//
[2020] FWC 6278
General information, not legal advice.
Fair Work Commission
2020-12-02
Original judgment source is linked above.
[2020] FWC 6278 [Note: An appeal pursuant to s.604 (C2020/9179) was lodged against this decision.]
s 739 - Dispute resolution
Application to have the Commission deal with a dispute under the disputes settlement procedure in an enterprise agreement - redeployed engineer of Ausgrid - employee accepts voluntary redundancy and employment ends on same day as this application filed - claim for payment of an allowance from December 2018 - 30 June 2020 - jurisdictional objection - whether steps in the DSP complied with - characterisation of dispute/issue - doubt as to jurisdiction - merits considered - claim pursued for 1½ years - difference with rate of pay and allowance for which accreditation is required - applicant fails to obtain accreditation before 'cut off' date - not treated any differently to other employees in same position - applicant not entitled to the allowance - no breach of 'grandparenting' arrangement or Agreement - no merit to application - application dismissed.
[1] Ms Manchula Vendrig commenced employment with Ausgrid (as the entity is now known) as an Electrical Fitter/Mechanic on 16 January 1995. On 3 October 1995, Ms Vendrig was appointed to a Project Officer, Building and Mechanical role in the Distribution Engineering Branch. Ausgrid operates and maintains the electricity distribution network in Sydney and the Hunter, and its employees (including Ms Vendrig), are employed under the terms and conditions of the Ausgrid Enterprise Agreement 2018 (the 'Agreement').
[2] On 21 March 2016, Ms Vendrig's role was made redundant. As a consequence, she became a redeployee and moved to Ausgrid's Career Transition Program ('CTP'). On 4 May 2020, Ms Vendrig was offered voluntary redundancy ('VR') by 30 June 2020, or she would be given notice of involuntary redundancy by 1 July 2020. Both schemes provide three weeks' pay for each of year of service. The difference between the two schemes is an additional early acceptance payment of up to eight weeks' pay for VR. On 30 June 2020, Ms Vendrig accepted VR and her employment was terminated that day. She received a total of $374,949.96 in accrued entitlements and redundancy pay.
[3] On the same day her employment came to an end, Ms Vendrig filed an application under s 739 of the Fair Work Act 2009 (the 'Act'), seeking to have the Fair Work Commission (the 'Commission') deal with a dispute in accordance with the dispute settlement procedure (the 'DSP') in the Agreement. The dispute concerns Ms Vendrig's claim that she was entitled to the payment of a Registered Professional Engineers' Allowance of $159.83 per week since November 2018, hereafter referred to as the 'NPER2 allowance' (National Professional Engineers' Registration Stage 2, Allowance) . This allowance is found in at Cl 47.2.1(h)(i)-(ii) of the Agreement, and reads:
'(h) A weekly skills retention allowance payable for all purposes.
(i) Employees who qualify for stage one competency recognised by the Engineers Australia as having completed a qualification in one of the disciplines of engineering of four years duration or equivalent in an institution recognised under the international agreement governing quality and equivalence - The Washington Accord shall be paid the weekly all purpose allowance which is frozen at the rate paid immediately prior to the commencement of this agreement.
(ii) Employees who have qualified for stage one competency (outlined in 47.2.1(h)(i) and have accreditation as a Chartered Member of Engineer's Australia (CPEng) or Registered Professional Engineer (RPEng) status or equivalent shall be paid the weekly all purpose allowance which is frozen at the rate paid immediately prior to the commencement of this agreement.
[4] Ms Vendrig calculated that further payments in relation to the above claim, totalled $19,913.32, plus $1,080.18 superannuation. This was to be paid in addition to the payments she received on 30 June 2020.
[5] Ausgrid has objected to Ms Vendrig's application on both jurisdictional and merit grounds. As to jurisdiction, Ausgrid submitted that Ms Vendrig had not followed the DSP set out in Cl 42 of the Agreement in the following respects. Clause 42(f) reads:
'(f) If an employee or employee representative notifies Ausgrid in writing that a matter is in dispute, work will proceed in accordance with the reasonable directions of Ausgrid, subject to sub-clause (g).' (my emphasis)
Clause 42.2 provides a three tiered system which must be followed. It reads:
Individual Depot/Individual work group/individual employee effect.
Resolution of the issue or dispute is sought at is source.
Employee/s concerned with Local Union delegate (if requested).
Employee Representative or Regional Delegate (if requested).
If the dispute is unresolved, escalation to Tier 2 applies after three (3) weeks from the date if the dispute was notified if unresolved, unless the parties agree otherwise.
Disputes immediately escalate to this level if the dispute relates to an organisation wide impact on employees or the employer.
(b) The dispute is unresolved or automatically escalated from Tier 1.
