Australian Education Union v Yooralla
[2018] FCCA 2758
•26 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTRALIAN EDUCATION UNION v YOORALLA | [2018] FCCA 2758 |
| Catchwords INDUSTRIAL LAW – Construction of awards – whether person “an instructor” – on the facts she was not – proceeding dismissed. |
| Legislation Fair Work Act 2009, ss 13, 14(1)(a), 15, 41, 42, 90(1), 99, 301, 305, 335, 539(2) Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Attendant Care – Victoria Award 2004 Disability Services Award (Victoria) 1993 Social, Community, Home Care And Disability Services Industry Award 2010. |
| Cases cited Re City of Wanneroo v Michael Lindsay Holmes (1989) 30 IR 362 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091 |
| Other materials Stewart, Andrew, Stewart’s Guide to Employment Law (The Federation Press, 6th ed, 2018) |
| Applicant: | AUSTRALIAN EDUCATION UNION |
| Respondent: | YOORALLA |
| File Number: | MLG 1391 of 2016 |
| Judgment of: | His Honour Judge J D Wilson QC |
| Hearing date: | 13 and 14 December 2017 28 March 2018 |
| Date of Last Submission: | 30 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 26 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms F Knowles |
| Solicitors for the Applicant: | Australian Education Union |
| Counsel for the Respondent: | Mr M Rinaldi |
| Solicitors for the Respondent: | DLA Piper Australia |
ORDER
This proceeding is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1391 of 2016
| AUSTRALIAN EDUCATION UNION |
Applicant
And
| YOORALLA |
Respondent
REASONS FOR JUDGMENT
Introduction
In the 2018 edition of Stewart’s Guide to Employment Law, Professor Stewart wrote about the complexity of Australian employment law. At paragraph 1.4, Professor Stuart said the following[1] –
[1] Andrew Stewart, Stewart’s Guide to Employment Law (The Federation Press, 6th ed, 2018) 2-3 [1.4]
One of the first things people realise about Australian employment law, as they begin to study it, is how complex it is.
There are many reasons for this. One is the peculiar and unclear division of regulatory authority between the Commonwealth and the States under our Constitution. Another and more recent reason has been the tendency of legislators, especially at the federal level, to draft long and detailed laws. This was especially true of the Howard Government’s 2005 ‘Work Choices’ legislation, which even experts struggle to understand.
But beyond those factors, what complicates our employment laws is that the rights and obligations of workers and those who employ the services can be affected by so many different instruments. These include:
·agreements, which may be written or unwritten, individual or collective, registered or unregistered;
·industrial law;
·federal, State or Territory statutes or regulations;
·executive government policies;
·organisational policies and procedures;
·the rules and processes of the common law; and
·international labour standards.
More is said below about each of these sources and how they interrelate.
This proceeding was said to raise several complex questions about employment entitlements yet in the end the case was resolved on a factual level by a consideration of the activities of a trainer.
Erin Jane Legg claimed she was not paid the correct sum in respect of the ordinary hours she worked and in respect of sums due for public holidays, annual leave and personal leave. She also asserted Yooralla knowingly or recklessly made a false or misleading representation about her workplace rights. She sought declaratory relief.
Since December 2013, Ms Legg has been employed by Yooralla on a full-time basis. As was common ground, Ms Legg has at all material times been a member of the Australian Education Union (“AEU”), the applicant in this proceeding, and an employee of Yooralla for the purposes of ss 13, 41, 42 and 301 of the Fair Work Act (“FWA”).
Ms Legg has been paid amounts that corresponded to her classification as an employee having a particular status according to a certain collection of provisions of industrial instruments. She argued that she was incorrectly classified with the consequence that she should have been paid at a higher rate in accordance with different provisions of certain industrial instruments.
