[2021] FWC 3235

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

James Robert Creaner
v
Good News Lutheran College
(C2020/3966)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 4 JUNE 2021

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)].

[1] On 27 May 2020, Mr Creaner (applicant) filed an application pursuant to section 739 of the Fair Work Act 2009 (Cth) with the Fair Work Commission concerning a dispute with Good News Lutheran College (employer) over the application of the Lutheran Education (Victorian Schools) Multi Enterprise Agreement 2018 (agreement).

[2] Conferences were held on 16 June 2020, 5 October 2020, 14 December 2020, and 22 February 2021 with the matter remaining unresolved. I was disappointed at the lack of agreement over basic factual issues which should easily have been dealt with during those conferences. At the conclusion of the Conference on 22 February 2021, my Chambers issued Directions to the parties for submission of materials they sought to rely on in the matter along with the following agreed arbitral question”

‘Is Mr Creaner to be classified as School Officer Grade C, or School Officer Grade D under the Lutheran Education (Victorian Schools) Multi Enterprise Agreement 2018?’

[3] This required the duties and functions performed by Mr Creaner to be examined in the full context including other Grades such as B or C, and this is what submissions and evidence put related to. It was agreed that the matter would be determined on the papers. I have had regard to all submissions and evidence. It was agreed that the dispute settlement procedure in the agreement applies and that pursuant to that procedure I have the power to now determine the matter by way of arbitration where the dispute remains unresolved after a conciliation conference has been conducted by the Commission, and I so find. 1

[4] Mr Creaner put submissions in reply which went well beyond reply submissions. The Amended Directions issued by reply email on Monday, 19 April 2021 required the following:

‘The Applicant to file with the Commission and serve on the Respondent any submissions in reply by no later than close of business on Wednesday, 21 April 2021.’

[5] The material filed by Mr Creaner was not made in reply and went substantially beyond a submission in reply. In addition to the final submission, there are:

• 43 attachments which do not appear to be referenced or linked in the final submission or any other document;

• Two replies to the witness statements of Ms McAuliffe and Mr Weber;

• A second witness statement of Mr Creaner’s; and

• A further document in response to the Respondent’s Outline of Submissions.

[6] The Respondent, submits the following with respect to the additional materials filed by Mr Creaner:

‘3. The respondent does not take issue with the filing of the document titled Final Submissions.

4. With the exception of the Final Submissions, the respondent objects to all additional material filed by the applicant for the following reasons:

(a) The Amended Directed dated 19 April 2021 required the applicant to file only submissions in reply by 21 April 2021. The applicant has filed significant additional material that is irrelevant or otherwise not relied upon in his Final Submissions.

(b) This dispute has been continuing for almost one year. There is a need for the parties to conclude the dispute.

(c) The respondent continues to be the applicant’s employer. It is not conducive to a constructive working relationship for this dispute to continue for longer than absolutely necessary.

(d) The applicant’s Final Submissions do not cross reference the additional evidence he seeks to introduce. The applicant does not attempt to explain his additional evidence in any meaningful or constructive way. Admitting further evidence will not assist the Commission to determine the merits of the dispute nor will it prejudice the applicant’s case; rather, it will only serve to delay proceedings further.

(e) The applicant’s Final Submissions still fail to undertake any meaningful analysis or inquiry in relation to how the duties of the ARO role could reasonably correlate to Grade B or Grade C, and how those classification descriptions are distinguished from the Grade D classification. It also points towards a failure to interpret the classifications descriptions (and by extension, the enterprise agreement) as a whole. Admitting further evidence will not cure a failure to properly apply the relevant principles set out in paragraphs [6] to [10] of the Respondent’s submissions dated 29 March 2021 (29 March 2021 Submissions).’

[7] The employer is correct in these submissions. It is unhelpful that the applicant chooses to provide so much additional material at such a late stage in proceedings, without cross referencing or making it apparent what it relates to in some instances, or how it arises from submissions of the employer. Further, the employer is correct in that the applicant does not appear to attempt to deal with the central problem he has, which is the limited range of his functions on the evidence before me and discussed later. I note that in his second witness statement for example the applicant makes a range of allegations possibly not made in his first submission and witness statement, such as an additional person that he allegedly supervises such as Ms Shier. 2 However, Mr Weber’s evidence is that the applicant does not supervise staff,3 and Ms McAuliffe’s evidence is that Ms Shier performs some accounts receivable duties which seem to be more as a co-equal to the applicant rather than being supervised.4 There is similar evidence about other aspects of the applicant’s new claims. I refuse to admit the material objected to. Even if I had regard to the new evidence and submissions in the alternative, it does not add anything material to the conclusions I have reached. My conclusions are based on the persuasive evidence of Ms McAuliffe and Mr Weber, and documentary evidence, about the applicant’s work, and its place in the hierarchy of functions at the school. An attachment which shows that the applicant is simply performing his duties does not add anything to the matter.5

The Dispute

[8] The dispute, according to Mr Creaner, relates to his remuneration level in the agreement. Mr Creaner is of the view that the employer, through the Business Manager on 9 December 2019, agreed to increase his classification level to School Officer Grade D with back payment commencing from this date.

[9] On 23 January 2020, Mr Creaner received an email from the Business Manager titled ‘Review of Position’. Mr Creaner claims that the contents of the email was different to the agreement established on 9 December 2019 and advised that he would take the matter further with Ms Fiona McAuliffe (Principal).

[10] A meeting was conducted with Mr Creaner and Ms McAuliffe on 5 February 2020 where Mr Creaner stated that he was not seeking a review of his salary, rather he was seeking for the agreement made with the Business Manger to be maintained. Ms McAuliffe indicated the she was unaware of the discussion between Mr Creaner and the Business Manager and that she would seek further clarification.

[11] On 12 February 2020, Mr Creaner received an email from the Business Manager stating that a review of his classification level had been conducted and that it was determined that the current classification level Mr Creaner was appointed to was the appropriate level.

[12] Mr Creaner disputes the classification level determined by the employer. 6

The Agreement

The relevant clauses for consideration in the Agreement are outlined below:

“6 - Definitions

…

School Officer… means a non-teaching employee defined under cl.4.1(c) of this Agreement covered by the classification structure in Schedule I - School Officer Classification Structure to this Agreement, and includes a School Officer engaged as a School Assistant prior to 15 April 2014.

…

Clause 59 - Classifications

59.1. A School Officer, other than a School Officer engaged as a School Assistant prior to 15 April 2014, will be employed and classified according to the classification according to the classification structure set out in Schedule 1 – School Officer Classification Structure and paid not less than the minimum rate of pay in clause 60 – School Officer Rates of Pay

59.2. The classification of a School Officer engaged as a School Assistant prior to 15 April 204 is preserved from the Lutheran Education South Eastern Region Multi Employer Enterprise Agreement 2010.

