Independent Education Union of Australia v Rev Vincent Nguyen, Parish Administrator trading as St Mary's Catholic Primary School, Alexandra

[2020] FWC 3983

[2020] FWC 3983

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Independent Education Union of Australia
v
Rev Vincent Nguyen, Parish Administrator trading as St Mary’s Catholic Primary School, Alexandra
(C2020/856)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 12 AUGUST 2020

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s.186(6)] – construction of enterprise agreement – meaning of ‘former position’ – meaning of ‘rate of pay applicable’.

Introduction and background

[1] Mr Adrian Cheer has been employed in the Catholic education sector since 1984 1 and is a member of the Independent Education Union of Australia (IEU). The IEU has applied under s.739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute about the salary that must be paid to Mr Cheer under the Victorian Catholic Education Multi-Enterprise Agreement 2018 (Agreement). Mr Cheer is currently the Principal of St Mary’s Catholic Primary School in Alexandra (St Mary’s Alexandra) in north-east Victoria.2 The Agreement applies to Mr Cheer in his employment at St Mary’s Alexandra. The IEU is also covered by the Agreement. The Agreement is, as the name suggests, a multi-enterprise agreement covering numerous employers in the State of Victoria which operate primary and secondary Catholic schools pursuant to policies developed by Catholic Education Commission of Victoria Ltd in relation to Catholic education in Victoria. The Agreement commenced to operate on 27 February 2019 and has as its nominal expiry date 30 April 2021. Before commencing employment as the Principal of St Mary’s Alexandra in early 2015, Mr Cheer was the Principal of St Mary’s Primary School in Mansfield (St Mary’s Mansfield),3 which is also located in north-east Victoria.

[2] The dispute as notified to the Commission named Rev Rolyn Vics, Parish Administrator trading as St Mary’s Primary School, Alexandra as the Respondent. On or about 3 July 2019 Rev Vincent Nguyen was appointed to the position previously held by Rev Vics. The agreed position of the parties is that at that time there was a transfer of business to which Part 2-8 of Division 2 of the Act applies. I agree and am satisfied that the Agreement is a “transferrable instrument”, that Mr Cheer is a “transferring employee” and that, pursuant to s.313(1) of the Act, the Agreement commenced to cover and apply to Rev Nguyen as the new employer and Mr Cheer as the transferring employee from the time Mr Cheer became employed by Rev Nguyen. In the circumstances, I have determined that it is appropriate to amend the application so that Rev Vincent Nguyen, Parish Administrator trading as St Mary’s Catholic Primary School, Alexandra is the Respondent.

[3] When Mr Cheer commenced as Principal of St Mary’s Alexandra, the Victorian Catholic Education Multi Enterprise Agreement 2013 (2013 Agreement) applied to him in that employment. The 2013 Agreement also applied to Mr Cheer’s employment as Principal of St Mary’s Mansfield immediately before that employment ended. Under the 2013 Agreement as well as under the Agreement, salaries payable to Principals of primary schools are determined through a classification structure comprising levels determined by reference to pupil enrolment numbers of the school at which the Principal is employed and increments within levels determined by experience.

[4] Immediately before Mr Cheer’s employment as Principal of St Mary’s Mansfield ended, the number of pupils enrolled at that primary school, for determining the classification level at which he was to be paid under the 2013 Agreement, was 256. 4 It is uncontroversial that this enrolment level, combined with his experience, resulted in a salary at Level 2-4 under the Primary School Principal Salary structure in Schedule 3 of the 2013 Agreement.

[5] The pupil enrolment level at St Mary’s Alexandra at the time Mr Cheer commenced as Principal was 146. 5 Clause 60.3 of the 2013 Agreement relevantly provided that:

“Primary school Principals with previous experience as a Principal appointed to a school:

(a) with an enrolment one or two levels below the previous level will be paid at the rate of pay applicable to the former position for the duration of the contract or contracts at the school with the lesser enrolment; or

…”

[6] It is uncontroversial that at that time, St Mary’s Alexandra had an enrolment one or two levels below the level that applied to Mr Cheer’s former position and that pursuant to clause 60.3(a) of the 2013 Agreement, Mr Cheer was entitled to be paid, and was paid, a salary commensurate with the former position. As noted earlier, under the Primary School Principal Salary structure in Schedule 3 of the 2013 Agreement, this aligned to Level 2-4.

