100319467

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES DONALD BRUCE JENSEN

CLAIMANT

 -v-

 CITY OF MELVILLE

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE THURSDAY, 14 AUGUST 2003

CLAIM NO M 295 OF 2002

CITATION NO. 2003 WAIRC 09664

_______________________________________________________________________________

Representation

Claimant MR DH Schapper (of Counsel) and with him Mr S Bibby (as agent)

Respondent Mr A Power (of Counsel)

_______________________________________________________________________________

Reasons for Decision

Claim

1         The Claimant Donald Bruce Jensen filed his claim on 18 October 2002.  He alleges that whilst he was employed as a Community Liaison Security Officer by the City of Melville between 14 January 2002 and 11 August 2002 his employer did not pay him in accordance with the Local Government Officers (Western Australia) Award (the Award) which governed his employment.  The Claimant says that in reality he was a Law Enforcement Officer as defined by the Award and should have been paid as such.  He therefore seeks to recover $11,593.13 being the amount he alleges he has been underpaid.  His claim is brought pursuant to section 179 of the Workplace Relations Act 1996.

Response

2         The Respondent denies that the Award applied to the employment of the Claimant and says that at all material times his employment was governed by a State Individual Workplace Agreement with respect to which it has complied.  It accordingly denies the claim.

Background

3         In 1997, as part of its strategic planning process, the Respondent sought to address community concern about safety and security.  It accordingly established a “Safer Cities Program” with the objective of enhancing safety and security within the City of Melville.  The establishment of the Community Liaison Security Service was pivotal to the Respondent’s strategy.  The service was to provide security patrols within the City of Melville.

4         Initially New Breed Security from about August 1998 until about August 1999 provided the security patrols.  The ending of the twelve-month contract coincided with that company going into liquidation.  At that time Mr Michael Duckett, who currently holds the position of “Manager of Neighbourhood Amenity” was invited by the Chief Executive Officer of the Respondent to lead an in-house team in putting together a bid to run the service with the Respondent’s own staff.  The Respondent was successful with its bid and accordingly commenced providing the service on 24 December 1999.  It continues to provide the service.  The provision of the service is funded by a levy (currently in the amount of $32.00), which is levied against the thirty nine thousand properties within the City of Melville (the city) including the Respondent’s own three hundred and twelve properties.  The levy is described on rates notices as a “Property Surveillance and Security Levy”.

Nature of Service

5         The service provided is in the nature of a vehicular patrol on a twenty-four hour basis each day of the year.  The patrol officers, who are designated Community Liaison Security Officers (officers) carry out patrols in twelve-hour shifts.  They work a combination of day shifts (6.00 am to 6.00 pm) and night shifts (6.00 pm to 6.00 am).  They patrol the streets and monitor both public and private properties.  The city is divided into various sectors for ease of patrol operations and up until July 2002 it was divided up into four sectors known as Alpha, Bravo, Charlie and Delta.  Thereafter it has been divided into three sectors.  Each officer has the responsibility of patrolling and monitoring a particular sector each shift.  For most of the material period, there were four officers on patrol together with their supervisor who patrolled across the sectors.  Thereafter it reduced to three plus the supervisor.

The Employment of the Claimant

6         The Claimant gained employment as a Community Liaison Security Officer by answering a newspaper advertisement placed by the Respondent in about November 2001.  On 28 December 2001 the Respondent’s Acting Chief Executive Officer wrote to the Claimant confirming advice previously orally given that he had been successful in his job application.  The Claimant was advised that he had been appointed to the temporary position of Community Liaison Security Officer “working 168 hours per four week period, until 30 June 2002”.  The offer of employment was subject to the Claimant attaining a Security Licence.  The Claimant was informed that his employment was to commence upon completion of a two-week security course and that he would be subject to a probationary period of three months.  He was also advised that his employment was to be governed by an Individual Workplace Agreement.

7         The Claimant commenced his employment with the Respondent on 21 January 2002.  On that day he executed the Workplace Agreement (Agreement), which was subsequently registered by the Commissioner of Workplace Agreements on 12 February 2002.

