CPSU, the Community and Public Sector Union v Department of Human Services
[2011] FWA 1133
•1 APRIL 2011
[2011] FWA 1133 |
|
DECISION |
Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)
CPSU, the Community and Public Sector Union
v
Department of Human Services
(C2010/4774)
State and Territory government administration | |
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 1 APRIL 2011 |
Alleged dispute concerning underpayment of wages.
[1] On 31 August 2010 the Community and Public Sector Union SPSF Group Victorian Branch (CPSU) made an application for Fair Work Australia to deal with a dispute in accordance with the dispute settlement procedure of the Victorian Public Service Agreement 2006-2009. The CPSU alleged that two child protection workers, Mr.Barry and Mr.Banson, were wrongly classified as Cottage Parents, and should have been classified as Child Protection Workers. They were only paid for 7.6 hours a day while working 24 hours per day 7 days per week. The CPSU sought that they be paid for the full 24 hours they were rostered for a period of years, including ordinary time rates, overtime, and allowances. The claim is for work performed since 2005 in the case of Mr.Banson, and 2004 in the case of Mr.Barry. The Department of Human Services, (‘the Department’), opposed the claim. Conciliation occurred and was unsuccessful.
[2] There was considerable debate about the appropriate transitional provisions which might apply, given that the claim relates to periods of work by Messrs.Barry and Banson under agreements which are no longer in operation except to the extent that entitlements are preserved. These are the 2001, 2004 1, and 20062 agreements, and the 2009 variation and extension of the 2006 agreement. There were also jurisdictional objections made.
[3] The application is made pursuant to an agreement which is a ‘pre-reform agreement’ made before 26 March 2006. By virtue of Item 1 of Schedule 9 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 s.170LW of the Workplace Relations Act 1996 applies.
[4] Written submissions were tendered. Messrs. Banson and Barry gave evidence on their own behalf. Elizabeth Dyer, Manager of the Placement and Family Services Program, and Dean Shannon, senior policy officer in the workforce relations unit of the Department, gave evidence for the Department. Ms.Roose, Assistant Child Protection Manager, also gave evidence. I have had regard to all the submissions and evidence.
[5] The employees in question performed work of a difficult nature, and of great importance to the children and families involved, and by all accounts performed it well.
Agreement Provisions
[6] The ‘cottage parent’ classification was contained in Appendix 7 of the Victorian Public Service Agreement 2006, and similar provisions were present in the earlier agreements. The provisions were removed with the 2009 variations. The 2006 agreement provided:
‘5. COTTAGE PARENT PROVISIONS
5.1 The rate of pay specified for this work is deemed to include compensation for all ordinary hours, overtime, and work performed on Saturdays, Sundays and Public Holidays over any five 24 hour periods in each week of work.
5.2 The Employer must pay the officer or Employee an allowance of one fifth of the weekly rate of pay for each sixth and seventh 24-hour period worked in each week calculated in accordance with the following formula:
Annual Salary x 14
365.25 10
5.3 The Employee must pay $989 per annum for meals and $340 per annum for accommodation.’
[7] Clause 33.3 of the 2006 Agreement 3 provided:
‘33.3 Agency-specific hours of work arrangements
The ordinary hours of work for Employees engaged as:
33.3.1 Cottage Parents in the Department of Human Services, are specified at clause 5 of Appendix 7;’
[8] Clause 35 Overtime provided:
‘35.14.3
Cottage Parents in the Department of Human Services, are specified at clause 5 of Appendix 7;’
[9] The specific wage rate for the Cottage Parent classification is agreed by the CPSU and Department 4 to be the wage rate for the classification Child Protection Worker Grade 25, paid at the highest increment of six increments regardless of service. This is the highest classification for child protection workers other than supervisory staff, who are Child Protection Workers Grade 3. This is said to recognise the high value of the work6. However, the CPSU seeks that the hourly rate be paid for all hours rostered, which were 24 hours a day, and not for only 7.6 hours a day. It submits that this must be done because the Cottage Parents clause which replaces payment for the 24 hours, does not apply, or that the Cottage Parents clause does not replace such payments.
Authorities
[10] In Amcor v Construction Forestry Mining and Energy Union 7 Kirby J said:
“96. The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to Cl55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpreting industrial instruments and especially certified agreements in that way accords with the proper way, adopted by this court of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:
‘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 framers(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 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.’ ” [footnotes omitted]
Consideration of the Submissions
[11] Putting aside jurisdictional arguments about the saving of entitlements under earlier agreements and versions of the agreement, a dispute about the application of the Cottage Parent provisions of the agreement is a dispute about the application of the agreement within s.170LW of the Workplace Relations Act 1996, and the steps required in the dispute settlement clause (clause 10) appear to have been complied with. There are no Cottage Parent provisions in the current agreement although there are provisions which preserve entitlements, and the employer arguments were not strong. However, given my conclusions it is not necessary to deal with this issue further. I might add that the parties would be well advised to clarify savings and transitional provisions in future agreements to prevent this sort of unnecessary jurisdictional dispute arising again. The question ‘are existing employee entitlements under previous agreements preserved and accessible through the dispute settlement procedure in the current agreement’ is a fundamental question which the parties should expressly address. If they wish to use the transitional provisions for the federal Act as a sort of model, I can only say that I agree with and adopt the observations of Perram J in Deva v. University of Western Sydney 8. He went out of his way to comment that various transitional schedules ‘lurch into view’, that a ‘less tortuous’ expression might be possible, that only ‘a naive person’ would think that a phrase was defined in the Dictionary in item 2 of Schedule 2, that the issues involved are ‘rather stupefying’, and so on.