[7] When the Agreement commenced operation on 27 February 2019, the 2013 Agreement ceased to operate. Clause 65.3(a) of the Agreement is in the same terms as clause 60.3 of the 2013 Agreement and it is also uncontroversial that clause 65.3(a) of the Agreement applies to Mr Cheer in his employment as Principal of St Mary’s Alexandra. Pursuant to clause 65.3(a) of the Agreement, Mr Cheer continued, until 1 May 2019, to be paid the rate of pay (or salary) applicable to the former position, which until that date, aligned to Level 2-4 of the Primary School Principal Salary structure in Schedule 3 of the Agreement

[8] The Agreement brought about some changes to the classification structure compared to that which pertained under the 2013 Agreement. So far as is presently relevant, the changes made to the classification structure for primary school Principals affected some of the enrolment numbers and classification levels assigned thereto for the purposes of determining salary. The Agreement also makes provision, relevantly, in clause 44.4 for a transition between existing classification levels pertaining to affected primary school Principals and the new levels for which the Agreement provided, with effect on 1 May 2019.

The positions of the parties

[9] Pursuant to the transitional provisions St Mary’s Alexandra purported to reclassify Mr Cheer from Level 2-4 to Level 2-5 with effect on 1 May 2019. Its rationale for doing so is said to be as follows:

“31.Clause 44.4(c) states that, ‘On 1 May 2019, Primary Principals at Level 2 with enrolment at 200-275’ were to translate to Level 3-1 of the Revised Classification Levels (emphasis added).

32. On the basis that the Old School has an enrolment of 200-275, the Applicant contended in its application that clause 44.4(c) applies to the circumstances of Mr Cheer and that he should have been translated to Level 3-1. (More is said later in this submission in relation to the Applicant’s seemingly unsettled position regarding clause 44.4.)

33. However, noting that clause 44.4 is expressed in the present tense and relates the relevant principal to a specified enrolment, the Respondents contend that on 1 May 2019 Mr Cheer was not a Primary Principal ‘with enrolment at 200-275’.

34. It was the Old School that had an enrolment of 200-275 on 1 May 2019, whereas Mr Cheer was on that date (and is still) a Primary Principal with an enrolment of 150-199, being the enrolment at the New School.

35. It is not possible to conclude that, on 1 May 2019, Mr Cheer’s position was anything other than that of a Principal with an enrolment of 150-199. That is the only conclusion that can be reached in interpreting clause 44 in accordance with the basic conventions of the English language.

36. Consequently, the Respondents’ position is that the relevant provision in Mr Cheer’s instance is clause 44.4(b) and not clause 44.4(c).

37. Clause 44.4(b) provides that Primary Principals at Level 2-4 with an enrolment at 150-199, which was (and is) Mr Cheer’s case, were to translate to Level 2-5 in the Revised Classification Levels upon their commencement.

38. Consequently, Mr Cheer was translated, properly and in accordance with clause 44.4(b), from Level 2-4 to Level 2-5 from 1 May 2019, and he has continued to be maintained on that level since then, as required under clause 65.3(a).” 6 [Underlining in original]

[10] The IEU contends that clause 44 of the Agreement is concerned with the translation of Principals and does not operate to constrain the effect of clause 65.3. 7 Although the IEU has set out a number of alternative constructions as to the relationship between clauses 44 and 65.3,8 in essence it contends that the effect of clause 65.3(a) is that the appropriate salary level to be paid to Mr Cheer is determined by first identifying the enrolment level at St Mary’s Mansfield at the time that Mr Cheer’s employment ended (256 pupils), next identifying the Principal’s level for that enrolment (that is the former position) and then identifying the rate of pay applicable to the former position. It says that since 1 May 2019 the level has been 3-1 and the corresponding rate of pay attaching to that level is the rate of pay applicable to the former position and should have been paid to Mr Cheer.9

[11] The dispute about Mr Cheer’s correct rate of pay under the Agreement is to be resolved by construing the Agreement. After consulting the parties, the question to be determined in construing the Agreement is:

Should Mr Cheer have been translated on 1 May 2019 to Level 2-5, as contended by the Respondents?

OR

Should Mr Cheer have been translated on 1 May 2019 to Level 3-1, as contended by the Applicant?

[12] Perhaps another way of expressing the question is: Having regard to the uncontroversial factual background set out above, on a proper construction of the Agreement what is the rate of pay (or salary) in Schedule 3 of the Agreement that should be paid to Mr Cheer as Principal of St Mary’s Alexandra?

