Foulsham v JJ Corbett Plumbing and Gasfitting Pty Ltd
[2015] FCCA 1290
•2 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FOULSHAM v JJ CORBETT PLUMBING & GASFITTING PTY LTD | [2015] FCCA 1290 |
| Catchwords: INDUSTRIAL LAW – Small claims list – what industrial instrument covered applicant’s employment – whether applicant was entitled to and not paid accrued annual leave, redundancy pay – respondent ordered to pay accrued annual leave – otherwise application dismissed. |
| Legislation: Fair Work Act 2009, ss.44, 90,45, 548, 743, 48, 47(1), 119(1), 119(2), 121, 107(2), 107(3)(a) |
| McShane v Image Bollards Proprietary Limited [2011] FMCA 215 Black v Young Republic & Anor [2012] FMCA 729 |
| Applicant: | RUSSELL IAN FOULSHAM |
| Respondent: | JJ CORBETT PLUMBING & GASFITTING PTY LTD |
| File Number: | MLG 1159 of 2014 |
| Judgment of: | Judge Jones |
| Hearing date: | 8 April 2015 |
| Date of Last Submission: | 14 May 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 2 June 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented |
| Solicitors for the Respondent: | Self Represented |
THE COURT DECLARES THAT:
The respondent contravened s.44 of the Fair Work Act 2009 (Cth) by failing to pay the applicant his entitlement pursuant to s.90 of the Act to accrued annual leave when the applicant’s employment ended.
THE COURT ORDERS THAT:
Within 21 days, the respondent pay the applicant the sum of $4,510.53.
Otherwise, all extant applications are dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1159 of 2014
| RUSSELL IAN FOULSHAM |
Applicant
And
| JJ CORBETT PLUMBING & GASFITTING PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
By his Application, Affidavit and Form 5–Small Claim under the Fair Work Act 2009 (“the Act”) filed on 12 June 2014, the applicant seeks the following relief:[1]
a)$4510.53 being accrued unpaid annual leave;
b)$3450.00 being accrued unpaid personal/carers leave; and
c)$8000.00 being unpaid redundancy payments.
[1] During the course of the hearing the applicant withdrew his claim for the payment of accrued Rostered Days Off.
The applicant claims the respondent has contravened s.45 of the Act because the respondent has failed to pay the applicant his following entitlements under the Plumbing Trades (Southern States) Construction Award 1999 (“the Transitional Award”):
a)clause 23 – annual leave;
b)clause 24 – personal leave; and
c)clause 34 – redundancy.
It should be noted that the applicable Modern Award in relation to the applicant’s employment is the Plumbing and Fire sprinklers Award 2010 (“Modern Award”). The Modern Award came into effect on 1 January 2010, replacing the Transitional Award The relevant clauses under the Modern Award are:
a)clause 34 – annual leave;
b)clause 35 – personal/carer’s leave and compassionate leave;
c)clause 18 – industry specific annual redundancy scheme.
As the applicant’s claims relate to his claimed entitlement upon the cessation of his employment, it is the Modern Award which is the applicable award in determining his claim.
The respondent denies that the applicant is entitled to any of the amounts claimed by him. Mr Jason Corbett, sole director of the respondent filed an Affidavit in Support of his Response on 15 September 2014.
In his Small Claim Form 5, the applicant claims that he was employed by the respondent from 17 August 2002 to 23 February 2013, that he worked on a full-time basis from 7:30am to 4.00pm Monday to Friday and that his duties included plumbing, drainage, roofing, gas fitting, new and maintenance. Stock ordering and stock control and quoting bills of quantities, supervision of employees, contact meetings with clients, accounts payable and receivable, data entry and payroll. He claimed his classification under the transitional award was “Class 3”.
The applicant filed an affidavit on 26 March 2015 in response to Mr Corbett’s affidavit.
The applicant and Mr Corbett attested to the truth of and relied on all documentary material filed by them. The applicant and Mr Corbett gave evidence and were cross-examined.
Approach to Small Claims
Section 548 of the Act provides:
“(1)Proceedings are to be dealt with as small claims proceedings under this section if:
(a)a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Magistrates Court; and
(b)the order relates to an amount referred to in subsection (1A); and
(c)the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1A)The amounts are as follows:
(a)an amount that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b)an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.
Limits on award
(2)In small claims proceedings, the court may not award more than:
(a)$20,000; or
(b)if a higher amount is prescribed by the regulations--that higher amount.”
I note the decision of Lucev FM in McShane v Image Bollards Proprietary Limited (2011) FMCA 215 which was approved of by of Nicholls FM (as His Honour then was) in Black v Young Republic & Anor [2012] FMCA 729. That decision discusses the procedure that the Court should adopt in these sorts of matters and in particular, the fact that, whilst the Court generally acts without regard to legal forms and technicalities, it is still necessary for the applicant to prove their claim as the Court can only act on evidence having a rational probative force.
Whilst this is a claim brought properly within the ambit of s.548, the issues the Court has been required to consider have been somewhat more complex than likely anticipated by the parties. One of the key issues which, it is clear, the parties did not anticipate, but which emerged in the evidence given by the applicant and Mr Corbett was whether the applicant was, as he claimed, covered by the Transitional or Modern Award. The determination of this issue has had consequences for the determination of the applicant’s claims.
Evidence
The following sets out the evidence of the parties in relation to the general background to this dispute which emerged, in particular, from the oral evidence of the applicant and Mr Corbett.
Mr Corbett is sole director of JJ Corbett Plumbing & Gas Fitting Pty Ltd (the respondent) and Corbett Plumbing and Maintenance Pty Ltd (“Corbett Plumbing”). It is not clear from the evidence given by Mr Corbett what the precise relationship between the two entities was. From the evidence it is apparent that, taken together, both entities, employed very few employees at any one time. Certainly, I am satisfied that the respondent and Corbett Plumbing employed at all relevant times, less than 15 employees. The significance of this will become apparent later.
The applicant was employed full-time by the respondent from 17 August 2002 to 22 February 2013.
The applicant’s evidence, in cross examination, was that:
a)He was employed by the respondent as the “Paymaster” for Corbett Plumbing;
b)An employee, Helen Drummond was the paymaster for the respondent;
c)They worked closely together over a period of 9 years until she resigned in May 2010;
d)In addition to his duties as paymaster he did perform plumbing maintenance as well.
The applicant did not say nor provide any documentary evidence of his qualifications as a plumber.
The applicant agreed that the respondent generally put in place an annual shut down in accordance with the provisions of the Transitional Award (clause 23.7) and Modern Award (clause 34.3). This involved a shut down of the operations immediately prior to Christmas for a period of time in the New Year. In 2009/2010 the shut down period was from 24 December 2009 to 18 January 2010. The applicant said that he was not aware this was the period of shut down as he was recuperating from surgery.
