Brendan Murphy v Mercy Education Limited T/A Sacred Heart College, Kyneton

[2017] FWC 3711

[2017] FWC 3711

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Brendan Murphy

v

Mercy Education Limited T/A Sacred Heart College, Kyneton

(C2017/884)

Commissioner Wilson MELBOURNE, 1 AUGUST 2017

Application to deal with an alleged dispute.

1. Brendan Murphy is employed by Mercy Education Ltd, trading as Sacred Heart College, Kyneton, where he is engaged as its Information Communication and Technology (ICT) Manager. He has been employed by the College since January 2003 and has worked in his current role since August 2010. Mr Murphy is presently classified under the relevant enterprise agreement as a Level ES 4 employee, which he considers to be one grade too low given his actual duties and demonstrated competencies and seeks determination through the application now before the Commission that he be engaged as a Level ES 5 employee.

1. Mr Murphy characterises his application as a dispute raised within the dispute resolution term within the Victorian Catholic Education Multi Enterprise Agreement 2013[1] (the VCEMA Agreement).  The relief sought in his application is;

“To be reclassified and paid the correct salary as per the VCEMA 2013 Level ES5.1 and including back pay applicable to the claim.”[2]

BACKGROUND

1. Evidence was given in this matter by Mr Murphy as the only witness on his behalf and the Principal of Sacred Heart College Kyneton, Craig Holmes who was also the only witness to provide evidence on behalf of the Respondent. In addition, the Commission was assisted through the submissions and documentary materials provided on behalf of each party.

1. Sacred Heart College Kyneton is a reasonably large coeducational school working to the Mercy tradition and accepting enrolments for students in years 7 to 12.  In the 2017 school year there are 819 students. The College employs 74 teaching Staff and 39 non-teaching staff, being a total of 113 staff members. It operates from one campus at Kyneton.  Employment within the College is subject to the agreement referred to above, the VCEMA Agreement and the parties accept that the terms of that agreement have application to Mr Murphy’s employment and to the dispute he alleges.

1. Mr Murphy commenced work with the College in January 2003 when he was employed as a Computer Technician. He was promoted to Network Manager in January 2005 and became the College’s ICT Manager in August 2010.[3]

1. Mr Murphy describes his role as being the senior IT and technical position within the College with him managing 2 technicians both of whom are classified under the VCMEA Agreement at Level ES 2. The position to which Mr Murphy was most recently appointed sets out within an August 2010 position description a long list of duties and responsibilities as follows;

   “ICTMANAGER

   Responsible to:           Principal (or Business Manager as his nominee)
   Reports to:                  Principal (or Business Manager as his nominee)
   Responsible for:         Computer Technology, Website Co-ordination

   Works with:               ICT Co-ordinator, Computer Technician, Office Staff, System                 Users

   Reviewed:                  August 2010

   This is the role description for the I.C.T Manager who reports to the Principal (or for practical purposes, the Business Manager as his nominee) and is responsible for day-to-day matters and in the general prioritising of tasks relating to the College IT system.

   Generally, the expectations of the person in this role are to:

   •accept the Catholic ethos and education philosophy of the school;

   •be committed to regular and on-going professional learning;

   •comply with the policies and directions contained in the Sacred Heart College Staff Handbook;

   •to observe the College's Code of Behaviour and to, at all times, be a positive role-model to colleagues and students;

   •to be aware of, and to fully apply all College OH&S policies and procedures in the workplace on a daily basis.

   More specifically, the duties and responsibilities of this role are as follows:

   •Responsibility for the management, maintenance and repair of all computing systems throughout the College.

   •Maintaining all computers and networks used in the administration of the College, including the installations and maintenance of all hardware and software as required.

   •Ensuring that the technical facilities of the College's network and its equipment are in place and are kept running efficiently.

   •Engaging, at his discretion, suitably qualified Technicians to establish, maintain or repair College computer systems where the work required is beyond the capabilities of the Computer Technician/Network Manager or where Warranty demands.

   •Responsibility for the compilation and maintenance of all documentation and licences associated with computer system software and hardware and for the maintenance of a suitable backup system for all system software purchased by the College.

   •Liaising with the Accounts Clerk in relation to the College Assets Register.

   •Supporting the electronic mail across the network, internally and externally.

   •Establishing systems to protect College computers from viruses and make both hardware and software secure.

   •Implementing security procedures.

   •Directing the Computer Technician and IT Trainee in user administration such as adding and deleting users, changing access privileges etc.

   •Providing regular reports on service levels, outages, capacity usage, system reliability and availability, exception reports, disk usage etc.

   •Responsible for maintaining documentation on user and equipment profiles.

   •Assisting staff to become familiar and comfortable with the computer systems and software.

   •Assisting staff, where possible, to prepare suitable curriculum and instruction sets specific to the use of computer hardware or software.

   •Designing and, where appropriate, delivering relevant and timely training to College staff.

