Finberg v Efron
[2015] FCCA 2470
•11 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FINBERG v EFRON | [2015] FCCA 2470 |
| Catchwords: INDUSTRIAL LAW – Whether respondent contravened the Fair Work Act 2009 (“Act”) by failing to pay his entitlements under the Legal Services Award 2010 – what classification applied to the applicant’s employment – application by respondent for costs in relation to applicant’s application in a case – declarations as to contraventions of the Award and Act made – costs ordered pursuant to s.570(2)(b) of the Act. |
| Legislation: Fair Work Act 2009, ss.570(2)(b), 45, 90, 563(1), 535, 90(2), 536, 570(2)(a) Federal Circuit Court Act 1999, s.17A |
| City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 Kucks v CSR Ltd (1996) 66 IR 182 |
| Applicant: | SAUL FINBERG |
| Respondent: | GRAEME EFRON |
| File Number: | MLG 913 of 2014 |
| Judgment of: | Judge Jones |
| Hearing dates: | 18 December 2014 & 6 July 2015 |
| Date of Last Submission: | 3 August 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 11 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Slonim |
| Solicitors for the Applicant: | KWS Legal |
| Counsel for the Respondent: | Mr Hooper |
| Solicitors for the Respondent: | Efron & Associates |
THE COURT DECLARES THAT
The applicant was employed as a Level 4 - Legal, Clerical and Administrative employee, Schedule B to the Legal Services Award 2010 (“the Award”).
The respondent contravened s.45 of the Fair Work Act 2009 (“the Act”) by failing to
(a)pay the applicant his wages pursuant to clause 14 of the Award;
(b)make superannuation contributions in accordance with the clause 23 of the Award;
(c)pay the applicant annual leave loading on his accrued annual leave in accordance with clause 35.3 of the Award.
The respondent contravened s.90 of the Act by failing to pay the applicant his entitlement to accrued annual leave on termination of his employment.
The respondent contravened s.536(1) of the Act by failing to provide the applicant with payslips in accordance with that section within the prescribed period.
The respondent contravened s.535 of the Act by failing to make, keep and maintain employee records in relation to the applicant during his period of employment with the respondent.
THE COURT ORDERS
The parties shall consult and prepare orders to reflect my decision and the declarations made herein.
The applicant pay the respondent costs in the amount of $1,706.00.
The matter is adjourned to 7 December 2015 to finalise the orders of the Court. Where the parties reach orders by consent, they shall be dealt with in chambers and the scheduled Court date vacated.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 913 of 2014
| SAUL FINBERG |
Applicant
And
| GRAEME EFRON |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision is in relation to an application filed by Saul Finberg (“the applicant”) on 15 May 2014, alleging contravention of the Fair Work Act 2009 (“the Act”) and the Fair Work Regulations 2009 (“the Regulations).
The applicant alleges that Graeme Efron (“the respondent”), who is the Prinicpal of Efron & Associates, contravened s.45 of the Act because the respondent failed to pay him wages and his superannuation contributions in accordance with the Legal Services Award 2010 (“the Award”). The applicant also claims that the respondent failed to pay him his annual leave loading in accordance with clause 35.2 of the Award and his pro-rata accrued annual leave in accordance with s.90(2) of the Act. The applicant further claims that the respondent contravened the Act in that it failed to make, keep and maintain employee records in accordance with s.535 of the Act and to provide the applicant with his pay slip within the prescribed period under s.536 of the Act.[1] The applicant claims by way of relief, underpayments of wages, superannuation payments, interest on the outstanding payments and pecuniary penalties.
[1] The applicant also claimed contravention of the General Protection provisions, Part 3-1 of the Act, however, advised at the commencement of proceedings that they no longer pressed this claim.
At the commencement of proceedings, the respondent denied that the applicant was employed by him, arguing that he was at all times on a work experience placement and consequently, there was no breach of the Award or contravention of the Act.
On 20 June 2014 the applicant filed an Application in a Case seeking that judgment be entered for the applicant against the respondent in the amount of $28,882.83 together with interest and pecuniary penalties, pursuant to s.17A of the Federal Circuit Court Act 1999 and rule 13.07 of the Federal Circuit Court Rules 2001.
On 26 August 2014, an order was made dismissing the applicant’s Application in a Case. The respondent sought costs incurred arising out of the hearings of the application in a case. I reserved my judgment on the respondent’s application for costs until the final determination of this matter.
The matter was listed for final hearing on 18 December 2014 and, as the matter was not concluded within the allocated time, the hearing was adjourned part-heard. At the resumed date, the respondent advised that it now accepted that the applicant was employed by the respondent and that the relevant Modern Award covering the applicant’s employment with the respondent was the Legal Services Award 2010. This being the case, the substantive issue in dispute was therefore, under which classification specified in schedule B to the Award was the applicant employed.
This decision is in relation to two matters; firstly, the applicant’s substantive case alleging contravention of the Award, Act and Regulations and secondly, the respondent’s application for costs in relation to the applicant’s unsuccessful application for summary judgment.
Contravention of the Award, Act and Regulations
There are three issues to be determined. First, what classification specified in schedule B to the Award applied to the applicant during his period of employment with the respondent.
The second issue is whether the respondent contravened the Act by failing to maintain employee records in accordance with s.535 of the Act by failing to make, keep and maintain employee records in relation to the applicant during his period of employment with the respondent.
The third issue for determination is whether the respondent contravened the Act by failing to maintain employee records in accordance with s.536(1) of the Act by failing to provide the applicant with payslips in accordance with that section within the prescribed period.
Classification Structure
The evidence
The applicant relied on his affidavits filed 15 May 2014, 20 June 2014 and 15 October 2014. The applicant was cross- examined.
The respondent relied on affidavits filed by Graeme David Efron on 29 May 2014, 17 July 2014 and 28 November 2014.
Both the applicant and respondent gave their evidence generally in a straightforward and a credible manner.
The respondent was at all material times an Australian Legal Practitioner carrying on practice under the name of and sole principal of Efron and Associates. The applicant was employed by the respondent from 5 March 2013 until 7 February 2014. On the documentary evidence before me, the applicant was paid $9.6154 an hour until in around June 2013 when he was paid $10.125 an hour.
