[2019] FWC 7416

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Maria Sarmiento
v
Japara T/A Goonawarra Aged Care Facility
(C2018/3778)

COMMISSIONER WILSON

HOBART, 31 OCTOBER 2019

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

[1] On 11 July 2018, Ms Maria Sarmiento made an application to the Fair Work Commission (the Commission) alleging a dispute under the terms of an enterprise agreement applying to her employment with the Japara Goonawarra Aged Care Facility.

[2] The enterprise agreement indicated in the application form is the “ACSAG ANMF HSU EBA”, taken to be the Aged Care Services Australia Group Pty Ltd, ANMF and HWU (Victoria) Enterprise Agreement 2017 (the 2017 Agreement). 1 Since approval of the 2017 Agreement the name of the employer covered by the agreement has changed to Japara Administration Pty Ltd (Japara).2

[3] Ms Sarmiento has been employed at the Japara Goonawarra Aged Care Facility as a Registered Nurse since 15 June 2011. 3 Her concerns as dealt with in this decision relate to her classification and consequential rate of pay for some of the duties she performed and in particular the duties undertaken at certain times when she was the most senior registered nurse on the premises.

[4] Ms Sarmiento submits that, having signed an employment contract, she “commenced employment as a Registered Nurse Division 1 dual classifications Grade 4A and 5. For most of my shifts I am required to be Grade 4A, and only from time to time I was required to take on a Grade 5 role”. 4 Japara’s position on the appropriate classification is twofold; the “correct rate for all Registered Nurses is Grade 5A for In-Charge Shifts and Grade 3A for all non in-charge shifts” and that, relevant to Ms Sarmiento, she has “been paid correctly at Grade 5A rate for In-Charge shifts” she worked, but that she has “been paid at Grade 4A for all other shifts worked, which has resulted in an overpayment of wages”.5

[5] In or around May 2018, Japara decided to change its shift rosters and in the course of doing so formed the view that payment of the Grade 4A classification rate was incorrect, not only for Ms Sarmiento but other employees as well. 6 As set out above, Japara’s position is that Ms Sarmiento’s correct classification is Grade 5, when she “performs a shift as ‘nurse in charge’ [and] is entitled to undertake tasks”, and “for all other shifts she is entitled to be paid as a Grade 3A Registered Nurse”.7 There is a significant difference in the wage rates between Grades 3A and 4A, with the Grade 3A weekly rate ranging between $1265.12 and $1284.26 at the time and the Grade 4A rate between $1580.92 and $1623.04. The rate applicable at the time for a Grade 5 employee was $1735.02.

[6] Ms Sarmiento contests both Japara’s capacity to make the indicated change as well as its fairness.

[7] For its part Japara contests whether the Commission has jurisdiction to determine the application, with it arguing both that Ms Sarmiento has neither notified or progressed the dispute in the manner required under the 2017 Agreement and separately, that she has not identified the terms of the 2017 Agreement that are in dispute.

[8] Beyond these matters of jurisdiction, the matters in dispute between Ms Sarmiento and Japara are broader than the classification dispute presently before the Commission. Ms Sarmiento states that she stopped working at Goonawarra Aged Care Facility on 12 November 2018 “due to ill health caused by alleged bullying and harassment by the respondent”. 8 She has brought an anti-bullying application before the Commission and has, or has had, a workers compensation application in relation to her health. There have also been proceedings taken by Ms Sarmiento in relation to her employment in the Victorian Civil and Administrative Tribunal (VCAT). Further, at least through her submissions in these matters, Ms Sarmiento alleges contraventions of the Act’s “general protection” provisions, having allegedly been the subject of adverse action after making an enquiry about her pay and that “to date the respondent has refused to allow the applicant to return to work”.9

[9] The application was initially dealt with by Commissioner Cribb and was then reassigned to me. A conciliation conference held by me on 17 April 2019 did not resolve the matter, although it usefully canvassed the matters in dispute and each party’s approach to the subject matter.

[10] In the hearing held by me on 3 September 2019, Japara was represented by Ms A. Klimovics, from the Service Industry Advisory Group (Legal) Pty Ltd, with permission for representation in the hearing being granted because I was satisfied of the criteria within s.596(2)(a) of the Act.

QUESTION FOR DETERMINATION

[11] In accordance with usual procedure the filing Directions for the hearing of this matter required Ms Sarmiento to prepare and file a Question for Determination. In response, Ms Sarmiento filed the following (Sarmiento Questions for Determination);

“1. Is the Applicant's classification a Grade 4B employee for the purpose of the Aged Care Services Australia Group Pty Ltd ANMF and HWU (Victoria) Enterprise Agreement?

2. Why has the Respondent failed to pay the Applicant as a Grade 4B employee, in accordance with the enterprise agreement?

3. Was the Applicant's inquiry regarding her pay and classification under the enterprise agreement, an inquiry in relation to the Applicant's employment?

4. Has the Respondent refused to allow the Applicant to return to work because the Applicant exercised a workplace right?

5. Has the Respondent refused to allow the Applicant to return to work for any other unlawful reason?

6. Has the Respondent committed other adverse action against the Applicant in breach of its obligations under Fair Work Act 2009 (Cth)?

7. What is the appropriate measure of damages for the Respondent's adverse action?” 10

[12] Japara objects that these questions are not within the Commissions jurisdiction; that the first duty of a tribunal is to satisfy itself that it has the jurisdiction to deal with a proceeding 11 and instead proposes these alternative questions (Japara Questions for Determination);

“1. Does the Fair Work Commission have jurisdiction to determine the Application in this matter – whether by arbitration or otherwise - bearing in mind the requirements of sections 595 and 739 of the Fair Work Act 2009 (Cth)?

