Why does this matter?
‘Senior Officers’ within the meaning of the Stream A Award (Award) can be excluded from Award and certified agreement coverage. That exclusion is relied upon by councils to facilitate flexible employment arrangements for senior staff. However, if an employee is incorrectly treated as a Senior Officer, there is a significant risk of an underpayment claim.
It is therefore critical for councils to accurately assess which of their employees are Senior Officers.
Because of the risks arising from incorrectly describing an employee as a Senior Officer, our advice to councils has been to only consider employees to be Senior Officers when they clearly fit within the Award definition. Some councils may have adopted a broader interpretation of Senior Officer. This is understandable given that the definition of a Senior Officer in the Award is somewhat vague. Indeed, there are two different definitions of that term in the same Award, relevant to different contexts. In a completely different context, the Work Health and Safety Act 2011 (Qld) (WHS Act) also uses the term ‘Senior Officer’, and includes another different definition.
What was the decision?
On 20 September 2023, DP Hartigan of the Queensland Industrial Relations Commission issued a decision about the relevant definition of Senior Officer. In this decision, Her Honour confirmed that the definition of Senior Officer is narrow, and is only to be applied to a very limited subset of employees. Some of the key factors considered by Her Honour included:
- the reporting line between the employee and the Chief Executive Officer (CEO), noting that the more direct the connection, the more likely the employee is to be a Senior Officer;
- the level of responsibility for specific projects or work areas, noting that if the employee bears ultimate responsibility for a project/team beneath the CEO, they are more likely to be considered a Senior Officer; and
- whether Council had previously treated the employee as a senior employee of Council, in particular whether the employee was interviewed by a suitably senior panel per s 196 of the Local Government Act 2009 (Qld) (LG Act), and whether their position was included in Council’s annual report pursuant to s 201 of the LG Act.
DP Hartigan determined that a Team Leader, which Council had claimed was a Senior Officer and contracted as such, was not a Senior Officer. The employee claims to have been consequently underpaid, presumably in terms of overtime and other entitlements under the Award or relevant certified agreement. That may be a significant amount. We expect this decision will have broader ramifications for that council and other councils, as employees in similar positions may also claim to have been incorrectly treated as a Senior Officer. The decision is available here.
What can be done to protect your council?
We recommend that councils:
- get a clear understanding of which cohorts of employees are Senior Officers for the purposes of the Stream A Award. That may involve a detailed analysis of each position, or at least an analysis of relevant ‘levels’ of employees within the organisation. Separately, it is also important for councils to recognise which employees are Senior Officers under different definitions, particularly in the WHS Act context;
- consider whether council’s practices for hiring and treating Senior Officers accord with sections 196 and 201 of the LG Act;
- update contracts to ensure they comply with the technical requirements in the Stream A Award, and include other appropriate protections for council. For example, an appropriately drafted set-off clause can help to mitigate council’s exposure in an underpayment claim; and
- strategically and proactively address any potential historical underpayments.
If you would like advice or assistance with any of the above, or would like to discuss this issue further, contact a member of our Employment Relations and Safety team.