Joseph Haiser v Feros Care T/A Feros Care Limited
[2023] FWC 56
•11 JANUARY 2023
| [2023] FWC 56 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Joseph Haiser
v
Feros Care T/A Feros Care Limited
(C2022/7250)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 11 JANUARY 2023 |
Alleged dispute about award coverage – clerical employee – whether covered by Clerks Private Sector Award 2020 or Social, Community, Home Care and Disability Services Industry Award 2010 – classification of employee’s job.
Overview
An application has been made by Mr Joseph Haiser (Applicant) for the Commission to resolve a dispute with his employer, Feros Care T/A Feros Care Limited (Respondent), under s.739 of the Fair Work Act 2009 (Act).
The two questions to be resolved in this dispute are:
Question 1
Does the Clerks Private Sector Award 2020 (Clerks Award), or Social, Community, Home Care and Disability Services Industry Award 2010 (SACs Award), cover and apply to the Applicant in respect of his employment with the Respondent?
Question 2
If the answer to Question 1 is the SACs Award, what is the Applicant’s classification under that award (at the time he commenced employment with the Respondent in May 2021)?
Post compliance with Directions issued, a Hearing was conducted by telephone on 16 December 2022. At the Hearing, the Applicant was represented by Ms Emma Cumming (neither a lawyer nor paid agent), and Mr Mark Bunch, Legal Practitioner Director, BE Employment Law, appeared with permission for the Respondent.[1]
The parties agree that the Commission may arbitrate the subject matter of this dispute under the relevant modern award dispute procedure. I equally make that finding. The parties have also consented for the Commission to resolve the dispute by way of arbitration.
In making the findings that I make in this dispute, and in answering the questions posed by the parties, I have had regard to all of the material that has been put before me (both orally and in writing).
Interpretation of modern awards
In Vahid Sedighi Gourabi v Westgate Medical Centre[2] (Westgate), a Full Bench of the Commission summarised the principles to apply when interpreting awards:
“[26] Before turning to the specific grounds of appeal, it is useful to summarise the well settled principles to be applied in the interpretation of an award. For relevant purposes, each modern award has a “coverage” clause that determines “the employers, employees, organisations and outworker entities” that are covered by it. The determination of whether a particular employment falls within the “coverage” clause of a modern award usually involves two considerations: first, a legal question concerning the proper construction of the coverage clause (and any other relevant provisions of the award) and, second, a factual question as to whether the employer and employee fall within the scope of the coverage clause, properly construed.
[27] The principles of construction of awards were recently summarised by Rangiah J in Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3).In short summary, the task of construction begins with the natural and ordinary meaning of the words used. However an award is to be interpreted in light of its industrial context and purpose and its commercial and legislative context. The context includes the immediate textual context and the historical context of the origin of the provision in question.”[3]
I concur with and adopt the foregoing principles in resolving this dispute.
Coverage of the Clerks Award
Clause 4, Coverage, of the Clerks Award reads:
“4.1 This occupational award covers:
(a) private sector employers throughout Australia in relation to employees wholly or principally engaged in clerical work; and
(b) private sector employees who are wholly or principally engaged in clerical work and who are employed by employers mentioned in clause 4.1(a).
4.2 This occupational award also covers:
(a) on-hire employees working in a classification defined in Schedule A—Classification Structure and Definitions and the on-hire employers of those employees if the employer is not covered by another modern award containing a classification that is more appropriate to the work performed by the employee; and
(b) trainees employed by a group training employer and hosted by an employer working in a classification defined in Schedule A—Classification Structure and Definitions and the group training employers of those trainees.
4.3 However, this occupational award does not cover any of the following:
(a) employers covered by a modern award that contains clerical classifications; or
(b) employees excluded from award coverage by the Act; or
NOTE: See section 143(7) of the Act.
(c) employees covered by a modern enterprise award or an enterprise instrument; or
(d) employees covered by a State reference public sector modern award or a State reference public sector transitional award; or
(e) employers in relation to employees mentioned in clauses 4.3(c) or 4.3(d).
4.4 Without limiting clause 4.3, this occupational award does not cover employers covered by any of the following industry awards with respect to employees covered by the awards:
(a) Aged Care Award 2010; or
(b) Airline Operations—Ground Staff Award 2020; or
(c) Airport Employees Award 2020; or
(d) Alpine Resorts Award 2020; or
(e) Animal Care and Veterinary Services Award 2020; or
(f) Banking, Finance and Insurance Award 2020; or
(g) Black Coal Mining Industry Award 2020; or
(h) Business Equipment Award 2010; or
(i) Contract Call Centres Award 2020; or
(j) Educational Services (Post-Secondary Education) Award 2020; or
(k) Educational Services (Schools) General Staff Award 2020; or
(l) Fitness Industry Award 2020; or
(m) General Retail Industry Award 2020; or
(n) Health Professionals and Support Services Award 2020; or
(o) Higher Education Industry—General Staff— Award 2020; or
(p) Hospitality Industry (General) Award 2020; or
(q) Legal Services Award 2020; or
(r) Market and Social Research Award 2020; or
(s) Rail Industry Award 2020; or
(t) Restaurant Industry Award 2020; or
(u) Sporting Organisations Award 2020; or
(v) Telecommunications Services Award 2020.
