Amber Addison v InvoCare Australia Pty Ltd
[2015] FWCFB 1743
•18 MARCH 2015
| [2015] FWCFB 1743 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
InvoCare Australia Pty Ltd
(C2014/8174)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 18 MARCH 2015 |
Appeal against decision [[2014] FWC 7885] of Commissioner Gregory at Melbourne on 26 November 2014 in matter number C2014/1247.
[1] Amber Addison (the appellant, Ms Addison) has applied for permission to appeal a decision of Commissioner Gregory of 26 November 2014 in respect of an application she had made for the Fair Work Commission to deal with a dispute under the terms of the InvoCare Australia Pty Ltd Enterprise Agreement 2010 (the agreement). The dispute concerned whether the appellant was entitled to the benefit of paid parental leave in accordance with the provisions of the agreement. The Commissioner found that the role in which the appellant was employed was not covered by the agreement. He therefore found that the Commission did not have jurisdiction to deal with the dispute, and accordingly he dismissed Ms Addison’s application.
[2] These appeal proceedings, with the agreement of both parties, have been conducted ‘on the papers’. The appellant made written submissions on 16 January 2015, InvoCare Australia Pty Ltd (the respondent) made its submissions on 11 February 2015, and the appellant then made submissions in reply on 19 February 2015.
Background
[3] The clauses in the agreement which are particularly relevant to the issue in dispute are set out below:
‘1. SCOPE AND PURPOSE
1.1 This Enterprise Agreement (the Agreement) applies to InvoCare Australia Pty Ltd (InvoCare/the Employer/the Company) Victorian Funeral Operations namely Le Pine, Mulqueen, White Lady, Simplicity, Mark Carey, Southern Cross Funerals and Value Funerals. The Agreement regulates the terms and conditions of employment of weekly paid Employees referred to in Clause 6.
...
2. PARTIES
2.1 Parties to this Agreement are:
2.1.1 InvoCare.
2.1.2 The weekly paid operational employees.
2.1.3 The parties agree that upon approval of this agreement the Australian Workers Union shall be covered by the agreement in accordance with the relevant provisions of the Fair Work Act (the Act).
...
7. CAREER AND CLASSIFICATION STRUCTURE
7.1 InvoCare provides an integrated career and classification structure where Employees can move through classifications and into management if appropriately skilled. Opportunities for training and development which enable Employees to move upwards through different skill areas will be encouraged.
...
7.4 In addition to the duties below, Employees shall carry out all duties and perform all functions as directed by the Employer, which are within the Employee’s skill, capability and training.
7.4.1 Funeral Directors Assistant:
Must be proficient in all duties and meet the standards as set out in the current InvoCare position descriptions for Funeral Directors Assistant (as varied from time to time)
7.4.2 Trainee Embalmer:
Must be proficient in all duties and meet the standards as set out in the current InvoCare position descriptions for Trainee Embalmer (as varied from time to time) and who is undergoing a recognised embalming course.
7.4.3 Funeral Director:
Must be proficient in all duties and meet the standards as set out in the current InvoCare position descriptions for Arranger, Conductor or Arranger Conductor (as varied from time to time).
7.4.4 Embalmer:
Must be proficient in all duties and meet the standards as set out in the current InvoCare position descriptions for Qualified Embalmer (as varied from time to time). Must hold appropriate qualifications from a body such as The Australian Institute of Embalmers or equivalent which is recognised by InvoCare and engaged in the position of a Qualified Embalmer with InvoCare. The qualified embalmer must perform their duties in a mortuary for a minimum of 80 hours per month.’
[4] It is clear that the reference in clause 1 of the agreement should be to the terms and conditions of employment of weekly paid employees referred to in clause 7 rather than clause 6. This appears to have been a typographical error.
[5] The agreement sets out the (weekly) rates of pay for each of the classifications referred to in clause 7. It indicates that the rates are based on a 38 hour week and include payment for two hours overtime. The rate of pay for Funeral Directors in clause 8 includes astand-by allowance.
[6] The agreement indicates that wages ‘shall be paid weekly, however the Parties have agreed that during the term of this Agreement, the pay period may change to fortnightly.’
[7] Clause 9 of the agreement deals with hours of work. It specifies that the parties have agreed that employees will work two hours overtime each week. The weekly pay rates contained in the agreement include payment for this overtime. The agreement states ‘The parties agree that for the purposes of clarification the 40 hour week or 8 hour day will be termed as the normal working week.’
[8] Clause 9.3 indicates that employees covered by the agreement are required to participate in after-hours rosters. Specific provisions are made for Arranging (Funeral Directors) and Funeral Director Conductors for work performed after hours and on weekends. Arranger/conductors are paid a permanent stand-by allowance of $110 per week which is included in their salary.