   •Responsibility for the maintenance of the Internet and Intranet and providing professional development for staff in the use of Internet and Intranet functions and capabilities.

   •Providing support in the use of the College's Reporting System, "Markbook", for the Markbook administrators.

   •Directing the Computer Technician and IT Trainee in assisting students with difficulties in using school hardware or software and helping to supervise the Computer Laboratories during lunchtimes and after school.

   •Act in the role of Joint Chair (with the College ICT co-ordinator) of the College's "Computer Steering Committee" and preparing occasional reports that point out options for improvement to the College computer systems.

   •Responsibility for maintaining the Administration system and co-ordinating user support and documentation for the system.

   •Developing and maintaining College Access databases as requested and directing IT Dept. staff in same.

   •Being responsible (in conjunction with ICT Co-ordinator) for the investigation and planning of future hardware/software and procedural developments at the College.

   •Responsibility for prioritising work to be completed and providing direction to the Computer Technician and IT Trainee in this regard.

   •Responsibility (Jointly with ICT steering Committee members) for liaising with College staff, at a managerial level, to provide the leadership for the fast-tracking of an IT culture among staff.

   •Any other appropriate duties as requested by the Information Technology Co-ordinator or the Business Manager.

   •Financial responsibility for Budgets. Recurrent & Capital (jointly with ICT Co-ordinator)”[4]

1. Mr Murphy describes this position description as one which has undergone some changes over the years with his current duties being more accurately described in the following way;

“4. The major responsibility of this position is to deliver robust, reliable, secure IT

infrastructure to College users to meet the teaching, learning and administration
requirements of the College.

1.Leadership, Management & Communication

·This position is a non‐teaching position. It exists to support learning and teaching outcomes

·High level communication skills are required to interpret education and user requirements to provide robust and responsive systems

·The need to work collaboratively with teachers to provide the resources to meet education needs is paramount, especially where there may be a lack technical knowledge. A team‐player approach is required.

·The position is responsible for managing, supervising and mentoring two technical staff members

2.Managing Servers

·Network/Hardware Environment is comprised o:

oWin 2012, 2008, 2003, Exchange and SQL servers

o6 physical servers

oVMware virtual servers (16 servers)

·Management and backup and all data and servers is required

·Upgrades to servers/software/operating systems and licensing agreements are maintained

·Documenting Server Room Environment is developed, maintained and revised

3.Device Management

·Position has managed the purchase/lease of 1100 devices currently in use for:

oManagement of computer labs

oDesktops

oNetbooks

oIpads

oMacbooks

oMAC

·Implementation and management of MDM (Mobile Device Management) and Apple Device Enrolment Program

·Selection, sourcing and management of devices, printers and other computer peripherals

·Ensure that upgrades to Operating Systems and apps are managed appropriately

4.Budgets and Assets

·Responsible for the Development and monitoring of Annual IT capital and recurrent budgets

·Deals and negotiates with hardware suppliers and lease companies to ensure best deal and within budget

·Ensures that assets are appropriately managed and tracked

5.Security and Privacy

·Implementing controls and logging to monitor internal and external security breaches from deliberate and inadvertent attacks and breaches

·Implement access controls to ensure data security and privacy

6.Manage IT Support Staff

·Responsibility for directing, managing and developing two technical staff members

7.Managing Network Infrastructure

·Upgrading to capacity as required

·Implementation, monitoring and managing wireless infrastructure

·Monitoring and updating internet capacity to the school

·Documenting network structure

·Scheduling maintenance and upgrades

8.Project Management

·Installation of hardware and software

·Examples include DER (Digital Education Revolution) 1:1 – Supplying a device to each student; implementation of disaster recovery, upgrading infrastructure and software, implementation of Managed Print Services, Creating College GAFE and migrating students email to gmail

9.Managing Risk

·Development of comprehensive disaster recovery plans with consultants

·Advise staff regarding risk in relation to proposals which require changes to school IT infrastructure

10. Strategic & Policy Planning

·As a member of the ICT Digitech Strategic Committee, contributes to ICT strategic planning, policies and procedure to support teaching and learning

·To plan IT facilities and infrastructure in accordance with the Learning /Teaching requirements and strategy of the college.

11. Manage Audio Visual Requirements & Operations

·Support devices and ensure ongoing compatibility

12. Software – Implementation, Support and Licensing

·MS Office

·Google Apps for Education (GAFE) including GMail

·SAS (Student Administration and Finance)

·NAPLAN online

·SIMON (Intranet ‐ Student Learning Management System)

·PAM (Parent Access Module – part of SIMON )

·SIMON Online student

·CareMonkey (medical and permissions application)

·Management of licences and warranties

13. Help Desk & User Support

·User Access Management (970 users)

·Record and track all help desk enquiries and outcomes

·Mentor and coach staff regarding service focus and skills development

14. Contractor Management

·Various contractors are used to develop disaster recovery, install network and sever hardware and internet capability.

