s.604 - Appeal of decisions

Appeal against decision [2024] FWC 1794 of Commissioner Lim at Perth on 8 July 2024 in matter number C2024/1630.

[1] AIS Pub Group Pty Ltd T/A Paddy Malones (AIS/Appellant) has filed a Notice of appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) seeking permission to appeal and appealing against a decision of Commissioner Lim issued on 8 July 2024.[1] The decision concerns an application to deal with a dispute under s 739 of the Act made by Ms Madeline Doe (Ms Doe/Respondent). The dispute was raised under the dispute resolution term of the Hospitality Industry (General) Award 2020 (Award) and concerns the grade/wage level under the Award at which Ms Doe was entitled to be classified and paid.

[2] The background to the dispute can be briefly stated. AIS operates Paddy Malones, a bar in Joondalup, Western Australia. Ms Doe commenced employment on 5 October 2023 in the position of bar attendant and was shortly thereafter offered a position as a Duty Manager which she commenced in November 2023. Initially, Ms Doe's position was classified under the Award as Food and beverage attendant grade 2 (wage level 2). In or around December 2023, Ms Doe started to question the rate she was being paid. After some discussion with the Venue Manager, her classification was increased to Food and beverage attendant grade 3 (wage level 3), and she received a wage increase. Ms Doe contended that the correct classification of her position as Duty Manager was Food and beverage supervisor (wage level 5). For consistency, we will refer to the classifications in the Award on the basis of designating them as 'levels'.

[3] Ms Doe took various steps under the dispute resolution term in the Award and when the dispute was not resolved, lodged a Form F10 Application for the Commission to deal with a dispute. The matter was allocated to the Commissioner. The parties consented to the Commission arbitrating the dispute[2] as provided in clause 40.5 of the Award and a determinative conference was conducted by the Commissioner to deal with the dispute. At some undisclosed point prior to the decision being issued, Ms Doe's employment with the Appellant ended. This matter is not relevant to the appeal. In the decision, the Commissioner concluded that from 1 November 2023, when Ms Doe completed training that was 'an appropriate level of training' for the purposes of the level 5 Award classification definition, until her employment with the Appellant ended, Ms Doe's correct classification was Food and beverage supervisor (wage level 5). The training course accepted by the Commissioner as an appropriate level of training, is the Course in Management of Licenced Premises required to fulfil the function of an Approved Manager under the Liquor Control Act 1998 (WA). The conclusions of the Commissioner in relation to the correct classification of Ms Doe and the appropriateness of the training undertaken by the Respondent, are the subjects of the appeal.

[4] In its Notice of appeal, AIS sought a stay of the Commissioner's decision. In a decision issued on 5 August 2024,[3] Vice President Gibian refused the application for a stay on the basis that the Commissioner's decision determined the rights of the parties, by determining the classification at which Ms Doe was entitled to be paid, in a manner binding on them, subject to any appeal. The Vice President also observed that unless set aside on appeal, the decision means that the Appellant contravened the Award to the extent that it paid Ms Doe at a lower rate and she is entitled to recover the amount of the underpayment, if necessary, by enforcement proceedings. The Vice President concluded that because the Commissioner determined the correct application of the Award, but made no coercive orders, there was no decision that could be stayed.

[5] The appeal was heard on 18 September and 18 November 2024. At the hearing of the appeal, the Appellant was represented by Mr Stewart Alexander, a Director of the Appellant and Ms Doe represented herself. Given the observations made by Vice President Gibian, and the implications of the further proceedings that Ms Doe would be required to bring to enforce the decision, the Full Bench arranged for a Member Assisted Conciliation to be conducted before the appeal was determined. The matter was not resolved.

[6] As Vice President Gibian observed in the stay decision, there is nothing to suggest that, in consenting to arbitration, the parties did not intend to take the Commission as they found it with the avenue of appeal available under s 604 of the Act.[4] We agree with that observation and proceed on that basis. An appeal under s 604 of the Act is by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[5] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is 'in the public interest to do so'. The task of assessing whether the public interest test is met is a discretionary one, involving a broad value judgement.[6] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[7] The public interest might be attracted for reasons including that a matter raises issues of importance and general application.[8] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[9]

[7] We have decided to grant permission to appeal on the basis that we accept the Appellant's submission that the Award covers many employers in Western Australia (and Australia generally) and the decision has wider implications for the classification of employees under the Award. The decision has particular significance for employers in Western Australia because of the Commissioner's finding that the Course in Management of Licenced Premises, required to fulfil the function of an Approved Manager under the Liquor Control Act 1998 (WA), is an appropriate level of training for classification at level 5 of the Award.

[8] For reasons that follow, we have also decided that the Commissioner wrongly concluded that for the period from 1 November 2023 until her employment ended, Ms Doe was entitled to be classified at level 5 under the Award or that the Course in Management of Licenced Premises is an appropriate level of training for that classification. In making this finding we note that the Appellant failed to appropriately engage with the Commission at first instance, making the Commissioner's task of fact finding and navigating the Award classifications more difficult. This occurred in the face of significant time and effort on the part of the Commissioner to engage the Appellant in the process by which the dispute was determined.

[9] Notwithstanding our reluctance to reward the failure of the Appellant to properly advance its case at first instance, this is an appeal to which the correctness standard applies. The Commissioner's task was to determine a dispute that demanded a unique outcome - the correct classification of Ms Doe during the period she was undertaking the role of Duty Manager for the Appellant. It is not only contrary to the public interest for the Full Bench to allow a result which in our view is incorrect to stand, but also not in the interests of Ms Doe, who would be placed in the position of being required to enforce that decision in circumstances where it may be subject to further challenge during enforcement proceedings.