…

Clause 60 – School Officer Rates of Pay

Classification	2018 $	2019 $	2020 $
Grade B
B.1	$55,690	$57,693	$59,657
B.2	$57,131	$59,131	$61,200
B.3	$58,573	$60,623	$62,745
B.4	$60,014	$62,115	$64,289
B.5	$62,897	$65,098	$67,377
Grade C
C.1	$63,376	$65,594	$67,890
C.2	$64,319	$66,570	$68,900
C.3	$65,869	$68,175	$70,561
C.4	$67,419	$69,779	$72,221
C.5	$70,519	$72,987	$75,541
Grade D
D.1	$71,379	$73,699	$76,094
D.2	$72,410	$74,764	$77,193
D.3	$73,956	$76,359	$78,841
D.4	$75,503	$77,956	$80,490
D.5	$78,594	$81,148	$83,786

…

Schedule 1 – School Officer Classification Structure

DEFINITIONS:

School Officers means all Employees as detailed in this Agreement who are not Teachers. The functions of these staff include, but are not limited to:

….

‘Administration and Finance’ School Officers who fit within this stream may include but are not limited to the following: receptionists, administrative assistants, accountants, secretarial staff, clerical staff, finance officers, public relations and marketing staff.”

Authorities

[13] The principles relating to the construction of agreements were summarised by a Full Court of the Federal Court in WorkPac Pty Ltd v Skene:

“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation ‘… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …’: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a ‘practical bent of mind’ and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” 7

[14] I also refer to and adopt the latest High Court decision in relation to the interpretation of enterprise agreements: Amcor Limited v Construction Forestry Mining and Energy Union. 8

Submissions

Submissions of Mr Creaner

[15] The appropriate documents to refer to are the Accounts Receivable Officer Role Description (Role Description) and the Agreement.

[16] On 9 April 2020, Mr Julian Denholm (Executive Director) wrote:

“The grade assigned to a role within a Lutheran School in Victoria is based on the Position Description for that role and the relevant responsibilities and dues as set out within the Position Description. The school’s and employee’s expectation of the role should be consistent with that documentation.”

[17] The Role Description under Key Responsibilities provides that the role is responsible for “manag[ing] the Accounts Receivable function…” meaning the role is responsible for the management of the Account Receivable function. This function constitutes a significant component of financial administration of the school with more than $6 million in fees and charges being made per annum.

[18] For a finance role to be classified as ‘D’, the Agreement provides:

“The School Officer Grade D will be responsible for the management of the financial affairs of the school or a significant component of the financial administration of a school”

[19] Further, the Role Description provides that salary is to be determined based on experience and qualifications. Mr Creaner’s previous roles have included, CEO, Operations Manager, Bank Manager, Business Consultant, and Financial Controller. Mr Creaner also holds an Honours Degree in Behavioural Psychology.

[20] It follows that the correct classification of the role for the Accounts Receivable Officer, as it applies to Mr Creaner, is ‘D5’.

Final Submissions in Reply by Mr Creaner 9

[21] What is required to be demonstrated is that the role is responsible for the management of a significant component of the financial administration of the College. The phrase Manage the Accounts Receivable function has a plain and ordinary meaning and requires no clarification.

[22] The Berri Principles allow for the consideration of the circumstances surrounding the establishment of the Role Description. The role was previously undertaken by the College Accountant, whose role has been renamed to Finance Manager. The Finance Manager role is classified F5. If the phrase is ambiguous, the Contra proferentem rule should apply which will result in a finding that the Accounts Receivable Officer is responsible for the management of the accounts receivable function.

[23] There are more than 1,400 debtors from 800 families. This demonstrates that the Accounts Receivable role is a significant component of the financial administration of the College. The report presented at the Business Committee of the College Council lists a number of duties pertaining to the accounts receivable function. This is demonstrative of the accounts receivable function being responsible for the management of a significant component of the financial administration of the College.

[24] With respect to the role requirement criteria in the Enterprise Agreement for the D classification, Mr Creaner submits that the below indicate why the D classification is the correct classification level:

Knowledge

• Mr Creaner’s previous roles held.

• The essential criteria contains the same wording used for the Finance Manager role

• 98.68% collection rate.

Skills

• Self-directed work.

• Strong application of techniques and use of equipment/technology.

• High levels of skill with respect to essential criteria.

• The only area where supervision may be required is for fee concession applications which account for less than half a percent of accounts receivable activity.

Interpersonal relations

• High capacity to communicate.

Complexity of role

• Demonstrated by managing the accounts receivable functions and coordinating the House Culture Program.

• Undertaking complex tasks.

• Possess broad management responsibilities.

Qualifications

• The requirement to liaise with parents and caregivers enlivens Mr Creaner Psychology Degree and has been recognised as having relevant competency in previous roles.

Supervision

• The role description confers a discretion to Mr Creaner on the methodology to be used to complete tasks.

• Mr Creaner supervises the Finance Officer.

• The House Culture Coordinator role was a coordinator position, with coordinating position having staff sit below them.

• Despite the role description not included supervisory elements, there are implied supervision duties in the role. 10

[25] With respect to tasks completed under the Key Responsibilities, Mr Creaner submits that raising the College tuition payments, liaising with parents/caregivers to establish repayment plans, and managing collection control are all indicative of Mr Creaner managing the Accounts Receivable role.

[26] Mr Creaner’s tasks undertaken within the House Culture Coordinator role also demonstrate broad management responsibility.

[27] All of the criteria to be classified for Grade D are therefore satisfied.

Mr Creaner’s response to Respondent’s Outline of Submissions

[28] Ms McAuliffe’s representation of the filing of the Respondent’s submissions is at odds with the time the document was created which casts doubt on the evidentiary materials relied on by Ms McAuliffe.

[29] The Respondent’s characterisation of Mr Creaner’s role relating to debts is misconceived as Mr Creaner is not involved in that function. This also casts doubt on the credibility of the Respondent to interpret the Enterprise Agreement.

[30] Neither Ms McAuliffe nor Mr Webers were involved in the creation of the role description. As such this brings the credibility of the witness statements into question as it is not a first-hand account of what they saw, heard, or said.

[31] The Respondent has failed to apply the Berri Principles.

[32] The Respondent’s assertion that Mr Creaner is a minor functionary is misconceived.

[33] It is irrelevant to address the appropriateness of classification C as Mr Creaner is already classified to that level. Further credibility issues arise with the Respondent characterising the role as a level B.

[34] Classification of the role can be determined simply by reference to the plain and ordinary meanings of the relevant sections of the Enterprise agreement and the Accounts Receivable role description, with previous experience being a relevant factor.

[35] While it is suggested by the Respondent that Mr Creaner is ‘inflating’ the significance of his role, Ms McAuliffe and Mr Weber take 100 and 96 words respectively in their witness statements about the role, whereas Mr Creaner uses 84 words to describe the role.

Mr Creaner’s response to the witness statement of Mr Weber 11

[36] Mr Creaner disputes the following paragraphs of the witness statement of Mr Weber and makes the following comments:

• Paragraph 57: Mr Weber provides no evidence to support his claim that the word manage ought to be (my emphasis) synonymous with a list of words that actually are not synonyms of manage. He provides no evidence that my role is substantively functional based – nor does he make any attempt to define what he means by this statement.

• Paragraph 58(b): The Debtor’s procedure attached by Mr Weber is merely the summary page of a series of much more detailed flow charts that accurately reflect the way we were handling credit management in November 2019.

• Paragraph 59: Ms McAuliffe does not supervise nor oversee Mr Creaner’s duties.

• Paragraph 61: If the role description and the duties described in it are correct then they are at least consistent with courses offered in most Australian TAFEs. Further, the person responsible for managing the accounts receivable position in the College has always held tertiary qualifications.