·1:1 Devices repair and warranty on site servicing”[5]

1. The relevant classifications within the VCEMA Agreement are within a part dealing with Education Support. Appendix 6 sets out the descriptors for the Education Support classifications, with the Appendix both setting out general work descriptors for each classification as well as typical duties for some, but not all, of the classifications are featured within the Appendix.

1. For the reason that Mr Murphy supervises two employees classified at Level ES 2 and that he is presently classified at Level ES 4 and seeks a determination that he should be classified at Level ES 5, the material from the Education Support Appendix relevant to each of these three levels is set out below;

·  Level ES 2

oGeneral work description

1.2 General Work Description- Level Two

(a) Competency

(i) Competency at this level may include Level 1 competencies. In addition, competency at this level involves the application of knowledge with depth in some areas and a broad range of skills. There is generally a variety of tasks, roles and contexts. There is some complexity in the ranges and choice of actions required. Some tasks may require limited creative, planning or design functions.

(b) Judgement, independence and problem solving

(i) Roles at this level will require Employees to exercise judgment to identify, select and apply the most appropriate available guidelines and procedures, interpret precedents and adapt standard methods or practices to respond to variations.

(ii) Roles may require an Employee to:

§apply diagnostic skills, theoretical knowledge and techniques to a range of procedures and tasks; and/or

§undertake tasks requiring expertise in a specialist area or a broad knowledge of a range of functions.

(c) Direction

(i) Supervision is generally required to establish general objectives relative to specific tasks, to outline the desired end product and to identify potential resources for assistance.

(ii) Some positions will require routine supervision to general direction depending upon experience and the complexity of the tasks.

(d) Supervision

(i) Roles at this level may be required to:

§supervise students while performing their normal duties but may not be used instead of a Teacher;

§supervise other Employees at lower levels.

(e) Qualifications and Experience

(i) Level 2 duties typically require a skill level which assumes and requires relevant knowledge or training equivalent to:

§completion of a trades certificate or Certificate III;

§completion of Year 12 or a Certificate I or II, with relevant experience and or education/training; or

§an equivalent combination of relevant experience and/or education/training.

oTypical duties – Education Support (level 2)

“Typical duties- Education Support (Level 2)

The duties listed are examples of activities typically undertaken by employees in different roles at each of the classification levels. Roles at a particular level may include duties from lower levels.”

“Specific to Information and Communications Technology (ICT)

(a) assisting with training and develop training guides for staff and students;
(b) responding to faults in the first instance.”

·  Level ES 4

·  General work description

“1.4 General Work Description- Level Four

(a) Competency

(i) Competency at this level may include Level l - 3 competencies. In addition, competency at this level operates within broad principles set by management.

(ii) An Employee at this level is expected to undertake a high proportion of tasks involving complex, specialised or professional functions.

(iii) A role at this level may co-ordinate or manage a specific functional responsibility and/or liaise with the general community, government agencies or service providers.

(b) Judgement, independence and problem solving

(i) Roles at this level will generally require Employees to be able to:

§independently relate existing policy to work assignments and apply a specific body of knowledge to solve problems;

§use theoretical principles in modifying and adapting techniques

(c) Direction

(i) Broad direction, working with a degree of autonomy.

(d) Supervision

(i) Roles at this level may be required to:

§supervise students while performing their normal duties but may not be used instead of a Teacher;

§co-ordinate or manage a specific functional responsibility and/or manage other Employees including administrative, technical and/or professional Employees.

(e) Qualifications and Experience

(i) Level 4 duties typically require a skill level which assumes and requires knowledge or training equivalent to:

§a degree with relevant work experience;

§extensive experience and/or management expertise in the relevant field; or

§an equivalent combination of relevant experience and/or

§education/training.”

·  Typical duties

“5. Typical duties- Education Support (Level 4)

The duties listed are examples of activities typically undertaken by Employees in different roles at each of the classification levels. Roles at a particular level may include duties from lower levels.”

“Specific to Information and Communications Technology (ICT)

(a) managing the development and effective operation of the computer systems within a school(s) where there is a high degree of complexity (e.g. significant size, multicampuses, integration of several functional areas) and importance to the educational objectives to be achieved.”

·  Level ES 5

·  General work description

“1.5 General Work Description- Level Five

(a) Competency

(i) Competency at this level may include Level l-4 competencies. In addition, competency at this level generally requires Employees to be responsible for program area development and implementation, to provide strategic support and/or advice requiring integration of a range of school policies and external requirements, and an ability to achieve objectives operating within complex organisational structures.

(ii) A role at this level will generally lead and manage a significant functional element of a large school, and/or contribute in a major way to the development, maintenance and implementation of the policy framework of a large school.

(b) Judgement, independence and problem solving

(i) Roles at this level may generally require Employees to develop of new ways of using a specific body of knowledge which applies to work assignments, or may involve the integration of other specific bodies of knowledge.

(ii) Employees exercise initiative in the application of professional practices demonstrating independent discretion and judgment.

(c) Direction

(i) Little or no supervision is required.