[10] The material before the Full Bench includes a Digital Court Book containing the material that was before the Commissioner at first instance, principally consisting of material filed by the Respondent. In this regard, Ms Doe's Form F10 Application set out in considerable detail the subject matter of the dispute and the steps she had taken in attempting to resolve the situation prior to the application to the Commission being made.[10] On 21 March an email was sent from the Commissioner's Chambers directing AIS to provide a Response to the Application either in the form of a short written response or by using the linked F1 form. The email also indicated the matter would be listed for an in-person Conference on 4 April 2024, and a copy of Ms Doe's Application was attached. On 30 March 2024, Ms Doe emailed the Commissioner's Chambers advising that she had decided to resign her employment and asking whether this changed the path forward to resolve her dispute with the Appellant. In a response from the Commissioner's Chambers sent on 2 April 2024 the parties were advised that the Commissioner would continue to deal with the application until it was either discontinued, dismissed or otherwise determined. It was also noted that AIS had not provided a Response to the Application and the Company was again directed to do so, by 3 April 2024.

[11] AIS lodged its Response to the Application using Form F1, on 4 April 2024 asserting inter alia that:

'Our understanding based on advice from fairwork and from [HR advisor] is that wage level 1 is unexperienced hospitality workers in their first 3 moths of work. While wage level 2 is general bar staff with more than 3 months experience. Wage level 3 is experienced cooks & duty managers. Wage level 4 would be the minimum for trade qualifications in hospitality (certificate 3 minimum). With wage level 5 being Venue Managers or those with certificate 4 or above in hospitality/ tourism/ business etc. Our (the venue manager and I) belief and understanding from discussions with fairwork advisors is that a one day online course does not warrant or entitle someone to higher pay grade than those who have served full apprenticeships or done further study in the region of 18 months to 2 years or more (for cert 4 level qualification).'[11]

[12] A case management conference was conducted by the Commissioner on 4 April 2024. A further email was sent by Ms Doe on 9 April 2024 stating that she intended to continue with the dispute and that she was undertaking calculations to establish the difference respectively between what she had been paid as Duty Manager and the rates for level 3 that AIS claimed she was entitled to, and the level 5 rate that Ms Doe claimed. Ms Doe asserted that the difference was significant, and she would like to move forward with her application.

[13] On 29 April 2024 an email was sent from the Commissioner's Chambers stating that following the case management conference, the Commissioner had reviewed the case authorities in relation to s. 739(4) of the Act (concerning when the Commission may arbitrate a dispute) and that no issue arose because the parties had agreed to the dispute being arbitrated pursuant to clause 4.5 of the Award. A hearing to determine the dispute was listed on Thursday 13 June 2024 and a Notice of listing was issued, including the following Directions:

'[1] Ms Madeline Doe (the Applicant) has applied to the Fair Work Commission to deal with her dispute with AIS Group Pub Group Pty Ltd T/A Paddy Malones (the Respondent) in accordance with the dispute settlement procedure in Hospitality Industry (General) Award 2020 (Award).

[2] The dispute concerns whether the Applicant should have been classified at a Level 3 or Level 5 of the Award in her role as a Duty Manager with the Respondent.

[3] A Hearing to determine the dispute is listed for 9:30am AWST (WA) on Thursday 13 June 2024. The Hearing will take place in person at Level 12, 111 St Georges Terrace, Perth, WA 6000.'

[14] Ms Doe filed a submission and response in accordance with the Commissioner's Directions, stating that since commencing in her role as Duty Manager, she had variously been paid level 2, level 3 and a flat amount of $35 per hour and that the correct rate of pay is the level 5 rate. Ms Doe also stated that her duties were aligned to those in level 5 and that she had completed a course in supervision and management. The material filed by Ms Doe included a letter of demand sent to the Appellant on 9 March 2024, said to be consistent with advice from the Office of the Fair Work Ombudsman (FWO), asserting that the 'Approved Managers' course she had undertaken entitled her to be classified at level 5 and that this had been confirmed by the FWO, from whom she had taken advice.

[15] In relation to that advice, Ms Doe asserted that the course qualified her to carry out duties as the 'Approved Manager' including supervision, as stated in the classification definition for level 5. A response from AIS on 9 March 2024 stated that a 'short online course' did not entitle Ms Doe to level 5 when a trade qualified person was entitled to be paid at level 4, and that level 3 includes supervision. AIS also sought advice from the FWO. A further response from AIS to the letter of demand, also tendered by Ms Doe, was set out in an email from Mr Alexander dated 11 March 2024 in the following terms:

'The advisor stated that she does not believe your Duty Managers card would be considered suitable for wage level 5, she believes in order to be eligible for wage level 5 you would require a qualification above a certificate 3 level (with certificate 3 being covered by wage level 4). She has also stated that it is not the Ombudsman but the fairwork commission that would deal with dispute resolution.

The advisor today advised that her interpretation of the award is that a duty manager at our venue would come under grade 3 and the Venue manager would be either wage level 4 or 5 depending on qualifications and experience.

Do you have any further qualification beyond the approved managers course that would justify the wage level increase that we are unaware of?

If you would like to proceed down the path of dispute resolution with the fair work commission please advise. However, please take the following into consideration, we have used wage level 3 as the duty managers basis of pay since we were advised sometime ago by EmploySure who we used to have handle all our HR, so this has now come from a HR specialist company and a fairwork advisor that I have spoken with and also one which Shane has spoken with.'[12]

[16] In response Ms Doe advised that due to different answers both parties were receiving, the matter should be resolved via her application to the Commission to deal with the dispute.