The applicant approached the respondent with a view to gaining an opportunity to gain experience in a law firm.[2] The respondent states that he was prepared to provide this experience to the applicant. Although not expressly said, it is apparent that neither the applicant nor the respondent expected that the applicant’s employment would be ongoing. I am satisfied that the intention of both parties was that the employment with Efron and Associates would provide the applicant with useful experience in a law firm whilst he completed his Law Degree. At the time the applicant commenced his employment with the respondent he was enrolled in his final years of study for a Bachelor of Laws and Bachelor of Arts.
[2] Affidavit of Saul Finberg filed 14 May 2014 at [2].
There is no dispute that the applicant was given a range of administrative tasks and tasks which required legal knowledge and the application of legal skills. The dispute between the parties is around the extent of the legal tasks performed by the applicant and the complexity and level of skills exercised by the applicant in undertaking the administrative and legal tasks.
The applicant alleges that his general duties whilst employed by the respondent were:[3]
[3] affidavit of Saul Finberg filed 13 October 2014 at [8] to [16]
a)legal research – he deposes that he undertook research and prepared memoranda for the respondent and one of the senior solicitors on various topics including:
i)construction law, building licence, writes of builder, occupancy permits and relevant legislation;
ii)the requirement for conduct money;
iii)family violence issues;
iv)intellectual property;
v)a licensee’s rights under the Retail Tenancies Act;
vi)discrimination law;
vii)the process for appointments and replacement of directors.
b)Administrative tasks such as opening and closing files using the respondent’s system, receptionist, filing, archiving, filing documents at Court, banking, lodging documents at the State Revenue Office and Land Registry;
c)drafting memorandum and preparing briefs for Counsel;
d)preparation of Court books;
e)drafting Court documents;
f)attending to clients files on a day-to-day basis;
g)attending Court hearings;
h)attending a property settlement unsupervised;
i)inspected files at the Supreme Court and once, undiscovered document at a law firm;
j)typing in preparing transcriptions of audio recordings of Court hearings;
k)assisting Counsel during a trial in Adelaide involving a discrimination in employment dispute; and
l)drafting correspondence to clients for signature by the respondent;
The respondent concedes that the applicant engaged in legal research of a limited nature and prepared memorandum, also of a limited nature. Mr Efron said that the applicant’s drafts were required to be settled by others. There was limited evidence on the extent of the legal research engaged in. Mr Efron gave evidence that he had asked his staff to look for significant work the applicant had undertaken but had not undertaken a search of the firms files to ascertain how much research was undertaken by the applicant. The respondent agreed the applicant attended one property settlement unsupervised, that the applicant opened files and answered phones. Mr Efron stated that he was not necessarily familiar with all the work done by the applicant.
There is no dispute that in relation to duties involving legal matters the applicant was generally under the direct supervision of a senior solicitor employed by the respondent, as well as the respondent. In relation to administrative tasks, he worked under the general supervision of administrative employees. The applicant agreed that the legal documents he drafted were settled by senior solicitors in the firm. Likewise, correspondence was also settled by both senior solicitors and administrative staff. The applicant agreed that the legal work he undertook: such as a memorandum on discrimination law, was basic legal work.
There is no dispute that the applicant did not supervise staff whilst employed by Efron & Associates.
Mr Efron, in cross-examination agreed that when the applicant travelled to Adelaide to assist Counsel in a trial, he instructed the applicant to describe himself as a law clerk, and charge the client for the hours spent by the applicant on the case. The applicant agreed that his assistance to Counsel in the Adelaide trial was limited.
Having heard the evidence, I have formed the view that whilst the applicant may well have prepared memoranda reflecting legal research and briefs for Counsel, this occurred on limited occasions, was under the supervision of a senior solicitor and involved the exercise of basic legal skills. This is unsurprising given that the applicant had yet to complete a law degree. I have also formed a view that duties such as attending settlements unsupervised and assisting Counsel in trials were one-off incidents and again involved the applicant exercising only limited legal skills. The applicant himself was prepared to concede that the legal work he engaged in was limited and of a basic nature. His evidence stands in contrast to the description of his duties contained in his affidavits and certainly in the submissions made on his behalf.
I have also formed a view that Mr Efron has been at pains to convey to the Court a view that the applicant’s work was less than standard. It seems to me that, given the applicant was still to complete a law degree, the work that he engaged in could not have been expected to be a quality commensurate with that of solicitor or indeed graduate.
I am satisfied that the applicant, whilst employed with the respondent, engaged in a range of legal work. This included attending to the files of clients, drafting Court documents, inspecting files, preparing Court books, attending Court hearings and typing transcripts from audio files. I am also satisfied that the applicant did engage in legal research, draft memoranda, did attend one property settlement unsupervised and was required to assist Counsel in a trial in Adelaide. I am satisfied that the bulk of his legal duties required the exercise of basic legal skills and that at all times he was under the supervision of senior solicitors at the firm. On the evidence, the supervision was at times direct and very occasionally the applicant was unsupervised. I am also satisfied that the applicant undertook various administrative duties under the general supervision of administrative staff at the firm.
The applicant submits that the proper classification during the period of his employment was Level 5 - Legal, Clerical and Administrative employee, Schedule B to the award.
The respondent submits that the proper classification during the period of the applicant’s employment was either Level 2 - Legal, Clerical or Administrative employee or Level 3 - Legal, Clerical and Administrative employee, Schedule B to the Award.
Applicable principles
An extract being copy of Levels 1 to 5 of Schedule B to the Award is set out in Appendix 1 to this judgment.
It is appropriate to first identify the settled principles applicable in interpreting Awards. These principles were summarised by Justice French (as he then was) in the Federal Court of Australia in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 where his Honour said at [53]:
“The construction of an Award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘... the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).”
His Honour then said at [57]:
“It is of course necessary, in the construction of an Award, to remember, as a contextual consideration, that it is an Award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial Awards are concerned - see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-4 (Street J). It may be that this means no more than that Courts and tribunals will not make too much of infelicitous expression in the drafting of an Award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”
In Kucks v CSR Ltd (1996) 66 IR 182, Madgwick J stated at 184:
“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 framer(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.
But the task remains one of interpreting a document produced by another or others. A Court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the Award. Deciding what an existing Award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an Award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”
In accordance with these principles, the context in which the description of classifications covered by the Award is as follows.
Firstly, the coverage of the Award is relevantly described in clause 4- Coverage as:
4. Coverage
4.1 This industry award covers employers throughout Australia in the legal services industry and their employees in the classifications listed in clause 14—Minimum wages to the exclusion of any other modern award. The award does not cover employers in the following industries:
(a) community legal centres;
(b) aboriginal legal services; or
(c) an employer whose primary activity is not within the legal services industry.