2. Where the answer to Question 1 (above) is in the affirmative, then:

a. Is the Applicant's classification a Grade 4B employee for the purpose of the Aged Care Services Australia Group Pty Ltd ANMF and HWU (Victoria) Enterprise Agreement 2017?

b. Does the Fair Work Commission have jurisdiction to determine questions 2 to 7 posed by the Applicant on 19 July 2019?

c. Does the Fair Work Commission have jurisdiction to make any award of damages to the Applicant pursuant to question 7 posed by the Applicant on 19 July 2019?

3. Where the answer to either Question 1 or Question 2.a. (above) is in the negative, then:

a. Does the Fair Work Commission have capacity to make a costs order against the Applicant, in respect of the Application in the Matter, pursuant to section 611 of the Fair Work Act 2009 (Cth)?” 12

RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE

[13] In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third party. The resultant arbitrator’s award is not binding of its own force but instead its effect depends on the law which operates with respect to it. 13 It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.14

[14] The Commission is required to examine whether an enterprise agreement’s dispute settlement procedure “requires or allows” the Commission to deal with the dispute. In order to do so, it is necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. 15 The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”16

[15] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. 17 The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.18 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.19 The character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.20 However, the relief sought may cast light on the true nature of the dispute in some cases.21

[16] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant will depend on the limitation in s.739(5) 22 and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.23

[17] Interpretation of an enterprise agreement requires construction of the words of the instrument, with the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 24 (Berri) setting out the principles for such a task. In that matter, and after an extensive analysis of the subject, the Full Bench summarised the principles to be applied in the following way:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 25

[18] The application of these principles, and especially to those in which ambiguity may be considered was further considered by the Full Bench in United Firefighters Union of Australia v Emergency Services Telecommunications Authority:

“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.” 26

CONSIDERATION

Jurisdiction

[19] Japara’s first Question for Determination connects with its proposition that Ms Sarmiento is asking the Commission to make a decision which would be inconsistent with the Act and the 2017 Agreement. In this regard, after noting that s.595 of the Act requires that the Commission not exercise powers of arbitration unless expressly authorised, Japara submits that Ms Sarmiento has failed to establish that she has notified Japara of a dispute under Clause 52 of the Agreement and has then not progressed any such dispute in accordance with the procedures set out in Clause 52.2 and 52.4. Further Ms Sarmiento has not articulated the terms of the 2017 Agreement alleged to be in dispute between the parties.

[20] Relevant to the matter of jurisdiction are the provisions of s.595 and s.739 of the Act, which provide as follows;

s.595 “FWC's power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.”

s.739 “Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[21] Clause 52, the Dispute Resolution Procedure within the 2017 Agreement is in the terms set out below and I take Japara to be submitting that the underlined words have not been complied with by Ms Sarmiento in order to commence and progress her dispute;

“52 Dispute Resolution Procedure

52.1 This dispute resolution procedure will apply to any dispute relating to:

(a) a matter arising under this Agreement; or

(b) the National Employment Standards; or

52.2 In the event of a dispute in relation to the above, in the first instance the parties will attempt to resolve the matter at the workplace by discussions between the Employee or Employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, there will be further discussions between the Employee or Employees concerned and more senior levels of local management as appropriate.

52.3 A party to the dispute may appoint another person, organisation or association to accompany or represent them in relation to the dispute at any time.

52.4 If the grievance is still unresolved following the steps outlined In Clause 52.2, the matter shall be referred to the Senior Manager of the Employer, however titled and a meeting arranged.

52.5 The above steps shall take place as soon as reasonably practicable.

52.6 If a dispute in relation to a matter arising under the Agreement is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken, the dispute may be referred to the FWC for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration. If arbitration is necessary the FWC may exercise the powers conferred by the Fair Work Act.

52.7 It is a term of this agreement that while the dispute resolution procedure is being conducted work shall continue normally according to the custom or practice existing before the change or omission that gave rise to the grievance until either the grievance is resolved or, if referred to the FWC, up to the first hearing and then subject to any direction of the FWC. No party shall be prejudiced by the continuation of work. Health and safety matters are exempted from this Clause.

52.8 FWCThe (sic) decision of the FWC will bind the parties, subject to either party exercising a right of appeal in accordance with the Fair Work Act.” (underlining added)

[22] Ms Sarmiento was told in a meeting on 24 April 2018 by Ms Stephanie Parry, then the Japara Human Resources Business Partner that there was to be a roster restructure to start on 2 July 2018. That meeting included other employees of the Goonawarra Aged Care Facility but not a representative from the Australian Nursing and Midwifery Federation (ANMF) (of which Ms Sarmiento was a member). 27 Ms Sarmiento participated in a further discussion, this time on her own, on 18 May 2018 when she was told by the Facility Manager, Ms Patricia Ryan and Ms Parry that her pay rate would change and that the change was owing to an administrative error.28 A letter was subsequently sent by Ms Parry to Ms Sarmiento dated 24 May 2018 which included the following elaboration and confirmation of Japara’s position;

“On 18 May 2018 we met with you to discuss the impact of the proposed master roster changes on your role as a Registered Nurse at the Goonawarra Aged Care Facility.

We advised you that we had identified some discrepancies around the rates currently paid to RN's at Goonawarra. The correct rate for all Registered Nurses is Grade 5A for In-Charge Shifts and Grade 3A for all non in-charge shifts.

Our records indicate that you have been paid correctly at Grade 5A rate for In-Charge shifts that you have worked, but you been paid at Grade 4A for all other shifts worked, which has resulted in an overpayment of wages.

Japara Healthcare are not seeking repayment of these wages but will be rectifying this administrative error, as of 2 July 2018.” 29

[23] Ms Sarmiento then asked the ANMF to assist her, after which two industrial organisers sent an email about their member to Ms Parry on 8 June 2018, to which Ms Parry replied on 19 June 2018. After traversing another matter relating to Ms Sarmiento, but unrelated to this matter the ANMF correspondence on 8 June 2018 from Ms Sandra Oakley, Industrial Relations Organiser, deals with the matter that is now the subject of this dispute application in the following manner;

“This leaves the unresolved matter of Maria’s classification.