AEU sought declaratory relief to the effect that Yooralla contravened –
a)s 305 of the FWA by failing to pay Ms Legg the minimum hourly rates for ordinary hours as well as public holiday hours contrary to cl 5.5 of the Social, Community and Disability Services Equal Remuneration Order 2012 (“ERO”);
b)s 44 of the FWA by failing to pay Ms Legg the minimum hourly rates for annual leave taken and personal leave taken, contrary to ss 90(1) and 99 of the FWA;
c)s 45 of the Act by failing to pay Ms Legg the minimum hourly rates for annual leave loading contrary to cl 31.3 of the Social, Community, Home Care And Disability Services Industry Award 2010 (“modern award”);
d)s 45 of the FWA by failing to inform Ms Legg of her classification under the modern award contrary to cl 13.2 of the modern award; and
e)s 345 of the FWA by knowingly or recklessly making a false or misleading representation about Ms Legg’s workplace rights.
Yooralla denied it was liable to pay Ms Legg at the rate she sought. Yooralla argued that at all relevant times Ms Legg’s employment has been covered by, and continues to be covered by, the provisions of the Yooralla Collective Agreement 2006 (“YCA”). It said that the YCA was certified under the Workplace Relations Act and that it has not been terminated or replaced and therefore continues to apply by operation of the provisions of the Fair Work (Transitional Provisions and Consequential Amendments) Act (“FWTPCA”).
This proceeding raised issues concerning –
a)whether Ms Legg was entitled to be paid under the Social, Community, Home Care and Disability Services Award 2010 (colloquially termed the “SCHADS Award”);
b)if so, whether Ms Legg was underpaid under the SCHADS award in relation to her ordinary hours worked and in respect of public holidays, annual leave and personal leave;
c)whether Yooralla, by making reference to the Attendant Care – Victoria Award 2004 (“ACV”) in Ms Legg’s employment contract, and by failing to inform Ms Legg of her classification under the SCHADS Award, knowingly or recklessly made a false representation about Ms Legg’s workplace rights contrary to the provisions of the FWA;
d)the applicability of the Yooralla collective agreement having regard to the operation of the provisions of the FWTPCA;
e)whether the YCA excludes any modern award that might otherwise apply to Ms Legg's circumstances by reason of the operation of schedule three of the FWTPCA;
f)whether the provisions of the SCHADS and the terms of the modern award were otherwise applicable to Ms Legg; and
g)others, as detailed in the passages below.
This proceeding involved matters of construction. In other words, it called for a determination on the applicability of various industrial instruments set against legislative instruments. Except insofar as rates of pay were relevant, precise dollar amounts said to have been unpaid were not the subject of detailed quantification. For that matter, very little of the evidence conflicted nor was it the subject of detailed forensic examination. Further, some of the applicable case law has emanated from bodies that, according to the jurisprudential doctrine of stare decisis, was not strictly binding on me.
Synopsis
For reasons that follow, in my judgment –
a)Ms Legg was not underpaid;
b)the relevant classification applicable to her was level two;
c)Yooralla did not contravene any provision of the FWA; and
d)Yooralla did not knowingly or recklessly make a false representation about Ms Legg’s workplace rights.
The parties
This proceeding was brought by the AEU and not by Ms Legg. It was common ground that at all relevant times Ms Legg was a member of the AEU and a full-time employee of Yooralla for the purposes of ss 13, 41, 42 and 301 of the FWA.
It was also common ground that the AEU was a person with standing to bring this proceeding by operation of s 539(2) of the Act.
So far as Yooralla was concerned, the parties agreed that it was –
a)at all relevant times a constitutional corporation;
b)a national system employer for the purposes of ss 14(1)(a), 41, 42 and 301 of the FWA;
c)an employer for the purposes of ss 15 and 335 of the FWA; and
d)the provider of disability services including the provision of personal care as well as domestic and lifestyle support to persons with a disability in a community or residential setting including respite care and day care; and
e)the employer of Erin Jane Legg.
Mr Rinaldi of counsel for Yooralla did not take issue with AEU’s standing to commence this proceeding.