Clause 13 provides:
13. Classifications
13.1 Employees covered by this award must be classified according to the structure set out in Schedule B—Classifications and paid the minimum wage in clause 14—Minimum wages. Employers must advise their employees in writing of their classification and of any changes to their classification.
13.2 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.
Clause 14 – Minimum wages of the Award sets out weekly rates of pay for six Levels under the heading Classification. These Levels are:
Level 1—Legal clerical and administrative employee Level 2—Legal clerical and administrative employee Level 3—Legal clerical and administrative employee Level 4—Legal clerical and administrative employee Level 5—Legal clerical and administrative employee Level 5—Law graduate Level 6—Law clerk
Clause 3 – Definitions and Interpretation of the Award, at 3.1 contains the following relevant definitions:
law clerk means a clerk who is engaged for the major part of their time in interviewing clients, preparing documents and general work assisting a barrister or solicitor in their practice, but will not include account clerks, law graduates, titles office clerks, receptionists and employees principally engaged in word processing, computer use, filing, machine operation, switchboard, delivery of documents or duties of a routine nature
law graduate means a lawyer not admitted to practice but who is undertaking a period of training within a law firm with the view to being admitted to practice
legal clerical and administrative employee means an employee in the clerical and administrative stream
legal services industry means employers engaged in the business of providing legal and legal support services
In context, it can be said that the classification structure of the Award contemplates, on the one hand, a clerical and administrative stream for employees employed by employers. In this stream progression is provided from Level 1 to Level 5. The structure also caters for Law graduates who are undertaking, what has hitherto been known as clerkship, but described in this Award as training for the purpose of admission into practice. The Law Graduate is classified as Level 5 but receives a higher rate of pay than Level 5 - Legal, Clerical and Administrative employee. The highest rate of pay under the Award paid to a classification is Level 6 – Law Clerk.
Each of the clerical and administrative classification levels commences with a description of the Characteristics of the work, competency and indicative training at this level, and then proceeds to specify Generic skills and Core skills. Each classification is to be read as a whole by reference to the descriptions of the Characteristics of the work and the Generic skills and Core skills.
Both the applicant and the respondent have selected aspects of these descriptors which suit their case. For example, the applicant emphasises his qualification levels and the legal tasks he performed, whilst the respondent emphasises the applicant’s lack of experience and the fact he worked under supervision of both solicitors and administrative staff.
In my opinion, this selective approach is misconceived for two reasons; first, it is inconsistent with the requirement that the provisions of an Award be read as a whole and in context and secondly, because the approach adopted by both parties overlooks the basis upon which the applicant commenced employment with the respondent; namely, to gain experience in a law firm.
Accepting that provisions of the classification structure must be read as a whole, it is apparent upon an examination of Characteristics of the work and the Generic skills and Core skills for the clerical and administrative stream that:
a)educational levels specified in the Characteristics of the work increases with each level from Year 11 standard at Level 2, Year 12 standard at Level 3, a TAFE Advanced Certificate equivalent at Level 4 and an Associate Diploma at TAFE or tertiary level (or equivalent) at Level 5;
b)the degree of supervision specified in the Characteristics of the work reduces with each level such that supervision at Level 2 is routine, at Level 3 it is limited, at Level 4 the employee is unsupervised but working under general guidance and at Level 5 the employee is unsupervised working under broad guidance;
c)legal knowledge is not specified under Core skills until Level 3, where the employee is required to understand basic structures of the legal system. At Level 4, the employee is required to understand and appreciate the legal system by being able to:
●acquire and apply a limited knowledge of professional legal functions under direct supervision as a clerk by being able to interview clients, draft (for checking) documents and instructing on standard legal matters; and
●exhibit a basic understanding of different areas of law as they are dealt with, within the firm or between firms or between the firm and legal institutions for means of referral.
At Level 5, the employee is expected to have acquired and apply a working knowledge of the legal system by being able to:
●understand and participate in, under supervision, the processes of major legal institutions;
●display an understanding of areas of law and legal procedures for resolving matters referred to the employee, subject to general and procedural supervision; and
●initiate routine legal procedures and documentation.
As I have earlier stated, these are not defining characteristics and on their own, do not convey the increased complexity with which a myriad of tasks are performed under various administrative Core functions such as Information Handling, Technology, Organisational and Business and Finance. As an illustration, at Levels 4 and 5, a person is managing a team. At Level 5 a person also manages payroll records.
The applicant was employed neither as a clerical and administrative employee nor graduate law clerk. He was employed for the purpose of acquiring experience in a law firm. No doubt, this meant providing him with a range of tasks across the clerical and administrative stream together with experience in the firm’s legal work. The applicant had not yet acquired a tertiary qualification and there is no dispute that he engaged in his tasks generally under supervision from senior solicitors and clerical and administrative employees.
I am satisfied that the applicant had very limited experience when he commenced employment with the respondent. This finding flows as a matter of logic from the undisputed evidence about the basis upon which the applicant was employed by the respondent. He may have employed a range of legal functions some of which, if he was under only routine supervision, required the exercise of legal skills that could not be said to be basic. However, when he exercised more complex skills such as the preparation of memoranda and briefs to Counsel and the initiating of Court documents, the evidence is that the applicant was under direct supervision by either Mr Efron or a senior solicitor. The applicant may have assisted Counsel at one trial but on his own evidence his assistance was limited. The applicant did not supervise others.
I am not satisfied that the applicant should be classified as a Level 5 - Clerical and Administrative employee merely because he was in the process of acquiring a law degree. His administrative tasks certainly did not involve the tasks or functions specified for employees as Core skills at Level 5.
I am not satisfied that the applicant should be classified as a
Level 3 - Clerical and Administrative employee merely because he was inexperienced and generally under direct supervision.
Having regard to the totality of the applicant’s work and the circumstances under which he performed at work, I find that the applicant was employed under Level 4 - Legal, Clerical and Administrative employee, Schedule B to the Award. Although the applicant was not unsupervised, the legal skills he exercised best fall within the scope of this level. He was clearly able to initiate research and engage in some tasks such as preparing Court books and maintaining files in a reasonably independent way.
I am satisfied having regard to the applicable minimum rates of pay at the time of the applicant’s employment that he was not paid the wage rates as specified for Classification Level 4 under clause 14 of the Award.