4.5 If an employer is covered by more than one award, an employee of the employer who is engaged wholly or principally in clerical work is covered by the award containing the classification that is most appropriate to the work performed by the employee and to the environment in which it is normally performed.”
Coverage of the SACs Award
Clause 4, Coverage, of the SACs Award reads:
“4.1 This industry award covers employers throughout Australia in the:
(a) crisis assistance and supported housing sector;
(b) social and community services sector;
(c) home care sector;
(d) family day care scheme sector;
and their employees in the classifications listed in Schedule B to Schedule E to the exclusion of any other modern award.
4.2 The award does not cover employers and employees covered by any of the following awards:
(a) Aged Care Award 2010;
(b) Amusement, Events and Recreation Award 2010;
(c) Fitness Industry Award 2010;
(d) Health Professionals and Support Services Award 2010; or
(e) Nurses Award 2010.
4.3 The award does not cover an employee excluded from award coverage by the Act.
4.4 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.5 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.6 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.
4.7 This award covers employers which provide group training services for trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This clause operates subject to the exclusions from coverage in this award.
4.8 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.”
Clause 3.1, Definitions, of the SACs Award relevantly defines the following terms:
“crisis assistance and supported housing sector means the provision of crisis assistance and supported housing services.”
“family day care scheme sector means the operation of a family day care scheme for the provision of family day care services.”
“home care sector means the provision of personal care, domestic assistance or home maintenance to an aged person or a person with a disability in a private residence.”
“social and community services sector means the provision of social and community services including social work, recreation work, welfare work, youth work or community development work, including organisations which primarily engage in policy, advocacy or representation on behalf of organisations carrying out such work and the provision of disability services including the provision of personal care and domestic and lifestyle support to a person with a disability in a community and/or residential setting including respite centre and day services.”
Applicant’s submissions – Question 1
The Applicant says that the answer to Question 1 is the SACs Award.
In support of his position, the Applicant relevantly makes the following submissions:
“Joseph Haiser is currently employed by Feros Care as a Customer Service Liaison (CSL) for the Local Area Coordination (LAC) department which is contracted to complete work on behalf of the National Disability Insurance Agency (NDIA). Mr Haiser’s job role includes the following duties:
· Answering inbound calls to provide customer support to National Disability Insurance Scheme (NDIS) Participants, their families and the greater community, this support includes providing information about the NDIS, information on how to meet access for the NDIS, information on how to use their NDIS plan, information on supports the NDIS provide, linkages to community and mainstream supports in their region
· Booking and managing appointments for Local Area Coordinators (LAC’s)
· Assisting with a range of administration duties to support the Feros Care LAC program
Feros Care have classified Mr Haiser’s employment under the Clerks Private Sector award, however we believe that as Mr Haiser is contracted to provide administration and community service support on behalf of the NDIS to people living with disabilities and the wider community, the most applicable award coverage would be under the Social, Community, Home Care and Disability Services Industry Award.
Feros Care have advised that they believe that Mr Haiser’s job role is correctly classified under the Clerks Private Sector Award due to the clerical nature of his role, however due to clause 4.3 of the Clerks Private Sector Award this would be incorrect.
The Clerks Awards states in clause 4.3 (see page 3) “However, this occupational award does not cover any of the following: (a) employers covered by a modern award that contains clerical classifications”.
As per schedule B 2.2 (see page 5) clerical classifications are contained within the Social and Community Services award, therefor coverage under the Clerks award is invalid.”
Respondent’s evidence and submissions – Question 1
The Respondent says that the answer to Question 1 is the Clerks Award.
Mr Dean Grantham, Employee Relations Manager, gives the following evidence in relation to the work performed by the Applicant, and the manner in which the Applicant was classified (by the Respondent), under the Clerks Award:
“3. ln relation to the classification of the role of Customer Service Liaison, Virtual LAC team, the key purpose of a Customer Service Liaison is summarised in its Primary Objective:
• Managing a diverse range of incoming and outgoing calls from/ to participants, families and the general community;
• Booking and managing appointment schedules for the assessors
• Assisting with a range of administration and coordination tasks to assist our assessment and planning services in various locations around Australia.
4. The Key responsibilities are:
• lnbound calls from participants, this can be any kind of enquiries from how to access their assessment plans and what supports they can access in their community;
• Web chats form participants;
• lnbound email correspondence;
• Calling participants to book appointments for plan reviews and schedule
• reviews;
• Surveys – calling participants and doing surveys on their recent plan review meeting.
5. My view of the role is that it is primarily to answer inbound calls to provide customer support to National Disability lnsurance Scheme Participants, their families and the greater community. This support includes providing information about the Scheme, information on how to meet access for the Scheme, information on how to use their Scheme plan, information on supports the Scheme provides to Participants and linkages to community and mainstream supports in their region.
6. The role is classified under the Clerks Private Sector Classification Level 3 specifically referring to Call Centre Customer Contact Officer Grade 2 where the role responsibilities align with the responsibilities under this Award. The duties of the position are performed in a contact call centre office environment.
7. When the Applicant was employed on 5 May 2021, he came to FerosCare with no experience in Call Centre or the LAC area as his previous experience was as a chef in the hospitality industry. Attached and marked DG1 is a copy of the Applicant's resume.
8. While the role was classified at the Clerks Level 3, it was done to provide market competitive salaries to attract suitable candidates. His salary reflected what was being paid to all occupants even though his initial competency was not at the required level, it was expected that he would be trained in the requirements of the role over twelve months.
