Dr Curtis Poyton v Personal Tutors Pty Ltd T/A Grace Simpkins Personal Tutors

[2017] FWC 4485

[2017] FWC 4485

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Dr Curtis Poyton
v
Personal Tutors Pty Ltd T/A Grace Simpkins Personal Tutors
(C2017/4095)

COMMISSIONER SIMPSON BRISBANE, 29 AUGUST 2017

Alleged dispute about any matters arising under the modern award and the NES; [s146] – Proper classification level for Private Tutor employed in Respondent Business

[1] On 24 July 2017 Dr Curtis Poyton filed an application for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a dispute settlement procedure found at clause 9 of the Miscellaneous Award 2010 (the Award). The Respondent to the application was named as Personal Tutors Pty Ltd T/A Grace Simpkins Personal Tutors (Personal Tutors).

[2] On 22 August 2017 a Conference was held between the parties where Dr Poyton requested that the Commission provide a recommendation to the parties concerning the matter in relation to his employment classification. Personal Tutors agreed to this approach. I am content to proceed to provide a recommendation on the basis it is non-binding and is only to provide assistance to the parties in order to attempt to resolve the dispute.

Employment Classification

[3] Dr Poyton submitted that on 16 June 2016 he made an enquiry with Personal Tutors in relation to his employment classification under the Award. On or about 19 June 2016, Personal Tutors informed Dr Poyton that he was classified as being employed under Level 2 of the Award schedule B.

[4] Dr Poyton submitted that on 20 June 2016, he made an enquiry with the Fair Work Ombudsman (the Ombudsman) as to the classification of his employment under schedule B. Dr Poyton submitted that on 21 June 2016 the Ombudsman advised him that the correct classification was Level 4.

[5] Dr Poyton submitted that on 21 June 2016 he submitted the correspondence from the Ombudsman to Personal Tutors. On 27June 2016, Dr Poyton sent a letter to Personal Tutors which set out that Personal Tutors had:

a. incorrectly classified the applicant as being employed by the respondent under Level 2 of the Miscellaneous Award 2010 sch B;

b. failed to correctly classify the applicant as being employed by the respondent under Level 4 of the Miscellaneous Award 2010 sch B;

c. failed to pay to applicant that payable to the applicant pursuant to law; contravened:

i. the Miscellaneous Award 2010 cls 13–14, 22 and thereby did contravene the Fair Work Act 2009 (Cth) s 45; and

ii. the Superannuation Guarantee (Administration) Act 1992 (Cth); and caused and continues to cause to the applicant loss and damage.

[6] Dr Poyton submitted that on 15 July 2016, the respondent transmitted to the applicant an email in which the respondent, without limitation:

a. rejected the claims of the applicant set forth within “the 27 June 2016 letter”;

b. refused to accept the offer set forth within “the 27 June 2016 letter”; and

c. refused to classify the employ of the applicant by the respondent as being under Level 4 of the Miscellaneous Award 2010 sch B.

The Miscellaneous Award 2010

[7] Schedule B of the Award provides the following:

“Level 1

An employee at this level has been employed for a period of less than three months and is not carrying out the duties of a level 3 or level 4 employee.

Level 2

An employee at this level has been employed for more than three months and is not carrying out the duties of a level 3 or level 4 employee.

Level 3

An employee at this level has a trade qualification or equivalent and is carrying out duties requiring such qualifications.

Level 4

An employee at this level has advanced trade qualifications and is carrying out duties requiring such qualifications or is a sub-professional employee.”

[8] The parties accepted that the clause in sch B defining a Level 4 classification should be read disjunctively in that a “sub professional employee” is a separate category to employees with “advanced trade qualifications”. Dr Poyton accepted that the minimum requirement to perform his role as tutor was completion of year 12 and therefore relied on the fact he should be regarded as a “sub-professional employee” to be classified as a Level 4 under the Award.

Sub-professional employee

Dr Poyton’s Submissions

[9] Dr Poyton relied on the case of Jarnet v Esri-Australia Pty Ltd[2016] FWC 2923 (Jarnet) where Gostencnik DP explored the meaning of the phrase “sub-professional employee”. In that case, the Deputy President referred to the Australian and New Zealand Standard Classification of Occupations (ANZSCO), jointly produced by the Australian Bureau of Statistics and Statistics New Zealand.

