Andreou v Berkeley Challenge Pty Ltd
[2014] FCCA 738
•11 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANDREOU v BERKELEY CHALLENGE PTY LTD | [2014] FCCA 738 |
| Catchwords: INDUSTRIAL LAW – Small claims list – whether employee entitled to be paid leading hand allowance. |
| Legislation: Fair Work Act 2009, ss.40, 50, 548 |
| City of Wanneroo v ASU (2006) 153 IR 426 |
| Applicant: | Costa Andreou |
| Respondent: | Berkeley Challenge Pty Ltd |
| File Number: | MLG 2214 of 2013 |
| Judgment of: | Judge Jones |
| Hearing date: | 28 March 2014 |
| Date of Last Submission: | 28 March 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 11 April 2014 |
REPRESENTATION
| Mr Pung for the Applicant |
| Mr Douglas for the Respondent |
ORDERS
(1) The applicant’s application filed on 12 December 2013 is dismissed.
| (1) FEDERAL CIRCUIT COURT OF AUSTRALIA AT Melbourne |
MLG 2214 of 2013
| Costa Andreou |
Applicant
And
| Berkeley Challenge Pty Ltd |
Respondent
REASONS FOR JUDGMENT
Introduction
1. By his application and Form 5 Small claim under the Fair Work Act 2009 (“the Act”) filed on 12 December 2013, the applicant claims:
a.a) Contravention of s.40 of the Act by reason of failure of the respondent to pay Leading Hand allowance for the period from 1 August 2010 to 19 January 2012 in accordance with Clause 17.6 of the Cleaning Services Award 2010 (“the Award”); and
b.b) Contravention of s.50 of the Act by reason of failure of the respondent to pay Leading Hand allowance for the period from 20 January 2012 in accordance with Clause 20.5 of the Berkeley Challenge Pty Ltd –– Melbourne Airports Agreement 2011 (“the Agreement”).
c.2. The applicant claims that he has been underpaid a total amount of $6,886.22.
d.3. The respondent, Berkeley Challenge Pty Ltd, by its response and defence filed on 13 January 2014 says that the applicant is not entitled to the payments of Leading Hand allowance under either the Award or Agreement.
Background
a.4. The following facts are agreed:
b.a) The applicant was employed full-time by the respondent from 1 August 2010 to 30 June 2013 at the Qantas Maintenance Base;
c.b) The applicant was employed as a cleaning supervisor and at all material times was covered by the Award and Agreement and classified as a Cleaning Services Employee (CSE) Level 3 under the Award and Agreement; and
d.c) The applicant’s duties included responsibility for supervising between 11 and 20 employees on both the morning and afternoon shifts, coordinating the work of cleaners employed at lower levels in the classification structure, rostering, maintenance of timesheets and records, responsibility for making decisions at the workplace, dealing with and managing customers, tenants and contractors and maintenance of plant and equipment.
e.5. In his oral evidence the applicant stated that he did receive a toilet allowance in addition to his hourly rate of $18.97. The applicant stated that he was the cleaning supervisor for the morning and afternoon shifts he worked at the Qantas maintenance base. He said he generally supervised around 12 to 15 employees. He stated that during his employment with the respondent he did not query with the respondent his entitlement to a Leading Hand allowance.
f.6. The resolution of the issue in dispute requires the Court to determine whether, upon the proper construction of the relevant provisions of the Award and Agreement, the applicant was entitled to be paid the Leading Hand allowance.
g.7. The applicant was represented by Mr Pung, authorised representative of the applicant and the respondent by Mr Douglas, General Manager Human Resources.
Relevant provisions of the Award and Agreement
a.8. Clause 16.1 of the Award relevantly provides that:
1. “An employer must pay full-time employees minimum weekly wages for ordinary hours (exclusive of penalties and allowances) as follows:
2. …”
a.9. Clause 17.6 off the Award provides:
1. “Leading hand allowance
2. An employee placed in charge of other employees will be paid the following amounts in addition to their classification rate of pay:
| Number of employees | % of the standard rate per week |
| 1 to 10 employees | 6.00 |
| 11 to 20 employees | 7.72 |
| Over 20 employees | 9.44 |
1. ”
a.10. The classification structure for levels CSE 2 and 3 are set out in schedule D to the Award. The extracts from the classification structure are reproduced at Appendix A to this decision.