• Paragraph 62: The Finance Officer is the first port of call for all debtor enquiries.

• Paragraph 64: Mr Creaner refers to the debtor procedures and fee concession paragraphs in his second witness statement.

• Paragraph 65: Mr Creaner maintains that he has not prepared weekly reports since January 2020 and Mr Weber’s carelessness with his evidence on this point borders on misrepresentation.

• Paragraph 68: Mr Creaner maintains that he did not work for the College on Monday mornings between September 2017 and mid-April 2018 – making it impossible for these meetings to occur. Once again Mr Weber’s carelessness with his evidence borders on misrepresentation.

• Paragraph 70: Mr Weber asked Mr Creaner to deliver formal training sessions, asked for input to budget information, and would send him general ledger accounts and fixed asset registers when they didn’t balance.

• Paragraph 71: Mr Creaner states that it is difficult to understand how Mr Weber could characterise discussions about contractual agreements or how this dispute escalated are not relevant to this proceeding.

• Paragraph 72(a): The Enterprise Agreement 4.1.(b).(ii) specifically excludes the position of Business Manager “however named”. This provides important context when interpreting classifications. Mr Weber’s definition of manage in the sense of having broad decision making responsibility beyond the parameters of the College’s relevant policies is a hurdle that no person can jump. Mr Weber’s characterisation of my role as discussing parent’s needs, then conferring with him for decisions is not borne out by the debtor procedure documents or the fact that I make hundreds of decisions each year

• Paragraph 72(b): Mr Weber claims the signature was for a fee related concession letter in August 2019. However, all five of the fee concessions for 2019 were processed on the same day – 27 November 2019.

• Paragraph 72(c): Mr Weber wrongly attempts to limit such meetings to Learning Area Coordinators which diminishes the true scope of the training delivered. If the Credit Management Policy was redrafted by Mr Weber then the changes were purely cosmetic. The debtor procedure flowcharts are to be read in conjunction with the Credit Management Policy.

• Paragraph 72(d): Mr Weber denies Mr Creaner’s version of events but does not offer his own alternative. There is no discussion as to what he said, the objections he raised (if any) and the next steps he undertook to make.

• Paragraph 72(e): Mr Weber does not dispute the that he has never entered notes on one of our debtor’s files or communicated to me the outcome of a conversation he had with a debtor.

• Paragraph 72(f): Mr Weber had three weeks from receiving my filings in this matter in which he could have reviewed the monthly reports, checked his emails, read the minutes of finance meetings and checked with his Finance Manager to see if he may have missed any requests for meetings. Mr Weber’s flat denial of ignoring requests for meetings since January 2020 is not credible.

• Paragraph 72(g): Mr Weber does not dispute my evidence that he has, to all intents and purposes, stopped giving me work.

Mr Creaner’s response to the witness statement of Ms McAuliffe 12

[37] Mr Creaner disputes the following paragraphs of the witness statement of Mr Weber and makes the following comments:

• Mrs McAuliffe’s misrepresentation of the readiness date of the respondent’s materials cast a shroud over the rest of her evidence as Mrs McAuliffe’s witness statement is signed and dated 29 March 2021 and therefore was not ready to be filed on Friday 26 March 2021.

• Paragraphs 12 and 13: The role description presented was not in place when the dispute arose and appears to have been created to diminish the Finance officer’s accounts receivable roles and Mr Creaner’s claims to provide supervision to the Finance Officer.

• Paragraph 16: The Finance Officer monitors Mr Creaner’s emails when he is on leave and the rest of his role is covered by the Finance Manager and the Business Manager.

• Paragraphs 29 to 37: Much of Mrs McAuliffe’s evidence does not appear to be about her own experience. Mrs McAuliffe appears not to understand Mr Creaner’s role or the tasks associated with it. Mrs McAuliffe claims the word manage needs to be understood in context but does not provide any context. Mr Creaner trains all staff with budget responsibilities. Mrs McAuliffe also ignores the House Culture Coordinator role which had a significant training and development component. The accounts receivable role could not be performed by anyone without relevant industry experience. The responsibility for managing the accounts receivable function has always been held by a person with a relevant tertiary degree. Mrs McAuliffe’s characterisation of some tasks diminishes the need for the role to coordinate across multiple departments of the College and her characterisation of the role in a general sense is not true and the role has broad decision making authority than intimated by Ms McAuliffe.

• Paragraph 41: section 6 of the Credit Management Policy gives Mr Creaner broad decision-making powers. Further, Mrs McAuliffe has misrepresented an email in her evidence as an example of Mr Creaner asking for guidance when it is clear that Mr Creaner is asking Mr Weber to make a decision.

• Paragraphs 43, 46 and 49: Mrs McAuliffe provides no credible evidence as to why she considered the B grade on 12 February 2020. There is no evidence to suggest she involved LEVNT in her considerations – even though they were already investigating other misclassifications. Ms McAulliffe appears to never raised the B classification with LEVNT, nor the HR Manager or Business Manager. Mrs McAuliffe has never raised the B classification with Mr Creaner, neither did she raise it in any of the four conferences held in the Fair Work Commission to resolve the dispute. Either Mrs McAuliffe has failed to act in good faith throughout the dispute or she arrived at the position that B was the correct classification at a much later date than claimed in her witness statement.

• Paragraph 45: Mr Creaner maintains that he did not ask Ms McAuliffe to look into a change to his classification.

• Paragraphs 50 to 51: The alleged meeting on 12/2/2020 did not happen.

Additional documents filed in reply by Mr Creaner

[38] Mr Creaner submitted the following additional documents in reply which are outlined below. Many of these documents are referred to in Mr Creaner’s supplementary witness statement.

Attachment name	Description
Attachment 1	Screen shot of folder entitled Debtor Discussions from 2018
Attachment 2	Email dated 22 April re: updated debtor summary
Attachment 3a	Document entitled ‘Debtor Discussions’ as at 31-01-2020
Attachment 3b	Document entitled ‘Debtor Discussions’ as at 31-03-2020
Attachment 3c	Document entitled ‘Debtor Discussions’ as at 31-06-2020
Attachment 3d	Document entitled ‘Debtor Discussions’ as at 31-03-2021
Attachment 4a	Email dated 25 July 2017 re: admin cover week of 31 July
Attachment 4b	Email dated 24 October 2017 re: admin shifts for November 2017
Attachment 4c	Email dated 4 January 2018 re: MPC admin shifts - January
Attachment 5a	Email dated 11 December 2018 re: debtors as at 07-12-18
Attachment 5b	Email dated 3 December 2018 re: debtors as at 30-11-18
Attachment 5c	Email dated 17 December 2018 re: debtors as at 14-12-18
Attachment 5d	Email dated 27 February 2019 re: debtor opening report
Attachment 5e	Email dated 1 April 2019 re: debtors as at 29 March 2019
Attachment 6a	Screenshot of accounting system depicting concession totals
Attachment 6b	Screenshot of accounting system depicting concession totals
Attachment 7a	Email dated 7 July 2020 re: finance officer daily tasks
Attachment 7b	Finance officer tasks summary – daily – weekly – fortnightly - monthly
Attachment 8	Minutes – 15 July 2020 re: workflow during annual leave
Attachment 9	Email dated 14 November 2019 re: various debtor procedures
Attachment 10a	Fee collection procedure – accounts receivable process
Attachment 10b	Fee collection procedure – debtor invoicing
Attachment 10c	Fee collection procedure – direct debit procedure
Attachment 10d	Fee collection procedure – standard debtor procedure
Attachment 10e	Fee collection procedure – debt recovery, accounts receivable
Attachment 10f	Fee collection procedure – debt recovery, business manager
Attachment 10g	Fee collection procedure – fee assistance request, business manager
Attachment 11	2021 fees schedule
Attachment 12	Email dated 17 October 2019 re: purchase order training offer
Attachment 13	Minutes – finance meeting on 26 November 2020
Attachment 14	Email from Mr Brass re: House Culture Coordinator position
Attachment 15	Email re: House Culture Coordinator presentation
Attachment 16	Email re: usage of Mr Weber’s signature
Attachment 17	Accountant role description
Attachment 18	Email dated 8 January 2020 re: debtors as at 31-12-19
Attachment 19	Email dated 26 February 2020 re: debtor review
Attachment 20	Minutes – 4 December 2020, finance staff
Attachment 21a	Email dated 24 November 2020 re: debtor letters
Attachment 21b	Email dated 24 November 2020 re: debtor follow up, next steps
Attachment 21c	Email dated 8 January 2021 re: end of year concessions/write-offs
Attachment 22	Email dated 29 March 2021 re: respondent’s submissions
Attachment 23	Email dated 25 February 2021 re: COVID-19 related fee assistance
Attachment 24	Email dated 29 March 2021 re: FWC to Respondent, missing documents