(ii) Generally reports directly to the Principal.

(d) Supervision

(i) Roles at this level may be required to:

§supervise students while performing their normal duties but may not be used instead of a Teacher;

§have management responsibility for a functional area and/or manage other Employees including administrative, technical and/or professional Employees.

(e) Qualifications and Experience

(i) Level 5 duties typically require a skill level which assumes or requires:

·     postgraduate qualifications or progress towards postgraduate qualifications and extensive experience;

·     extensive experience and/or management expertise; or

·     an equivalent combination of relevant experience and/or education/training.”

·  Typical duties

“Typical duties- Education Support (Level 5)

The duties listed are examples of activities typically undertaken by Employees in different roles at each of the classification levels. Roles at a particular level may include duties from lower levels.”

There are no “typical duties” specified as specific to Information and Communications Technology Level ES 5.

1. The crux of the argument put forward by Mr Murphy about his classification involves three considerations. Firstly, that the changes to his role between 2010 and 2017 are significant and in combination lead to the conclusion that his role has grown beyond Level ES 4. Secondly, that being the senior IT and Technical Manager of the College means that he is inherently engaged in the development and deployment of information technology strategy which is a key feature of Level ES 5. Thirdly, and with reference to the criterion within the descriptors for Level ES 5 that the role is featured with the leadership and management of a “significant functional element of a large school”, Mr Murphy argues that Sacred Heart College Kyneton is a large school, being one with more than 700 students, being a definition used within the Australian Education Act 2013 (Cth) for the purposes of allocation of funding.

1. When Mr Murphy was appointed to the role of ICT Manager an earlier enterprise agreement applied with a different classification scale. Before appointment as ICT Manager he was classified at Level 6 of the then applicable Victorian Catholic Education Multi-Employer Agreement 2008 (the 2008 Agreement) and, upon appointment as ICT Manager was appointed to the higher Level 7. Submissions before the Commission from the Respondent put forward that Level 7 of the 2008 Agreement is equivalent to the Level ES 4 under the now applicable VCEMA Agreement.

1. Before making this application, Mr Murphy applied to the College for reclassification from Level ES 4 to Level ES 5. That application was made on 11 November 2016 and was refused by the College in February 2017.

1. Sacred Heart College puts forward that Mr Murphy is not, on any analysis, undertaking the work of a person classified at Level ES 5 and that in particular the Director of Business is the person with management responsibility for the College’s ICT function, rather than Mr Murphy.[6] The College notes that Mr Murphy reports to the Director of Business and that while he manages the day-to-day operational requirements of the ICT function and coordinates its activities, he does not have leadership and management responsibility for the function.[7] The school submits as well that Mr Murphy is not responsible for managing several functional areas and that instead he is required to coordinate what amount to day-to-day operational requirements of a single functional area.[8]

RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE

1. 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.[9] 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”.[10]

1. 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.[11] 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.”[12]

1. In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute.[13] The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.[14] 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.[15] The character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.[16] However, the relief sought may cast light on the true nature of the dispute in some cases.[17]

1. 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)[18] 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.[19]

1. 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[20] 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.”[21]

RELEVANT AGREEMENT AND LEGISLATIVE PROVISIONS

1. Clause 22 of the VCEMA Agreement provides for a dispute resolution procedure with the clause being in the following terms;

“22 Dispute procedures

22.1 Dispute settling procedure

Where there is a dispute between an Employee (or Employees) and the Employer about:

(a) The application or interpretation of this Agreement (the matter in dispute); or

(b) The National Employment Standards;

the following procedures will apply.

22.2 Procedure Step 1

Every attempt shall be made to resolve a dispute, in the first instance, by discussions between the individual(s) directly involved at the workplace and the Employer. This does not preclude the right of either party to seek advice from outside the workplace, nor does it necessitate such an approach where this is impracticable.

22.3 Procedure Step 2

When a dispute is not resolved by Step 1, the Employee or the Employer may each seek the assistance of a representative in order that a further attempt can be made to resolve the matter. The Employee representative may include a union official or union delegate.

22.4 Procedure Step 3

(a) In the event that Steps 1 and 2 fail to resolve the matter, it may be referred by either party to the Commission for its assistance in resolving the matter by conciliation. The matter should not be referred by either party to the Commission prior to the completion of Steps 1 and 2.

(b) Until the dispute is determined, work shall continue normally in accordance with the custom or practice existing before the dispute arose, while discussions take place.

(c) No party shall be prejudiced as to the final settlement by the continuance of work. Health and safety matters are exempted from this sub-clause.

(d) Where the matter is not resolved by conciliation, either party may request that the Commission arbitrate the matter in dispute. Any such arbitration shall be subject to and in accordance with this clause.

(e) In arbitrating the dispute the Commission may only:

(i) give directions about the process to be followed within the school to resolve the matter in dispute; and/or

(ii) determine the matter in dispute consistent with the limits or standards set by the relevant provisions of this Agreement.”

