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Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast[2021] QIRC 361

Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast[2021] QIRC 361

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast [2021] QIRC 361

PARTIES: 

Queensland Services, Industrial Union of Employees

(Applicant)

v

Council of the City of Gold Coast

(Respondent)

CASE NO:

D/2021/49

PROCEEDING:

Arbitration of industrial dispute

DELIVERED ON:

27 October 2021

HEARING DATE:

21 September 2021

MEMBER:

O'Connor VP

HEARD AT:

Brisbane

ORDER:

  1. The question for arbitration be answered in the affirmative – that those employed by the Respondent as Animal Management Officers are eligible for membership of the Queensland Services, Industrial Union of Employees.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL DISPUTES – where conciliation unsuccessful – where dispute referred to arbitration – where City of Gold Coast Certified Agreement 2019 provides for review of local area agreements – where one local area agreement concerns Animal Management Officers employed by respondent – whether union has coverage to represent the industrial interests of Animal Management Officers within the meaning of the eligibility rules – where respondent denies union has coverage within meaning of the eligibility rules – whether primary function of Animal Management Officers falls within a description of work within the eligibility rules – determined Animal Management Officers eligible for membership of the Queensland Services, Industrial Union of Employees.

LEGISLATION:

Animal Management (Cat & Dogs) Act 2008 (Qld)

Commonwealth Conciliation and Arbitration Act 1904, s 24

Industrial Relations Act 2016 (Qld), s 262, s 718

CASES:

Construction, Forestry, Mining and Energy Union v CSBP Pty Ltd (2012) 212 IR 206

DHL Supply Chain (Australia) Pty Ltd T/A DHL Supply Chain [2011] FWA 6863

Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2020] QIRC 188

Ipswich City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (No 2) [2014] QIRC 059

Joyce v Christoffersen (1990) FCR 261

Local Government Officers (Western Australia) Award (1981) 251 CAR 314

Memorandum of Agreement between The Municipal Officers Association of Australia and The Lord Mayor, Aldermen, Councillors, and Citizens of The City of Melbourne (1922) 16 CAR 1396

Municipal Officers' (Launceston) Award 1940 (1946) 56 CAR 387

Municipal Officers' (Melbourne City Council) Award of 1955 (1981) 260 CAR 108

Municipal Officers (Queensland) Consolidated Award 1983 (1986) 302 CAR 116

Municipal Officers' (South Australia) Award 1973 (1981) 253 CAR 3

Municipal Officers' (Victoria) Award 1947; Re The Fitzroy City Council (1948) 61 CAR 631

Municipal Officers' Association of Australia and the Corporation of the City of Adelaide & Ors (1981) 252 CAR 261

Municipal Officers Association of Australia and the Lord Mayor Aldermen Councillors and Citizens of the City of Melbourne & Ors (1936) 36 CAR 255

Municipal Officers Association of Australia and The Lord Mayor Aldermen Councillors and Citizens of The City of Melbourne & Ors; Re Melbourne City Council (1940) 42 CAR 334

Municipal Officers Association of Australia and the Mayor, Councillors and Citizens of the City of the Ballarat & Ors; Re Rockhampton City Council (1951) 71 CAR 580

R v Williams; Ex parte Australian Building Construction Employees' & Builders Labourers' Federation (1982) 153 CLR 402

Re Grimshaw; Ex parte Australian Telephone and Phonogram Officers' Association (1986) 60 ALJR 588

Re Union of Postal Clerks and Telegraphers: Ex Parte Australian Telephone and Phonogram Officers Association (1986) 66 ALR 227

Rescrete Industries Pty Ltd v Commissioner Jones of the Australian Industrial Relations Commission (1998) 86 IR 269

The Municipal Officers' Association of Australia v The City of Albury and others (1969) 127 CAR 250

APPEARANCES:

Mr N. Henderson for the Queensland Services, Industrial Union of Employees and with him Mr D Cutler, the Applicant.

Mr C. Jackson and with him Mr D. Stoddart for the Council of the City of Gold Coast, the Respondent.

Reasons for Decision

  1. [1]
    A notice of industrial dispute was filed in the Queensland Industrial Relations Commission (the Commission) by the Queensland Services, Industrial Union of Employees (QSU) on 21 May 2021 in relation to coverage within the meaning of their eligibility rules to represent the industrial interests of Animal Management Officers (AMOs) employed by the Council of the City of Gold Coast (the Council).
  1. [2]
    Conciliation conferences were held before the Commission on 2 and 9 June 2021 and as the dispute was unable to be resolved the matter was referred for arbitration.
  1. [3]
    Directions were issued for the parties to file an agreed question to be determined as well as submissions, witness statements and a statement of agreed facts by 9 September 2021.
  1. [4]
    On 16 June 2021 the QSU submitted the agreed question for arbitration as follows:

Are those employed by the Respondent as Animal Management Officers eligible for membership of the Queensland Services, Industrial Union of Employees?

