Amber Addison v Invocare Australia Pty Ltd

[2014] FWC 7885

[2014] FWC 7885 [Note: An appeal pursuant to s.604 (C2014/8174) was lodged against this decision - refer to Full Bench decision dated 18 March 2015 [[2015] FWCFB 1743] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Amber Addison
v
Invocare Australia Pty Ltd
(C2014/1247)

COMMISSIONER GREGORY MELBOURNE, 26 NOVEMBER 2014

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s.186(6)].

[1] Ms Amber Addison is employed by Invocare Australia Pty Ltd (“InvoCare”) in its business which trades as White Lady Funerals. Some employees in the business are covered by the InvoCare Australia Pty Ltd Enterprise Agreement 2010 1 (the “Agreement”) which contains provision for paid maternity leave entitlements.

[2] In May this year Ms Addison enquired about her entitlement to paid maternity leave under the terms of the Agreement. She says she was initially told she was entitled to paid leave, but was subsequently informed this was not correct because the Agreement did not cover her employment.

[3] On 26 May Ms Addison informed her Manager of her intention to take maternity leave. Further discussion took place during the next 2 months about whether she was entitled to take unpaid leave under the terms of the Agreement, however, no agreement was able to be reached.

[4] On 15 July Ms Addison made application to the Commission under s.739 of the Fair Work Act 2009 (Cth) (the Act) indicating, in summary, the dispute was about InvoCare “refusing to provide paid parental leave in contradiction to the EBA and letters from management to AA.” 2 The application was listed for conference, however, InvoCare subsequently requested the matter not proceed until a jurisdictional objection was dealt with and determined.

[5] InvoCare’s jurisdictional objection is based on its view that Ms Addison is not covered by the Agreement because she is not employed as a “weekly paid operational employee” in a classification covered by the Agreement. This decision deals with that jurisdictional objection.

[6] There is one matter that I intend to deal with at the outset. Despite the jurisdictional objection having been raised Ms Addison initially submits that the Commission should have proceeded to deal with the matter in conference by way of conciliation before proceeding to arbitrate the jurisdictional objection. She continues to submit that dealing at the outset with the jurisdictional objection means the Commission is effectively determining the entire dispute because if the Agreement is found to cover her employment then she has an entitlement to paid maternity leave. If it does not then she has no entitlement. As indicated, I intend to deal with this submission at this point because I am of the view it fails to take account of the jurisdiction being exercised by the Commission in dealing with an application of this kind.

[7] With respect to Ms Addison I am satisfied her submission on this point is misconceived. The application before the Commission is made under s.739, which commences by indicating, “This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.” 3 The relevant provision in s.738 indicates the Act applies if “an enterprise agreement includes a term that provides a procedure for dealing with disputes...”4

[8] In other words the Commission only has jurisdiction to deal with an application made under s.739 if there is an Enterprise Agreement that covers the parties. If there is no such Agreement then the Commission has no jurisdiction to deal with the application. Therefore, the issue of whether the Commission has jurisdiction under s.739 must be dealt with and determined at the outset before the matter can be dealt with by way of either conciliation or arbitration.

[9] As indicated, InvoCare submits the jurisdictional objection turns, in large part, on whether Ms Addison is a “weekly paid operational employee” covered by a classification contained in the Agreement. It refers, firstly, to Clause 2 of the Agreement “Parties”, which states:

“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).” 5

[10] It continues to submit Ms Addison was originally employed as a “weekly paid operational employee” and was covered by the Agreement when first engaged in July 2012. However, this no longer applied after she was appointed to the position of “Funeral Director – Administrative Arranger” in September 2012. It refers to the following matters in support of this submission.

• Ms Addison originally worked 40 hours per week, including two hours of overtime, when initially engaged in the classification of Funeral Director – Arranger/Conductor, but was then only required to work 38 hours per week after her appointment in September 2012 to the position of the Funeral Director – Administrative Arranger. It submits the 40 hour working week is consistent with what is required of a “weekly paid operational employee” employed in the classification of Funeral Director Arranger/Conductor under the terms of the Agreement.