Resolution is sought at a corporate level with involvement of the following:
If the dispute is unresolved at Tier 2, either party can escalate the dispute to Tier 3 through applying to the Fair Work Commission.
If the issues remain unresolved after Tier 2 the matter may be referred to the Fair Work Commission for conciliation in the first place then arbitration with the rights of the parties to appeal being reserved.
The process before the Fair Work Commission must be free from industrial action.
The parties may agree that a person other than the Fair Work Commission can deal with a dispute in accordance with section 740 of the Fair Work Act 2009. In the absence of such agreement, the dispute will be dealt with by the Fair Work Commission.
Union Organiser, relevant Delegate/employee Representative and employee/s (if necessary)
Status quo may be maintained or lifted at the discretion of the Fair Work Commission. Both parties will accept the decision on status quo with the rights of the parties to appeal being reserved.
[6] It was submitted by Ausgrid that Ms Vendrig did not invoke the DSP at any time prior to her termination of employment on 30 June 2020. This meant Ausgrid had no opportunity to engage with her and seek to resolve the dispute, prior to the termination of her employment. Moreover, Ausgrid was unaware Ms Vendrig has lodged a dispute with the Commission, until the Commission issued a notification on 3 July 2020 for a conciliation conference on 14 July 2020. Ausgrid put that firstly, the applicant had not notified of a dispute in writing, as required by Cl 42(1)(f) and secondly, there was no attempt to resolve the dispute (nor could there have been) at either Tier 1 or Tier 2 in Cl 42.2. These are prerequisite steps for escalation of a dispute to Tier 3 (referral to the Commission).
[7] In accordance with my usual practice, I listed the application for conciliation on 14 July 2020. However, no settlement was able to be reached. The matter was listed for hearing on 16 September 2020, with directions issued, as to both the jurisdictional objection of Ausgrid and the merits of Ms Vendrig's claim. Notwithstanding the restriction on 'in person' hearings due to COVID-19, I determined to conduct an in person hearing due to the requirement for witness cross examination. Appropriate health and safety measures applying to NSW Courts were observed in the hearing. Ms Vendrig appeared for herself and Ms N Gao and Mr P York appeared for Ausgrid.
[8] The bulk of the material filed by Ms Vendrig went to the merits of her claim and was in the form of various documents, including letters and emails between the parties, relevant to the chronology of events prior to the termination of Ms Vendrig's employment. Although the factual chronology is largely undisputed, Ms Vendrig's interpretation of that chronology is central to her rejection of the jurisdictional objection and her views as to the merits of her claim.
[9] In determining this matter, I refer to Ausgrid's evidence to the extent it touches on the jurisdictional objection and to both parties' submissions on jurisdiction. At this juncture, I note Ms Vendrig's submissions as to jurisdiction, blur the distinction between evidence, opinion, submission and unsupported commentary. This is perhaps understandable, given Ms Vendrig's lack of legal representation (and presumably proper advice) which, in the usual jurisdictional case, is necessary in order to grapple with often complex legal and interpretative questions. Nevertheless, I am satisfied Ms Vendrig put everything she wished to say and have considered by the Commission.
[10] The following persons provided statement and oral evidence in the proceeding:
Ms Vendrig;
Mr Timothy Thorncraft - Senior Industrial Relations Adviser, Ausgrid; and
Mr David Williamson - Head of Transmission Substations and Services, Ausgrid.
[11] Ms Vendrig was referred to her email of 8 February 2019 to Rebecca Ellison, People Services Adviser, in which she seeks to have her pay reinstated as of 1 December 2018. Ms Vendrig accepted that she did not mention the word 'dispute' anywhere in the email. On 6 December 2019, she emailed the People Services Advisor, CC'ed to her Union (Professionals Australia), in which she stated, 'I wish to make an allowance claim in accordance with the Ausgrid Agreement'. She agreed that the word 'dispute' is again not mentioned. However, she believed it was an 'issue' regarding her registration status.
[12] Ms Vendrig next wrote to the Group Manager - Major Customers, Mr Kevin Smith on 7 January 2020 in which she states:
I have had made a submission for the Registered Professional Engineer (RPEng.) registration allowance in accordance with the Ausgrid Agreement 2018, clause 47.2.1 (h) ii states, "employees who have qualified for stage one competency (Engineering of 4 years duration in an institution) and have accreditation as a Registered Professional Engineer (RPEng.) status or equivalent shall be paid a weekly allowance of $159.83 per week".
However, I have received a response from HR, which states, "I have reviewed the role statement for the position you are on loan to and there is no requirement for the qualification in that position. you are therefore not eligible for the allowance".