[17] In addition to the Form F10 Application and attachments, Ms Doe filed a document headed 'Statement of Accounts' in the form of a witness statement. In that statement Ms Doe said that she commenced in the role of Duty Manager on 18 October 2023 while still in training and completing her 'approved managers licence'. The training involved shadowing current Duty Managers and the Venue Manager, Mr Gunnings. Ms Doe stated that on Friday 3 November 2023, she sent a text message to Mr Alexander requesting reimbursement of the Approved Managers Course or a wage increase to $35 per hour. This text message was prompted by Ms Doe discovering that other Duty Managers (who she later realised did not work weekends or overtime) were being paid $35 an hour, which was higher than the rate Ms Doe was being paid. On discovering that the new rate meant that she would not receive overtime payments, Ms Doe agreed with Mr Gunnings that she would work as a casual employee and receive penalty rates.

[18] On or around February 2024 Ms Doe obtained a position with another employer working as a Duty Manager for approximately two shifts per week and was informed by the owner of that business that Duty Managers who have completed the Approved Managers Licence Course, are entitled to be classified and paid under the Award at level 5. Ms Doe also provided information about the duties she undertook in the role of Duty Manager and prior to commencing in that role. These are set out in the Commissioner's decision, and it is not necessary that we repeat them. Further, Ms Doe recounted the advice she had received from the FWO we have summarised earlier in this decision.[13]

[19] In the Form F10 Application, Ms Doe made the following assertion about the 'Approved Managers Course':

'11. The Approved Managers License - MLPLCA001 - Manage Legislative Responsibilities for the Sale, Supply and Service of Liquor - NATIONALLY ACCREDITED TRAINING - qualifies you to supervise staff in a licensed venue - as stated on the course website - The WA Approved Manager online course is suitable for learners who:

Are experienced within the industry and wish to move into management roles.

• Require industry accreditation.
• Prefer to complete an online program in their own time.
• Are about to move into a role which requires supervision within a licensed premise.

It is mandatory to hold an approved managers license to act as a Duty Manager in a licensed

[20] Also appended to Ms Doe's Form F10 Application is a copy of a Statement of Attainment issued by 'Access All Areas Training.' Under the heading 'STATEMENT OF ATTAINMENT' the following text appears: 'A statement of attainment is issued by a Registered Training Organisation when an individual has completed one or more accredited units.' The Statement of attainment says that Ms Doe has attained 'MLPACA001' - Manage legislative responsibilities for the sale, supply and service of liquor'. The Statement goes on to say that: 'This forms part of the 52863WA - Course in Management of Licensed Premises'[15] and an identification card issued under the Liquor Control Act 1988 stating that Ms Doe is an 'Approved Manager'. The Certificate of Attainment evidences that Ms Doe has attained one Unit in that course, and that this is sufficient for her to be accredited as an Approved Manager for the purposes of the Liquor Control Act 1988. If Ms Doe has completed any other units of training, there is no evidence as to the content of those units. Ms Doe said in relation to the Approved Managers course:

'I have been advised by Fair Work Ombudsman that the Approved Managers License is a course that fits the L5 wage classification of "supervisory course". I have received this advice on two separate occasions. I have been informed by a new employer the same information. Furthermore, when reading the descriptions of the Approved Managers Course, it evidently supports that it prepares you for taking on a supervisory role in a licensed venue, ... If we are wrong, and this is not the course that suits the classification, then I would be interested to know what this course is.'[16]

[21] Other than the Form F1 Response filed on 4 April 2024, outside the time the Commissioner's earlier direction required, AIS filed no submissions or witness statements. On 1 June, an email was sent to the parties from the Chambers of the Commissioner querying why the AIS had not filed its material by Monday 27 May 2024, extending the date for the Appellant to file its material to 3 June 2024, and providing a further period for Ms Doe to file any material in reply, to 10 June 2024. On 3 June 2024, Mr Alexander on behalf of AIS corresponded with the Commissioner in the following terms:

I have previously provided the requested qualification that our Venue Manager holds (email sent on 5/4/24). It is attached here again.

I believe we have nothing further to add, as the evidence supplied by Ms Doe shows that the Venue Manager was providing oversight and direct instructions to her on tasks.

Furthermore there has been no submission of any further training records to justify the increase from wage level 3 to wage level 5. ...'

[22] The matter proceeded on 13 June 2024. Ms Doe represented herself and gave evidence. AIS was represented by Mr Alexander. After discussing the process with the parties, the Commissioner decided to conduct a determinative conference during which Mr Alexander made submissions containing a range of factual material which the Commissioner received and had regard to. The exchange between the parties indicates that there was not a significant difference about the types of duties Ms Doe performed but rather the dispute was about the level of the classification structure at which they were described and carried out. The range of this discussion is reflected in the Commissioner's decision, and we do not set it out in detail.

[23] The Commissioner commenced by describing the matter in dispute as being the correct classification for the Applicant in her role as duty manager. The Commissioner then set out the Award classifications in tabular form, as follows:

• supplying, dispensing and mixing liquor, including selling liquor from the bottle department;
• assisting in the cellar or bottle department;
• undertaking general waiting duties for food or beverages or both, including cleaning tables;
• receiving money;
• attending a snack bar;
• performing delivery duties; and
• taking reservations, greeting and seating guests.

