Corazon Elauria Grass v James Milson Retirement Village
[2022] FWC 441
| [2022] FWC 441 |
| FAIR WORK COMMISSION |
| STATEMENT AND RECOMMENDATION |
Fair Work Act 2009
s.739—Dispute resolution
Corazon Elauria Grass
v
James Milson Retirement Village
(C2021/5221)
| COMMISSIONER MATHESON | SYDNEY, 28 FEBRUARY 2022 |
Application to deal with a dispute in accordance with a dispute settlement procedure.
On 1 September 2021, Ms Corazon Elauria Grass (Applicant) filed an application for the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute settlement procedure in the James Milson Village Enterprise Agreement 2021 (Agreement).
The respondent to the application is James Milson Retirement Village (Respondent).
By way of summary, there is a dispute about whether the Applicant, currently classified by the Respondent as an Aged Care Employee Level 3, should be classified as an Aged Care Employee Level 4 under the Agreement. The provisions of the Agreement that the Applicant has identified in her application as being in dispute are clause 7.7 and Schedule A of the Agreement.
The Applicant’s application identifies that the relief sought by the Applicant is for the Applicant to be paid the Aged Care Employee Level 4 hourly rate of $32.05 per hour from 1 July 2020 backdated to 1 March 2020 and to be paid $32.69 per hour from 1 July 2021. At a conference on 19 January 2022, the Applicant confirmed that the reference to 1 March 2020 in the application was intended to refer to 1 March 2021, as reflected in clause 7.7 of the Agreement.
The application was listed for conference on 20 September 2021, 29 September 2021, 12 October 2021, 18 October 2021 and 22 October 2021. Despite the Commission’s attempts at conciliation, the dispute was not resolved during those conferences.
Under clause 41.2(c) of the Agreement, where the dispute remains unresolved following conciliation, either party may refer the dispute to arbitration by the Commission. On 25 October 2021, the Applicant advised that she would like to proceed to arbitration by the Commission.
Directions were issued to the parties on 25 October 2021 setting a timetable for arbitration and the filing of submissions. On 9 November 2021, the Applicant requested an extension for the filing of its submissions and materials. An extension was granted and amended directions were issued on 9 November 2021.
The Applicant filed submissions on 10 November 2021 in accordance with the amended directions.
On 24 November 2021, the Respondent emailed my Chambers stating:
“The Applicant and Respondent are progressing with discussions about the potential resolution of this matter and other items relating to the Applicant’s employment. In the event the Applicant and Respondent cannot come to a resolution to resolve those issues, the Respondent has communicated to the Applicant that it will in any event withdraw its opposition to the Applicant’s current Dispute Application, and will grant the Applicant the relief sought at paragraph 3.1 of the Dispute Application dated 31 August 2021.
For this reason, the Respondent will not be filing any materials in response to the Application. Given the current status of discussions between the parties, we have suggested to the Applicant that the current Directions and Hearing Date are vacated by consent, but the Applicant has advised us that she is not willing to consent to that course of action.”
On 3 December 2021, the matter was the subject of a further case management conference. At that case management conference, the Respondent expressed the view that it had granted the Applicant the relief sought in her application and, as such, there was nothing further to be resolved by the Commission and that the only matter that remained in dispute was the quantum to be paid. Both parties indicated that they were working through the calculations in that regard and were close to resolution. On that basis, it appeared that arbitration of the current dispute was not necessary as there were no matters in relation to the current dispute requiring the Commission’s determination.
On 22 December 2021, the Applicant emailed Chambers requesting an expedited hearing of the matter, indicating that the dispute had not been resolved.
On 22 December 2021, the Commission listed the matter for a further case management conference on 6 January 2022 and directed that, by 4 January 2022, the parties email the questions requiring determination to Chambers so this could be discussed at the case management conference.
On 22 December 2021, the Respondent requested that the case management conference be listed in the week beginning Monday, 17 January 2022, and that the direction to both parties to email the question(s) to be determined to Chambers be amended so that the parties were required to comply by 4.00pm on 13 January 2022. The email also indicated that certain backpay was being processed on 5 January 2022 in the Respondent’s next pay run and that the Applicant’s rate of pay had been amended in the Respondent’s payroll system.
On 22 December 2021, the Applicant responded to the Respondent’s email inviting the Respondent to confirm whether the “settlement offer on back pay has been accepted or ignored or whether a dispute still exists over the amount of back pay owing. If Ms Grass outstanding concerns can be addressed and rectified it may be unnecessary to proceed with the scheduled Case Management conference”.
Neither party appeared at the case management conference on 6 January 2022. The matter was relisted for conference on 19 January 2022.
On 11 January 2022, the Applicant emailed the Commission and stated:
“1) At the present time I have not received a response from the Respondent in relation to my settlement offer on an agreed amount of backpay. At the present time I have only received approximately half of my calculated backpay amount and I have received no response from the Respondent on this matter.
2) I have received no response from the Respondent in relation to the underpayment of my Super Annuation contribution from JMV calculated from March 2021.
3) The JMV database has been changed and does not reflect that I am classified as an above three year ACE 4.”.
The Commission sought a response from the Respondent and, on 12 January 2022, the Respondent emailed the Commission stating, by way of summary:
On 30 December 2021, the Respondent processed a backpayment to the Applicant. A copy of a pay slip was provided. The Respondent explained that the backpayment was calculated by the Respondent having regard to the actual hours worked by the Applicant since October 2020, and compensated the Applicant for:
oher contracted hours (72 per fortnight) at the difference between the Level 3 and Level 4 rate in the Agreement the period between 1 March 2021 and 30 November 2021; and
othe difference in hours worked and contracted hours (72 per fortnight) between October 2020 and 1 March 2021 at the Level 4 rate.
There was without prejudice correspondence between the parties in respect of the final figure of the backpayment amount. The Applicant requested a higher backpayment from the Respondent, however the Applicant had not provided detailed calculations to support the amount she asserted was owed to her in backpay.
The Respondent advised the Applicant that unless detailed calculations were provided to support the higher figure sought, the Respondent was unable to respond to her request.
The Applicant’s position title has been amended in the payroll system. A payslip dated 4 January 2022 was attached which showed the Applicant’s position as “Aged Care Employee Level 4 Year 3 Thereafter”.
The Respondent stated that it remained available for the scheduled case management conference on 19 January 2022 but submitted that in light of the above, there did not appear to be any remaining questions to be determined by the Commission.
At the conference on 19 January 2022, the Applicant stated that since she had emailed the Commission with her concerns, the Respondent had, as at 18 January 2022, adjusted the calculations to alter the taxation withheld from the backpayment such that the Applicant was not disadvantaged. The Applicant also confirmed that the backpayment had been made.
The Applicant indicated that there was only one outstanding issue and that was that since Christmas the Respondent’s database and payslips did not state the Applicant’s classification level and described her as an Aged Care Employee, Carer. The Applicant sought clarification from the Respondent as to why the Applicant was now receiving her correct rate of pay but the new classification was not appearing on her pay slip. The Respondent indicated that this was a technical system error and that the Respondent would make sure a manual check would be done in relation to the Applicant’s payslip each pay period to ensure that the correct classification level was reflected in it.
Given that the Respondent has granted the relief sought, there are no further questions for the Commission to determine.
I recommend that the Respondent update its payroll system or otherwise manually adjust the Applicant’s pay slip to reflect the Applicant’s classification as an Aged Care Employee Level 4.
COMMISSIONER
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