[2018] FWC 4305

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Ann Brierley & Melissa Chuck
v
Victoria Police
(C2017/2424; C2017/2425)

COMMISSIONER WILSON

MELBOURNE, 8 AUGUST 2018

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] Ann Brierley and Melissa Chuck (the Applicants) are employed by Victoria Police. Until March 2014 each was employed as sworn personnel in the roles of Penalty Review Officers in the Internal Review Unit – Traffic Camera Office (TCO). After March 2014 however, they were re-classified as VPS-2 Penalty Review Officers. Both Applicants assert that they should be classified under the VPS-3 classification given the nature of duties performed, their knowledge and their experience.

[2] The Applicants characterise their applications as disputes raised under the dispute resolution term within the Victorian Public Service Enterprise Agreement 2016 1 (the VPS Agreement 2016). The relief sought in these applications are:

“…to have the reclassification of their positions from a VPS-2 to a VPS-3 based on the nature of the duties performed, coupled with their knowledge and experience.” 2

BACKGROUND

[3] Evidence was given in this matter on behalf of the Applicants by both Ms Brierley and Ms Chuck as well as three other people who had each served as a supervisor or manager of the Traffic Camera Office, Mike Mohammed, Michael Pickering and Brendan Peterson.

[4] Evidence was given for Victoria Police by a number of witnesses working in or around the TCO including; Sergeant of Police Adrian Badaracchi, Superintendent Don Downes, Senior Supervisor Iain Gillanders, Inspector Damien Madden, Senior Sergeant Michael Kelly and Senior Constable Victoria Findlay. In addition, the Hon. Brian Lacy, Barrister, gave evidence for Victoria Police, having been retained by them to provide expert advice on the subject of the applications now before the Commission. In addition, the Commission was assisted through the submissions and documentary materials provided on behalf of each party.

[5] Maurice Addison, solicitor from Maddison and Associates, appeared for Ms Brierley and Ms Chuck, and Brendan Avallone, of Counsel, instructed by Maddocks, appeared for Victoria Police. Permission for each party to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Fair Work Act 2009 (Cth) (the FW Act), with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)).

[6] The precise scope of the Traffic Camera Office is not before me, however it appears uncontroversial that the office is a unit within Victoria Police which is charged with administering the State’s regime of traffic infringement notices. Within the TCO itself is the Penalty Review area which in turn is charged with processing applications from the recipients of traffic infringement notices (referred to as Notices) either for the overturning of a Notice on evidential grounds; the withdrawal of a Notice for a variety of reasons including extenuating circumstances unique to the driver; or the reassignment of a Notice to another person, or an unknown person, as a result of information provided by the original recipient.

[7] Mr Lacy’s report summarises the operations and structure of the TCO thus:

“The TCO organisation consists of 21 sworn officers and about 52 unsworn staff. Currently the TCO is under the control of a Superintendent of Police with an Inspector as second in command. A Senior Sergeant of Police is responsible for management of the TCO with a Sergeant of Police as the Officer-in-Charge of the Internal Review Section. There is a Leading Senior Constable who is responsible for False Nominations and a Senior Constable as Training Coordinator. The Internal Review Team consists of 23 Penalty Review Officers (PRO). The team is divided into 4 pods each of four or five VPS2 PROs overseen by four VPS3 Team Leaders. The PROs are responsible for reviewing pleas for following types of infringements:

• Camera generated speed infringements

• Camera generated red light infringements

• Police issued speed infringements

• Police issued loss of licence for excessive speed, alcohol or drug offences

• Public Nominations

• Taxi Nominations

• Tolling

• Special Circumstances

In the course of a year there are about 1.5 millions camera infringements, 1 million Tolling offences and 500,000 ticket offences. In 2016-17 the TCO reviewed 270,856 infringements. The reviews are conducted in accordance with the Infringements Act 2006, the Traffic Camera Office Penalty Review TCO Guidelines 2017, Penalty Review Process for Internal Review for Camera & On the Spot Infringements and Penalty Review Process for Continuation of Offence.

In conducting penalty reviews PROs use a data base system known as VIEW, which replaced the Victorian Infringement Management Systems (VIMS). The new system is less complex than VIMS, which involved working with about 6 different systems. VIEW has cut it down to 3 systems and has alleviated to a large extent the need for PROs to exercise discretion in issuing warnings and in their correspondence to applicants for review. Whereas VIMS at times required PROs to modify correspondence to applicants for a review, the new system automatically generates a response depending on the outcome selected from the options.

VIMS was switched off on 22 December 2017. VIEW was turned on in January 2018. Although VIEW streamlines the process there are issues with it that still need fine tuning.” 3

[8] The focus of much of the evidence in these proceedings about the Applicants’ work concerns several of the bulleted matters referred to above, namely Public Nominations; Taxi Nominations; and Special Circumstances, with one additional matter, Extenuating Circumstances not referenced above. Broadly speaking, “Nominations” refer to the review work of the TCO which is required “when a person returns an infringement notice nominating another person as the driver of the vehicle at the time of the infringement”. 4 Public Nominations is a reference to a straight driver to driver nomination, whereas Taxi Nominations refer to those occasions “where a taxi company nominates a driver as the person responsible for a number of infringements”.5 The TCO reviewer is charged with determining whether to accept or reject the nomination which at times requires some investigation given the TCO is dealing with incomplete data or an error in the nomination form. “Special Circumstances” and “Extenuating Circumstances” matters refer to requests made by recipients of infringement notices to have a Notice waived because of their particular circumstances, with a different range of tests to be applied in the case of each type. Special Circumstances and Extenuating Circumstances require TCOs to exercise discretion according to specific guidelines.

[9] Both Ms Chuck and Ms Brierley are engaged as Penalty Review Officers (PROs) within the TCO’s Penalty Review area and have been for some years. The employment of each is covered by the VPS Agreement 2016, which commenced operation on 18 May 2016 and has a nominal expiry date of 31 December 2019. Before the VPS Agreement 2016 commenced operation,each Applicant’s employment was covered by the VPS Agreement’s predecessors, the Victorian Public Service Workplace Determination 2012 (VPS Workplace Determination) and, before that, the Victorian Public Service Agreement 2006 (as varied and extended in 2009) (VPS Agreement 2006). 6

[10] Ms Brierley and Ms Chuck are each classified under the VPS Enterprise Agreement 2016 at the level of VPS Grade 2, Value Range 2 (referred to from this point as VPS-2.2). The Applicants contend that their positions should be classified at the grade of VPS-3. The parties disagree as to the mix and characterisation of duties performed by the Applicants in their substantive position as PROs; whether those duties are required of their position; and whether those duties are at a VPS-2 or VPS-3 level. 7

[11] From time to time the Applicants are paid a higher duties allowance to perform different duties in VPS-3 positions, and are paid as such. For Ms Chuck those periods have included between 21 March 2016 to 1 April 2016 and 17 October 2016 to 24 October 2016 when she was promoted to Tolling Team Leader; between 12 February 2017 to 25 March 2017 where she was promoted in order to create and write Training Manuals and from 14 May 2018 ongoing as at the time of the hearing as Nomination Team Leader. Ms Brierley was upgraded to a VPS-3 position between 27 September 2017 to 17 November 2017 and from 4 June 2018 ongoing as at the time of the hearing. There is no dispute that those higher duties warrant payment at that level. 8

[12] The Traffic Camera Office, and each of the employees in it (including the Applicants in the position of PRO) are required to apply the Traffic Camera Office Penalty Review Guidelines 2015 9 (the TCO Guidelines). The TCO Guidelines are made pursuant to a requirement of the Attorney-General’s Guidelines to the Infringements Act 2006, (the AG’s Guidelines) in accordance with the Infringements Act 2006 (Vic)10which require that each enforcement agency must develop procedures for the conduct of internal reviews of infringement notices.11

[13] So far as is relevant to these matters, review applications made to the TCO which are dealt with by the Applicants and other staff within the TCO are in two broad categories; those referred to as Nominations and those reviews which raise either Special Circumstances or Extenuating Circumstances which were discussed above. The processes and procedures for dealing with Nominations and Special or Extenuating Circumstances are dictated by the TCO Guidelines and the Applicants and other TCO staff must refer to the TCO Guidelines when carrying out their reviews.

[14] Consideration of applications for review of traffic infringement notices is performed subject to the requirements of legislation, as well as the TCO Guidelines. One of the matters in dispute in these applications is the extent to which the Guidelines require certain decisions to be referred to more senior officers than the Applicants. While the TCO Guidelines are subject to a Confidentiality Order of the Commission requiring they not be published, it is necessary to refer in this decision to certain relevant parts of the TCO Guidelines in order to properly express the reasons for my findings on key matters, with the relevant parts set out below. For the avoidance of doubt, the Confidentiality Order does not extend to the parts reproduced below or referred to elsewhere in this decision, and is taken to be varied to the extent necessary to allow publication of the relevant parts.

[15] The parts of the TCO Guidelines relevant to this decision covered by the foregoing are:

• In relation to Extenuating Circumstances (taken into account as a reason to consider the matter further, or to withdraw an infringement notice);

• A definition of “Extenuating” which is not reproduced in this decision;

• Clause 32, as follows;

“32. Extenuating Circumstances

If in the VIEW of the Reviewing Officer, a decision outside these guidelines or an alternate review outcome is warranted due to extenuating circumstances, the file MUST be referred to the manager of the Penalty Review Section for endorsement of the decision.”