ANMF has reviewed the Contract of Employment issued to Maria on 15 June 2011. It is of concern that this contract does not meet contractual obligations in that it does not specify classification, hours of employment and location of employment.

ANMF request that you:

1. Provide a copy of the Grade 4A and Grade 3A position descriptions to Maria and ANMF

2. Specify where in the Aged Care Services Australia Group Pty Ltd ANMF and HWU (Victoria) Enterprise Agreement 2017 Grade 4A and Grade 3A classifications are dealt with

3. Provide rationale as to why Maria does not meet the criteria of Grade 4A, given that her pay slip from the time of employment states that this is her classification

4. If you maintain that Maria is not to be employed as a Grade 4A, please advise what tasks you wish her not to undertake

5. Confirm that status quo will apply in relation to your proposal to reclassify Maria to Grade 3A

6. Provide a written response to the above to Natalie Davies by COB Tuesday 19 June 2018

Kind regards,” 30

[24] Ms Parry’s reply was in the following terms;

“Good Afternoon Natalie,

We write in response to an email received from Sandra Oakley on your behalf on 8 June 2018, in specific relation to Ms Maria Sarmiento of the Goonawarra Aged Care Facility, for whom you are providing representation.

The Contract of Employment issued to and signed by Ms Sarmiento on 15 June 2011, does stipulate the classification, namely, Registered Nurse Division 1.

Please see below our response to your requests:

1. Descriptions of the Grade 4A and Grade 3A responsibilities are referred to in the Aged Care Services Australia Group Pty Ltd ANMF and HWU (Victoria) Enterprise Agreement 2017, on p.101, in direct reference to the Nurses (Victorian Health Services) Award 2000.

2. Please refer to Registered Nurse Classifications on p.101 of the Aged Care Services Australia Group Pty Ltd ANMF and HWU (Victoria) Enterprise Agreement 2017, which clearly outlines the circumstances in which Grade 4A is paid. As the Goonawarra Aged Care Facility is a Facility with 120 beds, this pay rate is not applicable and has been administered in error, as explained in correspondence to Ms Sarmiento, on 24 May 2018.

3. Please refer to the response in point 2.

4. As explained in point 2, Maria is not entitled to payment as a Grade 4A Registered Nurse as the Facility has a size of 120 beds. Maria will be required to undertake all tasks as a Grade 5 and Grade 3A Registered Nurse, as outlined in the Nurses (Victorian Health Services) Award 2000.

5. We confirm that Ms Sarmiento will continue to be employed in the Classification of Registered Nurse Division 1, as per her Japara Contract of Employment. The applicable grade within that Classification will be determined by rostered duties as per the Aged Care Services Australia Group Pty Ltd ANMF and HWU (Victoria) Enterprise Agreement 2017.

Thank you.” 31

[25] The references in the above passage to page numbers in the 2017 Agreement appear to be in error, as appears the claim that the indicated passage makes “direct reference to the Nurses (Victorian Health Services) Award 2000”.

[26] Ms Jennifer Anderson, Japara’s Industrial Relations Manager, gave evidence in these proceedings including that Ms Parry is no longer employed by the company. Part of Ms Anderson’s evidence is that she became aware on or around 13 July 2018 that Ms Sarmiento had made her application to the Fair Work Commission, which had been filed two days earlier on 11 July 2018. Ms Anderson says that before receipt of the formal application neither Ms Sarmiento or the ANMF had contacted her to arrange any meetings relating to Ms Sarmiento’s classification under the 2017 Agreement. 32 Ms Anderson’s evidence also includes the following, pertinent to the requirements of Clause 52 of the 2017 Agreement;

“At no stage prior to being advised that the Applicant had filed the Application Form F10 in this matter:

a. did the Applicant notify that she was in dispute with the Respondent under clause 52 of the 2017 Agreement;

b. did the Applicant take part in, discussions of a kind described in clauses 52.2 of the Agreement, that is at local facility level, or request referral under clause 52.4 of the Agreement.” 33

[27] Ms Anderson also refers to a meeting with Ms Sarmiento at the Goonawarra Aged Care Facility;

“On 23 July 2018 I met with the Applicant at the Goonawarra facility. During our discussion I advised the Applicant that:

a. the published rates of pay for classification 3A in the 2017 Agreement were incorrect, due to an error in transposing rates from the previous enterprise agreement Aged Care Services Australia Group Pty Ltd, ANMF and HSU (Victoria) Enterprise Agreement 2014; and

b. whilst the rates of pay contained in 2017 Agreement (at Appendix A - Wage Rates) for the Registered Nurse 3A differ from the actual rates paid by the Respondent, the rates actually paid by the Respondent exceed the published rates specified in the 2017 Agreement for those classifications.” 34

[28] The importance of conformity with an enterprise agreement’s dispute resolution term for the advancement of a dispute pursuant to s.739 was discussed by the Full Bench in the matter of AWU v MC Labour Services. 35 In that matter, an application had been filed in the Commission regarding non-payment of overtime to employees covered by the agreement. The AWU was not covered by the agreement but had members whose employment was covered. The respondent objected to the application, putting forward that the dispute resolution procedure had not been followed. There was evidence from a company manager to the effect that it only became aware of the alleged dispute when a copy of the AWU application was received. The company was not aware of the matter having been submitted as a dispute at an earlier stage to any representative of the company. Commissioner McKinnon at first instance found that “the alleged dispute has not been submitted by the employee(s) or their representatives to the relevant site foreperson, supervisor or other appropriate site representative”.36 On appeal there was debate before the Full Bench about whether the Appellant could have complied with the steps of the dispute resolution term because to do so it would have had to disclose the identity of its members to the employer, which would have potentially been detrimental to their interests. In dismissing the appeal, the Full Bench found;