8         Relevantly, the position of Community Liaison Security Officer is described at Schedule B of the Agreement (exhibit 3).  The “overall objective” for the position is outlined thereat as follows:

“To provide liaison and security patrol service to the residents within the City of Melville.  To attend incident call outs as required and provide general security services with the aim of reducing preventable crime, anti-social behaviour and alleviate the public’s fear of crime within the boundaries of the City of Melville.”

9         The particular outcomes, which need to be met by officers, are also set out in schedule B of the Agreement.  It is useful to set out those required outcomes:

1.    Outcome - Community Liaison

To maintain regular contact with manager, tenants and valid users of Council facilities to develop and promote the liaison/security service.

To maintain regular contact with relevant officers of City to ensure they are informed of community concerns and issues.

To maintain regular contact with other security agencies on an as needed basis, including but not limited to the WA Police Service, Community Policing and Neighbourhood Watch representatives.

To liaise with City of Melville residents and community groups to develop and promote awareness of the Community Liaison Security Service and the services it provides.

2.    Outcome - Security Service

To undertake security patrols of Council buildings and reserves.

To attend to call-outs where security of Council buildings has been breached and Rangers are unavailable to attend to arrange for temporary repairs to secure the buildings.

To undertake a general security street patrol service throughout the City of Melville.

To identify and make secure any hazardous situation that may be discovered whilst on patrol.

To identify, photograph and report graffiti and other property damage.

To attend resident call outs or incidents as required when dispatched either by the duty controller, team leader or other relevant person of authority.

To provide ‘back-up’ support to other officers as required.

3.    Outcome - Customer Service

Respond to written, verbal and telephone enquiries from residents, government agencies and internal service areas.

To act and mediate in a professional and diligent manner.

To liaise with the public to provide advice and to exercise a surveillance programme based on empathy, education and public relations.

To assist in the provision of a 24 hour service to the public.

To retain confidentiality at all times.

4.    Outcome - Housekeeping

To perform specific delegated functions including assistance with courier duties.

To report the need for maintenance within the Municipality.

To maintain log books and incident reports.

To record information and to compile short reports as required.

5.    Outcome - Public Safety

To undertake minor repairs/erect barricades to Council roads, footpaths and street verges where public safety is at risk and to report the matter to the relevant service area.

To assist and liaise with any staff and other public authorities in the event of civil emergencies.

To dispose of used syringes found in public places with appropriate equipment provided as required.

6.    Outcome - Occupational Health and Safety

Ensures that cars and work areas are maintained in a safe, clean and tidy condition, so that risk of accidents occurring is reduced to a minimum.

Exercise a duty of care to understand the need to work in a safe and efficient manner, having regard to own safety and that of other workers.

10     The discreet outcomes were to be achieved by adherence to the Respondent’s “Standing Operating Procedures for Community Liaison Security Officers” (see exhibit 14).  The operating procedures are contained in a manual given to all officers, including the Claimant.  That manual governs their duties, responsibilities, conduct and practice and with some degree of particularity, instructs them with respect to those matters.

The Claimant’s Duties

11     Although the facts in this matter are largely uncontested, there is one matter of significant dispute that being the extent to which the Claimant was required to watch, protect or inspect all property belonging to the local authority.  In short, the Claimant says that his main function was to watch, protect and inspect the Respondent’s property, whereas the Respondent contends that the protection of the Respondent’s property was very much incidental to the Claimant’s primary duty of providing security for the community.

12     The Claimant said (at page 26 of the transcript):

“My function would be to patrol, to check and inspect Melville property.”

13     In that regard he gave evidence concerning the actual duties performed across all four sectors.  He identified particular properties either owned by the Respondent or for which the Respondent has responsibility as being properties he visited for the purpose of inspection.  The Claimant identified a number of differing types of facilities that fall within the class of properties that he was required to inspect.  They included and not exhaustively the Civic Centre, libraries, parks and reserves, playgrounds, toilet blocks, recreation centres, aquatic centres, gymnasiums, museums and nursing homes.  The Claimant identified particular facilities, which are either owned by the Respondent or for which the Respondent has responsibility across all four sectors, which he says he was required to inspect over the relevant period.  I do not intend to specifically refer to any particular property except to say that some of the properties mentioned are specifically referred to in the manual.