Superannuation
Given that the applicant was not paid wages in accordance with the relevant classification, it follows that the superannuation contributions paid on behalf of the applicant by the respondent were not as prescribed by clause 23 of the Award.
Annual Leave
As the applicant was employed under the Award, he was entitled to payment for accrued annual leave on termination of his employment under section 90(2) of the Act and annual leave loading on that accrued leave pursuant to clause 35.3 of the Award.
The applicant was not paid his accrued annual leave in accordance with the Act or the Award.
Employee Records
Section 535 of the Act provides that:
(1) An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) The records must:
(a) if a form is prescribed by the regulations--be in that form; and
(b) include any information prescribed by the regulations.
Note: This subsection is a civil remedy provision (see Part 4-1).
(3) The regulations may provide for the inspection of those records.
Section 536 of the Act relevantly provides that:
(1) An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
Note 1: This subsection is a civil remedy provision (see Part 4-1).
The applicant deposes that he was not provided payslips by the respondent until in or around June 2013.[4] This allegation is not disputed by the respondent. Consequently, I am satisfied that from the period of the commencement of the applicant’s employment with the respondent until in or around 12 June 2013, the respondent contravened s.536 (1) of the Act.
[4] Affidavit of Saul Finberg filed 15 May 2014 at [17].
I am asked to draw an inference by the applicant, from the fact that the respondent has failed to provide the applicant’s solicitors, following requests by them, with copies of employee records, that the respondent has not made, kept or maintained employee records in accordance with s.535 the Act.
The respondent’s evidence was that he did not have a working knowledge of the administrative functions of the firm, including matters such as payroll records.
The respondent has been on notice by reason of the applicant’s statement of claim, that the applicant alleges that the respondent has not complied with the obligations under s.535 of the Act. In the absence of any probative evidence from the respondent that the obligations under s.535 of the Act were complied with, I am satisfied that it is safe to draw a conclusion that employee records have not been made, kept or maintained in accordance with s.535 of the Act.
Accordingly, I find that the respondent contravened s.535 of the Act.
Costs Application
The respondent seeks an order that the applicant pay its costs in relation to the applicant’s unsuccessful application for summary judgment.
The applicant filed an Application and an Affidavit on 15 May 2014. A Response was filed by the respondent together with an Affidavit on 29 May 2014. On 20 June 2014, the applicant filed an Application in a Case seeking judgment be entered against the respondent pursuant to section 17A of the Federal Circuit Court Act 1999 and rule 13.07 of the Federal Circuit Court Rules 2001.
Section 17A of the Federal Circuit Court Act 1999 relevantly provides:
(1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
Rule 13.07 of the Federal Circuit Court Rules 2001 relevantly provides:
(1) This rule applies if, in a proceeding:
(a) in relation to the whole or part of a party's claim there is evidence of the facts on which the claim or part is based; and
(b) either:
(i) there is evidence given by a party or by some responsible person that the opposing party has no answer to the claim or part; or
(ii) the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or part.
(2) The Court may give judgment on that claim or part and make any orders or directions that the Court considers appropriate.
By correspondence dated 17 July 2014 from the respondent to the applicant’s solicitors, the respondent stated that in its view, “the applicant has not pleaded the material facts of this application, and that any application for summary judgment prior to proper pleadings is premature an unfair to the respondent.” The respondent further stated that in the circumstances, “the applicant has no reasonable prospect of obtaining summary judgment in relation to the applicants claim or part of his claim and accordingly, the applicant should withdraw his application for summary judgment.”
The respondent noted that the summary application judgment had been listed for 4 August 2014 and that the applicant therefore had ample time to consider withdrawing its summary judgment application.
In Johnson, BG v Johnson, K (No.3) (2000) FLC 93-041 Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ stated at paragraph 13 (footnotes omitted):
“..... At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly [(1989) 167 CLR 568 at 571] Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.” Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”
Bearing in mind observations of the High Court, I expressed a preliminary view to the applicant’s Counsel at the Court return date on 4 August 2015, that I had doubts, on the limited material before me, whether the applicant could make good its case that the respondent had no reasonable prospect of successfully defending the proceedings.
Counsel for the respondent submitted that there were a number of questions which were required to be determined including whether the applicant was an employee and which classification of the Award applied. Counsel for the applicant maintained that there was no dispute as to the duties performed by the applicant.
I expressed the view that there was indeed, on the Affidavit material before me, a dispute as to the duties performed by the applicant and that, consequently, the evidence regarding this would need to be ventilated at a trial. Thus, the Court may well have some difficulty in finding that the respondent had no reasonable prospect of defending himself in proceedings. I, nonetheless, informed Counsel for the applicant that it was his decision whether or not to proceed with the application for summary judgment.
The Interlocutory Application was listed on 26 August 2014. I found that I was not satisfied that the requirements of s.17A of the Federal Circuit Court Act 1999 and rule 13.07 of the Federal Circuit Court Rules 2001 had been met. I formed the view that, even taking the applicant’s case at its highest; namely, that the applicant was employed by the respondent under the Award, given the dispute between the applicant and respondent as to the nature of the duties he performed during his employment, I was not satisfied that the respondent had no reasonable prospects of successfully defending his case.
Section s.570 of the Act provides:
“570 Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before the FWC;
(ii) the matter arose from the same facts as the proceedings.”
The respondent pursues its costs application pursuant to s.570(2)(a) and (b). In respect of s.570(2)(a), the respondent submits that the application for summary judgment was vexatious in circumstances where it was made at an early stage of proceedings, prior to pleadings and where the applicant was legally represented. The respondent submits that the summary judgment application was instituted without reasonable cause, in circumstances where on the material before the Court there was a clear dispute; in particular, regarding the duties engaged in by the applicant which bore on the question of an appropriate classification under the Award. The respondent submits that the applicant’s institution of proceedings, vexatiously and without reasonable cause caused it to incur costs, both on 4 August 2014 and 26 August 2014.
In respect of s.570(2)(b), the respondent submits that the applicant’s unreasonable acts or omissions were; firstly, instituting the summary judgment application at a premature point in time and, secondly, failing to discontinue the application having received correspondence from the respondent dated 17 July 2014 and thirdly, failing to discontinue the application, following my observations made at the Court return date on 4 August 2014. The respondent submits that these acts or omissions caused it to incur costs, both on 4 August 2014 and 26 August 2014.