Consideration

[13] The principles that pertain to the proper construction of an enterprise agreement are not in contest. Shortly stated and much like construing a statute, the construction of a provision or provisions in an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in making an enterprise agreement and in which it operates is also relevant.

[14] Clause 43 of the Agreement, which is headed “[A]ssessment of experience” relevantly directs attention to the specific provisions in relation to primary school Principals in Part 4 the Agreement. Part 4 deals, as its title suggests, with salaries and specific conditions of service of primary school Principals. Clause 64 deals with how the applicable level and salary point within the classification structure is determined when a person is first appointed to a Principal position in a primary school.

[15] Clause 65 of the Agreement deals with a second and subsequent appointment of a person as a Principal. Clause 65.1 is concerned with appointment as Principal to a primary school where the enrolment of the school is at the same level as the Principal’s previous appointment. In such a case the Principal’s salary will be maintained. Clause 65.2 is concerned with the appointment of a person as a Principal of a primary school at a higher level than the previous school at which the person was a Principal. In that case the Principal’s appointment will be at the first increment of the higher level or to the increment within the higher level which equals the existing salary, whichever is the higher, but if the Principal has been at the existing salary for 12 months or more the appointment will be to the next highest increment.

[16] It is accepted that clause 65.3 of the Agreement applies to Mr Cheer’s employment as Principal of St Mary’s Alexandra. 10 Clause 65.3 provides:

“65.3 The enrolment level is lower

Primary School Principals with previous experience as a Principal appointed to a school:

(a) with an enrolment one or two levels below the previous level will be paid at the rate of pay applicable to the former position for the duration of the contract or contracts at the school with the lesser enrolment; or

(b) with an enrolment more than two levels below the previous level will be paid at a rate no less than the highest increment two levels above that applicable to the enrolment of the new school. This will apply for the duration of the contract or contracts at the school with the lesser enrolment.”

[17] Clause 65.3 of the Agreement is concerned with the salary consequence of a person having previous experience as a Principal at one primary school being appointed as the Principal of another primary school. Pursuant to clause 65.3(a), if the enrolment level at the school to which the Principal is appointed is one or two levels below the previous level, the Principal will be paid at the rate of pay applicable to the former position for the duration of the contract or contracts at the school with the lower enrolment. Clause 65.3(b) deals with the circumstance where a person is appointed as Principal of a school with an enrolment more than two levels below the previous level. In that case the Principal will be paid at least at the rate of the highest increment two levels above that applicable to the enrolment of the new school for the duration of the contract or contracts at the school with the lower enrolment.

[18] It seems to me that the evident purpose of these provisions, discerned from the language used and the context provided by the other provisions in Part 4 of the Agreement, is to ensure that the salaries fixed, maintained and payable to Principals of primary schools reflect their experience as Principals rather than being solely determined by enrolment numbers at a school during a particular appointment. This likely serves as encouragement for Principals of larger primary schools to move to smaller primary schools without a resultant diminution in salary that might otherwise be attended by such a move.

[19] Schedule 3 of the Agreement makes provision for primary school Principal salaries as follows:

“Schedule 3 - Primary School Principal Salaries

3.1 Primary School Principals will be paid the appropriate salary in Table 3.1 with effective dates as follows:

(a) Pay rates from 1 May in any year are effective from 1 May of that year.

(b) All other pay rates are effective from the first full pay period on or after the first day of that month.

