//
[2017] FWC 5961
General information, not legal advice.
Fair Work Commission
2017-11-15
Commissioner Cirkovic
Original judgment source is linked above.
s.739 - Dispute resolution
[1] This decision involves an application brought by Mr Jeffrey Vassallo (Applicant) under section 739 of the Fair Work Act 2009 (the Act).
[2] The Respondent is Easitag Pty Ltd T/A Easitag (Respondent). The Respondent manufacturers and supplies the 'Easitag' brand which is a trademarked series of products and services that relate to the protection of retail shop goods. These products include Electronic Article Surveillance (EAS) systems and security tags and labels.[1]
[3] The parties are covered by the Electrical, Electronic and Communications Contracting Award 2010 (the Award) which succeeded the National Electrical, Electronic and Communications Industry Award 1998 ('NEECCA').[2]
[4] The parties are in dispute as to the correct classification of the Applicant under the Award at Clause 16.2 and Schedule B. [3]
[5] The application was listed for conference on 6 February 2017. At the conference, the Applicant was represented by Mr Babalis of AHIG Legal and the Respondent was represented by Mr Motteram, Principal of Motteram Lawyers. Permission to appear was granted pursuant to section 596 of the Act.
[6] The matter was listed before me for a conciliation conference on 6 February 2017, at which attempts to settle the matter were unsuccessful.
[7] The application was listed for hearing on 7 June 2017. At the hearing, the Applicant was represented by Mr Babalis and the Respondent was represented by Mr Ward of Counsel.
[8] The parties have filed a number of written submissions. Oral evidence was given at the hearing by Mr Jeffrey Vassallo, the Applicant and Mr Warwick Stewart Debney, Company Director for the Respondent. I have taken into account the written submissions and oral evidence in coming to my conclusion.
[9] There were various submissions made by the parties early on in this matter as to what the issues in dispute were between them and, for that matter, what questions they were asking the Commission to arbitrate. The parties agreed the dispute between them as follows:
The Applicant's contention that he is entitled to a Grade 10 classification under the Award;
• The Respondent's contention that the Applicant is entitled to a Grade 4 classification under the Award.[4]
[10] At the hearing, the Applicant confirmed the Relief he was seeking as follows:[5]
• An Order that classified his employment as that of a Grade 10 worker under clause 16.2 of the EECCA Award from the date that the Act commenced being 7 April 2009.[6]
• In the alternative, an Order that he is entitled to a Grade 10 classification from the date that the EECCA Award replaced the NEECCA Award that being 1 January 2010.[7]
[11] Given the above, what I need to determine is whether the Applicant's role, falls within that of the Grade 10 worker classification, as contended by the Applicant or, the Grade 4 worker classification as contended by the Respondent.
[12] Section 739 of the Act prescribes when disputes under a modern award can be dealt with by the Commission. Section 739 of the Act is as follows:
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute."
[13] Clause 9 of the Award provides a dispute resolution process in the event of a dispute under the Award. Clause 9 of the Award provides:
9.1 In the event of a dispute about a matter under this award, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.
9.2 If a dispute about a matter arising under this award or a dispute in relation to the NES is unable to be resolved at the workplace, and all appropriate steps under clause 9.1 have been taken, a party to the dispute may refer the dispute to the Fair Work Commission.
9.3 The parties may agree on the process to be utilised by the Fair Work Commission including mediation, conciliation and consent arbitration.
9.4 Where the matter in dispute remains unresolved, the Fair Work Commission may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute.
9.5 An employer or employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause.
9.6 While the dispute resolution procedure is being conducted, work must continue in accordance with this award and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace, that is safe and appropriate for the employee to perform."
[14] The parties consented to the exercise of my jurisdiction to arbitrate the matter. I am satisfied that the Commission has jurisdiction to arbitrate this dispute pursuant to Clause 9 and s.739(4) of the Act. [8]
Principles to be applied as to construction of Awards
[15] The parties agreed that the principles to be applied as to the construction of industrial instruments were those enunciated in the Full Bench decision of the Commission in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447 ('Golden Cockerel'). [9] I note that the present case is concerned with the interpretation of an award as distinct from an enterprise agreement and I have been guided by the Golden Cockerel principles to the extent that the observations relate to the interpretation of awards.
I have noted and considered that the Golden Cockerel principles have been re-stated and expanded upon by the Full Bench in a recent decision of "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" (AMWU) v Berri Pty Limited [2017] FWCFB 3005 ('Berri').