On or about 14 December 2009, the applicant underwent a serious surgical procedure. His evidence is that there were some complications which his Doctor informed him required ongoing rest at home. On 26 December 2009, he accompanied his family on their camping holiday. The applicant says this was because he needed the care and attention of his wife who was on the camping trip.
On 18 January 2010, when the applicant did not attend work, Mr Corbett telephoned the applicant. The applicant informed Mr Corbett that he was still unfit to return to work because of his surgery. It is evident that the applicant informed Mr Corbett there were complications and he was not ready to return to work and that Mr Corbett explored with the applicant the possibility for him to return to work on modified duties. The applicant stated that given the nature of the complications it was not practical for him to return to work even on the basis of modified duties. He told Mr Corbett that his General Practitioner had informed him that he was not ready to return to work. It is agreed that Mr Corbett asked the applicant to provide him with a medical certificate. The applicant says that because of the complications he was unable to return to work until 5 February 2010. He provided a medical certificate to the respondent on 5 February 2010. The medical certificate was not produced in evidence by either party.
The applicant says that he could not get the medical certificate earlier to the respondent because he was on the camping trip with his family. He said that he did not take steps to obtain a medical certificate from his General Practitioner at any time prior to going on holidays with his family.
As the claim of the applicant is in relation to action taken by the respondent to reverse amounts paid as sick leave to annual leave for the period during which shut down was in place, it is appropriate to set out the information from the payslips issued to the applicant over the Christmas period 2009 and January 2010. This is as follows[2]:
· in the pay period 20/12/09 to 2/01/10 the applicant was paid 45.60 hours as sick leave;
· in the pay period 3/1/10 to 9/01/10 the applicant was paid 38 hours as sick leave;
· in the pay period 10/1/10 to 16/01/10 the applicant was paid 38 hours as sick leave;
· in the pay period 17/01/10 to 23/01/10 the following hours previously paid as sick leave were recorded as annual leave taken; 24 + 38 + 38 (100 hours) and 38 hours for that pay period was recorded as paid annual leave;
· in the pay period 24/01/10 to 30/01/10 the applicant was paid 8 hours as public holidays and 3.56 hours as special leave;
· in the pay period 31/01/10 to 6/02/10 the applicant was paid 30.40 hours sick leave;
· in the pay period 14/02/10 to 20/02/10 the applicant was paid 38 hours for normal work, 38 hours sick leave and 38 hours was re-credited to his annual leave accruals.
[2] Attachments 8 to 14, applicant’s affidavit filed 12 June 2014.
The applicant agreed that the respondent converted 100 hours paid as sick leave to 100 hours annual leave which reflected the period of the shut down. He also agreed that subsequently, in the pay period 14/02/10 to 20/02/10, 38 hours was paid as sick leave and 38 hours was re-credited to his annual leave accruals. The applicant also agreed that after he provided the respondent with a medical certificate, the respondent paid him sick leave in addition to annual leave. The applicant’s claim is that he was genuinely on sick leave during the period of shut down and the respondent ought to have paid him the period during the close down as sick leave not annual leave.
On 23 February 2013, the applicant commenced employment on a casual basis with Corbett Plumbing and Maintenance Pty Ltd. The circumstances in which this occurred is in dispute.
It is agreed that over the course of 2012, there were discussions between the applicant, Mr Corbett and another employee (a plumber) about the desire of the applicant to “wind down.” The applicant said that he wished to reduce his hours of work but remain a full time employee. The parties dispute who raised the issue of the applicant working on a casual basis. The applicant says that Mr Corbett raised it with him shortly before the Christmas break in 2012. The applicant says he considered this but decided and told Mr Corbett, in early 2013 that he was not happy about changing his employment status as he believed it would adversely affect his long service leave entitlement under CoInvest.
The applicant stated that in early 2013 he was told by Mr Corbett that he would be closing the bank accounts in the name of the respondent and consequently he would be employed as a casual by Corbett Plumbing. The applicant’s evidence was that ultimately he agreed to being employed on a casual basis. The applicant stated that he continued performing his paymaster duties after his employment commenced with Corbett Plumbing.
On 14 November the applicant and Mr Corbett signed off on the payment of accrued annual leave in the amount of $1,123.00 for the period 23 January 2010 to 18 February 2013.[3]
[3] Annexure JC-11, affidavit of Jason Corbett filed 15 September 2014.
In November 2013 the applicant’s employment ceased with Corbett Plumbing and Maintenance Pty Ltd.
I will later deal with the evidence given by the applicant and Mr Corbett in relation to his claim for payment of accrued annual leave, redundancy and personal/carer’s leave. First, however, given the evidence regarding the work performed by the applicant whilst employed by the respondent, there is an anterior issue to be decided; namely, whether the Modern Award was the relevant industrial instrument applying to his employment with the respondent.
Which Award covered the applicant’s employment?
Section 43 of the Fair Work Act relevantly provides:
The main terms and conditions of employment of an employee that are provided under this Act are those set out in:
(a)the National Employment Standards (see Part 2-2); and
(b)a modern award (see Part 2-3), an enterprise agreement (see Part 2-4) or a workplace determination (see Part 2-5) that applies to the employee.
Section 48 relevantly provides:
A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.
Section 47(1) provides that a modern award will “apply” to an employee, employer, organisation or outworker entity if:
(a)the modern award covers the employee, employer, organisation or outworker entity; and
(b)the modern award is in operation; and
(c)no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.
There is no doubt that the Modern Award is in operation. The question to determine is whether the Modern Award applied to the applicant because it covers the employee and the respondent. This directs attention to the coverage clause of the Modern Award and the classifications specified under the Award. If it is found that an Award applies to the employee because it covers the employee/employer, attention must then be directed to the Act to ascertain whether the Award nevertheless does not apply.
Each Modern Award has a “coverage” clause that determines whether “the Award is expressed to cover the employee, employer, organisation or outworker entity”. Whether a particular employment falls within the “coverage” clause of a Modern Award is ultimately a question of construction.
Principles governing interpretation of industrial instruments
Before turning to the coverage clause of the Modern Award or an alternative applicable award, it is appropriate to refer to the settled principles applicable to the interpretation of an Award.
These principles were summarised by Justice French (as he then was) in the Federal Court of Australia in City of Wanneroo v ASU, (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 Limited, (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”.
Context is of particular significance in the interpretation of industrial instruments. In Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518, Burchett J emphasised the need to have regard to relevant industrial context in another well known and often cited passage:
“The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used”.
Coverage Clause
Clause 4 of the Modern Award sets out the coverage of that Award and provides:
4.1 This industry and occupational award covers:
(a) employers throughout Australia in the industry of the provision of plumbing and/or fire sprinkler fitting services by contract and their employees in the classifications listed in Schedule B—Classification Definitions; and
(b) employers throughout Australia with respect to their employees engaged in the occupations of plumbing and/or fire sprinkler fitting classifications within Schedule B—Classification Definitions, and to those employees.
