s.739 - Dispute resolution

Dispute arising under enterprise agreement - higher duties allowance - dispute determined

• [1] The Australian Workers' Union (AWU) has referred a dispute to the Commission for determination under s 739 of the Fair Work Act 2009 (Act) and the dispute resolution procedure in clause 34 of the Compass Group & Australian Workers' Union ESS Offshore Oil & Gas (Victoria) Enterprise Agreement 2021 (Agreement). The respondent to the application is Compass Group (Australia) Pty Ltd (Compass), which operates a catering business that provides food and cleaning services to clients, including on offshore platforms operated by Esso in Bass Strait. The AWU represents employees of Compass who are employed as utilities on these platforms. 'Utility' is one of three classifications covered by the Agreement, the other two being, in ascending order by rate of pay, 'chef' and 'chef supervisor'. There are no classification descriptors in the Agreement. All employees undertake duties relating to both food and cleaning services, however in very general terms, the chef supervisor is responsible for the planning and delivery of the food service, the chef prepares meals and runs the kitchen, and the utility performs a variety of tasks including cleaning, kitchen work and cooking.

• [2] The dispute concerns the meaning and application of the higher duties provision in clause 8 of the Agreement, which provides as follows:

'An Employee engaged for more than two hours, during one day, on duties carrying a higher rate of pay than the Employee's ordinary classification, must be paid the higher rate for the whole day. Otherwise the employee must be paid the higher rate for the time so worked.'

• [3] The AWU contends that Compass has failed to make higher duties payments to utilities who work alone on night shift. It submits that on these shifts utilities perform the higher duties of a chef for over two hours, and that they should be paid higher duties for the entire shift. Compass contends that utilities are not entitled to higher duties payments on these shifts because they are not required to perform the duties of a chef but instead perform the kitchen and cooking work of a utility.

• [4] The parties disagreed about the formulation of the question that would be submitted to the Commission for determination in order to resolve the dispute. The dispute was originally cast in somewhat general terms. After hearing from the parties, I determined that the dispute would be resolved by answering the following question:

'Based on evidence that will be adduced by the AWU as to particular utilities having performed particular duties at particular times, are those utilities entitled to higher duties under clause 8 of the Agreement in respect of those duties performed at those times.'

• [5] Dalzon Separovich is a utility employed by Compass. Before joining Compass, he worked for many years as a chef. Mr Separovich works 12-hour night shifts on offshore platforms from 7.00pm to 7.00am. Mr Separovich did not recall being given a position description for his role as a utility but produced a current company job description. In respect of food work, the document states that the utility will do the following: 'Assist with preparing and presenting food: adhere to site food safety plan; assist with vegetable and salad preparation; portion and plate food; prepare food for service.' Mr Separovich said that the document probably aligned with what a utility on day shift might do, but that it did not reflect all of the duties that he performs when working alone on night shift.

• [6] Mr Separovich said that each year there are some 9 to 10 swings (i.e. 2-week off-shore deployments) when he works alone and unsupervised on night shift and that on these shifts he is responsible for cleaning, cooking and the full running of the kitchen. He attached to his witness statement a two page document that he had prepared, exhibit DS2, setting out the tasks that he undertakes on a typical night shift working alone. In relation to the preparation of food, this included the following:

• prepare salads for 'smoko' (break), lunch and dinner;

• prepare condiment tray, cheese platter, meat platter and food platter;

• prepare and serve 'hot smoko' and open the 'cold smoko';

• prepare, cook and serve the midnight meal (from 11.30pm to 11.55pm);

• preparation work for salads, condiments, meat / cheese / fruit platter, such as cutting cheese and sliced meats, peeling fruit and cooking pasta (from 12.30am to 4.30am);

• preparation work for a hot breakfast - sorting bread tubs, preparing fruit, preparing or making Bircher muesli, sorting the docket for meals for an 'a la carte breakfast', slice up sweets, cook meals for breakfast, preparatory work for salads, condiments, meat / cheese / fruit platter; cook noodles, couscous, potatoes and pasta.

• [7] Mr Separovich said that in his opinion these duties were the same as those that a chef working night shift would perform. He said that duties involve more than just putting together things that have been prepared, and that it was unfair to say, as the company did, that this was just basic cooking.