1. Clause 64 of the VCEMA Agreement deals with certain specific conditions of service and includes the following relating to an apprehension on the part of an Education Support Employee that they are incorrectly classified;

“64.6 Further classification information

(a) If an Employer requests an Education Support Employee to obtain a higher level of skill through a qualification, this request shall be put in writing. The letter shall include a guarantee that upon successful completion of the study, the Education Support Employee shall advance to the appropriate higher level of pay.

(b) Possession of a qualification is not an automatic guarantee of classification at a particular level.

(c) If the Education Support Employee believes that the nature of the job has changed to such an extent as to warrant a reclassification, the Education Support Employee shall apply to the Principal with supporting evidence. If a dispute arises as to the level of classification, clause 22 shall apply.”

1. On the basis of the evidence before the Commission I am satisfied both that Mr Murphy’s application to the Commission is about the application or interpretation of the VCEMA Agreement and that he followed the procedural steps set out within the clause in order to endeavour to resolve the matters in dispute before bringing the matter to the Commission for determination.

1. It is apparent from clause 22 that the Commission is empowered to arbitrate a matter in dispute provided that it may only “determine the matter in dispute consistent with the limits or standards set by the relevant provisions of this Agreement”.

CONSIDERATION

1. Part 5 of the VCEMA Agreement and in particular clauses 64 and 65 deal with conditions specific to Education Support Employees. Clause 64.1 requires that a Category A Education Support Employee, being one who normally works 48 weeks per year and receive four weeks paid annual leave,[22] shall be paid within the appropriate level specified in schedule 4.

1. Unlike classifications in some of the other parts of the VCEMA Agreement, Part 5 does not specifically identify the process by which employees come to be classified at the time of employment. For example Part 6, dealing with School Services Officers requires that upon engagement a School Services Officer is appointed “to the appropriate classification level as set out in Appendix 7, based on the general work descriptions and level of direction and supervision and the required duties”.[23] Part 4, applicable to Primary School Principals requires that upon appointment to a Principal position “the level is determined by the enrolment at the school in the year that the Principal position is advertised”.[24]

1. These considerations, as well as the evidence and submissions before the Commission, lead to a finding that this is a dispute arising from Clause 64.6(c), and is about whether the nature of Mr Murphy’s job has changed to such an extent as to warrant a reclassification.

1. There is nothing before the Commission that would lead to the view that the classification descriptors for Education Support Employees in Appendix 6 are ambiguous or are to be given anything other than their plain meaning.

1. As may be expected, there are important differences between the different elements of the descriptors for each of Levels ES 4 and ES 5. The evidence about Mr Murphy’s work requires consideration against the differences in the descriptors. The Commission’s task in this regard involves making findings of fact;

“[16] The task of determining the appropriate classification involves making findings of fact as to the requirements of the roles and applying those facts to the proper scope of the Agreement classifications. Often this is a difficult task, especially when the agreement operates on notions implied by practice and local understandings. Further, duties may be comprehended by more than one classification or be outside the scope of all classifications. In such circumstances it is necessary to determine the substantial character of the role by reference to the level of responsibilities and the duties of the position to determine the most appropriate classification from the range of classifications in the agreement.”[25]

General Work Description – Competency

1. In relation to matters of competency, Level ES 5 “generally requires Employees to be responsible for program area development and implementation, to provide strategic support and/or advice requiring integration of a range of school policies and external requirements, and an ability to achieve objectives operating within complex organisational structures”. Level ES 4 requires less than these features and in particular requires that an employee at that level be “expected to undertake a high proportion of tasks involving complex specialised or professional functions”. An analysis of the descriptors as a whole would lead to the view that a key distinguishing feature between the two levels is that the higher of the two requires competency which is beyond the mere running of a particular function to a proficient standard, being featured by the developmental and strategy references set out above.

1. Mr Murphy described his work largely in terms of the things he did, and changes that had emerged to those things over time. The duties he performed are set out in the list above comprising 14 elements.  The changes that Mr Murphy says took place in his duties since 2010 are set out as including these developments;

“3. A full digital infrastructure is now provided for all students, teaching staff and administrators that supports the college’s 1:1 devices program (each student has a

device supplied by the college)
4. Between 2010 to 2017 total number if devices grew from 370 to 1100.
5. The College now has an environment comprising Windows/PC’s, Apple Macs, Ipads (IOS Operating System), Netbooks, Google Applications, Learning Management Systems (SIMON),”[26]

1. Mr Holmes puts forward that Mr Murphy’s position description will be reviewed at an undefined time in Term 2 2017 as part of a wider process to make sure that all Education Support Employee position descriptions are up to date.[27] While indicating this intention, Mr Holmes does not say what changes will be made, or whether they will assist Mr Murphy’s case. Watching how the two witnesses gave their evidence it is doubted that will be case. Term 2, 2017 is now over, and was almost over when the matter was heard. There have been no changes to the position description so far and no likely changes identified to the Commission. Had Mr Holmes a desire to improve on the level of the duties within Mr Murphy’s position description, or to incorporate within it the changes to Mr Murphy’s role identified within his evidence, he had the opportunity to do so prior to these proceedings.