9. ln the first twelve months of his employment, the Applicant underwent significant
training, coaching and close supervision in the performance of his role. Attached and
marked DG2 is a copy of the Training Plan demonstrating the training that was provided to the Applicant in the role.10. Due to the nature of the role, once he reached the required level, under his contract his salary would be adjusted on 1 July each year to reflect market rates for the role by referring to indicators such as CPI and WPI and designed to maintain competitive above award rates. The performance of the role did not demand further competency attainment after the initial training period as it was focused on performance of a set level of call centre operations service provision.
11. The Clerks Private Sector Award was chosen as the classification of Call Centre Customer Contact Officer Grade 2 best covered the responsibilities of the role.
12. Following guidance under Clause 4 - Coverage in the Clerks Award, it best described the principal requirements of the role, and while the SCH&DS Award had some references to clerical duties, as per Clause 4.5 of the Clerks Award, where coverage can apply to more than one award, it was and is felt that the classification under the Clerks Award is most appropriate to the subject role and the environment in which it is normally performed.”[4]
In support of its position as to Clerks Award coverage, the Respondent makes the following submissions:
“5. The Respondent is contracted to complete assessment and planning services work as a partner and is not a registered disability services provider, nor provides disability services or care under the National Disability Insurance Scheme (the Scheme).
6. The CSL position is a position within the LAC contact centre team.
7. Attached and marked R2 is a copy of the Applicant's Position Description.
8. The primary objectives contained within the Position Description are:
•Managing a diverse range of incoming and outgoing calls from/to participants, families and the general community.
•Booking and managing appointment schedules for our Local Area Coordinators.
•Assisting with a range of administration and coordination tasks to assist our Local Area Coordination services in various locations across Australia.
9. The statement of Dean Grantham dated 6 December 2022 provides that the role essentially entails:
"Answering inbound calls to provide customer support to the Scheme Participants, their families and the greater community, this support includes providing information about the Scheme, information on how to meet access for the Scheme, information on how to use their Scheme plan, information on supports the Scheme provides to Participants, linkages to community and mainstream supports in their region."
10. As outlined in the Position Description, whilst the position does include 'assisting with a range of administration and coordination tasks', it is submitted that the major and substantial purpose of the position involves contact/call centre inbound and outbound calls and appointment management activities within an office-based setting.
11. The Respondent asserts that the Applicant's position has been correctly classified as falling under the Clerks Private Sector Award 2020 (Clerks Award) based on the following:
a. The CSL position primarily provides contact/call centre information and support including incoming and outgoing calls in order to set appointments.
b. The Social, Community, Home Care and Disability Services Industry Award 2010 (SCHCADSI Award) does not contain classifications within the Social and Community Services Employees stream which focus on the call centre like duties that are undertaken by the CSL Position. Schedule 8 provides more general clerical duties at various levels including:
Level 1:
(a) undertake routine activities of a clerical and/or support nature;
(b) undertake straightforward operation of keyboard equipment including data
input and word processing at a basic level;(c) provide routine information including general reception and telephonist
duties;Level 2:
(c) respond to enquiries;
…
(g) provide secretarial support requiring the exercise of sound judgment, initiative. confidentiality and sensitivity in the performance of work;
(h) perform tasks of a sensitive nature including the provision of more than routine information. the receiving and accounting for moneys and assistance to clients;
(j) assist with administrative functions;
c. Contrast those descriptions with the classification under which the Applicant was employed ie. Level 3 of the Clerks Award . It provides as follows:
A.4.3 Typical duties and skills- Call centre customer contact officer grade 2
(a) A call centre customer contact officer grade 2 is employed to:
(i) perform a broader range of skilled operations than grade 1:
[A.4.3(a)(ii) varied by PR743400 ppc 11Jul22]
(ii) exercise some discretion and judgment in the selection of equipment, services or contingency measures;
(iii) work within known time constraints;
(iv) provide multiple specialised services to customers (including complex sales, service advice for a range of products or services, and difficult complaint and fault inquiries);
(v) deploy service staff using multiple technologies;
(vi) exercise a limited amount of leadership over less experienced employees.
(b) An employee must be classified at this level if they hold a Certificate Ill (Customer Contact) or equivalent and are employed to perform the duties and skills listed under clause A.4.3(a).
* NOTE: These typical duties and skills may be either at Level 3 or Level 4 depending on the characteristics of that particular level.
d. It is noted that clause 4.4 of the Clerks Award includes a list of industry awards that the Clerks Award does not cover. The SCHCADSI Award is not listed.
e. Clause 4.8 of the SCHCADSI Award provides as follows:
“Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.”
f. Clause 4.5 of the Clerks Award provides as follows:
“If an employer is covered by more than one award. an employee of the employer who is engaged wholly or principally in clerical work is covered by the award containing the classification that is most appropriate to the work performed by the employee and to the environment in which it is normally performed.”
12. The Respondent submits that the duties of the CSL position are most aligned to the classification under the Clerks Award having regard to the work performed and the environment in which it is normally performed. The Respondent's position is that there is only limited references to clerical and administrative duties under the SCHCADSI Award which do not sufficiently represent the breadth of the duties of the CSL Position nor the environment in which the Applicant normally performs the work given it is performed as an office-based contact centre role.