Table 3.1

Enrolment	Level	01-Oct-18	01-April-19	Enrolment	Level	01-May-19	01-Oct-19	01-April-20	01-Oct-20
700+	6-4	$180,187	$183,791	700+	6-4	$183,791	$187,467	$191,216	$195,040
	6-3	$177,609	$181,161		6-3	$181,161	$184,784	$188,480	$192,250
	6-2	$175,233	$178,738		6-2	$178,738	$182,313	$185,959	$189,678
	6-1	$172,451	$175,900		6-1	$175,900	$179,418	$183,006	$186,666
550 – 699	5-4	$170,402	$173,810	550 – 699	5-4	$173,810	$177,286	$180,832	$184,449
	5-3	$167,796	$171,152		5-3	$171,152	$174,575	$178,067	$181,628
	5-2	$165,191	$168,495		5-2	$168,495	$171,865	$175,302	$178,808
	5-1	$162,585	$165,837		5-1	$165,837	$169,154	$172,537	$175,988
400 – 549	4-4	$159,124	$162,306	400 – 549	4-4	$162,306	$165,552	$168,863	$172,240
	4-3	$157,107	$160,249		4-3	$160,249	$163,454	$166,723	$170,057
	4-2	$154,752	$157,847		4-2	$157,847	$161,004	$164,224	$167,508
	4-1	$152,454	$155,503		4-1	$155,503	$158,613	$161,785	$165,021
275 – 399	3-4	$151,545	$154,576	200 – 399	3-4	$154,576	$157,668	$160,821	$164,037
	3-3	$149,706	$152,700		3-3	$152,700	$155,754	$158,869	$162,046
	3-2	$147,868	$150,825		3-2	$150,825	$153,842	$156,919	$160,057
	3-1	$146,029	$148,950		3-1	$148,950	$151,929	$154,968	$158,067
150 – 274	2-4	$140,188	$142,992	1 – 199	2-5	$144,570	$147,461	$150,410	$153,418
	2-3	$138,448	$141,217		2-4	$141,217	$144,041	$146,922	$149,860
	2-2	$136,722	$139,456		2-3	$139,456	$142,245	$145,090	$147,992
	2-1	$134,982	$137,682		2-2	$137,682	$140,436	$143,245	$146,110
10 – 149	1-5	$134,552	$137,243		2-1	$132,460	$135,109	$137,811	$140,567
	1-4	$131,589	$134,221
	1-3	$129,863	$132,460
	1-2	$125,661	$128,174
	1-1	$124,012	$126,492

…”

[20] As noted earlier, the Agreement brought about a change to classification structure affecting, inter alia, primary school Principals. This change necessitated transitional provisions which are found in clause 44. Relevantly clause 44.4 provides:

“44.4 Transitions - Primary Principals

(a) On 1 May 2019, Primary Principals at Level 1 will translate to the revised Primary Principal classification as follows:

Existing classification & subdivision	Translation 1 May 2019 (no increment)	Translation 1 May 2019 (with increment)*
Level 1	Level 2	Level 2
1-1	2-1	2-1
1-2	2-1	2-1
1-3	2-1	2-2
1-4	2-2	2-2
1-5	2-2	2-2

*Subject to meeting the requirement of clause 44.1

(b) On 1 May 2019, Primary Principals at Level 2 with enrolment at 150-199, will translate to the revised Primary Principal classification as follows:

Existing classification & subdivision	Translation 1 May 2019 (no increment)	Translation 1 May 2019 (with increment)*
Level 2	Level 2	Level 2
2-1	2-2	2-3
2-2	2-3	2-4
2-3	2-4	2-5
2-4	2-5	2-5

*Subject to meeting the requirement of clause 44.1

(c) On 1 May 2019, Primary Principals at Level 2 with enrolment at 200-275, will translate to the revised Primary Principal classification as follows:

Existing classification & subdivision	Translation 1 May 2019
Level 2	Level 3
2-1	3-1
2-2	3-1
2-3	3-1
2-4	3-1

[21] Under these transitional provisions, a Principal of a primary school with an enrolment of 146 pupils with four years or more experience would on 1 May 2019 translate from Level 1-5 to Level 2-2. A Principal of a primary school with an enrolment of 256 pupils would on 1 May 2019 translate from Level 2-4 to Level 3-1. As is evident from Schedule 3, the effect of alterations to the primary school Principals’ classification structure was:

•  to abolish old Level 1 which applied to Principals of primary schools with an enrolment of between 10 and 149 pupils;

•  to merge these classifications with those of Principals of schools with an enrolment of between 150 and 199 pupils in old Level 2, creating a new Level 2 applicable to Principals of schools with an enrolment of between 1 and 199 pupils; and

•  to elevate Principals of schools with an enrolment of between 200 and 274 pupils to Level 3, for which the enrolment requirements altered from 275-399 to 200-399.

[22] A six-level structure (Levels 1 to 6) thus became a five-level structure (Levels 2 to 6).

[23] Returning to clause 65.3(a) of the Agreement, St Mary’s Alexandra contends that in interpreting clause 65.3(a), the words ‘the former position’, in the second line of the clause, mean the position occupied by the relevant primary school Principal immediately prior to his or her appointment to a school with an enrolment one or two levels below the previous level. 11 This much may be accepted.

