Jiyoung Park v Supreme Dental Surgery Pty Ltd/Supreme Dental Care Pty Ltd T/A Jade

[2014] FWC 2375

[2014] FWC 2330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Brett Ebbett
v
City of Wanneroo
(C2013/6401)

COMMISSIONER WILLIAMS PERTH, 10 APRIL 2014

Application to deal with a dispute.

[1] This decision deals with an application made by Mr Brett Ebbett (Mr Ebbett or the applicant) represented by the Western Australian Shire Councils, Municipal Road Boards, Health Boards, Parks, Cemeteries and Race Course, Public Authorities, Water Board’s Union and concerns the correct classification of Mr Ebbett. The respondent is the City of Wanneroo (the respondent).

[2] The application comes to the Commission via the dispute resolution procedure in the City of Wanneroo Infrastructure Projects, Building and Maintenance Enterprise Agreement 2012 [AE898226] (the 2012 Agreement). Clause 9 Dispute Resolution Procedures provides that after a number of stages a party may refer the dispute to the Commission for resolution by mediation, conciliation or arbitration.

[3] I am satisfied accordingly, and it is not disputed by the parties, that the Commission is empowered to determine this dispute between the parties by arbitration by virtue of the provisions of section 739 the Fair Work Act 2009 (the Act).

Background

[4] Mr Ebbett was first employed by the respondent on 5 April 2012 and was classified by the respondent under the then City of Wanneroo Infrastructure Projects, Building and Maintenance Enterprise Agreement 2011 [AE890761] (the 2011 Agreement) as a Level A Engineering Services Employee and was paid at increment Level A3.

[5] The 2011 Agreement had a nominal expiry date of 30 June 2012. The 2011 Agreement was replaced by the 2012 Agreement which was approved by the Commission and operated from 23 November 2012.

[6] Mr Ebbett continued to be paid at increment Level A3 and until October 2013 when he was moved up to a Level A4.

[7] The dispute between the parties is whether Mr Ebbett has been correctly classified under the Agreements. The applicant’s submission is that from the commencement of his employment Mr Ebbett should have been paid at the Level B rate. The applicant claims he should be paid at increment Level B3. The respondent is of the view that Mr Ebbett has been correctly classified and paid accordingly.

[8] During the proceedings it was recognised by the parties that the effect of section 58(2) of the Act is that the 2012 Agreement once approved caused the 2011 Agreement to cease to apply to Mr Ebbett and all other employees. As a consequence by virtue of section 54 of the Act the 2011 Agreement ceased to operate on 23 November 2012 which was the date the 2012 Agreement came into operation. As a consequence this decision will only deal with this dispute to the extent that it arises under the 2012 Agreement.

Factual matters

[9] At the time that Mr Ebbett was interviewed by the respondent in 2012 he was 47 years of age and had been working since he was 16.

[10] Prior to his employment with the respondent Mr Ebbett had been employed variously as a factory foreperson and as a metal and wood fabricator, as a shearing gang foreman for 10 years, intermittently as a Shearer, landscaping and roof fixing. Mr Ebbett had partly completed a carpentry apprenticeship and had worked for a time after finishing school in an auto wreckers yard.

[11] At the interview Mr Ebbett agreed he did not have any experience in commercial irrigation.

[12] At the time of employment, the respondent’s records include The Appointment Recommendation Memo which states:

“(the applicant) was open and honest and informed us that he had no previous irrigation experience but indicated he is a quick learner and willing to undertake training.”

[13] As at the date of hearing Mr Ebbett has completed a Certificate III in Irrigation and substantially completed a Certificate IV in Irrigation he has also held a Construction White Card, has a Traffic Management Certificate, a First Aid Certificate and has held a Construction Green Card.

[14] The position he has been engaged in at the City of Wanneroo requires him to perform the following duties on a regular basis:

• Wiring and rewiring of reticulation back to solenoid valve and controllers



• Diagnosing controller faults and problem and liaising with Contractors and Supervisors to ensure immediate repairs to the controller where necessary



• Use of small digging equipment; wire finders ; metal detectors and where necessary voltage meters



• Instructing casually employed staff allocated to me in correct techniques and performance of irrigation duties



• Liaise with supervisor usually only once a day in respect of work



• Prioritise order and scope of works to be performed



• Complete and return for analysis by management job performance sheet on a daily basis



• Be able to read and interpret correctly plans and maps



• Repair, install and maintain mains and lateral reticulation piping, sprinklers and solenoid valves



• Liaison with supervisor and contractors as needed with respect to job related problems

[15] Mr Ebbett works independently and is largely unsupervised throughout his working day.

[16] There is no evidence that Mr Ebbett does not undertake his job satisfactorily.

[17] The evidence of the respondent’s witnesses is generally that Irrigation Fitters such as Mr Ebbett are classified as General Hands - Level A/B and an individual employee would be placed at any increment being A2, A3, A4, B1, B2 or B3; depending upon their skill set and that this approach was designed to support and reward individual employees in their careers.

The 2012 Agreement

[18] Appendix 2 of the 2012 Agreement contains the detail of the classification structure and relevantly the first two pages of the appendix are headed:

“Classification Schedule - Operational Workers

Level A - General Hand

(Parks, Engineering Construction/Maintenance)”

and then

“Classification Schedule - Operational Workers

Level B1 - General Hand

(Parks, Engineering Construction/Maintenance)”

[19] Each of these classifications then has a list of characteristics, with detail which differs from level to level with the following headings in common:

Qualifications and licences

Experience

Plant operation

Communication

Interpersonal

Complexity/Multiskilling

Supervision

Decision Making/Problem Solving

Attributes

Accreditations

Submissions

[20] With respect to the interpretation of the Classification Schedule of the 2012 Agreement the applicant argues that the classifications are interlinked so that Level A and Level B would allow for positions to be classified through the entire Level A and B structure and allows employees to be employed through that structure dependant on qualifications, experience and skills.

