Mark Drew v Essential Energy - [2024] FWC 3489

[2024] FWC 3489

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Mark Drew
v

Essential Energy

(C2024/2813)

DEPUTY PRESIDENT EASTON

SYDNEY, 13 DECEMBER 2024

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – classification – progression provision – qualification provisions – overlapping provisions – drafting deficiencies – interpretation.

A dispute has arisen regarding the terms of the Essential Energy Enterprise Agreement 2021 (2021 Agreement). Mr Mark Drew has been employed by Essential Energy and its predecessors since 1990. The dispute concerns the pay level Mr Drew should be paid under the enterprise agreement.

Mr Drew commenced employment with Northern Rivers County Council in 1990 as an electrical apprentice. He completed his apprenticeship in 1994 and was then employed as a Metering Technician, Metering Team Leader and then Meter Replacement Coordinator. In 2015 Mr Drew was appointed to the position of Program/Project Manager.

Significantly, from 2015 onwards he was paid as a Technical Officer Level 15.

The Essential Energy Enterprise Agreement 2013 (the 2013 Agreement) applied to Mr Drew’s employment at the time he was promoted to the position of Program/Project Manager. The 2013 Agreement contained three provisions that are important to the current dispute. The three terms are not materially different to the corresponding provisions in the 2021 Agreement:
The 2013 Enterprise Agreement:
1.20 APPOINTMENTS AND PROGRESSION

Appointments will be made at the base classification rate for each applicable role.
Appointments may be made above the entry level for the classification for an applicable role within the appropriate evaluated band subject to approval by executive level management.

Progression within each classification will be as described for each role in Section 8 - Progression Guidelines.

In addition to the progression criteria as mentioned above, all progression will be subject to satisfactory performance determined from performance review.

…
8.1 CLASSIFICATION GUIDELINES
…

Appointments
(i)All appointments will be made at the entry level for the classification established for the position.
(ii)All new appointments should hold a relevant qualification for the position.
(iii)If an appointment is made where the employee does not hold the relevant qualification, they will remain at the entry level until such time as they achieve the required qualification.
(iv)Where an appointment has been made to a position which spans two classification bands the appointment will be made at the entry level of the lower classification band.
(v)Where an appointment has been made without the required qualification, the employee will be provided the opportunity to complete the qualification and be provided with study assistance as per the relevant Essential Energy policy.
(vi)Appointments may be made above the entry level classification for an applicable role within the appropriate evaluated band subject to approval by executive level management.

Progression
(i)Progression within the evaluated classification band shall be based on documented satisfactory performance review on an annual basis.

…
8.2 PROGRESSION ARRANGEMENTS
…
8.2.5 TECHNICAL OFFICER
…

TECHNICAL OFFICER (Degree/Technical Management)

Level Pay Point Requirements

13 37 · Appropriate Degree qualification

14 38

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mark Drew v Essential Energy

Details

AGLC: Mark Drew v Essential Energy [2024] FWC 3489
Case: [2024] FWC 3489
Decision Date: 13 DECEMBER 2024

CaseChat Overview and Summary

The Fair Work Commission heard a dispute between Mr Mark Drew and Essential Energy concerning the pay level Mr Drew should be paid under the Essential Energy Enterprise Agreement 2021. The central issue was whether Mr Drew, who was employed as a Technical Officer but lacked the required degree qualification, was entitled to progress beyond the entry-level pay point of 37. Mr Drew argued that since he was initially appointed at a higher level, he should be exempt from the rule that requires employees to remain at the entry level if they do not obtain the appropriate qualification. Essential Energy maintained that the guidelines clearly state that employees without the required qualifications cannot progress beyond the entry level. The Commission had to determine the correct interpretation of the relevant provisions in the agreement.

The Court applied established principles of interpreting enterprise agreements, emphasizing a purposive approach that considers the ordinary meaning of the words in context. The Court noted that while the provisions might have drafting deficiencies, they should be interpreted to make sense according to basic conventions of the English language. The Court concluded that the plain meaning of the provisions, read as a whole and in context, indicated that employees without the appropriate qualifications do not progress beyond the entry level, subject to certain exceptions. The exception allowing for higher initial appointments does not exempt employees from all criteria or constraints in the agreement. The Court found that Mr Drew was not entitled to progress beyond the entry-level pay point of 37.

The Fair Work Commission determined that Mr Drew was not entitled to progress beyond the entry-level pay point of 37 under the Essential Energy Enterprise Agreement 2021. The decision was based on the interpretation of the relevant provisions, which, when read as a whole and in context, indicated that employees without the appropriate qualifications do not progress beyond the entry level. The Court's decision was made in accordance with established principles of interpreting enterprise agreements, ensuring that the interpretation made sense according to the basic conventions of the English language.

Orders