Submissions of the Employer

[39] The role of Accounts Receivable Officer (ARO) in its business should be classified as Grade B of the Agreement.

[40] Mr Creaner is required to carry out administrative functions to help the College reduce its debt. To that end, the ARO position description sets out the following functional and indicative tasks. The ARO role is not a management position with broad autonomy, discretion and supervision responsibility and has direct reporting lines to the Business Manager and Principal of the College.

[41] Based on a benchmarking exercise the employer has undertaken the ARO role is best aligned to the Grade B classification.

[42] The administrative nature of the ARO role is consistent with a Grade B. The functional and administrative nature of the ARO role constitutes ‘operation’ of the accounts receivable function, as opposed to ‘management’ of the function. ‘Management’ is a word that appears in the Grade C descriptors, but not Grade B.

[43] While the word ‘manage’ or ‘management’ appears in the ARO role description, hat document was developed by predecessors that are no longer employed by the Respondent.

[44] The qualifications and skill required for the ARO role are highly relevant to its sophistication and complexity. Grade B (General Criteria) provides that a person “may have relevant industry experience”. Grade C (General Criteria) provides that a person “be recognised as having equivalent competency”, with reference to the tertiary qualifications. Relevant experience is not required for the Grade B classification, though it is required and contemplated for the Grade C classification.

[45] The extent to which a role is constrained by policies and procedures also differentiates Grade B from Grade C with Grade B stating ‘perform tasks in accordance with guidelines, accepted practices and school policy’ and Grade C (General Criteria), emphasizing the development of ‘new processes’.

[46] Grade C (indicative roles and responsibilities) uses the words “this will involve functions relating to the maintenance of records of creditors, debtors and receipt of revenue”. The ARO position relates to the accounts receivable function only (i.e. administrative work relating to the Respondents debts).

[47] In the alternative, the employer submits that the ARO role is covered by the Grade C classification with the extract from Grade C (Indicative Roles and Responsibilities) providing a succinct summary of the purpose of the ARO position.

[48] The ARO position has very limited overlap with the School Officer Grade D classification. Any overlap relates to ‘standards and expectations’ in the ‘General Criteria’ that are unremarkable. The remaining extract that may apply in Grade D, is a reference to the words ‘strong knowledge to competently perform role’, however this is an insufficient basis to find that the ARO role aligns with the Grade D classification.

[49] Grade C and D are distinguishable with respect to supervisory elements – which role reports to whom and which role supervises other employees. No supervision component is described in the Grade D definition with the Grade C definition (General Criteria), contains the words ‘oversight is provided’ next to the heading ‘supervision’. This implies that the Grade D classification requires autonomy and does not align with the terms of the ARO position. The words ‘may be responsible for supervising…’ in Grade C (General Criteria) are replaced in Grade D (General Criteria) with ‘responsible for providing a direct line of supervision…’. The latter stipulates responsibility for supervision as an explicit requirement of the classification.

[50] The difference in pay between each of Grades B, C and D, are significant which suggests a significant qualitative change between the duties and responsibilities of one classification and the next.

[51] Grade D cannot apply to the ARO role as the applicant is not ‘responsible for the management of the financial affairs of the school’ and is not ‘responsible for the management of… a significant component of the ‘financial administration of a school’. ‘Significant component’ cannot mean the accounts receivable function in isolation. Further, the Applicant cannot have ‘responsibility’ as contemplated under Grade D in this sense because the accounts receivable duties are in part shared with the Finance Officer position.

[52] Mr Creaner’s submissions adopt a narrow interpretation of the Agreement in relation to how the duties and responsibilities of the ARO position correlate to the relevant classification descriptions. Additionally, the submissions place emphasis on previous experience, however the role does not require any formal qualifications or sophisticated business or commercial experience. Mr Creaner is simply inflating the significance of the ARO role without undertaking benchmarking the functions of the ARO role within the Agreement classifications.

Submissions in Reply of the Employer

[53] With the exception of the Final Submissions, the respondent objects to all additional material filed by the applicant, as:

• Mr Creaner has filed a significant amount of additional material.

• There is a need for the dispute to resolve the dispute in a timely manner.

• The Final Submissions do not reference the additional materials in a meaningful way and they will not assist the Commission, nor will it prejudice Mr Creaner if they are not accepted.

[54] Mr Creaner’s submissions fail to consider how other classification descriptors may assist in the interpretation of Grade D.

[55] It is not sufficient to show that Mr Creaner is responsible for the management of a significant component of the financial administration of a school for the purposes of being allocated to Grade D. The assessment requires a review of descriptors contained under both headings titled “General Criteria” and “Indicative Roles and Responsibilities”.

[56] The mere management of something will not be enough to attract classification D. A significant component does not mean one isolated aspect of the respondent’s financial administration.

[57] While the role states that it will be responsible for managing the accounts receivable function, it needs to be read in context of the Key Responsibilities under Reporting.

[58] The words manage the accounts receivable function do not have a plain and ordinary meaning. Used within the meaning of the role it includes an overarching or ‘umbrella’ expression used to encapsulate the functional and task based duties and Mr Creaner does not have significant autonomy, discretion or supervision responsibilities

[59] The Accounts Receivable Officer is not similar to the College Accountant or Finance Manager.

[60] Use of the ‘contra proferentem’ principle is misconstrued or misapplied and no issue of ambiguity arises on the facts, nor is it identified how or why an ambiguity arises.

[61] The submissions put forward by Mr Creaner with respect to the accounts receivable function being a significant component of financial administration do not incorporate the requirement of responsibility for management.

[62] Tuition revenue has no bearing on the managerial responsibility of the role.

[63] The report presented at the Business Committee of the College Council does not refer to the accounts receivable function, it is not a priority for the report, and the reference to a collection percentage of 98.68% of 2020 tuition fees is not a reference to the Applicant’s responsibility or competency.