[16] Whilst there was no contest between the parties as to the proper approach for the interpretation of awards, it is worth noting that the principles of approach and interpretation are fairly well settled and I have applied these principles in my considerations. For example, as French J, as he then was, observed in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union[10] ('Wanneroo'):
"The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to '...the entire document of which it is a part or to other documents with which there is an association'. It may also include '... ideas that gave rise to an expression in a document from which it has been taken' - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J). " [11]
"It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
"Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties."[12]
[17] In Kucks v CSR Ltd ('Kucks'), Madgwick J said (in a passage, the first part of which is frequently quoted):
"It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning."[13]
[18] The parties agreed that I should adopt the approach in Grabovsky v United Protestant Association of NSW Ltd T/A UPA [2015] FWC 2504 ('Grabovsky') [14] as the relevant law that should be applied in the process for determination of classification.[15]
[19] In discharging the task of determining the appropriate classification of the Applicant, I have been guided by the comments of Lawler VP in Grabovsky[16] where his honour remarks:
"It is trite that when there is a dispute over the proper classification of an employee, that dispute is resolved by ascertaining the work performed by the employee and then comparing that work to the classification descriptions in the applicable industrial instrument, construed in accordance with the established principles of construction for industrial instruments."[17]
[20] It is contextually useful at this juncture, to set out the relevant terms of the Award.
The classification descriptions in the EECCA Award
16.1 The definitions of the classification levels in this clause are contained in Schedule B - Classification Definitions.
16.2 The classifications and minimum wages for an employee, other than an apprentice, are set out in the following table:
[Varied by PR988411]
(a) An Electrical worker grade 4 is an employee who:
(i) has worked for not less than one year in the industry or holds the equivalent experience and without limiting the scope of the work and to the level of the employee's training is an employee who is accredited to perform:
scaffolding or rigging; or
is directly in charge of an electrical store and responsible for materials, ordering and purchasing; or
(ii) has worked for not less than one year as an Electrical worker grade 3 or has the equivalent experience in the installation of electronics equipment and who, under the minimum supervision of a tradesperson or electronics serviceperson:
installs radio, communications and related equipment including antenna; or
installs fire alarm or security alarm equipment; or
installs, terminates and tests data and communication cabling; or
inspects and tests fire alarms or security alarm equipment involving a range of responsibility beyond that of an Electrical worker grade 3 and works without assistance and supervision; or
holds a restricted electrical registration (SA only).
(a) Provided that this person must not undertake tasks requiring the skills of a tradesperson.
(b) Included in this grade is the work of Purchasing clerk/storeperson and Electronic equipment installer level 2.
(c) Definitions applying to this grade of worker prior to 5 October 1990.
Alarm/security tester grade 2
Restricted B class licensed electrical worker
Purchasing clerk/storeperson.
(a) An Electrical worker grade 5 is employed to use the skills acquired through the training specified below and is an employee who:
(i) holds a trade certificate or tradesperson's rights certificate, in an electrical trade; or
(ii) holds an AQF Certificate Level 3 in Electrotechnology in one of the following:
systems electrician; or
assembly and servicing; or
(iii) has successfully completed an appropriate trade course or who has otherwise reached an equivalent standard of skills and knowledge in communications/electronics; or
(iv) holds an AQF Certificate Level 3 in Electrotechnology in one of the following:
building services;
communications;
computer systems;
data communications;
entertainment and servicing;
scanning; or
(v) has successfully completed an appropriate instrumentation trade course; or an AQF Certificate Level 3 in Electrotechnology Instrumentation; or
(vi) holds an appropriate electrical/refrigeration/air-conditioning trade certificate; or an AQF Certificate Level 3 in Electrotechnology Refrigeration and Air-conditioning; or
(vii) has successfully completed an appropriate trade course in linework or cable jointing, or an AQF Certificate Level 3 in Transmission Powerline or ESI Distribution Powerline; or has otherwise reached an equivalent standard of skills and knowledge.
(b) Included in this grade is the work of:
Electrical tradesperson level 1;
Electronic/communications serviceperson level 1;
Instrument tradesperson level 1;
Refrigeration/air-conditioning tradesperson level 1;
Linesperson/cable jointer level 1; and
Electrical tradesperson powerline level 1 (SA only).
(c) Definitions applying to this grade of worker prior to 5 October 1990:
Cable jointer;
Electrical mechanic;
Electrical fitter;
Linesman tradesperson;
Alarm security tester grade 3;
Alarm security technician grade 1;
Electronic serviceperson grade 1;
Television/radio/electronic serviceperson grade 1;
Appliance serviceperson; and
Refrigeration mechanic or serviceperson class 1.
(a) An Electrical worker grade 10 is an Electrical worker grade 5 who has successfully completed:
(i) an appropriate Associate Diploma; or
(ii) an AQF Advanced Diploma, or:
(iii) their formal equivalent; and
(iv) is employed to use the skills acquired through the training and/or experience specified.
(b) Included in this grade is the work of:
Advanced electrical tradesperson level 3;
Advanced electronic serviceperson level 3;
Advanced instrument tradesperson level 3;
Advanced refrigeration/air conditioning tradesperson level 3; and
Advanced electrical tradesperson powerline level 3 (SA only).
(c) Definitions applying to this grade of worker prior to 5 October 1990:
Electronic serviceperson grade 3."
"B.3 Australian Qualifications Framework (AQF) qualifications
B.3.1 Where this award refers to AQF qualifications in:
(b) Electricity Supply Industry Transmission and Distribution;
the National Electrotechnology Training Packages or the Training Packages for the Electricity Supply Industry - Transmission and Distribution and the preferred training models to achieve those qualifications will be those determined from time to time by the National Utilities and Electrotechnology Industry Training Advisory Body and endorsed by the National Training Framework Committee.
