Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Spotless Facility Services Pty Ltd

[2014] FWC 1010

[2014] FWC 1010

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Spotless Facility Services Pty Ltd
(C2013/7493)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 11 FEBRUARY 2014

Application to deal with a dispute - jurisdiction objection dismissed.

[1] On 2 December 2013 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged an application pursuant to s.739 of the Fair Work Act 2009 (the FW Act) and Clause 1.9 of the Spotless National Maintenance Enterprise Agreement 2012-2013 (the Agreement). This application sought the assistance of the Fair Work Commission (FWC) in the resolution of a dispute over the pay rates applicable to an employee, Mr Ficza, under the Agreement.

[2] The matter was not resolved in a conciliation conference convened on 16 December 2013 and the CEPU sought that the issue be referred to FWC for arbitration. The Spotless Management Services Pty Ltd (Spotless) position was that, given the provisions of the Agreement, the FWC lacked the jurisdiction to progress the application further. Spotless noted that it was involved in discussions directed at achieving a replacement Agreement and asserted that these discussions were the appropriate forum for determination of this matter.

[3] The jurisdictional issue, which is the subject of this decision, was agreed between the parties to be described in the following terms:

“Does the Agreement empower the FWC to determine actual wage rates within the classification level, as distinct from determining what classification level is appropriate?”

[4] Both Spotless and the CEPU have provided submissions in support of their respective positions. Before summarising these positions I have set out the relevant provisions of the Agreement.

[5] Clause 1.9 states:

“1.9 Dispute Resolution Procedure

A major objective of this Agreement is to eliminate lost time and/or production arising out of disputes or grievances. Disputes over any work related, industrial matter, any matters arising out of the operation of the Agreement or incidental to the operation of the Agreement and the NES should be dealt with as close to its source as possible. Disputes over matters arising from this Agreement (or any other dispute related to the employment relationship) shall be dealt with according to the following procedures.

1.9.1 In the first instance, concerns and disputes should be resolved between the employee(s) affected and the appropriate Leading Hand / Team Leader.

1.9.2 If the matter remains unresolved, it may be referred to the immediate manager for resolution. The employee may choose to be represented by an employee representative at this stage.

1.9.3 If it cannot be resolved at this level the matter should be referred to the Company's Regional Manager for resolution. The employee may choose to be represented by an employee representative at this stage.

1.9.4 If still not resolved, the matter should be referred to the Senior National Manager of the Company. The employee may choose to be represented by an employee representative at this stage.

1.9.5 Where the matter remains unresolved, the matter may be referred to Fair Work Australia for determination by conciliation and/or arbitration.

1.9.6 Sensible time limits shall be allowed at each level so that issues can be given due consideration and resolved at as low a level as possible without undue delay, eg a Leading Hand should respond within 24-48 hours, the Immediate Manager within 5 working days and the Regional Manager within 10 working days subject to the availability of the appropriate manager and an employee representative.

1.9.7 Normal work shall continue, without bans or limitations while this procedure is being followed.

1.9.8 Any decision of Fair Work Australia under clause 1.9.5 must not be inconsistent with:

(a) the National Code of Practice for the Construction Industry;

(b) the Australian Government Implementation Guidelines for the National Code of Practice for the Construction Industry; or

(c) any other legislative obligations. (a) the National Code of Practice for the Construction Industry;

(b) the Australian Government Implementation Guidelines for the National Code of Practice for the Construction Industry; or

(c) any other legislative obligations.”

[6] Section 3 of the Agreement deals with pay issues. It provides for classifications which qualify employees to pay rates between specified lower and upper limits. Wage increases in percentage terms are specified. Particularly relevant components of this clause state:

“3.1.1 The salaries and allowances set out in this Agreement shall be increased by 4% on the first full pay period after 1 November 2011 and 4% on the first full pay period after 1 November 2012 (as set out in Appendices 2 and 3).

3.1.2 Employees will receive percentage wage increases of the amount set out above, provided that such increases shall be offset by any percentage wage increases received by an employee referrable to the period from 1 November 2011 until the date 7 days after this Agreement is approved by Fair Work Australia.

3.1.3 The Company shall provide a report to the unions, which were bargaining representatives for this Agreement, listing payroll numbers of employees, the classification, their current rate of pay, the date(s) (where applicable) they received their last percentage wage increase and the quantum of wage increases pursuant to this clause.

3.1.4 Any dispute as to the application of this clause shall be dealt with in accordance with the dispute resolution procedure in this Agreement.

3.1.5 Nothing in this clause negates the capacity of bargaining representatives to agree on appropriate percentage wage increases which are ancillary, incidental or supplementary to the provisions of this clause in relation to local agreements under clause 1.8 of this Agreement.”

[7] This clause then duplicates paragraph numbering but then continues:

“....