1. I accept Mr Murphy’s evidence within his witness statement about his actual duties as the duties he is called upon to perform, although I do not rely upon his assertions about the meaning of those duties in terms of his correct classification.

1. I accept that, for the purposes of this analysis that the matters of fact requiring determination are the duties Mr Murphy is now expected to perform. Clause 22 allows disputes to be raised about the “application or interpretation” of the VCEMA Agreement.  Clause 64.6(c) also permits disputes about changes to the nature of an Education Support Employee’s job to also be raised under the dispute resolution procedure within Clause 22.

1. The critical question in relation to the matter of competency exercised by Mr Murphy is whether, because of the things he is now required to undertake as part of his job, he exercises competency at a level higher than Level ES 4.

1. Mr Murphy advances essentially three arguments in relation to matters of competency. The environment in which he works is now significantly more complex than it once was, largely as a result of the greater number of devices required to be serviced by the College IT network as well as the different operating systems required for the multiple types of devices. He provides significant leadership to the College and especially through the work undertaken by the ICT Committee of which he is a member (which is also known as the Digitec Strategic Committee). Finally, he points to the things he has done to perform his role as ICT Manager in recent years reasonably demonstrate he is working at a greater competency level than he once was.

1. These matters are posited around a number of functional changes that have occurred within the College’s ICT environment in recent years and the developmental and strategic activities of the school led by the Digitec Strategic Committee.

1. The evidence reasonably leads to the conclusion that there has been significant change within the ICT environment in the College in recent years. It has expanded to an extensive Wi-Fi environment and operates successfully not only with Windows-based devices, but also systems operating on the Apple IOS platform, as well as operating numerous network applications. Between 2010 and 2017 the total number of devices supported by the College’s ICT network has grown from 370 to 1100.[28] Mr Holmes’s evidence on the subject though, tempers what may be considered a “complexity through growth” argument with the following evidence;

“14.       Prior to 2013 the College, operated four computer labs, which meant that the College had approximately 350 devices. Since providing the students and teaching staff with college owned devices, the College has reduced its computer labs from four to one. Through the introduction of providing students with devices the number of devices the College owns has increased from approximately 350 to 1100 devices. The ICT function has not increased dramatically through this process though. The ICT department is responsible for software issues which occur with the student devices but a majority of technical issues are dealt with through the warranty provided through the purchase of the devices and repaired offsite. While the number of devices has increased, so to as the level of external technical support. The College does not have a significantly complex ICT function. The College is one campus, with less than 1000 students and does not have to deal with the complexities associated with ‘A Bring Your Own Device Program’ for students or multi-campus locations.  Of the approximate 1100 devices the college currently owns, they operate on only four different operating systems.”[29]

1. In his reply statement, Mr Murphy debates what Mr Holmes sets out in relation to “bring your own device” matters, and puts forward that the College ICT environment “maintains a complex environment which supports BYOD devices”.[30] Mr Holmes response to that evidence rebuts Mr Murphy’s propositions and reiterates what he says above about the complexity of the College’s ICT platforms.[31]

1. The College maintains a Digitech Strategic Committee which exists to develop and oversight the College’s ICT direction and planning. The Director of Business, to whom Mr Murphy reports, is the Chair of the Committee. Mr Murphy is a member of the Committee along with a number of other people including Mr Holmes, the Deputy Principal – Learning and Teaching, the Digital Learning Leader, the SIMON application coordinator, as well as having representatives of the College Advisory Council and teachers and students.

1. An independent review of the College’s ICT environment was prepared for the Digitech Strategic Committee in 2014. At its higher level the review considered “the high level design of the existing ICT infrastructure, how it is used, whether it is well conceived, adequately maintained and fit for purpose and meets the needs of the school”.[32] As may be expected by such a review the report covered the full strengths and weaknesses of the ICT function in the College as well as providing ultimately a pathway for the school to achieve its higher level strategic objectives. A key finding of the review report was “the perception that the ICT team does not really contribute to the process of innovation and only focuses on technology and infrastructure”[33] and that;

“Overall, the results display a very consistent view that ICT is focused only on the technology and are meeting expectations in this regard, but are missing the connection with the broader ICT requirements of the College, and needs to step up its overall standard of delivery of its services to the College. When comparing this data against industry standards, the gaps become very alarming. Whilst the school is essentially "functioning" on a day-to-day" basis, the general perception is that the school does not have the capacity to innovate and implement longer term. It appears that the school acknowledges that there is an attempt to "innovate" (led by the Librarian), however, there are just too many tangential directions being proposed, combined with a diluted attention to effective management due to shared roles and responsibilities by key staff.