Applicant's submissions

  1. [5]
    The QSU submit their eligibility rules are in the same terms as part of the QSU counterpart federal union, the Australian Municipal, Administrative and Clerical Services Union (AMACSU) which derived the eligibility rule in question from a predecessor union, The Municipal Officers' Association of Australia (the MOAA).  The MOAA was registered as an organisation under the Commonwealth Conciliation and Arbitration Act 1904 on 1 April 1921.
  1. [6]
    It was submitted that the QSU eligibility rules would fall into the original rule of the MOAA.  Mr Henderson referred to a Memorandum of Agreement made pursuant to s 24 of the Commonwealth Conciliation and Arbitration Act 1904-1920 between the MOAA and The Lord Mayor, Aldermen, Councillors, and Citizens of the City of Melbourne on the eighth day of April 1922.  This Memorandum of Agreement in the General Division included the terms 'Meat Inspector' at page 1402 continuing to page 1404 where there is a position of 'Dog Inspector'.[1]
  1. [7]
    The eligibility rules were altered to the current wording in 1928 to include, 'or in similar callings or avocations, or as assistants to employees so employed whether employed as aforesaid or not'.  These words had the effect of significantly broadening the reach of the eligibility rules. 
  1. [8]
    The Commission was also referred to the Municipal Officers' (Victoria) Award, 1969 made on 17 March 1969 by the Commonwealth Conciliation and Arbitration Commission which included at clause 32 – Other Positions – Inspectorial, a position of 'Other inspector' with the following definition:

'Other Inspectors' shall mean and include a full-time officer engaged in any of the following duties:  Ranger, collector of dog fees, inspector of nuisances, beach inspector, saleyards inspector, or a market inspector.[2]

  1. [9]
    In the decision of the Australian Conciliation and Arbitration Commission to vary the Local Government Officers (Western Australia) Award 1975 in relation to Rangers salaries and conditions, Coleman C wrote:

In so doing the application seeks to remove the classifications of ranger, parking inspector and litter inspector, and so combine these classifications in the one designation, that of ranger of various classes and grades.[3]

  1. [10]
    Mr Henderson submits that the decision is illustrative within the local government industry of the interchangeability of various titles. Further there are in local government a range of positions which 'involve looking into some sort of regulation to see if it has been applied properly'.[4]
  1. [11]
    On the QSU's submission the decisions provide a background on how the Commission historically has approached the construction of the MOAA rule.

What duties do Animal Management Officers perform?

  1. [12]
    The QSU submits that the duties of AMOs is to provide animal management service by administering and enforcing relevant state government legislation and council local laws.
  1. [13]
    Compliance activities include issuing penalty infringement notices, warning notices and enclosure notices as well as completion of search warrant applications and executions for dog registration.  Other duties include preparation of statements, court attendance and evidence for prosecution proceedings.
  1. [14]
    AMOs contribute to a team based work environment.  Duties include record and file management systems; staff briefings and office operations; identifying and handling domestic animals and livestock; transporting and impounding animals and related procedures; maintaining and driving Council vehicles; using and maintaining animal management equipment; liaising with other stakeholders; practicising officer safety and providing service and education to the public regarding animal management related issues.
  1. [15]
    It is contended by the QSU that any activity designed to administer, enforce or otherwise ensure compliance is an inspectorial function in the usual sense of the term and a common understanding in the local government industry.
  1. [16]
    The QSU submit that their list of callings to which the eligibility rules rely for coverage of the AMOs is 'Inspector', however in determining whether a particular occupation falls within the rules, the impact of the additional words 'similar callings or avocations' and 'or as assistants to employees so employed whether employed as aforesaid or not' must also be considered.
  1. [17]
    The QSU undertook a brief survey of a number of historical cases where occupations contained in awards and agreements made by the MOAA are similar to the position of AMOs.  These occupations included 'Dog Inspector'; 'Dog fees collector and ranger'; 'Nuisance Inspector', 'pound-keeper'; 'Collector of Dog registrations'; 'assistant herdsman'; 'Dog-control Officer'; and 'Dog Ranger'.[5]
  1. [18]
    In the submissions of the QSU these cases illustrate their capacity to enrol employees engaged in the type of work required of AMOs is well established and embraces the compliance/inspectorial nature of the work undertaken by AMOs.

Respondent's submissions

  1. [19]
    In July 2021 the Council commenced a review of the AMOs and Animal Management Officer Leading Hands Local Area Agreement (the LAA) provided in subclause 10.4.5 of the City of Gold Coast Certified Agreement 2019 (the Certified Agreement) that this LAA has coverage over the Council's AMOs.
  1. [20]
    The review was commenced in conjunction with The Australian Workers' Union of Employees, Queensland (AWU) as the Council believed the AWU was the industrial organisation with the relevant coverage.  The QSU disagreed and advised that it had standing to cover AMOs based on its eligibility rules.
  1. [21]
    The Council submitted that AMOs are charged primarily with the capture and impounding of rogue and recalcitrant animals as well as to patrol various beaches, foreshores, parks and open areas to promote public safety in relation to the keeping of animals.[6]

Eligibility

  1. [22]
    Section 718 of the Industrial Relations Act 2016 (the IR Act) relevantly provides:

718 Eligibility

A person is eligible to become a member of an organisation if the person -

  1. (a)
    by the nature of the person's occupation or employment, engages in a calling for which the organisation is registered; and
  2. (b)
    complies with the organisation's rules about membership.
  1. [23]
    The nature of an AMO's role and responsibilities at the Council must be considered to determine eligibility under the QSU's eligibility rules in conjunction with the list of callings.[7]
  1. [24]
    In R v Williams; Ex parte Australian Building Construction Employees' & Builders Labourers' Federation,[8] the majority of the High Court said:

The eligibility provisions in the rules of a registered organization of employees serve the function of defining the general area or areas of industry or industrial pursuit from which members can legitimately be drawn and with which the organization can legitimately be concerned (see Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [1957] HCA 19; (1957) 97 CLR 71, at p 87 ; Reg. v. Clarkson; Ex parte Victorian Employers Federation [1973] HCA 57; (1973) 131 CLR 100, at pp 111, 113 ; Co-operative Bulk Handling Ltd. v. Waterside Workers' Federation of Australia [1980] FCA 141; (1980) 49 FLR 355, at pp 357-358 ).  Since such eligibility provisions constitute a reference point for courts, commissions, employers, employees and other organizations in determining or ascertaining an organization's proper coverage and field of operation, they must be construed objectively (see Reg. v. Aird; Ex parte Australian Workers' Union (1973) 129 CLR, at p 659 ; Reg. v. Cohen; Ex parte Motor Accidents Insurance Board [1979] HCA 46; (1979) 141 CLR 577, at pp 580, 587 ).  In so construing them, however, it is permissible to pay regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used and to take account of evidence of that common understanding furnished by the previous use of the words in the relevant organization's rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries (see, e.g., R. v. Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, at p 613 ; Reg v. Aird; Ex parte Australian Workers' Union (1973) 129 CLR, at p 659 ).[9]

  1. [25]
    In Rescrete Industries Pty Ltd v Commissioner Jones of the Australian Industrial Relations Commission,[10] O'Connor and Moore JJ said:

. . . Indeed it is a settled principle of construction of eligibility rules of registered organizations that they should not be construed narrowly.  The proper approach was described by Mason, Brennan and Dawson JJ in Re Union of Postal Clerks and Telegraphists; Ex parte Australian Telephone and Phonogram Officers' Association (1986) 66 ALR 227, at 235:

'The general rule of construction is that eligibility provisions should be construed liberally rather than narrowly or technically (R v Cohen; Ex parte Motor Accident Insurance Board (1979) 27 ALR 263; 141 CLR 577 at 581, 587).'[11]

  1. [26]
    In determining whether an AMO falls within the eligibility rules of the QSU consideration must be had to the primary purpose of their role within the employ of the Council.

Primary purpose test

  1. [27]
    The appropriate test to determine whether AMOs are eligible for membership of the QSU is the application of the primary purpose test.  In applying this test it is necessary to consider the totality of the employee's role as well as the primary functions undertaken by the employee in the context of the employer's organisation of work.[12]
  1. [28]
    The Council rejects the QSU's assertion that AMOs fall within the meaning of 'Inspector' at Clause 5, Eligibility for Membership, Part 1 of the QSU Rules. It is submitted by the Council that the word 'Inspector' should be read in accordance with its natural and ordinary meaning.  The calling has a broad meaning and ordinarily conveys a connotation of someone who investigates or scrutinises a person, place or thing and could not reasonably extend to the occupation of the AMO.
  1. [29]
    The Council contends that the primary purpose of the AMO is not to investigate or undertake investigation like activities but rather to patrol specific Council precincts to ensure members of the public have their animals under effective control, educate the public on their responsibilities when owning an animal such as a dog, as well as the catching, collecting and impounding of recalcitrant and rogue animals throughout its jurisdiction, and the issuance of specific infringements.  Furthermore, the AMO utilises various forms of tools and equipment when trapping or impounding an animal.
  1. [30]
    On the evidence before the Commission, an AMO is a key and fundamental role of the Council delivering a vital service to the community as required by the State and Local Government.[13]

Eligibility rules proviso

  1. [31]
    The Council rejects the proposition that AMOs operate as assistants to more senior or supervisory positions including the Animal Management Inspectors (AMIs) and fall within the proviso of the eligibility rules which provides:

. . . or in similar calling or avocations, or as assistants to employees so employed whether employed as aforesaid or not together with such person as have been appointed officers of the Association and admitted as members thereof.[14]