[9] Ms Addison was initially employed pursuant to a letter of offer dated 31 July 2012 as a Funeral Director - Arranger/Conductor. This letter of offer included the following:
‘You will work 40 hours each week on days and at times required by InvoCare ...
You will be required to work a regular weekly roster ...
You will be paid a wage of $936.00 gross per week, which includes the standby allowance. Your wages will be paid each pay period specified in the InvoCare Australia Pty Limited Enterprise Agreement 2010 (Industrial Agreement). If the industrial Agreement does not specify a pay period, you will be paid weekly but InvoCare may change your pay period to fortnightly pay.
You will also be paid any applicable overtime, penalty rates, allowances and loadings under the Industrial Instrument whilst it applies to your employment.’
[10] Ms Addison’s status was changed to a Funeral Director - Administrative Arranger pursuant to a letter of offer dated 7 September 2012. This letter offer included the following:
‘You will work an average of 38 hours each week on days and at time [sic] required by InvoCare. You agree that your hours will be averaged over each calendar year. Where you don’t work an entire calendar year, the averaging period will be that lesser period. ...
You will receive a remuneration package consisting of a salary and superannuation contributions as follows:
Salary: $44,867.00 gross per annum
Superannuation (9% capped) $4,038.03 per annum
Total remuneration package $48,905.03 gross per annum...
Your salary will be paid weekly directly into your nominated bank account. Your salary will be first reviewed in January following your commencement and then reviewed in January each year.’
[11] Unlike the first letter of offer, the September 2012 letter of offer made no reference to the agreement. Nor is there a reference to working a weekly roster or to a stand-by allowance.
[12] The papers indicate that there are 26 Funeral Directors - Administrative Arrangers, of whom 24 are paid on a monthly pay cycle. Ms Addison and one other are the only exceptions. None of those 26 employees are paid stand-by allowance, nor are they rostered on the on-call rosters.
[13] There are a number of differences between the position descriptions for a Funeral Director - Arranger/Conductor and a Funeral Director - Administrative Arranger.
[14] The ‘Job Summary’ for the Arranger/Conductor includes the following:
‘The Arranger/Conductor reports to the Location Manager to:
1. Arrange and conduct funerals...’
[15] The position description for the Administrative Arranger position makes no reference to conducting funerals. It includes the following: ‘This is a dual role that incorporates funeral directing responsibilities as an arranger, with reception and administrative responsibilities. The Administrative Arranger reports to the Location Manager or Location Supervisor to:
1. Provide administrative support to the location ...’
[16] The ‘Key functions’ for the Administrative Arranger position includes a section on providing effective and timely administrative and support services, as well as a section on arranging funerals, albeit it also includes participation in what are described as ‘day-to-day operational tasks such as attending funerals, transfers, viewings, mortuary duties, driving vehicles, and keeping work areas clean and tidy’. The section on administrative and support services is not included in the position description for the Arranger/Conductor position, which, however, includes a section on conducting funerals.
The Commissioner’s decision
[17] The Commissioner outlined the legal principles governing the construction of industrial agreements, the relevant clauses in the agreement, the two letters of offer, and the position descriptions for the two roles performed by Ms Addison. His conclusions on the jurisdictional issue are set out in the final paragraphs of his decision as follows:
‘[45] I am satisfied, firstly, that the terms of the Agreement, the letters of offer, and the job descriptions confirm that the roles of Funeral Director – Arranger/Conductor and the Funeral Director – Administrative Arranger are separate and distinct. In coming to this conclusion it is also acknowledged that they each have some common features and requirements.
[46] The distinct nature of the roles is emphasised particularly by what is contained in the job descriptions. In short, the Funeral Director – Arranger/Conductor classification is particularly associated with various tasks to do with the arrangement and conduct of a funeral, whereas the Funeral Director - Administrative Arranger role is primarily associated with the administrative arrangements associated with a funeral service and the administration of the funeral business.
[47] The Agreement also makes clear that there are some distinct features associated with the Funeral Director – Arranger/Conductor role, which are not found in the Funeral Director - Administrative Arranger role. For example, a working week of 40 hours, not 38, is a requirement, and payment of a standby allowance of $110 per week is also included in the rate by virtue of the provisions contained in the Agreement. It is an operational role that includes involvement on an on-call roster, and is distinct from the role performed by a Funeral Director – Administrative Arranger.
[48] I am also satisfied that the Agreement covers these operational roles, but does not extend to cover the administrative and clerical duties associated with the Administrative Arranger role. I have come to this conclusion based particularly on the wording contained in Clause 2 of the Agreement, and the fact the Agreement makes specific reference to the Funeral Director – Arranger Conductor in Clause 7, and sets out particular requirements associated with the performance of that operational role. These involve, in particular, the additional requirement for a minimum of two hours overtime to be worked each week, and the regular incorporation of the standby allowance into the weekly rate. Conversely, the Agreement does not contain a classification description, wage rates or other conditions that reflect the role of Funeral Director – Administrative Arranger.