• In Part 3 (Internal Review Outcomes), Division 4 (Manager Discretion);

“39. Authorisation Outside Policy

Notwithstanding the contents of this policy, the Officer in Charge or the manager of the Penalty Review Section may approve an alternative course of action where it is deemed appropriate on the basis of;

(a) Special or extenuating circumstances; or

(b) Public interest; or

• In relation to Nominations (being when an original recipient of an infringement notice nominates another or unknown person as the driver of an offending vehicle);

“100. Stolen Vehicles and Unknown User Statements

All Illegal User, Unknown User, Nomination Rejection and Repeat Incomplete nomination statements received by the TCO as a request for a review must be converted to a nomination and processed in the Nominations screen of IRCMS 12 as outlined in the Nominations Policy.” (formatting added)

Matters relevant to Ms Brierley

[16] Ms Brierley started working in the TCO in 2003, first being employed at a classification equivalent to the present VPS-1 level. In 2004 she lodged an internal grievance after forming the view that the position was under classified and was successful in having the position converted to the present VPS-2 level. After expressing interest in becoming a PRO she moved into her present position in November 2009 as a VPS-2. From early 2011 she sought reclassification of her position to VPS-3, believing the role to be in conformity with the relevant descriptors in the VPS Agreement 2006. 13

[17] An organisational review was commenced in November 2011 which Ms Brierley believed had the potential to impact on the subject of classifications. At around the same time, Ms Brierley formally sought her position to be reclassified to VPS-3. Neither the organisational review which was completed in April 2013 or the reclassification grievance, completed in January 2013, led to a change in Ms Brierley’s favour. 14 In February 2013, Ms Brierley commenced a grievance application but was unable to continue with it at the time, owing to a number of factors, but recommenced the matter on 11 May 2015 when she joined with other staff members who submitted a reclassification application.15 That process passed through a work review assessment completed by an internal officer, Kate Hutchinson (Senior Consultant, Classifications and Review, Human Resource Department). When the affected staff were dissatisfied with the outcome of the work review assessment, a review was completed by another person, Keith Colliver (Manager, Business Services, People Development Command).16 Mr Colliver’s report was completed on 22 August 2016 with him finding that some elements of the VPS-3 descriptors had been met; that the work of the five employees he had reviewed “is on the cusp of a VPS-3” but that such changes as may have occurred in the work were only temporary and should be reconsidered a later point. He also recommended that in recognition of the changes which had occurred to the employees work that a gratuity should be paid to them:

“There is no requirement for the PRO’s to meet all the descriptors of a VPS-3 to be successful in their regrade application. They are merely required to demonstrate that, on balance, their roles are at the VPS-3 level.

I am of the view that they have demonstrated that their decision making, communication and knowledge & proficiency meet the VPS-3 descriptors. I further believe that these descriptors represent the critical elements of their roles.

Whilst innovation & originality is not a regular and ongoing requirement of the role, the PRO’s have provided examples that indicate they do, on occasion, meet this VPS-3 descriptor. However, there must be a role requirement for innovation and originality, which does not currently exist, for the PRO’s to be scored at the VPS-3 level against this descriptor.

The role does meet some VPS-3 descriptors in Administration & Corporate Support and Operational Service Delivery but, I believe the PRO’s predominantly operate at a VPS-2 level against these descriptors.”

and;

“On balance, I am of the view that the role of the PRO’s is on the cusp of a VPS-3. They operate in a moderately complex environment where policy does not exist and are accountable for decisions that have a significant impact on those involved, which elevates aspects of the role to VPS-3 level.

Whilst management maintains the view that the PRO’s are processors, they acknowledge that their roles have grown since the organisation review was completed and sworn members were removed from the area. A post implementation review was put on hold by TCO management and this has further contributed to the growth in the PRO role.

I am of the view that the role growth should be considered “temporary” until such time as the post implementation review is completed. Taking into account this view, the role fails to meet the VPS-3 descriptors and should remain a VPS-2. However, given management’s decision to place the post implementation review on hold has been the major contributor to the growth in the job role, I believe the PRO’s should be compensated for the additional work they have performed.

Consequently, I recommend that the PRO’s be paid a gratuity from the time their review was submitted at the difference between current salary and the base of a VPS-3. It is also recommended that TCO management immediately commence the post implementation review.” 17

[18] The reference to a post implementation review is referred to in Mr Colliver’s report as having been something contemplated following the organisational review:

“… at a workshop with both management and staff on Friday 19 August 2016, it was acknowledged that staff are performing some tasks at a higher level. This appears to have occurred following an organisation review, completed in March 2014, which resulted in the removal of sworn positions from the area. A post implementation review was intended to be conducted but, this was put on hold by TCO management. Consequently, it appears that the role of the more experienced VPS-2 PRO’s has expanded during this time.” 18

[19] Mr Lacy’s report noted that the post implementation review “has not been undertaken, but it is in the process of being initiated”. 19

Matters relevant to Chuck

[20] Ms Chuck commenced employment in the TCO on 17 September 2012 in the prosecution section and after working in several other sections began training on the internal review, Penalty Review section in August 2013. Since August 2013 she has worked as a PRO in the internal review section. 20 A significant part of Ms Chuck’s work has been associated with Nomination Statements, with her pointing to a period of some months between October 2013 in January 2014 when that work was her sole function.21 Her evidence is that between October 2013 and the date of the hearing that she had progressed through all aspects of the internal review processes. Her evidence also includes that over time she has “become a Senior Penalty Review Officer”.22 That term and its assignment are somewhat controversial with the Respondent’s witnesses who suggest that it is not a title of an employment position as such, but instead one assigned informally because of experience in the role. Ms Chuck herself agreed that this was not an official title and was first used by a former supervisor, Mike Mohammed.

[21] From about February 2015 Ms Chuck commenced a role which she refers to as a “Training Officer/Mentor” with her being required from the time to undertake what she considers being the training of staff. Initially she was cross-training staff working on toll reviews in order to perform the Penalty Review function then subsequently from about May 2015 she trained/mentored six employees of a contractor to Victoria Police, with it being the case that:

“This training/mentoring role entailed a full induction to the Penalty Review section, teaching staff members how to use and navigate the systems, provided them with the Penalty Review guidelines (Policy) and how to interrupt and implement it. – acknowledged in my PDA.” 23

[22] According to Ms Chuck’s evidence this role continued in April 2016 when she was asked to train/mentor five other contract staff members with her undertaking that work on her own for three of the staff in question. She noted about this assignment that around the same time a training officer had been appointed and that:

“Whilst the ‘Training Officer’ completed a 4 day training course with the new staff member, I still had to teach the staff members how to use and navigate the systems, provided them with the Penalty Review guidelines (Policy) and how to interrupt (sic) and implement it. – acknowledged in my PDA.” 24

[23] In May 2016 she trained a further five contract staff members with her noting about that assignment that she needed to teach the staff members how to use and navigate the systems as well as how to work with the Penalty Review guidelines. 25 Ms Chuck then notes an assignment from late 2016/early 2017 in which she was asked to prepare what she refers to as “training manuals” intended to be used by staff with the new workflow system, VIEW:

“20. For a period of time between 13th February 2017 – 24th March 2017 I was tasked to undertake an upgraded role as a VPS3 to complete a series of training manuals for the new VIEW system to be able to see the process we require the system to do as well as enable them to produce the new training documents reflecting how the process will be performed on the new VIEW system, acknowledged in my PDA.

21. When creating the training manuals I was advised by SGT MOHAMMED that they needed to be written for a person who had never worked in Internal Review before therefore needed to be in depth and descriptive with a legislative informative background as well as a step by step action, acknowledged in my PDA.

22. These training manuals have been used by staff for each transitional learnings across the section with no formal training. S/SGT Gillanders advised SGT MOHAMMED that these manuals were to be used for upskilling the current staff, therefore Ann Brierley and myself were no longer required. However this is not the case, staff need personal guidance not just a training manual given the complexity of the work. These training manuals were then used by LSC SMITH and SC FINDLAY to train the new staff members.” 26

[24] Ms Chuck notes that she was not part of the training/mentoring role for the most recent intake of new recruits.

Matters relevant to the Lacy Report

[25] The work undertaken by Mr Lacy was commissioned by Victoria Police after conciliation of the Applicants’ claims by me, although it did not come about as a result of the conciliation process. He was provided with a significant amount of documents pertinent to the issues in question and was provided with access to a number of people in the TCO for the purposes of interview as well as the opportunity to view some of the work being undertaken and its working environment. All of the nine people who Mr Lacy spoke with gave evidence in these proceedings, whether on behalf of Victoria Police or the Applicants. Each Applicant was given an opportunity to meet with Mr Lacy but chose not to do so, although Mr Lacy took into account the content of their original witness statement for these proceedings which had been filed by the time he undertook his work.

[26] Mr Lacy was asked to provide answers to Victoria Police about a number of initial and supplementary questions, with his report detailing his views after reviewing the documents and completing the interviews and observations of the workplace. Two of the questions considered by Mr Lacy went to his opinion about the duties and tasks each Applicant performed, as well as his opinion about their classification:

“1. In respect of each of the Applicants, what are the duties/tasks of the Applicants’ positions as required by the employer and carried out by the employee? This may include consideration of the amount of time spent performing particular tasks, but also the circumstances of the employment and what the employee was employed to do. The question is one of fact to be determined by reference to the duties actually attaching to the position, rather than its title.

2. Based on your findings in relation to question 1, should each Applicant be classified within the VPS 2 Value Range (as she currently is) or at the VPS 3 Value Range under the Victorian Public Service Agreement 2016 (VPS EBA) in accordance with the Classification and Value Range Standard Descriptors (Descriptors) at Schedule E of the VPS EBA?” 27

[27] Many of the specific matters reported by Mr Lacy in relation to these questions are referred to in detail later within this decision. Mr Lacy’s conclusions included an opinion that in probability the Applicants were correctly classified as VPS-2.2, albeit that some of their duties met the VPS-3 descriptors whether actual classification at VPS-3 being problematic:

“After a review of the two folders of documents, including the Infringements Act 2006, the Traffic Camera Office Penalty Review Guidelines 2017, Penalty Review Procedure and Training Manuals and information provided by former and current sworn officers, of the Traffic Camera Office, a member of the Victorian Public service who formerly managed the Traffic Camera Office and the Colliver Report, it is my opinion with a reasonable degree of certainty that:

a) the role performed by Ms Chuck; and

b) the role performed by Ms Brierley

in the Traffic Camera Office meets some of the essential requirements of VPS 3 descriptors as specified by Schedule E to the Victorian Public Service Enterprise Agreement 2016. The probability is that the positions that Ms Brierley and Ms Chuck occupy are appropriately classified as VPS 2.2. Whether either of their positions should be classified as VPS3 is problematic and subject to determination of the conflicting views of management personnel of the scope of the work performed by Ms Brierley and Ms Chuck.” 28

[28] In the body of his report, in connection with his consideration of the Question 2, Mr Lacy elaborated upon the problematic nature of the Applicants classification, reporting that resolution of the subject may first require resolution of whether it can be said that the more complex matters are currently a major and substantial part of the Applicant’s employment. It is to be noted in relation to this contest firstly that Mr Lacy’s report was brought to this point having heard only from the management representatives on the subject, as well as the written witness statements of each Applicant put forward to these proceedings, and without having had the benefit of testing the management’s views with either Applicant. Secondly it is to be noted that the contest on the part of the management representatives continued in their oral evidence in these proceedings. Mr Lacy’s report relevantly sets out the following observations that in all probability each Applicant is appropriately classified as VPS-2.2 but with the question of classification at VPS-3 to be subject to determination of the conflicting views of the parties about the scope of the work performed by each Applicant:

“There are conflicting views about whether the more complex traffic infringement matters are currently a major and substantial part of Ms Brierley’s and Ms Chuck’s employment. While it is evident that their managers and supervisors have confidence in their decision making, communication and knowledge and proficiency in dealing with those matters, it is not a requirement of the position they occupy to confine themselves to that role. It is clear however that some managers in the TCO from time to time have acquiesced in Ms Brierley and Ms Chuck assuming the roles they have been performing in this area of the TCO responsibilities.