This part of the proceeding went no further than a determination on liability.
It was common ground that Yooralla was required to comply with the provisions of the FWA and the Fair Work Regulations in respect of Yooralla’s employment of Ms Legg. It was also common ground that the following provisions were applicable, that is to say –
a)in the period between 1 July 2009 to 31 December 2009 the Disability Services Award (Victoria) 1993 and the Attendant Care – Victoria Award 2004 covered some of Yooralla’s employees;
b)from 1 January 2010 the SCHADS award covered Yooralla in respect of its employment of some employees including Ms Legg;
c)from 1 January 2010 the ERO applied to Yooralla and covered it in relation to some of its employees;
d)from 3 December 2012 the ERO applied to Ms Legg’s employment by Yooralla; and
e)for the purposes of cl 5.3 of the ERO, the transitional minimum wage referable to Ms Legg was the pay and classification scale derived from a pre-modern award.
Ms Legg
Some relevant details
No dispute existed about Ms Legg’s personal information including her formal tertiary qualifications. It is necessary to record them below.
In June 2009 Ms Legg graduated from a three year degree as a bachelor of applied science (physical education, secondary). Additionally, she graduated in May 2013 from a four year degree as a bachelor of occupational therapy.
On or about 28 October 2013 Ms Legg applied to Yooralla for employment in the role of “disability support worker 2” and on 3 December 2013 she was employed in that role. Her contract of employment provided that she was a disability support worker classified as an attendant carer award grade 2 year one. As mentioned above, it was common cause between the parties that Yooralla provided disability services including the provision of personal care and lifestyle support to persons with a disability in a community or residential setting including respite care and day services. One of those services was Naroo Day Service (“Naroo”). Persons who attended Naroo were called “clients” in this proceeding. They had varying degrees of disability and varying degrees of ability. The day service now known as Naroo was previously owned by Eastern Disability Access and Resource (“EDAR”) and operated by Yooralla.
During Ms Legg’s employment with Yooralla, several co-workers also worked at Naroo performing duties similar to Ms Legg. The following co-workers had been originally employed by EDAR and their employment was transferred to Yooralla on 1 July 2013 –
a)Attila Siposori, whose role was described as instructor/disability support worker;
b)Theresa Vincenzi, also described as instructor/disability support worker;
c)Caroline La Dow; and
d)Luke Cullen, also described as instructor/disability support worker.
It was agreed that Mr Siposori, Mr Callan, Ms Vincenzi and Ms La Dow were previously employed by EDAR. They were classified and paid under the EDAR Disability Services Victoria (Part One) Collective Agreement 2008 and the ERO. The equivalent position to that held by Mr Siposori and Ms Vincenzi under the modern award was a social and community services employee level three. The equivalent position held by Ms La Dow and Mr Cullen under the modern award was a social and community services employee level two.
Two other colleagues of Ms Legg who at all relevant times performed duties similar to Ms Legg, Mr Siposori, Mr Cullen, Ms La Dow and Ms Vincenzi were Kim Payne and Daniel Dowling, both entitled disability support workers. They were engaged under the YCA.
On and from July 2014 Ms Legg reported to her supervisor, Sonia Marie Faulkner, Yooralla’s programme manager.
Ms Legg gave evidence that at any given time she had responsibility for between four and six of Yooralla’s clients. She said her duties that she was required to and in fact performed included –
a)training people with an intellectual, physical or sensory disability;
b)developing and maintaining and supporting individual training programs, in a variety of settings;
c)preparing and maintaining client and service documentation;
d)conducting client lifestyle programmes; and
e)administrative duties.
Ms Legg gave evidence that she did not usually assist people with a disability to perform day-to-day activities that a person without a disability would do for himself or herself, including eating, bathing, picking up items and so on.