[64] The essential criteria for the role do not set out the minimum standards in any given role. Experience is preferred for the role but not required, and tertiary qualifications is relevant for other roles qualifies the differences between the roles. Mr Creaner’s submission taken from this view is narrow, selective and self-serving.

[65] The role does not require strong knowledge, rather it requires well-developed knowledge or a high degree of technical or applied knowledge.

[66] The existence of debtor’s procedure points to limitations and controls over Mr Creaner.

[67] Mr Creaner at various points throughout his submission appears to exaggerate the complexity of the accounts receivable role in the relevance his tertiary qualifications have when liaising with parents/guardians and is not recognised as having equivalent competency.

[68] Mr Creaner concedes at one point in the Final Submission that there are times where certain tasks are allocated to him that would create a supervisory relationship with the Finance Manager. At all times, the Accounts Receivable Role is supervised by the Finance Manager.

[69] Mr Creaner provides no basis to demonstrate that he supervises the Finance Officer and the interplay the two roles share is that of collaboration, not supervision. The Accounts Receivable Role is not required to supervise the Finance Officer.

[70] The role of ARO in the College’s workplace should be covered by Grade B of the Agreement.

Consideration

[71] Mr Creaner claims that he should be classified as a School Officer Grade D. For a finance role to be classified as ‘D’, the following classification test must be met:

‘The School Officer Grade D will be responsible for the management of the financial affairs of the school or a significant component of the financial administration of a school’ 13

[72] The Agreement provides the following general criteria with respect to the role requirements for a Grade D classified School Officers: 14

‘Grade D

Role Requirements	Standards and Expectations
Knowledge	Strong knowledge to competently perform role
Skills	Is self directed and responsible for own work standards Strong application of technique and use of equipment and technology to perform tasks Exercise very high level of skills and expertise Works alone and with minimal supervision
Interpersonal Relations	High capacity to communicate and engage with people
Complexity of Role	Manages and/or co-ordinates large and/or complex administrative functions or provides critical and highly specialised support to education programs Undertakes complex tasks Will have broad management responsibilities and accountabilities May be responsible for the training and development needs of self and other staff
Qualifications	Will hold a relevant Associate Degree/ Advanced Diploma with significant relevant experience or Will hold a relevant trade qualification with appropriate and relevant experience or May hold relevant tertiary qualifications to three (3) or more years of fulltime study (degree/bachelor level) with relevant industry experience and proficient expe1iise or Be recognised as having equivalent competency by the Employer
Supervision	Expected to work with limited guidance and direction Responsible for providing a direct line supervision for other staff’

[73] Mr Creaner 15 finds some support for this submission in the Role Description for his position, which provides under Key Responsibilities that the role is responsible for ‘manag[ing] the Accounts Receivable function…’. He seeks to draw from this that the role is responsible for the management of the Account Receivable function. He says that this function constitutes a significant component of financial administration of the school with more than $6 million in fees and charges being made per annum. He quotes Mr Denholm on the importance of the Role Description.

[74] However this Role Description must be seen in the full context of the facts and his role. Ms McAuliffe, the principal, gave evidence that:

‘29. Mr Creaner (or 'Jim' as he is referred to in the office) is currently employed by the College in a full time capacity as ARO. His original contract of employment (dated 24 May 2018) and most recent variation letter (dated 13 February 2020) is attached to this statement and marked "Attachment SA" and "Attachment SB" respectively.

30. Mr Creaner first commenced with the College on 26 June 2017 in a casual capacity (this was the date of his first shift), though over time has progressively increased his hours. He commenced full time employment on 17 February 2020.

31. In Mr Creaner's role as ARO, he primarily carries out administrative functions to help the College clear outstanding debt. This is consistent with the terms of his position description set out below (specifically- I refer to the sections under the headings 'Reporting' and 'Key Responsibilities' in Attachment 5)

Reporting

• Perform the various financial accounting functions associated with the administration and collection of accounts receivable and other related accounting tasks in order to accurately account for all transactions carried out

• Credit management and control

• Manage the Accounts Receivable function including:

- raising the College tuition accounts

- liaising with parents/caregivers to establish repayment plans

- establishing and managing control collections in a manner designed to reduce the risk of exposure of the College to bad debts and to maximise cash flow

- liaising with Debt Recovery agents when necessary

Planning

Assist the Business Manager with the implementation of accounts receivable objectives and strategies to contribute to the effective commercial management of the College

32. The reference to the word 'manage', however, in the position description should be understood in context. Mr Creaner's role is functional based. He is responsible for carrying out discrete tasks that are incidental to the duties set out in his position description and relevant to the accounts receivable function of the College. He is not a 'manager' or 'supervisor' of any employee at the College for example. He has limited decision making responsibility and the extent of this authority is controlled and limited by College policies, and the direction of the Business Manager and Principal.

33. He is not responsible for training or developing other employees of the College (though from time to time he may explain to teaching staff the process involved in raising a purchase order in 'Synergetic' - the College's financial management software).

34. The role of ARO does not require a qualification. Relevant industry experience is preferable but not a requirement.

35. Mr Creaner's day to day duties are primarily task based, and include:

(a) Raising College tuition invoices (through use of Synergetic);

(b) Sending College tuition invoices to parents;

(d) Keeping a list of bad debtors;

(e) Liaising with parents regarding payment of fees.

36. In practical terms, Mr Creaner regularly has telephone discussions with individual families and parents of students at the College about their financial circumstances, puts suggestions for repayment plans to the Business Manager, and incorporates repayment agreements into letters that are drafted by Mr Creaner, but signed by Mr Weber.

37. Mr Creaner has responsibility to establish repayment plans in accordance with item #6 of a 'Debtors Procedure', attached to this statement and marked "Attachment 9". The Debtors Procedure authorises Mr Creaner to "Accept repayment agreements that clear all fees within 12 months- provided a direct debit is held for the full amount of the agreement".

38. Mr Creaner can approve the limited extension of fee payments by parents. Any other extensions need to be approved by Mr Weber in consultation with the Principal. This is consistent with paragraphs 13, 14 and 15 of the Credit Management Policy, attached to this statement and marked "Attachment 10" (extracted below):

13. The Accounts Receivable officer may:

• Approve an extension to the due date for the outstanding Tuition Fees until the end of each Term for tuition fees due in either Terms 1, 2 or 3;

• Approve extensions in Term 4 up until the end of week 7; and/or

• Waive or delay the application of a late payment fee.

14. The Business Manager, in consultation with the Principal, may:

• Grant extensions to overdue Term Tuition Payments until the due date of the following Term's Tuition payment;

• Write-off as bad debts 'stale' debt that has previously been flagged to the Business Committee as unrecoverable;

• Waive Tuition fees up to the limit of a Term's fees, up to a limit of One Tenn's Fees per year

• per School Fee Account at the end of Term 3, if the criteria of Fee Assistance has been satisfied;

• Waive Fees in Lieu for fee accounts in arrears when the parent is withdrawing the student for financial reasons; and/or

• Extend payment terms for up to 12 months for families that have prior year balances owing.

39. Mr Creaner does not have the authority to write off bad debts or to waive tuition fees by parents - these actions can only be approved by Mr Weber in consultation with the Principal. I refer to paragraph 14 of the Credit Management Policy (above).

