Michael Franco v Canberra Health Services
[2023] FWC 3197
•5 DECEMBER 2023
| [2023] FWC 3197 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Michael Franco
v
Canberra Health Services
(C2023/4838)
| DEPUTY PRESIDENT DEAN | CANBERRA, 5 DECEMBER 2023 |
Application to deal with a dispute – pay increments when higher duties are performed.
Mr Michael Franco (Applicant) is employed with Canberra Health Services (Respondent). His employment is covered by the ACT Public Sector Health Professionals Enterprise Agreement 2021-22 (the Agreement).
A dispute has arisen about the payment of higher duties allowance (HDA) to the Applicant. He contends that a period of higher duties he performed for just over two years from January 2013 to February 2015 at a HPO4 level classification should be counted for pay increment purposes for his HPO3 HDA which commenced in July 2022. The Respondent disagrees.
The questions for determination are as follows:
1.If the previous HPO4 higher duties service had been considered in determining the appropriate pay point for the HPO3 HDA at the time the Applicant was placed on HPO3 higher duties from 11 July 2022, would he have been entitled to be placed on the HPO3.3 increment level from 11 July 2022?
2.What is the definition of ‘level’ and how is it to be interpreted in clause 5.3?
3.For HDA incremental advancement purposes, does higher duties performed at a higher classification count toward incremental advancement at lower-level higher duties classifications?
4.Who is responsible for considering previous higher duties services and determining the appropriate pay point for future periods of higher duties?
The application was heard by video on 24 November 2023. The Applicant appeared and was assisted by his father, and the Respondent was represented by Mr Chilcott of the ACT Government Solicitor.
Brief background
The Applicant commenced employment at the HP2 classification in June 2009.
On 21 January 2013 he commenced a period of higher duties at the HP4 classification. This period of higher duties ceased on 18 February 2015.
On 11 July 2022 he commenced another period of higher duties, this time at a HP3 classification, on the base HP3 increment of HP3.1.
On 1 June 2023 the Applicant was permanently appointed to the HP3.1 classification.
On 26 June 2023 the Applicant submitted a request seeking that the HP4 higher duties in 2013-2015 be counted for increment purposes for his higher duties at the HP3.1 classification from 11 July 2022.
The application was initially refused, and multiple communications then passed between the Applicant and the Respondent.
On 5 September 2023 the Respondent approved the Applicant’s application for accelerated advancement to the HP3.3 classification. This advancement was backdated to 26 June 2023 to the maximum permissible increment point allowable under clause C5.6.2 of the Agreement.
Relevant clauses in the Agreement
Clause C5 – Pay points and Increments is in the following terms:
C5 - Pay Points and Increments
C5.1A person who is engaged by the ACTPS, or an employee who is promoted or is approved to perform the duties of a higher office, is entitled to be paid at the first pay point for the classification level.
C5.2Despite subclause C5.1, the head of service may approve a person who is engaged by the ACTPS, or an employee who is promoted or approved to receive higher duties allowance, to be paid at a higher pay point within that classification level.
C5.3Increments apply to both an employee's permanent and higher duties classification. When an employee has completed 12 months higher duties within a 24 month period an increment will be paid and all further instances of higher duties will be paid at this level.
C5.4Previous service at a higher duties pay must be considered when determining a pay point should the employee be promoted to that classification, and will be used to determine the date at which increments fall due.
C5.5An eligible employee is entitled (subject to there being no Underperformance or Discipline action undertaken in accordance with Section H – Workplace Values and Behaviours) to be paid an annual increment on and from the relevant anniversary of the date of commencement in the position for the employee concerned.
C5.6 Accelerated incremental advancement may occur as follows:
C5.6.1 A person who is engaged by the ACTPS, or an employee who is promoted or approved to perform higher duties, may be paid at a higher pay point within that classification level.
C5.6.2Subject to a maximum of 2 additional increments within the classification range being awarded to the employee in a 12 month period (excluding any additional increments awarded to the employee on commencement in the position in accordance with subclause C5.2), the head of service may approve the payment of additional accelerated increments to the employee at one of the following times:
C5.6.2 (a) At the time annual incremental advancement is due: i.e., at the time an employee is eligible for annual incremental advancement (either in the substantive or higher duties position).
C5.6.2 (b) At any other time between periods of annual incremental advancement.
C5.6.3 Where an employee is awarded additional accelerated increments over the 12 month period between the payments of annual increments in accordance with paragraph C5.6.2, the employee is still eligible for the payment of an annual increment, and the date of effect of the annual increment will remain unchanged.