In the context of the eight Classification Descriptors for VPS staff, the whole range of work that is required of the positions of a PRO is within the VPS2.1A and VPS2.2A classification range. The work associated with Nominations, Police issued infringements, Tolling and Special Circumstances falls within some aspects of the descriptors for VPS3. However, shared across all PROs activities in the Internal Review Section the complex parts of the duties do not meet the requirements of the VPS3 descriptor. To the extent that the more complex matters are the “major and substantial employment” of the employee or the “principal purpose” or “primary function” of the employee it is bordering on being a VPS3 position. In other words, if there were a dedicated division or section that was solely responsible for Nominations, Police Issued infringements, Tolling and Special Circumstances, including an associated training responsibility it is more likely than not that an unsupervised VPS3 classification would be required to undertake the role necessary to perform the functions of the position.

If the fact is that each of Ms Brierley and Ms Chuck is principally engaged in processing Nominations, Police issued infringements, Tolling and Special Circumstances and instructing or mentoring others in that role then that would be their primary function, albeit a role not required of them but in which Management acquiesced. To the extent that is the fact, and assuming that they also provide on-the-job training in those aspects of the work, then in my opinion both Ms Chuck and Ms Brierley would meet the requirements for reclassification from VPS2.2 to VPS3.1 by reason of the major and substantial aspects of their employment being the more complex matters that come to the Internal Review Section.

If it proves to be the case that the particular aspects of the work to which I refer in the preceding paragraph is shared equally among seven of the PRO staff, then having regard to the spread and scope of the work across all aspects of the duties of a PRO, their “major and substantial employment” is appropriately classified as Grade VPS2.2A.

The probability is that the positions that Ms Brierley and Ms Chuck occupy are appropriately classified as VPS2.2. Whether either of their positions should be classified as VPS3 is problematic and subject to determination of the conflicting views of the scope of the work performed by Ms Brierley and Ms Chuck, as expressed by management in the attached statements, and the extent of management acquiescence.” 29

RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE

[29] In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third party. The resultant arbitrator’s award is not binding of its own force but instead its effect depends on the law which operates with respect to it. 30 It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.31

[30] The Commission is required to examine whether an enterprise agreement’s dispute settlement procedure “requires or allows” the Commission to deal with the dispute. In order to do so, it is necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. 32 The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”33

[31] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. 34 The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.35 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.36 The character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.37 However, the relief sought may cast light on the true nature of the dispute in some cases.38

[32] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant will depend on the limitation in s.739(5) 39 and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.40

[33] Interpretation of an enterprise agreement requires construction of the words of the instrument, with the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 41 (Berri) setting out the principles for such a task. In that matter, and after an extensive analysis of the subject, the Full Bench summarised the principles to be applied in the following way:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 42

[34] The application of these principles, and especially to those in which ambiguity may be considered was further considered by the Full Bench in United Firefighters Union of Australia v Emergency Services Telecommunications Authority:

“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.” 43

RELEVANT AGREEMENT AND LEGISLATIVE PROVISIONS

[35] Clause 23 of the VPS Agreement 2016 provides that Classifications are divided into Grades and Value Ranges and provides for a mechanism for employees to be moved between Value Ranges as follows:

“23. Classifications and Salaries – VPS and VPS aligned adaptive structures

…

23.2 Classifications are divided into Grades and Value Ranges.

23.3 Employees will be employed within one of these Grades and Value Ranges based on work requirements in accordance with the Classification and Value Range Standard Descriptors at Schedule E to this Agreement. Clause 23.6 deals with the arrangements for the use of the VPS 1 classification.

23.4 Movement Between Value Ranges

(a) Employees and/or positions can move between Value Ranges.

(b) Movement between the Value Ranges can occur following a job resizing review. The review process includes an assessment of the work the Employer requires to be undertaken and the performance of that work by the Employee. These are assessed against the benchmarks specified in the Classification and Value Range Standard Descriptors at Schedule E to this Agreement.

23.5 Classification and Salary on Appointment

(a) Employees will be appointed to a Grade and Value Range based on work requirements in accordance with the Classification and Value Range Standard Descriptors at Schedule E to this Agreement.

…”

[36] Schedule E of the Agreement which contains the relevant classification descriptions is in the following terms:

“Schedule E Classification Descriptors

1. VPS Non-Executive Career Structure Classification and Value Range Standard Descriptors

Table 1.1: VPS Grade Descriptors and Value Range Standard Descriptors - Grades 1 to 4
Grade 1	Grade 2		Grade 3		Grade 4
Value Range	VR1	VR2	VR1	VR2
Decision Making	1.1A	2.1A	2.2A	3.1A	3.2A	4.1A
Accountability and Frameworks	defined tasks within established rules under close supervision, defined as: ● clear and detailed instructions are provided; tasks are covered by standard procedures; ● deviation from procedures or unfamiliar situations are referred to higher levels; and ● work is regularly checked Influences own daily work priorities and schedules under direction of supervisor Accountable for accuracy and timeliness of outputs	Applies rules, processes and standards under general supervision. Plans and prioritises own work program to achieve defined targets. Changes own work program, which may impact on the operations of the work area.	Selects from a range of accepted options established by rules, processes, and standards. Makes decisions that may have significant impact on clients	Team leadership may be exercised where appropriate to the role. Exercises professional judgement about the application of rules, or the selection of choices within guidelines. Resolves local operational service delivery problems within guidelines. Reviews decisions, assessments and recommendations from less experienced team members. Determines the work organisation of the work area Analysis and advice contributes to decision making by others Manages budget and resources for the work area.	Sets local precedents regarding the application of guidelines. Provides guidance for others in the work areaand/ or related areas	Develops guidelines within the work area. Resolves operational service delivery problems consistent with program objectives. Interprets and applies business plans and policies to own area of responsibility. Advice and analysis contributes to policy formulation.

Table 1.1: VPS Grade Descriptors and Value Range Standard Descriptors - Grades 1 to 4
Grade 1	Grade 2		Grade 3		Grade 4
Value Range	VR1	VR2	VR1	VR2
Innovation and Originality
Communication	1.1B	2.1B	2.2B	3.1B	3.2B	4.1B
Provides and receives routine information. Communication is mainly focused on routine issues that may require an understanding of the operational context.	Explains rules, procedures and operational policies to individual clients or colleagues. Presents routine information to small groups and provides feedback to organisation Draft routine internal reports and correspondence. Liaises with stakeholders, clients and external providers of goods and services. Suggests alternative approaches to clients or	Conducts formal community information sessions and consultative process involving small groups or participates in a similar process in larger groups. Uses persuasion skills in dealing with an individual client, colleague, service provider or the like stakeholders Understands procedures for effectively dealing with people exhibiting challenging behaviours.	May lead a team through activities including individual and team performance management and development. Explains concepts and policies to clients, stakeholders and staff. Plans, leads and facilitates information sessions and consultative processes in a range of settings. Prepares briefs on sensitive issues for consideration of others Draft public communication documents. Communicates issues and advocates a preferred case or option to stakeholders Communicate professional/ technical concepts and advice Provides communication guidance to less experienced colleagues Uses persuasion, advocacy, negotiation and motivation skills with clients, providers, staff, peers and managers.	Plan, lead and facilitate consultative processes in a range of settings involving more difficult or sensitive issues. Prepares complex operational reports requiring in-depth factual analysis	Conveys specialist concepts and policies to clients, staff and stakeholders. Prepares reports, briefs and correspondence on complex issues that impact at program ororganisational level. Develops and implements operational communication and consultation strategies on specific projects. Applies negotiation persuasion and motivation skills tomanage staff and

Table 1.1: VPS Grade Descriptors and Value Range Standard Descriptors - Grades 1 to 4
Grade 1	Grade 2		Grade 3		Grade 4
Value Range	VR1	VR2	VR1	VR2
Knowledge and Prof	1.1C	2.1C	2.2C	3.1C	3.2C	4.1C
Focus is on learning, developing and refining work skills. Requires knowledge of equipment and tools to perform routine tasks, experiments and procedures, and develops practical application of these skills. Requires understanding of general office work routines and procedures. Acquire and apply proficiency in standard office equipment and computer applications.	Understands and applies theoretical principles, under supervision, to achieve defined outcomes. Develops knowledge of established techniques and organisational processes. Proficient in use of software or technical Equipment. Knowledge of legislation, regulations, policies and processes relevant and specific to the role.	Uses theoretical knowledge under supervision to achievedefined outcomes in a variety of work situations. Local reference point in operational processes andprocedures	Uses theoretical knowledge to achieve agreed outcomes in moderately complex work situations. Authoritative in application of processes and policy relevant to the work unit. Knowledge of relevant legislation, regulations, policies and processes.	Adapts theoretical knowledge based on practical experience and/or understanding of current issues in the field. Applies understanding of interrelationships between stakeholders and/or other work units to achieve local objectives.	Researches and applies advanced theoretical knowledge in a specialised field to operational problem solving. Applies sound theoretical and practical expertise in development of policy options. Authoritative in application of processes.
Policy and Projects	1.1D	2.1D	2.2D	3.1D	3.2D	4.1D
Provides administrative support to policy and projects, consistent with the support elements described in 1.1B.	Drafts minutes and action plans for consideration by others. Collects data, undertakes basic analysis and prepares simple reports.	Undertakes research specified by others, including data analysis. Administers routine projects under direction or coordinates project steps. Contributes to operational service delivery policy development	Researches issues and prepares draft reports and briefings within a project plan or policy framework set by others. Conducts projects of defined scope under direction. Obtains, summarises and reports on stakeholder views.	Plans and conducts several narrowly scoped projects simultaneously. Conducts aspects of more complex projects under direction. Contributes to planning on large Projects.	Researches and develops recommendations in a specific field of expertise. Develops and implements operational policy which impacts the immediate work area. Contributes to strategic policy development within a specific field of expertise. Manages projects, usually under limited direction. Contributes expertise to a team working on complex projects Prepares project scopes and briefs within broad parameters. Manages multidisciplinary project Teams.