With the combination of having no perceived benchmarks or agreed success criteria, the staff believe there should be more focus on defined projects rather than just "adding more initiatives to the pile".”[34]

1. The ICT Review Report has significance to Mr Murphy’s application to the Commission in so far as it provides a 2014 baseline view about the matters that could be expected to be demonstrated by a person who was working at Level ES 5 competency.

1. In summary, the General Work Description elements for Level ES 5 includes four competency elements: – responsibility for program area development and implementation; provision of strategic support and/or advice; the ability to achieve objectives while operating within complex organisational structures; and a general expectation that one might lead and manage a significant functional element of the College or contribute in a major way to a large College’s policy framework.

1. From the background of the strategic expectations established by the ICT Review Report, it could be expected that a person working at Level ES 5 would demonstrate cogently and persuasively that what they have done since, say, 2015 was to drive and deliver identified programs that would plug the gaps identified within the report. Unfortunately, in the case of Mr Murphy’s evidence that was not the case. The evidence he gave ultimately showed that he was working to a strong service delivery ethic, but one within the context of already known and relatively stable strategies. The evidence he gave in relation to his role within the Digitech Strategic Committee was neither compelling nor persuasive. He was unable to point to leadership he had shown to the Committee that caused it to accept proposals or strategies that he had brought forward for the College’s adoption.

1. Delivery of the College’s current expectations, albeit in a more sophisticated ICT environment than once was the case, is plainly a task not to be underestimated. Delivery of the programs for which Mr Murphy is responsible would undoubtedly be a challenging role and the consequence of an unstable network or one prone to outages would undoubtedly be criticism about poor or failed performance. However those features of competency in and of themselves do not amount to the level described within the General Work Description for Level ES 5. Instead, the work described to the Commission by Mr Murphy is broadly consistent with the competencies set out in the General Work Description for Level ES 4. He plainly has a high proportion of tasks involving complex, specialised or professional functions. He coordinates and manages a specific functional responsibility and by all accounts does that well.

1. I have also taken into account in relation to my assessment of the Level ES 5 competencies Mr Murphy’s assertion that his case is assisted with Sacred Heart College, Kyneton being a large school under the Australian Education Act 2013 (Cth) for the purposes of allocation of funding. The matter I need to take account of is whether the ICT Manager role is to “lead and manage a significant functional element of a large school”, which is the phrase used within the General Work Description for Level ES 5 (Appendix 6, Clause 1.5 (a)(ii)). The question of whether Sacred Heart College is a large school within the meaning of the VCEMA Agreement or a large school for funding purposes is not a matter in dispute, and in any event does not resolve the particular question. Instead, within the context of the clause, the proper question is whether his job is to “lead and manage a significant functional element”. For the reasons set out above, I am not able to make that finding.

1. As result the evidence does not lead to a finding that Mr Murphy is working to the competencies set out for the higher level, Level ES 5.

General Work Description – Judgement, independence and problem solving

1. The judgement, independence and problem-solving descriptors for Level ES 5 set out that it can be expected an employee would “develop of new ways of using a specific body of knowledge which applies to work assignments, or may involve the integration of other specific bodies of knowledge” and that they “exercise initiative and the application of professional practices demonstrating independent discretion and judgement”.

1. The evidence before the Commission in relation to Mr Murphy’s role shows that he has a limited role in developing new ways of using ICT within Sacred Heart College Kyneton. While he is certainly a member of the Digitech Strategic Committee and is called upon to advise that Committee in certain ways, the evidence does not lead to a finding that his role in relation to that Committee is sufficiently involved in promoting or delivering innovation to meet the level described in Level ES5. Similarly, the evidence before the Commission about Mr Murphy’s general duties suggests that his role is more in relation to ensuring the stable running of already delivered systems or delivering new or additional services against known and already defined strategies. The evidence does not compellingly demonstrate that Mr Murphy is required to innovate on a regular basis.

1. The judgement, independence and problem-solving descriptors for Level ES 4 instead refer to employees generally being able to “independently relates existing policy to work assignments and apply a specific body of knowledge to solve problems” or to “use theoretical principles in modifying and adapting techniques”. Those descriptors align with the duties and responsibilities described by Mr Murphy.  Overall, Mr Murphy has not demonstrated that the work he is undertaking is aligned with the judgement, independence and problem-solving  descriptors of a Level ES 5.

General Work Description – Direction

1. Whereas the Direction descriptor for Level ES 4 requires that there be “[b]road direction, working with a degree of autonomy”, the Level ES 5 descriptor requires in relation to direction, that “[l]ittle or no supervision is required” and that the position “[g]enerally reports directly to the principal”.

1. The evidence before the Commission indicates both formal and informal circumstance for Mr Murphy’s direction and supervision.