14     The Claimant said that it was his function to check council buildings or those for which the Council had responsibility for signs of damage, particularly graffiti, smashed windows or other forms of vandalism.  He was also required to ensure that the buildings were secure.  For that purpose he was required to conduct foot patrols to check both the internal and external aspects of such buildings.  He also had responsibility for checking for damage on jetties and play equipment.  He intervened in circumstances when he observed obvious breaches of council laws or council administered laws.  Particular examples cited included challenging people playing golf where golf was prohibited in recreational areas and those misusing jetties by riding or skating on the same.

15     The Claimant testified that he was required to report on all damage to council property noted during patrols.  Such a report was to be in the form of a maintenance report to be actioned by the Respondent.  Further, he was required to note and report upon any material incident that required his involvement occurring during his shift.

16     The Claimant maintained that his primary function was as is outlined in the manual that of protecting council assets or alternatively assets for which the Respondent has responsibility.  Notwithstanding that, he readily concedes that his function went beyond just the protection of the Respondent’s assets.

17     Mr Duckett on the other hand contests the contention that the protection of council’s assets was the dominant feature of the Claimant’s job.  He said (at page 86 of the transcript) that he considered the Claimant’s dominant function to be that of protecting the community.  The Claimant’s role was:

“To protect our community, the people who live and visit and work in our community, and properties of everybody within the community.  That’s certainly their priority.  That is -- that is our vision for the City of Melville, to make it safer and more secure.”

18     To support his contention, he said that an analysis of the running sheets for a number of officers over a week selected at random revealed that only 14.5% of the officers’ time was spent visiting council properties.  He maintained that the figure derived accurately reflected the amount of time officers spent dealing with Council property.  However when cross-examined on the issue, Mr Duckett conceded that he had never been on patrol with the officers and was unable to say first hand what they actually did.  It was also put to Mr Duckett that officers were and are mandatorily required to conduct a full physical check of each council property within their area at least once every shift.  Initially Mr Duckett denied that was the case, saying he did not think it would be possible.  When he was pressed on the accuracy of his answer he conceded that such a requirement is contained within the manual.  When pressed further he said that although stated within the manual, officers were not required to inspect each council property in their area once every shift.  He said that the manual was just a guide to their operating procedures.  In that regard Mr Duckett was taken to specific duties mentioned at pages 38 and 39 of the manual.  Examples of those provisions are:

“Officers must conduct at least three checks of parks and reserves in their patrol zone. …”;  and

“Where parks/reserves contain Council building (such as toilet blocks, for example) officers must conduct a full physical check of the building.”

19     Notwithstanding the very clear language expressed in the relevant pages of the manual, which is obviously mandatory in nature, Mr Duckett was unwilling to concede the same, maintaining throughout his evidence that the manual is no more than a guide.  In my view his stance on that issue is a matter of concern.  It seems that he attempted to defend the indefensible and in doing so did himself a disservice.  The responses given by him on the issue reflects poorly upon his credit.

20     In determining the pivotal factual issue in contest I have had no difficulty in preferring the evidence of Mr Jensen to that of Mr Duckett.  I accept Mr Jensen’s evidence that his primary function was to maintain security of council assets as outlined in the manual.  I accept the work he carried out predominantly related to that.  Mr Jensen gave credible evidence about what he did whilst on duty.  Further the documentary evidence in the form of the manual directives supports his evidence.  On the other hand, Mr Duckett is unable to give a first hand account of the duties performed by officers.  The documentary evidence in the form of the manual is against him.  His conclusion, based on research, relating to the amount of time spent by officers visiting council properties is totally unconvincing.  That is so particularly given that the time sheets do not purport to represent a comprehensive chronology of events during each shift.

21     It appears to me that Mr Duckett has given his evidence in such a way as to best protect the Respondent’s position.

22     Having resolved that issue I move to determine Award coverage in the light of the facts.

The Award – Issues

23     The parties agree that the Local Government Officers’ (Western Australia) Award 1988 binds the Respondent.   However, the question remains whether the Award covers the employment of the Claimant.  It is common ground that if the Award applies then it overrides the registered State Workplace Agreement.