• [8] Mr Separovich said that he would spend around 30 minutes preparing the evening smoko. This would involve making food such as pizzas (although not the dough), wraps, toasted sandwiches, and bruschetta. He would spend 30 minutes on the midnight meal preparing steak, roast chicken or lamb souvlaki, Thai beef salad, chicken parmigiana and fried rice. He spends 90 minutes on breakfast making poached and scrambled eggs, bacon and egg muffins, toasted wraps, sausages and hashbrowns, grilled tomatoes and mushrooms, porridge and fruit salad. For 30 minutes throughout the shift he works on salad preparation, and for a similar time he works on preparing meat and cheese platters. He spends 15 minutes on dessert platters. He said that all up, he would spend 2 to 3 and a half hours doing such duties.

• [9] Mr Separovich gave evidence of the work that he does on certain types of meals. He said that he will crumb and fry squid and chicken. He will grill chicken for a warm salad and drizzle it with vinegar and oil. He will prepare wraps and cook bacon and eggs. He will poach eggs. Mr Separovich attached to his statement photographs of food that had been prepared by utilities on night shift which appeared to show pancakes cooking on the stove top, eggs and bacon, fried mushrooms in the pan, bain-maries with an assortment of beans and vegetables, wraps, fresh vegetables and fruit, schnitzels, calamari, and Greek salades.

• [10] Mr Separovich said that he believed the work that he performs working alone on nightshift was very similar to that of a chef, and that he had submitted claims for higher duties allowance in respect of such shifts, but on each occasion they had been rejected by management. Mr Separovich attached to his statement 8 applications for payment of higher duties allowance for 3 hours of work on such nights shifts, which if accepted would have entitled him to higher duties for the entire shift. The claim forms relate to each of the night shifts Mr Separovich worked from 9 to 14 April 2024; 15 to 21 April 2024; 6 to 12 May 2024; 13 to 19 May 2024; 3 to 9 June 2024; 10 to 16 June 2024; 1 to 7 July 2024 and 8 to 14 July 2024. Each claim form has been signed by a manager.

• [11] Mr Separovich said that he was aware that some utilities refused to do the food preparation work that he undertakes, and that casual relief workers had told head office that they are not able to do these things. Mr Separovich said that he believes that head office does not choose just any utility to work night shifts alone, and that chef supervisors will liaise with the office to ensure that they are sent a worker with skills such as his.

• [12] Mr Separovich said that there had been many occasions when he had been rostered to work shifts at the higher level of chef or chef supervisor, in respect of which he had been paid the higher duties allowance under clause 8 of the Agreement. However, he has not been paid higher duties allowance for night shifts working alone when in his opinion he performs a significant amount of work that are the duties of a chef. He said that such work takes around 3 hours to 3 hours and 45 minutes.

• [13] Adam Meester is a chef supervisor employed by Compass. Mr Meester gave evidence that he believes Compass has adopted a practice of using night utilities to perform a dual role covering the work of a chef, and that in his opinion, where utilities work night shifts alone, they are expected to perform the duties of a chef. Mr Meester said that in his experience the duties being performed by the night utility require a culinary qualification and skill level, and that he had also seen a recent Compass job advertisement that stated that chef or baker qualifications were preferred. The advertisement attached to Mr Meester's statement pertains to multiple available 'hospitality vacancies', working offshore.

• [14] Mr Meester said that if a utility is 'sent out as night chef' before commencing their shift, they received higher duties allowance, but that people like Mr Separovich, who are rostered as night utility but do tasks that a night chef would perform, are not paid the higher duties allowance. He said that on numerous occasions he had signed timesheets to facilitate payment of higher duties allowance for utilities who had performed chef duties on night shift but senior management has not approved them. Mr Meester attached to his statement his correspondence from mid-2024 with the operations manager, Matthew Harman, about the cooking work that is performed by utilities, in which Mr Harman stated that it was not uncommon in the catering industry for less complex tasks to be delegated to an unqualified assistant such as a utility - he cited preparation of salads, cooking eggs, bacon and toast - which would not attract higher duties allowance. However, Mr Meester said that he believed that Compass was downplaying the high-level work being performed by utility workers and that the duties they undertake require a high standard of cooking and meal preparation. Mr Meester also said that utilities working alone on night shift were unsupervised, although they did receive instruction on handover from the chef supervisor on the previous shift.