“[37] It may be that situations will arise where it is genuinely impossible for a party to comply with a mandatory step in a dispute resolution procedure, and that the effect of this is that the Commission or other independent person cannot attempt to settle the dispute. This might be an issue for the Commission to examine when considering whether to approve an agreement under s.185 of the FW Act. However, once an agreement has been approved, and a dispute is referred to the Commission under it, it would not be permissible for the Commission to recast or ignore certain components of the dispute settlement procedure. Section 186(6) is not a source of power to do this. An enterprise agreement comes into operation seven days after it is approved by the Commission. Once in operation, the agreement is presumed to be valid, until such time as the decision of the Commission to approve the agreement is overturned on appeal, or the agreement is otherwise found by a court to be invalid. The various terms of an enterprise agreement are also assumed to be valid, with the exception only of unlawful and certain other terms, which have no effect as a result of s.253 of the FW Act.

[38] The requirements of s.186(6) may be relevant in identifying the proper construction of a dispute resolution Clause in an agreement. If the proper meaning of such a Clause is disputed, the resolution of the disputed construction will begin with the ordinary meaning of the relevant words, considered in context, in accordance with the principles summarised in AMWU v Berri. The legislative framework, including s.186(6), is part of that context. There may be cases where, properly construed, the Clause allows the Commission to proceed to deal with a matter, despite certain steps not being satisfied. And of course, there may be Clauses which expressly allow certain steps to be bypassed, or for the Commission to have a general discretion to deal with disputes.

[39] However, the parties to an enterprise agreement are free to impose limitations on the role afforded to the body that is to settle disputes about matters arising under the agreement. Where these limitations are not observed, the Commission (or other persons) has no discretion to deal with a dispute referred to it under the agreement, unless one is conferred on it under the terms of the agreement.” 37 (references omitted)

[29] In Ms Sarmiento’s case certain matters of process are evident within Clause 52 of the 2017 Agreement for the raising and progression of a “dispute”.

[30] First, it is the case that the procedure applies to the three nominated categories of dispute; namely a matter arising under the Agreement or the National Employment Standards (NES) or a matter arising under s.65(5) of the Act, dealing with flexible work arrangements (52.1). The term then requires that “in the first instance” there will be an attempt to resolve the matter at the workplace with discussions between the employee and the relevant supervisor; if that does not resolve the matter there are to be further discussions between the employee and “more senior levels of local management as appropriate” (52.2). There is the capacity for a party to the dispute to appoint a representative (52.3).

[31] If the grievance is then still unresolved “the matter shall be referred to the Senior Manager of the Employer however titled and a meeting arranged” (52.4). Despite being capitalised, the term “Senior Manager” is used only once in the 2017 Agreement and is not defined anywhere.

[32] Unlike the circumstance referred to in AWU v MC Labour Services, the situation in this matter involves something which was well known to Japara before the application was actually lodged by Ms Sarmiento on 11 July 2018.

[33] By that date, Japara representatives had sought Ms Sarmiento out and held a meeting with her on 18 May 2018 and told her that her rate of pay would be changing due to an administrative error. That meeting included Ms Patricia Ryan, named in Ms Sarmiento’s witness statement as the Goonawarra Facility Manager, as well as Ms Parry being the Japara Human Resources Business Partner. Neither of those two latter people gave evidence in these proceedings, however it is evident that Ms Sarmiento plainly did not agree with the change or the reasoning put to her.

[34] Another way of describing not agreeing with something is to dispute it. Lest there be any doubt, on 8 June 2018 the ANMF, acting on behalf of Ms Sarmiento made it clear to Ms Parry, the Japara Human Resources Business Partner that the matter of Ms Sarmiento’s classification was “unresolved”.

[35] While Ms Anderson argues that she only became aware of the situation after Ms Sarmiento made her application to the Commission that is not to be taken as a situation in which Japara only became aware at that time of the situation being disputed.

[36] I am satisfied that on a proper reading of the clause in question that Ms Sarmiento complied with the obligations set out within for her to identify, discuss, and endeavour to resolve a dispute she held with her employer. There is no question that the matter raised by Ms Sarmiento is “a matter arising under this agreement” and thereby a dispute to which Clause 52.1 applies. It is also the case that Clause 52.2 has been complied with. In that regard, I note there were discussions between Ms Sarmiento, Ms Parry and Ms Ryan. There is nothing before me which would suggest that these discussions were not discussions with “the relevant supervisor” or “more senior levels of local management”. The matter was then progressed through Clause 52.3, with the ANMF being appointed to represent Ms Sarmiento, with them then making such representations to Japara in writing to Ms Parry. Such steps reasonably meets the test of the matter in dispute being referred to “the Senior Manager of the Employer, however titled”. At that point Japara knew that it was in dispute with Ms Sarmiento about the issues she raised, and it was open to the parties to move to have “a meeting arranged”. That neither chose to do so would be unlikely to amount to something that prevented the dispute from progressing under Clause 52.

[37] As a result, the first of Japara’s Questions for Determination, pertinent to the matter of jurisdiction must be answered in the affirmative.

[38] Despite having jurisdiction to proceed to determine the application generally, that does not mean that Ms Sarmiento’s remaining Questions for Determination are within jurisdiction. In fact, it is evident that Questions 2 to 7 are beyond the capacity of the Commission to determine, with it being evident that consideration of the matters set out therein are not matters properly arising from Clause 52.1 or any other part of the 2017 Agreement. Ms Sarmiento points to no part of the 2017 Agreement or the NES that would lead a finding that any of the following is “a matter arising under this agreement” or the NES;

• Japara’s reason for failing to pay her as a Grade 4B employee (Sarmiento Question 2);

• The status of an enquiry Ms Sarmiento may have made about her pay and classification (Sarmiento Question 3);

• A declaration that Japara has refused to allow Ms Sarmiento to return to work because she has exercised a workplace right (Sarmiento Question 4);

• Whether Japara’s refusal to allow Ms Sarmiento to return to work has been for any other unlawful reason (Sarmiento Question 5);

• Whether Japara has taken adverse action against Ms Sarmiento (Sarmiento Question 6);

• The quantum of damages for any adverse action against Ms Sarmiento (Sarmiento Question 7).