4.2 This award does not cover:
(a) an employer bound by a modern industry award that contains plumbing and fire sprinkler fitting classifications;
(b) an employee excluded from award coverage by the Act; or
(c) employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees; or
(d) employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.3 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.
4.4 This award covers any employer which supplies on-hire employees in classifications set out in Schedule B—Classification Definitions and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This subclause operates subject to the exclusions from coverage in this award.
4.5 This award covers employers which provide group training services for apprentices and/or trainees engaged in the industry, parts of industry and/or occupations set out at 4.1 and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.
4.6 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
4.7 For the purpose of clause 4.1:
(a) plumbing means plumbing, gasfitting, roof plumbing, lead burning, ship plumbing, heating, airconditioning or ventilation plumbing, irrigation installation, pipe-fitting or domestic engineering work, whether prefabricated or not, engaged on-site or in construction work or any work in or in connection with:
(i) sheet lead, galvanised iron or other classes of sheet metal or any other materials which supersede the materials usually fixed by plumbers;
(ii) lead, wrought, cast or sheet iron, copper, brass or other classes of pipework;
(iii) water (hot or cold), steam, gas, air, vacuum, heating or ventilating appliances, fittings, services or installations; or
(iv) house, ship, sanitary, chemical or general plumbing or drainage and irrigation.
(b) fire sprinkler fitting means the erection, fitting, fixing, altering, inspecting, testing, maintaining, retrofitting, overhauling or repairing of apparatus, pipes and/or fittings in and/or outside of buildings, ships or other structures for the extinguishment of fire by automatic sprinklers and/or other fire protection systems.
Clause 4.1 of the Modern Award states it is an industry and occupational award. Its coverage is expressed in two ways. The first is, relevantly, employers in the industry of the provision of plumbing by contract and their employees in the classifications listed in Schedule B to the Modern Award. The second is by reference to employers whose employees are engaged in the occupation of plumbing classifications within Schedule B. Clause 4 has the effect that the coverage is determined ultimately by reference to the classifications specified in Schedule B of the Modern award. A copy of Schedule B is set out in Appendix A to this decision.
Clause 4.1(a) specifically identifies the relevant industry as the plumbing contracting industry, qualified by reference to the relevant classifications in the classification schedule, and clause 4.1(b) specifically identifies employers by reference to their employees engaged in the occupation of plumbing, qualified by reference to the relevant classifications in the classification schedule.
Following the hearing, given the reference to “Class 3” in the applicant’s Form 5 had no equivalent in the Transitional or Modern Awards and in light of the evidence regarding the work performed by the applicant, the parties were directed by correspondence to identify which classification under the Transitional and Modern Awards was applicable to the applicant’s employment with the respondent.
On 11 May 2015, by correspondence to my chambers, the respondent stated that the relevant award was the Transitional Award and identified the applicant’s classification as “Plumbing and Mechanical Tradesperson Level”. The respondent asserted that appendix B of the Modern Award is not applicable. For reasons which I have set out earlier, it is the Modern Award that is the relevant statutory instrument governing the applicant’s entitlements at the time his employment with the respondent ceased. The respondent stated in the correspondence that the applicant was employed in the early stages as maintenance plumber and organising materials in the workshop. “He also performed administration work in the office and in the later years was mostly in the office as payroll clerk.” This statement accords with the evidence given by the applicant and the respondent so far as it dealt with the work performed by the applicant during the course of his employment with the respondent.
The applicant’s son in law contacted my Chambers requesting an extension of time with which to respond as the applicant was on a cruise. The application for an extension was refused.
Applicable classification
Courts and Industrial Tribunals have developed principles to be applied to ascertain whether an employee fits within a particular classification described in an award or agreement. Where the employee performs mixed functions, the approach has been to examine the “major and substantial employment” of the employee or the “principal purpose” or “primary function” of the employee.
In Logan v Otis Elevator Company Pty Ltd, [1997] IRCA 200 for example, Moore J referred to and applied decision of Sheldon J in Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 where his Honour observed:
“The finding of the Chief Industrial Magistrate raises two questions: Firstly, whether this is a case to be determined on the principle of major and substantial employment; and, secondly, if it is, whether the evidence justified his finding as to what the major and substantial employment of the complainant was.
It seems to me that this is clearly a case to which this principle is applicable. This principle is almost as old as industrial arbitration and it makes a practical approach to determining the application of awards where duties are of a mixed character and contain elements which have taken alone would be covered by more than one award. This is not an appropriate occasion on which to discuss the method by which this test should be applied except to say that it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration”.
The approach of examining the major and substantial employment of the employees has been applied in a range of decisions: Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia (1980) 32 ALR 541 at 556; Keen v Health Corporation Ltd (2008) 179 IR 166 at [37]-[38]; Sim v LUO Enterprise Pty Ltd (No 2) (2009) 191 IR 401 at [126]-[128].
In other decisions, there has been an examination of the “principal purpose” or “primary function” of the employee. For example, in Merchant Service Guild of Australia v J Fenwick & Co Pty Ltd,(1973) 150 CAR 99 Ludeke J said at [101]:
“To ascertain the course of the calling of particular employees, is not enough merely to make a quantitative assessment of the time spent in carrying out the various duties. In my opinion, but only should the nature of the work done by the class of employee be examined but it is equally relevant to consider the circumstances in which they are employed to do the work; if the worker is required by his employer to carry out diverse duties, the enquiry should be directed to ascertain the principle purpose for which the worker is employed ...”
The task of the Court or Tribunal is to examine the major, substantial or principal aspect of the work performed by the employee. That will include consideration of the amount of time spent performing particular tasks, but also the circumstances of the employment and what the employee was employed to do. The question is one of fact to be determined by reference to the duties actually attaching to the position, rather than its title: City of Wanneroo v Holmes (1989) 30 IR 362 at 379; Joyce v Christoffersen (1990) 26 FCR 261 at 278.
This test was also applied in Construction, Forestry, Mining and Energy Union v CSBP Limited (2012) IR 206 at [44] where the Full Court observed that in identifying the primary purpose “one does not focus upon one aspect of an employee’s work in isolation from the totality of his or her duties”. The Court then referred to Burt CJ’s comments in The Federated Engine Drivers & Firemen’s Union (WA) v Mt Newman Mining Co Pty Lt (1977) 57 WAIG 794 at 794, that not every worker who drives an engine in carrying out their employment is an engine driver, the question is whether “the worker is employed to drive an engine so that he earns his wages by doing that, or whether he is employed to do something else”, merely operating a machine so as to do the thing a person employed to do does not make them an engine driver. In Federated Clerks’ Union of Australia Industrial Union of Workers (WA Branch) v Cary (1977) 57 WAIG 585 Burt CJ said at 586:
“[i]f in substance the worker’s job is to write and the job is done when the writing has been done he is a clerk, but if in substance the writing done by the worker is but a step taken in the doing by him of something extending beyond it then he is not. The ‘substance’ of the work identifies the question as being one of degree and it indicates the answer to it will be, or may be, very much the product of a value judgment”.[4]
[4] Cary at 586 per Bur CJ.