• Ms Addison’s original letter of offer states she was to be paid at the pay period specified in the Agreement, for the Funeral Director – Arranger/Conductor classification, including the standby allowance provided in sub clause 7.4.3 of $110 per week. By contrast her present classification of Funeral Director – Administrative Arranger is not contained in the Agreement.



• The letter confirming Ms Addison’s appointment to the new position in September 2012 makes no mention of the position being covered by the Agreement, nor is the job title of Administrative Arranger referred to in the Agreement. The letter also makes reference to an annual salary, as opposed to payment of a weekly amount. There is also no reference to payment of the standby allowance. It also submits Ms Addison’s pay rate set out in the letter of offer of September 2012 does not match any of the entitlements provided for in the Agreement.



• It next makes reference to sub clause 9.3.1 of the Agreement which states, “the following after hour’s (sic) rosters are compulsory.” 6 The clause then goes on to describe the various roster arrangements for each classification of employee. It submits that working rosters on the basis of this sub clause is a characteristic of a weekly paid operational employee and was detailed in the first letter of offer to Ms Addison. However, it is not referred to in the September 2012 letter. It makes the same submission in regard to provision of a standby payment. It submits for all of these reasons that while the two positions are prefaced with the generic title of “Funeral Director” they are actually “two quite different positions.”7



• It also submits employees engaged as Administrative Arrangers are not operational staff and are not required to be part of the on-call roster, and are therefore not to be considered as weekly paid operational staff.

[11] InvoCare also notes Ms Addison is paid on a weekly basis, unlike the majority of employees engaged as Administrative Arrangers, who are paid monthly. However, it submits this is the “result of an error, action or inaction not by virtue of her employment classification,” and should not be relied upon in support of an argument that Ms Addison is covered by the scope of the Agreement. It also submits that 24 of the 26 Administrative Arrangers it employees are paid on a monthly pay cycle.

[12] Ms Addison submits in response that in dealing with the jurisdictional objection it is first necessary to determine whether she is an employee for the purposes of the Agreement. She refers to sub Clause 1.1 which states in part, “The Agreement regulates the terms and conditions of employment of weekly paid Employees referred to in Clause 6,” 8 and submits the reference to Clause 6 at this point appears to be a typographical error, as the classification structure in the Agreement is actually contained in Clause 7, rather than Clause 6.

[13] She next submits the issue is further complicated by the wording of Clause 2, “Parties,” which indicates the parties to the Agreement are InvoCare and “the weekly paid operational employees.” However, “weekly paid operational employees” is not defined elsewhere in the Agreement. She submits that to be covered by the Agreement it would therefore appear an employee needs to be both a weekly paid and an operational employee. She also submits it can be argued it is necessary to establish an employee is within the classification specified in Clause 7.

[14] She next submits she has been paid on a weekly basis since the commencement of her employment with InvoCare, and rejects the submission this is not relevant because it has occurred due to a mistake or oversight. She submits it is a relatively simple matter; the evidence indicates she has been paid on a weekly basis since first employed and she is therefore covered by the scope of the Agreement. She also submits the various matters raised by InvoCare about the hours she worked each week, whether she was paid a standby allowance, and whether she was required to work on a roster, are not relevant to the question of whether she was a “weekly paid operational employee.”