• [15] Daniel Hunt is a chef employed by Compass. Mr Hunt gave evidence that on a typical night shift he would work with at least one utility, and he would do the cooking, while the utility may provide some help and then go back to their utility role. He said that if there is no night chef, the night utility takes on responsibility for running the galley. In such cases, the utility would prepare the midnight meal and cook breakfast and the smoko. He said that for breakfast, the utility could end up cooking for as many as 28 people. Mr Hunt said that the previous owner of the business, Sodexo, had an enterprise agreement that contained a fourth classification, that of night cook, which was between utility and chef, but that unfortunately the Compass Agreement did not contain such a classification. He said that in his opinion night utilities were 'short changed'.

• [16] Matthew Harman is employed by Compass as its operations manager for Bass Strait. He has previously worked as a chef supervisor for Compass, and as a chef on various offshore platforms for another company. He is a qualified chef and has worked in the food sector for nearly 40 years. Mr Harman said that the number of Compass employees working on a given offshore facility at a given time depends on the number of personnel on board the facility and the relevant manning requirements. When there are 28 or fewer persons on board, there are 5 or fewer employees working on the night shift. In such cases, Compass will roster one chef supervisor on day shift, and one utility who works night shift.

• [17] Mr Harman said that all Compass employees have duties involving food and cleaning, and that the proportion of these is affected by the manning requirements. Where there are only two Compass employees on board, the utility will perform both food and cleaning duties. He said that it was not unusual for there to be only one catering employee on a shift for an offshore facility when there is a low number of persons on board. The night shift runs from 7.00am to 7.00pm. The 'first smoko' is served from 8.30 to 9.00pm, usually consisting of pizza, pies, quiches and the like. The midnight meal is served at 12.00am, and offers two proteins and a vegetarian option, plus a salad bar. Mr Harman said that the day shift chef cooks the meals and sets aside 5 portions for the midnight meal on the night shift (only 5 workers will be working on the night shift). The night utility will then prepare and serve these meals and the salads. The second smoko occurs at 3.00am, which usually consists of sweet dishes prepared by the chef, which are sliced and served by the night shift utility. Breakfast is from 5.00am to 6.00am and includes hot and cold foods prepared and served by the utility. Evidently, this is also attended by others on the platform, not just those on the night shift.

• [18] Mr Harman said that broadly speaking, the chef supervisor is responsible for overseeing the provision of the food and cleaning services on the facility. The chef is responsible for menu planning and creation, overseeing all aspects of food preparation, including ordering supplies, food preparation, cooking and serving, and overseeing food safety and waste processes. The chef decides whether meals will be served a la carte or buffet style. The utility is responsible for assisting with food preparation and kitchen attendant duties, basic cooking and food service, and assisting with food safety and cleaning.

• [19] Mr Harman's evidence was that utilities do not make any decisions in relation to food menus or planning and are directed as to what food is prepared and served. A chef will use their qualifications to design menus and create and cook completed meals or foods. If a utility were to prepare food of their own choosing, that would be outside what Compass requires or expects them to do. Mr Harman said that the only decision that utilities are required to make is to plan their own particular tasks and to escalate any issues to the night operator, who is in charge of the facility at night. Mr Harman emphasised that it is the duty of the chef when cooking food for lunch to cook sufficient quantities that 5 portions can be set aside to be heated and used by a utility working night shift.

• [20] Mr Harman's evidence was that Compass expects utilities to be able to perform basic food service duties, such as: cooking bacon and sausages on a hot plate, heating baked beans and spaghetti, making scrambled eggs, omelettes, and eggs benedict, slicing fruit, making porridge and Bircher muesli, frying mushrooms, and cooking hash browns in a deep fryer. Utilities also prepare toasted sandwiches and wraps, and peel and slice vegetables and fruit. Exceptionally, they may assist the chef with food preparation by crumbing meat or seafood. They combine ingredients, such as for salads and tuna mixes. They heat food that has been pre-prepared by the chef, including pizzas and chicken parmigiana and pies. They prepare food platters, and food that they have made themselves.

• [21] Mr Harman said that Compass does not require utilities to perform the food service duties of a chef or chef supervisor which include baking bread and scrolls, making deserts, pizza bases and pies, making dips and sauces, making pickled vegetables and condiments, or preparing and cooking complex meat and seafood. Utilities are not required to do the chef's work of meal planning, budget management, stock management or ordering supplies, butchery, or overseeing safety in the kitchen. Mr Harman said that utilities who work alone at night prepare and serve food and implement safety procedures, but they do not run the galley. Mr Harman also explained in some detail, in relation to different kinds of meals, the distinction between the role played by the chef, which was essentially to prepare the particular dish, and the role played by the utility, which was to reheat or combine foods or take some additional step in respect of what the chef had already done.