The claim that I am ineligible was based on the CCR statement is procedurally incorrect based on the following:
1. I am on-loan as an Engineering officer. Nevertheless. I remain in my appointed original role as an Engineer. And as an appointed Engineer, I am required to hold a Professional Registration and I do possess a current registration. Hence, the following statement from HR is procedurally incorrect:
• As referred to the Agreement clause 7.1 and 7.1.2 Appendix 4 state the following employees will eligible for a Registered Engineer Allowance...Employees in the engineering stream that require a... registered professional Engineering registration for their role and obtain and hold a current registration".
The definition of "Engineering stream " in the Agreement (Appendix 4, clause 3.4),
''Engineering refers to the stream of roles, that predominantly provide technical works, planning and delivery, and engineering project management functions". This contradicts HR's claim. In addition, clauses 1. 6 and 1.7 states,
2. All employees, who have been transitioned from the previous Agreement are absorbed under the grandparenting clause. This means the CCR is only applicable to new employees, employed under the agreement. Although, the existing employees transition to the new CCR, the transitioned employees will not be worse off or lose pay due to salary maintenance; employees will transition to the CCR, based on their current Appointed Position".
Therefore, based on the above points 1 to 2, I am eligible for the Registered Professional Engineer (RPEng.) registration allowance under the Agreement.
Would you be able to clear this confusion with HR since the stage 2 allowance of $159 83 has been withheld from my pay and I have been not receiving the allowance.
[13] Ms Vendrig agreed that there is again no mention of a 'dispute' in the above email. However, she believed Cl 42 of the DSP does not require the word 'dispute' to be used. In any event, it was a dispute about her loss of pay. Ms Vendrig claimed she escalated the dispute to Tier 2 when she emailed the Acting General Manager, People and Culture, Ms Kathrina Bryan, on 3 February 2020. When Ms Gao suggested this was a year after she had first raised the issue, Ms Vendrig explained this was because People and Culture were refusing to resolve the issue and she was confused by communications that her pay was to be maintained. Accordingly, Ms Vendrig believed Tier 1 was the email to Mr Smith and Tier 2 was her email to Ms Bryan, which reads:
I wish to consider the early release VR offer. However, I have had received advice from Emma Knight (HR), which is contradictory to the Ausgrid's Agreement, rejecting my claim for the RPEng. allowance. I have attached documents supporting my claim for the Engineering allowance (RPEng.) of $159.83 per week to be reinstated in accordance with The Ausgrid's Enterprise Agreement, clause 47.2.1(h) (ii).
I have been on-loan as a Project Officer with Major Customers. However, my appointed position is "Engineer". The rejection of the claim was based on the Project officer (on-loan) job description that I am not entitled to the allowance is procedurally incorrect- see attached email to Kevin Smith dated 7/1/2020. I have requested Kevin Smith-Manager Major Customers to pursue my Claim. However, Kevin has informed me that it is taking longer than anticipated. Therefore, I am approaching you as I wish to consider the early VR, which is being offered.
Would you be able to resolve this issue to reinstate my RPEng Allowance as detailed in the attached extracts of the current Award and my supporting evidence validating my claim?
If you require any further clarification regarding my current on-loan position, please contact me and I am also available in person to discuss this matter with you sometime this week.
[14] Ms Vendrig insisted that it was unnecessary to use the word 'dispute', as Cl 42 does not require it.
[15] In respect to a further email to HR Business partner, Mr Glen Ryan on 17 March 2020, Ms Vendrig said this did not relate to the dispute and Mr Ryan 'got this one messed up'.
[16] Ms Vendrig claimed that as she had not been provided with any guidelines or training as to how to process her issue, she utilised Cl 42 of the Agreement and followed the stepped process therein. Ms Vendrig continued to assert her claim had nothing to do with the NPER2 allowance, but rather it concerned a loss of pay, her having been told 'No employee will lose pay'. She suggested it just happened that her loss of pay equated exactly to the NPER2 amount.
[17] It was Ms Vendrig's evidence that she had not seen the letter below addressed to her, dated 6 August 2018. It reads:
I am writing to you in relation to the National Professional Engineers Registration Stage 2 competency (NPER2) allowance you are currently receiving. A review has been conducted on employees who are in receipt of the NPER2 allowance and it has been identified that there is no record that confirms you have attained your chartered or registered status which is a requirement for the payment of the NPER2 allowance.
Following on from the finalisation of the Ausgrid Enterprise Agreement 2018 and several extensions of time to allow employees to obtain chartered or registered status, Ausgrid now advises that it will:
If you have obtained your chartered status or achieve chartered status before 30 November 2018 please forward your application to your Supervisor for approval and processing.
For any questions about the NPER2 allowance please contact the People Services Advisory team on [phone number provided] or at [email address provided].'