13. The Respondent therefore submits that the SCHCADSI Award does not apply to the Applicant's position as the Clerks Award contains a classification that is more appropriate to the work performed by the Applicant.”[5]
Consideration – Question 1
The Clerks Award is an occupational award and does not cover “employers covered by a modern award that contains clerical classifications” (clause 4.3). As conceded by Mr Bunch on behalf of the Respondent, it is plain that the SACs Award contains clerical classifications.[6]
Clause 4.4 of the Clerks Award does not limit the scope or application of the plain words of clause 4.3. Rather, clause 4.4 provides examples of modern awards that the Clerks Award does not cover.
The SACs Award is an industry award that covers employers and relevant employees (as set out in the classification schedules of the award) in the crisis assistance and supported housing sector, the social and community services sector, the home care sector, and the family day care scheme sector.
The Respondent identifies itself as a proud NDIS partner in the community, delivering local area coordination services that support people with disabilities to live healthy, connected and fulfilling lives.[7] The call centre operated by the Respondent, where the Applicant works, provides disability services, including the provision of lifestyle or other support (and information) to persons with a disability. The purpose of the call centre, and the work performed therein, falls squarely within scope of the social and community services sector.[8]
It is not clear to me, as a matter of construction, or on the evidence, that the Respondent or its relevant employees are covered by the Clerks Award. In other words, clause 4.5 of the Clerks Award, and Clause 4.8 of the SACs Award, have no application.
In determining that the Clerks Award covers the Applicant in his role with the Respondent, the Respondent appears to have worked on the basis that because the Clerks Award refers to a “call centre customer contact officer”, and has a classification definition more directly aligned to the work performed by the Applicant, he is covered by the Clerks Award. Such an approach is inconsistent with the principles as to award interpretation set out in Westgate, and can only lead into error.
In view of paragraphs [16] to [21] above, I find that the answer to Question 1 is the SACs Award. This finding is consistent with determinations as to coverage under the Clerks Award made by the Full Bench of the Australian Industrial Relations Commission during the award modernisation process back in 2018.[9]
Applicant’s submissions – Question 2
The Applicant submits that the answer to Question 2 is Level 2 (Pay Point 1 or 2) under the SACs Award (as at the commencement of the Applicant’s employment with the Respondent, with relevant progression thereafter).
In support of his position, the Applicant relevantly makes the following submissions:
“It is acknowledged that while Mr Grantham has sound understanding of the job description of a Customer Service Liaison (CSL) as the Employee Relations Manager, it is unclear as to whether he is the most informed and knowledgeable witness of the actual day to day duties of a CSL. Mr Grantham does not work in the same office as Mr Haiser, nor oversees Mr Haiser’s day to day employment. Previous email interactions with Ms Busch present multiple inconsistencies in delivery of information including advising Mr Haiser that he is not covered by any award at all but rather by contract law and advising Mr Haiser that Feros Care have classified the CSL role under the Clerk’s award due to the role being clerical based. In the outline of submissions provided by Mr Bunch, it is now advised that Mr Grantham appears to think the CSL role is call centre based rather than clerical. These inconsistencies pose question of the consistency and knowledge of the witness. Please find email trail between Mr Haiser and Ms Busch attached.
It is also questioned as to why Mr Haiser’s direct line manager Cindy Crafford was not utilised as a witness. Ms Crafford would be the most appropriate person to provide statement into Mr Haiser’s supervision needs, daily duties, work related skills and current performance. Ms Crafford has advised that she is willing to be called on as a legal witness should the Commission request this.
It is acknowledged that Mr Haiser underwent training during appointment to the CSL role, however it is not mentioned by Mr Bunch nor Mr Grantham that this extensive training is compulsory for all employees that begin employment with Feros Care. Ongoing training is a condition of employment with Feros Care regardless of qualification or previous experience, training is expected to be ongoing throughout employment (please see 4.1 c and d of Mr Haiser’s employment contract). Mr Haiser’s training plan is not as a result of his limited experience or lack of qualifications but rather the result of compulsory onboarding policies set by Feros Care and the NDIS. It is also noted that there is currently no training program specifically for the CSL role, meaning Mr Haiser’s training plan is the same training plan that an LAC is trained under.
It is reiterated:
Mr Haiser is contracted to provide administration and community service support
on behalf of the NDIS to people living with disabilities and the wider community, the most applicable award coverage would be under the Social, Community, Home Care and Disability Services Industry Award.…
It is unclear the rationale that Mr Bunch has used to determine that the CSL position should be classified at level 1.1 other than lack of qualification or experience. No consideration has been given to the complexities and sensitivities of the role, nor the expectations and requirements the CSL must uphold. Considering the complexities and high level responsibilities of the CSL role including:
· Managing threat to self-harm
· Managing threat to media
· Coordinating welfare checks
· Managing the LAC distress phone and organising assistance should an LAC be in distress or danger
· Managing complaints
· Relaying correct and up to date information
· Working within and adhering to strict NDIS KPI targets
· Following and adhering to strict NDIS policies and procedures around confidentiality and privacy including making legally binding record interactions
This position should be met at a level 2.2 at minimum.
…
Furthermore, attached to this response are position descriptions for near identical positions to the CSL role. The positions advertised are NDIS LAC PiTC companies that are contracted by the NDIS to complete the same work as Feros Care NDIS LAC PiTC. It is noted that these companies pay their administration and enquiries line officers under the SCHADS award at a level 3.1 to complete duties that are directly comparable to the daily duties of a CSL.