• [22] Mr Harman's evidence was that the duties of a chef and chef supervisor, as he had explained them in his evidence, required a formal trade qualification of a Cert III in commercial cookery or the equivalent. Evidently, by 'required', he did not mean a regulatory requirement, but a practical requirement, in order for the chef to be able to work to an acceptable standard. He said that by contrast, the role of a utility only required the skill and experience of a kitchen hand, catering attendant or unqualified cook. He said that the food duties of a utility described in his evidence are referred to in the industry as 'breakfast cooking' or 'short order cooking', relating to basic, fast dishes served in a café, as opposed to food served in a restaurant. They involve simple cooking techniques, they do not involve creating recipes, making underlying sauces, or bread, pastry dough or butchery.

• [23] Mr Harman said that some utilities have trade cooking qualifications, but that these are not required for their role, and if they choose to use their skills, such as by baking bread or making sauces on shift, this is not something that the company requires of them. He said that when hiring utilities, the company prefers applicants who have cooking qualifications because they will find their food-related duties easier than someone without qualifications, but these are not a requirement for the role. Where utilities are available to fill in for a chef or chef supervisor, they are engaged to perform the higher level cooking and are paid at the higher rate for that time. However, Mr Harman said that he had not approved higher duties for utilities working alone on night shift because they were not required to undertake chef duties on those shifts.

• [24] The starting point is to identify what are the duties of a chef. In the absence of a classification structure in the Agreement, this task is by no means a straightforward one. Compass contended that the Agreement was ambiguous. I would not describe it this way. Ambiguity exists where there are two or more plausible meanings. In this case, the duties of utility and chef are not defined at all. They are unclear.

• [25] Compass submitted that the duties of a chef were those for which the employee is required to use a formal trade qualification. It relied on the evidence of Mr Harman, a qualified chef and former chef supervisor. Mr Harman identified the cooking-related tasks of a night shift utility and said that none of these duties required a person to have a trade qualification in commercial cooking such as the Cert III or equivalent. The difficulty with this submission as to what constitutes a chef's duties is that it is not anchored in the Agreement itself. It derives instead from the company's own assessment of what the duties of a chef should be. For its part, the AWU did not offer any theory at all about how the duties of the three classifications of worker under the Agreement were to be ascertained. It said simply that one looked to the employees' duties.

• [26] The meaning of a term in an enterprise agreement is to be ascertained by reference to the relevant text and context, and any evident purpose or intention. When the Agreement was submitted for approval by the Commission under s 185 of the Act, the employer F17 declaration identified the Hospitality Industry (General) Award 2020 (Award) as the modern award that covered the employees and stated that the classifications in the Agreement were to be matched against the following classifications in the Award:

• [27] The references in the F17 declaration to these Award classifications are slightly different to how they appear in Schedule A of the Award, nevertheless they make clear which award classifications are intended. The Award classifications are as follows: 'cook grade 5 (tradesperson) (wage level 6)'; 'cook grade 3 (tradesperson) (wage level 4)'; and 'guest services grade 2 (wage level 2)'. The AWU lodged a form F18 declaration, checking boxes to indicate that it supported approval of the Agreement by the Commission, and that it did not wish to advise the Commission that it disagreed with any of the statements in the employer F17 declaration. Copies of these documents were sent to the parties before the commencement of the hearing.

• [28] Based on the representations made by Compass to the Commission in its s 185 application about the correct Award classification matching for the Agreement, and the AWU's support for the application and the absence of any commentary on the employer's declaration, I consider that the matched Award classifications are an objective and logical reference point for meaning in respect of the Agreement's three classifications.

• [29] The AWU did not contend that the classification matching in the F17 was wrong. It said rather that the Commission should not have regard to the Award classifications because the classification structure in the Agreement contained no descriptors and because clause 5 of the Agreement states that, except as specifically provided, the Agreement operates to the exclusion of, and supersedes, all awards and other industrial agreements which would otherwise regulate wages and conditions of employment. But this clause simply excludes the operation of the Award. It does not say that the Award is not of any interpretative relevance. An award that is excluded by an enterprise agreement is relevant for that agreement because in order to be approved, the Commission must be satisfied that it passes the 'better off overall test' against that award. Even without the classification matching in the F17, the Award would be a logical place to search for meaning about undefined agreement classifications. In my opinion, the classification matching is clearly relevant to the question of what duties are associated with the three classifications in the Agreement.

