CPSU, the Community and Public Sector Union v Commonwealth of Australia (represented by Services Australia)
[2022] FWC 3096
•22 NOVEMBER 2022
| [2022] FWC 3096 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
CPSU, the Community and Public Sector Union
v
Commonwealth of Australia (represented by Services Australia)
(C2021/3899)
| DEPUTY PRESIDENT DEAN | CANBERRA, 22 NOVEMBER 2022 |
Application to deal with a dispute – whether jurisdiction to deal with dispute - higher duties allowance – classification.
The Commonwealth of Australia, represented by Services Australia (Services Australia) implemented a three-month trial (the Trial) for Indigenous urgent payment assessments at Bunbury, Cairns and Batemans Bay Smart Centres. The Trial gave rise to a dispute between Services Australia and the Community and Public Sector Union (CPSU or Union) as to whether some 55 APS3 Services Officers who were engaged to perform work for the Trial (the Employees) should receive a temporary higher duties allowance in accordance with clause B8 of the Department of Human Services Enterprise Agreement 2017-2020 (the Agreement).
The CPSU has made an application pursuant to s.739 of the Fair Work Act 2009 for the Commission to deal with the dispute in accordance with clause A10.1 (Dispute Resolution) of the Agreement.
The Commission convened a number of conferences with the parties in an attempt to resolve the dispute. The matter was ultimately not resolved and CPSU sought to have the dispute arbitrated by the Commission.
The matter was heard over multiple days. Ms A Tandel (Industrial Officer) appeared for the Union and Ms I Sekler of the Australian Government Solicitor appeared for Services Australia. The following persons gave evidence at the hearing:
· Ms Renea McCauley, APS 4 Service Officer
· Mr Aidan Nash, CPSU Industrial Officer
· Dr Claire Petelczyc, Senior Consultant of Workplace Research Associates Pty Ltd
· Ms Amanda Hudson, Assistant Director/Program Manager of Services Australia
Services Australia also relied on evidence from Dr Julie West, Principal of Workplace Research Associates Pty Ltd, who provided a witness statement. Dr West was not required for cross examination.
Question for determination and jurisdictional objection
The question for determination is as follows:
“Whether APS3 Service Officers who participated in the Indigenous Urgent Payment trial that includes Indigenous urgent payment work, should be paid temporary higher duties allowance for the duration of the trial in accordance with clause B8 of the Agreement.”
Services Australia argued that the Commission does not have jurisdiction to determine the dispute because the dispute does not concern a matter arising under the Agreement. The CPSU said Services Australia incorrectly characterised the dispute as being about role classification arising under the Public Service Classification Rules 2000 (Cth) (Classification Rules) rather than the payment of a higher duties allowance (HDA).
For the reasons set out below, I find that the while the Commission does have jurisdiction to determine a dispute about the payment of HDA, it does not have jurisdiction to review or reclassify the classification allocated to a group of duties, which is what this matter required. To the extent the question could be answered by the Commission, the answer to the question is no in this case, because there was no change to the classification level for the Employees (ie APS3 prior to and during the Trial), and there is no ability for the Commission to review or reclassify the role.
Relevant provisions
Clause B.8.1 of the Agreement (Higher Duties Allowance) (the HDA clause) relevantly provides:
B.8.1 An employee who temporarily undertakes duties at the same higher classification for three cumulative or continuous working days or more will be paid a temporary higher duties allowance in accordance with this clause B8. Once eligibility is achieved, the employee will be back paid for the qualifying three day period.
Clause A10.1 provides that the Commission’s power to arbitrate only applies in certain circumstances, being
“… if a dispute relates to (a) a matter arising under the Agreement; or (b) the National Employment Standards ...”
Services Australia’s position
In summary, Services Australia contended that:
a. ‘Classification’ is referred to in, but does not occur under, a term of the Agreement.
b. Classifications are not set under the Agreement but are assigned by legislation. As a result, assigning a classification to a group of duties is not capable of being dealt with under the dispute resolution provisions of the Agreement.
c. Classifications are only assigned to a group of duties, being the entire group of duties performed by an APS employee at any particular time.
Services Australia argued that the HDA clause means that a higher duties allowance is paid when an employee undertakes a group of duties classified at a ‘higher classification’ than the classification of the group of duties for which they are being paid, and where this continues for three cumulative or continuous working days or more.
It also argued that while there are numerous provisions in the Agreement that refer to classifications, it is clear that this is on the basis that the classifications are already assigned to groups of duties, including the salary relevant to classifications, and they apply to an entire group of duties.
Services Australia referenced s23 of the Public Service Act 1999 (PS Act) which provides the only mechanism for making rules about Australian Public Service (APS) classifications with which Agency Heads must comply. It argued that as a matter of statutory construction, it is plain that Parliament expressly considered the role that industrial agreements would play with respect to APS classification and limited it.