24     The Claimant contends that, given that he was employed by the City of Melville and that at the material times he was an employee of the Respondent, then without anything further the Award applies.  Also, and in any event, he says that he is a Law Enforcement Officer as defined in clause 3.7 of the Award, which provides:

“Law Enforcement Officer shall mean an employee employed to patrol, within the geographical confines of a Local Authority, for the purpose of watching, protecting or inspecting all property belonging to the Local Authority and/or to enforce one or more of the Authority’s By-Laws or any Acts of Parliament which that Authority is empowered to enforce.

25     As to the first ground, the Claimant argues as follows:

26     Clause 3.9 provides:

3.9    Officer or Employee shall mean a person appointed by a Local Authority to one of the classifications in this award, a person engaged by a Local Authority as a Trainee in accordance with clause 16 – Traineeships, and any person appointed by a Local Authority to a non-elective office necessary to the proper carrying out of the power and duties imposed upon the Local Authority by the Local Government Act, 1995, its successor and/or any other Act.

27     Accordingly clause 3.9 applies to three classes of persons being:

1.    A person appointed by the Local Authority to one of the classifications in the Award.

2.    A person who is engaged as a trainee.

3. Any person appointed to a non-elective office.

28     The Claimant says that he fits within the first class when clause 3.9 is read with clause 5 of the Award.  Clause 5 of the Award provides:

5.     PARTIES BOUND

This award shall be binding on the Local Authorities named in the First Schedule in respect of all their employees whether members of the Australian Municipal, Administrative, Clerical and Services Union or The Association of Professional Engineers and Scientists, Australia, or not, whose salaries and conditions of employment are determined by this award, and on the Australian Municipal, Administrative, Clerical and Services Union or The Association of Professional Engineers and Scientists, Australia and their members.

29     The Claimant therefore argues that because the Award binds the Respondent with respect to all its employees, it must also necessarily cover him because he is a person employed in a position described and defined in clause 15.8 of the Award.

30     Clause 15.8 does not contain a traditional list of classifications as one might find in an old style award, but rather contains a list of characteristics, requirements, responsibilities, organisational relationships and authority for each of the nine levels ascending from level one to level nine.  It is apparent that the first level is the basic level.  There are incremental changes from level to level characterised by increased requirements, responsibilities and authority.

31     The Claimant says that he is a person who is employed in a position which is described by one of the nine levels and that his job as Community Liaison Security Officer falls within one of them.  He argues that it matters not which one.  Notwithstanding that the Claimant maintains that his position is that of a level 3.  I am not however called upon to determine his level.

32     The second limb of the Claimant’s argument is that he is a Law Enforcement Officer as defined by the Award.  He says that it is obvious that he is employed to patrol within the City of Melville for the purpose of watching, protecting or inspecting all property belonging to the City.  The fact that from time to time he does other things does not mean he is not a Law Enforcement Officer.  He argues, that in any event, he plays a role in enforcing by-laws by challenging people contravening those laws.  He gave examples of his role in confronting people playing golf in restricted areas, stopping unauthorized activities on jetties and responding to nuisance type complaints.

33     The Respondent on the other hand submits that the definition of Law Enforcement Officer in clause 3.7 of the Award is unambiguous, clear and exhaustive.  It says that the Claimant was employed for more than the purpose of watching, protecting or inspecting all property belonging to the Respondent and consequently was not, at the relevant time, a Law Enforcement Officer as defined.  The Respondent argues that it does not matter if the Claimant spends say; just ten per cent of his time doing other things, the fact that he does other things takes him outside the definition contained in clause 3.7 because the definition is not an inclusive one.  It is singular in expression and should be construed that way.

34     The Respondent also contends that in any event the Claimant is not someone who enforces, or is capable of enforcing the City’s by-laws or any Acts, which the City is empowered to enforce.

35     Another limb of the Respondent’s argument is that there are other awards that apply to and regulate the employment of employees of the City of Melville.  In that context it is argued that the Award does not apply to the Claimant because he is not someone appointed by the Respondent to one of the classifications in the Award.  The Respondent says clause 3.9 provides an exhaustive definition because it says:

“(an) Officer or Employee shall mean a person appointed by a Local Authority to one of the classifications in this award, …”

36     The Respondent points out that clause 15.1 of the Award is mandatory.  It provides:

“Positions will be classified in accordance with the level definitions provided for in this award.”