• [30] The Award classification structure and definitions are found in Schedule A of the Award. The structure contains various streams, including the 'guest services stream' at clause A.2.3 and the 'kitchen stream' at clause A.2.2. The Award classification which was matched with the utility classification in the Agreement, namely 'guest service grade 2 (wage level 2)', is defined as an employee who is engaged in any of the activities listed in that provision, which relevantly include 'servicing and cleaning accommodation areas' and 'performing cleaning duties using specialised equipment and chemicals'. The only reference to food is 'providing butler services such as food, beverage and personalised guest service', which is not relevant. But the absence of any relevant food-related descriptor applicable to utilities does not suggest that this award classification was not an appropriate match for the utility. Classification descriptors rarely purport to be a complete statement of the duties of the relevant role, particularly in awards covering very broad industry sectors such as hospitality.

• [31] A 'cook grade 3, wage level 4', which was matched to the 'chef' classification in the Agreement, is defined to mean 'a commi chef or equivalent who has completed an apprenticeship or passed the appropriate trade test and who is engaged in cooking, baking, pastry cooking or butchering duties'. Drawing from the Commission's general industrial experience and sectorial knowledge, I note that in the food and restaurant sector, a 'commi' chef is generally understood to mean an entry level chef, the first step on the path to becoming a head chef, the intermediate steps being 'demi chef' (assistant chef) and 'chef de partie' (usually a section chef), the latter of which is the Award classification that was matched with the 'chef supervisor' classification in the Agreement.

• [32] It is noteworthy that the cook grade 3, wage level 4 is the first kitchen stream classification in the Award structure to employ the word 'chef', and that there are two classifications of cook below this level, as well as two lower classifications of 'kitchen attendant'.

• [33] To be a chef for the purposes of the Agreement, having regard to the classification matching, it is not enough that the worker cooks food, because that is also the work of a grade 1 and a grade 2 cook under the Award: rather, it is also necessary for the worker to be a tradesperson, a 'commi chef or equivalent', and have completed an apprenticeship or trade test. Correspondingly, the duties of a chef for the purposes of clause 8 of the Agreement are the duties of a qualified chef, as described in the Award classification of cook grade 3, wage level 4. They are duties two grades above the entry level cook classification (cook grade 1), which is an employee 'engaged in cooking breakfasts and snacks, baking, pastry cooking or butchering.'

• [34] The focus of debate between the parties concerned the grading or skill level associated with the various individual cooking-related tasks undertaken by Mr Separovich when working alone on night shift, and whether the various cooking tasks required a trade qualification. The company contended that a trade qualification was not required (practically necessary) in order to do the cooking that is undertaken by a sole utility on night shift. I agree. No doubt it is the case that generally speaking, a trade qualified person such as Mr Separovich will be able to do these tasks to a higher standard than others, but that does not mean that a qualification is required to do those tasks. I accept Mr Harman's evidence about the cooking that a sole night utility is expected by the company to undertake and the distinctions that exist between the role of a chef and a night utility in the preparation of particular dishes. I find the expected duties of a chef to be in keeping with the cook grade 3, wage level 4 under the Award.

• [35] The detail of the work performed on night shift is important but it is also necessary to have an overall perspective and evaluation of this work in the context of the cooking-related work that Compass undertakes in this workplace. In my opinion, when a utility is working alone on night shift, the cooking work is of a lower order than on other shifts. First, the fact that the utility is working alone signifies that there is a small number of persons on board, some 5 workers. Secondly, the day shift chef is required to put aside 5 portions for the midnight meal, therefore in principle the utility does not need to cook the midnight meal, although certain additional steps must be taken to prepare and serve it. Thirdly, although all on board, as many as 28, might attend breakfast, I find that the breakfast cooking is of a lesser grade. This is consistent with the Award classification structure that places breakfast cooking at cook grade 1, wage level 2. It is clear that the work of a utility working alone on night shift is below the level of the cook grade 3 (tradesperson) in the Award. It is not the role of a commi chef. It is instead the work of a cook grade 1: 'an employee who is engaged in cooking breakfasts and snacks, baking, pastry cooking or butchering.' I note that clause 18 of the Award places cook grade 1 in the same wage level as guest services worker grade 2, which is the Award classification which was matched with the utility in the F17. At best, the work might be described as cook grade 2 (an employee 'who has the appropriate level of training and who performs cooking duties'). But in my view it is not work of a cook grade 3.