[39] The Commission may only may deal with a dispute by arbitration if it is expressly authorised to do so under or in accordance with another provision of the Act (s.595(3)), which would, in this case, be an authorisation given by s.739(1), with the Commission required or authorised to do so under an enterprise agreement term; however, the Commission may not exercise power limited by the term (s.795(4)). The Commission may arbitrate in accordance with the term (s.739(4)), however must not make a decision that is inconsistent with the Act or a Fair Work instrument, including the applicable enterprise agreement (s739(5)).

[40] This application is made under s.739 of the Act, within Part 6 – 2 of the Act and such invitation as there may be for the exercise of jurisdiction is plainly limited to the matters within Division 2 of that Part. In the context of an appeal regarding a general protections matter, the Full Bench has made clear the limitations on any application to the Commission, with express authorisation under a provision of the Act required before the Commission is empowered to arbitrate a dispute. 38 The power of arbitration is sourced in s.595(3) and is activated by Part 3 – 2, Division 2. There is no power in that activation for the Commission to move beyond the things explicitly authorised in the combination of s.739 of the Act and Clause 52 of the 2017 Agreement. There is no power for the Commission to simply turn to alternative sections of the Act and consider whether Ms Sarmiento has a case under those sections.

[41] Many of the questions sought by Ms Sarmiento for the Commission to determine are plainly beyond the applicable enterprise agreement term and so must be found to be an invitation for the Commission to either exceed the authorisation given by the enterprise agreement for arbitration, or to make a decision which would be inconsistent with the Act or the 2017 Agreement.

[42] Firstly, the power of arbitration under the enterprise agreement is limited to arbitration of disputes about matters arising under the enterprise agreement or the NES. None of the matters alleged by Ms Sarmiento relate to the NES and the enterprise agreement contravention she alleges is limited to whether Japara has classified and paid her correctly. Secondly, the determination by the Commission is necessarily limited to a decision of whether Japara has an obligation under the 2017 Agreement to do certain things; matters of fairness in decision making are not within the purview of the 2017 Agreement’s dispute resolution procedure.

[43] Finally, those of Ms Sarmiento’s questions which seek answers about Japara’s decision-making process are not specifically linked to rights she has under the enterprise agreement for such explanations. While other enterprise agreements may provide rights to the provision of information about decisions impacting on individual employees, the 2017 Agreement limits the exchange of such information to those things falling within the requirement for consultation, being those matters dealt with by Clause 55 (Consultation).

[44] Two things must be observed in relation to Japara’s exchange of information.

[45] First, it does not specifically have an obligation under the 2017 Agreement to provide information and the like if it is not a definite decision to introduce a major change or it is not a change to the regular roster or ordinary hours of work of employees. Ms Sarmiento’s dispute falls into neither of these categories. Second, Japara has provided ample information to Ms Sarmiento about the rationale of its decision making on her complaint about the contested pay rate and classification (see for example the correspondence set out in Ms Anderson’s letter of 18 April 2019 and her email of 23 April 2019 39). The point is not that Japara has not provided an explanation, but rather that Ms Sarmiento disagrees with the explanation.

[46] Of Ms Sarmiento’s Questions for Determination, only Question 1 does not suffer from the difficulties indicated above. Sarmiento Question 2 invites an explanation when one has already been given and is otherwise not a matter arising under the 2017 Agreement.

[47] Sarmiento Question 3 asked whether Ms Sarmiento’s inquiry regarding her pay and classifications was an “inquiry in relation to” her employment. Self-evidently it is, however Ms Sarmiento asks the question with an eye to it being determined that her employer has contravened the Act’s “general protection” provisions. That determination is not something which may be given under Part 6 – 2 of the Act. It could only follow an application made specifically under the general protections part of the Act, Part 3 – 1. In any event, the Commission has no power of arbitration under that Part, except for the capacity to undertake a consent arbitration in relation to “Contraventions involving dismissal”. If there is no consent or a general protections application does not involve a dismissal, the only avenue for an applicant to obtain a final determination is upon application to a Court.

[48] Sarmiento Question 4 going to the matter of whether Japara has refused Ms Sarmiento to return to work because she has exercised a workplace right, is similarly outside of the Commission’s jurisdiction to determine under Part 6 – 2 of the Act. Sarmiento Question 5 (whether a refusal to allow a return to work for any other unlawful reason); Sarmiento Question 6, (whether adverse action taken against Ms Sarmiento); and Sarmiento Question 7 (quantum of appropriate damages) are also outside of the Commission’s jurisdiction to determine under the present application for the reason that they are not matters arising under the 2017 Agreement.

[49] The Commission therefore finds in respect of Japara’s Questions for Determination 2(b) and (c), asking whether the Commission has jurisdiction to determine Ms Sarmiento’s Questions 2 to 7, that there is no jurisdiction for the Commission to deal with those questions.

Merits of Sarmiento Question for Determination 1

[50] Ms Sarmiento’s Question for Determination 1, however, is within the Commission’s jurisdiction to determine, with it being the case that determination of the classification of an employee covered by the 2017 Agreement is a matter arising under the Agreement. The question is the same as Japara’s Question for Determination 2(a). In both cases the question is framed in the following manner;

“Is the Applicant's classification a Grade 4B employee for the purpose of the Aged Care Services Australia Group Pty Ltd ANMF and HWU (Victoria) Enterprise Agreement?”