[24] St Mary’s Alexandra contends the position that Mr Cheer occupied immediately prior to his appointment at St Mary’s Alexandra was classified at Level 2-4 under the 2013 Agreement. 12 It says this classification level was preserved and remained the same with the commencement of the Agreement.13 The gravamen of its contention is that the Level 2-4 position is the ‘former position’ to which clause 65.3(a) applies in the case of Mr Cheer.

[25] St Mary’s Alexandra contends that the reference to the ‘former position’ in clause 65.3(a) does not refer to a position at the old school (St Mary’s Mansfield) that has been the subject of revised classification levels that have now been introduced under the Agreement, a number of years since Mr Cheer left the old school. 14 It says that the ‘former position’ is the position of primary Principal Level 2-4 and not simply ‘Principal at the Old School’, as contended by the IEU.15 It says the ‘former position’ must be identified and defined by its classification level, as it existed when last occupied by the relevant Principal.16

[26] St Mary’s Alexandra contends that Mr Cheer never occupied the position at St Mary’s Mansfield under its revised classification Level 3 status. 17 Accordingly, it contends that the Level 3 position at St Mary’s Mansfield cannot be the ‘former position’, as referred to in clause 65.3(a).18

[27] Save for the very first proposition noted above, these contentions are rejected and for reasons I will shortly explain, clause 44.4 of the Agreement has nothing to say about Mr Cheer’s salary entitlement under the Agreement.

[28] Clause 65.3(a) is concerned with ensuring that a Principal to whom the provision applies continues to receive the rate of pay applicable to the Principal’s former Principal position when appointed to a relevantly lower level classified Principal position by reason of the school’s enrolment level. The reference in the first line of (a) to “previous level” is a reference to the enrolment level discerned from the enrolment numbers at the previous school. That assessment is made at a point in time (when the old employment ended) and remains fixed whilst ever the clause operates upon a Principal’s salary. The words “previous level” do not refer to classification level. They refer to “enrolment level” of the school (although that level is, inter alia, used to determine the classification level). So much is clear from the headings to each of clauses 65.1 – 65.3 which speak to “enrolment level” being “the same”, “higher” or “lower” as the case requires. There is also the express reference to “enrolment level” in clause 65.1. Clause 67 also speaks to “enrolment level” in the context of setting out the consequence of a change in the enrolment level during the tenure of a Principal at a school.

[29] Understanding that the reference to “previous level” is a reference to the enrolment level of the previous school at a point in time is important in determining the meaning of “former position”. That description is not of the classification which pertained to the “former position”. Rather, it describes the position of a Principal at a school with an enrolment level fixed at a point in time. In Mr Cheer’s case, the former position for the purpose of clause 65.3(a) was Principal of a primary school with an enrolment level of 256 pupils. From a classification perspective, both under the 2013 Agreement and the Agreement prior to 1 May 2019, this position fell within the enrolment band of 150-274 pupils and translated to Level 2-4 which attracted the corresponding salary.

[30] Clause 65.3(a) is ultimately concerned with what a Principal to whom the provision applies will be paid. This is determined by identifying the “rate of pay applicable” to the “former position”. Given the evident purpose of the clause earlier described, the word “applicable” seems to me to be the rate of pay that applies from time to time under the Agreement to the “former position”. Such a construction is also consistent with the evident purpose of the provision earlier noted. In Mr Cheer’s case the former position was Principal of a primary school with an enrolment of 256 pupils. The rate of pay for that former position is to be found in Schedule 3 of the Agreement. There is no dispute that for the period from the first pay period on or after 1 October 2018 until immediately before the first pay period on or after 1 April 2019, the rate of pay was $140,188.00 per annum. Thereafter and until immediately before 1 May 2019 the rate of pay was $142,992.00 per annum. These rates correspond with that which is “applicable” to the “former position” by reference to the point in time enrolment level of St Mary’s Mansfield (256 pupils) which fell within the enrolment band of 150-274 and relevantly corresponds with the classification Level 2-4.

[31] On 1 May 2019 the rate of pay applicable to Mr Cheer’s former position was the rate that corresponds with the point in time enrolment level of St Mary’s Mansfield (256 pupils) at which he was in his former position, Principal. Since 1 May 2019 that enrolment level falls within the enrolment band of 200-399. On 1 May 2019 the rate of pay applicable was $148,950.00 per annum. That now corresponded with Level 3-1 of the classification structure.

