Mr Jeffrey Vassallo v Easitag Pty Ltd [2018] FWCFB 501

(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.

[16] In their agreed statement of facts, the parties concurred that Mr Vassallo's duties as a technician include the following:

installing surveillance systems;

tuning these systems, using specialised software;

receiving and responding to calls from head office;

attending customer premises and conducting site surveys;

providing training to staff of clients on how to operate the systems;

running cables from the power pack to the surveillance system - specialised tools are provided by the employer for this purpose;

• conducting service calls - the majority of Mr Vassallos' jobs have been service rather than installation calls.[9]

[17] Mr Vassallo contended that the work he performs is of a much higher level than grade 4. In the course of argument before us, Mr Vassallo submitted that the grade 4 classification is equivalent to a trainee role. Although the grade 4 classification does not refer to trainees, Mr Vassallo points to clause B.2.4(b), which states that an employee at this level 'must not undertake tasks requiring the skills of a tradesperson'. Mr Vassallo contends that he possesses and uses the skills of a tradesperson, and therefore cannot fall within the grade 4 classification. In our view, this gives too broad a meaning to clause B.2.4(b). The clause is intended to prohibit a grade 4 from undertaking work that must be performed by a qualified tradesperson. It is directed at regulatory issues, rather than providing for a strict demarcation between a grade 4 and tradesmen; the latter would constitute a disincentive for grade 4 level employees to develop and apply new skills, and is unlikely to have been intended.

[18] Mr Vassallo contended that the descriptors in grade 4 do not match his day to day work. He does not undertake scaffolding or rigging, and is not in charge of an electrical store, as contemplated by B.2.4(a)(i).

[19] In respect of the work covered by B.2.4(a)(ii), Mr Vassallo submitted that he does not work 'under the minimum supervision of a tradesperson or electronics supervisor' (or indeed under any supervision), and is therefore not covered by this limb of the classification. In this regard, Mr Vassallo contended that he is the sole employee in Victoria. The Commissioner rejected Mr Vassallo's contention that he worked with no oversight at all. He had at all times immediate access to his supervisor, the National Technical Service Manager in Brisbane, and did, in the Commissioner's assessment, work subject to minimum supervision. We agree with this assessment.

[20] It was further contended by Mr Vassallo that sub-clause B.2.4(a)(ii) does not cover service call-outs to stores, which constitute a large part of his work. However, the clause does cover inspections and tests for security alarms. It appears to us that significant aspects of Mr Vassallo's role are covered by the grade 4 classification.

[21] More generally, Mr Vassallo contended that he performs work of a highly specialised and technical nature, including the service and repair of the surveillance systems he installs, and that his work is properly to be classified at the highest level in the Award's structure, grade 10.

[22] However, in our opinion it is quite clear that Mr Vassallo's employment with the company is not covered by the grade 10 classification. To fall within grade 10, an employee must have 'successfully completed an appropriate Associate Diploma, an AQF Advanced Diploma, or their formal equivalent'. Mr Vassallo does not have either type of diploma, nor does he possess any formal equivalent. Before the Full Bench, Mr Vassallo advanced an argument that 'formal equivalent' refers to something other than a qualification; that it contemplates the possession of skills and experience, knowledge or other practical attributes that are equivalent to what might be attained through gaining a diploma. This argument must be rejected.

[23] First, there is nothing 'formal' about the alternative for which Mr Vassallo contends. On his argument, grade 10 allows rather for an informal equivalent to the formal qualifications mentioned in B.2.10(a)(i) and (ii). This is contrary to the plain words of the provision; there must be a formal equivalent. Secondly, the descriptor for grade 7 (but conspicuously not for grade 10) refers, as an alternative to certain formal qualifications, to a requirement that the employee have 'acquired the same standard of skills through other means including a minimum of two years' experience in the industry.' This is how Mr Vassallo endeavours to interpret the words 'formal equivalent'. However, if this had been what the makers of the Award intended for grade 10, they could have repeated the same clear words used in the context of grade 7. Thirdly, the classification descriptor for grade 10 refers at its commencement, to an employee who has 'successfully completed' the diplomas or their formal equivalent. This language speaks to qualifications, not practical experience and skills. Skills and experience are developed and acquired, not 'completed'. Sub-clause (iv) refers to skills, but this contains a new sentence that has left the words 'successfully completed' behind it. In any event, as is evident from the word "and" at the end of sub-clause (iii), the skills component is additional to the requirement that the employee has "successfully completed" the "formal equivalent" of either qualification enumerated in sub-clauses (i) and (ii).