1. The formal circumstance is that he reports to the College’s Director of Business.  The informal circumstance, at least as depicted in Mr Murphy’s evidence is that the College’s supervisory arrangements in relation to his position are at best ineffectual and possibly not functioning at all in relation to the Director of Business. On Mr Murphy’s evidence the Director of Business has not injected himself at all into supervision or management of Mr Murphy. While the Director of Business did not give evidence, the evidence of Mr Murphy in particular was that the Director of Business really did not supervise or manage him to any great extent, although that appears to be a circumstance, to some extent at least, of personalities. The evidence given by Mr Holms would suggest that his own attentions were in altogether different directions to the ICT department; he did not directly give cogent evidence that would contradict Mr Murphy’s on the extent of his direction and supervision by the Director of Business.

1. It appears therefore that Mr Murphy in fact has little or no direction or supervision of his work.

1. A finding is therefore open to the Commission to make that the circumstance of Mr Murphy’s supervision is that it fits the Level ES 5 descriptor, albeit that is probably a circumstance that has arisen by default or lack of management rather than through any set of conscious decision making.

General Work Description – Supervision

1. The Supervision descriptors of Level ES 5 highlight that one of the differences between that level and the lower Level ES 4 is that the higher position has “management responsibility for a functional area and/or manage other Employees including administrative, technical and/or professional Employees”.

1. The evidence before the Commission is that Mr Murphy manages or supervises two other technical employees at Level ES 2. In some respects it could be said that he has management responsibility for that area and those employees, however it would be difficult to accept that “management” of a group of two like-operating employees amounts to actual management of a functional area.

1. In some respects the gradations between the two levels are insufficiently explained for the terminological differences in the descriptors to have any meaningful purpose.  However in respect of Mr Murphy, for the reason that I doubt that management of two technical employees is actual management of a functional area, I do not find that he is working at the level expected of Supervision for Level ES 5.

General Work Description – Qualifications and Experience

1. At least in respect of Mr Murphy’s role and actual qualifications and experience, there is no meaningful analysis to be undertaken in respect of the differences between the descriptors for quality and experience Levels ES 4 and ES 5.

1. Relevantly the lower classifications requires the skill level equivalent to an “extensive experience and/or management expertise in the relevant field” whereas the higher as an expectation of “extensive experience and/or management expertise”. There is nothing before the Commission formally identifying the College’s requirements in relation to qualifications and experience. Neither is there sufficient evidence before the Commission that would lead to a view that Mr Murphy, in and of himself, because of his actual qualifications and experience, would be insufficiently qualified or experienced to be classified at Level ES 5.

1. I make no findings in respect this aspect of the descriptors. Qualifications and experience are therefore a neutral consideration in my determination of Mr Murphy’s application.

Typical duties

1. Whereas “typical duties” are referred to within Appendix 6 for an ICT Employee working at Level ES 4 there are none specified for such an employee classified at Level ES 5.

1. The “typical duties” specified for an ICT employee at Level ES 4 are;

“Specific to Information and Communications Technology (ICT)

(a) managing the development and effective operation of the computer systems within a school(s) where there is a high degree of complexity (e.g. significant size, multicampuses, integration of several functional areas) and importance to the educational objectives to be achieved.”

1. A consideration of all of the evidence before me leads to a view that Mr Murphy is performing duties consistent with, and not significantly beyond, the Level ES 4 defined “typical duties”.

1. Having considered all of the evidence and submissions in this matter and having made appropriate findings of fact in relation to both the evidence and the descriptors set out within the classifications for Education Support Employees within the VCEMA Agreement a finding is unable to be made that Mr Murphy is working at the ES 5 level.

CONCLUSION

1. As a result of the foregoing findings there is insufficient evidence before the Commission to find in Mr Murphy’s favour.

1. Accordingly, Mr Murphy’s application is dismissed.

COMMISSIONER

Appearances:

Mr Brendan Murphy Applicant
My Brendan Murray, Minter Ellison. For the Respondent.

Hearing details:

2017.
Melbourne
June 6.

[1] AE405326.

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

[3] Exhibit A1, Applicant’s Outline of Submissions, p.2.

[4] Ibid, Attachment 1.

[5] Ibid, Attachment 1.

[6] Exhibit R1, Witness Statement of Craig Holmes, [26].

[7] Ibid, [37].

[8] Ibid, [41].

[9] 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].

[10] 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].

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

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

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

[14] Ibid [47].

[15] 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.

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

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

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

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

[20] [2017] FWCFB 3005.

[21] Ibid [114].

[22] VCEMA Agreement, Clause 11.12.

[23] Ibid, Clause 66.

[24] Ibid, Clause 59.1.

[25] Fonterra Brands (Australia) Pty Ltd v AMWU[2015] FWCFB 3912.

[26] Exhibit A1, p.4.

[27] Exhibit R1, [20].

[28] Exhibit A1, p4.

[29] Exhibit R1.

[30] Exhibit A2, Materials in Response to Employer’s Outline of Arguments, [12].

[31] Exhibit R2, Further Witness Statement of Craig Holmes, [13].

[32] Exhibit R3, Independent  Review of ICT Environment, Reflex Technology Group, August 2014, p.3.

[33] Ibid, p.8.

[34] Ibid, p.9.

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