3.1.3 Where an employee has a relevant qualification recognised as a minimum training requirement for the level at which the employee seeks to be classified and where he/she is exercising or will be required to exercise the skills and knowledge gained from that qualification it is necessary for the employee to be classified appropriately. It is up to the Company to demonstrate reasons for a qualification that is a recognised minimum training requirement not being regarded as relevant for an employee's classification.

3.1.4 The Company and the Employee Representatives agree that employees have access to reclassification and career path progression. Where an employee believes that his or her job has been incorrectly classified or should be reclassified the following process shall apply:

(a) The employee should raise the issue with his or her immediate manager to determine if there is agreement as to the appropriate classification for the job.

(b) If there is no agreement as to the appropriate classification for the job, the employee should submit a written request for review of classification to the Company's State Human Resources Manager. The employee may choose to be represented by an employee representative at this stage. The written request for review should include:

(i) the employee’s details including name, employee number, job title, work location and manager’s name;

(ii) the employee’s training, skills, knowledge and qualifications and information on how each skill, area of knowledge or qualification is used in the employee’s job; and

(iii) any other matters the employee considers relevant to determining the appropriate classification for the job.

(c) The Company will make a decision in relation to the request for review of classification within 20 days and communicate this decision to the employee.

(d) If the employee is dissatisfied with the decision of the Company, the employee may access the Dispute Resolution Procedure under clause 1.9, however the steps set out at clause 1.9.1 to 1.9.3 will not be required and the employee may proceed directly to the step set out in clause 1.9.4.”

[8] There is no dispute about Mr Ficza’s classification. The issue is about his actual salary within the lower and upper band limits.

[9] The CEPU position is that the FWC is empowered by the Agreement provisions to settle such a dispute and, if necessary, determine the actual wage rates within the specified range and that a determination of this nature would be consistent with both the provisions of the Agreement and s.739 of the FW Act in that the dispute is simply a dispute about the wage rates applicable to Mr Ficza under the Agreement. In this respect, the CEPU asserts that the dispute resolution provisions of the Agreement have been followed so as to enliven the jurisdiction available to the FWC.

[10] Spotless asserts that Mr Ficza’s claim represents an extra claim and is hence contrary to the "No Extra Claims" provisions of the Agreement in that the Agreement provides for pay rates within the classification level to be at the discretion of Spotless. Spotless asserts that the CEPU claim seeks to deprive it of the flexibility to pay employees within the specified salary range. In this respect, Spotless relied on the approach to construction of Agreements generally applied by the FWC. Further, Spotless asserted that the appropriate forum for consideration of actual wage rates was the negotiation process currently in place to determine a new Agreement.

[11] The CEPU replied to this submission, asserting that it was simply seeking a determination based on information contained in the Agreement.

Findings

[12] I have applied the general approach to interpretation of an Agreement urged me by Spotless in the terms set out by the Federal Court in Kucks v CSR Ltd: 1

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which may have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A Court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award.”

[13] I do not consider the application represents an additional claim. It is simply the case that the CEPU and Spotless are unable to agree about whether Spotless is properly exercising its discretion to pay an employee wage rate which is between lower and upper levels of a particular pay band.

[14] That issue must be regarded as a dispute about the operation of the Agreement. Clause 3.1.4 provides that "any dispute as to the application of this clause shall be dealt with in accordance with the dispute resolution procedure of this Agreement".

[15] The dispute resolution provisions of the Agreement are broadly phrased and establish that any work related matter or matters arising from the operation of the Agreement or the employment relationship might ultimately be referred to the FWC for conciliation and/or arbitration.

[16] There is no doubt that Spotless has the discretion to determine wage rates within a band, but where that discretion is disputed, the FWC is authorised by the provisions of the Agreement to resolve the dispute. Put in the converse, there is no exclusion in the Agreement that denies the FWC the capacity to deal with this dispute in as much as it is a matter arising from the Agreement and/or the employment relationship.

[17] Finally, to the extent that Spotless relies on the "No Extra Claims" prohibition in the Agreement, clause 6 states:

“.... the Employees employer and the Employee Representatives will not pursue any extra claims relating to wages or changes in conditions of employment or any other matter related to the employment of the Employees, whether dealt with in the Agreement or not; and

.... this Agreement covers all matters or claims that could otherwise be subject to protected action under the Fair Work Act 2009 (Cth) and its successors.”

[18] The Agreement reached its nominal expiry date on 30 June 2013. I do not regard this matter as an extra claim but in any event there is no prohibition on the pursuit of such a claim at the present time. In this situation the parties simply disagree over the exercise of discretion under the Agreement.

[19] Accordingly, I consider that the FWC is empowered to resolve this dispute. The matter will be listed for a telephone conference so that the parties can consider the next steps in the dispute resolution process.

SENIOR DEPUTY PRESIDENT

 1 (1996) 66 IR 182

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