Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v v/Line Corporation
[2024] FWC 1924
•22 JULY 2024
| [2024] FWC 1924 |
| 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
V/Line Corporation
(C2024/538)
| COMMISSIONER TRAN | MELBOURNE, 22 JULY 2024 |
Application to deal with a dispute under an enterprise agreement – higher duties
On 31 January 2024 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU/the Applicant) applied for the Commission to deal with a dispute under s 739 of the Fair Work Act 2009 (the Act) and in accordance with Clause 2.2 of the V/Line Asset Management Enterprise Agreement 2019 (the Agreement).
The Respondent is V/Line Corporation.
This dispute is about what rates of pay employees covered by an enterprise agreement should be paid when they act in a higher position that is not covered by the enterprise agreement.
The ETU acts on behalf of two members, who are employed in the substantive position of Signal Maintenance Technician. Both acted in Signal Supervisor positions: Mr Benjamin Power acted in the Signal Supervisor position from 19 July 2021 to 21 April 2023; Mr Kevin Smith acted in the Signal Supervisor position from 20 April 2023 to 15 December 2023. The Signal Maintenance Technician position is covered by the Agreement, but the Signal Supervisor position is not.
During the time that they were Signal Supervisors, V/Line paid both Mr Power and Mr Smith the Assistant Supervisor rate of pay (IWM3.5), which is the highest rate in the Agreement.
The Agreement does not have a rate of pay for the Signal Supervisor position.
To resolve this dispute I propose to answer with the following questions:
1. Is the dispute ‘a matter arising under the Agreement?’
2. If it is, does Clause 4.5 – Mixed Functions/Higher Duties apply in circumstances where an agreement covered employee performs higher duties in a role that is not covered by the Agreement?
3. If the answer to 2 is yes, what is the higher rate of pay that must be paid under Clause 4.5?
Materials relied upon
I conducted a conference on 28 February 2024 but was unable to assist the parties to achieve a resolution. The ETU then explained in correspondence with my chambers that further settlement negotiations had failed and requested that the matter be arbitrated. Both parties filed materials in accordance with directions issued 13 March 2024 and agreed that it was appropriate for the matter to be dealt with on the papers without a hearing.
The ETU relies upon the following materials:
-Outline of submissions dated 27 March 2024;
-Reply submissions dated 17 April 2024;
-Witness statement of Kevin Smith, Signal Maintenance Technician, dated 27 March 2024; and
-Witness statement of Benjamin Power, Signal Maintenance Technician, dated 27 March 2024.
V/Line Corporation relies upon the following materials:
-Outline of submissions dated 11 April 2024;
-Witness statement of Brad Mariano dated 11 April 2024; and
-Witness statement of Shaun Symons dated 11 April 2024.
Relevant clauses of the Agreement
This dispute is primarily over Clause 4.5 of the Agreement:
“4.5. MIXED FUNCTIONS/HIGHER DUTIES
4.5.1. An Employee who is requested to work at a classification attracting a higher rate of pay shall be paid at that higher rate for all time so worked.
4.5.2. Where four or more hours are worked at a higher classification, the Employee will be paid for a minimum of eight hours at the higher rate.
4.5.3. No restrictions shall be placed on the allocation of work on either a higher or lower grade or level to an Employee where circumstances require, provided that the Employer is satisfied the Employee is capable, trained or qualified to perform the work allocated.
4.5.4. Where an Employee has acted in a higher classified position for a period of six months,
the Employee will be reclassified at the higher classification. This shall only apply where the higher position is vacant with no permanently appointed incumbent.
4.5.5. This clause shall not be applied in bad faith to avoid the creation of necessary permanent positions.”
Is the dispute ‘a matter arising under the Agreement’?
Clause 2.2 of the Agreement sets out the dispute settlement procedure. Clause 2.2 is appended to this decision. I am of the view that the Commission may arbitrate this dispute in accordance with Clause 2.2.7.