[18] Despite claiming not to have seen this letter until receiving Ausgrid's evidence for this case, Ms Vendrig agreed the letter states that if she had not advised her qualification for receiving the NPER2 allowance by 30 November 2018, the allowance would not be 'included in her salary'. In addition, Ms Vendrig agreed another email sent to her indicated that Ausgrid had no record of her SPEng and RPEng status and unless she obtained this status by 30 November 2018, the NPER2 allowance would not be included in her salary. Ms Vendrig accepted that she did not seek to clarify the meaning of this email with anyone at the time because she was confused and overwhelmed.
[19] In answer to a question from me about her Union's involvement in the matter, Ms Vendrig first said she did not raise it with the Union, but when pointed out, she had CC'ed the Union in on her emails conceded:
'Yes, towards the end, yes, that's right, yes, because I was trying to get the RPEng allowance, yes.'
Ms Vendrig was shown a timeline from her Union dated 27 November 2019 which records as follows:
Manchula was advised that her application for RPEng had been unsuccessful
Manchula sought further details on the rejection of her application for the purposes of pursuing an appeal
Manchula outlined the grounds on which she intended to appeal
Manchula provided additional supporting documents in relation to her appeal. A formal appeal process was initiated
An appeal assessor was appointed and performed a second assessment
The recommendations by the appeal assessor were found to be unsatisfactory by the RPEng assessment Committee
The RPEng Committee rejected the assessment and engaged a second appeal assessor
The outcome of Manchula's appeal was successful and RPEng (structural) was granted.
[20] In light of the above, Ms Vendrig claimed it took this long because of errors in the process, her corresponding to the Union and the Registrar, and the delays in having appeals determined. She agreed she was unsuccessful on 10 October 2018, but did not appeal for 6 weeks. In the next appeal she waited five months before lodging the appeal and claimed it was complicated. By this time, she was 3 months after the stated 'cut off' date of 30 November 2018.
[21] Ms Vendrig conceded that in an email exchange between the Union and herself in December 2019, the heading on the emails was 'RPEng Registration allowance claim'. The email of 18 December 2019 refers to an 'expiry date' and 'deadline'. However, she stated that the Union also believed that the circumstances in which she found herself, were outside of her control. She had understood that if she ultimately was granted accredited status, the allowance would be paid back. She also believed that other extensions to the 'cut off' date had been granted by Ausgrid.
[22] Ms Vendrig was referred to the letter of 4 April 2016 advising her role was redundant and what she could expect as a redeployee. She accepted the letter does not refer to her continuing to perform engineering duties. Ms Vendrig was taken to the Engineers' Coverage clause in the Agreement at Cl 47.1.2 which reads:
'An "Engineer" is an employee appointed to a position as an Engineer who receives the Ordinary Rate of Pay outlined at Appendix 1 C of the Agreement.' (my emphasis)
[23] Ms Vendrig believed that although becoming a redeployee, having been an engineer since 21 March 2016, her substantive role remained unchanged, until she exited the organisation. Moreover, she had been appointed to a temporary engineering officer's role from 12 November 2019 - 30 June 2020.
[24] Ms Vendrig was shown the preamble in Cl 17.12 of Appendix 4 of the Agreement which reads:
'17.12. Employees who have been declared redeployees as at the date of transition to the CCR Framework will transition to the CCR Framework pursuant to Clause 17 of this Appendix to a Stream, Band and Level but not to a Role.
17.12.1. Transition to the CCR Framework will not affect their redeployee status;
17 .12.2. Their existing pay will continue to apply pursuant to Appendix 5 (Redundancy, Redeployment and Salary Maintenance) of this Agreement;
17.12.3. The progression and promotion provisions under the CCR Framework set out in Clause 11 and Clause 12 of this Appendix will not apply to redeployees;
17.12.4. The employee will no longer be considered a Reclassified Employee; and
17.12.5. Clause 17 of this Appendix will no longer apply to the employee.' (my emphasis)
Ms Vendrig understood that she would not be assigned to an Engineering role, because 'I'm a redeployee'.
[25] As to the jurisdictional objection, Mr Thorncraft gave evidence as follows:
(a) The Respondent's dispute settlement procedure is outlined in clause 42 of the Agreement (DSP).
(b) The DSP is distinct from a general enquiry submitted by an employee to the Respondent's People Services Advisory (PSA) team or HR Business Partners (HRBPs). In my view, submitting a general query to the PSA team or HRBPs is not the equivalent of filing a dispute under the DSP.
(c) The PSA team was established around 2017 as an employee facing service to handle day to day queries relating to people, processes and the Agreement. It is the Respondent's first level of support to employees and deals with simple employee questions. More contentious or complex questions regarding employment are escalated to a HRBP or SHRBP.
(d) In my experience, when an employee intends to utilise the DSP, the employee very clearly identifies that a matter is in dispute.
(e) Disputes do not come out of the blue. A dispute is usually born out of a significant issue or a process already in place and normally follows a period of discussion at a local level between an employee and their supervisor.