It is thought that requesting a classification of the CSL role at minimum 2.2 is fair and reasonable based on daily duties, sensitivities and complexities, ongoing training and comparable positions.
It is reiterated and requested:
As per the pay calculator tool (Fair Work Ombudsman), upon start of employment Mr Haiser should have received $29.30 per hour at the level 2.2 classification which increased to $30.03 in July 2021, Mr Haiser was paid $26.98 per hour at 28/06/2021 under the Clerks Award. As per Clause 13.3, Mr Haiser would have been eligible for progression to level 2.3 at completion of one year employment, which would have seen an increase to $30.94 and then a further increase to $32.37 in July 2022. Mr Haiser’s current rate of pay as of 15/11/2022 is $29.06.
It is asked that Feros Care provide correct classification for Mr Haiser’s employment under the Social, Community, Home Care and Disability Services Award and Feros Care provide back payment to Mr Haiser for unpaid wages during his time of employment, including annual leave loading and superannuation.”
Respondent’s submissions – Question 2
The Respondent submits that the answer to Question 2 is Level 1 (Pay Point 1) under the SACs Award (as at the commencement of the Applicant’s employment with the Respondent, with relevant progression thereafter).
In support of its position, the Respondent makes the following submissions:
14.Further, or in the alternative, should it be the case that the Fair Work Commission concludes that SCHCADSI Award applies to the Applicant's position, the Respondent asserts that the Applicant's classification on commencement of employment was Social and community services employee, Level 1, Pay Point 1.
15.Schedule 8.1 to the SCHCADSI Award provides that a Level 1 classification applies to:
(a) A person employed as a Social and community services employee level 1 works under close direction and undertakes routine activities which require the practical application of basic skills and techniques. They may include the initial recruit who may have limited relevant experience.
16.Entry level classification at Level 2 under Schedule 8.2, and more specifically clause 8.2.3 Requirements of the Position (b) Prerequisites, sets out the following:
(b) Prerequisites
(i)an appropriate certificate relevant to the work required to be performed;
(ii)will have attained previous experience in a relevant industry, service or an equivalent level of expertise and experience to undertake the range of activities required;
(iii)appropriate on-the-job training and relevant experience; or
(iv)entry point for a diploma without experience.
17.Attachment DG1 to the statement of Dean Grantham dated 6 December 2022 confirms that, prior to his employment by the Respondent, the Applicant had no relevant experience in the industry or in a similar role.
18.On commencement of employment, the Applicant was required to undergo significant training and onboarding and was subject to close supervision in the performance of his role (reference: paragraph 9 and attachment DG2 to the statement of Dean Grantham dated 6 December 2022).
19.Accordingly, entry level for the Applicant's employment in the position of CSL, commencing in May 2021, would have been at Level 1, pay point 1. Entry to Level 1, pay point 2 would not apply until the Applicant had completed 12 months' industry experience.
20.The applicable rate of pay for Level 1, pay point 1 under the SCHCADSI Award as at 16 June 2021 was $840.10 per week ($22.10 per hour).
21.The Applicant's starting hourly rate that he received from the Respondent was
$26.98.
22.The Applicant's assertion that he should have been classified as Level 2, pay point 2 on commencement is incorrect as this would not be applicable or aligned to the Applicant's prior experience or certifications in the industry.
23.It is also noted that progression to the next pay point can occur within level 1 from pay point 1 to pay point 2 on completion of 12 month's industry experience.
B1.3(d) Progression
[B.1.3(d) inserted by PR995399 ppc 26Mar10]
An employee primarily engaged in responsibilities which are prescribed by B.1.2(g) will, if full-time, progress to pay point 2 on completion of 12 months 'industry experience, or if part-time, on completion of 1976 hours of industry experience. Industry experience means 12 months of relevant experience gained over the previous 3 years.
24.Given that the Applicant's performance was considered satisfactory and he has completed required training to perform his position, if he was initially classified as a Level 1, pay point 1, it is submitted that progression would either have been to Level 1, pay point 2 after 12 months, or at its highest, to Level 2, pay point 1 on and from 5 May 2022.
25.At that time, the minimum Award rate was $23.67 per hour. From 1 July 2022, the rate increased to $30.46 per hour.”[10]
Consideration – Question 2
Classification Definitions for Levels 1 and 2 under Schedule B of the SACs Award read:
“B.1 Social and community services employee level 1
B.1.1 Characteristics of the level
(a) A person employed as a Social and community services employee level 1 works under close direction and undertakes routine activities which require the practical application of basic skills and techniques. They may include the initial recruit who may have limited relevant experience.
(b) General features of work in this level consist of performing clearly defined activities with outcomes being readily attainable. Employees’ duties at this level will be closely monitored with instruction and assistance being readily available.
(c) Freedom to act is limited by standards and procedures. However, with experience, employees at this level may have sufficient freedom to exercise judgment in the planning of their own work within those confines.
(d) Positions at this level will involve employees in extensive on-the-job training including familiarisation with the goals and objectives of the workplace.
(e) Employees will be responsible for the time management of their work and required to use basic numeracy, written and verbal communication skills, and where relevant, skills required to assist with personal care and lifestyle support.
(f) Supervision of other staff or volunteers is not a feature at this level. However, an experienced employee may have technical oversight of a minor work activity.