• operating a mechanical lifting device;
• attending a wagering terminal, electronic gaming terminal or similar terminal;
• having full control of a cellar or liquor store (including the receipt, delivery and recording of goods within such an area);
• mixing a range of sophisticated drinks;
• training food and beverage attendants of a lower grade; and
• supervising food and beverage attendants of a lower grade.

[24] The Commissioner recorded Ms Doe's contention that her duties as the Duty Manager went beyond those in the classification of Food and Beverage Attendant level 3 and outlined her evidence of various responsibilities required of that role which were not performed by other staff unless rostered in this role, including:

1. supervisory and training duties in relation to staff and new duty managers;

2. coordinating staff for the venue;

3. managing the venue which included opening and closing the venue, dealing with external and internal complaints and being the contact for liquor licence visits;

4. managing money on the premises, paying the bands booked for the venue and sending sales reports to accountants;

5. liaising with external parties and promoting and organising events; and

f. (in the last few months of her employment) conducting stocktake and ordering.[18]

[25] AIS submitted that to be classified as a Food and Beverage Supervisor Ms Doe would be required to supervise, train and coordinate staff and that Mr Gunnings, the Venue Manager, was responsible for staff coordination. AIS did not call Mr Gunnings to give evidence and as we have noted, did not provide any further information to the Commissioner, either in the form of submissions or witness statements, other than what was set out in the Form F1 Response to the application and stated in oral submissions at the determinative conference.

[26] The Commissioner was satisfied on the evidence of Ms Doe that she supervised staff, trained bar staff and duty managers and coordinated staff levels and duties. The Commissioner accepted that Ms Doe had 'a level of responsibility' for staff coordination which met requirements under the Award notwithstanding that the Commissioner also accepted that the Venue Manager, Mr Gunnings, was responsible for staffing overall.[19] The Commissioner noted that to be licenced as an Approved Manager, an applicant must complete a course in Management of Licenced Premises which consists of two elective units and a core unit, with the minimum completion requirement for the course being to pass the core unit. There was no evidence that Ms Doe completed any elective units, nor was there evidence that Ms Doe responded to the question posed by Mr Alexander in his email to her of 11 March 2024, requesting information as to whether Ms Doe had qualifications other than the Approved Managers course.[20] Ms Doe submitted that her unrestricted Approved Manager licence which she received after completing the Course in Management of Licenced Premises, demonstrates that she has completed a 'supervisory course' and has the appropriate level of training for a Food and Beverage Supervisor. AIS submitted that the course completed by Ms Doe is not sufficient training to qualify as a Food and Beverage Supervisor. The Commissioner considered the definition of 'appropriate level of training' for an employee in clause 2 of the Award, which is as follows:

1. the completion of an appropriate training program that meets the training and assessment requirements of a qualification or one of more appropriate units of competency forming part of a training package; or

2. the employee has been assessed by a qualified skills assessor as having skills at least equivalent to those attained in an appropriate training program; or

c) as at 30 June 2010, had been doing the work of a particular classification for a period of at least three months.[21]

[27] Based on her consideration of Ms Doe's evidence and the submissions of both parties, the Commissioner went on to conclude that the training required to obtain an Approved Manager's Licence is an appropriate training program that meets the training and assessment requirements of a Food and beverage supervisor and that Ms Doe had completed an appropriate level of training to be classified as such under level 5 in the Award. The Commissioner expressed her conclusion in the following terms:

[26] I find that Ms Doe had the appropriate level of training and had responsibility for the supervision, training and coordination of food and beverage staff. This means that from 1 November 2023 when she completed the training for her Approved Manager's Licence, her correct classification was Food and Beverage Supervisor (Wage Level 5) until her employment with Paddy Malones ended.

[28] The Commissioner was not asked by Ms Doe to make an order that she be paid any amounts arising from her claim to be classified at level 5 and this was not a matter that the parties agreed that the Commissioner should determine. Accordingly, the Commissioner did not make an order requiring AIS to calculate and pay an amount to Ms Doe because of the incorrect classification.

[29] The Notice of appeal lists 10 grounds upon which it is asserted that the Commissioner erred. All the grounds of appeal relate to whether the findings on which the decision is based, and the conclusion reached by the Commissioner on the dispute, is correct. The first ground of appeal is that to be classified as a Food and beverage supervisor, Ms Doe was required to have responsibility for stock control for one or more bars. The Applicant submits that Ms Doe only met this criterion in the last 3 weeks of her employment when she was twice supervised by the Venue Manager to conduct stocktake and undertook this task once without the Venue Manager's assistance at a time when he was hospitalised. In ground 2 the Appellant contends that Ms Doe provided contradictory evidence in the primary proceeding as she stated that she was shown once how to conduct stocktake and ordering by the Venue Manager and competed subsequent ordering without guidance, however she had also said in her submissions that the Venue Manager provided direct input and guidance into the stock ordering.

[30] Grounds 3 - 6 relate to training of duty managers. The Appellant submits that Ms Doe has not provided any evidence to suggest that any staff she trained in the position of Duty Manager were higher than Food and beverage attendant level 2, and that Ms Doe confirmed that other Duty Managers and the Venue Manager contribute to the training of a potential Venue Manager while he or she is on a lower pay level (ground 4). The Appellant further submits that the staff who Ms Doe claims to have trained were all classified as Food and beverage attendants level 2 at the time that their employment overlapped with that of Ms Doe. According to the Appellant, this means the training which Ms Doe provided falls under the category of training which is within level 3: 'training food and beverage attendants of a lower grade' (ground 5). The Appellant also states that the training described by Ms Doe in a text message with the Venue Manager was general bar duties, including changing gas lines and kegs and restaurant services (ground 6).