Table 1.1: VPS Grade Descriptors and Value Range Standard Descriptors - Grades 1 to 4
Grade 1	Grade 2		Grade 3		Grade 4
Value Range	VR1	VR2	VR1	VR2
Administrative and Corporate Support	1.1E	2.1E	2.2E	3.1E	3.2E	4.1E
Performs routine administrative tasks, including general telephone, counter and front office enquiries, mail deliveries, assisting with stock control, supporting organisation of meetings, receiving and initial processing of standard paperwork.	Provides office support through activities such as using and maintaining standard office equipment and software. Drafts routine correspondence and minutes. Organises routine meetings and small functions. Undertakes standard processing work such as data entry, purchasing, payments and reports using office databases. Performs telephone and counter duties consistent with 2.1B.	Responsible for office support services and systems for a work unit. Documents meeting outcomes in more complex situations. Provides support to contract administration. Demonstrates problem solving in processing work. Create and maintains local databases or reporting systems utilising standard software. Analyse standard reports and data to identify exceptions.	May lead a corporate support team. Manages team performance through activities such as monitoring and reporting. Maintains corporate databases and completes analysis. Monitors and administers straight forward, local contracts and service agreements within a well-defined service delivery framework	Prepares and analyses reports from corporate databases to support decision making in the broader work area. Develops local databases or reporting systems. Negotiate straight forward, local contracts and service agreements.	Leads a larger or complex corporate support work unit. Provides specialist administrative and corporate support expertise. Negotiates and manages straight forward, corporate contracts and service agreements. Drafts reports and recommendations by interpreting and analysing data.

Table 1.1: VPS Grade Descriptors and Value Range Standard Descriptors - Grades 1 to 4
Grade 1	Grade 2		Grade 3		Grade 4
Value Range	VR1	VR2	VR1	VR2
Operational Service Delivery	1.1F	2.1F	2.2F	3.1F	3.2F	4.1F
Provides routine information, such as standard information and explanations, to clients and members of the public. Receives payment for routine services such as the sale of publications and individual licence fees. Performs routine service delivery functions for clients such as, driving, food preparation, cleaning, gardening, assisting qualified trade persons and minor maintenance. Operates and maintains tools and equipment appropriate to the function and level of qualification.	Provides standard services under general supervision and within a defined service delivery framework. Delivers information services to the general public or clients, including initial advice and referral. Consistent with the development of knowledge specified at 2.1C, participates in routine investigations under direction and provides evidence if required. Reconciles, banks monies and manages petty cash.	Assesses client needs and implements appropriate service delivery from a range of accepted options. Identifies where limited precedents apply and may recommend action to be taken. Assists in preparing or presenting cases in a range of review forums, tribunals and courts.	Supervises a service delivery team. Assesses client needs and delivers a range of services in complex situations investigates and assesses actions by individuals or organisations against legislation, rules, regulations and service agreements. Advocates issues involving established precedents before a range of review forums, tribunals and courts. Participates in the development of strategies to represent the organisation or clients, involving complex and challenging problems.	Reviews client assessments and associated service delivery plans. Advocates more complex cases to represent the organisation or clients before a range of review forums, tribunals and courts. Recommends strategies to represent the agency and/or clients involving complex and challenging problems.	Determines operational service delivery plans based on accepted standards. Recommends resource allocation to immediate manager in order to meet service delivery priorities. Manages operational work teams. Undertakes advanced case management, which may include cross agency collaboration. Undertakes complex or technical investigations and makes recommendations for action.
Technical/Specialist	1.1G	2.1G	2.2G	3.1G	3.2G	4.1G
Assists technicians, scientists and specialists in tasks that are straightforward and use established techniques and work practices. Operates and maintains technical or scientific equipment appropriate to the function and level of qualification. This level performs routine technical support functions such as setting up a laboratory, cleaning equipment, and supporting field work.	Conducts routine scientific, technical or specialist procedures and data collection, collation and analysis. Diagnoses and corrects faults and problems with technical equipment. Contributes to scientific or technical project planning.	Modifies routine scientific, technical or specialist procedures to a limited specification. Exercises discretion in use of equipment and actions to achieve results within specifications.	Conducts small to medium scientific, technical or specialist projects defined by others. Undertakes technical data analysis in field of expertise. Conducts field or desk-top studies as part of a team. Assembles nonstandard Technical systems or equipment to a specification. Leads a small scientific, technical or specialist team	Plan small to medium scientific, technical or specialist projects. May control a laboratory function or field operation where a range of related technical functions are performed. Prepares complex reports requiring indepth factual analysis.	Manages a scientific, technical or specialist team and/or projects. Independently performs professional or technical work at an advanced level in a narrow field of expertise or on research projects. Provides professional scientific, technical or specialist advice based on field of expertise. Undertakes technical data analysis and modelling and prepares reports.”

CONSIDERATION

The nature of the disputes and the relief sought

[37] The VPS Agreement 2016 provides many classification Grades and wage rates. Relevant to the Applicants is that it provides for six general clerical grades with some of those grades further divided into different Value Ranges.

[38] In summary, each of Ms Brierley and Ms Chuck argue that the work they are required to perform meets the requirements of the VPS-3 grade descriptors and has done so for some time. They argue that they have met these requirements since at least 16 September 2011 in Ms Brierley’s case, and August 2013 in Ms Chuck’s case. Each Applicant puts forward that they meet a number of the specific descriptors of both Value Ranges within the VPS-3 classification.

[39] The Question for Determination filed by the Applicants is in the following terms:

“Should the applicants be classified within the VPS 2 value range (as they currently are) or at the VPS 3 value range under the VPS EBA, based on the actual work required by the employer and carried out by the Applicants and in accordance with the classification and value range descriptors at schedule E of the EBA?”

Jurisdiction to deal with the disputes

[40] Neither party put forward that the provisions in question contain an ambiguity nor did the Applicants specifically submit that the provisions are not ambiguous. The Applicants submit that, within the context of these proceedings, the movement between Value Ranges identified in clause 23.4 and involving a review process, is a review process that is now to be undertaken by the Commission for reason of their dispute having been referred to the Commission for determination pursuant to clause 12, Resolution of Disputes. The operative part of clause 12 provides that:

“… a dispute about a matter arising under this Agreement or the National Employment Standards set out in the FW Act, other than termination of employment, must be dealt with in accordance with this clause.”

[41] Victoria Police have not contradicted the Applicant’s submission about activation of a dispute properly before the Commission and, other than a matter about the datum point for jurisdiction, have raised no argument that the matters are not within the Commission’s jurisdiction to determine. Victoria Police’s jurisdictional objection to the datum point is that the Commission’s jurisdiction to determine the matter is limited firstly in Ms Brierley’s dispute to when she commenced her reclassification claim under the VPS Workplace Determination, being 11 May 2015, given her claim enlivened the transitional provisions under cl.6.4 of the VPS Agreement 2016 and secondly to 18 May 2016 in Ms Chuck’s case, being the date on which the VPS Agreement 2016 commenced. The contention about Ms Chuck comes about because she did not have a live grievance in place in relation to her classification when the Determination ended and therefore any entitlement she has stems solely from the VPS Agreement 2016.

[42] I am satisfied, because of the procedure in clause 12 that the disputes raised by Ms Brierley and Ms Chuck are validly before the Commission and that determination of the disputes is within the Commission’s capacity to determine.

The matters in dispute

[43] The parties are in dispute about a number of matters, including the proper construction of the VPS Agreement 2016; the principles to be used in consideration for reclassification of both Applicants; whether the characterisation of the work performed by the Applicants is accurate; whether the work they perform is required to be performed by Victoria Police; and whether the work they perform meets certain of the VPS-3 descriptors referred to by them.

Construction of the agreement

[44] While there is a dispute between the parties as to the proper construction of the VPS Agreement 2016, they agree, broadly speaking, that the clauses relevant to determination of the Applicants dispute are:

• Clause 23 (Classifications and Salaries – VPS and VPS aligned adaptive structures), and in particular clauses 23.3 and 23.4 which deal with classification upon employment and the movement between Value Ranges;

• Schedule E (Classification Descriptors), Table 1.1: VPS Grade Descriptors and Value Range Standard Descriptors - Grades 1 to 4.

[45] An alternative argument advanced by Victoria Police is that, in the event that findings about the performance of work show that work of a higher value is performed then such a finding should not automatically entitle either or both the Applicants to the higher value on an ongoing or indefinite dimension, as this would result in the Applicants being appointed substantively to a higher classification without application of merit and equity principles. Instead, such findings would only entitle them to a higher duties allowance pursuant to clause 31.3. Given this submission from Victoria Police, the provisions of clause 24 (Progression within a Value Range) and in particular clause 24.1 (Progression Steps and Amounts) may also have relevance to determination of the disputes.

[46] For their part, the Applicants put forward that clause 23.4(b) provides three elements to which regard must be had, as well as the submission that determination of an entitlement to classification of a VPS-3 does not require all VPS-3 descriptors to be met:

“13. It is submitted by the applicants that the correct approach to the question of reclassification to the higher band is comprehensive and exclusively set out at clause 23.4 (b) of the agreement and that the correct way in which that clause should operate is as follows:-

● A job Resizing review;

● An assessment of the work required by the employer and the performance of that work by the employee; and

● The work is assessed against the benchmark descriptors in the classification range set out in schedule E of the agreement.

14. We submit and respectfully agree with Mr Colliver that there is no requirement that all of the descriptors at level 3 be met. To suggest that must be would in our submission me absurd. Rather, the employees must demonstrate that the work they are carrying out and that is required by the Respondent meets the descriptors within the agreement. If this can be demonstrated we submit that the applicants must be reclassified in accordance with the requirements of the agreement.

15. It is submitted that the approach adopted by the respondent in relation to reclassification based on “whole of job” or “on balance” is misconceived and is not a requirement of the agreement. The agreement requires only the steps set out above at paragraph 13. The approach to interpreting Enterprise agreements is well established and understood1 there is no warrant to impose such requirements on the classification system.

16. To impose those requirements results in an imbalance between the parties to the agreement and allows the Respondent to apply a subjective interpretation of the system towards any individual reclassification claim.”

[47] Victoria Police argue that the application of standard classification principles requires an examination of the major, substantial or principal aspect of the work performed by the employee. It seeks application of principles that would require examination of the whole circumstances of employment:

“33. The principles to be applied in determining which classification applies to an employee are long-standing, and were recently described by Justice Logan of the Federal Court of Australia in Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696 at paragraphs [38]-[39]:

More recently, in Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200 at 68-73 (Logan v Otis Elevator) Moore J collected and discussed many of the plethora of cases in which courts or the industrial commission have had to confront the phenomenon of an employee whose position required the undertaking of multiple duties only some of which were mentioned in a particular classification in an industrial instrument or, as the case may be, were disparately stated in different industrial instruments. Like Moore J in that case, I consider that a judgement given by Sheldon J in Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 offers assistance. Also like Moore J, I do not consider that the observations made by Sheldon J are to be confined just to a case where it is necessary to choose as between which of two industrial instruments applies to particular employment. That circumstance merely provided the context in which observations of pervasive relevance came to be made by Sheldon J. What Sheldon J observed was this (as set out in Logan v Otis Elevator at 68):

The finding of the Chief Industrial Magistrate raises two questions: Firstly, whether this is a case to be determined on the principle of major and substantial employment; and, secondly, if it is, whether the evidence justified his finding as to what the major and substantial employment of the complainant was.

where duties are of a mixed character and contain elements which have taken alone would be covered by more than one award. This is not an appropriate occasion on which to discuss the method by which this test should be applied except to say that it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.