The evidence given by the applicant and the respondent in respect of the work performed by him during his employment with the respondent was limited but consistent. I am satisfied that the evidence discloses that the applicant undertook the duties of payroll clerk or paymaster, that these were the duties required of him by the respondent and that the applicant understood and appreciated that his primary role with the respondent was as payroll clerk or paymaster. It is apparent, on the evidence, that the applicant commenced working as a maintenance plumber, however, over time he increasingly assumed the duties of payroll clerk and during the latter period of his employment with the respondent he was employed to be a payroll clerk. He may well have performed some maintenance plumbing duties in conjunction with his primary role as payroll clerk, however, his major, principal and substantial duty was that of payroll clerk/paymaster.
Schedule B of the Modern Award contains the classifications which by reason of the operation of cl. 4.1 (Coverage ) qualifies the industry and occupational coverage of the Modern Award. There is no classification in Schedule B of the Modern Award that provides for the performance of clerical/administrative duties. Each of the classifications are concerned with skills and indicative tasks in the performance of the role of a plumber and mechanical services worker only.
I am satisfied, therefore, that the applicant was not, at the relevant time, employed in or engaged in any classification within Schedule B of the Modern Award. Consequently, I find that during the relevant period of his employment with the respondent the applicant was not covered by the Modern Award.
The question then becomes which Award was the applicable Award in relation to the applicant’s employment with the respondent during the relevant period.
The Clerks – Private Sector Award 2010 (“the Clerks Award”) contains a coverage clause which provides as follows:
Coverage
4.1 This award covers employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature, and to those employees. However, the award does not cover:
(a) an employer bound by a modern award that contains clerical classifications; or
(b) an employee excluded from award coverage by the Act.
4.2 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), or employers in relation to those employees.
4.3 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.4 This award covers any employer which supplies on-hire employees in classifications set out in Schedule B—Classifications and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This subclause operates subject to the exclusions from coverage in this award.
4.5 This award covers employers which provide group training services for trainees engaged in any of the occupations set out at Schedule B—Classifications and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.
4.6 Without limiting the generality of the foregoing this award does not cover employers covered by the following industry awards with respect to employees covered by the awards:
●the Aged Care Award 2010;
●the Airline Operations—Ground Staff Award 2010;
●the Airport Employees Award 2010;
●the Alpine Resorts Award 2010;
●the Animal Care and Veterinary Services Award 2010;
●the Banking,Finance and Insurance Award 2010;
●the Black Coal Mining Industry Award 2010;
●the Business Equipment Award 2010;
●the Contract Call Centres Award 2010;
●the Educational Services (Post-Secondary Education) Award 2010;
●the Educational Services (Schools) General Staff Award 2010;
●the Fitness Industry Award 2010;
●the General Retail Industry Award 2010;
●the Health Professionals and Support Services Award 2010;
●the Higher Education Industry—General Staff—Award 2010;
●the Hospitality Industry (General) Award 2010;
●the Legal Services Award 2010;
●the Market and Social Research Award 2010;
●the Rail Industry Award 2010;
●the Restaurant Industry Award 2010;
●the Sporting Organisations Award 2010;or
●the Telecommunications Services Award 2010.
4.7 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
I have earlier found that the applicant was engaged substantially or principally in the role of payroll clerk. Consequently, I am satisfied that the applicant was engaged principally in clerical work, including administrative duties of a clerical nature: see cl 4.1.
None of the exclusions to the coverage of the Clerks Award as specified in cl. 4.1 to 4.3 and 4.6 apply in the circumstances of this matter.
I find, therefore, that the applicant was at all relevant times covered by and employed under the Clerks Award.
Redundancy
The applicant claims that he was entitled to redundancy payments upon the cessation of his employment with the respondent on 20 February 2013. His claim for redundancy payments in the amount of $8,000 is based on the entitlements under the Transitional Award. I have found that neither the Transitional Award nor the Modern Award applied to the applicant’s employment with the respondent at the relevant time. Instead the applicable award is the Clerks Award.
Clause 14 of the Clerks Award deals with redundancy and cl.4.1 states that:
14.1 Redundancy pay is provided for in the NES.
The remaining provisions of cl. 14 deal with circumstances relevant to transfer to lower paid duties, employee leaving during notice period and job search entitlements.
It is clear, having regard to the language of the clause, that an employee’s entitlement to redundancy pay under Clerks Award are to be ascertained by reference to the provisions of Part 2-2 – The National Employment Standards under the Act. Division 11, Subdivision B deals with Redundancy Pay.
Section 119(1) of the Act provides that an employee is entitled to redundancy pay in circumstances where his or her employment is terminated at the initiative of the employee because the employer no longer requires the job to be done by anyone, except when this is due to the ordinary turnover of labour or where their employment is terminated due to insolvency or bankruptcy. Section 119(2) provides for a table which sets out an employee’s entitlement.
Section 121 of the Act identifies circumstances where employees, whose employment has been terminated within the meaning of s.119 are excluded from any entitlement to redundancy pay under s.119(2). Section 121 relevantly provides:
(1) Section 119 does not apply to the termination of an employee's employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first):
(a) the employee's period of continuous service with the employer is less than 12 months; or
(b) the employer is a small business employer.
Section 23 defines what is meant by a “small business employer”. It provides:
Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.
Having regard to the evidence, I am satisfied that the respondent and it’s associated entity, Corbett Plumbing, employed fewer than 15 employees at the time the applicant says his employment was terminated on 23 February 2013.
I find, therefore, that the applicant was not entitled to redundancy pay at the time his employment ceased with the respondent.
Consequently, the applicants’ claim so far as it relates to unpaid redundancy pay is dismissed.
Annual Leave
Section 90 of the Act provides:
Payment for annual leave
(1) If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period.
(2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.
There is no dispute that the applicant was paid his annual leave from 4 July 2009 to the cessation of the applicant’s employment with the Respondent. The dispute between the parties is the amount of annual leave accrued by the applicant from the commencement of his employment to 3 July 2002.
The applicant claims he accrued 90.43 hours during this period whilst the respondent argues that the applicant accrued 73.50 hours (a difference of 16.93 hours).
The applicant says that he calculated his claimed entitlement from pay slips issued to him by the respondent. He attached to his affidavit filed 12 June 2014 (Annexure A7) a summary of annual leave he says he accrued in each week of his employment derived from the payslips he said were issued to him by the respondent. Copies of the payslips were not in evidence.
Mr Corbett deposed that on or about 18 August 2014 he engaged Helen Drummond, a former payroll clerk for the respondent to calculate the applicant’s entitlement to annual leave using the applicant’s timesheets. Annexed to his affidavit filed 15 September 2014 is a signed statement by Ms Drummond (JC – 3). The statement says amongst other things:
“I was called in by Jason Corbett on 18 August 2014, to check Russell Foulsham’s figures.