[31] Ground 7 is that Ms Doe was not responsible for staff coordination as this is the role of the Venue Manager who would brief the duty manager on requirements and specific focus areas. The Appellant submits that rostering is done at the venue via 'Wageloch' which was solely controlled by the Venue Manager with changes communicated by the duty manager to the Venue Manager. By ground 8 the Appellant contends that Ms Doe's assertion that she was the point of contact for complaints and liquor licence visits was only the case when the Venue Manager was not physically present on site. This usually ranged between 1 - 4 hours depending on the day and it was common practice for the Venue Manager to be on site for 60 hours a week while the venue was open approximately 70 -75 hours a week.

[32] Appeal ground 9 is that the primary decision considered duties undertaken by Ms Doe that were not listed under the duties specified for a Food and beverage supervisor level 3. Specifically, the Appellant argues that 'scanning and sending sale reports to the company accounts email' is basic paperwork and filing which does not align with criteria in the relevant classification definition and that 'counting tills and safes' involves accurately receiving money which is specified for Food and beverage attendants classified at level 2. Regarding Ms Doe's claim of 'liaising with external parties to obtain quotes and book entertainment', the Appellant submits that the Venue Manager was responsible for this task and would delegate portions of the tasks to duty managers such as obtaining quotes. However, duty managers were not responsible for identifying works, developing a scope or making final decisions on contractors or scope. The final ground of appeal was that while Ms Doe contributed in some part to the duties outlined at [12] of the decision, she did not solely control or direct the duties, and these responsibilities were not within Ms Doe's capacity to the extent that is conveyed in the decision.

[33] The Appellant sought to rely on fresh evidence in the appeal in the form of a report by the FWO dated 16 October 2024 which states that AIS misclassified Duty Managers (responsible for the supervision of a licensed venue) as level 2 Food and beverage attendants and that the FWO's assessment under the Award identified level 3 Food and beverage attendant as the appropriate classification. The Report also states that based on the rates paid to employees in that position by AIS, no underpayment of the relevant minimum rate was identified. The Appellant simply provided the report together with a submission addressing the principles relevant to the admission of fresh evidence in an appeal in Akins v National Australia Bank.[22] The Appellant did not provide a witness statement explaining what material it made available to the FWO in relation to the audit. The document that was tendered with the Report is an email from a FWO Inspector referring to a request for the audit report. The email is a screen shot and the initial email to which it is responsive was not tendered. Nor was there any evidence of how the FWO Inspector obtained information about the role and responsibilities of Duty Managers employed by the Appellant and whether staff were interviewed. If the Appellant has position or role descriptions for various jobs, these were not tendered.

[34] Ms Doe objected to the Report being relied on by the Appellant asserting that the reference to responsibility for supervision of a licenced venue is not referred to in the level 3 classification definition and pointed to s. 100 of the Liquor Control Act 1988 which requires that there is always a person in a position of authority at the premises who is capable of managing and supervising the conduct of the business and exercising authority over the activities that occur at the premises. In her submissions in the appeal, Ms Doe conceded that when the Venue Manager, Mr Gunnings, is present during her rostered shifts, he assumes the responsibilities set out in the level 5 definition and would be the assigned manager on duty. Ms Doe said that she is prepared to accept that she is working in a level 3 position if she has not acted as the manager on duty during her shift. However, in circumstances where Mr Gunnings was absent from the venue, Ms Doe was the designated manager on duty and responsible for the duties listed in the level 5 classification definition.

[35] Given the outcome of the appeal, we have decided not to admit the fresh evidence on the basis that firstly, it was not feasible for the evidence to be appropriately tested in the appeal given that both parties were unrepresented and secondly the FWO report, even if based on contextually complete material, is an expression of opinion on the construction issue at the heart of this dispute. Whilst the opinion may be of interest, it is neither authoritative nor binding on the Commission.

[36] The relevant principles applicable to the interpretation of an enterprise agreement were set out by the majority of the Full Court of the Federal Court in James Cook University v Ridd.[23] Many of the principles referred to are derived from cases concerning the construction of awards. It is not necessary that we set them out in full. Relevantly, the starting point is the ordinary meaning of the words, read as a whole and in context,[24] which is not confined to the words of the instrument surrounding the expression to be construed[25] and may extend to '... the entire document of which it is a part, or to other documents with which there is an association'.[26]

[37] The classification definitions considered by the Commissioner are set out in the table above. The classification definitions for various levels of employees in the Food and beverage stream of the Award are found in Appendix A. Relevant to the proper construction of the level 5 classification definition, it is well-established that the word 'and' is generally used conjunctively and the word 'or' disjunctively, subject to some exceptions which are not presently relevant. Applying that approach, the level 5 classification definition can be read as being comprised of four parts, as follows:

Food and beverage supervisor (wage level 5) means:

1. an employee who has the appropriate level of training, including a supervisory course; and
2. who has responsibility:
3. for the supervision, training and co-ordination of food and beverage staff; or
4. for stock control for one or more bars.

