When is an employee considered a ‘Senior Officer’ employed by a Local Government in Queensland?

Employment Law and Industrial Relations

Recently, the Queensland Industrial Relations Commission (QIRC) handed down their decision[i] which considered whether a previous employee was a ‘Senior Officer’ employed by Paroo Shire Council (Council) pursuant to the Queensland Local Government Industry Award (Stream A) – State 2017 (the Award).The Applicant was seeking an order that Council pay unpaid wages that the Applicant contended she was entitled to. The question for the Commission in this matter was whether the Applicant was a ‘Senior Officer’, as if she were, the Award would not apply and she would not be entitled to the wages she alleges she was owed.

The Award outlines that a ‘Senior Officer’ covers:

  • a chief executive officer;
  • a senior executive employee, being someone who reports directly to the chief executive officer and whose position is considered a senior position in the government’s corporate structure; and
  • a department head, who is the principle decision maker of a department or holds a managerial, leadership or compliance position who may act independently subject to the council’s policy and is held financially accountable for the department.

The parties were mainly contending as to whether the Applicant was a ‘Department Head’ pursuant to the Award.

The Applicant argued that she was not a ‘Senior Officer’ as:

  1. her position did not fall into the categories as set out in the Award outlined above;
  2. the interview panel who appointed her to her role did not satisfy the requirement of the Local Government Act 2009 (Qld) (the LG Act);
  3. she was not represented as senior management in any of the Council Annual Reports, which is required by the LG Act; and
  4. she did not voluntarily enter into the contract for the position of ‘Team Leader’.

Did the employee enter into the contract voluntarily?

The Council argued that the Applicant was exempt from the Award based on her contract of employment read together with the Award. The Council argued that:

  • the Applicant was afforded a reasonable period (7 days) to consider and seek clarity of the to terms in her contract of employment;
  • the Applicant voluntarily entered into and signed the contract of employment;
  • there was no reduction in the overall terms and conditions of employment as her salary increased by around $19,000; and
  • the Applicant was fully informed of her contractual obligations.

The QIRC accepted that the procedural steps to exclude the relevant clauses of the Award were established. However, this only becomes relevant where the Applicant is found to be a ‘Senior Officer’.

Was the employee a ‘Senior Officer’ by virtue of being a ‘Department Head’?

The Applicant argued that her position did not fit within the description of a ‘Senior Officer’, arguing that the Council’s corporate structure indicates that her position reported to a senior officer (the Chief Corporate Officer (CCO)) as did other employees. The CCO in turn reports to the Chief Executive Officer (CEO).

The Applicant also argued that the type of work performed in her role was not within the definition of a ‘Senior Officer’ as she was not a member of the Executive Leadership Team and did not report to the CEO. In respect of her financial responsibilities, the budget was approved by the CCO who presented it to the CEO and finally to the Council for approval.

Witnesses gave evidence which supported this, and further claimed that the Applicant did not act independently, instead requiring approval from the CCO for the operation of her department.

Council argued that the Applicant fell within the meaning of a ‘Department Head’ in the Award, as she was responsible for purchasing amounts within her delegation (initially being $50,000 per transaction, subsequently reduced to $20,000 per transaction) and was autonomous in that respect. Evidence was also given that the Applicant was part of the leadership team and the CCO and the Applicant would meet most months.

Council also relied on the various matters to attempt to establish that the Applicant was a ‘Department Head’, including that the Applicant managed a team and team meetings managed multiple projects within Council, and would report to a prior CEO.

How was the employee recruited?

Also, the Applicant argued that the interview panel who appointed her comprised of the HR Manager and the CCO. This did not comply with the relevant requirements of the LG Act. This provision required the Mayor and the CEO to be involved in the recruitment of senior executive employees.

Was the appointment of the employee reported?

The Applicant submitted that in her role, she was not represented in Council’s annual reports as senior management. Section 201 of the LG Act requires the annual report to state certain details of senior management’s employment.

The QIRC found that section 201 intended to create transparency as to the remuneration of senior management employees. The QIRC accepted that it was not identified in any of the annual reports that the Applicant was considered a part of senior management.

The QIRC’s determination

The QIRC accepted that for the Applicant to be considered a ‘Department Head’, she must have been the ‘principle decision maker’ or otherwise held a managerial, leadership or regulatory compliance position for an operationally distinct part of the Council who can act independently and is held financially responsible for the department.

The QIRC concluded that:

  • the Applicant reported to the CCO, who held the ultimate operational responsibility for the department;
  • the corporate structure of the Council supported that the Applicant’s role along with other roles such as the librarian, pool manager and community services manager were categorised on the same tier who all reported to the CCO;
  • the Applicant was not a member of the Executive Leadership Team;
  • the Applicant required approval for the operation of her department’s functions; and
  • the Applicant had a delegated budget indicative to her role and position within the organisational structure.

The QIRC was also satisfied that the interview panel which appointed the Applicant to her role did not comply with the LG Act, and the Applicant’s position was not referenced as a senior management position in any annual report. The QIRC noted that while these matters may not in themselves support a conclusion that the Applicant is not a ‘Department Head’, they lend general support to the conclusion that the Applicant was not a ‘Senior Officer’. The QIRC did note that limited weight was placed on these matters.

Based on these conclusions, the QIRC found that the Applicant in her role did not act as a ‘Department Head’, and therefore was not a ‘Senior Officer’.

Given that the Applicant was found to have not been employed as a ‘Senior Officer’, a consequential finding was that she was not exempt from coverage by the Award. What follows is that the Applicant is entitled to the unpaid wages she contends she is owed, as the exemption under the Award does not apply.

The QIRC appears to have strongly weighted the Applicant’s duties in her role when making this decision, particularly:

  • that she, along with various other employees, reported to the CCO, who reported to the CEO. The Applicant did not report to the CEO directly;
  • the Applicant was given a delegated budget, approved by the CCO, the CEO and Council. The Applicant’s only autonomy was making purchases within her limited scope, being up to $20,000 without prior approval;
  • while the Applicant managed a team, she was not part of the Executive Leadership Team, and did not attend meetings of the Executive Leadership Team.

Further, the fact that she was not mentioned in an annual report as being senior management as well as the interview panel not complying with the legislative requirements for appointing a senior role were also considered and contributed to the findings of the QIRC.

Ultimately, the fact that the Applicant’s contract of employment excluded the relevant provisions of the Award, and met the procedural requirements to do so, was not pertinent to the ultimate consideration as to whether she was a ‘Senior Officer’. As she was not considered to be a ‘Senior Officer’, the exclusion of the Award did not apply.

What should Local Governments in Queensland do?

It is recommended that contracts offered to employees on the basis that they are ‘Senior Officers’ be drafted with caution. It is also paramount that Councils comply with the requirements of the Award the LG Act when recruiting, appointing and formulating remuneration packages to such employees.

Our Employment, Workplace Relations and Migration is highly skilled in providing advice to Local Governments in Queensland. Please contact us for advice on how this decision will affect your employees.

[i] Barbara v Paroo Shire Council (No. 2) [2023] QIRC 273.

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