[15] In regard to whether she was an “operational employee” Ms Addison also submits InvoCare referred to the July and September 2012 letters of offer provided to her, but did not make reference to the position descriptions referred to in those letters. She submits, “On any view Amber is an ‘operational employee’. She is directly engaged in the operations of the employer’s business. She is not an ancillary employee engaged in a non-operational capacity as may be the case with say, a bookkeeper, or a gardener.” 9

[16] Ms Addison next turns to deal with whether she can be considered to be employed within a classification contained in the Agreement. She submits that two of the four classifications in the Agreement are classifications prefaced with the title “Funeral Director.” She submits that both of the letters of appointment provided to her referred to her position as Funeral Director, the first being “Funeral Director – Arranger Conductor,” and the second “Funeral Director – Administrative Arranger.” She continues to submit the “position descriptions provide the same titles for the roles,” and her overriding classification from the commencement of her employment has been as a “Funeral Director.” 10

[17] She sets out three reasons in rejecting the submission that her current position is not covered by the terms of the Agreement because the classification “Administrative Arranger” is not contained in the Agreement. Firstly, the term “Arranger” is used in the Clause and the failure to include reference to the additional qualifier “Administrative” does not mean the position is not covered by Clause 7. Secondly, it is incorrect to simply refer to the job title as “Administrative Arranger.” It is actually “Funeral Director – Administrative Arranger” and this makes clear she is employed in a classification contained in Clause 7. Finally, the test for coverage by Clause 7 is whether the person is employed as a Funeral Director. The subsequent references to Arranger/Conductor simply deal with “the employer’s expectations of proficiency in the performance of duties of Funeral Directors” and do not take the position beyond the classifications contained in Clause 7. 11

[18] Her submissions conclude by indicating:

“On any view Amber has been employed as a Funeral Director, as a weekly paid operational employee, and is within the scope of the EBA. It follows that the jurisdictional objection is without substance, and that she has an entitlement to paid parental leave in accordance with the EBA.” 12

Consideration

[19] The legal principles governing the construction of industrial agreements are well known and established, and are referred to by Ms Addison in her submission. In Kucks v CSR Limited 13 Madgwick J held:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.” 14

[20] That decision concerned the construction of an Award, however, the same approach has been followed in the construction of industrial agreements. In Australian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd 15 Northrop J held:

“The increase in the number of certified agreements gives rise to an area of possibly greater dispute as to the construction of provisions contained in the agreements. The parties may adopt a multitude of different structures and methods of terminology. No common pattern may develop. Nevertheless certified agreements are to be construed adopting the same methodology as that used in construing awards. In Kucks v CSR Limited (1996) 66 IR 182 Madgwick J, sitting as a judge of the Industrial Relations Court of Australia, at 184 expressed his opinion on the legal principles to be applied in construing awards under the Act. I agree with that statement of principles. They have even stronger application to certified agreements.” 16

[21] In United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board 17 a Full Court of the Federal Court in dealing with a dispute resolution clause in a certified agreement stated:

“[33] The judgement of the High Court in Codelfa Constructions Pty Ltd v State Rail Authority (NSW) established widely accepted principles for resolving ambiguity in contracts. In that case Mason J stated the rule thus:

‘The true rule is that evidence of surrounding circumstance is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.’

[34] In BP Australia Pty Ltd v Nyran Pty Ltd Nicholson J distilled, by reference to Codelfa, the following points of principle for resolving ambiguity in contracts:

• it is necessary firstly to determine whether the contract has a plain meaning or contains an ambiguity;



• if the contract has a plain meaning, evidence of surrounding circumstances will not be admissible to contradict the language of the contract;



• if the language of the contract is ambiguous or susceptible of more than one meaning evidence of surrounding circumstances is admissible to assist in the interpretation of the contract;



• the concept of surrounding circumstances is to be understood to be a reference to the objective framework of facts. It will include:



• evidence of prior negotiations so far as they tend to establish objective background facts known to both parties and the subject matter of the contract;



• facts so notorious that knowledge of them is to be presumed;



• evidence of a matter in common contemplation and constituting a common assumption.