Ms Legg said that person centred planning, as it was called at Naroo, involved the development of programmes, tailored to the specific needs and disabilities of Yooralla’s clients on an individual basis. It focused on the specific goals each client sought to achieve. Ms Legg gave evidence that person centred planning was a key aspect of her role. She said she prepared various documents, individual versions of which were kept in folders for each client and on a regular basis Ms Legg and Ms Faulkner reviewed the content page to ensure each client was supported in the planned manner. The documents that Ms Legg prepared were identified by her as –
a)“client specific dictionaries”;
b)“my lifestyle plan”;
c)“lifestyle plan action plan”; and
d)“client support plan”.
Ms Legg said she prepared individual weekly plans for each of the clients in consultation with Ms Faulkner. Ms Legg said she prepared progress notes and graph documents for each client. She also prepared programme outlines with specific client information concerning each client. The programmes Yooralla offered to its clients at Naroo included bowling, pamphlet collation, pamphlet delivery, cooking, swimming, disco, scrapbooking, iPad operation and café outings.
Ms Legg gave evidence that she took two programmes each day. She said that typically she –
a)informed clients where they were to keep food and medication;
b)assisted clients having lunch;
c)where another colleague was available, Ms Legg took half hour breaks;
d)kept records of clients who took medication at lunch;
e)assisted clients to use toilets prior to commencing the programme held after lunch; and
f)completed progress notes and assessments during the break.
On a monthly basis Ms Legg communicated with Ms Faulkner on feedback given about the services provided at Naroo. Ms Legg also prepared interim progress reports in respect of clients after evaluating each client’s progress during each of the four terms during which Naroo was in operation.
According to Ms Faulkner, Ms Legg performed her duties to a high standard.
First issue – was Ms Legg an “instructor”?
The parties were in dispute about whether Ms Legg was properly classified as an instructor within the meaning of the pre-modern award or whether she should be classified as an attendant carer within the meaning of the attendant care award.
On behalf of Ms Legg it was argued that Ms Legg conducted training as part of her work and therefore she attained level three classification and that Ms Legg’s four-year degree meant that she was entitled to be paid at pay point four of level three. On behalf of Yooralla it was argued that Ms Legg did not conduct training within the meaning of the level three classification but rather that she provided attendant care and therefore was properly characterised under level two. Yooralla also argued that Ms Legg’s four-year degree was irrelevant to the level of classification or to the pay point.
In my judgment, Yooralla’s contentions are correct.
Irrespective of the title her role was given, when determining Ms Legg’s employment classification I was required to ascertain the principal aspect of her work. So much has been held as being my task by the Federal Court of Australia in authorities such as city of Re City of Wanneroo v Michael Lindsay Holmes[2] and Joyce v Christoffersen.[3] That is a question of fact. It is also a question of degree. The activities of training or undertaking work as an instructor were not the principal purpose of Ms Legg’s work. The fact that she held a degree was not determinative nor even useful in the task of ascertaining the principal purpose of her work. After all, a person who holds a law degree but performs tasks of a secretary does not mean the person performs the work of a lawyer. In any event, Ms Legg’s degree was in occupational therapy.
[2] [1989] FCA 369 (at [45])
[3] (1990) 26 FCR 261, 278
On behalf of Ms Legg it was submitted that the major and substantial employment of Ms Legg was the education and training of persons with intellectual, physical or sensory disability. The gravamen in that submission is the correctness or otherwise of describing Ms Legg’s work as “training” or “instructing”. The activities identified in paragraph 48 of Ms Legg’s submissions dated 4 December 2017 did little to illuminate the precise nature of the activity involved and so it was not possible to say whether or not any of those activities involved “training” or “instructing” even though phrases such as “delivery of training”, “client training” and “maintaining individual training” were used. Ms Legg was cross-examined about her activities, as one would have expected.
In ordinary parlance, the verb “to train” is commonly understood to involve the task of teaching a particular skill or type of behaviour through sustained practice and instruction. As an adjective, the word means “develop and improve (mental or physical faculty) through instructional practice.”
