CRISTINA ZAS v Qep Australia Pty Ltd

[2019] FCCA 952

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRISTINA ZAS v QEP AUSTRALIA PTY LTD [2019] FCCA 952

Catchwords:
INDUSTRIAL LAW – Small claims – applicant claims underpayment of wages and superannuation entitlements under Clerks – Private Sector Award 2010 – consideration of classification structure under Award.

Legislation:

Fair Work Act 2009, s.548.

Fair Work Regulations 2009, reg.4.01.
Clerks – Private Sector Award 2010, cls.15, 24, sch.B.

Applicant: CRISTINA ZAS

Respondent: QEP AUSTRALIA PTY LTD

File Number: MLG 3158 of 2018

Judgment of: Judge Mercuri

Hearing date: 25 February 2019

Date of Last Submission: 25 February 2019

Delivered at: Melbourne

Delivered on: 25 February 2019

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the respondent: In person

Solicitors for the respondent: Wisewould Mahony Solicitors

DECLARATION

1. The respondent contravened section 45 of the Fair Work Act 2009 (Cth) and clauses 15, 16 and 24 of the Clerks – Private Sector Award 2010 (“the Award”) in failing to pay the applicant the appropriate rate of pay and superannuation entitlement as a level 2 employee per the Award.

ORDERS

1. Within twenty-one (21) days, the respondent pay to the applicant the following:

   (a)the sum of $6,596.90 in respect of underpaid wages (“underpayment”); and

   (b)the unpaid superannuation in respect of the underpayment such amount to be paid into the applicant’s nominated superannuation account.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3158 of 2018

CRISTINA ZAS

Applicant

And

QEP AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

Introduction

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for underpayment of wages and unpaid superannuation entitlements.  The facts are not significantly in dispute.  The applicant brought these proceedings in the court’s small claims jurisdiction, and in essence claims that she has been incorrectly classified as a Level 1 employee rather than a Level 2 employee under the Clerks – Private Sector Award 2010 (“the Award”).

Background

1. The background to this matter is briefly as follows.  The applicant was initially employed by the respondent as a full time employee from about 2014 for some two years.  She then resigned and then sometime later returned as a casual.  For the first 10 months or so, she worked on a full time basis, although as a casual, and then returned to university.  At that time, the respondent agreed to retain her services and continue to employ her working around her university commitments.  The applicant has given evidence, which is not challenged, that she works flexible hours around her university studies, and that there are periods during the year when she is required to undertake a placement associated with those studies where she is unavailable completely for a period of between one week and seven weeks at any one time.

2. The respondent has been very accommodating about these arrangements.  That is not in dispute.  It is also not in dispute that in 2018 the applicant became aware that she had been paid under the incorrect award.  The respondent conceded that she should have been paid under the Award but said that the proper classification for her duties was a Level 1 employee.  The applicant claims that the duties she performs, together with her experience and level of responsibility within the company means that she ought to properly have been classified as a Level 2 employee.

3. The applicant gave evidence, as did Mrs Maclaren, on behalf of the respondent.  Mrs Maclaren is the person responsible for the administrative services department within the respondent and has overall responsibility for the customer services team in which the applicant works, among others.

4. In her application, the applicant set out the duties that she says she performs in her day-to-day role.  Mrs Maclaren accepted that these were the duties which the applicant performed.  The relevant duties associated with a Level 2 employee were also put to Mrs Maclaren, and she conceded that the applicant undertook most of those duties.  It seems that the main basis upon which the respondent denies that the applicant is entitled to be paid as a Level 2 employee is that she is not available to perform the full range of her duties on a full time basis because there are periods during which she is unavailable due to her university studies. Mrs Maclaren stated that the employer has sought to accommodate the applicant’s university studies and work around those availability constraints.

The Award

1. I will turn to the Award itself.  Clause 15 of the award relevantly deals with classifications and states that:

   All employees covered by this award must be classified according to the structure set out in schedule B and paid the minimum wage in accordance with clause 16.

2. Clause 15.2 then goes on to say that:

   The classification by the employer must be according to the skill level or levels required to be exercised by the employee in order to carry out the principal functions of the employment as determined by the employer. 

3. Turning then to Schedule B of the award, it relevantly contains the following introductory comments.  It says:

   The classification criteria in this schedule provides guidelines to determine the appropriate classification level of persons employed pursuant to this award.  In determining the appropriate level, consideration must be given to both the characteristics and typical duties/skills.

4. The parties will be aware that each of the levels are divided into two sections; one section setting out the characteristics of the role at that level, and then another section setting out a list of typical duties or skills.  The totality of the characteristics must be read as a whole to obtain a clear understanding of the essential features of any particular level and the competency required. 

5. Importantly, the introductory comments at the beginning of Schedule B also go on to say:

   The typical duties/skills are a non-exhaustive list of duties or skills that may be comprehended within the particular level.  They are an indicative guide only and at any particular level employees may be expected to undertake duties of any level lower than their own.

6. The comments go on to say that:

   The key issue to be looked at in properly classifying an employee is the level of competency and skill that the employee is required to exercise in the work they perform, not the duties they perform, per se.

7. The characteristics associated with Level 1 are as follows:

   Employees at this level may include the initial recruit who may have limited relevant experience.  Initially work is performed under close direction using established practices, procedures and instructions.

8. The characteristics associated with a Level 2 employee are as follows:

   This level caters for employees who have had sufficient experience and/or training to enable them to carry out their assigned duties under general direction.  Employees at this level are responsible and accountable for their own work which is performed within established guidelines and in some situations detailed instructions may be necessary.

9. Evidence was given by both the applicant and not contested by the respondent that her duties on a day-to-day basis were allocated to her by her supervisor.  However, it was not suggested that she was subject to any direct direction by her supervisor about the manner in which she went about those tasks. In fact, given her experience and length of service with the respondent, it was clear that the applicant brought a level of experience and competence to the role that enabled her to perform those duties under general direction.

10. Having heard from the applicant, I am satisfied that given her experience with the respondent and the duties which the respondent concedes she performs that the appropriate classification is that of a Level 2 employee and not Level 1.  Whilst it is conceded that the actual duties which she performs on any particular day are allocated, that does not amount to performing work “under close direction” as would be required for a Level 1 employee.  Rather, I am satisfied on the basis of the evidence before me that the applicant “had sufficient experience to enable her to carry out her assigned duties under general direction”.

11. There is nothing in the classification structure of the Award which limits a person’s classification on account of their availability to work.  There was no obligation on the respondent to provide the flexibility that it did for the applicant and it ought to be commended for doing so.  However, that does not provide it with any proper legal basis, in my view, on which to avoid paying the applicant at the correct classification level as required by the Award.

12. The respondent has not taken any issue with the applicant’s calculations in relation to the amount to be paid if she ought to be properly classified as a Level 2 employee.

13. The applicant has also sought an order for the payment of superannuation in respect to the underpayment of wages. 

14. Clause 24 of the Award deals with the employer’s obligations to make superannuation payments into the employee’s nominated fund, and therefore the court does have jurisdiction in respect of that matter, in my view, in its small claims jurisdiction.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:     25 February 2019