[24] Mr Vassallo argued before us that the exercise of establishing an employee's correct classification requires the Commission to match the employee's role to the work covered by the classification descriptors. So much is true, but this is not necessarily the end of the task. Classifications frequently identify qualifications that an employee must possess in order to fall within the relevant grade. Electrical Worker Grade 10 is such a case. These qualification requirements cannot simply be ignored, as Mr Vassallo appeared to contend as an alternative to his submission on the meaning of 'formal equivalent'.

[25] The Commissioner set out in her decision Mr Vassallo's clear acknowledgement under cross-examination that he did not possess an associate diploma or an AQF advanced diploma, nor any formal qualification similar to such diplomas. She considered an academic transcript from RMIT tendered by Mr Vassallo, indicating that he had completed certain modules of training, but showing no final degree or diploma. She was not satisfied, rightly in our view, that what Mr Vassallo had produced constituted a 'formal equivalent' to the relevant diplomas.

[26] Moreover, the Commission found that, irrespective of whether Mr Vassallo possessed the requisite qualifications (which he did not), his position did not require the exercise of a qualification of the kind referred to in the grade 10 classification descriptors, this being a further requirement for a grade 10.[10] In this connection, she accepted the evidence of Mr Debney (Company Director) in respect of the purpose for which Mr Vassallo was employed, the nature of his work and the duties he was required to perform. We do not identify any error in this regard.

[27] Mr Vassallo contended that the Commissioner's conclusion was contrary to s.739(5) of the Act, which provides that the Commission must not make a decision that is inconsistent with the Act, or a fair work instrument (in this case, an award). In essence this contention is simply that the interpretation of the Award adopted by the Commissioner was wrong, and that she should have accepted his argument that the correct classification covering his employment was grade 10. For the same reasons set out above, this submission cannot be accepted.

[28] Mr Vassallo submitted that the Commissioner's decision was contrary to the Victorian Occupational Health and Safety Act. The argument seemed to be that, if he is a grade 4 employee as the Commissioner found, he is in effect a trainee and is not being properly supervised. We do not see any merit in this submission. Grade 4 is not concerned with trainees, and we were not otherwise persuaded of any contravention of this or any other legislation.

[29] We perceive there to be some merit in Mr Vassallo's argument that the grade 4 classification is not entirely in keeping with the standing of the work he performs. However, the question that the parties asked the Commissioner to determine in their consent position document was whether Mr Vassallo should be classified as grade 4 or grade 10. She was not asked to consider whether any other classification might be applicable. This fact has jurisdictional significance. Section s.739(1) applies only if a term referred to in s.738 (including a term in an award) 'requires or allows' the Commission to deal with a dispute. Section 739(4) states that, if, in accordance with the term, the parties have agreed that the Commission may arbitrate, it may do so. The Commissioner's authority to arbitrate the dispute derived from the consent of the parties. As noted above, the Award states that the parties may agree to consent arbitration. The Commissioner carefully confirmed with the parties the scope of their consent: they referred to her the question of whether Mr Vassallo was a grade 4 or a grade 10.

[30] Had the dispute been more broadly framed, it would have been open to the Commission to consider whether other classifications might more appropriately cover Mr Vassallo's employment. In this connection, we note that grade 5 covers an employee who has 'successfully completed an appropriate trade course or who has otherwise reached an equivalent standard of skills and knowledge in communications / electronics' (emphasis added).[11]

[31] The Commissioner's approach to the interpretation of the Award was correct. She determined the dispute referred to her under the disputes procedure in the Award, in accordance with that term and within the scope of the parties' consent to arbitration. We do not identify any error on the part of the Commissioner in the conduct of the proceeding or her analysis and determination of the dispute before her.

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

Mr Jeffrey Vassallo v Easitag Pty Ltd [2018] FWCFB 501 (24 January 2018)

Parties

Legislation Cited (1)

Cases Cited (5)