B.3.2 The Australian Qualifications Framework (AQF) provides a comprehensive, nationally consistent yet flexible framework for all qualifications in Australia. A qualification is defined as "formal certification, issued by a relevant approved body, in recognition that a person has achieved learning outcomes or competencies relevant to identified individual, professional, industry or community needs"."
[21] For the sake of completeness, I have also set out the relevant terms of the predecessor, the NEECCA Award.
The classification descriptions in the NEECCA Award
In order to assist in the classification or reclassification of employees, the following shall apply:
14.2.1 Where the employee has the relevant qualification recognised as a minimum training requirement for the level at which the employee seeks to be classified and;
The employee is exercising or will be required to exercise the skills and knowledge gained from the qualification necessary for that level of work.
14.2.2 Where the skills standards have not yet been finalised in response of any class of work, and this is necessary for determining an employee's classification, employee performing such work shall be reclassified until such standards are available.
Where the situation described in 14.2.2 hereof applies, but not under any other circumstances, an employee may be reclassified on the basis that the employee meets the requirements of the classification definitions prescribed in Schedule B (Old Definitions) of this award. The old classifications are aligned with the new classifications in clause 15 of this award."[18]
"15.10 Electrical Worker Grade 10 - 145% of Base Rate
An Electrical Worker Grade 10 is an Electrical Contracting Industry Worker Grade 5 who has successfully completed an appropriate Associate Diploma or AQF Advanced Diploma or their formal equivalent and is employed to use the skills acquired through the training and/or experience specified.
15.10.1(a) Advanced Electrical Tradesperson Level 3
15.10.1(b) Advanced Electronic Serviceperson Level 3
15.10.1(c) Advanced Instrument Tradesperson Level 3
15.10.1(d) Advanced Refrigeration/Air Conditioning Tradesperson Level 3
15.10.2 Definitions applying to this grade of worker prior to 5 October 1990.
• Advanced Electronic Serviceperson Grade III"[19]
[22] Schedule B Clauses 21, 21.2 and 21.2.2:
"21. Electronic Serviceperson Grade III means:
21.1 A person who is engaged on complex or intricate circuitry or both, the purpose of which work requires the use of additional knowledge as herein defined.
21.2 For the purpose of this definition "additional knowledge" means knowledge in excess of that gained by the satisfactory completion of the appropriate technical college trade course which has been acquired by the tradesperson by virtue of:
21.2.1 having had not less than two year's on-the-job experience as a tradesperson working on such complex or intricate circuitry work as will enable the tradesperson to perform such work unsupervised where necessary and practicable; and
21.2.2 having by virtue of either the satisfactory completion of a prescribed post trades course in industrial electronics, radio or communications or the achievement of a comparable standard of knowledge by other means, including the on-the-job experience referred to in clause 21.2.1 hereof, gained a sufficient comprehension of such complex or intricate circuitry work as will enable the tradesperson to examine, diagnose and modify systems comprising inter-connected circuits."[20]
[23] The parties helpfully provided the following agreed statement of facts:[21]
"2. The employee, Jeffrey Vassallo, was born in 1959 and is 58 years old.[22]
3. The employer, Easitag Pty Ltd CAN 096 762 739, is a duly incorporated company and the manufacturer and supplier of the Easitag brand of retail security products and services.[23]
4. The employer has its head office in Brisbane (Head Office) but operates nationally. It employs seven people including the employee.[24]
5. The Employee was employed pursuant to a letter of engagement dated 23 April 2008 (Letter of Engagement).[25]
7. The mark at the bottom of page 1 and 2 of the letter and page 1 and 2 of the Job Specification are those of the employee.[28]
8. The employee has, since 6 May 2008, been an employee of the employer in the position of Victorian Technician for Easitag Pty Ltd (Position) in accordance with the first paragraph of the Letter of Engagement[29] and continues to be employed in the Position.