Applicable Principles
In Fair Work Ombudsman v Valuair Limited (No.3) [2014] FCA 1182, Buchanan J stated:
“7. It is not claimed that the proceedings were instituted vexatiously. The basis upon which an order for costs is sought is, in the first instance, that the proceedings were instituted without reasonable cause or that some unreasonable act or omission by the applicant caused the respondents to incur costs.
8. In Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 (“Kangan”), a Full Court said (at [60]), in relation to similar requirements in the earlier Workplace Relations Act 1996 (Cth):
60 … A party does not institute proceedings without reasonable cause merely because that party fails in the argument put to the Court: R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 per Gibbs J at 473. The section reflects a policy of protecting a party instituting proceedings from liability for costs, but that protection may be lost. Although costs will rarely be awarded under the section and exceptional circumstances are required to justify the making of such an order (see Heidt v Chrysler Australia Ltd (1976) 26 FLR 257; 13 ALR 365 per Northrop J), a proceeding will be instituted without reasonable cause if it has no real prospects of success, or was doomed to failure: see Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 per Wilcox J; see also Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439; and Nilsen v Loyal Orange Trust (1997) 76 IR 180.
9 In Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257, in the passage to which the Full Court in Kangan was obviously referring, Wilcox J said (at 264-5):
It seems to me that one way of testing whether a proceeding is instituted “without reasonable cause” is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being “without reasonable cause”. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”
In Ryan v Primesafe[2015] FCA 8, Mortimer J dealt with an application for costs arising from proceedings under the Act. In relation to the provisions in s.570 of the FW Act generally Her Honour noted:
“64. I accept the general import of the authorities relied on by the applicant and Mr McDonald in their written submissions about the significance of the threshold set by s.570(2) of the Fair Work Act. Although some of the authorities relied on dealt with the predecessor provisions to s. 570, there is no difference in substance in the way the threshold is expressed. The discretion conferred by the confined terms of s. 570(2) should be exercised cautiously, and the case for its exercise should be clear: see Saxena v PPF Asset Management Ltd [2011] FCA 395at [6] per Bromberg J. The reason for caution is the potential for discouraging parties’ pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind
s570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. Insofar as it operates to the benefit of respondents, it is designed to ensure respondents feel free to pursue arguable legal and factual responses to the claims made against them. There is an almost identical provision in s.611 of the Fair Work Act, giving the Fair Work Commission a similar costs power, conditioned by similarly-worded considerations. The predecessor provisions, and the conscious broadening of the statutory terms used in s570, are traced by the Full Court in Australasian Meat Industry Employees’ Union v Fair Work Australia (No 2) (2012) 203 FCR 430; [2012] FCAFC 103 at [3]- [4] per Jessup and Tracey JJ.65. None of those propositions deny the Court’s ability to find that one or both of the two preconditions expressed in
ss 570(2)(a) and (b) exist where the factual circumstances warrant it. The legislative policy behind a provision such as s570(1) is not inconsistent with the requirements for proceedings to be conducted reasonably, fairly and efficiently. As an access to justice provision, it contemplates parties and their legal representatives will access the Court responsibly.”In Clarke v Dixie Cummings Enterprises Pty Ltd [2013] FCA 987 Justice Jessup observed:
It is true that I have found that the applicant’s resistance to the respondent’s privilege claim was without substance, and it might even be said that I regard this as a clear case. On the other hand, I think there is a danger of the exceptions in s. 570(2) being used in circumstances in which the most that one can say is that the losing party had a self-evidently weak case. In my opinion, that is not the kind of situation to which s. 570(2) is addressed. There must be a higher level of criticism or disapprobation which the court is able to express about a losing party’s case if the bars in paras (a) and (b) of s 570(2) are to be crossed by a party which succeeds on the application concerned.
In Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd(No.2) [2014] FCA 351 Justice Pagone stated at [9]:
“………. Applications under s.570(2)(a) are not occasions for courts to be invited to second guess forensic decisions made by litigants, but to compensate a party for costs incurred by them in defending proceedings which were instituted vexatiously or without reasonable cause.”
In Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574, the Full Court of the Federal Court considered whether a costs order should be made pursuant to s.824 of the former Workplace Relations Act 1996 (Cth), stated relevantly at [28] and [29]:
28. We turn now to s.824(2) of the WR Act. This provision carves out another exception to the usual rule in s.824(1) that costs orders are not to be made in respect of proceedings in a matter arising under the WR Act. The exception applies when two criteria are satisfied. The first criterion is that one party must have engaged in "an unreasonable act or omission". As the reasoning of Tracey J in Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879; (2007) 162 FCR 392 and Siopis J in McAleer v The University of Western Australia (No 2) [2007] FCA 247; (2007) 161 IR 151 demonstrates, whether a party has conducted itself or its litigation in such a way as to cross this threshold will depend on the particular circumstances of the case. The second criterion is that the act or omission of one party must have "caused another party to the proceeding to incur costs in connection with the proceeding". Once both criteria are satisfied, then the Court "may" in its discretion order the party which has engaged in the unreasonable act or omission to pay some or all of the costs of the other party.”
29. In our view, the respondent has not engaged in "an unreasonable act or omission". As the authorities indicate, there is a distinction between a party who pursues arguments which are ultimately abandoned or rejected by the Court and a party who commences a proceeding which is misconceived in the sense of being incompetent or unsupportable: Australian and International Pilots Association 162 FCR at 402; Standish v University of Tasmania (1989) 28 IR 129 at 138-139. Simply because a party does not conduct its litigation in the most efficient way does not mean that the Court should exercise its discretion in s 824(2) of the WR Act to make a costs order. In our view, neither the late abandonment of some of its defence, nor the use of a notice of contention to advance a previously minor and ultimately unsuccessful argument, crosses the threshold of being "an unreasonable act or omission" for the purposes of s 824(2). True it is that the concession ultimately given by the respondent that it regarded the decision of Nicholson J as erroneous could have been given earlier. However, it was a concession which was, in light of the decision of this Court on the substantive appeal, properly made and beneficial to the appellants. Although it is arguable that the lateness of the concession may have put the appellants to some extra costs, we are of the view that it cannot be characterised as "unreasonable" in the circumstances of this case. Indeed, while courts should use the discretion in s 824(2) to ensure that parties to litigation arising from the WR Act do not engage in unreasonable acts and omissions which put the other party to undue expense, they should also be careful not to exercise the discretion with too much haste, given that such haste may discourage parties, for fear of an adverse costs order, from pursuing litigation under the WR Act in the manner which they deem best”.