[51] As indicated above, the essence of the dispute before the Commission is that Ms Sarmiento was informed she would no longer be paid the Grade 4A wage after Japara established that the rate was being paid in error.

[52] When it comes to wage rates and classifications, the 2017 Agreement is arranged as follows;

• Clause 23 requires that every employee “shall receive a Letter of Appointment, as specified in Appendix C, stating the place of work, his or her guaranteed weekly hours, classification, job title and name of this Agreement”, although the Letter of Appointment is not limited to containing only these matters (23.1);

• Clause 30 provides that wage rates and allowances are specified in appendix A and classification definitions and appointment and progression criteria in Appendix B

• Appendix A (wage rates) consists of a table showing every classification provided for within the 2017 Agreement and the yearly or other increments applicable to the classification, across 7 different pay points during the life of the agreement. So far as is relevant the table provides two yearly increments for each of Registered Nurse Levels 3A and 3AB, namely year 1 and year 2 and does the same for Registered Nurse Levels 4A and 4B. The wage rates extracted for the relevant classifications for the pay points commencing 1 April 2018, being the rates applicable at the time Ms Sarmiento had her classification rate changed are as follows;

• Registered Nurse Level 3A

Year 1 $1265.12

Year 2 $1284.26

• Registered Nurse Level 3B

Year 1 $1507.01

Year 2 $1539.71

• Registered Nurse Level 4A

Year 1 $1580.92

Year 2 $1623.04

• Registered Nurse Level 4B

Year 1 $1660.30

Year 2 $1702.01

• Appendix B (Classification Definitions) sets out a large number of classification descriptors in the manner that would be usually expected in an enterprise agreement. The Appendix does not include a preamble of any type which may be relevant to the construction of the definitions within the Appendix. The classification definitions are separated into several different occupational streams including registered nurses and provides the following for Grades 3, 4 and 5;

“3 Grade 3A

A Registered Nurse appointed to the classification and paid as such.

Grade 3B

A Registered Nurse appointed to the classification and paid as such.

4 Grade 4A

A Registered Nurse appointed as In-Charge of a facility of Jess than 61 beds in the out of hours of the Director of Nursing on PM, night and all weekend shifts and paid as such.

Grade 4B

A Registered Nurse appointed as a Nurse Unit Manager (however titled) and paid as such or who progresses from Grade 4A (if this Agreement so provides).

5 Grade 5

A Registered Nurse appointed as the After Hours Coordinator for a Facility of 61 beds or more on PM, night and all weekend shifts and paid as such. The rate of pay for this classification shall be based on the relevant bed number (usually 51 • 200 beds).

A Registered Nurse appointed as a Clinical Care Coordinator in a Residential Aged Care Facility.”

• Appendix C (Letter of Appointment) provides specified content for a Letter of Appointment and a Certificate of Services and Training. The content specified for the Letter of Appointment is this;

“The letter of appointment (however titled) will contain the following information:

1. Name of Employer.

2. Date of commencement.

3. Employee's specific classification.

4. The workplace/campus/location where the person fs to be situated.

5. The name of the Industrial instruments (e.g. Enterprise Agreement) which contains the Employee's terms and conditions of employment.

6. The mode of employment.

7. Hours of work (noting part-time arrangements shall be in accordance with the prescribed arrangements set out in the Agreement)

8. The general pattern of the shifts expected to be worked in accordance with the roster will be identified.

9. The Employee will be advised that if they agree to work regular additional shifts then they may request that the contract of employment be varied to reflect those additional hours {subject to any provisos in this Agreement).

10. Date of commencement.

11. Acknowledgment {where applicable) of prior service/entitlements to sick leave, long service, etc.

12. Other information as required depending on the nature of the position.”

[53] As will be seen from the foregoing classification definitions Grade 3A and 3B are stated, rather unhelpfully, as applying to persons who have been appointed to the classification and paid as such. There is no guidance within the 2017 Agreement as to what that descriptor is intended to mean; however, that aspect of the descriptor is ultimately not relevant to the disposition of Ms Sarmiento’s application.

[54] Classification at Grade 4A is predicated upon several factors; the person must be a Registered Nurse and they must have been appointed as “In-Charge of a facility”. That appointment must be within a facility of less than 61 beds; and the appointment must pertain to work “in the out of hours of the Director of Nursing on PM, night and all weekend shifts”.

[55] There is no question before the Commission that Japara Goonawarra Aged Care Facility is substantially larger than a facility with less than 61 beds. The evidence is plainly that Goonawarra Aged Care Facility has 120 residential aged care beds across three wings. 40 Ms Anderson puts forward in her witness statement that as at 13 August 2019, 108 beds were occupied, with the facility employing approximately 150 people.41

[56] Japara argue that as a result of this and other matters, the Commission should find Ms Sarmiento is incapable as being classified as a Grade 4B employee;

“c. As the Goonawarra facility is a facility with 120 beds, the Grade 4A classification cannot have properly applied to the Applicant and had historically been administered in error.

d. The Applicant is not employed as a Nurse Unit Manager and accordingly, noting the matter set out at paragraph 33.c above, there are no circumstances which exist that give rise to her properly being classified as a Grade 4B Registered Nurse under the 2017 Agreement.” 42

[57] Japara’s submissions also address the question of the payments it considers it is required to make to Ms Sarmiento generally, including for those occasions she may be called upon to work in an “In-charge” capacity;

“34. Whilst it is not strictly necessary for the Commission to determine, it is the Respondent’s position that:

a. in circumstances where the Applicant performs a shift as ‘nurse in charge’ she is entitled to undertake tasks, and receive payment at Grade 5; and

b. for all other shifts she is entitled to be paid as a Grade 3 Registered Nurse, under the 2017 Agreement.” 43

[58] For the purposes of context, the rate of pay applicable to a Grade 5 employee at 1 April 2018, identified in Appendix A as being “Registered Nurse Level 5, 51 - 200 Beds” was $1735.02 and the classification is defined thus;

“5 Grade 5

A Registered Nurse appointed as a Clinical Care Coordinator in a Residential Aged Care Facility.”