Ms Legg gave evidence she did not train clients to take their medication.[4] Next, she was asked about the activity she undertook involving a client and the affixing of his or her seatbelt. She said showing a person how to on put their seatbelt could potentially be regarded as part of their learning and it would be part of the training programme because for her the client has learnt a new thing and that person was achieving goals as an adjunct to daily living.
[4] Transcript (14 December 2017) 102
On that analysis, any activity undertaken by Ms Legg leading in some way to the client learning a new thing or achieving goals of daily living was “training”. That is to give the word “to train” an extremely wide meeting and it ignored the aspect of the sustained practise and instruction that the verb ordinarily connotes. Further, for the purpose of the decided cases, especially City of Wanneroo v Holmes and Joyce v Christoffersen, the principal aspect of the work, not an incidental adjunct to it, is an important feature. Training was not the principal aspect of the work. She asserted that 40% of her time was allocated to client training and support and that an additional 20% of her time was allocated to preparing client focused documentation, thereby rendering 60% of the time devoted to some aspect or other related training.
I disagree.
The fact that other persons may be classified differently was neither here nor there. EDAR classified and paid them. In any event, the fact and rate of payment or even their classification by EDAR was not determinative nor did it bind me.
Significance was placed by Ms Legg on the position description. Whatever it may have stated, the question is to be resolved by the work Ms Legg actually did as opposed to the description that was given to her work. In my view, she performed work of an attendant carer in respect of which some training was involved but any training was not the mainstay or even a substantial part of her work. In my view, she was correctly classified at level two
Second issue – applicable pay point
For reasons already covered, Ms Legg’s classification was a level two, not level three. Therefore, the pay point applicable to level three was irrelevant.
Third issue – contraventions
In view of my conclusion that Ms Legg was properly classified at level two, no contraventions were involved. That said, the arguments were complicated by reason of the applicability of the relevant award. It is necessary to put the issue in context.
On 3 December 2013 Ms Legg commenced employment with Yooralla. The day earlier, that is to say on 2 December 2013, Yooralla provided Ms Legg with a draft employment contract and position description. In that contract, as was common ground, a provision stated that Ms Legg’s employment was covered by the YCA.
Ms Legg argued that, in breach of s 345 of the FWA, Yooralla knowingly or recklessly made a false representation about the award that applied to Ms Legg’s employment. On behalf of Yooralla, it was contended that s 345 incorporated a mental element as was held by Mortimer J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation.[5]
[5] [2017] FCA 1091
Debate emerged about the precise workplace right that was said to have been recklessly or knowingly falsely represented. AEU said the false representation related to the applicable award that was mentioned in Ms Legg’s contract of employment. Yooralla said that the relevant workplace right was a right to be covered by an award. Yooralla said that if an employer makes an error in respect of the applicable award and mistakenly informs the employee of the wrong award, that is not a false representation about a workplace right nor could it be said that any such representation was made knowingly or recklessly. Yooralla said the requisite mental element was not present.
I agree with Yooralla’s contentions. No evidence was led in this case that addressed in any shape or form any mental element touching or concerning the making of the representations alleged, whether knowingly or recklessly. In any event, it seemed to be an erroneous characterisation of the workplace right to contend that the “right”, properly so called, that was allegedly falsely represented was the applicable award.
I do not accept the applicant’s construction that Yooralla falsely represented one or more aspects of a workplace right.
Conclusion
As is apparent from the foregoing, in my judgment AEU failed in its application in this proceeding. I was not persuaded that Ms Legg’s classification was at level three. She was correctly classified at level two. There was no contravention of a workplace right. In my view Yooralla correctly recorded in the contract documentation for Ms Legg the correct classification referable to Ms Legg.
I dismissed this proceeding.
I will hear the parties as to costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of his Honour Judge J D Wilson QC
Date: 27 September 2018
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