I am not satisfied that the applicant instituted its summary judgment application vexatiously or without reasonable cause. On the applicant’s own version of his case: see (supra), his application was not bound to fail. The applicant’s substantive application was that he was an employee covered by the Award. It is to be recalled that it was not until the second hearing date of this matter, that the respondent conceded that the applicant was an employee and was employed under the Award. The applicants substantive case was that he was employed under classification Level 5 - Clerical and Administrative employee, schedule B to the Award. The respondent was employed under classification Level 5 - Clerical and Administrative employee, schedule B to the Award. The respondent did not, however, specify which classification of the applicant was employed under.[5] In my opinion, these are not exceptional circumstances which would warrant a conclusion that the applicant instituted its application for summary judgment vexatiously or without reasonable cause. Even if I found that the applicant had instituted its application for summary judgment vexatiously or without reasonable cause, I would not have exercised my discretion to award costs in the circumstances.
[5] affidavit of Graeme David Efron filed 29 May 2014.t
I have formed the opinion that it ought to have been apparent to the applicant (or at least his legal representatives), at the Court return date on 4 August 2015, that continuing to prosecute his application for summary judgment may well be likely doomed to failure. The applicant was required to satisfy the Court, pursuant to section 17A of the Federal Circuit Court Act 1999 and rule 13.07 of the Federal Circuit Court Rules 2001, that the respondent had no reasonable prospect of successfully defending the proceeding. In circumstances where key issues in dispute were, what classification the applicant was employed under and what duties the applicant performed during his employment, it could not have been said that the respondent had no reasonable prospect of successfully defending the proceedings. This is because determining what duties the applicant performed was a question of fact and determining what classification he was employed under a mixed question of fact and law. The applicant, who was legally represented, was on notice when he determined to continue to prosecute his claim that this was a hurdle he had to meet in pressing his application for summary judgment.
I have taken into account the fact that the Court should be cautious in awarding costs so that parties are not dissuaded from litigating in relation to genuine grievances. However, in the circumstances, I am satisfied that the applicants conduct continuing to prosecute his application in a case for summary judgment was unreasonable and caused the respondents to incur costs by reason of this application being dealt with on 26 August 2014.
I am satisfied I should exercise my discretion to award costs. I have had regard to the costs specified in Part 1, Schedule 1 of the Rules. I will order costs in the amount of $1,706.00.
Conclusion
For the reasons set out in this judgment, I make the declarations and orders herein.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 11 September 2015
SCHEDULE B – LEGAL SERVICES AWARD
Schedule B—Classifications
B.1 Level 1—Legal, clerical and administrative employee
B.1.1 Characteristics
(a) Employees at this level may work under direct supervision with regular checking, but may take the form of less direct guidance and some autonomy where working in teams is required.
(b) Competency at this level involves the application of knowledge and skill to a limited range of tasks and roles. There is a specified range of contexts where the choice of actions required is clear.
(c) Competencies are used within established routines, methods and procedures that are predictable and within which judgment against established criteria is involved.
(d) An indicative training and vocational educational level for this level is Year 10 standard.
B.1.2 Generic skills
Indicative typical duties and skills at this level may include:
(a) Problem solvingIdentify and resolve problems by being able to:
●identify routine problems;
●identify and assess options; and
●implement solutions.
(b) Literacy
Read and write routine texts.
(c) Numeracy
Use numbers in the workplace by being able to:
●operate with numbers to complete routine tasks;
●calculate numerical and related information to perform routine tasks; and
●interpret and present numerical and related information to complete routine tasks.
B.1.3 Core skills
(a) Information handling
(i) To handle mail to facilitate communication by being able to:
●receive and distribute incoming mail;
●receive and dispatch outgoing mail; and
●collate and dispatch documents for bulk mailing.
(ii) To handle information to maintain access to and security of records by being able to:
●file documents; and
●identify and retrieve documents.
(b) Communication
To process information to facilitate communication flow by being able to:
●receive and relay oral messages; and
●receive and relay written messages.
(c) Enterprise/industry
To apply knowledge of the enterprise/industry to complete routine administrative tasks, by being able to:
●identify key functions and personnel/departments; and
●apply office procedures.
(d) Technology
(i) To operate a range of office equipment to complete routine tasks by being able to:
●select equipment to be used for tasks;
●locate equipment to be used for tasks; and
●operate equipment.
(ii) To access and retrieve computer data using keyboard skills by being able to:
●open files;
●retrieve data;
●close files; and
●shut down equipment.
(e) Organisational
To follow established work schedules to achieve designated group/section goals by being able to plan and organise personal daily work routine.
(f) Team
To participate in a team to achieve designated tasks by being able to complete allocated tasks.
(g) Business/financial
To record and prepare financial documentation for cash flow and accounting records by being able to:
●record petty cash transactions;
●prepare banking documents; and
●prepare business source documents.
(h) Legal
Not applicable at this level.
B.2 Level 2—Legal, clerical and administrative employee
B.2.1 Characteristics
(a) Employees at this level may work under routine supervision with intermittent checking, but this checking may take the form of general guidance and considerable autonomy where working in teams is required. Responsibility for some roles and co-ordination within a team may be required.
(b) Competency at this level involves the application of knowledge and skills to a range of tasks and roles. There is a defined range of contexts where the choice of actions required is usually clear, with limited complexity in the choice.
(c) Competencies are used within established routines, methods and procedures, in some cases involving discretion and judgment about possible actions.
(d) An indicative training and vocational educational level for this level is Year 11 standard.
B.2.2 Generic skills
As per Level 1.
B.2.3 Core skills
As per Level 1,together with the following:
(a) Information handlingProcess information to provide access to current records, by being able to:
●update and modify existing organisational records; and
●remove inactive and dead files.
(b) Communication
Process and respond to information to facilitate communication flow by being able to:
●respond to incoming telephone calls;
●make telephone calls; and
●draft simple correspondence.
(c) Enterprise/industry
(i) Respond to and act upon internal/external enquiries to promote the products and services of the organisation by being able to:
●provide information from own function area;
●re-direct enquiries; and
●undertake follow up action where required.
(ii) Receive visitors to ensure a positive image of the organisation is presented by being able to:
●greet visitors; and
●attend to visitors’ needs.
(d) Technology
(i) Operate a range of office equipment to complete non-routine tasks by being able to:
●operate equipment; and
●identify and/or rectify minor faults.