[35] After referring to the foregoing points of principle Nicholson J continued as follows:

‘From the evidence of that setting the parties’ presumed intention may be taken into account in determining which of two or more possible meanings is to be given to a contractual provision. What cannot be taken into account is evidence of statements and actions of the parties which are reflective of their actual intentions and expectations. Objective background facts can include statements and actions of the parties which reflect their mutual actual intentions. That is, evidence of mutual subjective intention of the parties to a contract may be part of the objective framework of facts within which the contract came into existence. It is the mutuality which makes the evidence admissible.’” 18

[22] I am satisfied the principles set down in these decisions are to be applied in determining the present matter. They require that ordinary or well understood words are given their ordinary or usual meaning. Where that meaning can be evidently discerned the Commission’s role is not to give effect to some other notion about what might be perceived to be fair or just or reasonable. The language of an Agreement should not be contradicted when it has a plain meaning. However, if that language is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstances, or the “objective framework of facts,” can be admissible to assist in that process of interpretation.

[23] There is no dispute between the parties that when Ms Addison was first employed by InvoCare in July 2012 she was covered by the Agreement. However, shortly afterwards she was offered and accepted the position of Funeral Director – Administrative Arranger. InvoCare submits that from this point she was no longer covered by the Agreement. Ms Addison takes issue with this submission.

[24] The submissions of the parties have been detailed already and are not restated now. Each has variously relied on the terms of the Agreement itself, the terms contained in the two letters of offer provided to Ms Addison, and the job descriptions associated with each of those roles. I have had particular regard to the following matters in coming to a decision.

The Agreement

[25] The Agreement indicates at the outset that it “regulates the terms and conditions of employment of weekly paid Employees referred to in Clause 6.” 19 It is evident at the outset, as Ms Addison points out, that the reference to Clause 6 at this point is a mistake, and the reference should be to Clause 7. (Clause 6 in the Agreement is entitled “Terms of Employment,” and deals with various conditions of employment, whereas Clause 7 deals with “Career and Classification Structure.”)

[26] Ms Addison submits the reference in sub clause 1.1 to regulating the terms and conditions of “weekly paid employees” indicates the Agreement has coverage of any weekly paid employee. However, I am not satisfied this conclusion necessarily follows as Clause 2 “Parties” is also of particular relevance in terms of who the Agreement is intended to cover.

[27] It indicates that the employee parties are “the weekly paid operational employees.” I am satisfied this additional description indicates it is not simply weekly paid employees who are intended to be covered by the Agreement, but rather it is those employees described as the “weekly paid operational employees.”

[28] I next refer to Clause 7 and sub clause 7.4.3, in particular. It makes specific reference to the job title or classification contained in Ms Addison’s original letter of offer when it states:

“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).” 20

[29] Clause 8 then continues to detail the wage rates provided for each of these classifications, and includes the rate of $936 for the Funeral Director classification that was paid to Ms Addison when she was first employed. As indicated in the Clause that amount includes the standby allowance, as well as payment for two additional hours of overtime. This is also made clear in Clause 9 “Hours of Work,” when sub clause 9.1 indicates “The parties agree that employees will work two hours overtime each week. The parties agree that the pay rates in clause 8.1 include payment for two hours overtime each week.” 21 The sub clause concludes by indicating, “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.”22 Further reference to the standby allowance is also found in sub clause 9.3.5 when it states, “The parties agree that arranger / conductors will be paid a permanent standby allowance of $110.00 per week which is included in their salary.”23

[30] It is also noted that sub clause 8.5 states, “Wages shall be paid weekly, however the Parties have agreed that during the term of this Agreement, the pay period may change to fortnightly.” 24 While little turns on these words I am satisfied that the Agreement is not simply concerned to cover employees who are paid on a weekly basis. It is instead intended to cover employees described as weekly paid operational employees employed in the various classifications referred to in Clauses 7 and 8.