C5.7 In considering whether to approve payment at a higher pay point (as per subclause C5.2), or accelerated advancement (as per subclause C5.6), the head of service must take into account all of the following factors:
C5.7.1The employee’s qualifications.
C5.7.2The employee’s relevant work and personal experience.
C5.7.3The employee’s current pay.
C5.7.4The employee’s ability to make an immediate contribution.
C5.7.5Difficulties in attracting and retaining suitable employees.
The relevant provisions of Clause 7 – Higher Duties Allowance are as follows:
C7.10An officer receiving HDA is entitled to normal incremental progression for the officer’s substantive position and the HDA position in accordance with C5 -.
C7.10.1 Increments gained while performing HDA are maintained upon the officer ceasing the higher duties.
C7.11 Previous higher duties service will be considered in determining the appropriate pay point for future periods of higher duties.
Interpretation of the key provisions
The long-accepted principles of interpretation of an enterprise agreement[1] are summarised as follows:
a. Start with a consideration of the ordinary meaning of the relevant words, having regard to context and purpose including the text of the agreement as a whole and the disputed provision’s place and arrangement in the agreement.
b. Interpret the agreement as written, not as amended to achieve a fair or just outcome.
c. Ascertain the common intention of the parties to the agreement in an objective sense, that is by reference to what a reasonable person would understand of the language used.
d. The interpretation principles under general law may assist in the interpretation of enterprise agreements, however an overly technical approach to interpretation should be avoided.
e. Determine whether the wording has a plain meaning or is ambiguous or susceptible to more than one meaning. If a plain meaning exists, evidence of surrounding circumstances cannot be used (and is not admissible) to contradict the plain meaning. However, such evidence may assist to determine whether ambiguity exists, and will therefore be admissible to aid the interpretation.
In relation to C5.3 and C5.4, being the core clauses relevant to the dispute, the parties made the following submissions.
The Applicant submitted that the phrase “all further instances of higher duties” in clause C5.3 is ambiguous. He did not agree with the Respondent’s interpretation that these words meant all further instances of higher duties at the same classification count for HDA increment purposes. Rather, he contended that this phrase should be interpreted as higher duties at any classification, and that "all further instances of higher duties will be paid at this level" is intended to be interpreted as all future instances of higher duties will be paid at the same extent and standard as the existing higher duties allowance increment eg. increment level 2 or 3.
The Respondent submitted that in circumstances where an employee performs higher duties, clause 5.3 operates to ensure that the employee is not disadvantaged in undertaking the higher duties and accrues an entitlement to incremental advancement in the classification which the higher duties are performed. Where an employee has completed a 12-month period in their higher duties classification they receive an incremental advancement to the next pay point in that classification. The entitlement to an incremental advancement is further explained in clause 5.3 where it is stated that if an employee aggregates 12 months at that higher duties classification within 24 months, an increment will be paid and all further instances of higher duties will be paid at this level. For example, if an employee were to perform higher duties for 12 months at a higher duties classification, return to their substantive classification for a period of one month, and then resume higher duties – in the absence of clause 5.3, that employee would lose the incremental pay point achieved at the higher duties classification. However, clause 5.3 contains a timing limitation on the preservation of higher duties incremental pay points, that being that the 12 months at that classification must be completed within a 24-month period.
The Applicant, in relation to clause C5.4, disagreed with the Respondent’s interpretation that the word ‘that classification’ related only to HAD within that specific classification. He said the words were unambiguous and the clause had a specific purpose as ‘previous service or higher duties pay’ is not required to meet the 12 months in 24 months rule to be considered. In other words, the clause relates only to specific consideration of previous higher duties service when an employee is promoted to ‘that’ (ie same) classification.
The Respondent submitted that the use of the word ‘must’ in clause C5.4 indicates it is mandatory for the appointing delegate to consider previous higher duties when determining what pay point an employee should receive.
Consideration
Question 1 - If the previous HPO4 higher duties service had been considered in determining the appropriate pay point for the HPO3 HDA at the time the Applicant was placed on HPO3 higher duties from 11 July 2022, would he have been entitled to be placed on the HPO3.3 increment level from 11 July 2022?
The Applicant submitted that it was evident from his email correspondence with the Respondent that his HP4 higher duties was not considered in determining the appropriate pay point for his HP3 higher duties from July 2022, because the Respondent only took account of any higher duties performed within the previous 24 months. He contended that clause C5.3 and C7.11 would have entitled him to commence his HP3 higher duties at the HP3.3 level.