[38] The first two parts of the definition are read conjunctively. The third and fourth parts are alternatives, and each is read conjunctively with the first and second part. This reading of the text reflects the common use of the terms 'and' and 'or' and that the phrase 'for stock control of one or more bars' is something that an employee classified at wage level 5 can have 'responsibility for', but is not of itself, something that can be subjected to each of the actions of supervision, training and co-ordination, which are a compound term and cannot be read as three separate actions in the context of the definition read as a whole. In relation to the text of the wage level 5 definition, it is relevant to the present dispute that the supervision element is linked to the supervision of food and beverage staff rather than supervision of processes such as stock take or stock control or the sale of liquor according to legislative requirements. It follows that the term 'a supervisory course' relates to a course relevant to the supervision of staff rather than a venue or a process such as stock take. Finally, the plain meaning of the first part of the definition is that the appropriate level of training includes 'a supervisory course'. The use of the indefinite article 'a' before the term 'supervisory course' indicates that while the specific title of the course is unknown, the requirement is that the course is about supervision of staff rather than being a course that includes a component about supervision. If it was sufficient that a course simply included a component about supervision, the clause would state that an employee at wage level 5 is required to have an appropriate level of training in relation to or including supervision, rather than requiring that the appropriate level of training include 'a supervisory course'.

[39] A further relevant contextual matter is that in addition to the classifications set out in the table used by the Commissioner to consider the issue in dispute, there is a classification definition for wage level 4, in the following terms:

'Food and beverage attendant grade 4 (tradesperson) (wage level 4) means an employee who has completed an apprenticeship in waiting or has passed the appropriate trade test and who carries out specialised skilled duties in a fine dining room or a restaurant.'[27]

[40] An employee who has completed an apprenticeship holds a qualification at, or equivalent to, a Certificate III in the Australian Qualifications Framework (AQF). The level of skill, competence and knowledge necessary to obtain a Certificate III qualification is not inconsiderable. On a plain reading of the definitions of the various levels, the level of skill, competence and knowledge necessary to undertake the Food and beverage supervisor role classified at level 5, must be at least equal to and likely greater than, that for level 4, as reflected in the higher wage rate for level 5 and the 6% margin above the level 4 rate.

[41] Upon a review of the evidence in the proceedings before the Commissioner, and having regard to the proper construction of the Award, we conclude that the evidence did not support the following findings made by the Commissioner:

1. That a unit of competency entitled MLPACA001 - 'Manage legislative responsibilities for the sale, supply and service of liquor', is of itself, a supervisory course and is 'an appropriate level of training' (as defined in clause 2 and the classification definition for level 5) for an employee who has attained that unit of competency to be entitled to be classified and paid as a Food and beverage supervisor (level 5) under the Award.

2. That the duties described by Ms Doe set out at [12] - [18] of the decision were sufficient to meet the requirements for classification at level 5 and that level 3 was not the correct classification level for the role of Duty Manager performed by Ms Doe.

3. That Ms Doe had the appropriate level of training and had responsibility for the supervision, training and coordination of food and beverage staff.

4. That from 1 November 2024 when Ms Doe completed her training for the Approved Managers Licence, her correct classification until her employment ended, was Food and beverage supervisor (level 5).

[42] In relation to the first finding, other than assertions from Ms Doe, there is no evidence that the unit of competency undertaken by Ms Doe is 'a supervisory course' of the kind contemplated by the level 5 definition. While we accept that Ms Doe has completed the Approved Managers Course by passing the core unit designated MLPLCA001 titled 'Manage legislative responsibilities for the sale, supply and service of liquor', information such as the elements of that unit, the learning outcomes or any indication of its content other than the title, is not before the Commission. As the Statement of Attainment tendered by Ms Doe indicates, the unit is part of a larger course entitled 'Management of Licenced Premises' which may include other units relating to supervision of staff. The title of the unit gives no indication that it covers supervision of staff. Instead, the title indicates that its subject matter relates to the sale, supply and service of liquor to patrons and that any supervision involved relates to the conduct of the business and the activities - such as the sale, supply and service of alcohol - that occur at its premises. The reference by Ms Doe to s. 100 of the Liquor Control Act 1988 and to the fact that when Mr Gunnings is absent from the venue, she is the assigned Manager, supports the proposition that the unit completed by Ms Doe allowed her to act in the capacity of Approved Manager for the purposes of that Act. While passing the unit constitutes completion of the Approved Managers Course, it is not of itself 'a supervisory course' as required by the Award definition for level 5. We do not exclude the possibility that there are other units of the Approved Managers Course relating to the supervision of staff that could meet that definition. However, there is no evidence of this or that Ms Doe has completed any such units. We also do not exclude the possibility that Ms Doe has completed other training during the time she has worked in the hospitality industry that could be described as a supervisory course. However, there is again no evidence of this, and we also note that in the exchange of correspondence between the parties before the dispute was notified to the Commission, the Appellant requested information from Ms Doe about any other training she had completed, and that Ms Doe did not provide a response to this request.

[43] The definition of the term 'appropriate level of training' in clause 2 of the Award, cited by the Commissioner in support of her conclusion that the unit of training relied on by Ms Doe meets the requirements of level 5, is of limited relevance. The first two parts of the definition at (a) and (b) refer respectively to an employee completing an appropriate training program or one or more appropriate units of competency or the employee being assessed as having equivalent skills to a qualification or a unit of competency. The fact that an employee has completed a training program or unit or been assessed as having equivalent competencies to those covered by that unit, does not make the training appropriate. The appropriateness of training relates to its relevance to a particular level of the classification structure an employee is seeking to be classified under. For the reasons given above, training relied on by Ms Doe is not 'appropriate' for the purposes of the level 5 definition, because it does not include a supervisory training course.