40. Mr Creaner may from time to time liaise with debt recovery agents. However, Mr Weber determines that the referral to a debt recovery agency is necessary and approves any action taken by the debt recovery agents at each step of the process. I refer to paragraph 9 of the Credit Management Policy:

9. Where the Parent I Guardian "fails to co-operate" with the payment of the College Fees, the Business Manager, in consultation with the Principal, will be asked to consider a future course of action, which may including referral of the outstanding debtor balance to a third party debt collector and I or suspension of a student's enrolment. Failure to co-operate includes:

- Non-payment of fees on a Term by Term basis;

- Failure to respond to requests for contact or meetings;

- Failure to attend a scheduled meeting (without reason); and/ or

- Continued breaches of agreed payment arrangements.

41. All school fee accounts are required to be monitored and followed up, where necessary, throughout the school year by the ARO. Where a school fee account remains outstanding without appropriate resolution, Mr Creaner will refer this to the Business Manager for discussion and action. To illustrate, Mr Creaner will send emails to Mr Weber and I frequently regarding parent correspondence, instructions on how to respond, decisions in respect of fee remissions etc. An example of Mr Creaner requesting guidance from Mr Weber (copying myself and the Finance Manager in) on how to proceed with an application for fee assistance is attached to this statement and marked "Attachment 11"’

[75] The offer of employment to Mr Creaner dated 24 May 2018 provides that Mr Creaner is answerable to Mr Weber:

‘In your role as Accounts Receivable Officer you will be directly responsible to the Business Manager for your proficiency and personal conduct’

[76] The Accounts Receivable function is described as follows:

‘KEY RESPONSIBILITIES

Reporting

• Perform the various financial accounting functions associated with the administration and collection of accounts receivable and other related accounting tasks in order to accurately

• account for all transactions carried out.

• Credit Management and Control

• Manage the Accounts Receivable function including:

• raising the College tuition accounts;

• liaising with parents/caregivers to establish repayment plans;

• establishing and managing control collections in a manner designed to reduce the risk of exposure of the College to bad debts and to maximise cash flow;

• liaising with Debt Recovery agents when necessary.

Planning

• Assist the Business Manager with the implementation of accounts receivable objectives and strategies to contribute to the effective commercial management of the College.

Essential Criteria

The Accounts Receivables Officer will possess the following:

• Relevant experience in a similar role;

• A working knowledge of the relevant financial accounting regulations, standards policies combined with a demonstrated ability to interpret and apply them;

• Demonstrate strong planning, organisational, negotiation and team work skills;

• Well-developed computer skills in the areas of computerised accounting systems, spread sheets and other associated computer software;

• Well-developed communication skills including reporting and letter writing.

Other

• Contribute to the administration function of the College.

• Provide support for other members of the finance department.

• Participate in meetings, training, workshops, etc.

• Other duties as directed by the Principal and/or Business Manager.’ 16

[77] The Credit Management Policy provides 17 as follows:

‘13. The Accounts Receivable officer may:

• Approve an extension to the due date for the outstanding Tuition Fees until the end of each Term for tuition fees due in either Terms 1, 2 or 3;

• Approve extensions in Term 4 up until the end of week 7; and/or

• Waive or delay the application of a late payment fee.

14. The Business Manager, in consultation with the Principal, may:

• Grant extensions to overdue Term Tuition Payments until the due date of the following Term's Tuition payment;

• Write-off as bad debts 'stale' debt that has previously been flagged to the Business Committee as unrecoverable;

• Waive Tuition fees up to the limit of a Term's fees, up to a limit of One Term's Fees per year per School Fee Account at the end of Term 3, if the criteria of Fee Assistance has been satisfied;

• Waive Fees in Lieu for fee accounts in arrears when the parent is withdrawing the student for financial reasons; and/or

• Extend payment terms for up to 12 months for families that have prior year balances owing.”

[78] Consistent with this, Mr Creaner wrote to Mr Weber asking for his response to an application for relief of fee payments, 18 which is consistent with his functions as not being in charge of applications for fee waivers, but rather performing ancillary functions, with the decision made by Mr Weber.

[79] Mr Weber gives similar evidence. He says that Mr Creaner is in the ‘Finance Team’, along with himself and three others. 19 The Finance Team are a part of the whole school structure set out in Attachment 1 to his statement. He sets out his functions, which include managing cash and cash flow and monthly reports to council, preparation of the annual College budget and long-range capital and operating projections, including operational efficiency reviews, meeting audit requirements and preparation of financial statements, preparing a schedule of tuition fees, provide an annual summary of fee concessions to the Business Committee, manage debt servicing and fee remission arrangements, as per College policies and procedures, arrangements concerning investments, loans, bank overdrafts, oversee the production of payroll, salary sacrifice arrangements and other deductions in which the College operates, undertake financial analysis and performance assessment to assist the learning program of the College, interpret and apply industrial awards and enterprise agreements in conjunction with the Principal, supervise the purchasing procedures in the College ensuring that the cost effectiveness is a high priority, be responsible for the employment conditions and contracts of all staff (in conjunction with the Principal), and coordinate any building projects associated with the development of the College including negotiating with architects, professional consultants, buildings and subcontractors. These are significant duties compared to, for example, Mr Creaner’s functions.

[80] After setting out his functions concerning finances, he describes Mr Creaner’s functions as follows:

“55. Mr Creaner is employed by the College in the position of Accounts Receivable Officer.

56. His position description is attached to this statement and marked "Attachment 6". The duties and responsibilities listed under the heading "reporting" are, in my opinion, accurate.

57. I will clarify that the word 'manage' in this section (e.g. as it relates to 'manage the accounts receivable function', 'credit management', and 'managing control collections') ought to be synonymous with the words 'do', 'operate', 'perform' or 'carry out'. Mr Creaner's role is substantively functional based. Mr Creaner does not have 'management' responsibilities in the sense that he is autonomous or independent, has supervision of staff or has broad decision-making power.

58. Mr Creaner's responsibilities are constrained by a number of the College's policies in place, including:

(a) Credit Management Policy (attached to this statement and marked "Attachment 7"; and

(b) Debtors Procedure (attached to this statement and marked "Attachment 8").

59. Mr Creaner's duties are supervised or overseen by the Principal and I.

60. In my opinion, Mrs Nguyen has also become an informal supervisor to Mr Creaner, though this is not specifically written into Mr Creaner's position description (I discuss this in more detail below).

61. The Accounts Receivable Officer role does not require any formal qualifications.

62. In summary, Mr Creaner is the first 'port of call' in relation to the collection of debtors from the College's perspective. That is, if a parent cannot pay their termly tuition fee, Mr Creaner is the first person that the parent typically speaks with.

63. For example, in the event a parent has not paid their tuition invoice, the usual protocol is for Mr Creaner to follow the parent up with an informal text message first, and then, to the extent it remains unpaid, communicate with the parent about any arrangements they could afford.

64. Mr Creaner will then approach myself with a proposed fee concession form to discuss the parent's circumstances. The fee concession form is completed by the parent and reviewed by Mr Creaner to ensure all the required information has been completed. This is then passed on to myself for review.