The Letters of Offer

[31] As indicated, there is no doubt and no dispute between the parties that when first employed in July 2012 Ms Addison was covered by the Agreement. The letter of offer provided to her indicates at the outset that her “initial role will be as a Funeral Director – Arranger Conductor,” although it continues to indicate “We may change your role and where possible, will only do so after first talking to you about the reasons for the change.” 25 The letter continues to indicate that an initial probationary period will apply, and be for 180 days, as specified in the Agreement (sub clause 5.1).

[32] It continues to make reference to the 40 hour per week working arrangements that apply to weekly operational employees under the terms of the Agreement when it states, “You will work 40 hours each week on days and at times required by Invocare.” 26 It continues to indicate:

“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 Instrument 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.” 27

[33] The letter then states at a later point, “If the Industrial Agreement ceases to apply to your employment, your employment will continue to be regulated by this letter, the Standard Terms, any applicable legislation and any applicable industrial instrument.” 28

[34] However, the second letter of offer provided to Ms Addison in September 2012 contains no reference to the Agreement. It confirms she is being employed “as a Funeral Director – Administrative Arranger” and provides for a 6 month probationary period. In terms of hours of work it indicates:

“You will work an average of 38 hours each week on days and at time 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.” 29

[35] In terms of remuneration it provides for an annual salary of $44,867.00, rather than the weekly gross amount referred to in the previous letter of offer and confirms it will be paid weekly into Ms Addison’s nominated bank account. It is noted this represents almost $4,000 less than what she was receiving previously, and does not include payment for the two hours of overtime each week and the standby allowance associated with the Funeral Director – Arranger/Conductor classification.

The Position Descriptions

[36] The two position descriptions have much in common. However, they also contain some important differences. Both documents contain a section headed “Job Summary” and the wording in each case is almost identical. However, the position description for the Funeral Director – Arranger/Conductor: Funeral Division makes reference to “arrange and conduct funerals,” 30 whereas in the Funeral Director – Administrative Arranger position description there is no reference to “conduct funerals.” The Funeral Director – Administrative Arranger position description also makes reference to the requirement to “provide administrative support to the location.”31 It also makes reference to the requirement for administration skills, which is not found in the other document.

[37] The documents then continue with a heading “The Key Functions.” Again, this section has much in common in both position descriptions, particularly in regard to a series of dot points under the heading “Arrange Funerals,” although it is noted in the Funeral Director – Administrative Arranger position description it contains a dot point stating “Develop and communicate the funeral plan to the client and funeral conductor.” 32 The same dot point is contained in the other position description, although it simply indicates “Develop and communicate the funeral plan to the client.”33 There is no continuing reference to “Funeral Conductor.”

[38] However, each document also contains a completely different set of requirements under this “Key Functions” heading. In the case of the Funeral Director – Arranger/Conductor: Funeral Division position description those different words are as follows:

“Conduct funerals:

– Prepare, direct, coordinate and monitor all aspects of the funeral according to the Arrangement Form, the funeral plan, and InvoCare policies, procedures and quality standards

– Carry out all procedures with sensitivity to client grief as well as personal beliefs, traditions, rituals and special requests

– Be familiar with and check accuracy for all documentation that is required for burials and cremations

– Coordinate, instruct and monitor the funeral team throughout the funeral process

– Respond appropriately to requests, concerns, complaints and unforeseen circumstances

– Monitor vehicles and equipment use, cleanliness and needs.” 34

[39] In the Funeral Director – Administrative Arranger different wording is again found under the heading “Operations.” In this case the wording is as follows:

“Provide effective and timely administrative and support services:

– Represent the company as a first point of contact for clients, visitors and telephone callers

– Ensure reception and office area is welcoming, neat and tidy and reflects a professional image

– Data entry, word processing (letters, memos, reports, presentations), email, generation and dissemination of documents by following company procedures and associated work instructions

– Photocopying, compiling documents and general clerical services

– Reconcile petty cash and receive and a bank payments

– Ensure the availability and maintenance of standard office equipment and supplies in the area controlled (answering machines, photocopiers, facsimile machines)

