Anthony Wigg v Department of Agriculture and Water Resources

[2019] FWC 2413

[2019] FWC 2413

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Anthony Wigg
v
Department of Agriculture and Water Resources
(C2019/479)

COMMISSIONER PLATT ADELAIDE, 9 APRIL 2019

Dispute about any matters arising under enterprise agreement – interpretation of agreement – no salary maintenance at the time agreement commenced to operate – schedule 2 does not apply – application dismissed.

[1] Mr Anthony Wigg is an Area Technical Manager who has been employed by the Department of Agriculture and Water Resources (the Department) since 5 February 1987. Mr Wigg’s employment is currently subject to the Department of Agriculture and Water Resources Enterprise Agreement 2017-20 (the Agreement) 1.

[2] On 18 January 2019, Mr Wigg lodged a section 739 application in respect of a dispute between himself and the Department, concerning the application of clause 36 of the Agreement which provides for salary increases.

[3] Mr Wigg contends that his circumstances are such that he is subject to salary maintenance and that he should have received the increases detailed in clause 36.1 of the Agreement on his maintained salary level.

[4] The Department submits that Mr Wigg is subject to the salary range for Level EL2.08 as set out in Table 2 of Schedule 1 of the Agreement and that he is currently receiving the correct remuneration.

[5] A conference was conducted on 11 February 2019. Mr Wigg represented himself. Mr William Duddy represented the Department with Mr Michael Sheehan. The dispute had been subject to much correspondence and discussions between the parties, and the involvement of the Fair Work Ombudsman. It was agreed that further conciliation would not resolve the matter.

[6] Directions were then issued for the filing of material. The parties agreed that in the event there was no dispute on the facts the matter would be determined on the papers.

[7] Mr Wigg filed submissions dated 15 February 2019 and a number of attachments. Ms Cassandra Ireland, Acting Assistant Secretary to the Department, filed a submission dated 22 February 2019 with a number of attachments. On 25 February 2019, Mr Wigg filed submissions in reply.

[8] I have reviewed all of the material filed, the Agreement and the Commission’s file (AG2015/5494) in respect of the termination of Mr Wigg’s individual agreement.

[9] Given that there are no facts in dispute, the matter has been determined on the papers.

[10] There is no dispute that clause 15 of the Agreement empowers the Commission to arbitrate this dispute and that the necessary preconditions have been met.

The Agreement

[11] The Agreement provisions relevant to this matter are reproduced below:

“35. Salary on commencement, advancement or promotion

35.1 When you commence employment, or advance to a higher work level or are promoted to a higher classification, salary will normally be payable at the minimum pay point application to the classification.

35.2 The secretary may approve a salary at a higher pay point, if:

(a) your skills, knowledge and experience exceed the standard that would normally be expected on commencement at the classification; and/or

(b) the contribution that you are able to make immediately exceeds the contribution that would normally be expected on commencement at the classification; and/or

(c) you propose and the secretary agrees that a higher salary is justified.

35.3 When you commence employment from another APS agency and your salary exceeds the top pay point of the relevant classification under this Agreement, the secretary may approve the maintenance of the higher salary until such time as it is absorbed by any remuneration increases provided for in this Agreement. In these circumstances the provisions of clause 36.2 do not apply to you. (emphasis added)

36. Salary increases

36.1 Your salary will be increased by:

(a) three percent to be paid from the first full pay period on or after the commencement date of the Agreement.

(b) two percent to be paid from the first full pay period 12 months after the commencement date; and

(c) one percent to be paid from the first full pay period 18 months after the commencement date.

36.2 If you are receiving salary maintenance or are on a retention pay point which is, in dollar terms, in excess of the salary range for your classification level, you will maintain access to your existing salary level. Any salary increase under this Agreement will be applied to your existing salary level. This does not apply if you are covered by clause 35.3. (emphasis added)”

Submissions

[12] Mr Wigg’s position is summarised as follows:

•  At the time the Agreement commenced (26 July 2017), Mr Wiggs’ salary was being maintained at a level higher than APS Executive Level 2 = Pay Point 8, and as a result the salary increases provided by clause 36.1 of the Agreement should be applied to his higher salary in accordance with clause 36.2.

•  The Agreement does not define the term “maintenance” as used in clause 36.2 of the Agreement. The Oxford dictionary defines the term “maintenance” as to “cause or enable to continue”. The synonym “keep at the same rate” is the appropriate construction to be given to clause 36.2 of the Agreement.

•  The intention of clause 36.2 of the Agreement is that higher salaries may and do occur in which case salary increases will apply to these higher salaries.

•  Prior to the Agreement being approved Mr Wiggs’ salary was being maintained as an APS Executive Level 2 Banded Salary of $133,431. This was in excess of the APS Executive Level 2 – Pay point 8 of $132,053 and thus clause 36.2 must apply. Instead the Department has absorbed Mr Wigg’s higher salary into wage increases under the guise of clause 35.3. Mr Wigg contends he has not joined the Department from another agency and has been a full time employee of the Department since 1987.

[13] Mr Wigg provided some history as to how his salary was higher than the relevant Agreement classification which is summarised as follows:

[14] Mr Wigg entered into an Australian Workplace Agreement (AWA) with the Department (which was known as the Department of Agriculture, Fisheries and Forestry at the time) on 13 April 2004. The AWA provided Mr Wiggs’ salary which was subject to adjustment. An application by the Department for the unilateral termination of the AWA was made.² Deputy President Kovacic approved the termination on 1 October 2015. The termination took effect 90 days later – on 30 December 2015.