[49] In determining this matter it should be noted that the Commission is not expressing any view about whether it is appropriate for certain employees to have access to paid paternity [sic] leave entitlements, whereas others do not. Any such consideration falls outside the scope of this matter. However, having come to the conclusion that the scope of the Agreement does not extend to administrative roles, such as that involved in the role of the Funeral Director – Administrative Arranger, it follows that the Commission does not have jurisdiction under s.739 of the Act to deal with the current application. The application is accordingly dismissed.’
Consideration of the appeal
[18] The appellant has sought to appeal the Commissioner’s decision on four principal grounds. The first ground is that in inquiring whether Ms Addison was employed in a classification under the agreement, the Commissioner misdirected himself into an inquiry which had no mandate under the agreement.
[19] We do not accept this submission. In circumstances where the respondent had squarely raised a jurisdictional issue in connection with its objection to participating in any conference that may have preceded any other proceedings, the issue the Commissioner was bound to determine was whether he had jurisdiction to deal with the dispute. The dispute was brought under s.739 of the Fair Work Act 2009 (the FW Act). That section, among other matters, allows the Commission to deal with disputes brought under the terms of dispute settlement procedures (DSPs) in enterprise agreements. While the agreement contains a DSP that allows unresolved disputes to be dealt with by the Commission using its conciliation and arbitration powers those disputes must be between parties covered by the agreement itself. Thus, whether Ms Addison’s employment is covered by the agreement is a critical issue going to the jurisdiction of the Commission to deal with the dispute.
[20] Clause 1.1 stipulates that the agreement regulates the terms and conditions of employment of ‘weekly paid Employees referred to in Clause 6.’ It is not in contention that the reference to clause 6 should be to clause 7. It is not enough to be a ‘weekly paid employee’ and an ‘operational employee’ - to be covered by the agreement one must a ‘weekly paid employee referred to in clause [7]. If one turns to clause 7 there are four classifications: Funeral Directors Assistant, Trainee Embalmer, Funeral Director and Embalmer. The Commissioner was correct to turn his mind to whether the agreement covered Ms Addison’s employment.
[21] The second and third grounds of appeal were that the Commissioner was wrong to conclude that Ms Addison was not employed in a classification covered by the agreement, and that the agreement did not cover the clerical and administrative duties associated with Ms Addison’s role.
[22] We consider that there is no error in the Commissioner’s conclusion that Ms Addison’s employment is not covered by the classifications in clause 7 of the agreement. The only classification that might be relevant to Ms Addison is that of Funeral Director. Clause 7.4.3 of the agreement refers to Funeral Directors as performing the roles of Arranger, Conductor, or Arranger Conductor. Ms Addison, by contrast, is employed as a Funeral Director - Administrative Arranger, a role not referred to in the agreement. The position description of the role confirms the distinct nature of that classification.
[23] That Ms Addison’s role is not covered by the agreement becomes even clearer when one considers the different working arrangements applicable to Ms Addison and Funeral Directors employed under the agreement. Ms Addison works a 38 hour week, whereas Funeral Directors under the agreement work a 40 hour week; Funeral Directors under the agreement are required to be on a stand-by roster and receive an appropriate allowance, while Ms Addison is not required to be on stand-by and does not receive the stand-by allowance.
[24] The fourth ground of appeal was that there were procedural issues in the handling of the dispute - in particular, and although other matters were raised, that the Commissioner declined to deal with the dispute by conciliation until after the jurisdictional issue had been determined.
[25] Despite the appellant’s contentions, we have not discerned error in the Commissioner’s approach in this regard. If, as he found, the Commission lacked jurisdiction to deal with the dispute then there was, as the respondent had contended, no power to conciliate the dispute. It was quite reasonable, and indeed appropriate, for the Commissioner to deal with the jurisdictional issue prior to conducting any conciliation conference given the nature of the respondent’s objection to participating in conciliation pending the determination of its jurisdictional objection (albeit we note, in this regard, that a party will often agree to participate in conciliation proceedings whilst reserving the right to subsequently raise any jurisdictional objection should conciliation not resolve the dispute).
Conclusion
[26] Having regard to our consideration of the grounds of appeal in this matter, we are not persuaded to grant permission to appeal. The Commissioner’s decision is not affected by appealable error. Further, there are insufficient grounds for granting permission to appeal in the public interest. We refuse permission to appeal.
SENIOR DEPUTY PRESIDENT
Final written submissions:
19 February 2015
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