(f) Employees notify the Respondent of a dispute when they are challenging a decision by either writing to their supervisor, line manager or to a HRBP. Typically, employees notify a dispute with the assistance of a union that is familiar with the DSP.
(g) When an employee is very clearly challenging an issue, the HRBPs and PSA team have a process in place to confirm whether the employee is placing that issue in dispute. This is because the Human Resources team is mindful of issues arising from disputes, such as maintaining the status quo, as opposed to a general grievance process.
(h) In response to paragraphs 17 to 22, 26 to 27, 29 to 35, and 37 to 41 of the Applicant's Statement, I consider these relate to a number of enquires that the Applicant made about various elements relating to her employment. The Applicant's questions range from querying the removal of the NPER2 allowance after the Cut-Off Date, the changes to her position title during the on-loan arrangement and her requests to be paid the NPER2 allowance. In my view, these exchanges are not an escalation of a dispute, as correspondence relating to disputes are typically allocated to a HRBP or a member of the Employee Relations team to manage.
[26] In cross examination, Mr Thorncraft denied Ms Vendrig's assertion that the NPER2 allowance had been abolished since 1 December 2018 and that no staff were entitled to it. He said that an equivalent allowance is continuing under the Agreement for employees who are eligible for it. Mr Thorncraft said he did not mention anything in his statement about the grandparenting clause, because it was not relevant.
[27] Mr Thorncraft referred to his statement at para 17 where he said:
'17. In response to paragraphs 24 to 28 of the Applicant's Statement, the Applicant maintained the title of the Redundant Role effectively as a classification. In my view, it appears that the responses provided by Ms Melinda Hutovic, People Services Advisor, to the Applicant's questions were to confirm that the Applicant:
a. did not cease being an Engineer by skill set; and
even if she was performing an Engineering Officer role for a period of time in an on loan arrangement'.
[28] Mr Thorncraft explained that as at the Transitional Arrangement in 2018, 234 employees had yet to obtain either CPEng accreditation or RPEng status, including 11 redeployees. Of this latter group, 5 redeployees obtained accreditation or status, before the 'cut off' date, 3 left the business with VR prior to the 'cut off' and 3, including Ms Vendrig, had not achieved accreditation or status and therefore the NPER2 allowance was removed.
[29] Mr Thorncraft was asked about various comments in reference to 1.6 and 1.4 of Appendix 4 of the Agreement, that no employee will lose pay at the point of transition to CCR. He agreed Ms Vendrig's classification was Engineering Band 2, Level 3, D2, with an ordinary rate of pay of $134,774 p.a. as at 30 November 2018. He acknowledged that no one would lose pay on transition to CCR.
[30] Mr Wilkinson was asked questions in cross examination about the qualification required for appointment to NPER1. He understood it required a 4-year engineering degree and for the person to be a member of Engineers Australia.
[31] Mr Wilkinson reaffirmed that the applicant was linking the NPER2 allowance to her pay, when they are two different things. He explained that the NPER2 allowance was replaced on 1 December 2019 by the Qualified Electrical Safety and Chartered Registered Engineer ('QESCRE') allowance. He said that:
'The NPER2 allowance was paid if you became accredited as a chartered professional engineer of Engineers Australia or you became a registered professional engineer through Professionals Australia. If you received that accreditation before the date, you were paid, and within the area that I was responsible for, if you received that accreditation after, after you've been through that appropriate period, you then received that payment after you were accredited.'
[32] Ms Gao relied on the following passage from National Tertiary Education Union v Charles Sturt University [PR963494] ('Charles Sturt'):
'[14] We admit the evidence received by us conditionally during the hearing of the appeal. It is unnecessary to recount this evidence in detail. So far as clause 58.1 is concerned, the evidence established that no dispute committee had been convened. So far as clause 58.2 is concerned, the evidence established that the four steps specified in clause 58.2 had not been completed. This is unsurprising. The NTEU was confronted with a situation where it was advised of the decision to terminate the employment of Dr Inglis on the day that the decision was to take effect. The relevant NTEU official made a flurry of phone calls seeking the agreement of the University to postpone the termination. She was rebuffed and the NTEU notified the dispute, concerned that it needed to do so before the termination took effect. Nevertheless, on any view, neither the procedure in clause 58.1 nor the procedure in clause 58.2 had been followed before the matter was referred to the Commission.
[15] It follows that the Commission has no jurisdiction under clause 58.5 unless that condition precedent to referral has been satisfied. Given our finding that the procedure in clause 58.2 had not been followed, the Senior Deputy President had no jurisdiction to conduct a private arbitration pursuant to clause 58.5 in relation to the dispute. We note again that the point on which the University has succeeded is not one that was taken before the Senior Deputy President. We grant leave to appeal. The appeal must be allowed and the decision and orders of the Senior Deputy President must be quashed. A formal order to this effect will issue in conjunction with this decision.'