[59] As referred to above, there is an obligation arising from Clause 23 for Japara to provide each of its employees (with the exclusion of casual employees) with a Letter of Appointment conforming with the requirements stated within Appendix C of the 2017 Agreement. That letter, as applicable to Ms Sarmiento does not appear to be before the Commission. Although there is a “Contract of Employment Nursing & Associated Support Staff – ACSAG Victoria”, 44 referable to Ms Sarmiento, that document does not state her place of work, her guaranteed weekly hours, classification or job title. The most that document rises is to say that in June 2011, when the document was signed, Ms Sarmiento was offered and accepted the position of “Div 1 part time”. Other than for Ms Anderson’s advice to the ANMF on 19 June 2019 that such is a reference to Ms Sarmiento being classified as a “Registered Nurse Division 1”,45 there is no evidence about the meaning of the abbreviation.

[60] Arising out of the conciliation conducted by me, Japara forwarded to Ms Sarmiento two pieces of correspondence addressing a number of questions which had been raised in the conciliation and which supported Japara’s arguments that she was properly classified. Although the material arises out of the conciliation, the correspondence was tabled by Japara in the arbitration of this matter and there was no objection to its admissibility made by Ms Sarmiento. The letter and email are open documents and I consider it appropriate to rely upon the information contained therein. I otherwise place no reliance on any other matter which arose out of the conciliation. So far as is relevant, the following may be drawn from the correspondence as explaining Japara’s position about Ms Sarmiento’s classification claim;

• 18 April 2019 letter

“1. Description of Grade 3 Registered Nurses in the 2017 Agreement

• The 2017 Agreement commenced operation on and from 10 April 2018. The 2017 Agreement replaced the Aged Care Services Australia Group Pty Ltd, ANMF and HSU (Victoria) Enterprise Agreement 2014 on and from this date.

• The 2017 Agreement applies to your employment with Japara as you are employed as a parttime Registered Nurse at the Goonawarra facility.

• The Goonawarra facility is an aged care facility with 120 beds.

• Descriptions of a Grade 3 Registered Nurse are set out at page 13 of Appendix B of the 2017 Agreement, as follows:

◦ Grade 3A

A Registered Nurse appointed to the classification and paid as such.

◦ Grade 3B

A Registered Nurse appointed to the classification and paid as such.

• The distinction between a Level 3A and Level 3B Registered Nurse is a historical matter, arising prior to the commencement of the 2017 Agreement or its 2014 predecessor. The reference to Level 3A and Level 3B is a ‘legacy’ matter created from the transition away from the ‘old’ Nurses (Victorian Health Services) Award 2000 (which no longer applies to Japara) (Old Award).

• You can access the Old Award online at

• Clause 31.4.1 of the Old Award defines a Grade 3A Registered Nurse as “A Registered Nurse appointed as an Associate Charge Nurse in a non-major hospital and paid as such.”

• Clause 29.14 of the Old Award defines an “Associate Charge Nurse” as “a Registered Nurse who is appointed as such and who, within the guidelines and practices established by the Charge Nurse, assists in the overall clinical and administrative management of a ward or unit and deputises for the Charge Nurse when required within these limits.”

• As you have acknowledged, on occasion you are required to act as 2IC (aka ‘deputy’) for the RN in charge on shift.

• Accordingly, in line with the above underlying historical definitions it is appropriate that you be classified as a Level 3A RN under the 2017 Agreement.

2. Rationale as to why you do not meet the criteria of Grade 3B

• As noted above, the distinction between a Level 3A and Level 3B Registered Nurse is a ‘legacy’ matter created from the transition away from the Old Award.

• Clause 31.5 of the Old Award defines a Grade 3B Registered Nurse as:

◦ 31.5.1 A Registered Nurse appointed as an Associate Charge Nurse in a major hospital and paid as such.

◦ 31.5.2 A Registered Nurse appointed as a Bush Nurse and paid as such.

◦ 31.5.3 A Registered Nurse appointed as a Clinical Consultant A and paid as such.

◦ 31.5.4 A Registered Nurse appointed as a Community Health Nurse and paid as such.

◦ 31.5.5 A Registered Nurse appointed as a Child Care Director (having places for 26 to 44 children) and paid as such.

◦ 31.5.6 A Registered Nurse appointed as an Occupational Health Nurse Supervisor and paid as such.

◦ 31.5.7 A Registered Nurse appointed as a School/Campus Nurse Level 2 and paid as such.

◦ 31.5.8 A Registered Nurse appointed as a Low Care Residential Aged Care Facility Assistant Administrator Level 2 (less than 61 beds) and paid as such.

◦ 31.5.9 A Registered Nurse who, without comparable experience in dealing with the Homeless, is appointed as a Royal District Nursing Service - Community Health Nurse - Homeless Persons Program (Sole) and paid as such, the rate of pay for this classification shall be Grade 3B Year 2 during their first year of experience as a sole nurse in the Homeless Persons Program.

• As noted above, Goonawarra is an aged care facility with more than 61 beds. Goonawarra is not a ‘major hospital’. Nor is it a ‘low care residential aged care facility’ with ‘less than 61 beds’ nor - to that end – are you appointed as an ‘assistant administrator level 2’ appointed as such in such a facility.

• For the sake of completeness, we further confirm that you are not appointed as a ‘bush nurse’, ‘clinical consultant A’, ‘ community health nurse’, ‘ child care director’, ‘ occupational health nurse supervisor’, ‘school/campus nurse level 2’ or ‘royal district nursing service – community health nurse – homeless persons program’ nurse.