[21] Mr Ebbett, it is submitted, was and should have been Level B from the outset under both the 2011 and the 2012 Agreement.

[22] Specifically considering Mr Ebbett’s circumstances the applicant submits that the position characteristics for Level B are satisfied as follows:

1. Qualifications and Licenses: his position requires a C class manual license relevant to the job which Mr Ebbett holds.

2. Experience: the applicant has more than one year’s work experience and comes to the respondent with a wealth of on-the-job experience in other fields. The position requires a person to have a competency as possessed by the applicant.

3. Plant Operation: his position requires the applicant to operate a range of hand operated tools and also job specific technical tools. The position also requires operation of small light vehicles, and on occasion’s equipment. This is all within the skill and capacities of the applicant.

4. Communication: his position requires the applicant to be read and interpret road maps and technical plans. The position requires the applicant to liaise with contractors and supervisors with respect to repairs and maintenance issues and the evidence is the applicant is more than capable of achieving this.

5. Interpersonal: his position requires the applicant to be able to control a small team (2), and provide advice and guidance to the other employee(s) in the team. The applicant does meet these criteria.

6. Complexity/Multiskilling: what is required here is that the applicant can complete tasks of limited complexity only and requires that is capable of only medium competency which he easily discharges.

7. Supervision: the applicant in this position operates under limited supervision more akin to the characteristics of a B4 and Level C position as defined in the 2009/2011 and 2012 Agreements.

8. Decision Making/Problem Solving: his position requires the applicant to take some initiative in fault finding beyond already learnt techniques.

9. Attributes: his position requires the applicant to be able to undertake manual labour and the evidence is Mr Ebbett is capable of doing this.

10. Accreditations: the applicant has acquired traffic control and first aid during employment in the position and was already highly competent and experienced in the use of a range of manual hand tools and light plant.

[23] On this basis that the applicant submits that Mr Ebbett should properly be classified as a Level B under the 2012 Agreement.

[24] The respondent however argues that Mr Ebbett was always being correctly classified at Level A. The respondent points to clause 43.3 of the 2012 Agreement and submits that it was only in October of 2013 that the applicant met the requirements of the subclause and so was moved up an increment to a Level A4.

[25] The respondent submits that the applicant working as an Irrigation Fitter is a General Hand and that as such under the classification schedule he may be assessed as falling within either a Level A or Level B. The respondent submits that Mr Ebbett was correctly classified at Level A3 when he was first employed and the respondent has correctly applied clause 43.3 which has resulted in Mr Ebbett moving up to the Level A4 in October of 2013.

Consideration

[26] The question the Commission must determine in this matter is at what level should Mr Ebbett, doing the job he does, be placed under the Classification Schedule set out in Appendix 2 of the 2012 Agreement as at 23 November 2012.

[27] Firstly I do not agree with the respondent that clause 43.3 has any application in terms of this dispute. Clause 43.3 has application where an employee remains in the same job and meets the requirements in the subclause which entitles the employee to move within that level from one increment up to the next. The question the Commission is being asked to determine is not whether Mr Ebbett should have been entitled to increments within Level A but rather whether he has been incorrectly classified in a lower level, at Level A, than the job he does and his skills and attributes require. In my view clause 43.3 has no application to whether or not an employee should be classified at Level A or Level B.

[28] The respondent acknowledges that an employee doing the job Mr Ebbett does can be properly classified as a General Hand at either Level A or Level B and that what determines this is the particular characteristics of the job that employee is required to undertake and their personal characteristics or attributes. I agree this is a correct summation of how the classification schedule works.

[29] Reviewing the characteristics listed under both Level A and Level B1 there are few differences but one of the significant difference is the experience required.

[30] Level A requires a “Length of Experience 0-12 months” whilst Level B1 requires “Length of Experience 1 Year 1 Year recognised relevant industry experience” and also “Experience in job specific processes-low competency”.

[31] The requirements in terms of experience for Level B1 are significantly more than for Level A.

[32] To fall within Level B1 an employee must have one year’s recognised relevant industry experience and have experience in job specific process but only to a low level of competence. I note that Level B2 requires two years of such experience.

[33] I accept the respondent’s submissions that at the time he was employed Mr Ebbett did not have any recognised relevant industry experience. Mr Ebbett had not worked in the commercial irrigation industry nor had he worked in the local government industry.

[34] However there can be no dispute that one year after Mr Ebbett had first been employed by the respondent he then did have one year of recognised relevant industry experience. In addition, having been employed for that year in the same job, I have no doubt that he also had experience in the job specific processes at least to a low level of competence if not beyond that. Consequently I am satisfied that one year after he was first employed, so by April 2013, Mr Ebbett satisfied the experience characteristic of Level B1 - General Hand in the 2012 Agreement.

[35] The evidence in my view also demonstrates that at least by April 2013 Mr Ebbett otherwise satisfied the various characteristics in terms of qualification and licenses etc, as prescribed for a Level B1-General Hand in the Classification Schedule of the 2012 Agreement.

[36] Accordingly it is my decision that as of 5 April 2013 Mr Ebbett should have been classified at Level B1-General Hand in the Classification Schedule of the 2012 Agreement and paid accordingly.

COMMISSIONER

Appearances:

A Johnson, of the Western Australian Shire Councils, Municipal Road Boards, Health Boards, Parks, Cemeteries and Racecourse, Public Authorities, Water Boards Union for the applicant.

B Taylor, representative for the respondent

Hearing details:

2014.

Perth:

February 11

Final written submissions:

Applicant, 17 February 2014

Respondent, 25 February 2014

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