9. The Position, at the time of the commencement of the employment, fell under the operation of the National Electrical Electronic and Communications Contracting Industry Award 1998.[30]
10. In 2010, the Position fell under the operation of the Electrical Electronic & Communications Contracting Award 2010 under which it was classified as Stream two - electronics/communications at 3.1 of the Award.[31]
11. At no time prior to this current application has the employee raised the issue of his scope or his remuneration with the employer.[32]
12. The parties agree that the employee performs the following tasks which include:
a. installing EAS (electronic article surveillance systems) systems[33] in accordance with the Easitag Operating Procedures, site survey documentation and checklists;[34]
b. receiving and responding to phone calls from the Head Office of the employer including verbal instruction as to new jobs.[35]
c. attending the premises of customers and conducting site surveys prior to installations;[36] in accordance with the Technical Service Request form sent by the National Technical Manager (NTM) of the employer;[37]
d. providing training to staff of businesses as to the operation of the EAS once installed[38] noting that historically this was provided by other employees including Karen Smyth;[39]
e. floor cutting and concrete chasing,[40] which refers to the cabling from the power pack (located near a power point) to the EAS system to power it,[41] specialised tools are provided by the employer for this purpose and further the designated location of the EAS system, pre-cabling and power point installation is often undertaken by shopfitters prior to the EAS installation;[42]
f. the installation of the EAS surveillance systems;[43] is required to be carried out at the direction of the NTM and in accordance with the Easitag SOPs;[44]
g. the tuning of the EAS system[45] which involves:
i. the connection to the system by a laptop using specialised software and following simple instructions for adjustment on the laptop screen by way of drop down box, usually one of four selections;[46] and
ii. a mechanical adjustment as to the transmission power by way of the use of a small screwdriver to turn a screw adjustment on a potentiometer.[47]
[24] The Applicant advanced a comprehensive series of submissions in support of his proposition that the role of Victorian Technician for Easitag Pty Ltd[51] should be paid according to the higher classification. I have distilled the following broad categories from the Applicant's submissions and evidence:
• The work that the Applicant undertakes is of a highly specialised nature and involves significant planning and due diligence;[52]
• The tasks performed by the Applicant included technical tasks including the service and repair of EAS (electronic article surveillance systems) that contain complex circuitry/electronic circuit boards, managing client relationships in Victoria, technical sales and sales enquiries, arranging own and co-ordinating own inventory;[53]
• The Applicant's tasks also include undertaking floor cutting and concrete chasing;[54]
• The Applicant also submits that his technical tasks almost entirely require him to engage in circuit board service, repair, tuning or system installation and that these tasks are of a complex nature;[55]
• The highly responsible and high risk role that he completes and undertakes is overlooked and ignored.[56]
• The tasks performed by the Applicant are performed without managerial supervision;[57]
• The Applicant's role at the Respondent is of significant responsibility as for 9 years the Applicant has been employed at the Respondent, the Applicant has almost entirely been the sole Victorian employee;[58]
• The Applicant has not received any feedback from management and has not had any performance appraisals or reviews or salary increments.[59]
• The Applicant has not been made aware of what industrial classification that he has had to work under;[60]
• The Applicant's letter of appointment made no reference to a job and position description and the Applicant has not been provided with one since the commencement of his employment;[61]
• The Applicant has been excluded and ostracised and is no longer invited to company events and in April 2016, his hours were unilaterally reclassified to part time hours without consultation;[62]
• The Applicant submits that he has never been classified pursuant to the NEECCA Award and that the Respondent has never classified the Applicant with a Grade or Level classification pursuant to the awards for the role and/or job tasks he undertakes.[63]
• The Applicant undertook and completed an 'Avionics Electronics Aircraft Electrical Technician) Course' from RMIT from 1976 to1978;[64]
• From 1976 to 1980, the Applicant was employed as an Apprentice with Trans Australian Airlines (TAA), whereby he undertook his apprenticeship in conjunction with his academic studies;[65]
[25] The Applicant submits that clauses 14.2, 14.2.1, 14.2.2, 15.10 and 15.10.2 of the NEECCA Award must be read in alignment with Schedule B clauses 21, 21.1, 21.2 and 21.2.2 of the same award. The Applicant further submits that his classification under the NEECCA Award is that of an Electrical Serviceperson Grade III.[66]
[26] The Applicant further submits that under clause.16.2 of the current Award, he is entitled to an Electrical worker grade 10 Level classification on the basis that Schedule B, Clause B.2.10(c) provides that:
"(c) Definitions applying to this grade of worker prior to 5 October 1990:
• Electronic serviceperson grade 3."[67]
[27] The Applicant submits that he is an Electrical serviceperson grade 3 employee who works without supervision.[68]
[28] The Applicant referred me to Regulation 6 of the Private Security Regulations 2016 under the Private Security Act 2004 (Vic), and in particular to the definition of "Security equipment" which he submits offers value insofar as it provided an "elaboration of the Applicant's job tasks."[69]
[29] The Respondent advances a number of propositions in support of its position that the role of Victorian Technician for Easitag Pty Ltd should be paid according to a lower classification, including the following:
• That the Applicant was employed by the Respondent from 6 May 2008 in the position of Installation and Service Technician - Victoria in a part time capacity;[70]
• That the Applicant is responsible for the installation of Easitag items at the business premises of the Respondent's customers as well as service and customer technical support;[71]
• That the Applicant's duties are those contained in the Job Specification for the role attached to the Applicant's letter of Appointment;[72]
• That whilst there is some autonomy required by the position, as a result of its geographical location in Victoria, it denies that it is independent and says that the Applicant (in his role) at all times reports to senior members of the Respondent and is required to adhere to the Respondent's policies and strict procedures in performing the role;[73]