– Process incoming and outgoing mail and courier bags and maintain files and records.” 35

[40] Both documents then contain the same wording under the headings “internal systems and processes” and “customers”. Under the heading “financial” there is only a minor difference with the Funeral Director – Administrative Arranger position description containing the dot point “follow debt collection procedures for Arrangers”, 36 whereas the other document states “follow specified debt collection policy and procedures.”37

[41] Under the next heading “human resources” the wording is again identical, however, under the next heading “experience” the Funeral Director – Administrative Arranger position description contains one additional dot point in the following terms “Experience in an administrative capacity and computer literate.” 38

[42] Both documents of then contain a heading “Job-Related Qualities,” which again contain much in common, but also have some minor differences. For examples, in the Funeral Director – Arranger/Conductor: Funeral Division position description of these additional dot points appear:

“— Plan, organise and conduct an event so that it runs smoothly within timelines

...

• Communicate confidently one-on-one and in groups in activities such as meetings and public presentations

...

• Speak confidently in public.” 39

[43] The Funeral Director – Administrative Arranger position description does not contain these dot points but does contain one additional job quality being “Plan and organise an event so that it runs smoothly within timelines.” 40

[44] The only other differences are then found in the section of both documents headed Qualifications/License/Registrations. In both the documents it is indicated that a current driver’s licence is an essential requirement. However, in the Funeral Director – Arranger Conductor position description it is indicated that it is also desirable to be a current Justice of the Peace. This is not included in the Administrative Arranger position description, however, it also includes an additional point in this section that is not found in the other document being, “Qualification in administration, information technology and/or secretarial studies, or evidence of training and experience in reception and administration skills.” 41

[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 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.

COMMISSIONER

Final written submissions:

The Applicant filed written materials on 30 July 2014.

The Respondent filed written materials on 24 July 2014 and advised the Commission on 1 August 2014 that it did not intend to file anything further.

 1   AE882522

 2   Form F10 submitted 15 July 2014 at Question 4, para 1

 3   Fair Work Act 2009 (Cth) at s.739(1)

 4   Ibid at s.738(b)

 5   Above n.i at cl.2

 6   Ibid at cl.9.3.1

 7   Respondent’s submissions dated 24 July 2014 at para 24

 8   Above n.i at cl.1.1

 9   Submissions of the Applicant dated 30 July 2014 at para 23

 10   Ibid at para 26

 11   Ibid at para 31

 12   Ibid at para 35

 13 (1996) 66 IR 182.

 14   Ibid at page 184.

 15 (1998) 80 IR 208

 16   Ibid at page 212

 17 [2006] FCAFC 84

 18   Ibid at page 150-151

 19   Above n.ix

 20   Above n.i at cl.7.4.3

 21   Ibid at cl.9.1

 22   Ibid

 23   Ibid at cl.9.3.5

 24   Ibid at cl.8.5

 25   Letter of Offer sent to Amber Addison dated 31 July 2012 at page 1, provided with Respondent’s submissions dated 24 July 2014

 26   Ibid at page 2

 27   Ibid

 28   Ibid

 29   Letter of Offer sent to Amber Addison dated 7 September 2012 at page 1, provided with Respondent’s submissions dated 24 July 2014

 30   Position Description, Funeral Director - Arranger/Conductor: Funeral Division at page 1, provided with Applicant’s submissions dated 30 July 2014

 31   Position Description, Funeral Director - Administrative Arranger at page 1, provided with Applicant’s submissions dated 30 July 2014

 32   Ibid at page 2

 33   Above n.xxxi

 34   Ibid at page 2

 35   Above n.xxxii at page 1

 36   Ibid at page 2

 37   Above n.xxxi at page 3

 38   Above n.xxxii at page 3

 39   Above n.xxxi at page 3-4

 40   Above n.xxxii at page 4

 41   Ibid at page 5

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