[44] We also note that the definition of the term 'appropriate level of training' in clause 2 of the Award preserves the position of persons who were employed as at 30 June 2010, and were doing the work of a particular classification, for a period of at least three months. The three-month period referred to is a period immediately preceding 30 June 2010 and not any three-month period after that date. Nothing in that definition renders the unit of competency relied on by Ms Doe 'appropriate' for classification at level 5 of the Award. On the current state of the evidence, the first finding is therefore not soundly based and cannot stand.

[45] With respect to the second finding, in the role of Duty Manager, Ms Doe is undoubtedly supervising and training food and beverage attendants of a lower level. However, the evidence is that the 'training' of new or future Duty Managers undertaken by Ms Doe, involves those employees shadowing Ms Doe, in the same way that Ms Doe shadowed Mr Gunnings and other Duty Managers when she commenced in that role. Being shadowed by a new employee who will be performing the same role, does not necessarily result in the person who is shadowed, being deemed to have provided 'training' to the new employee. This is particularly the case with respect to the Award definition for level 5, which refers to 'supervision, training and co-ordination' of food and beverage staff and requires that an employee working at that level has undertaken training including a 'supervisory course'. That Ms Doe may have been shadowed by an employee who is, or will be appointed as a new Duty Manager, does not involve 'supervision, training and co-ordination' with respect to that employee. A trainee duty manager is not at the same level as a Duty Manager, and in any event, on Ms Doe's evidence, a prospective duty manager being 'trained' may be employed at the time as a Food and beverage attendant who is to be promoted. This is the process that was followed when Ms Doe was offered and accepted the role of Duty Manager. For these reasons we do not accept that there is sufficient evidence to establish that Ms Doe is 'training' managers at the same level as her own classification, for the purposes of meeting the definition for classification at level 5 of the Award.

[46] The evidence does not establish that the duties of Ms Doe involving stock take and ordering for the venue - either alone or under the direction of the Venue Manager - constitute 'stock control for one or more bars' within the definition for level 5. That the terms 'stock take' and 'stock control' describe different activities, is self-evident. Finally, the finding that the tasks described by the Commissioner in paragraph [18] of the decision, indicate that Ms Doe had 'a certain level of responsibility that meets the requirements of the Award'[28] is not sound. The Award definition for level 5 required that Ms Doe was responsible for 'supervision, training and co-ordination of food and beverage staff'. The meaning of the term 'coordination' is to bring the different elements of a complex organisation or activity into an efficient relationship.[29] While we do not minimise the importance of Ms Doe's contribution to the Appellant's operation, the evidence does not demonstrate that her duties involved coordination of staff as described in the definition of level 5. The Commissioner's finding in this regard is inconsistent with her finding that Mr Gunnings was responsible for the overall coordination of staffing.[30] We therefore conclude that the finding is not supported by the evidence and cannot stand.

[47] Finally, there is insufficient evidence to establish that Ms Doe was entitled to be classified and paid at level 5 from 1 November 2024 when she completed the unit of competency entitled 'Manage legislative responsibilities for the sale, supply and service of liquor'. This follows from our conclusion that a finding that this unit of competency is 'appropriate' for the purposes of the level 5 classification definition, is not soundly based. The Commissioner's finding that Ms Doe was entitled to be classified and paid at the level 5 rate from 1 November when she received the Certificate of Attainment, illustrates the centrality of the conclusion that the training was 'the appropriate level...including a supervisory course'. At the time she completed the unit of competency and was issued with the Certificate of Attainment, Ms Doe was employed on a casual basis as a Food and beverage attendant level 2 (bar attendant). If Ms Doe was entitled to be paid and classified at level 5 under the Award, that entitlement arose when she was required to undertake a role described in that definition, and not simply on completion of training that is said to have equipped her to undertake the role. However, for reasons we have given, the training relied on by Ms Doe, and accepted by the Commissioner as 'a supervisory course' does not meet the requirements for classification at level 5.

[48] We share the Commissioner's view that Ms Doe is credible and open. We also observe that Ms Doe has pursued her application with diligence and has responded promptly and courteously to all directions issued by the Commission at first instance and in the appeal. Ms Doe has done this in difficult circumstances due to the Appellant's failure to appropriately engage with Commission during the proceedings at first instance. As we have observed, the Commissioner made significant attempts to facilitate the engagement of AIS with the process, including conducting a determinative conference and giving the Appellant every chance to put its case during that conference. The Commissioner cannot be blamed for the failure of the Appellant to respond appropriately to Directions, or for filling the significant gaps in the Respondent's case by accepting Ms Doe's evidence and nor could the Commissioner have been expected to gather evidence to support the Appellant's case at first instance when it failed to do so.

Conclusion, disposition of the appeal and redetermination

[49] As we have said, while we are reluctant to reward the Appellant's failure to engage with the Commission's processes by upholding the appeal, this case involves the correct interpretation of a modern award with wide application, and a general issue for employers of Food and beverage attendants, as to whether a training course required for the licencing of 'Approved Managers' in Western Australia, is an 'appropriate level of training' for the purposes of classification as a Food and beverage supervisor (wage level 5) under the Award, and it is in the public interest to grant permission to appeal.

[50] For the reasons we have given, we have decided that the Commissioner's finding that the unit of training 'Manage legislative responsibilities for the sale, supply and service of liquor' was sufficient for Ms Doe to meet the requirement that she have an appropriate level of training, including a supervisory course, specified in the definition of Food and beverage supervisor (wage level 5) under the Award, was not soundly based. That finding was central to the Commissioner's conclusion that Ms Doe was entitled to be classified at that level for the period from 1 November 2024 when she completed the unit, until her employment ended. As a result, that conclusion is unsound and the Commissioner's answer to the question for determination is incorrect.