(ii) Edit computer data using keyboard skills by being able to:
●open files;
●edit information;
●save and exit; and
●shut down equipment.
(iii) Produce simple documents using keyboard skills by being able to document from written text using standard format.
(e) Organisation
Establish own work schedule to achieve designated group/section goals by being able to organise own work schedule.
(f) Team
Participate in allocation and completion of team tasks by being able to:
●participate in identifying tasks for team;
●complete own tasks; and
●assist others to complete (team) tasks.
(g) Business/financial
Process financial documentation for cash flow and accounting records by being able to:
●reconcile invoices for payment to creditors;
●prepare statements for debtors;
●enter payment summaries into journals; and
●post journals to ledgers.
(h) Legal
Not applicable at this level.
B.3 Level 3—Legal, clerical and administrative employee
B.3.1 Characteristics
(a) Work is under limited supervision with checking related to overall progress, but may take the form of broad guidance and autonomy where working in teams is required. Responsibility for the work of others may be involved, and team co-ordination may be required.
(b) Competency at this level involves the application of knowledge with depth in some areas and a broad range of skills. There is a range of tasks and roles in a variety of contexts, with some complexity in the extent and choice of actions required. Competencies are used within routines, methods and procedures where some discretion and judgment is required in selection of equipment, work organisation, services, actions and achieving outcomes within time constraints.
(c) An indicative training and educational level for this level is the Trade Certificate or equivalent TAFE/Year 12 standard.
B.3.2 Generic skills
As per Levels 1 and 2,together with the following:
(a) Problem solvingIdentify, clarify and resolve problems by being able to:
●identify non-routine problems;
●clarify the nature of the problem;
●investigate options and decide on the appropriate course of action;
●implement solutions;
●evaluate and report on effectiveness of solutions and related outcomes;
●assist others to identify and resolve problems in the workplace; and
●report on effectiveness of solutions and related outcomes.
(b) Literacy
●write non-routine texts; and
●read non-routine texts.
(c) Numeracy
Use numbers in the workplace by being able to:
●operate with numbers to complete non-routine tasks;
●calculate numerical and related information to perform non-routine tasks; and
●interpret and present numerical and related information to complete non-routine tasks.
B.3.3 Core skills
As per Levels 1 and 2,together with the following:
(a) Information handlingMaintain information records system to ensure integrity of system by being able to:
●assemble new files;
●identify and process inactive and dead files; and
●record documentation movements.
(b) Communication
(i) Collect and provide information to facilitate communication flow by being able to:
●respond to telephone, oral and written requests for information; and
●draft routine correspondence in response to a need or request.
(ii) Transcribe oral instructions by writing shorthand notes for the production of a text by being able to take dictation.
(c) Enterprise/industry
(i) Provide information and advice to promote the products/services of the organisation by being able to:
●clarify specific needs of a client;
●provide information and advice; and
●follow up.
(ii) Process client complaints to ensure the goals of the organisation are met by being able to:
●clarify the nature of the complaint;
●identify options for resolution; and
●act to resolve the complaint.
(d) Technology
(i) Co-ordinate the use of a range of office equipment to complete complex tasks by being able to:
●operate equipment; and
●maintain equipment.
(ii) Organise the copying, collating and binding of documents by being able to:
●select appropriate media;
●copy and collate documents; and
●distribute documents.
(iii) Produce complex documents using keyboard skills by being able to:
●establish document structure;
●produce documents; and
●shut down equipment.
(e) Organisational
Organise schedules to achieve agreed group/section goals by being able to:
●co-ordinate own work routine with others;
●make and record appointments on behalf of another; and
●make travel and accommodation bookings in line with given itinerary.
(f) Team
Negotiate with team members to allocate and complete tasks to achieve group goals by being able to:
●clarify tasks to achieve group goals;
●negotiate allocation of tasks; and
●monitor completion of allocated tasks.
(g) Business/financial
(i) Monitor records of income and expenditure for budgetary records by being able to:
●reconcile accounts to balance; and
●prepare bank reconciliations.
(ii) Monitor cash control accounting purposes by being able to:
●document and lodge takings at a bank;
●receive and document payments/takings;
●dispatch statements to debtors;
●follow up and record outstanding accounts; and
●dispatch payments to creditors.
(iii) Monitor stock levels for control purposes by being able to maintain stock control records.
(h) Legal
An understanding of the basic structures of the relevant State or Territory legal system by being able to:
●locate the major legal institutions and process standard legal procedures;
●operate within the information channels and procedures of the institutions; and
●exhibit a basic understanding of areas of law for the purposes of information flow and referral.
B.4 Level 4—Legal, clerical and administrative employee
B.4.1 Characteristics
(a) The employee may be required to work without supervision, with general guidance on progress and outcomes sought as required. The work of others may be supervised or teams guided or facilitated. Responsibility for and limited organisation of the work of others may be involved.
(b) Competency at this level involves the application of knowledge with depth in some areas and a broad range of skills. There is a wide range of tasks and roles in a variety of contexts, with complexity in the range and choice of actions required.
(c) Competencies are used within routines, methods and procedures where discretion and judgment is required, for both self and others, in planning and selection of equipment, work organisation, services, actions and achieving outcomes within time constraints.
(d) An indicative training and vocational educational level for this level is TAFE Advanced Certificate.
B.4.2 Generic skills
As per Levels 1,2 and 3 together with the following:
(a) Problem solvingIdentify, clarify and resolve problems by being able to:
●identify problems;
●clarify the nature of the problem;
●determine criteria for optimal solution;
●implement solution;
●evaluate and report on effectiveness of solution and related outcomes; and
●assist others to identify, clarify and resolve problems in the workplace.
(b) Literacy
●compose routine and non-routine texts; and
●read and analyse routine and non-routine texts.
(c) Numeracy
Use numbers in the workplace by being able to:
●operate with numbers to establish procedures;
●calculate numerical and related information to establish procedures; and
●interpret and present numerical and related information to establish procedures.
B.4.3 Core skills
(a) Information handling
Manage an established records management system to ensure integrity of the system by being able to:
●maintain existing filing arrangements;
●ensure distribution of files and records;
●maintain security of filing system; and
●train staff.
(b) Communication
(i) Organise and provide information to facilitate communication flow by being able to:
●receive and process a request for information;
●identify information sources; and
●compose reports/correspondence.