I have manually gone through Russell Foulsham’s timesheets and printed payslips as from 22 June 2009 till 20 July 2013 and worked out RDO’s and annual leave hours.”
Mr Corbett also deposes that he engaged the services of Fred Possart of Balanced Ledger Pty Ltd to double check Ms Drummond’s workings and to also look through the applicant’s timesheets and payslips to formulate spreadsheets of the applicant’s annual leave entitlements. Annexed to his affidavit (C-4) this correspondence dated 26 August 2014 from Mr Possart in which he stated:
“As part of my bookkeeping for Jason Corbett (and his companies) I was asked to work out Russell Foulsham’s Annual Leave and RDO’s entitlements as at his termination date of 18.2.13.
Using the Quick Payroll and timesheet records provided, I produced for Jason two Excel spreadsheet reports, “annual leave calculations” and “RDO Hours Calculation,” that detailed my calculator Hours Accrued as that 18.2.13 based on total hours that could be accrued less hours taken.”
Copies of the Excel spreadsheet reports referred to by Mr Possart were not produced in evidence.
At paragraph [26] of his affidavit, Mr Corbett deposes:
“The below table represents the applicant’s yearly Annual Leave entitlements, the total hours taken on the balance accrued. The applicant was entitled to 73.5 hours at the end of his employment”
The table relevantly is as follows:
A/L Entitlement
A/L Hours Taken
A/L Balance Accrued
2002-2009
73.5
Two things are immediately apparent from the evidence produced by the respondent. The first is that Ms Drummond undertook an assessment and calculation of the applicant’s annual leave entitlements for the period 22 June 2009 to 20 July 2013. The second is that, if indeed Mr Possart was engaged to check Ms Drummond’s work then that process which he states in his correspondence was recorded in an Excel spreadsheet report, was for the period 22 June 2009 to 20 July 2013. In the absence of the Excel spreadsheet report having been produced in evidence, that is the only inference available to the Court. The consequence is that, as the applicant correctly argued in his submissions, there is no explanation provided by the respondent for the calculation of the 73.5 annual leave balance accrued for the period 2002 to 2009.
As I stated earlier in this decision, the Court can only make findings in relation to evidence which is probative. There was some dispute between the parties, which was covered in cross examination, that the timesheets used by the applicant to calculate his accrued annual leave entitlements may well have been inaccurate. I am unable to find, on the evidence before me, the nature and extent of the inaccuracy and the time periods in which that is alleged to have occurred. Although, the applicant did not produce in evidence the timesheets he utilised for his summary of his accrued annual leave, the respondent did not challenge the accuracy of the summary.
Consequently, on the balance of probabilities I am satisfied that the applicant’s accrued annual leave at 3 July 2009 was, as claimed by the applicant, 90.43 hours.
The respondent made a submission that the payment of sick leave, to which the applicant was not entitled but which the respondent nevertheless paid him ought to be offset against the applicant’s claimed annual leave accrual. The respondent’s submission that there should be some set off against the applicant’s claim in relation to accrued annual leave by the payment of sick leave beyond what the applicant was entitled to is not supported by authority.
The principles applicable to determining whether payments made by an employer to an employee can be off-set against payments due under an award have been considered in a number of authorities. These authorities are discussed by Goldberg J in Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250.
After considering some five previous decisions his Honour concluded:
“These authorities make it clear that where a payment is made to an employee in discharge of an award obligation, which payment is in fact in excess of the amount of the obligation, the amount of the excess cannot be set-off against a claim in respect of a different award obligation unless at the time of the payment of the excess the employer designates that the excess is payable in respect of a purpose or an obligation different from the purpose for which the initial payment is made”.[5]
[5] (2002) 121 IR 250 at para.60.
Clearly, the purpose or obligation for which annual leave and sick leave are paid are separate and distinct. Consequently, I would not
off-set the applicant’s entitlement to accrued annual leave by any excess paid with respect to his entitlement to paid sick leave.
Having regard to the evidence, I find that the respondent breached s.44 of the Act in that it failed to pay the applicant his entitlement to accrued annual leave pursuant to s.90 of the Act. I would therefore order that the respondent pay the applicant the amount of $4,510.53, being accrued unpaid annual leave.
Personal/Carers leave
Clause 30.1 of the Clerks Award states that personal/carers leave is provided for in the NES.
Division 7 of Part 2.2 - National Employment Standards of the Act sets out employees entitlements to personal/carers leave. Section 96 provides:
(1) For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer's leave.
Accrual of leave
(2) An employee's entitlement to paid personal/carer's leave accrues progressively during a year of service according to the employee's ordinary hours of work, and accumulates from year to year.
Section 97 relevantly provides that an employee may take personal/carers leave because the employee is not fit for work due to personal illness or injury affecting the employee.
Section 107 sets out the notice requirements in relation to the taking of payment for personal/carers leave. It provides:
Notice and evidence requirements
Notice
(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.
(2) The notice:
(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and
(b) must advise the employer of the period, or expected period, of the leave.
Evidence
(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:
(a) if it is paid personal/carer's leave--the leave is taken for a reason specified in section 97; or
(b) if it is unpaid carer's leave--the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or
(c) if it is compassionate leave--the leave is taken for a permissible occasion in circumstances specified in subsection 105(1).
Compliance
(4) An employee is not entitled to take leave under this Division unless the employee complies with this section.
Modern awards and enterprise agreements may include evidence requirements
(5) A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer's leave, unpaid carer's leave or compassionate leave.
Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988 .
There was no evidence regarding the amount of personal/carers leave the applicant had accrued. For the purpose of this decision I will assume that he had accrued sufficient personal/carers leave (at 10 days each year) to cover the period in which he states he took personal leave because of an illness which rendered him unfit for work (from on or about 14 December 2009 to 5 February 2010).
The applicant’s claim is for the payment of 100 hours of sick leave which the respondent converted from paid sick leave to paid annual leave (thereby reducing the applicant’s accrued annual leave) for the period from 24 December 2009 to 18 January 2010. On the evidence before the Court it would appear that the respondent re-credited at least 38 hours which was converted to annual leave back to sick leave after the respondent returned to work (see [21] to [22] above). For the present purposes it is unnecessary to decide this point.
Having carefully considered the evidence (see [17] to [21] above), I am not satisfied that the applicant gave the respondent notice, as soon as practicable, of the period or his expected period of personal leave due to illness, as he was required to do in accordance with s.107(2) of the Act. It is apparent from the evidence, that on 18 January 2010, Mr Corbett telephoned the applicant to enquire why he had not returned to work. There is no evidence that during the conversation, the applicant informed Mr Corbett about the period of time he anticipated he would continue to be on sick leave. Rather, he informed Mr Corbett that he was not fit presently to return to work, even for alternate duties. It seems, on the evidence, that he returned to work without forewarning or notification on 5 February 2010, at which point he provided a medical certificate.