b.11. Clause 19.1 of the Agreement relevantly provides:
1. “Subject to the wage increases set out in clause 21.1, the Company must pay full time employees the minimum weekly wages for ordinary hours (exclusive of penalties and allowances) as follows:
2. …”
a.12. Clause 20.5 of the Agreement provides:
1. “An Employee placed in charge of other Employees will be paid the following amounts in addition to their classification rate of pay:
| Number of employees | % of the standard rate per week |
| 1 to 10 employees | 6.00 |
| 11 to 20 employees | 7.72 |
| Over 20 employees | 9.44 |
1. ”
a.13. The classification structure for levels CSE 2 and 3 are set out in schedule A to the Agreement. The extracts from the classification structure are reproduced at ‘Appendix A’ to this decision.
b.14. It is to be noted that the provisions of the relevant clauses in the Award and the Agreement regarding Leading Hand allowances are substantially in the same terms. The classification structures for levels CSE 2 and 3 under the Award and the Agreement are in identical terms.
Submissions
a.15. The applicant submits that the meaning of clause 17.6 of the Award and clause 20.5 of the Agreement is clear and unambiguous; namely that where an employee is placed in charge of other employees, as the applicant was during his employment, then the employee is entitled to a Leading Hand allowance in addition to their classification rate of pay. The applicant submits that irrespective of the classification of the employee, they are entitled to be paid the Leading Hand allowance. The clauses in question, it is submitted, do not operate in a mutually exclusive manner.
b.16. The respondent submits that clause 17.6 of the Award and clause 20.5 of the Agreement must be read having regard to the provisions of CSE levels 2 and 3 of the classification structures contained in the schedules to the Award and Agreement. The respondent submits that the provisions of the CSE level 2 classification structure in the Agreement contain a specific reference, in the indicative tasks listed, to an employee, “carrying out those roles expected of a leading hand (and has paid the allowance as stipulated in clause 20.5).” The respondent points out that there is no reference in CSE level 3 to the employee being expected to carry out the role of the leading hand. This silence is, the respondent submits, deliberate because the classification at that level is a classification for employees who are supervisors. The respondent submits that the rate of pay for CSE level 3 reflects an intention that an employee classified at that level supervise or are in charge of employees. The respondent maintains that the payment of a Leading Hand allowance to an employee who is classified and paid at the CSE level 3, would amount to double counting.
Principles of construction
a.17. The principles of construction of awards and agreements are settled. The principles are extracted in the following authorities which I have respectfully applied in this decision.
b.18. These principles were clearly set out by Justice French (as His Honour then was) in the Federal Court of Australia in City of Wanneroo v ASU, where his Honour said:
1. “The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘... the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).”
a.19. His Honour then said:
1. “It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-4 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
2. Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”
a.20. In Kucks v CSR Limited (1996), Madgwick J stated:
1. “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.
2. 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.”
a.21. In Amcor v CFMEU, the High Court was required to interpret a clause in an enterprise agreement. The majority set out the approach to be adopted in interpreting such a clause:
1. “Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of clause 55.1.1, but also to a number of other matters: first, the other provisions made by clause 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.”
a.22. In addition, two of the Judges in Amcor adopted the passage in Kucks described above in relation to interpreting an enterprise agreement.
Consideration
a.23. In accordance with the settled principle, the entitlements of employees covered by the Award and Agreement to the Leading Hand allowance must be construed having regard to other provisions of the statutory instruments, including the classification structures. The plain words of the Leading Hand allowance clauses under the Award and Agreement require such an approach as they provide that the allowance be paid, “in addition to their classification rate of pay.”
b.24. It is clear, having regard to the provisions contained in CSE levels 2 and 3, that a distinction between those levels is whether the employee is a supervisor. CSE level 2 provides that the employee, “works under general supervision either individually or in a team.” By comparison an employee at the CSE level 3, “coordinates the work of CSE1s and CSE 2s and generally superintends the activity of all the building cleaners as a building supervisor or manager.” On the ordinary meaning of these provisions there is a distinction between the CSE level 2, who are supervised and the CSE level 3 who are the supervisors. As the respondent has submitted the provisions of the classification CSE 2 make it plain that an indicative task or combination of tasks at that level includes, “carrying out those roles expected of her leading hand (and is paid the allowance as stipulated in (relevant) clause.” By comparison the provisions of the classification CSE 3 are silent with respect to the payment of a leading hand allowance. I am satisfied that the omission of a requirement that the employee be paid a leading hand allowance is not a clumsy drafting error or mere infelicity of expression. Rather, it reflects a well understood distinction in the industrial context between a leading hand and supervisor.