(g) At this level, employers are expected to offer substantial internal and/or external training.
B.1.2 Responsibilities
A position at this level may include some of the following inputs or those of a similar value:
(a) undertake routine activities of a clerical and/or support nature;
(b) undertake straightforward operation of keyboard equipment including data input and word processing at a basic level;
(c) provide routine information including general reception and telephonist duties;
(d) provide general stenographic duties;
(e) apply established practices and procedures;
(f) undertake routine office duties involving filing, recording, checking and batching of accounts, invoices, orders, stores requisitions and maintenance of an existing records system;
(g) resident contact and interaction including attending to their personal care or undertaking generic domestic duties under direct or routine supervision and either individually or as part of a team as part of the delivery of disability services;
(h) preparation of the full range of domestic duties including cleaning and food service, assistance to residents in carrying out personal care tasks under general supervision either individually or as part of a team as part of the delivery of disability services.
The minimum rate of pay for employees engaged in responsibilities which are prescribed by B.1.2(h) is pay point 2.
B.1.3 Requirements of the position
Some or all of the following are needed to perform work at this level:
(a) Skills, knowledge, experience, qualifications and/or training
(i) developing knowledge of the workplace function and operation;
(ii) basic knowledge of administrative practices and procedures relevant to the workplace;
(iii) a developing knowledge of work practices and policies of the relevant work area;
(iv) basic numeracy, written and verbal communication skills relevant to the work area;
(v) at this level employers are required to offer substantial on-the-job training.
(b) Organisational relationships
Work under direct supervision.
(c) Extent of authority
(i) Work outcomes are clearly monitored.
(ii) Freedom to act is limited by standards and procedures.
(iii) Solutions to problems are found in established procedures and instructions with assistance readily available.
(iv) Project completion according to instructions and established procedures.
(v) No scope for interpretation.
(d) Progression
An employee primarily engaged in responsibilities which are prescribed by B.1.2(g) will, if full-time, progress to pay point 2 on completion of 12 months’ industry experience, or if part-time, on completion of 1976 hours of industry experience. Industry experience means 12 months of relevant experience gained over the previous 3 years.
B.2 Social and community services employee level 2
B.2.1 Characteristics of the level
(a) A person employed as a Social and community services employee level 2 will work under general guidance within clearly defined guidelines and undertake a range of activities requiring the application of acquired skills and knowledge.
(b) General features at this level consist of performing functions which are defined by established routines, methods, standards and procedures with limited scope to exercise initiative in applying work practices and procedures. Assistance will be readily available. Employees may be responsible for a minor function and/or may contribute specific knowledge and/or specific skills to the work of the organisation. In addition, employees may be required to assist senior workers with specific projects.
(c) Employees will be expected to have an understanding of work procedures relevant to their work area and may provide assistance to lower classified employees or volunteers concerning established procedures to meet the objectives of a minor function.
(d) Employees will be responsible for managing time, planning and organising their own work and may be required to oversee and/or guide the work of a limited number of lower classified employees or volunteers. Employees at this level could be required to resolve minor work procedural issues in the relevant work area within established constraints.
(e) Employees who have completed an appropriate certificate and are required to undertake work related to that certificate will be appointed to this level. Where the appropriate certificate is a level 4 certificate the minimum rate of pay will be pay point 2.
(f) Employees who have completed an appropriate diploma and are required to undertake work related to the diploma will commence at the second pay point of this level and will advance after 12 full-time equivalent months’ satisfactory service.
B.2.2 Responsibilities
A position at this level may include some of the following:
(a) undertake a range of activities requiring the application of established work procedures and may exercise limited initiative and/or judgment within clearly established procedures and/or guidelines;
(b) achieve outcomes which are clearly defined;
(c) respond to enquiries;
(d) assist senior employees with special projects;
(e) prepare cash payment summaries, banking reports and bank statements, post journals to ledger etc. and apply purchasing and inventory control requirements;
(f) perform elementary tasks within a community service program requiring knowledge of established work practices and procedures relevant to the work area;
(g) provide secretarial support requiring the exercise of sound judgment, initiative, confidentiality and sensitivity in the performance of work;
(h) perform tasks of a sensitive nature including the provision of more than routine information, the receiving and accounting for moneys and assistance to clients;
(i) assist in calculating and maintaining wage and salary records;
(j) assist with administrative functions;
(k) implementing client skills and activities programmes under limited supervision either individually or as part of a team as part of the delivery of disability services;
(l) supervising or providing a wide range of personal care services to residents under limited supervision either individually or as part of a team as part of the delivery of disability services;
(m) assisting in the development or implementation of resident care plans or the planning, cooking or preparation of the full range of meals under limited supervision either individually or as part of a team as part of the delivery of disability services;
(n) possessing an appropriate qualification (as identified by the employer) at the level of certificate 4 or above and supervising the work of others (including work allocation, rostering and providing guidance) as part of the delivery of disability services as described above or in subclause B.1.2.
B.2.3 Requirements of the position
Some or all of the following are needed to perform work at this level:
(a) Skills, knowledge, experience, qualification and/or training
(i) basic skills in oral and written communication with clients and other members of the public;
(ii) knowledge of established work practices and procedures relevant to the workplace;
(iii) knowledge of policies relating to the workplace;
(iv) application of techniques relevant to the workplace;
(v) developing knowledge of statutory requirements relevant to the workplace;
(vi) understanding of basic computing concepts.