The Classification Rules are made under s23(1) of the PS Act. They provide that a decision to allocate a classification to a group of duties is a decision of a delegate of the Chief Executive Officer under rule 9 of the Classification Rules. Rule 9 describes how this is to occur, which is based on the work value of the group of duties. Accordingly, it argued, a decision to allocate a classification is therefore a decision made pursuant to legislation rather than a matter arising under the Agreement.
Services Australia further noted that there are no provisions in the Agreement that provide for how groups of duties are to be evaluated, assessed and classified. Consequently, no dispute can arise under the Agreement in relation to the process by which it has complied with the PS Act and Rules, and the Commission cannot look behind that classification or alter it.
Services Australia said that the work undertaken by Employees in the Trial primarily involved receiving phone calls from Indigenous welfare recipients and answering their queries and/or updating their files. The Trial involved the Employees making Urgent Payment assessments in addition to their previous duties on the Indigenous Service Queue. Services Australia also said that prior to the commencement of the Trial, the group of duties performed by the Employees in the Indigenous Service Queue was assigned to a classification of APS 3 in accordance with APS classification procedures. Services Australia argued that the addition of Urgent Payments did not:
a. significantly alter the Employee’s duties;
b. effect a change in classification; or
c. attract the higher duties allowance under clause 8B of the Agreement.
Services Australia relied on evidence which demonstrated that the group of duties was evaluated in accordance with the work value assessment process.
Services Australia contended that in applying the assigned classification to the terms of the HDA clause, it was clear that there is no dispute and no entitlement to the Allowance because the Employees were not performing duties at a higher classification.
In terms of the assessment and evaluation of the work performed by the Employees, Services Australia submitted that, while irrelevant to the dispute, it had undertaken an internal review of the role performed by the Employees while conducting the Trial, and subsequently commissioned an external report by Workplace Research Associates (the External Report). The External Report concluded that the duties performed during the Trial fell within the APS3 level band. This submission was supported by evidence from employees of Workplace Research Associates to that effect.
Services Australia acknowledged that the question of whether the Employees in the Trial “should be paid a temporary higher duties allowance for the duration of the Trial in accordance with clause B8 of the Agreement” is a matter that does arise under the Agreement. However, it contended that the only task the Commission could perform is to apply the facts to clause B8 and the relevant fact is that the Employees performed a group of duties at the APS3 classification before the Trial and the group of duties in the Trial were also assigned the same classification (ie they were not at a higher classification).
The CPSU’s position
In terms of the Commission’s jurisdiction, the Union submitted that the Commission had jurisdiction to determine the dispute because the issue was properly characterised as a matter arising under the Agreement. Specifically, the dispute concerns whether the Indigenous payment work performed in the Trial by the Employees qualifies as the performance of higher duties for the purpose of the HDA clause. This was in part because the urgent payment work had previously been done by APS4 employees.
The Union did not agree with Services Australia that the Commission cannot look beyond the Agency’s “subjective assessment of classification even if it is contrary to the APS WLS”. It disagreed because the application of the Work Level Standards (WLS) to determine the classification of duties is not a subjective exercise, and because if the argument of Services Australia was accepted, it would give it power to undermine any and all pay scales in the Agreement. Therefore, it contended, the Commission must be able to form a view of the relevant legislation and apply the objective test provided in the WLS in the context of the dispute.
The Union contended that to answer the question whether a HDA ought to have been paid, the Commission must be able to ask whether the Agency has assigned the correct classification, and this task is incidental to the Commission’s power to settle disputes about the application of the HDA clause.
It contended that the absence of a definition of “duties” or “classification” points to the fact the HDA clause is ambiguous. As such, it is permissible to take account of surrounding circumstances to aid the interpretation of the Agreement. To this end, the CPSU submitted that forming a view about the application of both the Classification Rules and the APS WLS was necessary and incidental to the Commission’s ability to resolve the dispute about the interpretation and application of the HDA clause. In doing so, the CPSU contended, the Commission would be acting within the powers conferred on it by the Agreement and the Act. In support of this contention, it relied on the decision in Re Cram: Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29.
The Union submitted that there were a number of powers that arise under the PS Act that are dealt with in enterprise agreements. It contended that an enterprise agreement may modify the exercise of a power given under a legislative instrument.
In its closing oral submissions, the Union said that “the core of the matter concerns an objective assessment of the work value of the urgent payment duties in terms of the role that was performed by the Service Officers in the trial, and the scope and complexity of those duties.”[1]
It argued that to resolve this dispute and determine whether the Employees were eligible for a HDA, “the key issue is the application of the APS3 and APS4 classification descriptions and their delineation in respect of the duties that were performed by the APS3 Service Officers in the Trial, and the treatment of the highest function in at assessment in respect of the duties performed by APS3 Service Officers in that Trial”[2]
In this regard, the Union’s case relied heavily on the argument that the assessment of the work value, and hence the classification, was incorrect, and the duties performed by Employees in the Trial correlated with APS4.
