Award: their remuneration and hours of work are governed by that Award and by the Bus Operators' Conditions of Employment Agreement, a Local Area Agreement made under the Brisbane City Council Enterprise Bargaining Agreement. Bus drivers are required to work 80 hours per fortnight, and are entitled to be paid for those hours at ordinary time rates. Buses are on the road between 4.50 am and 1.30 am the following morning. They are driven by operators who come on duty at differing times during this period, each commonly working a broken shift of two four hour periods with a break in between. Gaylard, as a depot RSC at the Virginia and Bowen Hills depots, was required when on the early shift to commence work at 4.00 am. He would finish on those days at 12 noon and be replaced by another depot RSC who would work through to 8.00 pm. Although buses attached to that particular depot would run after 8.00 pm, the last returning to the depot at about 1.30 am, there was no RSC on duty at the depot after 8.00 pm. However, the central control room was under the supervision of an RSC during the whole of the time buses were running in Brisbane, though Gaylard has not as yet performed duties in the control room. One or more RSCs are also on duty throughout the whole of the time buses were running in Brisbane to perform road duties. 8 Clause 19 of the 1992 Award provides: