Brisbane City Council v Australian Municipal Administrative Clerical & Services Union [2003] FCA 106 (21 February 2003)

Last Updated: 4 March 2003

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 36¼ hour week; the complaint went on to allege that during the period in question, Gaylard was underpaid because he was not paid for the 1¾ 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 36¼ 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:

(a) Except as hereinafter provided, the ordinary hours of duty shall be 36-1/4 per week to be worked from 8.30 a.m. to 4.45 p.m., Monday to Friday inclusive, with a break of 1 hour for a meal between 11.30 a.m. and 2.00 p.m.

...

(b) The ordinary hours of duty of officers having other officers or employees under their immediate supervision or working in close association with employees, whether in the employ of the Brisbane City Council or otherwise employed, whose ordinary hours of duty exceed 36-1/4 per week shall be the same as the ordinary hours of duty of such officers, workers or employees. An officer shall not be deemed to be so "working in close association" within the meaning of this subclause unless, while that officer is in the close physical proximity of such employees, they are working and unless also the work they are doing is of direct interest to the officer in the performance at that time of the officer's duties.

Provided that by agreement between the unions and the Brisbane City Council the ordinary hours of duty may be worked over a fortnightly period on nine consecutive working days and not more than 8 hours 27 minutes shall be worked on any such day at ordinary rates.

...

9 It can be seen that cl 19(a) establishes a general rule that the ordinary hours of duty that the Council's salaried staff are required to work are 36¼ hours per week. Though it will depend upon the particular contractual context, a provision like cl 19(a) may operate to impose on officers subject to it a legal obligation not to be absent from work without good cause during their ordinary hours of duty. Clause 19(b) creates an exception to the general rule in cl 19(a): where Council salaried staff have the immediate supervision of other Council employees or, though not charged with their supervision, work in close association with Council or external employees and the ordinary hours of duty of such employees exceed 36¼ hours per week, those salaried staff must work the same ordinary hours as the employees they supervise or with whom they work in close association. Clause 19(a) and (b) prescribe what are the ordinary hours of duty of the salaried officers therein mentioned. Neither provision prescribes the rates at which officers are to be paid. Clause 22 of the Award provides, subject to a number of exceptions, that officers "shall be paid overtime for hours of duty in excess of the normal hours of duty" at the rates therein set out. "The normal hours of duty" in cl 22 appears to be a synonym for "the ordinary hours of duty" in cl 19. The clear object of cl 19(b) is to confer on the Council the benefits of being able to require the two classes of salaried staff referred to in cl 19(b) to work, and to be paid for as such, a greater number of ordinary hours per week than its salaried staff as a general rule are required to work.

10 The Council has never suggested that it could justify paying Gaylard as it has because he worked in "close association" with the bus drivers within the second limb of cl 19(b) of the Award. As the definition of the expression "close association" in that clause shows, that criterion can only be satisfied if a salaried employee works in close geographical and temporal association with the wages employee. For its appeal to succeed, the Council must establish that that magistrate was in error in holding that bus drivers were not "under [the] immediate supervision" of RSCs such as Gaylard. Neither party sought to make anything of the fact that Gaylard was not in fact required by the Council to work the same ordinary hours of duty of the bus drivers - 80 hours per fortnight - but only 38 hours per week.

11 Whether Gaylard, on the true construction of cl 19(b) of the Award, is the "immediate supervisor of employees" is an issue of some difficulty. The difficulty arises because cl 19(b) is a provision long found in Awards covering salaried staff in municipal authorities, but there has been the quite radical restructuring of the Brisbane City Council Transport Department, to which I have referred.

12 What is clear enough, however, is that the justification for the nexus of the kind found in cl 19(b) between the ordinary hours to be worked by local authority supervisory staff and those worked by the employees they supervise has been found in the practical consideration that supervision will generally have to be exercised by the relevant officers throughout the period worked by those they supervise. See, eg, the comments of Commissioner Gough quoted by the Australian Conciliation and Arbitration Commission in its decision in the Municipal Officers' (Queensland) Consolidated Award 1983, print F3024, 19 October 1987, and the concluding comments of Commissioner Simmonds in the Australian Industrial Relations Commission in Local Governing Authorities Officers (Victoria) Award 1984, print F7751, 31 August 1990.

13 It was not suggested that the phrase "immediate supervision" in cl 19(b) has any technical meaning. The words must therefore be read in their ordinary English meaning, but in their context, ie, in the phrase of critical importance here, "officers having other officers or employees under their immediate supervision", in the whole of cl 19. According to the Macquarie Dictionary, 3rd ed, the ordinary meanings of the word "immediate" include: "without intervening medium or agent; direct: an immediate cause". The word "supervision" has the meaning "the act or function of supervising; oversight; superintendence" while "supervise" has the meaning: "to oversee (a process, work, workers, etc.) during execution or performance; superintend; have the oversight and direction of".

14 The word "immediate" in the phrase here in question in cl 19(b) can, I think, be accepted as serving to identify officers within cl 19(b) as officers who exercise supervisory functions over others directly, without their being any intermediary in the chain of supervision between such officers and those they supervise.

15 So far as ordinary English usage is concerned, to say that one officer has another under his supervision conveys something different from saying that one officer is responsible to higher authority for another officer. One officer can be responsible to higher authority for another or for the way that other performs his or her duties without necessarily having involvement in the kind of oversight of the performance by the subordinate of his or her duties that is conveyed by the expression "supervision".

16 As the ordinary meaning of "supervise" suggests, "supervise" or "supervision" connotes a temporal connection between the activity of supervision and the carrying out of work by those supervised. The ordinary meaning of the words "immediate supervision" suggests a relationship involving a temporal nexus between the activity of supervisory oversight and the work activities of those supervised. The context in which the phrase is found in cl 19(b) supports this interpretation. That cl 19(b) operates by fastening on the ordinary hours of duty that supervised employees must work and making that the ordinary hours of duty which their salaried supervisors must themselves work suggests that the concept of "immediate supervision" in cl 19(b) involves oversight by the supervisor of the work of those supervised throughout the whole of the period the latter are required to work. Moreover, cl 19(b) confers exactly the same benefit on the Council in relation to salaried staff who, though not performing any supervisory duties, work in close association with Council or external employees whose own ordinary hours of duty exceed the general 36¼ hour per week standard for salaried staff. So far as this class of salaried staff is concerned, non-supervisory salaried staff must work the same increased ordinary hours of duty as non-salaried employees where they are, in fact, working in close physical proximity during the period the other employees are performing their own work, provided that work "is of direct interest to the [salaried] officer in the performance at that time of the officer's duties". Such salaried staff can only be required to work the same ordinary hours of duty that the other employees must work if they have to work in both close physical and temporal proximity to the other employees.

17 For the reasons given, I think that before an officer can be said to have the "immediate supervision" of others within cl 19(b), there must be some temporal link between the period the supervisor is required to be on duty and the period those he is said to supervise are required to be on duty, even if it is not necessary that there be an exact overlap between the two periods of duty. In my opinion, such a link between the periods when Gaylard was required to be on duty as a depot RSC and the differing periods when bus drivers working out of his depot were themselves required to be on duty is sufficiently established by the evidence here. The magistrate rightly saw that it was significant, in the task of determining whether Gaylard was the immediate supervisor of bus operators, that Gaylard would never (save perhaps fortuitously) work the same hours on any particular day as any of the bus operators working out of his depot. There were periods of longer or shorter duration when operators who commenced when Gaylard was on duty continued to work from the depot after Gaylard had ceased to work and regularly, long periods when they worked even after the last RSC had ceased duty at that depot. But that is not the end of the matter. Before I think Gaylard can be said to have had bus drivers "under [his] immediate supervision", it would have to be shown that his duties included the overseeing of the performance by the bus drivers of their own duties.

18 It is, I think, necessary to take into account the impact the substantial restructuring of the Transport Department has had on the way bus drivers and RSCs now do their work in order to determine whether Gaylard had the supervision of the drivers. I do not accept that the extensive restructuring exercise upon which the Council engaged in consultation with the relevant Unions was designed to leave the old hierarchical command structure in place with just a cosmetic overlay of modern management jargon describing what should be seen to be only an illusory co-operative structure.

19 Something of the way in which this restructuring affected the work of people like Gaylard can be gathered from the Brisbane Transport Regional Officers Award 1994 introduced as part of this process in its earlier stages under which Gaylard was covered as a "Regional Officer" from 1994 until he was transferred in 2000 to the Brisbane City Council Salaried Staff Award 1992.

20 The 1994 Award includes the following:

5 - JOINT STATEMENT OF INTENT

The Regional Officer position has been established to replace the previous classifications of Inspector, Depot Officer, Control and Area Officer.

The parties agree that Brisbane Transport operates in a dynamic commercial environment which requires swift and effective responses to meet rapidly changing business needs.

The parties further agree that progress has been made in developing flexible working arrangements within specific areas of operations of Brisbane Transport which has addressed previous and current business needs and has increased the efficient use of existing staff.

...

6 - COMMITMENT TO RESTRUCTURING AND FLEXIBILITY

...

A major shift from a policing role to a management role is underway. This is evidenced in a willingness to accept new technology and changed new practices. It is also apparent in the acceptance of the need for flexibility and staff interchangeability. ...

The Regional Officer classification removes restrictive work practices that were created by the current inspectorial/depot officer structure by establishing a multi skilled and flexible position. All depot staff now carry out all depot duties. The vast majority of inspectorial staff carry out all "road" duties. Subject to further training, all staff will be able to carry out all duties.

...

7 - CHANGING ATTITUDES

Staff previously saw themselves as merely operational supervisors, with a limited brief for on the spot decision making, together with a responsibility for merely reporting incidents within the chain of command. Staff have become aware that under the evolving Regional Officer concept they are in fact a part of the management team with an increased responsibility for policy interpretation and decision making, budget control, advice and counselling of subordinate staff, review of policies and submission of proposals to Council which were not previously seen to be in their domain.

...

The end result of this change in attitude is that the emerging Regional Officer group has more responsibilities, is more effective and more involved with managing Brisbane Transport than the previous Depot Officer/Inspectorial Group.

21 Arrangements between the Council and bus drivers are now governed by the third version of the Enterprise Agreement between Council and a number of unions of which Council employees were members and by the Bus Operators' Conditions of Employment Agreement, a Local Area Agreement incorporated in the current version of the Enterprise Agreement pursuant to cl 23.5. The current Agreement was made under the Australian Workplace Relations Act. Clause 2 of the Bus Operators' Conditions of Employment Agreement notes that it: "finalises the Workplace Reform issues arising from the Brisbane Transport Reform Project".

22 Clause 2 - "Introduction" - of the current version of the Enterprise Agreement provides:

This Agreement has been developed by Council and Unions in partnership and builds on the principles of previous agreements, recognising:

* the common purpose of all Council employees is summed up by "Our Business - A Better Brisbane";

* continuously improved performance is essential to meet growing competition and other organisational pressures; and

* results are achieved through teamwork and co-ordinated effort.

23 Clause 3 - "Objectives of this Agreement" - provides:

Under this Agreement, the Partners commit to use Council's capable, skilled and responsive employees to provide competitive, value for money, quality services to our customers and the community through:

* Implementation of corporate and local systems initiatives which will support employees in achieving the desired outcomes;

* Continuous improvement of Council's processes;

* Generating positive financial outcomes that can be shared by customers, the community and employees; and

* Skills development and maintaining employment security for employees.

24 Clause 6(i) of the Bus Operators' Conditions of Employment Agreement provides that their ordinary hours of work are 80 hours per fortnight "guarantee roster cycle". The reason for this prescription is that bus drivers must work shift-work and moreover can be required to work what are called "broken shifts", that is, on a particular day, a minimum shift of four hours with a break from work, and then a further four hours. The Agreement also provides for the payment of overtime and for work "that is not rostered", ie, work performed on weekends or on the employee's day-off. Clause 6 of the Agreement, which deals with the hours of work to be worked by a driver on his or her roster cycle and overtime also provides:

Employees can only swap a complete line of work or work of equal value for other durations. Exceptions to this will require approval from the Regional Manager.

25 Bus drivers thus have considerable freedom to swap periods of duty among themselves, presumably among members of their team, without needing to obtain approval.

26 That part of cl 6, which deals with work performed outside the roster cycle, contains the following:

The work will be offered on an equal and voluntary basis to full time operators.

27 Clause 6 also provides:

Implementation Consultation

A joint implementation sub committee will be set to ensure that issues arising from the implementation of the agreed changes are dealt with in a consultative manner.

28 The Role Statement for Bus Operators provides that each "Bus Operator is responsible to the Regional Manager (not, it is to be noted, to any RSC) for the delivery of a public bus service to the Region in a timely and cost effect (sic) manner that meets the expectations of customers and the identified service delivery and safety standards". The Statement identifies the bus operators' "customers" as:

* general public

* Regional Support Co-Ordinator

* Passenger Services Branch, including Regional Manager

* Divisional Manager, Brisbane Transport.

29 The Statement also states that a bus operator's "Key Accountabilities" comprise the following:

* Safely operate allocated passenger vehicles in accordance with Department of Transport and Brisbane Transport rules and regulations, policies and procedures.

* Meet run-time (timetable) requirements for designated routes.

* Apply the correct ticketing and fare structures.

* Balance and account for tickets and revenue on a daily basis.

* Take due care of allocated passenger vehicles ensuring that they are in working order, clean and projects a good image of Brisbane Transport.

* Maintain a high level of customer service by providing information, assistance and guidance to customers regarding Brisbane Transport's services and facilities.

* Record and report on relevant information when required.

* Demonstrate behaviours which support Council's values & policies. This includes demonstrated behaviour toward principles of equal employment opportunity, workplace diversity & workplace justice. (As all employees have a right to be treated in a fair & equitable way).

* Contribute to the continuous improvement of the Division/Business unit Workplace Health & Safety & Environmental Management Systems and undertake all work in accordance with the council's Workplace & Health & Safety & Environmental Policies and Procedures.

30 These "Key Accountabilities" are framed in language casting personal responsibility on bus drivers for ensuring that the bus service operates effectively in so far as the performance by them of their duties are concerned. In particular, bus operators are not made accountable for anything to RSCs.

31 Bus drivers are required by the Enterprise Agreement to meet certain performance standards. These standards are as follows:

1.1 Authorised to operate allocated passenger vehicles

1.2 Drive safely

1.3 Carry out pre and post drive checks

2.1 Effective communication skills

2.2 Provide assistance to internal/external customers

3.1 Conformance to agreed Run prints

3.2 Adherence to depot departure times

4.1 Effectively operate fare system and comply with revenue requirements

4.2 Effectively uses Trunk Mobile Radio

5.1 Demonstrated knowledge of Code of Conduct and Driver's Hand Book

5.2 Wear correct uniform

5.3 Attendance

32 A major device for evaluating whether bus drivers satisfy their "Key Accountabilities" and performance standards is the system of performance assessment of bus operators. This is conducted by RSCs. The RSC conducting an assessment carries it out by reference to precisely prescribed criteria. RSCs have no executive authority in conducting these assessments. Assessments are generally done once a year, though if difficulties emerge with a particular operator's performance during the year, eg, because he or she is the target of a substantial number of complaints by customers, that operator can be required to submit to performance assessment more frequently. Whether an operator is to be assessed more frequently than annually depends upon the decision of the Regional Manager, not an RSC. Whether, as a result of an unsatisfactory assessment, an operator's pay increment otherwise due is to be withheld is also a matter for the Regional Manager. Discretionary alteration of the performance criteria is also a matter for the Regional Manager. For example, the performance criterion "drive safely" is generally satisfied by an operator having "no more than 4 driving or driving related complaints/incidents within 6 months". It is the Regional Manager, not an RSC, who, in the case of an operator involved in a number of complaints or incidents, can impose a requirement on the operator to achieve the requisite standard within a period shorter than six months.

33 Bus drivers now have a considerable degree of autonomy. Under the restructured arrangements, they work in teams with one of their members elected by team members as the leader. It is the team that has responsibility for servicing the rosters for which the team is rostered. The evidence is that teams play a significant role in ensuring that each operator who is a member of the team meets a proper standard in performing his duties: one sanction apparently is that, if an operator does not do this, his team can be penalised by having a particular run removed from the runs for which the team is responsible. This can have an effect upon the availability of overtime for team members. A team leader has no executive authority; he or she is merely the spokes-person for the particular team of bus operators in the team members' dealings with Council. As is apparent from the evidence of Mr King, Northern Region Business Manager for Brisbane Transport, they play an important role in implementation of the Council's policy of workplace consultation. Team leaders meet fortnightly to discuss with their Regional Manager operational difficulties and any other problems encountered by team members. An RSC also attends these meetings. Where appropriate, the RSC may have the responsibility for taking action decided upon at these meetings, either personally or by ensuring that the appropriate Council Department takes the necessary action.

34 The Role Statement for the position of RSC provides that the latter reports to the Regional Manager and that:

The Regional Support Co-Ordinator is responsible to the Regional Manager for the co-ordination of the operational delivery of a cost-effective public bus service to the Region. The position takes operational remedial action to ensure the service meets the expectations of customers as well as identified performance standards. The focus of the position is on the effective allocation of resources to achieve optimal utilisation and high quality service delivery.

The position is part of the Regional Management Team and works with others to ensure commitment of achieving the goals and objectives of Brisbane Transport.

35 The RSC's role is described as one of co-ordination of the delivery of an effective bus service. Nothing is said about an RSC being responsible for supervising the performance of drivers providing that service. This is consistent with the way the Role Statement for bus drivers charges them with personal responsibility to the Regional Manager for delivery of that service.

36 The Statement identifies the Regional Support Co-Ordinator's "customers" as:

* general public

* councillors

* bus operator teams

* Passenger Services Branch, including Regional Managers

* Manager, Brisbane Transport.

37 The Statement identifies the "Key Accountabilities" of each Resource Services Co-Ordinator as:

* Plan, co-ordinate and implement cost-effective and efficient work schedules or rosters in accordance with contemporary industrial relations policies and practices.

* Maintain effective on-road support service to bus operators, taking remedial action as necessary to ensure the service meets the expectations of customers and identified performance standards.

* Receive and investigate customer complaints; identify issues related to gaps in customer service and/or satisfaction, and develop contingency plans to address these service gaps.

* Collect and analyse data to identify discrepancies in Bus Operations ticket revenue and advise on policies and procedures that minimise fraud.

* Recognise and respond appropriately to critical issues.

* Monitor performance goals, identify and report on shortfalls in performance and devise tactical solutions.

* Establish and maintain effective relationships with bus operators and maintain crews so as to ensure performance standards of service delivery are achieved.

* Promote and maintain a safe and co-operative work environment.

* Foster and develop team and employee commitment to the goals of Brisbane Transport.

* Demonstrate behaviours, which support Council's values & policies. This includes demonstrated behaviour toward principles of equal employment opportunity, workplace diversity & workplace justice. (As all employees have a right to be treated in a fair & equitable way).

* Provide a safe and healthy work environment for all persons affected by the operations of the Branch through the implementation and continuous improvement of the Division/Business Unit Workplace Health & Safety and Environmental Management Systems.

* Ensure all work is completed in accordance with Workplace Health & Safety, and Environmental legislation, and the Council's Workplace Health & Safety & Environmental policies and procedures.

38 Gaylard described his duties as a depot RSC in this way:

23. My work largely involves coordinating buses, drivers and runs.

24. "Runs" are daily programs that set out where specific buses need to be, and when they need to be there.

25. Runs are determined by schedulers, who are employees of the BCC.

26. There are approximately ninety different runs each day.

27. ...

28. RSCs are rostered on to the Counter Early and Counter Late shifts alone and work largely unsupervised.

29. My duties on the Counter Early shift are as follows:

a. open the depot, and unlock the security system, including unlocking the doors and gates;

b. check the levels of absenteeism, and keep a record of absentee drivers as they are reported, and arrange drivers (either by calling them in, or using stand-by drivers) to replace any absentees as necessary, and ensure all runs have a driver allocated to them, and that that each driver will turn up for work. This requires an awareness of legal and industrial obligations owed to the drivers. For example, I cannot use a casual driver to fill a space created by an absentee if the casual hasn't had a ten hour break between shifts;

c. use the computerised dispatch system ("Buddy") to allocate buses to runs. This involves:

i. ensuring Buddy has been set to the correct day,

ii. entering information into Buddy as to whether buses are available for use for particular runs, based on the information I've been provided with by the garage and any other relevant information,

iii. making decisions about which buses to allocate to which runs,

iv. checking Buddy to ensure the buses I've allocated to runs are available for those runs, and

v. recording in Buddy which runs I allocate which buses to;

d. liaise with the garage to determine which buses need to be in the garage for maintenance, and ensure those buses are not allocated to runs, or, if they are allocated to runs, ensure they will be back at the depot in time to have the maintenance work performed;

e. make decisions based on advice from the garage as to any changes that need to be made to the allocation of buses to runs, and advise the garage of the likely demand for buses (for example, letting them know how many buses we need to have available for the following day);

f. get run prints ready by removing them from their pigeonholes, stacking them in numerical order, and ensuring each is for the correct day;

g. ensure all bus drivers get a copy of the run print that has been allocated to them, and that all drivers turn up for work or are replaced;

h. perform an audit of the drivers' pay sheets - ensure each driver has "signed on" for their shift, collect each driver's pay sheet, check each pay sheet against the relevant run and the counter summary sheet (the summary of which driver has been allocated to which run), and send the pay sheets to the pay office;

i. do a "swaps" report, which is a report on whether drivers have swapped allocated work, and if so what work they've swapped, by entering information into a computer program and filling out a form;

j. keep a record of the hours worked by casuals to ensure they don't work more than the prescribed maximum of 1200 hours per year;

k. keep a record of standby hours (ie hours worked by drivers on standby, who are drivers available to do work in the place of absentees);

l. answer the two phones in the office, taking complaints and lost property enquiries from members of the public, providing customer assistance, and receiving calls from drivers who are unable to work due to illness;

m. reserve buses for charters, ensure drivers are available for charters, and liaise with the charters clerk; and

n. provide an oral report to management on the day's activities if requested. Such reports are usually requested by phone once during each Counter Early shift.

o. determine whether to allocate replacement "ET" cards (cards that record ticket sales on the buses) to drivers who have lost or forgotten their personal ET card, and allocate replacement ET cards;

30. ...

31. My duties on the Counter Late shift are as follows:

a. at the beginning of each Counter Late shift, seek an oral report from the Counter Early shift RSC regarding what has occurred during that morning's Counter Early shift, including any problems that need to be resolved;

b. find drivers for any shifts not yet filled;

c. visit the bus yard and write down on yard plan where each bus is, and make changes as necessary to which bus is allocated to which run, and cross reference those changes with the run prints;

d. manually dispatch buses by referring to the notes made on the yard plan as to which buses are available, as Buddy does not have the capacity to be used in allocating buses that have returned from their run or from the garage;

e. reset Buddy for the next day's Counter Early shift, by saving the information entered into Buddy for that day, and ensuring Buddy shows the correct day and date for the next day;

f. answer phones and speak to members of the public, about lost property enquiries and other public enquiries;

g. check each run print is for the correct date and day, as the schedulers often make changes;

h. when the drivers return their copies of the run prints, check those copies against the copies kept at the depot to ensure all run prints have been returned, then replace any run prints that haven't been returned;

i. receive lost property from drivers, log the lost property and put it in bags for the courier;

j. receive accident reports from drivers, send original to the insurance company, and file or mail the five copies of the reports that are required to be made;

k. discuss any queries about revenue the drivers may have (in this case, "revenue" refers to the revenue from sales of bus tickets);

l. make adjustments to revenue using a computer program. Adjustments are made for a number of reasons including where tickets have been cancelled, or where tickets are faulty;

m. check cancelled tickets to ensure all were cancelled within five minutes of being sold;

n. investigate any revenue adjustments as necessary to ensure all are legitimate;

o. keep records of cancelled tickets;

p. record drivers accounts in books and in computer software to reflect adjustments to revenue;

q. if necessary, make drivers aware if it has been found that they have missing revenue (however, I have no authority to reprimand drivers on this basis), this happens about once every shift or less;

r. pass on complaints or commendations from members of the public to drivers, and file copies of complaints or commendations. This would happen about once every shift;

s. provide assistance, on-site as required from time to time by drivers, as to the use of the buses, or any procedures drivers are required to follow;

t. attempt to solve any disputes between drivers by acting as a mediator between drivers, but without having the authority to finally determine any such disputes;

u. fill any shifts for the next day required because of absenteeism; and

v. turn on the security alarm system for the Administration area of the depot.

39 A radio control room RSC performs the following duties:

* Maintain radio contact with the Council fleet

* Provide advice and assistance to bus drivers who find themselves in situations of difficulty

* Despatch road RSC as required.

40 A road RSC performs the following duties:

* Attending accidents and other incidents involving the bus drivers

* Assist the bus drivers in dealing with any such situations to which the road RSC has been called

* Take control of the situation where bus driver unable to do so.

41 The function of the control room RSC is not to act as a traditional supervisor of bus drivers after their depot RSCs had ceased work, but is to be available throughout the whole of the time buses are on the road to provide assistance, sometimes in the form of directions as to what to do to deal with problems that bus drivers were confronted with from time to time in the course of their runs. Their major role is to ensure that the necessary assistance either on-site or in the form of helpful directions is provided to bus drivers to enable the bus drivers to discharge their duties. The role of RSCs on road duty is of the same character.

42 A depot RSC like Gaylard has a role different from that of a traditional supervisor. What such an officer does is in broad terms accurately reflected in the title of the position, Regional Support Co-Ordinator. Although Gaylard may have in fact given what can be described as directions on occasions, eg, in relation to what buses particular drivers were to drive when there was a dispute about that between drivers, he appeared not to have any authority under the terms of his employment to do that; his terms of employment limit his role in such a situation to mediating between disputing drivers and if an agreement cannot be arrived by consensus to refer the matter to the Regional Manager for determination. Some of Gaylard's duties as RSC can be described as supervisory in nature. He is required to check on a daily basis the cash returns made by bus drivers and to instigate investigatory action by others if significant discrepancies are detected. But his role, in large part, comprises the facilitation of the delivery by bus operators of bus services to Brisbane residents. It is a role removed from that of the traditional supervisor who oversees and directs subordinates in performing their own duties. Under the restructured arrangements adopted by the Transport Department, the relationship between RSCs and drivers is much more in the nature of a co-operative one than a traditional "policing" or hierarchical one. The restructuring of the Council Transport Department has moved bus operations away from the traditional hierarchical command model to a much more co-operative model in which bus drivers and RSCs work together to achieve what the Council considers are desirable outcomes for travellers. So far as bus drivers are concerned, directional powers are provided for in the new structure to ensure that the designated outcomes will be achieved, but those powers are exercisable only at a higher level in the department than that of RSC, ie, at regional manager level. In my opinion, the range of co-ordinating duties which cannot be characterised as supervisory in nature which Gaylard as Depot Supervisor performs is such that even though he does perform another smaller range of duties which can be said to be supervisory in nature in relation to the bus operators, he cannot be said to be the bus operators' immediate supervisor.

43 While the magistrate may have been in error in finding that it was determinative of the question whether Gaylard was the immediate supervisor of the operators that he did not work the same hours as the bus drivers, in my opinion, he reached the right conclusion. The appeal will be dismissed.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated: 24 February 2003

Counsel for the Applicant:	A Herbert
Solicitor for the Applicant:	Brisbane City Council
Counsel for the Respondent:	J Nolan
Solicitor for the Respondent:	Hall Payne Lawyers
Date of Hearing:	5 November 2001
Date of Judgment:	21 February 2003