[33] Ms Gao submitted that like the Charles Sturt decision, Ausgrid's DSP sets out a three-tiered system which must be followed at Tiers 1 and 2, before Tier 3 permits referral to the Commission. Ms Vendrig had not complied with Tiers 1 and 2 and therefore could not now claim to have complied with the DSP.
[34] Ms Gao put that a 'dispute' is not the same as general employee inquiries. None of Ms Vendrig's documents refer to a dispute or that her inquiries were being escalated as a dispute. Further, the issue raised by Ms Vendrig was not properly characterised, or understood by Ausgrid to be a dispute under the DSP in the Agreement. In addition, Ausgrid had no opportunity to respond to, or attempt to resolve the 'dispute' at the workplace level before her employment ended on 30 June 2020.
[35] Ms Vendrig claimed she was entitled to notify a dispute under Tier 3, as she had followed Tier 1 on 6 December 2019 by raising her dispute with Ms Knight and Mr Smith. On 3 February 2020, it 'automatically escalated' to Tier 2 when she raised the dispute with Ms Bryan, Mr York and Mr Ryan. Ms Vendrig submitted that Cl 42(f) of the Agreement only requires a dispute to be notified in writing if Cl 42(g) applies in relation to the status quo being invoked. The is no earlier reference to a dispute being required to be notified in writing. Ms Vendrig believed that Ausgrid always understood her issue was a dispute about her pay being reduced and they had responded accordingly.
[36] In oral submissions, I raised with Ms Gao the apparent ambiguity in the DSP by the interchanging of words 'dispute' and 'issue'. Ms Gao agreed, but relied on Mr Thorncraft's evidence as to the general understanding in the business as to how disputes are raised and processed. At no point, did Ausgrid understand the DSP was invoked by Ms Vendrig or the Union.
[37] For the following reasons, I have some doubt that the DSP in the Agreement has been followed by Ms Vendrig in this matter.
(1) There must be question of Ms Vendrig's bona fides in filing this dispute notification on the very day her employment with Ausgrid came to an end, and she accepted large termination pay out. At no time did she notify Ausgrid she had lodged this dispute, which is contrary to the Commission Rules.
(2) What was conveniently ignored were the words in Cl 42.1.1(c) - Objectives of the DSP:
'that disputes are resolved in a timely and efficient manner without unnecessary delay by any party'
On any objective analysis, it could not be said that the 'dispute' was resolved in a timely or efficient manner. Ms Vendrig has been agitating her issue, on her submission, when she said Ausgrid had ample opportunity (almost 1.5 years) to resolve the matter prior to 30 June 2020. Ausgrid's position was clear and unequivocal. I reject Ms Vendrig's claim that she was confused and overwhelmed. Her communications to Ausgrid do not reveal these characteristics; in fact, to the contrary, her written communications make it abundantly clear what she is seeking and why she believes she is entitled to claim the NPER2 allowance. She knew Ausgrid's position and her view was steadfast. In these circumstances, it was not for Ausgrid to resolve the issue, (which it was never going to do unless resolution meant caving into her claim), but for Ms Vendrig to process the matter quickly and efficiently. She failed to do so. Moreover, she did not appear to be too concerned in meeting the 18 December 2018 'cut off' to obtain accreditation or status after seeking to do so, and being refused and waiting weeks and months to appeal, effectively, ensuring the 'cut off' would pass.
(3) I accept Ms Gao's submission that management was neither told, nor could it be inferred, that Ms Vendrig was formally progressing her issue through the DSP and had no opportunity to formally respond to each step in the DSP, or at all. The first Ausgrid knew there was a dispute was when the Commission listed the matter after the applicant's employment had been terminated.
(4) In the latter period of 2019, Ms Vendrig was communicating with and seeking advice from her Union. It beggars belief that if Ms Vendrig was intending to process her issue through the DSP, that the Union would not have been involved at least at Tier 2 and formally invoked the DSP.
(5) There is some validity to Ms Gao's submission that Ms Vendrig had been agitating for a long time about general claims and asking questions about her claim for the NPE2 allowance.
(6) This claim was always one which could have been progressed as an underpayment claim in a Court of competent jurisdiction.
(7) Ms Vendrig's jurisdictional submission is confusing and difficult to understand in a number of respects, such as:
(a) Her references to no industrial action and status quo. These matters are irrelevant.
(b) She did not raise Ausgrid's lack of compliance itself with the DSP.
(c) Assuming Ausgrid was aware her issue was a dispute, does not address its DSP compliance.