Having considered the evidence before the Court I am not satisfied that the applicant complied with s.107(3)(a) of the Act.
There is no dispute that the applicant underwent serious surgery in mid-December 2009. There is no dispute that on 18 January 2010, Mr Corbett requested the applicant to provide him with a medical certificate. It is evident that the applicant did not provide a medical certificate until he returned to work on 5 February 2010. His evidence was that he accompanied his family on their camping holiday which commenced on 26 December 2009. He stated he suffered complications after the surgery and, consequently, was unable to return to work and, moreover, he was not in a position to obtain or provide a medical certificate on an earlier date.
The question that arises is, whether the applicant gave the respondent evidence that would satisfy a reasonable person that the leave he took was because he was unfit for duty as a consequence of his illness.
It is clear from the cross examination by Mr Corbett of the applicant, that the respondent was not satisfied that the applicant took personal leave for this purpose because Mr Corbett could not reconcile the idea that the applicant was able to go away on a camping holiday and, at the same time, claim he was unfit to work.
The concept of a reasonable person is a legal term. It is difficult to provide a precise definition by reference to authorities in civil and criminal law. However, for the purpose of civil law, it is intended to establish an objective legal standard connoting, at least in the law of torts, a person of ordinary prudence, using ordinary care and skill. Whilst it presupposes an objective standard, the notion of a reasonable person nonetheless encompasses what is reasonable by reference to the words, “in the circumstances”.[6]
[6] RP Balkin and JLR Davis, Law of Torts (5th Ed) at pp.275 to 276.
I accept that the applicant underwent serious surgery and required a period of recuperation. The difficulty emerges when the applicant did not return to work after the business’ annual shut down as the respondent expected him to. The applicant said that he was not aware this was the period of shut down as he was recuperating from surgery. I have some difficulty in accepting this evidence as it is apparent that the business regularly had an annual shut down period over Christmas into the New Year. Nevertheless, at least by 18 January 2010 the applicant was aware that the period of shut down had ended, that his employer wanted him to return to work and wanted a medical certificate regarding his unfitness for work. I appreciate that the applicant wanted to be near to his wife so that she could be there to assist him. However, I find his evidence that he accompanied his family on a camping holiday completely at odds with his evidence that he was suffering complications and was unfit for work. I cannot accept that a reasonable person in his circumstances would be suffering from complications from the surgery with the associated high risks to his health and yet be able to participate in the family camping trip.
As I have observed earlier the medical certificate was not produced in evidence. Probative evidence, therefore, of the applicant’s General Practitioners opinion and/or certification regarding the applicant’s fitness for duty is not before the Court.
I find that the respondent required the applicant to provide evidence (in the form of a medical certificate) regarding his continuing unfitness for work because of his personal injury. In the circumstances, I find the applicant did not give the evidence that would satisfy a reasonable person that the leave he took was for the reason that he was not fit for work due to personal illness.
Conclusion
For the reasons set out in the judgment I make the declarations and orders set out above.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 2 June 2015
Schedule B of the Plumbing and Fire sprinklers award 2010
Schedule B—Classification Definitions
[Varied by PR988414, PR991654, PR512383, PR536408]
B.1 Key concepts and terms
B.1.1 Fields of work means a defined group of related skills and work functions exhibiting common features and aimed at providing more efficient and productive work organisation, as well as more satisfying and well paid jobs. In respect of this award the fields of work are sanitary plumbing/water supply/drainage, gasfitting, roofing and cladding, mechanical services (including airconditioning) and irrigation. The principal purpose of fields of work is to facilitate the development of training modules.
B.1.2 CPSISC means Construction Property Services Industry Skills Council. The CPSISC will be the recognised authority (for the purpose of this schedule) responsible for developing competency standards for consideration and endorsement by the National Quality Council (NQC) and the provision of advice and assistance to the State and Territory training authorities in respect of matters relating to training in the industry and callings covered by this award, including but not limited to:
competency standards;
curriculum development;
training courses;
articulation and accreditation requirements, both on and off-the-job;
on-the-job training; and
assessment and certification arrangements.
In relation to the development of standards for this award, the CPSISC may consult with other bodies or committees of a like nature to ensure that consistent standards are maintained across industries.
B.1.3 Module means a module of training as defined within the relevant National Training Package. Training Packages are flexible national products developed by industry through the relevant National Skills Council to ensure quality training outcomes and meet current and emerging vocational skill needs. They form one of the foundation stones of the national training system. Designed to support a range of training pathways, including workplace and school-based, and to provide for a more flexible approach to training delivery, they also play a critical role in underpinning Australian Apprenticeships. All Training Packages incorporate national units of competency, assessment guidelines and national qualifications.
These components, endorsed by the NQC, form the basis for the assessment of competencies attained and the issuing of related national qualifications.
B.1.4 New entrant means an employee who has never previously worked within the on-site building construction industry. If there is any doubt as to the status of an employee in this regard, the following documentation may be regarded as prima facie evidence that an employee is not a new entrant:
documentary evidence concerning registration with any of the construction industry portable long service leave schemes;
documentary evidence concerning contributions into an approved industry superannuation fund.
B.1.5 Services stream includes all fields of work principally concerned with the installation, commissioning and maintenance of services, whether performed in relation to buildings, structures or engineering projects and irrespective of when that work is undertaken in the construction process.
B.1.6 Services stream (plumbing and mechanical services and sprinkler fitting) means the skills and tasks at all appropriate levels in the classification structure which are included in the fields of work relevant to this award.
B.1.7 Streams or skill streams means a broad grouping of skills that relate to a particular phase or aspect of production. A stream may be comprised of a number of fields of work.
B.1.8 Trade certificate means a trade certificate or its equivalent relevant to the plumbing and mechanical services or sprinkler fitting industry. An employee who has a trade certificate or its equivalent which is relevant to the plumbing and mechanical services industry or the sprinkler fitting industry will be deemed to have a trade certificate for the purpose of the definition of Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level I.
B.1.9 Where it appears in the classification definition of Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 2 and above the phrase or equivalent means:
(a) any training which a registered provider (e.g. TAFE) or a State training authority has recognised as equivalent to accredited training which is recognised for these levels. This can include advanced standing through recognition of prior learning and/or overseas qualifications; or
(b) where competencies meet the requirements of the national competency standards developed by CPSISC for these levels.
[B.1.10 inserted by PR512383 from 01Jan10]
B.1.10 Employees will be eligible to move up the classification structure upon completion of the training requirements, competency based assessment or experience as specified in the classification definitions. Payment will be on the basis of the level of skills and training required to perform the work of a particular position or job offered by an employer.