• [36] Mr Separovich said that the day chef does not always prepare the 5 additional portions for the night shift in which case he will need to prepare the midnight meal. When this occurs, the contention that Mr Separovich is performing higher duties becomes a stronger one; if the day chef is required by Compass to put aside additional portions, and this does not occur, the night utility is then presumably doing something additional to what the company requires of him on night shift. But there is no evidence as to specifically when this has occurred and how long it has taken Mr Separovich to prepare such midnight meals.

• [37] Mr Separovich said that on some occasions, a worker might ask him to prepare a different meal: if a curry has been put aside by the day chef for the midnight meal, a worker might request Mr Separovich to make him a steak, which he would do. But he is clearly not required to do this. He does so because he is a very good and conscientious employee who wants to do the right thing by the workers on shift. I commend him for this. But such work is not required of him by the company and therefore does not enliven the higher duties clause. In this regard, Compass contended that this was because the clause speaks of employees being 'engaged' in higher duties. However 'engaged' here simply means 'occupied'. Rather, it is the word 'duties' that is determinative. One's duties are those things that one is required to do at work by one's employer.

• [38] The AWU contended that clause 8 does not state that the higher duties must be authorised or requested or approved by the company in order for payment to be made. I agree with the union that the clause does not prescribe any particular form by which the company must require the higher duties to be performed. In its written submissions, Compass contended that clause 8 is only engaged when it 'directs and requires' the employee to perform higher duties. This puts the matter too highly. The clause does not require a specific direction from the employer to the employee on each occasion when higher duties are to be worked. However, it is implicit that, in some way, Compass must have required the employee to perform the relevant work in order for higher duties to be payable under clause 8. Whether the employee has been so required is a question of fact.

• [39] Compass contended that clause 8 would not be engaged if a chef requested a utility to undertake chef duties without the authorisation of Compass. As a general proposition, I disagree with this statement, because it interposes a different concept from the one that must be the subject of the relevant factual inquiry, namely whether the company required the employee to do the work, such that it constituted part of his duties. To speak of 'authorisation' might connote some particular mode of requirement, and as I have said, no such mode is stipulated by the clause. A chef might not have authorisation from Compass to require a utility to perform chef work, yet, in all the circumstances, the chef might nevertheless have had ostensible authority to make that demand of the utility. There may be a range of different ways in which employees could demonstrate that as a matter of fact, the employer had required them to perform higher duties.

• [40] Mr Separovich said that a sole night utility is assuming all the responsibilities for the galley for the 12 hours of the night shift. I do not accept this. The day chef or chef supervisor is in charge of the galley. They have determined the meal plan and attended to the stock and budgetary matters. They have put aside 5 meals for the 5 workers on night shift. They give instructions to the utility on shift handover. And any questions or issues can be referred to the night manager. Of course, during the night, the utility is working alone, but his duties are defined, and there is only a small crew who must be catered for. I accept that the utility has some discretion. Mr Meester said that he might simply tell the utility to make a couple of salads and leave it to him. Mr Separovich said that he might devise a tuna mix himself; but Mr Harman said that this was just a matter of opening some tins of tuna and mixing mayonnaise with salt and pepper. The discretion of the utility is marginal. I do not regard this as menu planning. And as to safety, the duties of the utility on night shift do not go beyond those of any employee, including when working alone.

• [41] A question arises as to whether an employee would necessarily need to possess the relevant trade qualification for a chef in order to be paid the higher duties allowance under clause 8. In my view this is not necessary, because clause 8 focuses on the duties of the higher position, not the qualifications of that position. But in the present case, this question does not arise, because Mr Separovich has a trade qualification, namely a trade certificate in cooking completed in 1991 and issued by the Western Australian Department of Training and Workforce Development, which in my view is an appropriate 'trade test' for the purposes of the cook grade 3 (wage level 4). But of course, this qualification is not enough to make his work that of a worker at this level.