• That the work the Applicant undertakes is not of a highly specialised nature and does not involve significant planning and due diligence;[74]
• That the Applicant's position requires no electrical qualification or trade recognised qualifications, electrical qualification or the work of an electrical mechanic or electrician.[75] In any event, the Applicant is neither a registered electrician or contractor and holds no electrical trade qualifications;[76]
• That the position requires the installation of the Respondent's sensors and low voltage cabling at its clients premises with testing and service by way of diagnostic analysis undertaken through a laptop with specific software for this purpose and replacement of fault parts as opposed to repair as asserted by the Applicant.[77]
• That the Applicant was trained in Radio Frequency system set up of its products and further provided a laptop with proprietary software to guide him through the installation, with such installation undertaken low voltage 18 volt AC cabling as opposed to 240 volt;[78]
• That a review of the Respondent's documents, SOPS's and procedures reflects the straightforward nature of the tasks required by the position;[79]
• That the position does not require the knowledge and appreciation of complex circuitry and repair skills asserted by the Applicant;[80]
• The Respondent disputes that it provided no managerial feedback, performance appraisals or reviews or salary increments, that, the Applicant has been excluded and ostracised, no longer invited to company events and that his hours were unilaterally reclassified to part time hours without consultation. [81]
[30] The Respondent submits that the Applicant in seeking what in effect amounts to an order for back payment misapprehends the operation of s.545(5) of the Act, which operates as a statute bar to the making of any order for repayment of more than 6 years before the proceedings commenced.[82] The Respondent submitted that should the Applicant be successful in these proceedings, that any Order for repayment should take effect from 13 January 2011.[83]
[31] The Respondent submits that pursuant to the principles of construction, the NEECCA, the Private Security Act 2009 and Private Security Regulations 2016 are not relevant to the process of construction of the Award as an industrial instrument and ought not be allowed to be relied upon as part of the consideration of this issue by the Commission.[84]
[32] The crux of this dispute is the correct classification level of the Applicant's role with the Respondent. In order to resolve this question, I have analysed the descriptors in each of the relevant worker grade levels in the Award and compared them to the requirements of the role required by the Respondent. In undertaking the task, I have also considered the work performed by the Applicant.
[33] It is significant at this juncture to note that the Award classifications are set out in five broad skill streams within the electrical, electronic and communication contracting industries. It is not contested that the appropriate skill stream is as specified at clause 3.1 of the Award and in particular 3.1(b) Stream two - electronics/communications.[85]
[34] Consistent with the approach discussed earlier in this decision, the words of the Award are to be interpreted contextually having regard to their plain and ordinary meaning. The parties do not seriously differ as to the interpretation of the words of Clause 16.2 and Schedule B. In advancing his case, the Applicant does not suggest the Worker Grade classifications in Clause 16.2 and Schedule B of the Award are unclear or ambiguous. In my view, the relevant words in the Award have a clear meaning. The task at hand is to apply the terms in the classification structure to the facts before me.
[35] The Applicant's submissions and evidence as they relate to extraneous or extrinsic material, are proffered in the hope that they bolster the Applicant's evidentiary case that both the role required by the Respondent and the work performed by the Applicant align with a worker Grade Level substantially higher than that advanced by the Respondent. Reliance by the Applicant on the Private Security Act 2009, Private Security Regulations 2016 and the document titled 'Australian Council on Award in Advanced Education Nomenclature and Guidelines for Awards in Advanced Education 1972' were not advanced with sufficient particularity to enable any findings to be made as to their relevance to the issues in dispute between the parties.
[36] Throughout the course of the proceeding the Applicant sought to rely on the predecessor NEECCA Award. At the hearing and in his final submissions, the Applicant submitted that reliance on the NEECCA was for "background only." The issue was pressed by Counsel for the Respondent at the hearing and the Applicant repeated the submission that the relevance of the NEECCA was "for the purposes of background information only." [86]The Applicant has not adequately advanced any proposition on which I could rely to assert that the NEECCA terms should guide me in determining the issue in dispute.
[37] The Applicant asserts that he undertook and completed an Avionics Electronics (Aircraft Electrical Technician) course from RMIT.[87] In support of his evidence, he produces a copy of an Academic transcript from RMIT University for years 1976 to 1978.
[38] Despite extensive submissions and having submitted a great deal of material, the Applicant fails to produce satisfactory evidence of having completed either a diploma or its formal equivalent. Further, he maintains to have worked as an Apprentice with Trans Australian Airlines but fails to produce satisfactory evidence of having completed an apprenticeship.
[39] In cross examination, the following exchange occurs between Applicant and Counsel for the Respondent:
"PN597 You haven't provided the Commission evidence that you hold a degree in electronics?---I have provided the Commission that I have done an apprenticeship with TAA and committed - and completed (indistinct) course.
I will ask it more simply. Do you hold an associate diploma?---No.
Do you hold an Australian Qualifications Framework Advanced Diploma?---No.
Do you hold any sort of formal qualification along the lines of an associate or advanced diploma?---No, the AQF system came out 20 years after I completed my apprenticeship.
That may well be the case. The answer to those questions is "No" and, in fact, you have no formal equivalent of either of those qualifications, do you?---No, but - well, I do (indistinct).
If you could just answer my questions, I am sure your counsel will take you through other things?---Right.
Where is that trade certificate?---God knows. It's lost. I acquired that in 1980. TAA still have it.
But it's not before the Commission today, is it?---No.
You would agree that even if you held a qualification, it wouldn't be current now, would it?---Well, why wouldn't it be current?
As you said, it was done in the 70s?---If it wasn't current then I wouldn't be able to complete the tasks that I'm actually doing.