A pithy way of putting the same proposition is that both quality and quantity are relevant when it comes to employee classification, subject always to the language employed in the particular industrial instrument.

34. The principles were also summarised in the judgment of Judge Driver of the Federal Circuit Court of Australia in Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4 at paragraphs [128] – [133]:

Courts and industrial tribunals have developed principles to be applied to ascertain whether an employee fits within a particular classification described in an award or agreement. Where the employee performs mixed functions, the approach has been to examine the “major and substantial employment” of the employee or the “principal purpose” or “primary function” of the employee.

In Logan v Otis Elevator Company Pty Ltd, 44 for example, Moore J referred to and applied decision of Sheldon J in Ware v O’Donnell Griffin (Television Services) Pty Ltd45 where his Honour observed:

It seems to me that this is clearly a case to which this principle is applicable. This principle is almost as old as industrial arbitration and it makes a practical approach to determining the application of awards where duties are of a mixed character and contain elements which have taken alone would be covered by more than one award. This is not an appropriate occasion on which to discuss the method by which this test should be applied except to say that it is not merely a matter of quantifying the time

spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.

The approach of examining the major and substantial employment of the employees has been applied in a range of decisions. 46

In other decisions, there has been an examination of the “principal purpose” or “primary function” of the employee. For example, in Merchant Service Guild of Australia v J Fenwick & Co Pty Ltd, 47 Ludeke J said:48

To ascertain the course of the calling of particular employees, is not enough merely to make a quantitative assessment of the time spent in carrying out the various duties. In my opinion, but only should the nature of the work done by the class of employee be examined but it is equally relevant to consider the circumstances in which they are employed to do the work; if the worker is required by his employer to carry out diverse duties, the enquiry should be directed to ascertain the principle purpose for which the worker is employed ...

See also Prichard v Krantz; 49 Carpenter v Corona Manufacturing Pty Ltd.50

The task of the Court or Tribunal is to examine the major, substantial or principal aspect of the work performed by the employee. That will include consideration of the amount of time spent performing particular tasks, but also the circumstances of the employment and what the employee was employed to do. The question is one of fact to be determined by reference to the duties actually attaching to the position, rather than its title. 51” (original references)

[48] The principles associated with the interpretation of enterprise agreements, drawn from Berri, are set out above. Consistent with those principles, construction of the term of an agreement begins with a consideration of the ordinary meaning of the relevant words having regard to its context and purpose. Allied to the task is the necessity for the Commission to determine whether the agreement has a plain meaning or is ambiguous or susceptible to more than one meaning, with it being permissible for regard to be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

[49] The Applicants did not argue that there was an ambiguity within the relevant provisions, however included within Ms Brierley’s evidence are references to various extrinsic materials which she said may be relevant to finalisation of the Commission’s task. In particular she attached to her witness statement:

“… the official career structure as per outlining the VPS Grades and responsibilities for each Grade ... The role of a Penalty Review Officer fits clearly in the VPS3 grade.” 52

[50] The attachment referred to is, in essence, a user interpretation guide to the operation of the classification structure.

[51] Ms Brierley also submitted that her under-classification and that of Ms Chuck stemmed from a systemic problem on the part of Victoria Police which had been the subject of consideration by the Victorian Equal Opportunity and Human Rights Commission (VEOHRC):

“My and Melissa Chuck’s situation being undervalued is not an isolated one in our office. There are several other staff performing different roles within the office who, in my opinion, are also not graded appropriately against the position descriptors. This type of undervaluing of staff by Victoria Police has been highlighted in the VEOHRC report 2015.” 53

[52] Despite these observations, and submitting a copy of the VEOHRC report, Ms Brierley did not elaborate upon the contention put forward.

[53] The Respondent did not refer to extrinsic material for the purposes of ascertainment of surrounding circumstances, but did put forward some limited material in respect of its contentions about the context of the making of the VPS Agreement 2016. In particular it submitted that the reference instrument for the purposes of assessment of the better overall test in the making of the VPS Agreement 2016 is the Victorian Public Service Award 2016, 54 (the VPS Award) and while the VPS Agreement 2016 contains an identical range of classifications to those set in the VPS Award, the Award also provides a further schedule which outlines the work environment and typical functions of each of the classifications within the Award. The latter schedule is within Schedule A (VPS Grade Descriptors) and the Grades and Value Descriptors themselves are in Schedule A.2 (VPS Grade Descriptors and Value Range Standard Descriptors).

[54] The effect of the VPS Award’s Schedule A, when read in conjunction with Schedule A.2 is to provide an interpretation aide to classification of any particular individual. Relevant to this matter are these summaries of work environment and functions:

“A.2 Grade 2

A.2.1 Work environment

(a) Applies rules, processes and standards under general supervision.

(b) Judgement is required to solve problems arising in own work program.

(d) Understands and applies theoretical principles, under supervision, to achieve defined outcomes.

A.2.2 Typical functions

(a) Collect data, undertakes basic analysis and prepares simple reports.

(b) Provide office support through activities such as using and maintaining standard office equipment and software.

(d) Conduct routine scientific, technical or specialist procedures and data collection, collation and analysis.

(e) Deliver information services to the general public or clients, including initial advice and referral.

(f) Draft routine internal reports and correspondence.

A.3 Grade 3

A.3.1 Work environment

(a) Exercises professional judgement about the application of rules, or the selection of choices within guidelines.

(b) Initiates improvements to procedures within the work area.

(d) Explains concepts and policies to clients, stakeholders and staff.

(e) Uses persuasion, advocacy, negotiation and motivation skills with clients, providers, staff, peers and managers.

(f) Uses theoretical knowledge to achieve agreed outcomes in moderately complex work situations.

A.3.2 Typical functions

(a) Conduct projects of defined scope under direction.

(b) Lead a team appropriate to the role.

(d) Investigate and assess actions by individuals or organisations against legislation, rules, regulations, service agreements.

(e) Assess client needs and delivers a range of services in complex situations.

(f) Conduct small to medium scientific, technical or specialist projects defined by others.

(g) Prepare briefs on sensitive issues for consideration of others.”

[55] Victoria Police’s submission about the VPS Award’s Schedule A was not that the material was evidence of the surrounding circumstances of the VPS Agreement 2016, which may either assist in identification or resolution of an ambiguity, but instead that the Schedule was part of the context for the making of the Agreement, noting the settled proposition that “resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose”. 55

[56] In AMCOR v CFMEU 56 the High Court held that the construction of an agreement “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose”.57 In endeavouring to resolve a question about whether employees were entitled to redundancy payments following a corporate restructure, the Court highlighted that the its consideration was highly contextual:

“The key concept upon which the operation of cl 55.1.1 in the present case depends is that of a position becoming redundant. The appellants contend that, in this context, “position” means a position in a business, and that, in the circumstances of the demerger, in which a conglomerate enterprise involving a packaging business and a paper operations business was split into two parts, each of which continued to function as before, with the employees performing the same functions, on the same terms and conditions, those employees’ positions did not become redundant. The respondents contend, and the Federal Court accepted, that there was a critical change in the employment situation, namely the identity of the employer. That is, even if it is a case of succession, so that the employees had the protection of s 170MB of the Workplace Relations Act 1996 (Cth), at the time of the termination by Amcor of their employment, the employees lost their positions, and they lost them because Amcor no longer needed their services. Accordingly, as between Amcor and the employees, the positions of the employees became redundant, and for that reason the employees were retrenched by Amcor, even though they were immediately re-employed by Paper Australia.” 58

[57] The nature of the context to be considered and how it may be employed was elaborated upon by Kirby J as follows:

“Also set out in other reasons, or described there, are the provisions of the Act that constitute the legislative background against which the Agreement was made and certified. It was a background that would have been in the minds of both parties (Amcor and its agent on the one side and the Union on the other) who negotiated the Agreement and hammered out its terms. The legislative background is therefore part of the common knowledge attributable to the parties to the Agreement. So far as it is relevant, it would ordinarily be assumed that, in agreeing as they did, the parties intended the Agreement to take its place within the industrial setting created by the Act.

To some extent, that industrial setting also incorporates not only the provisions of the Act dealing with the special problem of redundancy in employment under federal awards and certified agreements but also the consideration by courts and industrial tribunals during the past three decades of the issue of redundancy in employment. During that time, as is a matter of common knowledge, rapid advances of technology have presented instances of redundancy in employment (often through no particular fault of employers and no fault at all of employees) that called forth judicial, arbitral and legislative responses. As explained elsewhere, some of these developments illustrated the difficulty of defining “redundancy” for the purpose of measures protecting the industrial privileges of those whose employment was affected by such change.

All of these are useful details of a background character. All are relevant in the construction of the Agreement’s critical clause, the meaning of which is primarily in issue in these appeals (cl 55.1.1). In the interpretation of the Constitution and of legislation, Australian courts have passed beyond the age of the magnifying glass. No longer do courts (or industrial tribunals) seek to give meaning to contested language considered in isolation from the context in which the words are used and the purpose for which the words were apparently chosen. Nowadays, the same insistence on context, as well as text, permeates the approach to interpretation that is taken to legally binding agreements. Indeed, before this approach became normal in the courts, in the interpretation of contested instruments it was often the approach adopted for the construction of industrial texts. This was in keeping with an inclination of such tribunals towards practical, as distinct from purely verbal, constructions in that area of the law’s operation.

In the present case, the Union’s submission was that these generalities were all very well, but that in the end, the Court had to give effect to the language of the Agreement. Clearly, this is correct. Interpretation is always a text-based activity. But where does it lead in this instance?” 59 (references omitted)

[58] The parties did not draw the Commission’s attention to any particular legislative context of the making of the VPS Agreement 2016. Even so it may be discerned that, other than the fact that the Agreement is made under, and within the context, of the FW Act, it is also within the context of the Victorian legislation that forms and enables the public service of that State, the Public Administration Act 2004 (Vic). While it is the case that the Public Administration Act 2004 is referenced in a number of places in the VPS Agreement 2016, none of those references are apparently relevant to the matters in question in this dispute. That is, it does not appear to be intended that the provisions of the VPS Agreement 2016 relating to the classification of a particular employee are to be either read in conjunction with or to give effect to the Public Administration Act 2004. Further, while the VPS Agreement 2016 makes reference to other legislation as well, none of those references appear relevant to the resolution of Ms Brierley or Ms Chuck’s circumstances.