  1. [32]
    In the submission of Council this proviso should be construed objectively rather than liberally.[15]
  1. [33]
    The Council argues that to construe the words 'objectively' means to undertake an assessment based on actuality that is not influenced by personal beliefs or feelings.[16]  The words in the eligibility rules 'as assistants to' objectively exhibit a meaning such as an individual working as another's assistant.  The Council submits that an 'assistant to' could reasonably be identified as an individual such as a PA to a Manager and an Administrative Assistant to a Director of an organisation.
  1. [34]
    The Council further submits there is a clear delineation between the phrases of someone providing 'assistance' and someone who is an 'assistant to'.  The Council relies on the evidence that the AMO may provide a level of 'assistance to' the AMI on an ad-hoc and incidental basis, that is outside of the AMO's primary purpose to the Council's business.
  1. [35]
    This level of assistance may be looking at a property, making file notes of what they saw or taking a photograph to provide to the AMI for an Inspector's investigation into noise complaints, dog attacks or regulated dogs.  Based on this, it is asserted that the AMO cannot objectively be described as an 'assistant to' the AMI.
  1. [36]
    The Council submits the answer to the question for arbitration is 'no'.

Evidence

  1. [37]
    The QSU relied on the affidavit of Ms Heidi Hardy, AMO employed by the Council for approximately eight years.[17] Ms Hardy deposes that there are approximately eleven AMOs and approximately nine AMIs within the Animal Management Branch of the Council.  She said the AMOs provide numerous services to the community including the collection of stray animals and participation in community engagement events.
  1. [38]
    From time to time Ms Hardy said she issues infringement notices in relation to 'unregistered dogs, failure to renew the registration of a dog, a wandering-at-large find and animal not under effective control (not on a leash)'.[18]
  2. [39]
    In the affidavit of Mr Daniel Marks, AMO he deposes that he was appointed to that position in early 2017.  He said that each position at Council is provided with a 'Job Success Profile' (JSP).  The JSP for the position of AMO states that to be successful in performing the role an employee will:

Provide an efficient Animal Management Service by administering and enforcing relevant State Government legislation and Council local laws, Regulations and Policies within the Gold Coast Local Government area.[19]

  1. [40]
    During his evidence Mr Marks said that at the time of making his statement he was on secondment to the position of AMI.
  1. [41]
    Mr Marks said in cross-examination the majority of his work relates to dogs and cats.  If there was a complaint received about a dog then, 'it has been part of our instructions, if we pick up a dog, to attempt to locate the owner and take it home and issue infringements or investigate that and try and finalise it there and then so it doesn't go to the City pound'.[20]
  1. [42]
    Where there is non-compliance in relation to an unregistered dog, Mr Marks said obviously infringements were involved and if there was still no compliance then he had to complete a search warrant application which would be arranged with the police service and potentially another AMO or AMI to attend to search the property, locate and remove the dog.[21]
  1. [43]
    Where someone is contesting an infringement notice and electing to go to court and hear the matter, Mr Marks said he prepares a statement and provides it to the legal section.  Photographs and documents he uploaded to 'pathways' would be there if the legal section needed to prepare a brief.[22]
  1. [44]
    Mr Mark Travers, Team Leader Animal Management for approximately 16 years said in his affidavit that the Animal Management branch is responsible for enforcing Local Law Number 12 and the Animal Management Cats and Dogs Act 2008 (Qld).[23]
  1. [45]
    Mr Travers deposed that the AMOs are generally responsible for initial responses to matters of heightened public safety and respond to animals wandering at large and the impounding of animals.  He said the roles of AMI and AMO interact and cross over depending on the nature of the job.[24]
  1. [46]
    In cross-examination, Mr Travers explained an AMO patrol in the following terms:

We have two types of patrol so we have a proactive patrol and a responsive [reactive] patrol.  So if we were conducting a proactive patrol, we would be looking for violations relevant – local laws.

If it was a reactive patrol it would generally be in response to a member of the public calling in animal roaming in public or reporting violations of local law, so someone may be reporting dogs off lead.[25]

  1. [47]
    Mr Travers agreed in cross-examination that to conduct the patrol, the AMO would need to be aware of the particular regulations that the officer was looking to enforce.  If an AMO found someone during patrol not complying with the regulations, Mr Travers said the AMO would conduct an investigation and take the relevant action.[26]
  1. [48]
    In his affidavit, Mr Mykel Smith said he commenced in the role of Coordinator Animal Management on 20 February 2017 and is currently on secondment to the role of Executive Coordinator City Standards.[27]
  1. [49]
    Mr Smith said the AMO is the first point of contact in relation to dealing with animal complaints from members of the public.  In his experience, approximately 70% of an AMO's day would involve dealing with complaints and undertaking patrols and approximately 30% of their time would involve administrative tasks such as checking emails, completing paperwork when collecting an animal or when issuing an infringement notice.[28]
  1. [50]
    As to the working relationship between an AMO and an AMI, Mr Smith said the roles and responsibilities are different.  AMOs do not conduct investigations.  They may be asked to gather information in order to make a determination as to whether there is a breach.  An AMO may also be required to provide affidavit evidence during enforcement proceedings, however these are all managed by the Council's Legal Services team.[29]
  1. [51]
    In cross-examination, Mr Smith agreed with the following Position purpose of the Position Description (PD) for the AMO:

To provide an efficient Animal Management Service by administering and enforcing relevant State Government legislation and Council local laws, Regulations and Policies within the Gold Cost Local Government area.[30]

  1. [52]
    Under the heading, Key position responsibilities of the PD, Mr Smith also agreed the following would include patrols and 'that's the primary purpose of the job':
  • Undertake compliance activities including the investigation of complaints and alleged breaches of relevant animal management legislation …[31]
  1. [53]
    In cross-examination, it was put to Mr Smith that his evidence at paragraph 31 of his affidavit; namely, that 'Animal Management Officers do not conduct investigations' was inconsistent with his acceptance that AMO's undertook investigations of complaints and alleged breaches of relevant animal management legislation.  Mr Smith told the Commission that the statement contained in his affidavit related only to the dog attack process.[32]
  1. [54]
    Mr Smith agreed as a normal part of an AMO's job, '[t]hey may be asked by the AMI to gather information in order to make determinations as to whether there is a breach'.[33]
  1. [55]
    In response to a question from the Bench, 'in exercising their regulatory functions which they have under the council ordinances and by-laws and also the statute, they have to undertake some investigation, don't they, before they issue any infringement notice for example', Mr Smith agreed that is correct.  Mr Smith also accepted that an AMO in undertaking their regulatory functions needs to embark on some form of investigative process to ensure that the necessary criteria have been satisfied before an infringement notice is issued. A similar approach is adopted when an AMO is preparing documentation prior to the issuing of a search warrant.  Mr Smith accepted that these processes are put in place by Council for AWO's to comply with.[34]

Disposition

  1. [56]
    The sole question to be determined by the Commission is whether those employed by the Respondent as AMO's are eligible for membership of the QSU.
  1. [57]
    It is submitted on behalf of the QSU that the evidence clearly demonstrates that the AMO's do what could be considered inspectorial work. As a consequence, it was submitted that the QSU has established that the scope of work being undertaken by the AMO's fell within a description in the QSU eligibility rules. Therefore, the question should be answered in the affirmative.[35]
  1. [58]
    Whilst the Council accepted that the AMO's are performing clerical, administrative and inspectorial responsibilities they nevertheless relied on the argument that 'because I'm only issuing one infringement notice a year, am I actually discharging that as part of my ordinary course of my duties?'.[36] It was further accepted by the Council that the evidence demonstrated that there are regulatory functions performed by AMO's in issuing infringement notices and if a brief is being prepared for matters to be submitted to the court.  Even though the Council submitted the evidence revealed that briefs were not prepared by the AMOs.[37]
  1. [59]
    The principles to be applied in respect of the proper construction of eligibility rules are well settled. In Re Union of Postal Clerks and Telegraphers: Ex Parte Australian Telephone and Phonogram Officers Association[38]  where Mason, Brennan and Dawson JJ held:

The general rule of construction is that eligibility provisions should be construed liberally rather than narrowly or technically (R v Cullen; Ex Parte: Motor Accidents Insurance Board (1979) 141 CLR at 581,587).[39]

  1. [60]
    It is accepted that an employee is only eligible for membership of the union if their 'primary function of employment' falls within a description of work within an eligibility rule.[40]
  1. [61]
    In DHL Supply Chain (Australia) Pty Ltd T/A DHL Supply Chain[41] Commissioner Cambridge observed that the language of many eligibility rules is couched in the language of the 19th century. He wrote:

Fourthly, the nature of the work like most aspects of modern society has been significantly impacted by rapid technological change occurring at an almost exponential rate. The traditional notions of industry, occupation, industrial pursuits and callings have been and continue to be, modified by the way in which the methods of production, distribution and commercial business activity changes. Consequently, many of the characteristics of the way in which work is performed and the circumstances surrounding the performance of employment need to be recognised as dynamic rather than static.[42]

  1. [62]
    In order to ascertain whether an employee is eligible to be a member of a union, it is necessary to assess the primary purpose of their employment as against the eligibility rule.[43] As observed by Gray J in Joyce v Christoffersen[44] it is not a question of the employee's title or the way in which the employee or employer views the duties, but rather it is determined by looking at what the employee does in the context of the employer's organisation of work.
  1. [63]
    An analysis of the tasks undertaken by an AMO shows that they combine, to varying extents, the characteristics of clerical, administrative, regulatory, and inspectorial duties in discharging their tasks. 
  1. [64]
    In the decision of Isaac DP in the Municipal Officers (Queensland) Consolidated Award 1983,[45] his Honour considered the coverage of the position of Family Day Care Coordinator and Administrator and stated:

The evidence shows that the work of Co-ordinators is a mixture of administrative, clerical and inspectorial duties performed pursuant to the requirements set out in Regulation 11 of the Family Day Care Regulations referred to earlier.  In varying proportions, these duties are a feature of several of the callings or avocations specified in the Rule.  Thus, although it could not be said that the calling or avocation of the Co-ordinator fitted exactly into those specified in the Rule, by virtue of their duties, there is a sufficiently strong similarity between them to satisfy the requirement under the Rule.

In this respect the Co-ordinator is no different from a number of classifications which have been in the Award without challenge for many years.  For example, Community Service Officers, Computer staff, Library staff, and the Parks and Recreation staff, have widely different tasks to perform.  Their designations are not specified in the Rule. But an analysis of their tasks shows that they combine, to different extents, the characteristics of clerical, administrative and inspectorial duties in discharging these tasks.  If these officers are regarded, properly I think, as being "in similar callings or avocations" to those specified in the Rule, the Co-ordinators, by virtue of the nature of their duties, are also in a similar position.[46]

  1. [65]
    The position description provides that a key position responsibility of an AMO is the requirement, amongst other things, to undertake compliance activities including the investigation of complaints.
  1. [66]
    Moreover, the words 'or in similar callings or avocations, or as assistants to employees so employed whether employed as aforesaid or not' as contained in the QSU eligibility rules are words of expansion and permit a finding of eligibility even though an employee may not be appointed as an inspector.
  1. [67]
    In Municipal Officers' (South Australia) Award 1973[47] Isaac DP was called upon to consider a jurisdictional argument dealing with whether community service officers come within the eligibility rule of the Association and therefore can be covered by the Award. The Respondents argued that the actual callings of the persons engaged in community services cannot be related to the callings listed in the constitution rule of the Association.  However, the Association contended that community service officers were comprehended in the words 'or as assistants to employees so employed whether employed as aforesaid or not'.  Isaac DP concluded:

Community service officers work under the charge of town or shire clerks who, as administrative heads, are responsible to their councils for the various activities, including community services, undertaken as a matter of council policy. It is fair, therefore, to characterise the callings or avocations of community service officers as assistants to the town or shire clerks "whether employed as such or not".[48]

  1. [68]
    Drawing on Municipal Officers' (South Australia) Award 1973, QSU argues that the AMOs operate as assistants to other more senior or supervisory positions such as an AMI.
  1. [69]
    In Municipal Officers' (Queensland) Consolidated Award 1983[49] Isaac DP said:

In my opinion, the word "assistant" should not be read narrowly as meaning only somebody who is in an immediate functional relationship to the nominated callings in the rule. The words "whether employed as aforesaid or not" widen the meaning considerably beyond the immediate work nexus.[50]

  1. [70]
    The evidence before the Commission is that an AMI may from time to time call upon an AMO to assist them in relation to an investigation or otherwise assist in the performance of a function.[51] Moreover, I accept that having regard to the nature of the work required to be undertaken by an AMO that they perform, amongst other things, compliance and inspectorial functions thereby bringing them within the ambit of the eligibility rules.
  1. [71]
    Having regard to the reasons advanced above, I am of the view that an employee appointed as an Animal Management Officer by the Council of the City of Gold Coast is eligible for membership of the Queensland Services, Industrial Union of Employees.

Order

  1. The question for arbitration be answered in the affirmative – that those employed by the Respondent as Animal Management Officers are eligible for membership of the Queensland Services, Industrial Union of Employees.

Footnotes

[1] (1922) 16 CAR 1396.

[2] The Municipal Officers' Association of Australia v The City of Albury and others (1969) 127 CAR 250, 270.

[3] (1981) 251 CAR 314.

[4] TR1-4, LL20-26.

[5] (1922) 16 CAR 1396, 1404; (1936) 36 CAR 255, 263; (1940) 42 CAR 334, 342; (1946) 56 CAR 387, 392;  (1948) 61 CAR 631;  (1951) 71 CAR 580, 586;  (1981) 252 CAR 261, 264;  (1981) 260 CAR 108, 124.

[6] TR1-35, L44-TR1-36, L1.

[7] Rescrete Industries Pty Ltd v Commissioner Jones of the Australian Industrial Relations Commission (1998) 86 IR 269, 281.

[8] R v Williams; Ex parte Australian Building Construction Employees' & Builders Labourers' Federation (1982) 153 CLR 402.

[9] Ibid [7], (Murphy J dissented although not in relation to this point).

[10] Rescrete Industries Pty Ltd v Commissioner Jones of the Australian Industrial Relations Commission (1998) 86 IR 269.

[11] Rescrete Industries Pty Ltd v Commissioner Jones of the Australian Industrial Relations Commission (1998) 86 IR 269, [23].

[12] Ipswich City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (No 2) [2014] QIRC 059, [87].

[13] Animal Management (Cat & Dogs) Act 2008 (Qld);  Gold Coast City Council Local Law No. 12 (Animal Management) 2013.

[14] Queensland Services Union, Industrial Union of Employees, Clause 5 Eligibility for Membership, Part 1.

[15] Ipswich City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (No 2) [2014] QIRC 059, [70] citing Re Grimshaw; Ex parte Australian Telephone and Phonogram Officers' Association (1986) 60 ALJR 588, 592-3.

[16] Cambridge Dictionary, Cambridge University Press (2021) at https://dictionary.cambridge.org/dictionary/english/objectively.

[17] Exhibit 1, Affidavit of Heidi Hardy affirmed on 16 August 2021.

[18] Ibid [8].

[19] Exhibit 2, Statement of Daniel Marks filed on 15 July 2021, [10], [17].

[20] TR1-14, LL25-28.

[21] TR1-20, L42-TR1-21, L4.

[22] TR1-23, L39-TR1-24, L12.

[23] Exhibit 3, Affidavit Mark Travers affirmed 16 August 2021.

[24] Ibid [7], [24].

[25] TR1-28, L41-TR1-29, L3.

[26] TR1-29, LL5-10.

[27] Exhibit 5, Affidavit Mykel Smith affirmed 16 August 2021.

[28] Ibid [13], [15].

[29] Exhibit 5, Affidavit Mykel Smith affirmed 16 August 2021, [29], [31], [36].

[30] TR1-31, LL31-42;  Exhibit 5, Affidavit Mykel Smith affirmed 16 August 2021, MS-1.

[31] TR1-31, L44-TR1-32, L9;  Exhibit 5, Affidavit Mykel Smith affirmed 16 August 2021, MS-1.

[32] TR1-32, LL10-20.

[33] TR1-32, LL24-28.

[34] TR1-32-L43-TR1-33, L14.

[35] TR1-35, LL29-35.

[36] TR1-37, LL20-28.

[37] TR1-36, L21-TR1-37, L8.

[38] (1986) 66 ALR 227.

[39] Ibid 235.

[40] Construction, Forestry, Mining and Energy Union v CSBP Pty Ltd (2012) 212 IR 206, [44] and Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2020] QIRC 188, [219].

[41] [2011] FWA 6863.

[42] Ibid [26].

[43] (2012) 212 IR 206, [44].

[44] (1990) FCR 261, 279.

[45] (1986) 302 CAR 116, 120.

[46] Ibid 120.

[47] (1981) 253 CAR 3.

[48] (1981) 253 CAR 3, 4.

[49] (1986) 302 CAR 116.

[50] Ibid 120.

[51] TR1-32, LL30-33.

Close

Editorial Notes

  • Published Case Name:

    Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast

  • Shortened Case Name:

    Queensland Services, Industrial Union of Employees v Council of the City of Gold Coast

  • MNC:

    [2021] QIRC 361

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    27 Oct 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Co-operative Bulk Handling Ltd. v Waterside Workers' Federation of Australia [1980] FCA 141
1 citation
Jump To
Cite 1 - [1980] FCA 141
Co-operative Bulk Handling Ltd. v Waterside Workers' Federation of Australia (1980) 49 FLR 355
1 citation
Jump To
Cite 1 - (1980) 49 FLR 355
DHL Supply Chain (Australia) Pty Ltd T/A DHL Supply Chain [2011] FWA 6863
3 citations
Jump To
Cite 1 - [2011] FWA 6863
Cite 2 - [2011] FWA 6863
Cite 3 - [2011] FWA 6863
Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] QIRC 188
2 citations
Jump To
Cite 1 - [2020] QIRC 188
Cite 2 - [2020] QIRC 188
Ex parte Australian Building Construction Employees and Builders Labourers Federation (1982) 153 CLR 402
3 citations
Jump To
Cite 1 - (1982) 153 CLR 402
Cite 2 - (1982) 153 CLR 402
Cite 3 - (1982) 153 CLR 402
Ipswich City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (No 2) [2014] QIRC 59
3 citations
Jump To
Cite 1 - [2014] QIRC 59
Cite 2 - [2014] QIRC 59
Cite 3 - [2014] QIRC 59
Joyce v Christoffersen (1990) FCR 261
2 citations
Jump To
Cite 1 - (1990) FCR 261
Cite 2 - (1990) FCR 261
Local Government Officers (Western Australia) Award (1981) 251 CAR 314
2 citations
Jump To
Cite 1 - (1981) 251 CAR 314
Cite 2 - (1981) 251 CAR 314
Memorandum of Agreement between The Municipal Officers Association of Australia and The Lord Mayor, Aldermen, Councillors, and Citizens of The City of Melbourne (1922) 16 CAR 1396
3 citations
Jump To
Cite 1 - (1922) 16 CAR 1396
Cite 2 - (1922) 16 CAR 1396
Cite 3 - (1922) 16 CAR 1396
Mining and Energy Union v CSBP Ltd (2012) 212 IR 206
3 citations
Jump To
Cite 1 - (2012) 212 IR 206
Cite 2 - (2012) 212 IR 206
Cite 3 - (2012) 212 IR 206
Municipal Officers (Queensland) Consolidated Award (1986) 302 CAR 116
5 citations
Jump To
Cite 1 - (1986) 302 CAR 116
Cite 2 - (1986) 302 CAR 116
Cite 3 - (1986) 302 CAR 116
Cite 4 - (1986) 302 CAR 116
Cite 5 - (1986) 302 CAR 116
Municipal Officers' (Launceston) Award (1946) 56 CAR 387
2 citations
Jump To
Cite 1 - (1946) 56 CAR 387
Cite 2 - (1946) 56 CAR 387
Municipal Officers' (Melbourne City Council) Award (1981) 260 CAR 108
2 citations
Jump To
Cite 1 - (1981) 260 CAR 108
Cite 2 - (1981) 260 CAR 108
Municipal Officers' (South Australia) Award (1981) 25 CAR 3
3 citations
Jump To
Cite 1 - (1981) 25 CAR 3
Cite 2 - (1981) 25 CAR 3
Cite 3 - (1981) 25 CAR 3
Municipal Officers' (Victoria) Award 1947; Re The Fitzroy City Council (1948) 61 CAR 631
2 citations
Jump To
Cite 1 - (1948) 61 CAR 631
Cite 2 - (1948) 61 CAR 631
R v Cohen (1979) 27 ALR 263
1 citation
Jump To
Cite 1 - (1979) 27 ALR 263
R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71
1 citation
Jump To
Cite 1 - (1957) 97 CLR 71
R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598
1 citation
Jump To
Cite 1 - (1945) 70 CLR 598
Re Grimshaw; Ex Parte Australian Telephone and Phonogram Officers' Association (1986) 60 ALJR 588
2 citations
Jump To
Cite 1 - (1986) 60 ALJR 588
Cite 2 - (1986) 60 ALJR 588
Re Union of Postal Clerks and Telegraphists; Ex parte Australian Telephone and Phonogram Officers' Association (1986) 66 ALR 227
4 citations
Jump To
Cite 1 - (1986) 66 ALR 227
Cite 2 - (1986) 66 ALR 227
Cite 3 - (1986) 66 ALR 227
Cite 4 - (1986) 66 ALR 227
Reg. v Clarkson ; Ex parte Victorian Employers Federation [1973] HCA 57
1 citation
Jump To
Cite 1 - [1973] HCA 57
Reg. v Clarkson ; Ex parte Victorian Employers Federation (1973) 131 CLR 100
1 citation
Jump To
Cite 1 - (1973) 131 CLR 100
Reg. v Cohen; Ex parte Motor Accidents Insurance Board [1979] HCA 46
1 citation
Jump To
Cite 1 - [1979] HCA 46
Reg. v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577
2 citations
Jump To
Cite 1 - (1979) 141 CLR 577
Cite 2 - (1979) 141 CLR 577
Reg. v Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [1957] HCA 19
1 citation
Jump To
Cite 1 - [1957] HCA 19
Rescrete Industries Pty Ltd v Commissioner Jones of the Australian Industrial Relations Commission (1998) 86 IR 269
4 citations
Jump To
Cite 1 - (1998) 86 IR 269
Cite 2 - (1998) 86 IR 269
Cite 3 - (1998) 86 IR 269
Cite 4 - (1998) 86 IR 269
The Municipal Officers' Association of Australia v The City of Albury and others (1981) 252 CAR 261
2 citations
Jump To
Cite 1 - (1981) 252 CAR 261
Cite 2 - (1981) 252 CAR 261
The Municipal Officers' Association of Australia v The City of Albury and others (1936) 36 CAR 255
2 citations
Jump To
Cite 1 - (1936) 36 CAR 255
Cite 2 - (1936) 36 CAR 255
The Municipal Officers' Association of Australia v The City of Albury and others (1940) 42 CAR 334
2 citations
Jump To
Cite 1 - (1940) 42 CAR 334
Cite 2 - (1940) 42 CAR 334
The Municipal Officers' Association of Australia v The City of Albury and others (1951) 71 CAR 580
2 citations
Jump To
Cite 1 - (1951) 71 CAR 580
Cite 2 - (1951) 71 CAR 580
The Municipal Officers' Association of Australia v The City of Albury and others (1969) 127 CAR 250
2 citations
Jump To
Cite 1 - (1969) 127 CAR 250
Cite 2 - (1969) 127 CAR 250

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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