No, I am not talking about this application. I'm not talking about this application. I might cut this issue short. The fact of the matter is that there is no qualification put before this Commission along the lines of those I have discussed, being either an associate diploma or advanced diploma; correct?---Correct."[88]
[40] The Applicant's only explanation for failing to produce a completed trade certificate is:
You haven't provided the Commission evidence that you hold a degree in electronics?---I have provided the Commission that I have done an apprenticeship with TAA and committed - and completed (indistinct) course.
I will ask it more simply. Do you hold an associate diploma?---No.
Do you hold an Australian Qualifications Framework Advanced Diploma?---No.
Do you hold any sort of formal qualification along the lines of an associate or advanced diploma?---No, the AQF system came out 20 years after I completed my apprenticeship.
That may well be the case. The answer to those questions is "No" and, in fact, you have no formal equivalent of either of those qualifications, do you?---No, but - well, I do (indistinct).
If you could just answer my questions, I am sure your counsel will take you through other things?---Right.
Where is that trade certificate?---God knows. It's lost. I acquired that in 1980. TAA still have it."
[41] In determining the issue in dispute, I have considered the Academic transcript produced in evidence by the Applicant. I am not satisfied that what has been produced amounts to satisfactory evidence of successful completion of either an Associate Diploma, AQF Advanced Diploma, or their formal equivalent. Having undertaken a thorough analysis of the relevant worker grade levels in the Award, it is clear that a precondition of the Grade 10 classification is the successful completion of the above formal training or their equivalent.
[42] Irrespective of the above, the Applicant's position does not, on the evidence before me require the exercise of a qualification of the kind the Applicant claims to have acquired. In coming to this conclusion, I have taken into account those aspects of the evidence where the parties are in dispute.[89] Where it has been necessary to accept the evidence of one party over the other, I have accepted the evidence of Mr Debney, whose evidence I found to be sound and reliable.
[43] In particular I was persuaded by Mr Debney's account in respect of his description of the purpose for which the Applicant was employed and the nature of the work and the duties required to be performed in that role. The evidence of Mr Debney that goes to the core elements of the role, together with the uncontested evidence (referred to below) reinforced my view that the Applicant's role aligned to that of an Electrical Worker Grade 4 in the Award. I have had particular regard to the evidence that:
• in performing the role, the position requires installation of low voltage electrical sensors equipped with antennae which are plugged in to 240v power points and then by way of transformer and cabling are reduced in power to 12v, 18v or 24v, the system also requires the installation of a security label de-activator (again low voltage);[90]
• the system utilised by the Applicant in the performance of his role requires tuning, normally through the use of a laptop with a diagnostic programme and occasionally, the cutting of a channel for cabling in circumstances where no such cable placement has been provided for. Training is related to the operation of the system, by its retail staff;[91]
• in the majority of installations that the Applicant has undertaken, the Applicant has utilised 'pulse technology'. In 'layman's terms' pulse technology requires a connection to the Applicant's laptop. Once the Applicant is connected to a laptop, the Applicant has a series of drop down boxes with three to four options; the Applicant then goes through and selects the right one in order to tune the system in the current conditions. The software is provided by the Respondent.[92]
• that, in the case of complex circuitry, the Applicant conceded it was the Respondent's policy that if a component of the circuit board is beyond repair, he does not engage in repair of the circuit board;[93] and in the cases where a circuit board is faulty and needing replacement, the circuit board is returned to Brisbane head office; [94]
• at all times, the Applicant had immediate access to his superior, The National Technical Service Manager in Brisbane;[95]
• that the work undertaken by the Applicant, requires that he strictly adhere to detailed SOP's of the Respondent.[96]
[44] Given the issue in dispute between the parties, it has not been necessary to make factual findings in relation a number of the Applicant's other contentions including that he was ostracised, not paid over Award, did not receive feedback or salary reviews and did not enjoy flexible working hours, as those matters are not relevant to the issue in dispute before me.
[45] I accept the Applicant's proposition for at least 9 years he was the sole employee in Victoria.[97] Having said that, I do not accept the Applicant's assertions that he performed the role without supervision.
[46] In Transport Workers' Union of Australia v Toll Dnata Airport Services [2012] FWA 5605[98] Sams DP was considering the meaning of the phrase "without immediate supervision" in the context of ramp staff at an airport where their supervisors were some kilometres away from the actual work.
[47] The Deputy President found:
"[54] The Macquarie Dictionary defines 'immediate' as:
'4. Having no object or space intervening; nearest or next: in the immediate vicinity'; It defines 'supervise' as: 'to oversee (a process, work, workers etc) during execution or performance; superintend; have the oversight and direction of.'