(b) Prerequisites
(i) an appropriate certificate relevant to the work required to be performed;
(ii) will have attained previous experience in a relevant industry, service or an equivalent level of expertise and experience to undertake the range of activities required;
(iii) appropriate on-the-job training and relevant experience; or
(iv) entry point for a diploma without experience.
(c) Organisational relationships
(i) work under regular supervision except where this level of supervision is not required by the nature of responsibilities under B.2.2 being undertaken;
(ii) provide limited guidance to a limited number of lower classified employees.
(d) Extent of authority
(i) work outcomes are monitored;
(ii) have freedom to act within established guidelines;
(iii) solutions to problems may require the exercise of limited judgment, with guidance to be found in procedures, precedents and guidelines. Assistance will be available when problems occur.”
Clause 13.3 of the SACs Award reads:
“13.3 Progression
(a) At the end of each 12 months’ continuous employment, an employee will be eligible for progression from one pay point to the next within a level if the employee has demonstrated competency and satisfactory performance over a minimum period of 12 months at each level within the level and:
(i) the employee has acquired and satisfactorily used new or enhanced skills within the ambit of the classification, if required by the employer; or
(ii) where an employer has adopted a staff development and performance appraisal scheme and has determined that the employee has demonstrated satisfactory performance for the prior 12 months’ employment.
(b) Movement to a higher classification will only occur by way of promotion or re-classification.”
The Applicant commenced employment with the Respondent on 5 May 2021 as a Customer Service Liaison – Local Area Coordination (CSL Position) in the Respondent’s Contact (Call) Centre Team. The Applicant’s resume indicates that he is a qualified Chef, and prior to commencing employment at the Respondent (May 2021) was a “Chef De Partie” at the Sanctuary Cove Golf and Country Club & International Hotel and Resort (2013-2021). After completing his HSC (2011), the Applicant obtained a Certificate III in commercial cookery (2018) and a Certificate IV in justice studies (2015).
The Position Description for the CSL Position sets out the primary objectives, key responsibilities, essential criteria and desirable criteria of the role, as follows:
“Primary Objective:
The key purpose of a Customer Service Liaison is to assist with the day to day coordination of the Local Area Coordination Service by:
· Managing a diverse range of incoming and outgoing calls from/to participants, families and the general community
· Booking and managing appointment schedules for our Local Area Coordinators
· Assisting with a range of administration and coordination tasks to assist our Local Area Coordination services in various locations across Australia
Key Responsibilities:
Section A - Key Role Specific Responsibilities
Working with people with disability, their family and carers:
· Confidently explain the National Disability Insurance Scheme (NDIS) to people with disability, their family and the broader community
· Guide and assist participants over the phone to develop their options and build capacity to undertake self-management
· Assist people deemed as not eligible for the Scheme by the NDIA and support their families and carers with information linkages and supports to utilise natural supports and connect with alternative funding and opportunities within their community
· Assist people with disability, families, carers and broader communities to access relevant information about the NDIS and assist with enquiries about the scheme
Program support, planning and coordination:
· Assist in the day to day allocation of LAC activities (first plan, reviews and implementation activities and tasks), managing LAC inboxes to ensure service volumes and associated KPI's are achieved
· Scheduling appointments with program participants, communicating times and maintaining LAC schedules
· Ensure rostering and scheduling of services is logistically sound, efficient and effective use of staffing resources
· Ensure leave planning including annual leave, personal leave, study leave, etc. is scheduled to ensure continuity of care and service delivery
· Attend to day to day rescheduling to cover unplanned changes in LAC staff availability including sick leave, personal leave and emergency replacement or backfilling requirements
· Ensure all appointments and LAC staff inboxes are regularly reviewed to ensure compliance withservice program key performance indicators and to identify system issues and errors
· Ensure compliance with referral requests in relation to the allocation of appropriately skilled and qualified staff and compatibility with customer and participants cultural requirements
· Participate actively in problem solving and finding solutions for scheduling difficulties and challenges in consultation with Service Area Managers and LAC staff
Creating community capacity:
· Engage with mainstream and community services to promote the intrinsic value of people with disability in contributing to the development of social and economic activity
· Build a positive and collaborative rapport with mainstream and community services to share NDIS information and provide updates regarding the Scheme
· Assist in gathering information and mapping available community resources and non-funded supports
· Raise awareness to the unique needs of children and vulnerable people with disability from culturally and linguistically diverse backgrounds or from an Aboriginal or Torres Strait Islander background
· Work in conjunction with the Manager Community Engagement to build and strengthen the community's capacity to provide support to people with disability and their families through the implementation of structured and adhoc engagement activities and plans
Administration:
· Ensure all telephone participant and family member interactions are promptly responded to in an efficient and empathetic manner utilising superior customer service etiquette and communication skills
· Assisting with daily statistics and KPI gathering from the NDIS IT system to support program monitoring
· Assist with ordering technology, liaising with NDIS IT support and manage access for local LAC workforce
· Support the day to day operations of local LACs providing administration, phone and events management support
· Provide a professional and welcoming reception service to all participants, carers, families, staff and visitors
· Prepare and produce documents, reports, correspondence, presentations, project spreadsheets, etc. in a timely manner and as required
· Ensure all records, information, contacts and activities are recorded in the NDIS IT system daily and the privacy of all participants is protected
· Other ad hoc duties as requested by the Virtual Service Manager and Assistant Service Area Manager
…
Essential Criteria for Position:
Essential Skills, Experience and Knowledge:
· Experience in scheduling in a high volume service delivery environment
· Experience in a high volume contact or call centre environment
· Exceptional technology and internet skills
· Positive and respectful communicator with well-developed communication skills (written, verbal and listening) including high level telephone technique in order to liaise effectively with all callers in service delivery requirements of a changing service levels
· Demonstrated ability to work in an environment which is frequently changing and has high client expectations and competing priorities
· Demonstrated high level computer literacy (Outlook, Word, Excel)
· Well developed communication skills (written, verbal and listening) including exceptional telephone techniques in order to liaise effectively
· Ability to maintain a positive and respectful attitude especially when competing demands and time pressures are high
Desirable Criteria for Position:
· Demonstrated experience and commitment to working with and delivering high quality services topeople with disability, their families, carers and local communities, or a lived experience
· Diploma/Certificate in Administration or similar
· Experience in a Health and/or Aged Care environment
· Previous experience in working with special needs and/or disadvantaged groups”
The dispute between the parties as to the Applicant’s classification under the SACs Award concerns whether the Applicant should be classified as a Level 1 or Level 2 as at the commencement of his employment in May 2021.