[15] Mr Wigg submitted a copy of email correspondence between himself and Ms Cooper (Acting Assistant Secretary and Mr Sheehan). Mr Wigg refers to a discussion with Mr Sheehan and states that he is pleased that an IFA can be provided to maintain his salary prior to the new enterprise agreement. Mr Wigg notes that the proposal for his salary to be caught up by the EL2.08 pay point results in a $1,340 salary reduction and requests that the matter be escalated.

[16] Ms Cooper’s email of 20 November 2015 states:

“Tony

I have been working through your request in consultation with People Services. The following is the advice I have received on the termination of your AWA (31 December I believe). On termination of your AWA your salary would then revert to the EL2.08 pay point i.e. $132,0563 under the current EA. Your current salary is $133,431 and an IFA will be drafted to maintain this salary until the salary in the EA catches up. The proposed EA provides a higher salary and once that is in place you will move to this higher salary and there will not be an IFA required.

….”

[17] In making the decision to terminate the AWA, the Secretary considered whether or not there was a reason to offer an IFA and provide. Ms Cooper states that “an IFA will be drafted to maintain this salary until the salary in the EA catches up”.

[18] Mr Wigg participated in the Agreement negotiations as a bargaining representative and unsuccessfully sought to have a provision included in the Agreement that ensured any percentage salary increase provided by the Agreement would apply to his salary. The minutes supplied indicate that the Department would respond directly to Mr Wigg on this issue.

[19] Mr Wigg believed that clause 36.2 of the Agreement would satisfy his concerns.

[20] Mr Wigg also contended that Schedule 2 – Transitional arrangement of DAFF banded salaries applied, and that he had no corresponding pay point.

[21] The Department’s position is summarised as follows:

•  Mr Wigg commenced employment with the Department on 5 February 1987.

•  The Department and Mr Wigg entered into an AWA on 13 April 2004.

•  On 17 July 2015 The Department advised Mr Wigg of its intention to unilaterally terminate the AWA.

•  On 20 November 2015 the Department wrote to Mr Wigg and provided advice as to his salary following the termination of the AWA (An extract of this communication is detailed above).

•  The Department did not enter into an IFA with Mr Wigg.

•  The Department contends that the effect of that communication was that Mr Wiggs’ salary would be maintained until the Agreement commenced.

•  The AWA ceased to apply from 30 December 2015.

•  The Department honoured its commitment to continue to pay Mr Wigg at his AWA rate until the higher rate under the Agreement came into effect.

•  The Agreement provided that on commencement (27 July 2017). Mr Wigg would be paid at a salary of $136,015.

•  Schedule 2 – Transitional arrangement of DAFF banded salaries – does not apply to Mr Wigg’s classification.

Principles of Interpretation

[22] 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 3 of the Commission modified the approach to interpretation set out in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd (Berri)4. I adopt those revised principles.

Consideration

[23] The issue to be determined is whether Mr Wigg was subject to salary maintenance at the time clause 36.2 of the Agreement applied and failing that, if Schedule 2 applies

[24] The Agreement does not contain a definition of the term “maintain” as used in clause 36.2 of the Agreement. Accordingly its ordinary meaning will apply. I accept the definition of maintain as submitted by Mr Wigg.

[25] Clause 36.2 of the Agreement does not appear to be ambiguous or uncertain.

[26] In my view, clause 36.2 provides that an employee who is covered by the Agreement, and is receiving to salary maintenance during the period that the Agreement applies will be entitled to have their salary increases based on the existing (maintained) salary.

[27] The documentary evidence, in particular the email of Ms Cooper dated 20 November 2015) establishes that the Department agreed to maintain Mr Wiggs’ salary (at the level of $133,431 that arose from the operation of the AWA) for the period between the termination of the AWA and the commencement of the Agreement.

[28] Whilst the Department appears to have represented to Mr Wigg that it would enter into an IFA, the fact that it did not do so does not alter the position detailed in Ms Cooper’s email.

[29] It is clear that the agreed position in respect of Mr Wiggs’ salary maintenance expired at the time the Agreement came into operation. As a result, Mr Wigg was no longer subject to salary maintenance at the time the Agreement applied to Mr Wigg. At that time, Mr Wigg’s AWA salary was “overtaken” by the higher Agreement rate.

[30] I find that clause 36.2 of the Agreement cannot operate so as to require that the salary increases apply on Mr Wigg’s maintained salary of $133,431.

[31] I also find that Mr Wigg’s APS classification and pay point is not contained within any of the tables in Schedule 2 – Transitional arrangements and thus those provisions do not apply.

[32] It is my view that Mr Wigg is entitled to receive the salary provided for EL 2.08, as increased by salary increases detailed in clause 36.1 of the Agreement.

COMMISSIONER

Final written submissions:

Applicants’ submissions filed on 15 February 2019.

Respondents’ submissions filed on 22 February 2019.

Applicants’ submission in reply filed on 25 February 2019.

Printed by authority of the Commonwealth Government Printer

<PR706750>

 1   PR594670.

2 AG2015/5494.

 3   [2017] FWCFB 3005.

 4   [2014] FWCFB 7447.