[51] We have decided to quash the decision. Whilst it may have been appropriate to remit the matter to the Commissioner for taking additional evidence about the performance by Ms Doe of responsibilities (if any) concerning the supervision, training and coordination of food and beverage staff, such evidence alone, even if favourable to Ms Doe, would not, for the following reason, establish a basis to be classified at wage group 5. This is because the unit of training acquired by Ms Doe does not meet the mandatory requirement of that classification level and there is no evidence that Ms Doe has undertaken other training that would meet that requirement. It is also the case that a remittal would not resolve the underlying dispute even if the outcome of further deliberation by the Commissioner was the same, and Ms Doe succeeded in establishing an entitlement to be paid at level 5, in light of our construction of the Award. This is because the question the parties have agreed that the Commission determine, does not allow the Commission to determine that the Appellant calculate the amount of any underpayment and pay that amount to Ms Doe within a specified period.

[52] We therefore redetermine the dispute having regard to the construction of the definition for Food and beverage supervisor (wage level 5) set out above. The redetermination is based on the evidence currently before the Commission.

[53] Having regard to:

• our finding that the unit of training acquired by Ms Doe 'Manage legislative responsibilities for the sale, supply and service of liquor' is insufficient for Ms Doe to have met the requirement that she hold an appropriate level of training, including a supervisory course, specified in the definition of Food and beverage supervisor (wage level 5) under the Award; and

• that no evidence exists of any other training having been acquired by Ms Doe which is in the nature of a supervisory course that meets this definition; and

• that an appropriate level of training including a supervisory course is a mandatory element of the definition;

we conclude that Ms Doe did not meet the requirements to be classified as a Food and beverage supervisor (wage level 5) under the Award for the periods that Ms Doe was employed by AIS as a Duty Manager.

[54] In reaching this conclusion we have also considered Ms Doe's alternative submission that she is entitled to be classified and paid at level 5 while Mr Gunnings was absent from the venue, on the basis that at those times she was effectively acting in his role as Venue Manager. There is some superficial attraction to this submission because clause 22 of the Award deals with the subject of 'Higher Duties' and provides for employees who perform duties of a classification higher than their ordinary classification, to be paid the higher rate for the whole or part of a day. However, that clause goes on to exempt employees who are 'within the Food and beverage attendants grade 2 or 3' from the higher duties provisions. While it is at least arguable that this exclusion applies only to higher duties within levels 2 and 3 so that an employee whose substantive classification is level 2 cannot claim level 3 rates for undertaking higher duties within the level 3 classification, but may make such a claim for higher duties at other levels, this was not argued in the appeal and it is not desirable that we reach a concluded view about the meaning of this provision. The operation of clause 22 may also have been different if Ms Doe had fallen within the Managerial staff (Hotels) classification of the Award, at least while performing Venue Manger duties. That matter was also not argued at first instance by Ms Doe, and in any event, the evidence does not point to an employment arrangement between AIS and Ms Doe as a hotel manager or a manager of a distinct section of its business; rather the evidence points, as the Commissioner correctly found, to Ms Doe being employed within the Food and beverage stream of the Award classifications.

[55] That Ms Doe performed higher duties as a Venue Manager on the occasions that the Venue Manager was temporarily absent but is unable to access the Higher Duties entitlements provided by clause 22 because she was a Food and beverage attendant level 3 is an undesirable and, possibly, an unintended consequence of the drafting of the Award and in particular the terms of the exclusion in clause 22. However, in determining this dispute the Commission is constrained by the Award as we find it and by the agreed question for determination.

[56] The parties have previously participated in a conciliation conference before a Member of the Commission in an attempt to resolve this matter. In our view, it is desirable that this matter be resolved without any further litigation. We consider that, in the interests of fairness, and given that AIS materially contributed to the need for this matter to be determined on appeal by not adequately engaging with the Commission at first instance, that AIS promptly calculate the periods of time Ms Doe was required to perform the duties of the Venue Manager when the Venue Manager was physically absent, and make an ex gratia higher duties payment to Ms Doe as would be provided for by clause 22 but for the possible operation of the exemption. Clause 40.6 of the Award provides that the Commission may use any method of dispute resolution permitted by the Act to resolve a dispute that remains unresolved after the steps in subclauses 40.1 - 40.5 have been followed. It is not in dispute in the present case that those steps have been followed. On redetermination of the dispute, and pursuant to clause 40.6 of the Award, we so Recommend.

[57] We order as follows:

1. Permission to appeal is granted.

2. The appeal is upheld.

3. The decision of Commissioner Lim of 8 July 2024 ( [2024] FWC 1794 is quashed.

4. Application C2024/1630 is redetermined such that that Ms Doe did not meet the requirements to be classified as a wage level 5 employee under the Award for the periods Ms Doe was employed by AIS as a Duty Manager.

[58] Upon the redetermination of the dispute in C2024/1630 and pursuant to clause 40.6 of the Hospitality Industry Award 2020, we recommend that AIS make an ex gratia payment to Ms Doe in the terms set out at [56] of this decision.

[1] [2024] FWC 1794.

[3] [2024] FWC 2082.

[5] This is so because on appeal FWC has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[6] 5 O'Sullivan v Farrer and another [1989] HCA 61; (1989) 168 CLR 210 at [216]- [217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78; (2011) 207 IR 177 at [44]- [46].

[7] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

[8] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; [2010] FWAFB 5343; (2010) 197 IR 266.

[9] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[16] Transcript of C2024/1630 at PN47 and PN48.