65. In accordance with item 7 of the Debtors Procedure, each week, Mr Creaner prepares a report (in the form of an excel spreadsheet), that summarises the debtor position of all parents who have an outstanding account. For individual parents who have more than one term owing in respect of their tuition fees, Mr Creaner summaries their ability to pay the balance outstanding based on what he knows about their financial position at the time and in some circumstances, proposes a course of action. I review that recommendation, and Mr Creaner and I will then discuss how the College should proceed.

66. If I agree to discount a parent's tuition fee, Mr Creaner will write a letter that confirms that agreement, although I am the signatory to the letter. Mr Creaner then delivers the letter to the parent. Examples are attached and marked "Attachment 9".

67. All decisions concerning tuition discounts or writing off bad debts are ultimately made by myself, in conjunction with the Principal and the Business Committee of the College Council, in accordance with section 14 of the Credit Management Policy.

68. Between September 2017 to August 2019, Mr Creaner and I would meet regularly on Monday mornings (i.e. weekly) to discuss debtors. In August 2019, the College experienced significant changes at the executive level (including the former Principal, Mr Simon Hughes, whom had taken a period of sabbatical leave for 3 months).

69. Around that point in time, I had a conversation with Mrs Nguyen (Finance Manager), to ask her to play a greater role in supervising the Accounts Receivable Function, given that I would be 'pulled in other directions' following the executive changes. I felt at the time that Ms Nguyen, as the Finance Manager, had helpful skills and commercial experience to assist in this function, for example, with decisions relating to fee reductions and write-offs (plus it would ease my workload). Mrs Nguyen said to me that she would assist with the accounts receivable function, which did fall in line with her position description. No formalities were put in place, although, for example, she started receiving a copy of reports in respect of Debtors to also recommend what action needed to be taken on certain families who fell into arrears for their tuition payments. As an example, attached (and marked "Attachment 10") is an email from Mr Creaner to Mrs Nguyen (copying me in) enclosing a copy of a Debtors Report. I still made and continue to make decisions on what action is taken for parent's tuition fees.

70. Mr Creaner is employed by the College on a full-time basis, although the Accounts Receivable Function doesn't keep him at full capacity. Over the years I've asked him to assist with other administrative functions as well, such as:

(a) Purchasing assistance with staff;

(b) Inputting budget information into Synergetic; and

Responses to Mr Creaner's Witness Statement

71. The vast majority of Mr Creaner's evidence seems to relate to subject matters that are not relevant to this proceeding (for example, alleged contractual agreements, a chronology detailing how Mr Creaner escalated this dispute, and implications of bullying and exclusion).

72. However, I take this opportunity to clarify some aspects of Mr Creaner's evidence (all references to 'paragraphs' below are paragraphs in Mr Creaner's witness statement dated 8 March 2021 }:

(a) As to paragraph 24, the 'buck' ultimately stops with me with regard to the Accounts Receivable Function. That is, I am accountable to the Principal and the College's Council for the collection of tuition fees from Parents of the College. Mr Creaner carries out functional tasks that are incidental to his position description. He 'manages' the accounts receivable function in the sense that he carries out operational duties to facilitate the administration and collection of the College's accounts, but he does not 'manage' it in the sense that he has broad decision making responsibility beyond the parameters of the College's relevant policies (such as the credit management policy). Ultimately, a significant component of Mr Creaner's role is to liaise with parent's to discuss what their financial needs are, and confer with me in relation to what decisions can be made on behalf of the College.

(b) As to paragraph 26, Mr Creaner asserts that I emailed him a copy of my digital signature. I did this on the 19 August 2019. The reason for sending this through to him was so that he could attach the signature to a fee related concession letter that I had verbally agreed to. It was not provided to him as a blanket to apply to all fee related letters on my behalf and is evidenced by the majority of letters after this time being hand signed by myself before being sent to families who have requested formal fee concessions. Mr Creaner, as far as I am aware, did not send any letters using my digital signature without my approval (and if he did so, this was outside of this authority).

i. Mr Creaner refers to 'budget stakeholders'. Stakeholders in this context likely means learning area coordinators who have been given a budget to spend on teaching and learning resources.

ii. Mr Creaner refers to 'delivering staff training'. This relates to assisting Learning Area Co-Ordinators with purchase orders through use of the College's Student Management System. He assists such staff to ensure these purchase orders are correct before the orders are sent to suppliers.

iii. Mr Creaner refers to 'preparing policy documents'. This likely relates to the preparation of the credit management policy, that I asked him to assist with. As the policy directly affected his role, I asked him to prepare a draft of this policy. It then was redrafted (substantially) by myself before being approved at a Council Meeting in November 2019.

(d) As to paragraphs 29 to 34, I categorically deny reaching any agreement with Mr Creaner concerning an increase to his salary and/or classification under the Enterprise Agreement. Mr Creaner's position is entirely inconsistent with the content of the email communication he delivered to me on 9 December 2019 (after our meeting on that date), which expressly states that he "requested" an increase to his classification. After this meeting, I asked Mr Creaner to email me the contents of the discussion and his email accurately reflects the discussion points raised. I did not verbally or otherwise approve his request for Grade D Level 5 in this meeting or at any other time and his email accurately reflects this.

(e) As to paragraph 86, I admit that Mr Creaner liaises with individual parents more frequently than I do. That is consistent with his position description. It is not true that I have only met with one parent "ever". I have had approximately a dozen individual meetings with parents during my time here in relation to fee concession requests and numerous phone calls to parents to discuss their particular fee-related circumstances

(f) Paragraph 88 is flatly denied. I do not recall Mr Creaner delivering me multiple 'requests' for a meeting in recent memory that I have allegedly ignored. To the best of my understanding, I respond to or action all emails that Mr Creaner forwards to me. I suggest that Mr Creaner may expect a quicker turnaround time (and I may have been delayed in responding to some emails due to other work-related commitments), but the allegation that I ignore them is simply untrue. I do not have "30" (or any as I understand), emails from Mr Creaner that I have ignored and not responded to.

(g) In relation to paragraph 90, the work that has been given to Mr Creaner before and after this proceeding has not changed. He is still undertaking the same work as he was doing previously for the College.”

[81] This is consistent with for example the Credit Management Policy. There is little to support Mr Creaner’s submissions, other than the use of the word ‘manage’ in the position description. That, with respect, must be read in the full evidentiary context, including the Credit Management Policy, and the chart of functions 20, and the accounts of his responsibilities given by Ms McAuliffe and Mr Weber. I accept the evidence of Ms McAuliffe and Mr Weber where it conflicts with that of Mr Creaner including on the issue of whether or not Mr Weber gave Mr Creaner to understand that a different pay level, School Officer Grade D, was agreed.21 Mr Weber gave evidence that this was not agreed. Overall their evidence appears more consistent with other evidence which I have quoted. In relation to the issue of qualifications, as Ms McAuliffe gave evidence,22 the position does not require any specific qualifications.

[82] The previous role of the College Accountant 23 is of little or no assistance. The job is to ascertain the work that Mr Creaner performs or is authorised to perform. Even if the accounts receivable function is a significant function in some sense such as the financial amounts,24 Mr Creaner has limited responsibility for it, as previously discussed. There is no implied function of supervision in Mr Creaner’s contract,25 and I prefer the evidence of Mr Weber26 on this point. Mr Creaner accepts that when Ms Nguyen ‘tasks’ him with a role she supervises him,27 which is supported by Mr Weber,28 but there is no corresponding evidence supporting his claim of supervision by him of Ms Nguyen, even though I am sure there is the usual give and take and supporting each other which is common to any working employment relationship and workplace. Mr Creaner makes claims29 about the House Culture Coordinator role, but this is a new claim not dealt with in his initial submissions or arising in reply, is somewhat vague, and provides little support for this claims about significant responsibilities.