c.25. The CCH Macquarie Dictionary of Employment and Industrial Relations (1992 Ed) defines Leading Hand as:
1. an employee working with tools or production who also is to some degree concerned with supervision of other employees. Also chargehand; group leader; lead man or lead woman; working supervisor; working foreman. Contrast foreman; supervisor. See also straw boss.”
a.26. Supervisor by contrast is defined as:
1. a person of the first or second level of the total managerial structure who is in charge, whether directly or indirectly, of a particular area of operations in an organisation, and responsible for making the most efficient use of the resources of employees, materials and machinery in that area. The level of supervisory responsibility may vary between that of a leading hand, who although involved with supervising others is still mainly occupied with operative duties, and that of a manager. A first-line supervisor (sometimes also called first-line manager or front-line supervisor) is the immediate boss of a work group, and a second-line supervisor (e.g. a shift engineer) may direct the supervisory system and link it with higher management. See also chain of command; foreman; group leader; hierarchy; line-staff doctrine; managerial structure; middle management; organisation structure; semi-autonomous work group; span of control; straw boss.”
a.27. This distinction is apparent in the indicative tasks specified for a CSE 3 which include, “coordinating the work with leading hands of all building cleaners.”
b.28. The supervisor under the Award and Agreement (CSE 3) is remunerated at a higher rate of pay than an employee, not being a supervisor. However, if an employee, not being a supervisor, carries out the roles expected of a leading hand and is paid the relevant allowance, that employee is classified at CSE 2. The statutory instruments do not define what is the meaning or role of a Leading Hand. However, it is clear by the specification of the duties and indicative tasks in the hierarchy provided in the classification structure that it cannot be the role of the employee who co-ordinates the work of the CSE levels 1 and 2 and who co-ordinates the work of the leading hands. These duties are those of the supervisor who is classified at CSE level 3. The performance of the duties of a supervisor are incorporated in CSE 3, with its associated highest rate of pay in the classification structure.
c.29. The construction contended for by the applicant would involve the payment of an allowance for a duty (being in charge of employees) which is already incorporated in the highest classification level, CSE 3, and for which the applicant receive the highest rate of pay in the classification structure. The construction contended for is one that is inconsistent with the classification structure, whose purpose is to provide employees with differential rates of pay according to the skills and responsibilities which they exercise in their work. I agree with the respondent that the construction argued for by the applicant, in effect, would involve a double counting and operate unfairly.
d.30. I am satisfied that the obligation to pay a Leading Hand allowance pursuant to clause 17.6 of the Award and clause 20.5 of the Agreement does not extend to employees who are classified and paid at CSE level 3.
Conclusion
a.31. Accordingly, I find that the applicant, being an employee classified and paid at the CSE 3 level of the Award and Agreement was not entitled to be paid the Leading Hand allowance in accordance with clause 17.6 of the Award or clause 20.5 of the Agreement. Consequently, the applicant’s application filed on 12 December 2013 is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 11 April 2014
APPENDIX
Cleaning Services Award 2010
Schedule D – Classifications
D.2Cleaning Services Employee Level Two (CSE 2) is an employee who at the completion of training is capable of performing work within the scope of this level. Such an employee performs work above and beyond the skills of an employee at CSE 1 level and:
works from complex instructions and procedures;
assists in the provision of on-the-job training;
works under general supervision either individually or in a team;
is responsible for assuring the quality of their own work; and
performs those tasks customarily performed by cleaners.