[55] Given the above definitions, it does seem to me to be very difficult to sustain an argument that employees who are located 3-4 km from their direct supervisors, are within the immediate vicinity of the persons who are overseeing them. Thus, while the adjective 'immediate' might not strictly apply to the waste and water work here in dispute, the word must be read in conjunction with 'supervision'. When viewed in this light, the force of Mr Magee's argument as to the actual nature of the supervision, becomes obvious. There can be no doubt that, for all practical purposes, the waste and water employees are under the oversight and direction of the Ramp Supervisors. Any problems, such as changed bay allocation or other directions from Virgin's operations, are not decisions undertaken independently by the employees themselves in the course of their duties; rather they follow the directions of others in the performance of these duties. In my view, this is a fundamental difference to working 'without immediate supervision'. In any event, I am bound to follow the agreement interpretation principles (referred to earlier) which require the Tribunal to consider the words in their context, and not in isolation. In doing so, I am unable to agree with the Union's strict literal approach to the interpretation of the words, 'without immediate supervision' as applying to the work in dispute."
[48] The relevant expressions in Electrical Worker Grade 4 in the Award is one who works, under "the minimum supervision of a tradesperson or electronic serviceperson". In my judgment, whilst there may indeed be some increase in the level of practical responsibility when there is no employee on site, it does not mean that all care and responsibility for decisions are required to be made by the relevant worker. That being said, I do not accept the Applicant's assertion that he worked with "nil"[99] supervision and as such the role he performed fell outside the scope of Electrical Worker Grade 4 in the Award.
[49] In summary, when all the evidence regarding the functions and responsibilities of the role of Victorian technician have been considered and assessed against the relevant terms of the Award the answer to the issue in dispute between the parties is that the correct classification of the Applicant's position is Electrical Worker Grade 4.
[50] It follows that the Applicant's application must therefore be dismissed. An order to that effect will be issued separately.
[1] Statutory Declaration of Warwick Stewart Debney filed 5 May 2017, para 2.
[2] Joint consent position of the parties as to the scope of Arbitration filed 12 April 2017.
[3] F10 Application form - Application for the Commission to deal with a dispute in accordance with the dispute settlement procedure, pg 5 filed 13 January 2017.
[4] Joint consent position of the parties as to the scope of Arbitration filed 12 April 2017, PN24 - PN27.
[6] Applicant's outline of submissions filed 28 April 2017, para 18.
[8] PN13 - PN19, Applicant's submissions as to jurisdiction, filed 12 April 2017, para 9, Consent Position of the parties, filed 12 April 2017.
[9] Outline of Submissions of Respondent filed 5 May 2017, para 11, PN 120 - 125.
[17] [2015] FWC 2504, para 14.
[20] NEECCA Award, Schedule B Clause 21.
[21] Agreed statement of facts filed by the parties on 31 May 2017.
[22] Agreed statement of facts filed by the parties on 31 May 2017, para 2, Witness Statement of Jeffrey Vassallo filed 19 April 2017, para 1.
[23]Agreed statement of facts filed by the parties on 31 May 2017, para 3, Affidavit of Warwick Debney filed 5 May 2017, para 2.
[24] Agreed statement of facts filed by the parties on 31 May 2017, para 4, Affidavit of Warwick Debney filed 5 May 2017, para 3.
[25] Agreed statement of facts filed by the parties on 31 May 2017, para 5.
[26] Agreed statement of facts filed by the parties on 31 May 2017, para 6, Witness Statement of Jeffrey Vassallo filed 19 April 2017, paras 4-5.
[27] Affidavit of Warwick Debney filed 5 May 2017, para 5, Agreed statement of facts filed by the parties on 31 May 2017, para 6.
[28] Affidavit of Warwick Debney filed 5 May 2017, para 6, Agreed statement of facts filed by the parties on 31 May 2017, para 7.
[29] Witness Statement of Jeffrey Vassallo filed 19 April 2017, para 4, Affidavit of Warwick Debney filed 5 May 2017, para 11, Agreed statement of facts filed by the parties on 31 May 2017, para 8.
[30] Witness Statement of Jeffrey Vassallo filed 19 April 2017, para 4, Affidavit of Warwick Debney filed 5 May 2017, para 11, Agreed statement of facts filed by the parties on 31 May 2017, para 9.
[31] Affidavit of Warwick Debney filed 5 May 2017, para 16, Agreed statement of facts filed by the parties on 31 May 2017, para 10.
[32] Affidavit of Warwick Debney filed 5 May 2017, para 7, Agreed statement of facts filed by the parties on 31 May 2017, para 11.
[33] Witness Statement of Jeffrey Vassallo filed 19 April 2017, para 20.b, Affidavit of Warwick Debney filed 5 May 2017, para 14.b, Agreed statement of facts filed by the parties on 31 May 2017, para 12 a.
[34] Affidavit of Warwick Debney filed 5 May 2017, para 17, Agreed statement of facts filed by the parties on 31 May 2017, para 12 a.
[35] Witness Statement of Jeffrey Vassallo filed 19 April 2017, para 20.c, Affidavit of Warwick Debney filed 5 May 2017, para 17, Agreed statement of facts filed by the parties on 31 May 2017, para 12 b.
[36] Witness Statement of Jeffrey Vassallo filed 19 April 2017, para 20 e, Agreed statement of facts filed by the parties on 31 May 2017, para 12 c.
[37] Affidavit of Warwick Debney filed 5 May 2017, para 17, Agreed statement of facts filed by the parties on 31 May 2017, para 12 c.
[38] Witness Statement of Jeffrey Vassallo filed 19 April 2017, para 20 h, Agreed statement of facts filed by the parties on 31 May 2017, para 12 d.