• [42] Mr Meester's evidence was that in his experience the duties being performed by the night utility required a specific culinary qualification and skill level, but he did not explain in relation to what duties. It was a general evaluative statement. I prefer and accept the evidence of Mr Harman which was much more detailed in relation to the particular types of work that night utilities undertake. Based on the evidence adduced in this matter, and in particular taking into account the character of the sole utility night shift work within the overall operations of the company in this particular part of its business, I find that it is clear that a night utility working alone is working below the level of a chef, which is matched to the commi chef role in the Award. Mr Meester said that he believed that Compass was downplaying the high-level work that was being performed by utility workers and that the duties they undertake require a high standard of cooking and meal preparation. The company has naturally sought to emphasise what could be described as the lower end cooking duties that the night utility performs, just as the AWU has emphasised other duties. I accept that Mr Separovich, and no doubt other utilities, perform work to a high standard of cooking and food preparation. But that speaks to their professionalism, not their grade.

• [43] Mr Meester referred to a recent Compass job advertisement that stated that chef or baker qualifications were preferred. The advertisement attached to Mr Meester's statement pertained to multiple available 'hospitality roles' working offshore. Presumably if they related to chefs or chef supervisors, chef skills would be required rather than preferred. If the roles were utility positions, the fact that chef or baker qualifications were preferred would not be an indication that the night utilities are working higher duties as chefs. As Mr Harman explained, it is easier for utilities to undertake the cooking associated with their classification if they have cooking qualifications, but it is not necessary that they possess them. Mr Harman said that generally, if a person could poach an egg, they would be able to do the cooking work of a utility, because poaching would be the most difficult cooking task that the company expects them to perform.

• [44] Mr Separovich said that in May 2019, a company manager had admitted to the union that cooking slices, and also bacon and eggs, was the work of a chef. The attached email chain includes an email from a human resources manager, Warren Harrower, to this effect, save that he says that this was the work of a 'cook'. But this was not an admission. It was an opinion. To the extent that this message suggested that this work was that of a level 3 cook under the Award, it was in my view mistaken. I would also note that the comment was made some 2 years before the Agreement was made.

• [45] Mr Separovich said that chefs would routinely undertake the cooking-related duties that he performs as sole utility on night shift, and that if he did the same work as them, he must be performing work at the chef level. However, it is very common for there to be overlap between classifications, and employees often undertake work at classifications below their level. When the Award refers to the duties of a cook grade 3, these are not the only duties that the employee will perform. A grade 3 cook, or grade 5 cook, will also do some work that is undertaken by a grade 1 or 2 cook.

• [46] Mr Separovich, Mr Meester and Mr Hunt all said in their evidence that utilities were sometimes requested to fill chef positions in the roster and when this occurred they were paid the higher duties allowance under clause 8. But the fact that Compass requires utilities to fill chef vacancies in the roster from time to time and pays these utilities higher duties allowance under clause 8 does not advance the AWU's case that Mr Separovich and other sole utilities working night shift alone should be paid the higher rate. I agree with the AWU that it is not necessary, in order for an employee to be entitled to higher duties allowance under that clause, that the company specifically appoint the employee to a vacant chef role in the roster. But it is necessary that the utility perform the duties of a chef as described above, not just the work of a cook, and that the employee has been required by the company to do this.

• [47] The company produced a business record reflecting a list of claims that had been advanced by the AWU prior to the making of the Agreement, which indicated that the union had sought a 5-level classification structure, including a special rate for a night shift utility. The claim was not accepted. The AWU did not deny making this claim but said that it was irrelevant because the claim was not agreed to. I reject this. In my view the document supports the company's case.

• [48] The present case is an instance of a highly capable worker in a classification performing work at the higher end of that classification, in circumstances where workers in a higher classification (chefs) cover some of the work at the lower level, thereby giving rise to argument about whether the first worker should be awarded higher duties. In my view, the answer to that question is no.

• [49] Finally, it is clear to me that each of the AWU witnesses believes that it is unfair for sole utilities working night shift not to be paid higher duties. It may be that there is merit in the proposition that utilities working alone on night shift ought to be paid a higher rate. But that is a matter for the parties to consider in bargaining. The Commission's task in this matter is to apply the terms of the existing Agreement, not to assess their fairness or to rewrite the Agreement.

• [50] The question for determination asks whether, based on the evidence of particular utilities having performed particular duties at particular times, the utilities are entitled to higher duties allowance under clause 8 of the Agreement. Based on the evidence before the Commission, I have concluded that the answer to this question is 'no'. The dispute is determined accordingly.

O. Klimczak for Compass Group (Australia) Pty Ltd

Printed by authority of the Commonwealth Government Printer