[59] The VPS Agreement 2016 is expressed to operate from 18 May 2016 and has the nominal expiry date of 31 December 2019. 60 At the time the application was made for the approval of the Agreement, the Applicant, being the State of Victoria put forward that the relevant reference instrument for consideration of the Better Off Overall Test was the Victorian Public Service Award 2005 [Transitional].61 The VPS Agreement 2016 sits within the legislative context referred to earlier, which is to the effect that it is made and approved under the FW Act and applies to any Victorian Government public service body formed under the Public Administration Act 2004.

[60] While providing employment conditions of general application it also provides special wages and conditions for particular agencies or clusters. For example, the VPS Agreement 2016 provides for wages for the Courts with a separate classification structure, as well as providing for wages and classifications in many other settings, including legal officers, allied health professionals and scientists, housing services, custodial and corrections employees, fisheries courts and police custody officers, child protection practitioners and youth justice workers and forensic officers.

[61] The diversity of provisions shows the VPS Agreement 2016 plainly has application across what are likely to be many agencies, hundreds of workplaces and tens of thousands of employees.

[62] Other industrial context to the formation of the VPS Agreement 2016 includes not only the formation of the VPS Award which came about through a decision of the Full Bench in August 2016 after application by the CPSU and with the consent of the other parties, 62 as well as the Award’s antecedents, including earlier enterprise agreements and the VPS Workplace Determination. The VPS Award was prescribed to operate from 3 October 2016. No party in this matter drew the Commission’s attention to those earlier enterprise agreements or the Workplace Determination as providing relevant context to the construction of the clauses in question in this matter.

• The evidence of each Applicant was that they were proficient in interrogating a wide range of databases depending upon the situation and the matter in question. The purpose of that interrogation was, for example, to ascertain whether a particular person might have been in the country at the time of the alleged offence or whether their license particulars were as claimed, or whether they had a pattern of making nominations of other drivers. They also gave evidence about needing to record information on certain databases about applications or decisions made.

• Victoria Police took issue with whether this use of databases amounted to maintaining corporate databases or completing analysis. The context of this appears to be an argument to the effect that neither are involved in the development of the database in the information technology sense. While true that is, it appears to be an unlikely wide interpretation of the descriptor. Such reading would neither be consistent with the way that database work is referred to within the Agreement, or with the way Mr Colliver viewed it, whose consideration went to a “requirement to input or update data” 97.

• Instead it is more likely that the obligation to maintain corporate databases is a reference to the need to accurately keep and update the material within the database so as to ensure that the database neither includes junk records or information which is hopelessly out of date. The proper meaning of the term used in the descriptor is more likely to be the expectation that an employee maintain the database as an accurate and singular point of truth.

• That part of the descriptor which refers to completing analysis of corporate databases could well extend to undertaking some complex interrogation of the thousands of records within a database, but that appears to not be the only possibility countenanced by the descriptor, within the context of the overall set of descriptors in the Agreement. Instead, it appears that the analysis referred to is the standard analysis that would be expected of a database operator; searching for particular information pertaining to a certain member of the public and successfully and accurately retrieving that information.

• The Applicants put forward that the fact that they needed to search for information across quite a number of databases amounted to some level of complexity on their part. They needed to be able to discern whether in a particular set of circumstances they needed to seek information from one or more databases held by VicRoads, from Victoria Police, or elsewhere. Such need, of having to choose which databases relevant in a particular circumstance is not, in and of itself, a measure of complexity and I do not rely upon that feature of the Applicants work in forming the view that the requirements of the descriptor have been met.

• Overall, I am satisfied that the Applicant’s meet the requirements of this descriptor.

• 3.1F Operational service delivery/Assesses client needs and delivers a range of services in complex situations investigates and assesses actions by individuals or organisations against legislation, rules, regulations and service agreements

• For the reasons set out herein, I find that each Applicant meets the requirements of this descriptor. I note that Mr Colliver’s report gave an ambiguous conclusion on the subject, with it being said that, almost by definition, a Penalty Review Officer would be called upon to do these aspects of work, but not directly stating that the descriptor had been met in this regard:

•

“The nature of the work undertaken by PRO’s requires them to investigate and assess actions by individuals or organisations against legislation, rules and regulations. Whilst the majority of reviews are sought by individuals, organisations regularly seek reviews against nominations. However, all other service delivery components of the role are at the VPS-2 level.” 98

• The report by Mr Lacy is consistent with the somewhat tepid conclusions of Mr Colliver, with it being reported that:

“The work they do in this regards is incidental to the nature of the work in which they are principally engaged, namely Nominations, Police issued infringements and Special Circumstances. For the most part the duties they are required to perform in this space are within the VPS2 range.” 99

• The absence in the descriptor of a comma between the words “situations” and “investigates” makes the phrase ungrammatical. The delivery of a range of services in complex situations is plainly something different to the tasks of investigating and assessing actions, etc. The whole phrase only has grammatical purpose by regarding the delivery of services in complex situations as being quite distinct to investigating and assessing actions.

• The ordinary and grammatical meaning of the phrase is therefore likely to be derived from the consideration that the overall descriptor contains three component parts, with a candidate employee needing to be assessed for the performance by them of three different but related work types; the assessment of client needs; the delivery of a range of services in complex situations; and finally investigation and assessment of actions by individuals or organisations against legislation, rules, regulations and service agreements.

• The assessment of client needs undertaken by the two Applicants plainly occurs. Of itself, that feature is not inconsistent with the VPS-2.2 descriptor. The difference in the relevant work requirements between VPS 2 and 3 is that the assessment of client needs is connected at the VPS-3 level with the delivery of a range of services in complex situations. The evidence is that each Applicant does this. The reluctance of the Respondent’s witnesses to accept that there was any complex feature within the Applicants’ work is not consistent with the ordinary meaning of complex.

• Much was made about whether the Applicants performed “investigations”. The argument, somewhat indirectly put, was that such investigatory work as they did was not synonymous with an investigation undertaken by a police officer, or perhaps a lawyer or inspector. However the wording within Schedule E does not appear to be restricted to such investigations. Instead, there is no constraint within the descriptor upon what may be regarded as the ordinary meaning of the word. That meaning is in two senses, one of elevated import and the other less so; “noun 1. the act or process of investigating. 2. a searching inquiry in order to ascertain facts; a detailed or careful examination”. 100 The use of the word in the descriptor is consistent with the second of the meanings.

• While noting again that no party has provided to the Commission samples of the work actually performed by either Applicant, their evidence about the scrutiny they put each application through and the way they form judgements about the disposition of each is consistent with a search for facts carried out in a detailed and careful manner. As a result I am satisfied that each Applicant meets this aspect of the VPS-3 descriptors.

NOT AGREED VPS 3.1 Descriptors for which there is insufficient evidence

[113] The descriptors about which there is some but possibly insufficient direct evidence before the Commission to establish whether either or both Applicants work at the relevant level are as follows:

• 3.1A Decision-making/Accountability and frameworks/Reviews decisions, assessments and recommendations from less experienced team members

• I find that the evidence in respect of each Applicant is inconclusive as to whether it meets the requirements of this descriptor. I note that the report by Mr Lacy supports such a finding in relation to Ms Brierley and Ms Chuck, noting particularly Ms Chuck’s work on updating the TCO procedural manuals. 101 Mr Colliver’s report also confirms that both Applicants are responsible for inducting/training new staff and writing SOP’s that are utilised by all staff.102 I acknowledge and accept the opinions of both Mr Lacy and Mr Colliver however, in the absence of direct evidence it is unclear whether each Applicant performs work consistent with this descriptor as such this descriptor is found not to be met.

• 3.1B Communications/Communicates issues and advocates a preferred case or option to stakeholder

• While I note that the report by Mr Lacy, but not Mr Colliver, supports a finding that each Applicant meets the requirements of this descriptor, 103 for the reasons set out herein, I find the evidence on the subject before me to be inconclusive.

• The evidence shows that both Applicants are called upon to perform work consistent with this descriptor.

• It is well-established in the evidence that both Ms Brierley and Ms Chuck are called upon to deal directly with members of the public about matters they wish to discuss. There is no question that each does so capably and in a manner consistent with the policies within which they work. There is equally no question that the TCO permits or requests them to do so. The evidence of each Applicant is that their work is somewhat different from the generality of the staff in the TCO and depending upon the evidence preferred both Applicants review more complex (for characterisation largely preferred by the Applicants and their witnesses) or more involved or involving more steps (the characterisation preferred by the Respondent and its witnesses).

• The Macquarie Dictionary defines stakeholder as having three meanings. Two of those meanings have a financial or gambling context; the third is relevant to this matter referring to the people who are stakeholders to a decision; “someone who is affected by, is concerned with, etc., an issue or enterprise: the students, teachers, parents and the local community are all stakeholders in the decision-making process about the new hall.” 104 In this definition, the focus is on persons external to the organisation and likely does not intend an internal focus on staff, supervisors or managers.

• Such conclusion about the use of the term “stakeholder” within this descriptor is consistent with the employment of different words in the immediately following descriptor, which refers to “clients, providers, staff, peers and managers”. Those words, being inclusive of people internal and external to the organisation are likely for a deliberate purpose, with the descriptors being focussed on different skills.

• There is clear evidence of Ms Brierley and Ms Chuck communicate with members of the public seeking a benefit from the traffic compliance office such as by nominating another driver for receipt of the penalty infringement notice or seeking a Notice be withdrawn for exceptional circumstances. However, there is only limited evidence of them advocating externally about matters (with the meaning of “advocate” and “advocacy” referred to in the next descriptor).

• Given that the descriptor is framed as a conjunction of activity, namely communicates and advocates, the state of the evidence leads to the conclusion that neither Ms Brierley or Ms Chuck unambiguously work within and meet its requirements.

• 3.1B Communications/Provides communication guidance to less experienced colleagues

• While the reports of both Mr Colliver 105 and Mr Lacy support a finding that this descriptor has been met, there is a lack of evidence before me to make a positive finding that either Applicant performs work consistent with this descriptor. I note that Mr Lacy’s finding that in the absence of direct discussion with either Applicant he assumed they did meet this descriptor.