The Agreement only allows me to arbitrate a dispute that pertains to the employment relationship (Clause 2.2.1(a)(iii)) by agreement of the parties. But agreement of the parties is not required where such a dispute also relates to a matter arising under the Agreement (Clause 2.2.7(a)(i)). This dispute relates to the interpretation of Clause 4.5 of the Agreement, which is a matter arising under the Agreement in accordance with Clause 2.2.1(a).
V/Line says that it does not agree to the Commission arbitrating the methodology about the appropriate rate of pay for the Signal Supervisor position. For the below reasons I am of the view that I do not need to reach any conclusions about the methodology regarding the appropriate rate of pay for the Signal Supervisor position. If I am wrong, and for completeness, I am of the view that the Commission would not have jurisdiction to arbitrate the matter regarding the methodology for the Signal Supervisor position. This is because I agree with V/Line that it is not a matter arising under the Agreement but is a matter pertaining to the employment relationship. So, it would require agreement of the parties to permit the Commission to arbitrate the dispute. There is no agreement and so the Commission does not have jurisdiction to arbitrate.
Does Clause 4.5 – Mixed Functions/Higher Duties apply in circumstances where an Agreement covered employee forms higher duties in a role that is not covered by the Agreement?
I answer this question – yes – based on the plain meaning of Clause 4.5 and having regard to the evident purpose of the clause.
Both parties asked me to the interpret the clause by considering the ordinary meanings of its words.
I am of the view that the plain meaning of Clause 4.5.1 is that if an employee is asked to work in a position that is paid more highly than their current position, they should be paid a higher rate of pay.
Classification does not have a specialised meaning, and so can apply to classifications not covered by the Agreement
V/Line submits that the word classification can only mean a classification covered by the Agreement. So, as Signal Supervisors are not a classification covered by the Agreement, Clause 4.5 cannot apply.
Contrary to V/Line’s submissions, there is nothing in the words ‘classification attracting a higher rate of pay’ that restricts the classification to only those covered by the Agreement. I am also of the view that ‘classification’ has an ordinary meaning and not a specialised meaning as contended for by V/Line.
Classification is the way that industrial instruments allocate jobs to particular rates of pay, recognising that there may be other jobs that attract different – lower or higher – rates of pay. Enterprise agreements rarely cover all employees of an employer, often covering only those employed in certain geographical areas or performing certain functions. Often agreements do not cover executive and managerial employees. This is recognised in the Act by ss 186(3) and (3A) which together require that if an agreement does not cover all the employees of an employer, then the Commission must be satisfied that the group of employees covered are fairly chosen, having regard to whether the group is geographically, operationally or organisationally distinct.
Classification is not defined in the Agreement. The Agreement also does not contain the classifications – it simply provides rates of pay in a table alongside named classifications in Schedule A to the Agreement. There are no descriptions of jobs or duties performed or qualifications required for each classification in Schedule A. At Clause 3.1.7(b), the Agreement refers to progression through the Classification Structure, which is contained in a document that is separate to the Agreement – the V/Line Asset Management Classification Structure WRPR-11 dated 2 December 2020.
The parties agree that the Signal Supervisor position is not part of the Classification Structure covered by the Agreement. I consider that it is not necessary to resolve this dispute to have regard to what the Classification Structure is, as the question relates to whether the clause applies if the higher job is not in the Classification Structure.
Relevance of purpose of clause
The ETU asked me to consider the purpose of the clause, in accordance with settled principles of interpretation.[1] The ETU says that the purpose of Clause 4.5 is to ensure employees who perform work at a classification higher than their own receive the higher rate of pay that applies to that classification.
It strikes me as contrary to the evident purpose of the clause if employees covered by the Agreement could not be asked and agree to act in executive or managerial or other positions not otherwise covered by the Agreement.
V/Line submitted that when employees who are covered by the Agreement act in higher duties in a role falling outside the scope of the Agreement, the Agreement does not apply. I disagree. Until those employees are offered a substantive position that is not covered by the Agreement, they remained covered by the Agreement and its terms and conditions continue to apply – as a minimum – to their employment. Nothing prevents the Employer from agreeing to provide an employee covered by an agreement with greater or more beneficial terms and conditions, including for temporary periods of time.