37     It is clear that the provision imposes an obligation.

38     Clauses 15.2 to 15.7 inclusive of the Award dictate how the job classification or reclassification is to be achieved.  However, in this matter, because an appointment has not been made, the Award cannot apply.

Determination

39     The issues between the parties are to be determined upon the construction of the Award in the light of my findings on the sole factual issue in dispute.  The approach to be taken in construction has been the subject of judicial comment to which I have been referred.  It is appropriate that I recite those judicial pronouncements in order to give context to my determination in this matter.

40     To assist me in my considerations I have been referred by the Respondent to the decision in Norwest Beef Industries Limited and An v AMIEU (1984) 64 WAIG 2124 in which His Honour Brinsden J said at page 2127:

“…the meaning of a provision in an award is to be obtained by considering the terms of the award as a whole.  If the terms are clear and unambiguous it is not permissible to look to extrinsic material to qualify that meaning.”

41     At page 2133, His Honour Olney J said:

“If it be the case that the correct approach to the interpretation of an industrial award is to read the document itself and give to words used their ordinary commonsense English meaning … then the first task in every case will be to determine whether the words used are capable in their ordinary sense of having unambiguous meaning.  If that question is answered in the affirmative then the further consideration of the expressed or supposed intention of the award making tribunal does not fall to be considered.”

42     The Claimant has referred me to two decisions, one being the decision of His Honour Street J in Geo A Bond & Co Ltd (In Liquidation) v McKenzie (1929) 28 AR 498 in which he said:

“Now speaking generally, awards are to be interpreted as any other enactment is interpreted.  They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment.  But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament.

I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.”

43     The other decision is that of His Honour Kennedy J in Robe River Iron Associates v AMWSU (1987) 67 WAIG 1097 in which he said at page 1100:

“It is not in issue that, as Mr Stone for the respondent contended, in interpreting an award or industrial agreement the words used are to be given their “ordinary common sense English meaning” or their “ordinary and natural meaning”.  Allowance must be made for the fact that the award or industrial agreement may have been drafted by industrial rather than necessarily by skilled draftsmen, so that there should not be “too literal adherence” placed on the strict technical meaning of words, but that the matter should be viewed broadly to give the agreement a meaning consistent with the intention of the draftsman.  Subject to this, the rules to be applied in interpreting an industrial agreement are those applied in the interpretation of statutes, deeds or other documents.”

44     Both parties are agreed that the Award should be construed generously having regard to the skills of the draftsperson.  Indeed, in my view, that approach is the only way in which the proper construction of clause 15, as read with clause 5 and clause 3.9, can be achieved.

45     It is self-evident when one has regard for the documentary evidence that the Claimant was “appointed” to his position as Community Liaison Security Officer.  In exhibit 2, Mr Neil Bolton, on behalf of the Respondent, informed the Claimant:

“This letter will confirm the verbal advice given to you, that you have been appointed to …”

46     Exhibits 5 and 6 demonstrate that the Claimant was appointed as an “authorized officer” for the City of Melville.  His appointment it seems is made upon the same basis as that of a Ranger.  That is illustrated by exhibit 15, which certifies the appointment of William Spencer as an “authorized officer.”  The power to appoint “authorized persons” is found in Subdivision 1 (Miscellaneous Provisions About Enforcement) of Division 2 (Enforcement and Legal Proceedings) of Part 9 (Miscellaneous Provisions) of the Local Government Act 1995.  There is no provision in the Act for the appointment of an “authorized officer”.  It seems therefore given the nature of the duties of both the Claimant and Mr Spencer that the certificate issued to the Claimant in the form of the aforementioned exhibits was so issued pursuant to section 9.10 of that Act.  That provision provides:

9.10.    Appointment of authorized persons

(1)    The local government may, in writing, appoint persons or classes of persons to be authorized for the purposes of performing particular functions.