[12] The CPSU submitted that evidence that Messrs. Barry and Banson were not Cottage Parents included the near complete absence of documentation referring to Cottage Parents, the payment of overtime to Mr.Barry and Mr.Banson, the non-payment by them of the rent and meals referred to in the relevant provisions, and most importantly the key difference which is that Mr.Barry and Mr.Banson were not in a family situation that is the defining aspect of a Cottage Parent. It does not dispute that the Department treated them as Cottage Parents 9.
[13] However, a letter of offer and confirmation to Mr.Barry dated 8 January 2008 and 5 February 2008 does refer to the position as a 24 hour carer Residential Care Worker, ‘working as a cottage parent’ 10. Elsewhere the term used is simply the relevant classification together with some form of description of duties, or the term residential care worker or similar term11. Some of these documents precede the employment of Messrs.Barry and Banson. There is in fact a degree of imprecision in the terminology used, but that does not necessarily mean that the content of the job is overall not fairly similar in each case.
[14] Messrs.Barry and Banson stayed overnight for 24 hours 7 days a week at a time at a residential facility which had a number of children, and looked after them overnight. It is true that they did not apparently pay the rent and meals referred to in the Cottage Parent provisions, but the explanation provided by Ms.Dyer was that this was an over-agreement payment designed to maximise the remuneration package, ie. to make it more attractive to the employees 12. This is a reasonable explanation on the material before me. It is true that overtime was sometimes paid, while the rate for a cottage parent is expressed as an all-in rate. The explanation given by Ms.Dyer was that overtime was paid in exceptional circumstances, for example relating to a particular client in the house or a particular issue that was occurring in the house13. Again, that seems to be a reasonable explanation on the material before me. The payslips of Messrs.Barry and Banson sometimes also included the specific Cottage Parent Allowance provided for in the Cottage Parent provisions (eg. payslips dated 2008 and 200514). There is not enough to distinguish the work of Messrs Barry and Banson from the type of work performed by a cottage parent as described in evidence by Ms.Roose, although some change in duties or conditions may have occurred from time to time regarding issues such as children with disabilities and partners and families of workers living with them.
[15] I am also conscious of the fact that if they are not Cottage Parents their ordinary wages would be well beyond that set for the highest level of Child Protection Workers, which is Grade 6 in the 2006 agreement. The ordinary wages for what was inherently a 24 hour roster for each day would be possibly higher than that set in the agreements for any employee covered by those agreements. It would be at that level although there is specific reference in the agreement, in the Cottage Parent clause, to work of the 24 hour nature mentioned in the various contracts, and to payments to compensate for that 24 hour nature. This would be a strange and unlikely result.
[16] Clause 5.1 of Schedule 7 is best interpreted as providing that the relevant wage rate in the agreement for a 38 hour week would cover the 24 hour rostered work of a Cottage Parent, and that the employer would not be required to pay the relevant hourly rate for each of the 24 hours rostered. This arrangement is compensated for by the special allowance that is payable by reason of clauses 5.2.
Conclusion
[17] On the evidence before me I am satisfied that Messrs.Barry and Banson worked as Cottage Parents within the successive public sector agreements. The provision in clause 5.1 of Appendix 7 and equivalent provisions in earlier agreements applies. I therefore dismiss the application. Given my conclusions it is not necessary that I deal with other matters raised in submissions.
DEPUTY PRESIDENT
Appearances:
Mr G Beckman of the Community and Public Sector Union, the applicant
Mr J Tracey of counsel for the respondent with Mr Jerome Cooney from the Department of Human Services
Hearing details:
2011
Melbourne
21 February
Final written submissions:
23 February 2011
25 February 2011
1 AG834607
2 AG847284 PR969748
3 Clause 35.3 of the 2004 Agreement
4 CPSU Written Submission, Exhibit CPSU 1, paragraph 3
5 Eg. 2006 Agreement, Schedule D, Table 1, p.68
6 Exhibit DHS2, witness statement of Elizabeth Dyer, paragraph 18
7 (2005) 22 CLR 241
8 [2011] FCA 199
9 Exhibit CPSU 5, paragraphs 1-5
10 Exhibit DHS2, witness statement of Elizabeth Dyer, attachment 6,
11 Exhibit DHS2, witness statement of Elizabeth Dyer, attachment 1-5, dated 2005, 2008, May 1999, May 2000, 2003, and so on.
12 PN683
13 PN738
14 Exhibit CPSU4, witness statement of Peter Banson, attachment PB2
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<Price code C, AG847284 PR506944>
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