By reference to the work performed by the Applicant (as set out in the CSL Position Description), the Applicant’s experience and qualifications (as at May 2021), and the characteristics, responsibilities and requirements of the Level 2 classification under the SACs Award, I make the following findings:
a) The CSL Position Description is consistent with Level 1 classification items B.1.1(a) to (g), B.2.1(a) to (b), and (e), and B.2.1(a) to (c).
b) The CSL Position Description is consistent with Level 2 classification items B.2.1(a) to (d), B.2.2(a) to (c) and (f) and B.2.3(a), (c), and (d).
c) The CSL Position Description is not consistent with Level 2 classification items B.2.1(e) and (f), B.2.2(d), (e), (g) to (n) and B.2.3(b).
d) The Applicant’s experience and qualifications (as at May 2021) are not consistent with Level 2 classification items B.2.1(e) and (f), and B.2.3(b). Nor do they satisfy, as at May 2021, items B.2.1(c) or B.2.3(a)(ii) to (v), and (b).
In view of the foregoing findings, the necessary and inescapable conclusion is that the correct classification for the Applicant, as at the time of his commencement of employment with the Respondent in May 2021, was Level 1 (Pay Point 1) under the SACs Award (with regular progression up pay points to occur in accordance with items B.1.3(d) based upon industry experience).
Whilst the Applicant has asked that I consider and compare what other employees in other organisations are being paid for roles said to be the same or similar to those of the CSL Position at the Respondent, as a matter of law I am unable to do so. Determining a relevant employees classification under an award does not involve a comparative analysis against roles or persons not a party to the dispute before me.
Disposal of proceedings
The answers to the two questions posed by the parties in resolution of this dispute, by reference to my reasons set out in this decision are as follows:
Question 1: Does the Clerks Award or the SACs Award cover and apply to the Applicant in respect of his employment with the Respondent?
Answer: The Sacs Award covers and applies to the Applicant’s employment with the Respondent (see reasoning and findings set out in paragraphs [16] to [22] of this decision).
Question 2: If the answer to Question 1 is the SACs Award, what is the Applicant’s classification under that award (at the time he commenced employment with the Respondent in May 2021)?
Answer: Level 1 (Pay Point 1) under the SACs Award (see reasoning and findings set out in paragraphs [27] to [34] of this decision).
Should the Applicant be owed any outstanding wages or other entitlements arising from the answers to Questions 1 and 2 of this decision, that is a matter for the Applicant to take up directly with the Respondent, or seek relevant relief from a court of competent jurisdiction. The Commission has no power to provide declaratory relief, or to make orders requiring the payment of wages or other entitlements.
This dispute application is otherwise dismissed.
DEPUTY PRESIDENT
Appearances:
Ms Emma Cumming appeared for the Applicant.
Mr Mark Bunch, Legal Practitioner Director, BE Employment Law, appeared with permission for the Respondent
[1] Permission for the Respondent to be legally represented was not opposed. I granted the Respondent permission to be legally represented generally in this matter. I did so having had regard to the criteria in s.596 of the Act, specifically noting that the issues in this matter have some complexity, and that the matter would be conducted more efficiently with the assistance of legal representation on behalf of the Respondent.
[2] [2019] FWCFB 3874
[3] Ibid, at [26]-[27], footnotes omitted.
[4] Witness Statement of Dean Grantham, 6 December 2022, at [3] to [12].
[5] Respondent’s Written Submissions, 6 December 2022, at [5] to [13].
[6] Transcript, at PN59-PN60.
[7] Feros Care Annual Report 2021-2022.
[8] See also Transcript, at PN86-PN87 and PN92-PN95 and the Primary Objective and Key Responsibilities of the Position Description for the Applicant’s role as “Customer Service Liaison – Local Area Coordination”.
[9] [2008] AIRCFB 717 (12 September 2018), at [63]; [2008] AIRCFB 1000 (19 December 2018), at [221].
[10] Respondent’s Written Submissions, 6 December 2022, at [14] to [25].
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