B.2 Translation to classification structure
B.2.1 Existing employees will translate into the new structure as follows:
(a) Level 1(d): Sprinkler fitter’s assistant;
(b) Level 1(d): Plumber’s labourer; or
[B.2.1(c) substituted by PR512383 from 01Jan10]
(c) Tradesperson Level 1: Plumber and Gasfitter—All States, Registered Drainer—South Australia, Registered Drainer—New South Wales, Roof Plumber (SA), Roof Plumber (NSW) and all others, Irrigation Installer—All States, Drainer—Tasmania, Drainer—South Australia and First class sprinkler fitter.
B.2.2 No existing employees’ rate of pay will be reduced as a result of the implementation of the classification structure.
B.2.3 Upon translation to the new classification structure existing employees will be regarded as satisfying the requirements of the new skill level to which they translate. Such translation does not authorise an employee to perform work which requires certification or registration unless that employee holds such certification or registration pursuant to the appropriate State legislation or regulation.
B.3 Classification structure definitions
B.3.1 Work levels
(a) Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(a)
New entrant.
(b) Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(b)
After three months in the industry.
(c) Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(c)
After 12 months in the industry.
(d) Plumbing and mechanical services worker/Sprinkler fitting worker/Fire technician Level 1(d)
[B.3.1(d) renamed and substituted by PR536408 ppc 13Jun13]
A Plumbing and mechanical services worker/Sprinkler fitting worker/Fire Technician Level 1(d) is an employee who has fulfilled the substantive requirements of a Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(d) as detailed below. An employee at this level will have:
(i) successfully completed a Services Stream Certificate (Plumbing and mechanical services/Sprinkler fitting) or Property Services (Asset Maintenance), as appropriate, Certificate Level 1 consisting of 16 appropriate modules of structured training; or
(ii) obtained equivalent skills gained through work experience subject to competency testing to the prescribed standard covering the same content as the above modules of training.
An employee at this level performs work above and beyond the skills of an employee at Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(c) and to the level of their training. The following indicative tasks which an employee at this level may perform are:
assists in the co-ordination of work in a team environment or works individually under general supervision;
is responsible for ensuring the quality of their own work;
exercises discretion within their level of skill and training;
has an understanding of the construction processes within the services stream;
assists in the provision of on-the-job training to a limited degree;
works from instructions and procedures;
implements basic fault-finding and problem solving skills within the employee’s sphere of work;
measures accurately for their area of operation;
works in a safe manner;
interacts harmoniously with employees of other companies on-site or at the workplace; and
adapts to a changing work environment.
The following indicative tasks which an employee at this level may perform are subject to the employee having completed the appropriate training to perform the particular task:
erect and dismantle scaffolding;
assist with rigging;
undertake basic oxy cutting;
execute shoring/trenching;
undertake site drainage and de-watering;
assist one or more tradespersons;
safely handle waste; and
use tools, plant and equipment requiring the exercise of skill and knowledge beyond that of an employee at Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(c).
The Plumbing and mechanical services worker/Sprinkler fitting worker/Fire Technician Level 1(d) classification incorporates the following translated award classifications:
plumber’s labourer;
sprinkler fitter’s assistant.
(e) Plumbing and mechanical services worker/Sprinkler fitting worker Level 2
A Plumbing and mechanical services worker/Sprinkler fitting worker Level 2 is an employee who has:
(i) successfully completed a Services Stream Certificate (Plumbing and mechanical services/Sprinkler fitting) Level 2 consisting of 24 appropriate modules of formal structured training; or
(ii) obtained equivalent skills gained through work experience subject to competency testing to the prescribed standards covering the content of the above agreed modules of training.
An employee at this level performs work above and beyond the skills of an employee at Plumbing and mechanical services/Sprinkler fitting worker Level 1(d) and to the level of their training. The following indicative tasks which an employee at this level may perform are:
exercises good interpersonal communication skills;
exercises discretion within their level of training;
understands and applies quality control techniques;
performs work under general supervision either individually or in a team environment;
has knowledge of the four streams within the building and construction industry and how they inter-relate;
works in a safe manner;
having been given adequate written or verbal instruction, is able to control their own schedule of work and meet objectives with general supervision;
is capable of detailed measuring techniques;
interacts with and assists employees of other companies on-site or at the workplace; and
anticipates and plans for constant changes to the work environment.
The following indicative tasks which an employee at this level may perform are subject to the employee having completed the appropriate training to perform the particular task:
operating a laser when carrying out leveling;
read and interpret plans and specifications;
operate machinery and equipment requiring the exercise of skill and knowledge beyond that of an employee at Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(d); and
assist with informal on-the-job guidance to other employees to a limited degree.
(f) Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1
A Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1 is an employee who holds a trade certificate or its equivalent in the Services Stream (Plumbing and mechanical services/Sprinkler fitting) and who is able to exercise the skill and knowledge of that trade.
A Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1 works above and beyond an employee at Plumbing and mechanical services worker/Sprinkler fitting worker Level 1(d) and to the level of their training. The following indicative tasks which an employee at this level may perform are:
exercises good interpersonal and communication skills;
reads, interprets and applies information from plans;
understands and applies quality control techniques;
exercises discretion within the scope of this grade;
performs work under general supervision either individually or in a team environment;
able to perform tasks safely and be able to identify hazards within their sphere of work;
assists with informal on-the-job guidance to a limited degree;
performs non-trade tasks incidental to their work;
has knowledge of the fields of work within the Plumbing and Mechanical Services sector of the Services Stream and how they relate to the other areas of the Services Stream; and
performs work which while primarily involving the skills of the employee’s trade is incidental or peripheral to the primary task and facilitates the completion of the whole task. Such incidental or peripheral work would not require additional formal technical training.
(g) Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 2
A Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 2 is a Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1 who has successfully completed three appropriate modules in addition to the training requirements of Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1, or equivalent; or will have equivalent skills gained through work experience subject to having successfully completed a skills test equivalent to the structured training requirements for this level.
A Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 2 works above and beyond a Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1 and to the level of their training. The following indicative tasks which an employee at this level may perform are:
exercises the skills attained through completion of the training prescribed for this classification;
works under general supervision either individually or in a team environment;
understands and implements quality control techniques;
provides trade guidance and assistance as part of a work team;
exercises discretion within the scope of this grade;
has knowledge of occupational, health and safety requirements subject to the level of their training; and
reads, interprets and applies information from plans.
The following indicative tasks which an employee at this level may perform are subject to the employee having the appropriate Trade and Post-Trade training to enable them to perform the particular tasks:
exercises skills involved in fabrication, assembly, installation, repair, maintenance, testing, modifying, fault finding, design or commissioning of systems such as water supply, sanitary, waste disposal and drainage, mechanical services including heating, ventilation and airconditioning, irrigation, roofing, gas fitting or gas consumer piping systems and fire sprinkler systems, foam systems, deluge systems, CO2 systems, pumps and pump control systems, hydrants, hose reels, combined systems or explosive suppression systems.