[32] Turning then to the import of clause 44.4 of the Agreement. Clause 44.4 is a transitional provision which deals with the transition of primary school Principals affected by the alteration to the classification structure. It applies to those who, at the relevant time, were classified and paid by reference to their position as Principal at a particular school. It does not operate upon a Principal whose salary is determined by other provisions of the Agreement. That is the case in respect of Mr Cheer. His salary entitlement under the Agreement is determined by reference only to clause 65.3(a) and Schedule 3. Clause 44.4 has nothing to say on the matter of Mr Cheer’s entitlement to a particular salary, which is determined by reference to the rate of pay applicable to the former position as earlier described. To the extent that St Mary’s Alexandra applied clause 44.4 in the manner earlier described, it was in my view, wrong to do so.

[33] It is necessary to briefly deal with some of the other submissions of St Mary’s Alexandra. First, as to its contention that clause 65.3(a) operates to maintain Mr Cheer’s salary, and that Mr Cheer’s salary has been maintained – first at Level 2-4 and then at the translated Level 2-5 in the revised classification levels, as required under clause 65.3(a) operating in conjunction with clause 44.4(b). 19 The provisions do not operate in conjunction with one another. Clause 65.3(a) deals with the salary entitlement of a Principal in particular circumstances who would otherwise be paid at a lower level having regard to the actual enrolment level of the school at which that person is a Principal. Clause 44.4 is transitional and operates only upon the classification movements affecting a Principal who is classified and paid in accordance with the actual enrolment levels of the school at which the person is Principal. Mr Cheer is not such a person. Clause 65.3(a) is not concerned with the wage rate applicable to the current position of the Principal, it is concerned with the rate applicable to the Principal’s former position. The provisions apply to different classes of Principal.

[34] Secondly, the construction I favour does not have the result that increases to enrolment levels at St Mary’s Mansfield would result in a windfall to Mr Cheer by receiving a reclassification for which he has no corresponding experience. This is because the former position is fixed by the enrolment level at the school at the time of Mr Cheer’s departure. That is the relevant experience which clause 65.3(a) seeks to recognise and reward through the applicable rate of pay which attaches to the former position.

[35] Thirdly, for the reasons already explained, the classification level (in this case contended to be Level 2-4) which attached to a former position at a point in time is not “the former position” for the purposes of clause 65.3(a). The “former position” is that Principal position occupied at a primary school with the enrolment level at a point in time which is the Principal’s departure date.

[36] It is unnecessary to deal with the submissions addressing whether permission should be given to St Mary’s Alexandra to be represented by a lawyer since the parties agreed that the dispute should be determined on the papers without the need for a hearing. 20 I also do not need to deal with the objection by St Mary’s Alexandra to much of the material contained in the Affidavit of Debra James as I have found it unnecessary to have regard to it. In any event the affidavit contains material going mainly to the subjective intentions of one of the bargaining representatives for the Agreement and is of no assistance in the construction exercise required to be undertaken to resolve this dispute.

Conclusion

[37] For the reasons stated the answer to the question is Mr Cheer should have been translated on 1 May 2019 to Level 3-1, as contended by the Applicant. Although more correctly, the answer is pursuant to clause 65.3(a) of the Agreement Mr Cheer was entitled to be paid the rate of pay applicable to his former position, which on 1 May 2019 was $148,950.00 per annum. This corresponds with Level 3-1 of Schedule 3 of the Agreement on that date. No orders were sought.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 26 May 2020

Respondent, 19 May 2020

Printed by authority of the Commonwealth Government Printer

<PR721391>

 1   Affidavit of Adrian Cheer at [1]

 2   Ibid at [2]

 3   Ibid at [3]

 4   Ibid at [5]

 5   Ibid at [6]

 6   Submissions in response to application for the Fair Work Commission to deal with a dispute in accordance with a dispute settlement procedure (Respondent’s submissions) at [31] – [38]

 7   Applicants (sic) Submissions at [43]

 8   Ibid at [40] – [46]

 9   Ibid at [22]

 10   Respondent’s submissions at [19]

 11   Respondent’s submissions at [23]

 12   Ibid at [24]

 13   Ibid

 14   Ibid at [26]

 15   Ibid at [27]

 16   Ibid

 17   Ibid at [28]

 18   Ibid

 19   Ibid at [50]

 20   See Rule 12(1) Fair Work Commission Rules 2013