[83] On the material before me Mr Creaner appears to have little autonomy, or the autonomy is limited. As the employer submitted, his role is not a management position with broad autonomy, discretion and supervision responsibility and has direct reporting lines to the Business Manager and Principal of the College. The duties described by Ms McAuliffe are limited in nature, and have little significant discretion or autonomy:

‘35. Mr Creaner's day to day duties are primarily task based, and include:

(a) Raising College tuition invoices (through use of Synergetic);

(b) Sending College tuition invoices to parents;

(d) Keeping a list of bad debtors;

(e) Liaising with parents regarding payment of fees.

[84] The last function could conceivably involve some degree of significant autonomy, although it does not in the case of Mr Creaner. If it was the case that Mr Creaner had the authority to approve the unlimited extension of fee payments by parents (Ms McAuliffe, paragraph 38), to write off bad debts or to waive tuition fees by parents (Ms McAuliffe, paragraph 39), the power to refer matters to a debt recovery agent without Mr Weber’s consent, and to approve any action taken by the debt recovery agents (Ms McAuliffe, paragraph 40), there might conceivably be some argument that Mr Creaner was responsible for a significant function.

[85] However, Ms McAuliffe has given persuasive evidence that he does not do any of these things (Ms McAuliffe paragraphs 38-40). As Mr Weber said:

‘67. All decisions concerning tuition discounts or writing off bad debts are ultimately made by myself, in conjunction with the Principal and the Business Committee of the College Council, in accordance with section 14 of the Credit Management Policy.’

[86] Mr Creaner is part of the Finance Team, and his functions are limited. He does not for example perform the functions performed by Mr Weber, although from time to time he may assist in these functions, which include managing cash and cash flow and monthly reports to council, preparation of the annual College budget and long-range capital and operating projections, including operational efficiency reviews, meeting audit requirements and preparation of financial statements, preparing a schedule of tuition fees, provide an annual summary of fee concessions to the Business Committee, manage debt servicing and fee remission arrangements, as per College policies and procedures, arrangements concerning investments, loans, bank overdrafts, oversee the production of payroll, salary sacrifice arrangements and other deductions in which the College operates, undertake financial analysis and performance assessment to assist the learning program of the College, interpret and apply industrial awards and enterprise agreements in conjunction with the Principal, supervise the purchasing procedures in the College ensuring that the cost effectiveness is a high priority, be responsible for the employment conditions and contracts of all staff (in conjunction with the Principal), and coordinate any building projects associated with the development of the College including negotiating with architects, professional consultants, buildings and subcontractors. These are significant duties compared to, for example, Mr Creaner’s functions.

[87] Mr Creaner performs his limited functions working to the direction of the Business Manager, and the Principal, or a combination of them 30. He does not supervise staff31. He does not make final decisions in relation to waiver of fees except in very limited respects. As the employer submits, Grade D cannot apply to the ARO role as the applicant is not ‘responsible for the management of the financial affairs of the school’ and is not ‘responsible for the management of… a significant component of the ‘financial administration of a school’. ‘Significant component’ cannot mean the accounts receivable function in isolation. Further, the Applicant cannot have ‘responsibility’ as contemplated under Grade D in this sense because the accounts receivable duties are in part shared with the Finance Officer position, and the Principal also has a role in relation to for example waiver of fees.

[88] It is important that Mr Creaner understand and accept his place in the hierarchy of the school and the financial accounts function, and not fixate for example on the use of one word in the position description, ‘manage’, and claims about supervision and a few other matters that are, with respect, not supported by anything to any great extent beyond his own claims and are contradicted by other evidence set out above. Individual grievance matters are often difficult and lengthy beyond what the evidence and submissions actually disclose as real issues, and this may unfortunately be one of those matters. Discussions should have led to agreement about all or most of these issues but did not. The employer then had to put submissions and evidence about claims which are at best tenuous in nature, and I have had to make findings about them. Overall for the reasons given I prefer the evidence of Mr Weber not and Ms McAuliffe. In any event it is inappropriate to let matters of detail overwhelm the overall reality of an employee’s duties, which are as I have discussed above.

[89] The agreed question was to determine Grade C or Grade D. It is important to see Mr Creaner’s role in the full context of the classification structure, and it appears to me that he is much closer to Grades C or B, which is part of the relevant context. I note that the employer now submits that a different Grade, Grade B, is appropriate, and they may be correct in this, although I do not need to determine this. In my view the agreed question should be determined, not a different question.

[90] To meet the requirement of being responsible for a ‘significant component of the financial administration of a school’ I need to identify a component that he is responsible for, and on the material before me there is no such significant component. He does not meet the requirements of Grade D, and must therefore be classified as Grade C, which is the alternative which was agreed to be put. I so determine.

DEPUTY PRESIDENT

Appearances:

Mr James Robert Creaner, the Applicant
Ms Fiona McAuliffe and Mr Fergus Weber, for the Respondent

Hearing details:

Melbourne (via teleconference)
February 22
2021

Final written submissions:

Respondent Submissions in Reply, filed 13 May 2021.

Printed by authority of the Commonwealth Government Printer

1 Lutheran Education (Victorian Schools) Multi Enterprise Agreement 2018, cl. 10.

2 Mr Creaner Second Witness Statement, [39].

3 Mr Weber Witness Statement, [57].

4 Ms McAuliffe Witness Statement, [11]-[16].

5 Email from Mr Creaner 8 January 2020, attachment 21c.

6 Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, 2.1.

7 [2018] FCAFC 131.

8 [2005] HCA 10; (2005) 222 CLR 241; (2005) 214 ALR 56; (2005) 79 ALJR 703 (9 March 2005).

9 Final Submissions of Mr Creaner.

10 B.P. Refinery (Westernport) Pty. Ltd. V. Hastings Shire Council (1977) 52 ALJR 20, 26.

11 Mr Creaner’s response to the witness statement of Mr Weber.

12 Mr Creaner’s response to the witness statement of Ms McAuliffe.

13 Lutheran Education (Victorian Schools) Multi Enterprise Agreement 2018, Schedule 1, 68.

14 Ibid, 64.

15 Submission of Mr Creaner, [3]-[11].

16 Ms McAuliffe Witness Statement, Attachment 8A, 8.

17 Ibid, Attachment 10.

18 Ibid, Attachment 11.

19 Mr Weber Witness Statement, [9].

20 Ms McAuliffe Witness Statement, Attachment 2

21 Mr Creaner Witness Statement, [29].

22 Ms McAuliffe Witness Statement, [61].

23 Mr Creaner Final Submissions, [7]

24 Ibid, [9]-[15].

25 Ibid, [24].

26 Mr Weber Witness Statement, [57].

27 Mr Creaner Final submissions, [26].

28 Mr Weber Witness Statement, [57].

29 Mr Creaner Final submissions, [22].

30 Mr Weber witness statement, [51].

31 Ibid, [57].

James Robert Creaner v Good News Lutheran College