(ii) Transcribe oral instructions by writing shorthand notes for the production of a text by being able to take dictation.
(c) Enterprise/industry
Provide advice in order to meet current and anticipated client requirements by being able to:
●identify current client requirements;
●provide information on current service provision and resource allocation within area of responsibility; and
●identify trends in client requirements.
(d) Technology
(i) Produce complex documents, reports and work sheets using keyboard skills by being able to:
●determine presentation and format documentation;
●produce documents; and
●shut down equipment.
(ii) Operate computer equipment to maintain storage media and filing system by being able to:
●maintain storage media;
●maintain filing system;
●shut down equipment; and
●train others in the use of office equipment.
(iii) Operate and maintain computer printers by being able to:
●set printers for document requirements; and
●maintain printers.
(e) Organisational
(i) Manage appointments to achieve identified goals by being able to:
●manage a diary on behalf of another/others; and
●assist with appointment preparation and follow up.
(ii) Plan business trips and associated itinerary for management/executive to ensure effective use of time management principles by being able to:
●organise business itinerary; and
●identify credit facilities.
(iii) Plan meetings to enable the stated objectives of the meeting to be met by being able to:
●prepare documentation for meetings;
●make meeting arrangements; and
●record minutes of meetings.
(f) Team
Manage the team to ensure team goals are achieved by being able to:
●plan work for the team;
●allocate tasks to members of the team;
●monitor team performance; and
●provide training for team members.
(g) Business/financial
Produce end of period reports for cash flow projections and budgetary records by being able to:
●prepare financial reports;
●undertake and document costing procedures; and
●draft financial forecasts/budgets.
(h) Legal
An understanding and appreciation of the structures of the relevant State or Territory legal system by being able to:
●acquire and apply a limited knowledge of professional legal functions under direct supervision as a clerk by being able to interview clients, draft (for checking) documents and instructing on standard legal matters; and
●exhibit a basic understanding of different areas of law as they are dealt with, within the firm or between firms or between the firm and legal institutions for means of referral.
B.5 Level 5—Legal, clerical and administrative employee
B.5.1 Characteristics
(a) An employee at this level may work under broad guidance. The work of others may be supervised or teams guided. Responsibility for the planning and management of the work of others may be involved.
(b) Competency at this level involves the self-directed application of knowledge with substantial depth in some areas and a range of technical and other skills to tasks, roles and functions in both varied and highly specific contexts.
(c) Competencies are normally used independently and both routinely and non-routinely. Judgment is required in planning and selecting appropriate equipment, services, techniques and work organisation for self and others.
(d) An indicative training and vocational education level for this level is part achievement of Associate Diploma at TAFE or tertiary level (or equivalent).
B.5.2 Generic skills
As per Levels 1,2,3 and 4.
B.5.3 Core skills
As per Levels 1,2,3 and 4 together with the following:
(a) Information handlingEstablish a records system to ensure integrity of system by being able to:
●determine the needs of the organisation;
●select appropriate system;
●implement new/improved system; and
●provide staff training.
Establish and maintain library resource collection by being able to:
●store publications;
●update incoming publications; and
●circulate publications.
(b) Communication
Initiate research and prepare information to facilitate communication flow by being able to:
●identify need for documents;
●identify need for research;
●obtain data from external sources;
●prepare drafts; and
●produce reports.
(c) Enterprise/industry
Provide advice on response to the changing environment in order to achieve organisational goals by being able to:
●analyse changes to the internal/external environment which impact on the role of the department or enterprise;
●assist with the development of options for future strategies; and
●assist with planning to match future requirements.
(d) Technology
Manage the design and development of documents, reports and work sheets by being able to:
●identify document requirements; and
●design document format.
Establish, maintain and supervise a small network by being able to:
●establish a small network;
●maintain a small network;
●assist network users;
●shut down network equipment; and
●train network users.
(e) Organisational
Plan and manage meetings to achieve identified group/section goals by being able to:
●organise meetings; and
●conduct meetings on behalf of management.
Plan and manage conferences on behalf of management to achieve identified goals by being able to:
●plan conferences;
●organise conferences;
●promote conferences; and
●co-ordinate conference proceedings.
(f) Team
Manage the team to ensure team achievements reflect identified enterprise objectives by being able to:
●clarify the link between goals of the team and goals of the enterprise;
●plan and allocate work for the team;
●monitor team performance;
●evaluate achievements of team; and
●organise training for team.
Participate in staff selection to ensure team goals are achieved by being able to:
●identify requirements for new team positions;
●draft job vacancy advertisements;
●select staff; and
●employ staff.
(g) Business/financial
Manage payroll records for employee salaries and statutory record keeping purposes by being able to:
●prepare payroll data;
●process payment of wages and salaries; and
●administer PAYG salary records.
(h) Legal
Acquire and apply a working knowledge of the structures and methods of the relevant State or Territory legal system by being able to:
●understand and participate in, under supervision, the processes of major legal institutions;
●display an understanding of areas of law and legal procedures for resolving matters referred to the employee, subject to general and procedural supervision; and
●initiate routine legal procedures and documentation.
B.6 Level 5—Law graduate
B.6.1 Characteristics
This position requires the completion of a course of study which is recognised as an academic qualification for admission and a formal offer by the employer to the law graduate, the acceptance of that offer and registration and approval of all documentation required by the relevant governing bodies.
B.7 Level 6—Law clerk
B.7.1 General
(a) Work is under limited guidance in line with a broad plan budget or strategy. Responsibility and defined accountability for the management and output of the work of others and for a defined function or functions may be involved.
(b) Competency at this level involves the self-directed development of knowledge with substantial depth across a number of areas and/or mastery of a specified area with a range of skills. Application is to major functions in either varied or highly specific contexts.
(c) Competencies are normally used independently and are substantially non-routine. Significant judgment is required in planning, design, technical or supervisory functions related to products, services, operations or processes of the firm.
(d) Specific clerical and administrative competencies do not automatically apply at this level or above. Legal competencies continue to apply at least in conjunction with the clerical and administrative competencies.
(e) Employees will be graded at the level where the principal functions of their employment, as determined by the employer, require the exercise of skills at the level set out in the respective grade.
(f) An indicative training and vocational educational level for this level is Associate Diploma at TAFE or tertiary level (or equivalent).
B.7.2 Legal
The employee will be able to display a practical understanding and application of the structures, methods and procedures of the relevant State or Territory legal system.
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