• Accordingly, none of the descriptors of a Level 3B in the Old Award have any application to your employment with Japara.

3. Rational as to why you do not meet the criteria of Grade 4A

• Description of a Grade 4A Registered Nurse is set out at page 13 of Appendix B of the 2017 Agreement, as follows:

◦ Grade 4A

A Registered Nurse appointed as In-Charge of a facility of less than 61 beds in the out of hours of the Director of Nursing on PM, night and all weekend shifts and paid as such.

• As the Goonawarra facility is a facility with 120 beds, this pay rate cannot apply to you.

• As has been previously explained to you – on numerous occasions - where you are required to undertake tasks associated with the In-Charge RN / After Hours Coordinator at Goonawarra, you will be paid in accordance with the rate of a Grade 5 RN.

◦ Grade 5 A Registered Nurse appointed as the After Hours Coordinator for a Facility of 61 beds or more on PM, night and all weekend shifts and paid as such. The rate of pay for this classification shall be based on the relevant bed number (usually 51 - 200 beds).” 46 (underlining in original)

• 23 April 2019 email (which responds to further queries raised by Ms Sarmiento on 18 April 2019;

“The agreement reached during the FWC conference before Commissioner Wilson, was for Japara to clarify why your employment is aligned to a level 3A, and not a level 3B under the 2017 Agreement.

To this end we note that your employment with Japara:

• is covered by the Aged Care Services Australia Group Pty Ltd, ANMF and HWU (Victoria) Enterprise Agreement 2017 ;

• is not covered by the Nurses (Victorian Health Services) Award 2000 .

As set out in my letter of 18 April 2019, the relevance of the old Nurses Award definitions is confined to an historic application as the definitions applicable under the 2017 Agreement stand alone and do not incorporate these old definitions.

However, to provide clarity to you we have identified - and as the ANMF have previously confirmed - that level 3B does not apply to your employment within the Goonawarra facility.” 47

[61] The correspondence provided by Japara to Ms Sarmiento is consistent with what may be regarded as the proper construction of the 2017 Agreement. Notwithstanding that the Agreement uses the unhelpful and ultimately circuitous jargon that a person classified as either Grade 3A or 3B is someone “appointed to the classification and paid as such” it is abundantly demonstrable that there are specific requirements within the descriptors applicable to Grade 4A and 4B with those descriptors being designed to restrict the circumstances in which a person can in fact be appointed to those levels and paid as such. Notwithstanding the difficulties associated with resolution of the term “appointed to the classification and paid as such” it is the latter factors which relevant to the disposition of Ms Sarmiento’s claim, and there is no ambiguity associated with ascertainment of the requisite conditions.

[62] Grade 4A is plainly restricted to small facilities of less than 61 beds. Japara Goonawarra Aged Care Facility simply does not meet that requirement, having 120 beds. At least in that respect the descriptor is not ambiguous and there is no available extrinsic material that would suggest it is. There is no means by which a construction can be achieved under the 2017 Agreement for that classification to be applied to Ms Sarmiento or, for that matter any person at Japara Goonawarra Aged Care Facility.

[63] Grade 4B is different from Grade 4A. It does not, on its face, include the restriction to small facilities evident within the descriptor for Grade 4A. However, because of the stated condition within the descriptor that it applies to “Nurse Unit Manager (however titled)” it is unnecessary to determine in this decision whether the small facility limitation also applies to Grade 4B. Insofar as the descriptor limits operation of the classification to someone who is appointed “as a Nurse Unit Manager (however titled)” the term is not ambiguous and there is no available extrinsic material that would suggest it is. There is nothing before the Commission that would suggest that Ms Sarmiento was at any time engaged as a Nurse Unit Manager. In any event Japara note that while “on occasion” Ms Sarmiento is “required to act as 2IC (aka ‘deputy’) for the RN in charge on shift”, when she is “required to undertake tasks associated with the In-Charge RN / After Hours Coordinator at Goonawarra, [she] will be paid in accordance with the rate of a Grade 5 RN.” 48

[64] As is alluded to in the April 2019 correspondence to her from Japara, Ms Sarmiento endeavours to bring within her contentions that interpretation of the 2017 Agreement requires consideration of the “Nurses Award 2000”, being a reference to the Nurses (Victorian Health Services) Award 2000. 49 Japara submit that they dealt with this issue in the correspondence from Ms Anderson to Ms Sarmiento on 18 April 2019 putting forward that “the relevance of the old Nurses Award definitions is confined to an historic application as the definitions applicable under the 2017 Agreement stand alone and do not incorporate these old definitions”.50 The 2017 Agreement does not incorporate the Award either in whole or in part, and there is no provision within the agreement that would require it to be construed in accordance with the Award. I agree that the references to the Award do not assist in the construction of the 2017 Agreement and therefore place no reliance upon what is submitted in this regard by Ms Sarmiento.

[65] Ms Sarmiento’s Question for Determination 1 and Japara’s Questions for Determination 2(a) are therefore resolved in the negative.

[66] In respect of Japara’s Question for Determination 3 going to the matter of a costs order against Ms Sarmiento, there is nothing before the Commission that would indicate that the making of an application under s.611 is not available to Japara. Beyond that, I consider providing an answer to the question would be inappropriate. Whether or not Japara is entitled to make an application pursuant to the section or, perhaps somewhat more significantly, whether it is a good idea to do so, is a matter for Japara and those who advise it.

[67] As a result of the foregoing the Questions for Determination from each of the parties are determined as follows;

• Ms Sarmiento’s Questions for Determination

Q1. Is the Applicant's classification a Grade 4B employee for the purpose of the Aged Care Services Australia Group Pty Ltd ANMF and HWU (Victoria) Enterprise Agreement?

A: No.

Q2. Why has the Respondent failed to pay the Applicant as a Grade 4B employee, in accordance with the enterprise agreement?