The Respondent submitted that the answer to this question is ‘no’ because increment advancement is specific to the position classification to which the employee occupies, and increment advancements do not cumulate within classifications other than the permanent position occupied by an employee or their higher duties classification. As a result, when the Applicant commenced higher duties in the HP3 position on 11 July 2022, his salary was correctly commenced at HP3.1, and his advancement to HP3.2 was due 12 months later, on 11 July 2023. In the intervening period, he sought and was eventually granted the maximum available accelerated advancement under clause 5.6.2 of two pay points to HP3.3, commencing on 26 June 2023.
I find that the answer to question 1 is ‘no’. This is because the Respondent was not required to take account of the HP4 higher duties. I accept the Respondent’s construction of the relevant clauses is correct and the reference to ‘at this level’ in C5.3 means the classification level at which the higher duties had been performed. This is expanded on further in question 2 below. I also accept that clause 5.3 contains a timing limitation on the preservation of higher duties incremental pay points, that being that the 12 months at that classification must be completed within a 24-month period.
As the Applicant had not previously performed higher duties at the HP3 classification, his higher duties at the HP4 classification was not counted for the purpose of C5.3.
Question 2 - What is the definition of ‘level’ and how is it to be interpreted in clause 5.3?
The Applicant submitted that ‘at this level’ is intended to be interpreted as all future instances of higher duties will be paid at the same extent and standard as the existing higher duties allowance increment.
The Respondent submitted that the words ‘at this level’ must be read in the context of the Agreement. It submitted that the classification level is the position that an employee is appointed to and/or perform higher duties in. Classification levels are contained in Annex A to the Agreement. Annex A prescribes the available pay points within a classification level. The terms ‘pay point’ and ‘increment’ are used interchangeably within the Agreement. In the context of clause 5.3, the Respondent submits that ‘level’ refers to the relevant pay point/increment within the classification level that has been obtained through incremental advancement in accordance with the Agreement.
I agree that ‘level’ in this context is the relevant pay point (or increment) within the specific classification level that has been obtained through incremental advancement under the Agreement.
Question 3 - For HDA incremental advancement purposes, does higher duties performed at a higher classification count toward incremental advancement at lower-level higher duties classifications?
The Applicant contended that higher duties performed at a higher classification counts towards incremental advancement at lower level higher duties classifications.
In response to this question, the Respondent submitted that the answer was ‘no’, because higher duties performed at higher classifications does not count towards incremental advancement at future lower-level higher duties opportunities. It further submitted that increment advancement is specific to the position classification to which the employee occupies, increment advancements do not cumulate within classifications other than the permanent position occupied by an employee (clause 7.10) or their higher duties classification (clause 5.3) The exception in clause 5.3 can only apply to higher duties at one classification. For example, it cannot apply to an aggregation of higher duties at multiple levels such as HP 3 and HP 4. The increment referred to in the second sentence of clause 5.3 is based on a person completing the required time at one classification level. Having done that, they will receive an increment and it must be inferred from the language at 5.3 that all instances of HDA at that classification will be paid at this level.
The Respondent also submitted that the words ‘higher duties’ at different classification levels will separately attract the operation of C5.3, in other words it is conceivable that in a 24-month period a person may act in 12 months at HP3 and 12 months at HP4. Further periods at the HP3 level, would attract higher duties at the incremental level achieved at the HP3 classification and likewise for the HP4 classification if a person is invited to undertake higher duties at that level in the future.
I agree with the Respondent’s construction. When considering the context and purpose including the text of the Agreement as a whole, it is clear that incremental advancement is specific to the position classification which the employee occupies, and increments do not cumulate within classifications other than the permanent position or their higher duties classification.
Question 4 - Who is responsible for considering previous higher duties services and determining the appropriate pay point for future periods of higher duties?
Both parties agreed that the Respondent is responsible for considering previous service at higher duties pay and determining the appropriate pay point for future periods of higher duties.
Conclusion
I have considered the submissions of the parties and the relevant clauses of the Agreement, and their context and purpose including the text of the Agreement as a whole and the disputed provision’s place and arrangement in the Agreement.
In summary, I concur with the interpretation put by the Respondent. The questions for determination have been answered and the dispute is so determined.
DEPUTY PRESIDENT
Appearances:
R Franco for Michael Franco.
M Chilcott of ACT Government Solicitor for Canberra Health Services.
Hearing details:
2023.
By video:
November 24.
[1] See AMWU v Berri Pty Limited[2017] FWCFB 3005.
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