[38] That said, as I mentioned earlier, while Ms Gao forensically examined all of Ms Vendrig's communications to establish that the word 'dispute' was never mentioned, the DSP itself uses the word 'issue' interchangeably with 'dispute' in Tier 1 and at Tier 3, whereas curiously in Tier 2, there is no reference to 'issue/s'. Given Ms Vendrig was unrepresented and not legally trained, I am prepared to accept, albeit on a fine balance, that Ms Vendrig was entitled to regard her 'issue' as being able to be progressed through the DSP. As an aside, I recommend that Ausgrid address the wording of the DSP to clarify the words which were the subject of controversy in this matter.
[39] Despite by doubts as to the jurisdictional competence of the application, I am prepared to accept the Commission has jurisdiction to determine the matter. In any event, I can readily dispose of this application on its merits. It is to the merits that I now turn.
[40] In addition to the written submissions which I have taken into account, the parties summarised their merit arguments in the proceedings.
[41] Ms Vendrig submitted that from 1 December 2018 to 30 June 2020, Ausgrid had underpaid her the equivalent of the amount of the loss of the NPER2 allowance. Ausgrid had deliberately tried to confuse the issue to avoid resolving it.
[42] Ms Vendrig insisted that when she became a redeployee, her salary was maintained, which included the NPER2 allowance. When Ausgrid abolished the NPER2 allowance on 1 December 2018, without compensation, it ignored the facts that a replacement allowance (QES and CRE) applied to remaining employees, whose position was 'grandparented' on transition. Ms Vendrig believed this was 'a full infringement' of the Agreement and Cls 1.6 and 1.7 of Appendix 4 of the Agreement.
[43] Ms Vendrig sought orders from the Commission that Ausgrid pay the outstanding amounts she was entitled to under the Agreement.
[44] Ms Gao traced the history of the matter from when Ms Vendrig had received the NPER2 allowance as an Engineer before she transitioned under the Transitional Agreement which permitted the continuation of the NPER beyond a 'cut off' date of 30 November 2018, only if the employee obtained CPEng and RPEng status prior to that date. It is not disputed that Ms Vendrig failed to obtain this accreditation before the 'cut off' date. Ms Gao put that Ms Vendrig knew, our ought to have known, of the consequences of failing to do so, as the documentary evidence clearly demonstrated. Further, Ms Vendrig must have known the consequences of her failing to do so and she had been given more than sufficient notice of what was required. Ms Vendrig unreasonably delayed appealing the rejections of her applications and did not seek advice from her Union for more than a year after the 'cut off' date.
[45] Ms Vendrig wrongly attempted to reposition the dispute as being about 'grandparenting' and salary maintenance when throughout her communications, she consistently put that her issue was Ausgrid's failure to give her the NPER2 allowance. The allowance never formed part of her maintained salary; rather, Ms Vendrig never met the eligibility for the allowance under Cl 47 of the Agreement, and was never paid the allowance, pursuant to the Agreement. In addition, Ms Vendrig failed to meet the eligibility requirement under the Engineers' Transitional Agreement.
[46] Ms Gao submitted that Ms Vendrig's claim that she was an engineer was contradictory and fictitious. She did not contest that her substantive role was made redundant in March 2016, when she became a redeployee with the relevant arrangements applying to her. She was never permanently appointed to the position of Engineer since that time. Further, when she transitioned to the CCR framework, she was not appointed to a role which required engineering accreditation and which triggered eligibility for the allowance, be it the NPER2 or the QES and CRE allowances. Lastly, Ms Vendrig did not qualify for progression under the engineer's progression clause, because she was a redeployee and not an appointed engineer.
[47] In my view, Ms Vendrig has no entitlement to the NPER2 allowance as she had not obtained her 'chartered or registered status' by 30 November 2018. She was advised of this requirement on 6 August 2018 in a letter she claims she had not received and did not see until 26 August 2020 (in Ausgrid's evidence). I reject Ms Vendrig's evidence that she did not receive this letter. It was very convenient for her to claim she was unaware of this clear and unequivocal requirement, because it undermines all her later claims over two years, that she was confused and no one explained to her why the allowance was removed.
[48] The facts were that Ms Vendrig did not obtain the requirements to be eligible for the allowance and she knew and understood this to be the case. Her continued agitation of the issue, despite being told on numerous occasions she was not eligible, was simply an irresponsible unwillingness to accept the reality. Then, when all her protests were being met with the same response, she deliberately and mischievously waited to her last day of employment to lodge a dispute in this Commission in an attempt to have the Commission grant her an entitlement to which she was not, and never was entitled to from 30 November 2018.
[49] If the position was not pellucidly clear, one need go no further than Cl 47 of the Agreement which deals exclusively with Engineers. Cl 47.1.2 describes Coverage as:
'An "Engineer" is an employee appointed to a position as an Engineer who receives the Ordinary Rate of Pay outlined at Appendix 1 C of the Agreement.'