D.2.2CSE 2 may be required to perform any duties of a CSE 1 and, in addition, performs any of the following indicative tasks or a combination of such tasks, for the greater part of each day or shift:
routine repair work and/or building maintenance (of a non-trade nature) in or about the facility;
ordering and distribution of toilet and other requisites and cleaning materials;
customer or public relations duties as required;
carrying out those roles expected of a leading hand (and is paid the allowance as stipulated in clause 0);
carpet cleaning;
cleaning windows on the exterior of multi-storied buildings from swing scaffolds, boatswain’s chairs, hydraulic bucket trucks or similar devices;
operating ride-on powered machinery;
operating steam cleaning and pressure washing equipment;
maintaining gardens, lawns and rockeries;
trimming edges, mowing lawns, sowing, planting, watering, weeding, spreading fertiliser, clearing shrubs and trimming hedges;
vehicular rubbish collection and operating mobile compaction units; and
specialist computer cleaning.
D.3Cleaning Service Employee Level Three (CSE 3) is an employee who at the completion of training performs work above and beyond the skills of an employee at CSE 2 notwithstanding the fact that a CSE 3 may be required to perform any duties of a CSE 1 or CSE 2. An employee at this level works from complex instructions and procedures;
assists in the provision of on-the-job training;
co-ordinates the work of CSE 1s and CSE 2s and generally superintends the activity of all the building cleaners as a building supervisor or manager;
is responsible for ensuring the quality of their work; and
has a knowledge of the employer’s operation.
D.3.1Indicative of the tasks which an employee at this level may perform are the following:
ensuring that proper maintenance procedures for building plant and equipment are observed;
arranging service calls to ensure that building plant is operating correctly;
dealing with tenants and owners responsible with respect to the proper cleaning, servicing and functioning of the building;
co-ordinating the work with leading hands of all building cleaners;
handling routine personnel, industrial relations and health and safety matters; and
being directly involved in the provision of on-the-job training
Berkeley Challenge Pty Ltd – Melbourne Airports Agreement 2011
Schedule A – Classifications
Cleaning Services Award 2010
A.2A Cleaning Services Employee Level Two (CSE 2) is an Employee who at the completion of training is capable of performing work within the scope of this level. Such an Employee performs work above and beyond the skills of an Employee at CSE 1 level and:
•• works from complex instructions and procedures;
•• assists in the provision of on-the-job training;
•• works under general supervision either individually or in a team;
•• is responsible for assuring the quality of their own work; and
•• performs those tasks customarily performed by cleaners.
A.2.1A CSE 2 may be required to perform any duties of a CSE 1 and, in addition, performs any of the following indicative tasks or a combination of such tasks, for the greater part of each day or shift:
•• routine repair work and/or building maintenance (of a non-trade nature) in or about the facility;
•• ordering and distribution of toilet and other requisites and cleaning materials;
•• customer or public relations duties as required;
•• carrying out those roles expected of a leading hand (and is paid the allowance as stipulated in clause 20.5);
•• carpet cleaning;
•• cleaning windows on the exterior of multi-storied buildings from swing scaffolds, boatswain's chairs, hydraulic bucket trucks or similar devices;
•• operating ride-on powered machinery;
•• operating steam cleaning and pressure washing equipment;
•• maintaining gardens, lawns and rockeries;
•• trimming edges, mowing lawns, sowing, planting, watering, weeding, spreading fertiliser, clearing shrubs and trimming hedges;
•• vehicular rubbish collection and operating mobile compaction units; and
•• specialist computer cleaning.
A.3A Cleaning Service Employee Level Three (CSE 3) is an Employee who at the completion of training performs work above and beyond the skills of an Employee at CSE 2 notwithstanding the fact that a CSE 3 may be required to perform any duties of a CSE 1 or CSE 2. An Employee at this level:
•• works from complex instructions and procedures;
•• assists in the provision of on-the-job training;
•• co-ordinates the work of CSE 1 sand CSE 2s and generally superintends the activity of all the building cleaners as a building supervisor or manager;
•• is responsible for ensuring the quality of their work; and
•• has a knowledge of the Company's operation.
A.3.1Indicative of the tasks which an Employee at this level may perform are the following:
•• ensuring that proper maintenance procedures for building plant and equipment are observed;
•• arranging service calls to ensure that building plant is operating correctly;
•• dealing with tenants and owners responsible with respect to the proper cleaning, servicing and functioning of the building;
•• co-ordinating the work with leading hands of all building cleaners;
•• handling routine personnel, industrial relations and health and safety matters; and being directly involved in the provision of on-the-job training
Key Legal Topics
Areas of Law
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Employment Law
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Negligence & Tort
Legal Concepts
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Duty of Care
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Negligence
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Causation
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Damages