What is that higher rate of pay that must be paid under Clause 4.5?
As I have found that Clause 4.5 does apply when an Agreement covered employee acts in the role of Signal Supervisor, it follows that they must be paid ‘that higher rate of pay’ for that position.
V/Line submits that there is a lack of certainty about what higher rate of pay is payable to Signal Supervisors, however the email of 21 March 2024 from Brad Mariano to Kelvin Reidy sets out the rate of pay. I find that is ‘that higher rate of pay’ that is payable under Clause 4.5.
V/Line also submits that Mr Power and Mr Smith were appropriately compensated by receiving a rate of pay that was higher than their substantive rate and calculated in accordance with standard practice. The ETU disputes that this standard practice could form custom and practice that is binding on the employer. I am of the view that, in order to resolve this dispute, I do not need to resolve this question. This is because there is a rate of pay for Signal Supervisors, as provided for in the email from Mr Mariano to Mr Reidy on 21 March 2024.
The ETU asked me to create an all-purpose higher duties allowance. The ETU sought that I have regard to percentage differences between award classifications and apply those differences to Agreement rates of pay. In its reply submissions, the ETU withdrew this request. This is entirely appropriate. I would have declined to create an allowance, as I am otherwise of the view that doing so would not be an exercise in interpreting the Agreement but rather re-writing the Agreement.[2]
I have considered all the parties’ evidence and arguments. To resolve this dispute, I answer the questions as:
1. Is the dispute ‘a matter arising under the Agreement?
Yes.
2. If it is, does Clause 4.5 – Mixed Functions/Higher Duties apply in circumstances where an agreement covered employee forms higher duties in a role that is not covered by the Agreement?
Yes.
3. If the answer to 2 is yes, what is the higher rate of pay that must be paid under Clause 4.5?
The fixed rate of pay for the Signal Supervisor position is contained in an email of 21 March 2024 from Brad Mariano to Kelvin Reidy which confirms the total remuneration package and the relevant amount less superannuation.
COMMISSIONER
Matter determined on the papers.
Appendix 1
“2.2. DISPUTE SETTLEMENT PROCEDURES
2.2.1. Resolution of disputes
(a) If a dispute relates to:
(i)a matter arising under the Agreement (excluding a matter relating to occupational health and safety); or
(ii)the National Employment Standards; or
(iii)a matter pertaining to the employment relationship,
then the following procedures apply.
(b) The Employer or an Employee covered by this Agreement may choose to be represented by a representative of their choice for the purpose of this clause.
2.2.2. Obligations
(a) The parties to the dispute agree to genuinely attempt to resolve the dispute through the processes set out in this clause and will cooperate to ensure that these processes are carried out expeditiously.
(b) Subject to clauses 2.2.2(c), (d) and (e), whilst a dispute is being dealt with in accordance with this clause, work must continue in accordance with the usual practice as it existed prior to the issue which caused the dispute (‘status quo’), provided that this does not apply to an Employee who has a reasonable concern about an imminent risk to his or her health and safety, has advised the Employer of this concern and has not unreasonably failed to comply with a direction by the Employer to perform other available work that is safe and appropriate for the Employee to perform. In other words, the state of affairs as it existed prior to the matter that is the subject of the dispute will remain in place. For example, if the dispute is about a change to work, the status quo represents the position before the change.
(c) If the status quo has a direct impact on service delivery or Government related initiatives, then the status quo will only apply up to the conclusion of the steps in clause 2.2.6.
(d) The status quo will not apply to a dispute under clause 2.2.1(a)(iii).
(e) Neither party to a dispute under this clause will be prejudiced as to the final settlement of the dispute by the continuance of work in accordance with this clause.
2.2.3. Discussion of dispute
(a) Step One
The dispute must first be discussed by the aggrieved Employee(s) with the Employee(s) immediate supervisor.
(b) Step Two
If the matter is not settled at Step 1 (or if Step 1 is not appropriate because the Employee’s dispute is with his or her immediate supervisor), the Employee(s) can require that the matter be discussed with another representative of the Employer chosen by the Employer and appointed for the purposes of this procedure. The Employee(s) may choose to have a representative present at this discussion.