[50] CL 47.3.2 'deals with Engineers' progression and accreditation and reads at 47.3.2 in respect to Band 2 Progression states at (e)(i) and (ii):
'(e) To progress from band 2 Level 3 to band 2 Level 4 an Engineer must be able to demonstrate:
(i) satisfactory PDS results for four consecutive years at band 2 Level 3,and
(ii) that they have gained accreditation as a Chartered Member of Engineer's Australia (CPEng) or Registered Professional Engineer (RPEng) status or equivalent.'
[51] Firstly, Ms Vendrig, at the relevant time, was not appointed to a position as an Engineer, as she was a redeployee. True it is she retained her substantive position as an Engineer, but this was nominal, in the sense that her ordinary rate of pay was preserved. This was what 'grandfathering' was all about. Clause 17.12 of Appendix 4 further makes this position abundantly plain:
'17.12. Employees who have been declared redeployees as at the date of transition to the CCR Framework will transition to the CCR Framework pursuant to Clause 17 of this Appendix to a Stream, Band and Level but not to a Role.
17.12.1. Transition to the CCR Framework will not affect their redeployee status;
17.12.2. Their existing pay will continue to apply pursuant to Appendix 5 (Redundancy, Redeployment and Salary Maintenance) of this Agreement;
17.12.3. The progression and promotion provisions under the CCR Framework set out in Clause 11 and Clause 12 of this Appendix will not apply to redeployees;
17.12.4. The employee will no longer be considered a Reclassified Employee; and
17.12.5. Clause 17 of this Appendix will no longer apply to the employee.'
[52] Ms Vendrig misunderstands the dichotomy between appointment as an engineer and her position as a redeployee. Moreover, she cannot rely on being appointed to a temporary engineering officer's role from December 2019 - June 2020, as this expressly was not an appointment to an engineering role under the Agreement.
[53] Secondly, Ms Vendrig had not gained the necessary accreditation to progress to Band 3 as required by Cl 47.3.2(e).
[54] In my view, Ms Vendrig's continued insistence that she was confused and overwhelmed by the communications from Ausgrid about her CPEng and RPEng status and Ausgrid's commitment that as no-one will lose pay on transition (grandparenting), was little more than a clever word game to disguise the circumstances Ms Vendrig knew to be true.
[55] In any event, Ausgrid had not reduced her pay on transition. It had complied with the Agreement and its commitment that no one would lose pay. Despite Ms Vendrig claiming this amounted to a loss of pay, it was no such thing. In employment jargon, rates of pay are ordinarily understood not to include allowances, unless expressly stated, a fortiori where here a rate of pay expressly excluded the inclusion of the NPRE2 allowance if the employee does not qualify. This was precisely the circumstances Ms Vendrig was in and no amount of silly, misleading word games alters that fundamental truth.
[56] Ms Vendrig tripped herself up when in questioning from me about her Union's involvement, the following exchange occurred:
'Deputy President: I thought I saw some correspondence between the Professionals Association and you?
Ms Vendrig: Yes, towards the end, yes, that's right, yes, because I was trying to get the RPEng allowance, yes.
Deputy President: You are now calling it 'allowance' when you said it's 'pay'?
Ms Vendrig: It is the pay, yes, that's correct, sorry, your Honour, I was - sorry, it's the pay, yes.'
[57] In any event, Ms Vendrig's arguments were entirely undone when her evidence was she had not received her registration 'which I was trying very hard to get because it was an appeal process and I did not apply on time for that registration'. Ms Vendrig is not an unintelligent person. She knew exactly what was required to retain the allowance and was actively taking steps to do so, from 27 June 2018 through to 23 October 2019. She acknowledged she missed the 'cut off' date. I note, lest it be lost in the telling, that Ms Vendrig had waited six weeks before appealing the first rejection of her application and five months after the second rejection.
[58] Regrettably, Ms Vendrig is the architect of her own misfortune and her attempts to now try and justify an entitlement which did not exist, and in circumstances where she was less than diligent, cannot be accepted.
[59] Lastly, I note that of the 11 redeployees who were not eligible to retain the NPER2 allowance, 5 obtained their qualifications by the 'cut off' date, 3 left the business with VR before the 'cut off' and 3, including Ms Vendrig, had not achieved accreditation or status by the 'cut off' and the NPER2 allowance was removed from salary. In other words, Ms Vendrig was in the same position as two other employees and was treated no differently to them.
[60] For the aforementioned reasons, the application filed by Ms Vendrig on 30 June 2020 has no merit. The application must be dismissed. I so order.
Ms N Gao and Mr P York appeared for the respondent.
Printed by authority of the Commonwealth Government Printer
Manchula Vendrig
Ausgrid Pty Ltd [2020] FWC 6278