The evidence of Ms McCauley went to the scope and complexity of the urgent payments duties, and the evidence of Mr Nash went to their own assessment of the value of the urgent payment work, both contended that the valuation conducted on behalf of Services Australia was incorrect in not classifying the work as APS4. In other words, it incorrectly scored the duties performed by the Employees and as such undervalued the work of the urgent payment duties.
The Union submitted that if the Commission did not accept that the duties performed in the Trial were commensurate with APS4 classification, then in the alternative the language of the HDA clause refers to individual duties rather than a group of duties. It contended that as the urgent payments work had been part of an APS4 role before the Trial, and accordingly as long as the Employee had undertaken the relevant duties (ie urgent payments work) for three or more cumulative days, the Employee was entitled to a HDA.
In terms of ‘duties’, the Union contended that Services Australia was conflating ‘duties’ with ‘group of duties’, ie that ‘duties’ in the HDA clause must be read as ‘group of duties’ because in Rule 9 of the Classification Rules ‘an APS classification only applies to an entire group of duties performed by an APS employee’.
It concluded its submissions with the following:
“The CPSU contends regardless of whether the clause is interpreted to mean classification based on ‘duties’ in isolation of classification based on a ‘group of duties’ the core of the matter concerns the objective assessment of the scope and complexity of Indigenous urgent payment duties. The CPSU says the Respondent’s assessment has incorrectly scored the duties performed by Trial participants and incorrectly discounted or downgraded based on frequency of performance as a proportion of overall duties when in fact the APS WLS are very clear that ‘classification should be determined accordingly to the highest function performed on a regular basis’.”[3]
Consideration
What seems clear from the extensive submissions made by the parties is that at the heart of this dispute is a disagreement as to the proper classification, following an assessment and evaluation process, of the work performed by the Employees during the Trial. The Union considers that the work should be classified as an APS4 level and hence a HDA is payable, and Services Australia considers that the inclusion of the work performed in the Trial has not changed the classification from an APS3 level.
In this respect, the Union’s case necessarily requires the Commission to undertake a role evaluation exercise and determine whether Services Australia had correctly classified the duties. For the reasons set below, this is beyond the jurisdiction of the Commission.
I agree with the submissions of Services Australia that the Commission does not have the power under the Agreement to interrogate the nature of the group of duties performed in the Trial to determine whether an entitlement to the higher duties allowance exists. I agree that this sits within the provisions of the PS Act and Classification Rules and is solely the responsibility of the Agency Head under that legislation. This view is fortified by the fact that the Agreement is silent on how duties are classified.
To the extent the CPSU seeks to have the Commission review and potentially re-classify or change the classification of the work performed by the Employees, I find that it is also impermissible in the context of exercising the powers given to it by the dispute resolution procedure of the Agreement.
I further agree with the submission made by Services Australia that the HDA clause does not require or import a discretionary power for the Commission to re-assess the classification of the Employees.
It is clear in my view, and I find, that duties are classified in groups and not by reference to discrete tasks or individual duties, as comprehended under the PS Act and the Classification Rules. I do not consider there is any ambiguity in the word ‘duties’. It has its plain and ordinary meaning – it is the plural of “duty”, where duty means “a task or action that someone is required to perform”. I do not agree with the CPSU’s contention that “duties” as used in the HDA clause has a meaning which is different to (ie narrower than) “group of duties” in the Classification Rules, the effect of which is that it would not be necessary for the employee to perform all for the duties that an employee at a higher classification performs.[4]
Following this, I also do not accept the Union’s alternative argument that as the urgent payment work had been part of an APS4 role prior to the Trial, then as long as the Employees undertook this duty for three or more cumulative days, the Employee is entitled to HDA. The HDA clause in my view is clear that the Employee needs to perform the duties of a higher classification, not a duty of a higher classification.
As this is a dispute about the classification of a role arising under the Classification Rules, which can only be determined by an Agency Head, and classification is not a matter arising under the Agreement, the Commission does not have jurisdiction to reclassify the work.
Services Australia noted that there is a process under the PS Act for the Union to challenge the classification of a role, but this is not a function the Commission can perform as it is not a matter arising under the Agreement.
I accept that the only task the Commission could perform is to apply the facts to the HDA clause. The HDA clause is premised on the Employee undertaking duties at a higher classification. Again, I consider this can only mean a group of duties which are classified at a higher classification, not individual duties. In this case, the duties were not of a higher classification, in that the assessment of the work confirmed the classification of APS3 remained unchanged with the inclusion of the urgent payment work. It follows that no HDA is payable in circumstances where the Employee is not performing duties at a higher classification.
The application is so determined.
DEPUTY PRESIDENT
Appearances:
A Tandel for CPSU, the Community and Public Sector Union.
I Sekler of Australian Government Solicitor for Commonwealth of Australia, represented by Services Australia.
Hearing details:
2022.
By video:
May 17, 25 and 26.
[1] Transcript PN1300.
[2] Transcript PN1301.
[3] CPSU Outline of Submissions, 10 February 2022 at paragraph 53.
[4] See Transcript PN1299.
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