[39] Witness Statement of Jeffrey Vassallo filed 19 April 2017, para 28, Agreed statement of facts filed by the parties on 31 May 2017, para 12 d.
[40] Witness Statement of Jeffrey Vassallo filed 19 April 2017, para 21, Agreed statement of facts filed by the parties on 31 May 2017, para 12 e.
[41] Affidavit of Warwick Debney filed 5 May 2017, para 18, Agreed statement of facts filed by the parties on 31 May 2017, para 12 e.
[42] Affidavit of Warwick Debney filed 5 May 2017, para 22, Agreed statement of facts filed by the parties on 31 May 2017, para 12 e.
[43] Affidavit of Warwick Debney filed 5 May 2017, para 16, Agreed statement of facts filed by the parties on 31 May 2017, para 12 f.
[44] Affidavit of Warwick Debney filed 5 May 2017, para 17, Agreed statement of facts filed by the parties on 31 May 2017, para 12 f.
[45] Witness Statement of Jeffrey Vassallo filed 19 April 2017, para 22, Agreed statement of facts filed by the parties on 31 May 2017, para 12 g.
[46] Affidavit of Warwick Debney filed 5 May 2017, para 19, Agreed statement of facts filed by the parties on 31 May 2017, para g(i).
[47] Affidavit of Warwick Debney filed 5 May 2017, para 20, Agreed statement of facts filed by the parties on 31 May 2017, para g(ii).
[48] Witness Statement of Jeffrey Vassallo filed 19 April 2017, para 20. J, Agreed statement of facts filed by the parties on 31 May 2017, para 12(h).
[49] Affidavit of Warwick Debney filed 5 May 2017, para 30, Agreed statement of facts filed by the parties on 31 May 2017, para 12(i).
[50] Agreed statement of facts filed jointly by the parties, filed 31 May 2017.
[52] Witness statement of Jeffrey Vassallo filed 19 April 2017, para 19 and Annexure JV-3 is a copy of a store layout and checklist of the type of work that the Applicant undertakes on a regular basis.
[53] Witness statement of Jeffrey Vassallo filed 19 April 2017, para 20.
[54] Witness Statement of Jeffrey Vassallo, filed 19 April 2017, para 21.
[55] Witness Statement of Jeffrey Vassallo, filed 19 April 2017, para 22, Annexure JV-5 are photographs of circuit boards that form part of the EAS system/gate, Annexure JV-6 is a copy of Tuning Manuals that the Applicant utilises for service and tuning.
[58] Witness Statement of Jeffrey Vassallo filed 19 April 2017, para 18, PN202.
[61] Submissions of the Applicant filed 28 April 2017, para 4(d).
[62] Witness Statement of Jeffrey Vassallo filed 19 April 2017, para 26.
[63] Submissions of the Applicant filed 28 April 2017, para 6.
[64] Witness Statement of Jeffrey Vassallo filed 28 April 2017, para 7.
[65] Witness Statement of Jeffrey Vassallo filed 28 April 2017, para 8.
[66] Submissions of the Applicant filed 28 April 2017, paras 11 and 15.
[70] Respondent's outline of submissions filed 5 May 2017, para 6.
[71] Respondent's outline of submissions filed 5 May 2017, para 8.
[72] Respondent's outline of submissions filed 5 May 2017, para 7.
[73] Respondent's outline of submissions filed 5 May 2017, para 15.
[74] Respondent's outline of submissions filed 5 May 2017, PN613.
[75] Respondent's outline of submissions filed 5 May 2017, para 22.
[76] Respondent's outline of submissions filed 5 May 2017, para 8.
[78] Respondent's outline of submissions filed 5 May 2017, para 18.
[79] Respondent's outline of submissions filed 5 May 2017, para 18.
[80] Respondent's outline of submissions filed 5 May 2017, para 19.
[81] Witness schedule filed by the parties on 31 May 2017, para 6.
[82] Respondent's outline of submissions filed 5 May 2017, paras 3-4.
[84] Respondent's outline of submissions filed 5 May 2017, para 14.
[85] PN827, Agreed statement filed by the parties on 31 May 2017, para 10.
[87] Witness Statement of Jeffrey Vassallo filed 28 April 2017, para 7.
[88] Transcript of proceedings 7 June 2017, PN 597 - 608.
[89] Agreed statement of facts and attached Witness schedule filed by the parties on 31 May 2017.
[90] Respondent's Final Submissions, filed 28 July 2017, para 23, PN 482, 484,488.
[91] Respondent's Final Submissions, filed 28 July 2017, para 23.
[97] Witness Statement of Jeffrey Vassallo, filed 19 April 2017, para 16.
[99] Witness Statement of Jeffrey Vassallo, filed 19 April 2017, para 20(f).
Printed by authority of the Commonwealth Government Printer
Jeffrey Vassallo
Easitag Pty Ltd T/A Easitag [2017] FWC 5961
(1993) 40 FCR 511
(1998) 80 IR 345
(1989) 30 IR 362
(2006) 153 IR 426
(1996) 66 IR 182