(h) Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson—special class Level 1
A Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson—class Level 1 is a Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1 who has completed the following training requirements:
(i) successfully completed six appropriate modules in addition to the training requirements of Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1, or equivalent; or
(ii) will have equivalent skills gained through work experience subject to having successfully completed a skills test equivalent to the structured training requirements for this level.
A Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson—special class Level 1 works above and beyond a Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 2 and to the level of their training. The following indicative tasks which an employee at this level may perform are:
exercises the skills attained through completion of the training prescribed for this classification;
understands and implements quality control techniques;
provides trade guidance and assistance as part of a team;
exercises discretion within the scope of this grade;
works under limited supervision either individually or in a team environment; and
reads, interprets and applies information from plans.
The following indicative tasks which an employee at this level may perform are subject to the employee having the appropriate Trade and Post-Trade training to enable the employee to perform the particular indicative tasks:
exercise precision trade skills using various materials and/or specialised techniques;
schedule and plan work activity;
write brief reports on work activity;
have knowledge of the Australian Standards applying to their sphere of work;
recognise hazards associated with tasks in their field of work; and
exercises skills involved in the fabrication, assembly, installation, repair, maintenance, testing, modifying, fault finding, design or commissioning of systems such as water supply, sanitary, waste disposal and drainage, mechanical services including heating, ventilation and airconditioning, irrigation, roofing, gas fitting or gas consumer piping systems and fire sprinkler systems, foam systems, deluge systems, CO2 systems, pumps and pump control systems, hydrants, hose reels, combined systems or explosive suppression systems.
(i) Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson—special class Level 2
A Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson—special class Level 2 is a Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1 who has completed the following training requirements:
(i) successfully completed nine appropriate modules in addition to the requirements of Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1, or equivalent; or
(ii) will have equivalent skills gained through work experience subject to having successfully completed a skills test equivalent to the structured training requirements for this level.
A Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson—special class Level 2 works above and beyond a Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson—special class Level 1 and to the level of their training. The following indicative tasks which an employee at this level may perform are:
exercises the skills attained through completion of the training prescribed for this classification;
provides trade guidance and assistance as part of a work team;
understands and implements quality control techniques;
works under limited supervision either individually or in a team environment; and
reads, interprets and applies information from plans.
The following indicative tasks which an employee at this level may perform are subject to the employee having the appropriate Trade and Post Trade training to enable the employee to perform the particular indicative tasks:
exercises high precision trade skills using various materials and/or specialised techniques; and
exercises skills involved in the fabrication, assembly, installation, repair, maintenance, testing, modifying, fault finding, design or commissioning of systems such as water supply, sanitary, waste disposal and drainage, mechanical services including heating, ventilation and airconditioning, irrigation, roofing, gas fitting or gas consumer piping systems and fire sprinkler systems, foam systems, deluge systems, CO2 systems, pumps and pump control systems, hydrants, hose reels, combined systems or explosive suppression systems.
(j) Advanced plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1
An Advanced plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1 is a Plumbing and mechanical services tradesperson/ Sprinkler fitter tradesperson Level 1 who has completed the following training requirements:
(i) successfully completed 10.5 appropriate modules in addition to the training requirements of Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1;
(ii) equivalent accredited training, or equivalent; or
(iii) will have equivalent skills gained through work experience subject to having successfully completed a skills test equivalent to the structured training requirements for this level.
An Advanced Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1 works above and beyond a Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson—special class Level 2 and to the level of their training. The following indicative tasks which an employee at this level may perform are:
exercises the skills attained through completion of the training prescribed for this classification;
exercises discretion within their level of training;
is able to provide trade guidance and assistance as part of a work team;
understands and implements quality control techniques;
works under limited supervision either individually or in a team environment; and
reads, interprets and applies information from plans.
The following indicative tasks which an employee at this level may perform are subject to the employee having the appropriate Trade and Post-Trade training to enable the employee to perform the particular indicative tasks:
exercises high precision trade skills using various materials and/or specialised techniques;
possesses effective written and verbal skills in order to provide concise reporting and communication; and
exercises skills involved in the fabrication, assembly, installation, maintenance, testing, modifying, fault finding, design or commissioning of systems such as water supply, sanitary, waste disposal and drainage, mechanical services including heating, ventilation and airconditioning, irrigation, roofing, gas fitting or gas consumer piping systems and fire sprinkler systems, foam systems, deluge systems, CO2 systems, pumps and pump control systems, hydrants, hose reels, combined systems or explosive suppression systems.
(k) Advanced plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 2
An Advanced plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 2 is a Plumbing and mechanical services tradesperson/ Sprinkler fitter tradesperson Level 1 who has completed the following training requirements:
(i) successfully completed 12 appropriate modules in addition to the training requirements of Plumbing and mechanical services tradesperson/ Sprinkler fitter tradesperson Level 1;
(ii) equivalent accredited training, or equivalent; or
(iii) will have equivalent skills gained through work experience subject to having successfully completed a skills test equivalent to the structured training requirements for this level.
An Advanced plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 2 works above and beyond an Advanced plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 1 and to the level of their training. The following indicative tasks which an employee at this level may perform are:
undertakes quality control and work organisation at a level higher than for an Advanced plumbing and mechanical services tradesperson Level 1;
provides trade guidance and assistance as part of a work team;
assists in the provision of training to employees in conjunction with supervisors/trainers;
performs maintenance planning and predictive maintenance work within their field of work;
prepares reports of a technical nature on specific tasks or assignments as directed; and
exercises broad discretion within the scope of this level.
The following indicative tasks which an employee at this level may perform are subject to the employee having the appropriate Trade and Post-Trade Training to enable the employee to perform the particular indicative tasks:
use information from plans to identify, diagnose and solve problems related to work in a specific field;
be able to identify any deviations from plans and sketches;
schedule and plan work for a team and provide brief reports on the progress and quality of the work;
exercise skills involved in the fabrication, assembly, installation, maintenance, testing, modifying, fault finding, design or commissioning of systems such as water supply, sanitary, waste disposal and drainage, mechanical services including heating, ventilation and airconditioning, irrigation, roofing, gas fitting or consumer piping systems and fire sprinkler systems, foam systems, deluge systems, CO2 systems, pumps and pump control systems, hydrants, hose reels, combined systems or explosive suppression systems; and
exercise diagnostic skills in respect of various systems in plumbing and mechanical services.
B.3.2 Supervision definitions
(a) General supervision
Working under general supervision means an employee who:
receives general instructions, usually covering only the broader technical aspects of the work; and
may be subject to progress checks but such checks are usually confined to ensuring that, in broad terms, satisfactory progress is being made;
has their assignments reviewed on completion; and
although competent and well experienced, there may be occasions on which the employee will receive more detailed instructions.
(b) Limited supervision
Working under limited supervision means an employee who:
receives limited instructions normally confined to a clear statement of objectives;
has their work usually measured in terms of the achievement of stated objectives; and
is fully competent and very experienced in a technical sense and requires little guidance in the performance of their work.
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