(c) Step Three
If the matter is not settled, a party may apply to the FWC to have the dispute dealt with by conciliation and, if conciliation is unsuccessful, subject to clause 2.2.7, arbitration.
2.2.4. Disputes of a Collective Character
(a) The Parties covered by this Agreement acknowledge that disputes of a collective character concerning one or more Employee may be dealt with expeditiously by an early reference to the FWC.
(b) Despite 2.2.4(a) above no dispute of a collective character may be referred to the FWC directly unless there has been a genuine attempt to resolve the dispute at the workplace level prior to it being referred to the FWC.
2.2.5. Disputes procedure
(a) Nothing in clause 2.2 permits the parties to refer a matter to, and for FWC to make any order or to determine any matter referred by way of clause 2.2.3 and clause 2.2.4 where such an order or determination exceeds or would exceed the referral of powers to the Commonwealth Parliament under the Fair Work Commonwealth Powers Act 2009 (Cth) or relates to the Employer’s capacity to determine the number and identity of persons who it wishes to employ, the term of appointment of such persons, and the number and identity of the persons whom it wishes to dismiss with or without notice from its employment on redundancy grounds (in accordance with Re AEU).
2.2.6. Conciliation
(a) Where a dispute is referred for conciliation, a member of the FWC shall do everything that appears to the member to be right and proper to assist the parties to agree on terms for the settlement of the dispute.
(b) This may include arranging:
(i)conferences of the parties or their representatives presided over by the member; and
(ii)for the parties or their representatives to confer among themselves at conferences at which the member is not present.
(c) Conciliation before the FWC shall be regarded as completed when:
(i)the parties have reached agreement on the settlement of the dispute; or
(ii)the member of the FWC conducting the conciliation is satisfied that there is no reasonable likelihood that further conciliation will result in agreement by the parties within a reasonable period on terms for settlement of the dispute; or
(iii)either party to the dispute have informed the FWC member that there is no reasonable likelihood of agreement on the settlement of the dispute and the member does not have substantial reason to regard the conciliation proceedings as not completed.
2.2.7. Arbitration
(a) Other than by agreement of the parties, the FWC does not have the power to arbitrate a dispute of the type dealt with by clause 2.2.1(a)(iii) (about a matter pertaining to the employment relationship) unless:
(i)The dispute is also of the type dealt with by either clause 2.2.1(a)(i) and/or (ii); or
(ii)The dispute relates to a major change which is likely to have a significant effect on Employees, as defined in clause 1 (Consultation).
For the avoidance of doubt, in such a situation, the FWC may exercise all of its other powers (including mediation, conciliation, expressing an opinion, issuing a statement, making a recommendation etc.) in relation to such disputes.
(b) Where a member of the FWC has exercised conciliation powers in relation to the dispute, the member shall not exercise or take part in the exercise of arbitration powers in relation to the dispute if a party objects to the member doing so.
(c) Where such an objection is lodged, the dispute shall be referred to another member of the FWC.
(d) Where the dispute is determined by arbitration, the decision of FWC will be binding on both parties, subject to either party exercising a right to appeal to a Full Bench of FWC in accordance with section 604 of the Act.
2.2.8. Conduct of Matters before the FWC
(a) Subject to any agreement between the parties to the dispute in relation to a particular dispute and the provisions of this clause, in dealing with a dispute through conciliation or arbitration, the FWC may conduct the matter in accordance with Chapter 5, Subdivision B of Division 3 of the Act.”
[1] AMWU v Berri Limited[2017] FWCFB 3005 at [114], Principle 1; Golden Cockerel [2014] FWCFB 7447 at [41], Principle 8; AMWU & UWU v Fresh Food Management Services Ltd[2023] FWCFB 97 at [54].
[2] See AMWU v Berri at [114], Principle 2; Golden Cockerel at [41], Principle 10; and Kucks v CSR Ltd per Madgwick J (1996) 66 IR 182 at 184-185.
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