[10] In Jarnet, the Applicant’s occupation was found to be a combined sales and business development role within the ICT sector. 1 The DP referred to the ANZSCO, which classified the occupations of ICT Business Development Manager and ICT Sales Representative as professional occupations. The DP found that in the absence of any other persuasive indication as to the correct classification of the Applicant’s occupation, he adopted the ANZSCO occupational classification descriptor.2

[11] Dr Poyton submitted that given the absence of other sources, it would be appropriate in this case to follow the decision of Jarnet, and rely on the ANZSCO classification to determine the correct classification of his role under sch B of the Award.

[12] Dr Poyton submitted that the closest classification for a “sub-professional” under the ANZSCO classification scheme, is a low skill level professional.

[13] Dr Poyton submitted that according to the ANZSCO, the occupation of a Maths Tutor (Private Tuition) is classified as a sub-category of a “professional” occupation. Dr Poyton submitted that the ANZSCO also classifies teachers within a sub-category of professional occupations.

[14] Dr Poyton submitted that his role of an employed tutor was that of a low skill professional, as he was:

a. subject to direction by the respondent as to how the tutoring sessions were to be conducted;

b. had fewer responsibilities compared to a teacher in the employ of a school;

c. was not required to have as great a knowledge or understanding of content;

d. compared to a teacher in the employ of a school;

e. enjoyed less autonomy compared to a teacher in the employ of a school; and

f. received less remuneration compared to a teacher in the employ of a school.

[15] Dr Poyton submitted that the ANZSCO classifies a teacher to be a Skill Level 1 professional, and as a result of the reasons provided in [14] classifies a tutor as a ‘sub-teacher’ and therefore it follows that a Maths Tutor (Private Tuition) is a “sub-professional” for the purpose of sch B of the Award.

Personal Tutors’ Submissions

[16] Personal Tutors submitted that the correct classification for Dr Poyton’s role was as a Level 2. Personal Tutors submitted that though desirable, Dr Poyton’s qualifications are not required to perform Dr Poyton’s role as a tutor. Personal Tutors submitted that the only requirement to perform the role as tutor is to have completed year 12 at high school. It submitted that in fact the majority of its tutors are undergraduate students without any tertiary qualifications who perform exactly the same duties.

[17] Personal Tutors provided in its response, information from the Fair Work Ombudsman stating that as Dr Poyton’s qualifications were not a requirement of the role, he did not need to be paid at a level higher than Level 2.

Consideration

[18] In my view, the facts of this case can be distinguished from those in Jarnet. In that case, the Deputy President relied solely on the ANZSCO classification as there was no persuasive indicator other than that classification to suggest otherwise. In this case, the fact that the only requirement needed to be a tutor at Personal Tutors is the completion of year 12 is a persuasive indicator to suggest that the role of a tutor within this organisation is not “sub-professional”.

[19] There has been no dispute regarding Personal Tutor’s minimum prerequisite for the role of tutor within its organisation. On the facts of this case, given that the particular role in this organisation contemplates that an employee who has finished year 12 in November of a given year, can commence performing the role of tutor in the December of the same year, it is not likely that that role could be regarded as a sub professional role.

[20] This recommendation should not be interpreted as expressing a view that Private Tutors generally are properly classified at Level 2 of the Award. It is quite easy to contemplate a set of circumstances, depending on the minimum requirement of a particular Tutoring role, where a Tutor would properly be classified at Level 4. This recommendation pertains only to the specific set of facts as they exist for this Applicant and Respondent in this case.

[21] It is my recommendation that the correct classification of Dr Poyton’s role as tutor at Personal Tutors would not fall within the definition of “sub-professional.” I would therefore consider the correct classification of Dr Poyton’s role under sch B of the Award as a Level 2.

COMMISSIONER

 1   Jarnet v Esri-Australia Pty Ltd[2016] FWC 2923 at [13].

 2   Jarnet v Esri-Australia Pty Ltd[2016] FWC 2923 at [38].

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