“Communications

I have not had the benefit of hearing from Ms Chuck or Ms Brierley and cannot express an opinion on the nature or quality of the discussions that they have with clients or stakeholders. Based on the information I have from the interviews with sworn officers, the Applicants’ witness statements and the complex nature of the particular roles they undertake in Nominations work, it is a reasonable assumption that they would be proficient as communicators in three of the VPS3 descriptors, namely Explaining concepts and policies to clients, stakeholders and staff and providing communication guidance to less experienced colleagues and Using persuasion, advocacy, negotiation and motivation skills with clients, staff, peers and managers. While the majority of the work of the PRO in the Internal Review Section falls within the VPS2 range, in my opinion it is reasonable to conclude that Ms Chuck and Ms Brierley have VPS3 communications skills and operate at that level because of their experience and the mentoring role they perform in relation to more complex matters.” 106

• Taking account of Mr Lacy’s expertise, which I both acknowledge and accept, I accept that the conversations he had in preparation of his report supported his conclusion. More likely than not then, it would appear the Applicants perform work consistent with the descriptor “[p]rovides communication guidance to less experienced colleagues” and that it is simply that the evidence before me did not adequately turn to the subject matter.

• 3.1B Communications/Prepares briefs on sensitive issues for consideration of others

• Again, while there is insufficient evidence for me to make an affirmative finding on this particular descriptor, and noting that Mr Colliver did not find the five people whose work he reviewed performed duties consistent with this descriptor, I acknowledge and accept Mr Lacy’s opinion on the subject, and accept that it is also more likely than not that each Applicant performs work consistent with this descriptor.

VPS 3.2 Descriptors

[114] The Applicants also contend that they meet several of the VPS-3.2 descriptors. While their submissions about which ones were met by each lack clarity, I understand this to be a submission that each meets the requirements of the first part of VPS-3.2A (decision-making/accountability and frameworks) with Ms Brierley meeting the second part of the same descriptor (innovation) and Ms Chuck meeting the requirements of VPS-3.2C (knowledge and proficiency). The evidence does not support that the Applicants meet the requirements of the respective descriptors or indeed any of the other VPS 3.2 descriptors.

[115] In summary, each of the Applicants meets the requirements of at least 11 of the VPS 3.1 descriptors. Five of these are in the REQUIRED category and six in the NOT AGREED category. It is unnecessary for me to establish the point at which this work in aggregation became the major and substantial part of the employment, however I am satisfied that the major and substantial part of the employment of each of Ms Brierley and Ms Chuck is at the VPS 3.1 level.

[116] It is noted that in most of my findings the tests of these individual descriptors had also been established in the Colliver and Lacy reports. While this decision is on the evidence before the Commission, and not the opinions of either Mr Colliver (who did not give evidence in these proceedings) or Mr Lacy (who did), it is to be noted that a strong inconsistency does not emerge between their opinions and the findings made herein.

[117] The question in this decision, for the reasons set out earlier, is ultimately whether it can be said that the major and substantial work of either or both Applicant is VPS-3 classified work. For the reasons set out above, it is clear from the evidence that the major and substantial work of both Ms Brierley and Ms Chuck is at the VPS-3.1 level.

[118] To some extent if the work they perform in the REQUIRED category that meets the VPS 3 criteria is not in aggregate their “major and substantial work” it becomes relevant to consider whether duties performed in the NOT AGREED category moves the preponderance of work to such a point that overall it can be said their major and substantial work is at the level of VPS-3.1.

[119] For the reasons set out in the foregoing analysis, and especially in relation to the impact of the VIEW system, I do not accept that the higher duties elements of the Applicants’ work is merely a passing thing and that there is no case to accept that their work is permanently at the VPS-3.1 level. The contention by Victoria Police that these things are temporary is not consistent either with the evidence, or with the time that each has been performing higher duties work. The contention that it is temporary has, in the case of Ms Brierley at least, been around since Mr Colliver completed his report in August 2016. Mr Colliver said at the time that he regarded the growth in work to be temporary until completion of a “post implementation review” pertinent to an earlier organisation review 107 and Mr Lacy said in his report, in May 2018 that post implementation review is in the process of being initiated. Above this evidence, Victoria Police did not elucidate evidence either about what the review would be, or when it would be completed. With respect to all concerned, the time to argue that some ill-defined and imprecisely timed report will ever find that things have changed against the desires of the Applicants has well passed. The evidence before this Commission is sufficiently conclusive – while Victoria Police may have hoped in 2016 that things were only temporary, that hope does not persist into late 2018, and the problems with VIEW have nothing to do with that reality.

[120] Victoria Police put forward an alternative argument to the effect that the public service merit principle precluded a permanent determination in favour of the Applicants:

“…if the Commission concludes that the duties actually being performed by the Applicants (and currently required to be performed by the Applicants) are at a VPS 3 level notwithstanding that they are appointed to a VPS 2.2 position, that conclusion should not lead to a decision that the Applicant’s positions be re-classified as VPS 3. Such an outcome would result in the employees being appointed substantively to a VPS 3 position, without the application of merit and equity principles (in relation to other potential appointees who might apply for the position). Further, the permanent nature of a reclassification to a VPS 3 level would be inconsistent with the temporary nature of the current situation, given the foreshadowing that once the VIEW system is fully implemented the more complex matters will be more evenly distributed between the PROs” 108

[121] The VPS Agreement 2016 uses the word “merit” only twice, both being within Schedule A, dealing with the principles associated with redeployment of surplus employees. Likewise it only uses the word “equity” in two places; one with the context of making determinations about initial base salary points having regard to the gender equity effects of appointments (clause 23.5) and, and relatedly, in Schedule C setting out savings provisions for the introduction of the new classification structure within the Department of Justice and Regulation.

[122] The principles associated with appointment of staff to positions and the ascertainment of their classification are set out within clause 23, the essential parts of which are reproduced elsewhere within this decision. There is no part of that clause which could reasonably read to be a prohibition upon determination of this dispute in the manner sought by the Applicants. Similarly there is no prohibition within clause 12, which is the Resolution of Disputes clause.

[123] The argument put forward by Victoria Police in relation to the public service merit principle is essentially that there is some form of prohibition from the Applicants achieving through a dispute resolution process that which they have not been able to achieve through the merit selection process. There is no basis whatsoever for this argument. Victoria Police’s submissions in this regard stand in ultra contradistinction from what might be the fate of a dispute about the dismissal of either Applicant, which most certainly is prevented from agitation under the Resolution of Disputes clause when it says “[f]or the avoidance of doubt, a dispute about termination of employment cannot be dealt with under this clause” (clause 12.2).

[124] Had the drafters of the VPS Agreement 2016 intended that employees bound by the Agreement could not have their disputes about classification raised under the Resolution of Disputes clause and then determined by the Commission they would have said so in the same way that disputes about termination of employment have been so explicitly excised from agitation under the procedure.

CONCLUSION

[125] The Question for Determination put forward by the Applicants is:

[126] The answer provided to that questions is:

Each Applicant performs the major and substantial part of their work at the VPS-3.1 level.

[127] The evidence is imprecise about when each Applicant’s work coalesced with the VPS-3.1 descriptors.

[128] Ms Brierley lodged several grievances about her classification, commencing in 2011, and ranging through 2012 and 2013. 109 She was one of the five people who were the subject of the grievance review conducted by Mr Colliver. The antecedents of Mr Colliver’s report (which appears to be an internal review of an adverse decision made by another officer on a reclassification request) commenced on 11 May 2015 with Mr Colliver’s report being dated 22 August 2016.110 Mr Colliver assessed the group of people seeking the internal review as being on the cusp of performing at the level of VPS 3.111 The evidence in these proceedings does not distinguish between the work Ms Brierley now performs and that which she performed in 2015. There is insufficient evidence to make any conclusions about the work Ms Brierley performed earlier than 2015. More likely than not the distinguishing features of Ms Brierley’s work as identified in these proceedings were present in 2015. As a result, my finding is that Ms Brierley has been working at the VPS-3.1 since 11 May 2015.

[129] Ms Chuck participated in the antecedent to the Colliver review, being the reclassification request made in May 2015, however for personal circumstances did not participate in the review by Mr Colliver of the decision on that request. 112 Ms Chuck did not formally lodge a grievance about her classification until sometime later. While the Respondent submits there is no valid dispute before the Commission in relation to Ms Chuck stemming from the VPS Determination 2012 (which ended on 18 May 2016), it does not dispute that her grievance stems from that date, being the date that the Determination was replaced by the VPS Agreement 2016. In a similar manner to Ms Brierley, the evidence does not satisfactorily distinguish between the work Ms Chuck now performs and that which she performed in 2016. I am satisfied though that more likely than not the distinguishing features of Ms Chuck’s work as identified in these proceedings were present in 2016. As a result, my finding is that Ms Chuck has been working at the VPS-3.1 since 18 May 2016.

COMMISSIONER

Appearances:

Maurice Addison, Lawyer for the Applicants.

Brendan Avallone, of Counsel, instructed by Maddocks for Victoria Police.

Hearing details:

2018.

19-21 & 27 June;

Melbourne.

Printed by authority of the Commonwealth Government Printer

APPENDIX A

EXTRACT FROM

SUPPLEMENTARY AGREED STATEMENT OF FACTS

(as modified in transcript, 27 June 2018 – modifications shown underlined and in italics)

Attachment 1 to Supplementary Agreed Statement of Facts
Melissa Chuck

Key:

Symbol	Meaning
	The parties agree that this criteria is required of the position and is performed in fact 113
The parties agree that this criteria is NOT required of the position and is not performed in fact 114
Not agreed	The parties do not agree whether this criteria is required