(2)    The local government is to issue to each person so authorized a certificate stating that the person is so authorized, and the person is to produce the certificate whenever required to do so by a person who has been or is about to be affected by any exercise of authority by the authorized person.

47     In Mr Jensen’s case his authorization is not expressed to be for a particular function or functions.  In Mr Spencer’s case his authorization is.  In each instance it appears that the appointment is made under the Local Government Act 1995 relating to enforcement.  Accordingly it appears that the Claimant may be authorized to perform those functions falling to him under the enforcement provisions of the Act.  If that were not so then his appointment under the Act would be meaningless.  Clearly his appointment must be given meaning and purpose.  In so doing it follows that he is able to carry out the powers conferred upon him by the Local Government Act 1995 but no other Act.  It follows that his appointment was made for the purpose of enforcement.

48     However, the question remains as to whether the Claimant is a Law Enforcement Officer within the meaning of clause 3.7 of the Award.  The fact that the Claimant is employed to patrol within the geographical confines of the City of Melville for the purpose of watching, protecting or inspecting property belonging to the City of Melville is incontrovertible.  Indeed, I have found that is his main function and that it dominates his time and efforts.  The fact that from time to time he does other things which do not fit comfortably within that description does not in my view lead to a conclusion that he is not a Law Enforcement Officer.  A strict approach in construction of that provision as is suggested by the Respondent could, in my view, lead to undesirable and almost farcical results.   For example if a Ranger were in the course of his employment do some minor and/or incidental task falling outside the duties referred to within the definition of Law Enforcement Officer in clause 3.7 of the Award, then the Award would cease to have applicability to him.  That approach would lead to an unworkable situation.  It cannot be what the draftsperson had intended.

49     In any event it is apparent that the very appointment of the Claimant pursuant to the Local Government Act 1995 is suggestive of the fact that his appointment was for the purpose of enforcement as defined by the second limb of the definition in clause 3.7 of the Award.  The evidence given by Mr Jensen relating to his enforcement roles supports that finding.  Part of his duty involves enforcing the City of Melville by-laws.

50     I find that the Claimant is a Law Enforcement Officer within the meaning of clause 3.7 of the Award.

51     For the sake of completeness I now move to resolve the remaining issue.  In that regard it seems to me that, even on a narrow construction, the Claimant is entitled to a determination that the Award applies to his employment.  That is so by the very fact of his appointment.  It is the case that he has been appointed to a position which is covered by one of the levels set out in clause 15.8.  Against that the Respondent says that because it has not classified him in accordance with the mandatory requirement of clause 15.1 then the Claimant cannot be the subject of one of the generic classifications found in clause 15.8.  In my view, such a narrow construction would result in the Award being an entirely optional document at the sole discretion of the Respondent.  Indeed, that approach is reflected in what Mr Duckett said under cross-examination at page 108 of the transcript.  I set out the relevant part:

“All right.  Now can I take it that the council, or the City, rather, could have – takes the view that it could have employed Mr Jensen under the Local Government Officers Award if it chose to do so? --- Yes, it could have.”

52     However, that is against the thrust of clause 5 which provides:

“This award shall be binding on the Local Authorities named in the First Schedule in respect of all their employees …”

53     It is not open for the Respondent to pick and choose which employees will be bound by the Award.

54     There is evidence from Theresa Mary Dooley, the Respondent’s Manager of Human Resources, that some of the Respondent’s employees are paid under other awards, for example, the Restaurant, Tearooms and Catering Workers Award No R 48 of 1978 (State), the Metal Trades (General) Award No 13 of 1965 (State), the Municipal Employees (Western Australia) Award 1999 (Federal), the Children’s Services (Private) Award No A 10 of 1990 (State) and the Child Care (Out of School Care – Playleaders) Award No A 13 of 1984 (State).

55     Those awards are not before me and I do not know their terms.  I cannot, therefore, determine any issue relating to the applicability of those awards to other employees employed by the Respondent.

Conclusion

56     The Award, construed within its four corners, results in the determination that the Award applies to the Claimant’s employment and, further, that he is a Law Enforcement Officer.

57     In accordance with the agreed suggested approach, I now propose to adjourn the matter so the parties can discuss and, if possible, agree quantum.

G Cicchini

Industrial Magistrate