Descriptor	Grade 3	Parties’ position regarding requirement for Commission’s consideration
Descriptor	VR1
Decision Making	3.1A
Accountability and frameworks	Team leadership may be exercised where appropriate to the role	Not agreed
	Exercises professional judgement about the application of rules, or the selection of choices within guidelines	Not agreed
	Resolves local operational service delivery problems within guidelines	Not agreed
	Reviews decisions, assessments and recommendations from less experienced team members	Not agreed
	Determines the work organisation of the work area
	Analysis and advice contributes to decision making by other	
	Manages budget and resources for the work area
Innovation and Originality	Initiates improvements to procedures within the work area	Not agreed
Communication	3.1B
	May lead a team through activities including individual and team performance management and development
	Explains concepts and policies to clients, stakeholders and staff	
	Plans, leads and facilitates information sessions and consultative processes in a range of settings
	Prepares briefs on sensitive issues for consideration of others	Not agreed
	Draft public communication documents
	Communicates issues and advocates a preferred case or option to stakeholders	Not agreed
	Communicate professional/ technical concepts and advice	Not agreed
	Provides communication guidance to less experienced colleagues	Not agreed
	Uses persuasion, advocacy, negotiation and motivation skills with clients, providers, staff, peers and managers	Not agreed
Knowledge and Proficiency	3.1C
	Uses theoretical knowledge to achieve agreed outcomes in moderately complex work situations	
	Authoritative in application of processes and policy relevant to the work unit	
	Knowledge of relevant legislation, regulations, policies and processes	
Policy and Projects	3.1D
	Researches issues and prepares draft reports and briefings within a project plan or policy framework set by others
	Conducts projects of defined scope under direction
	Obtains, summarises and reports on stakeholder views
Administrative and Corporate Support	3.1E
	May lead a corporate support team
	Manages team performance through activities such as monitoring and reporting
	Maintains corporate databases and completes analysis	Not agreed
	Monitors and administers straight forward, local contracts and service agreements within a well-defined service delivery framework
		Operational Service Delivery	3.1F
			Supervises a service delivery team
Assesses client needs and delivers a range of services in complex situations investigates and assesses actions by individuals or organisations against legislation, rules, regulations and service agreements	Not agreed
Advocates issues involving established precedents before a range of review forums, tribunals and courts
Participates in the development of strategies to represent the organisation or clients, involving complex and challenging problems
Technical/Specialist	3.1G
	Conducts small to medium scientific technical or specialist projects defined by others
	Undertakes technical data analysis in field of expertise
	Conducts field or desk-top studies as part of a team
	Assembles nonstandard technical systems or equipment to a specification
	Leads a small scientific, technical or specialist team

Attachment 2 to Supplementary Agreed Statement of Facts:
Ann Brierley

Key:

Symbol	Meaning
	The parties agree that this criteria is required of the position and is performed in fact 115
The parties agree that this criteria is NOT required of the position and is not performed in fact 116
Not agreed	The parties do not agree whether this criteria is required

Descriptor	Grade 3	Parties’ position regarding requirement for Commission’s consideration
Descriptor	VR1
Decision Making	3.1A
Accountability and frameworks	Team leadership may be exercised where appropriate to the role	Not agreed
	Exercises professional judgement about the application of rules, or the selection of choices within guidelines	Not agreed
	Resolves local operational service delivery problems within guidelines	Not agreed
	Reviews decisions, assessments and recommendations from less experienced team members	Not agreed
	Determines the work organisation of the work area
	Analysis and advice contributes to decision making by other	
	Manages budget and resources for the work area
Innovation and Originality	Initiates improvements to procedures within the work area	Not agreed
Communication	3.1B
	May lead a team through activities including individual and team performance management and development
	Explains concepts and policies to clients, stakeholders and staff	
	Plans, leads and facilitates information sessions and consultative processes in a range of settings
	Prepares briefs on sensitive issues for consideration of others	Not agreed
	Draft public communication documents
	Communicates issues and advocates a preferred case or option to stakeholders	Not agreed
	Communicate professional/ technical concepts and advice	Not agreed
	Provides communication guidance to less experienced colleagues	Not agreed
	Uses persuasion, advocacy, negotiation and motivation skills with clients, providers, staff, peers and managers	Not agreed
Knowledge and Proficiency	3.1C
	Uses theoretical knowledge to achieve agreed outcomes in moderately complex work situations	
	Authoritative in application of processes and policy relevant to the work unit	
	Knowledge of relevant legislation, regulations, policies and processes	
Policy and Projects	3.1D
	Researches issues and prepares draft reports and briefings within a project plan or policy framework set by others
	Conducts projects of defined scope under direction
	Obtains, summarises and reports on stakeholder views
Administrative and Corporate Support	3.1E
	May lead a corporate support team
	Manages team performance through activities such as monitoring and reporting
	Maintains corporate databases and completes analysis	Not agreed
	Monitors and administers straight forward, local contracts and service agreements within a well-defined service delivery framework
		Operational Service Delivery	3.1F
			Supervises a service delivery team
Assesses client needs and delivers a range of services in complex situations investigates and assesses actions by individuals or organisations against legislation, rules, regulations and service agreements	Not agreed
Advocates issues involving established precedents before a range of review forums, tribunals and courts
Participates in the development of strategies to represent the organisation or clients, involving complex and challenging problems
Technical/Specialist	3.1G
	Conducts small to medium scientific technical or specialist projects defined by others
	Undertakes technical data analysis in field of expertise
	Conducts field or desk-top studies as part of a team
	Assembles nonstandard technical systems or equipment to a specification
	Leads a small scientific, technical or specialist team

1 AE418873.

2 Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, Q3.1.

3 Exhibit R4, Witness Statement of Brian Lacy, Attachment BLJ-2, pp. 7 – 8.

4 Exhibit R3, Witness Statement of Adrian Badarrachi, Attachment AB-1, [7].

5 Ibid, [15].

6 Exhibit ASOF 1, Agreed Statement of Fact, [1] – [2].

7 Ibid ,[3], [7].

8 Ibid, [8].

9 Ibid, [5].

10 Infringements Act 2006 s.5.

11 Attorney-General’s Guidelines to the Infringements Act 2006, [5].

12 IRCMS is the Internal Review and Court Management System.

13 Exhibit A3, Witness Statement of Ann Brierley, [1] – [10].

14 Ibid, [13] – [14].

15 Ibid, [27].

16 Exhibit R9, Submissions of Victoria Police, [9] – [15].

17 Exhibit A3, Attachment AB-11, pp.5 – 6.

18 Ibid, pp.1 – 2.

19 Exhibit R4, Attachment BJL-2, p.7.

20 Exhibit A1, Witness Statement of Melissa Chuck, [1] – [7].

21 Ibid, [8].

22 Ibid, [9].

23 Ibid, [14].

24 Ibid, [15].

25 Ibid, [17].

26 Ibid.

27 Exhibit R4, Attachment BJL-2, p.4.

28 Ibid.

29 Ibid, pp.15 – 16.

30 Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30]–[32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [25].

31 Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2016] FWCFB 2019 [52].

32 CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.

33 SDA v Big W Discount Department Stores PR924554 at [23].

34 AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [23].

35 Ibid [47].

36 MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884.

37 MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [21]-[22].

38 United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20].

39 The Commission must not make a decision that is inconsistent with the FW Act, or a fair work instrument that applies to the parties.

40 MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31]-[32].

41 [2017] FWCFB 3005.

42 Ibid [114].

43 [2017] FWCFB 4537.

44 [1997] IRCA 200.

45 [1971] AR (NSW) 18.

46 Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia (1980) 32 ALR 541 at 556; Keen

v Health Corporation Ltd (2008) 179 IR 166 at [37]-[38]; Sim v LUO Enterprise Pty Ltd (No 2) (2009) 191 IR 401 at

[126]-[128].

47 (1973) 150 CAR 99.

48 at [101[].

49 (1983) 5 IR 437 at 442.

50 (2002) 122 IR 387 at [9].

51 City of Wanneroo v Holmes (1989) 30 IR 362 at 379; Joyce v Christoffersen (1990) 26 FCR 261 at 278.

52 Exhibit A4, Witness Statement of Ann Brierley, [26].

53 Ibid, [24].

54 MA000135.

55 [2017] FWCFB 3005, [114].

56 (2005) 222 CLR 241.

57 Ibid, [2], per Gleeson CJ and McHugh J

58 Ibid, [10].

59 Ibid, [64] – [67], per Kirby J.

60 [2016] FWCA 2934, [5].

61 AT841792.

62 [2016] FWCFB 3912.

63 AT841792.

64 AG895510.

65 AG847284-2.

66 VPS Agreement 2016, Appendix 5, clause 11.2(c)(i).

67 Ibid, Appendix 6, clause 5.2(c)(i).

68 Ibid, Appendix 10, clause 10.1, 19.1.

69 The Macquarie Dictionary Online, accessed 3 August 2018.

70 VPS Agreement 2016, Schedule B.

71 Exhibit R9, [34].

72 Exhibit R4, Attachment BJL-2, pp.12 – 14.

73 Exhibit R8, Witness Statement of Damien Madden, Attachment DGM-1, [7] – [8].

74 Ibid, [10].

75 Exhibit R4, Attachment BJL-2, pp.12.

76 Ibid, pp.12 – 13.

77 Exhibit A3, Attachment AB-11, p.2.

78 See for example, Exhibit R7, Witness Statement of Don Downes, Attachment DD-1, [10].

79 Exhibit R3, Attachment AB-1, [9] – [11].

80 Exhibit R5, Witness Statement of Iain Gillanders, Attachment IG-1, [5].

81 Ibid, [10].

82 Ibid, [14].

83 Exhibit R6, Witness Statement of Victoria Findlay, Attachment VF-1, [11].

84 Exhibit R4, Attachment BJL-2, p.9.

85 Exhibit R4, Attachment BJL-2, pp.12.

86 Exhibit R3, Attachment AB-1, [15].

87 Exhibit A5, Supplementary Witness Statement of Melissa Chuck, [6].

88 Exhibit A3, Attachment AB-11, p.3.

89 Exhibit R4, Attachment BJL-2, p.13.

90 Ibid.

91 Exhibit A3, [37].

92 Exhibit A5.

93 Exhibit R4, Attachment BJL-2, pp.13 -14; Exhibit A3, Attachment AB-11, p3.

94 The Macquarie Dictionary Online, accessed 3 August 2018.

95 Exhibit R4, Attachment BJL-2, p.15.

96 Exhibit A3, Attachment AB-11, p.4.

97 Ibid.

98 Ibid.

99 Exhibit R4, Attachment BJL-2, p.15.

100 The Macquarie Dictionary Online, accessed 3 August 2018.

101 Exhibit R4, Attachment BJL-2, p.12-13

102 Exhibit A3, Attachment AB-11, p.2.

103 Exhibit R4, Attachment BJL-2, pp.13 -14; Exhibit A3, Attachment AB-11, p3.

104 The Macquarie Dictionary Online, accessed 3 August 2018.

105 Exhibit A3, Attachment AB-11, pp.3 – 4.

106 Exhibit R4, Attachment BRL-2, pp.13 – 14.

107 Exhibit A3, Attachment AB-11, pp.5 – 6

108 Exhibit R9, [44].

109 Exhibit A3, [10] – [21].

110 Exhibit R9, [8] – [15]

111 Exhibit A3, Attachment AB-11, p.5

112 Exhibit R9, [8], [11].

113 Underlined words added in transcript 27 June 2018.

114

Underlined words added in transcript 27 June 2018.

115 Underlined words added in transcript 27 June 2018.

116 Underlined words added in transcript 27 June 2018.

Ann Brierley & Melissa Chuck v Victoria Police