Michael Watson v Safe Places Community Services Limited T/A Safe Places for Children (Safe Places)
[2020] FWCFB 2993
•12 JUNE 2020
| [2020] FWCFB 2993 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Michael Watson
v
Safe Places Community Services Limited T/A Safe Places for Children (Safe Places)
(C2020/966)
VICE PRESIDENT CATANZARITI | SYDNEY, 12 JUNE 2020 |
Appeal against decision [2020] FWC 323 of Commissioner Booth at Brisbane on 29 January 2020 in matter number C2018/5009.
[1] Mr Michael Watson has lodged an appeal, for which permission is required, against a decision 1 of Commissioner Booth on 29 January 2020 (decision) made pursuant to s 739 of the Fair Work Act 2009 (FW Act) and clause 8 Dispute Resolution Procedure of the Safe Places for Children Enterprise Agreement 2013 (Agreement). Mr Watson is employed as a Youth Worker by Safe Places Community Services Limited T/A Safe Places for Children (Safe Places). Safe Places is a not-for-profit organisation that provides therapeutic care for high-needs children and young people in a residential setting.
[2] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. There is no right to appeal and an appeal may be made only with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission may otherwise be granted on discretionary grounds.
[3] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 2 In GlaxoSmithKline3 a Full Bench of the Commission identified some of the considerations that may attract the public interest at [27]:
‘… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…’
[4] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 4
[5] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 5 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[6] The appeal was anticipated to be listed for face to face hearing however in light of the COVID-19 pandemic and the closure of the Commission’s premises the parties agreed, and we considered it appropriate, that the appeal would be decided on the basis of the written submissions without holding a hearing consistent with s 607(1) of the FW Act.
[7] The dispute the subject of the decision concerned the “reconciliation” of Mr Watson’s remuneration for the period March 2017 – March 2018 (reconciliation period) pursuant to the Agreement with the amount he would have received had the Social Community Home Care and Disability Services Industry Award 2010 (Award) applied to him (reconciliation). The reconciliation was available to Mr Watson because of a term of the Agreement inserted by way of undertaking provided under s 190 of the FW Act at the time of the approval of the Agreement in 2013. 6
[8] There appears to be no contest that the Commission had the necessary jurisdiction to determine the dispute given the terms of the Agreement and s.739 of the FW Act.
[9] Mr Watson was represented by his union, the Australian, Municipal, Administrative, Clerical and Services Union known as The Services Union (TSU).
[10] TSU and Safe Places agreed upon two questions to be answered by the Commissioner in the arbitration of the dispute. The first question concerned a contest about the classification in the Award that should be applied to Mr Watson for the purposes of the reconciliation. This question also included consideration of the level of work performed by Mr Watson, the level of supervision, and the effect of a Certificate IV in Youth Work held by him. The second question concerned calculations for the purpose of the reconciliation itself, and in particular, how work outside ordinary hours would be treated pursuant to the Award for the purpose of comparison with the amount Mr Watson received pursuant to the Agreement.
[11] In the decision the Commissioner found that the correct comparative classification for Mr Watson was Level 2 of the Award from July 2018, and that Safe Places had, subject to one caveat, correctly applied the reconciliation term of the Agreement. In so doing, the Commissioner considered each of the Award provisions that were claimed to provide some disadvantage to Mr Watson and found that no disadvantage applied. The caveat concerned the impact upon the overall recalculation of the inclusion of progression payments required under the Award’s classification structure that had not originally been included by Safe Places.
Grounds of appeal
[12] TSU’s grounds of appeal are as follows:
1. The Commissioner erred in failing to determine the level of work performed by the appellant under the Social, Community, Home Care and Disability Services Industry Award (the SCHADS Award) as required by Question I a. of the Questions for Arbitration.
2. Further or alternatively the Commissioner erred by finding that the work performed by the appellant was level 2 under the SCHADS Award but failing to apply that finding when determining Question 2 - the Reconciliation Question.
3. The Commissioner erred by finding that Undertaking 2 of the Safe Places for Children Enterprise Agreement 2013 (the Agreement) is to ensure that an employee is not disadvantaged by the Agreement as opposed to ensuring that:
(a) the undertaking has a meaning which resolves the concern under 190(1)(b)
(b) and that an employee employed under the terms of the Agreement is “better off overall”.
4. The Commissioner erred at paragraph 11.6 of the Decision by finding that the nature of the reconciliation required by Undertaking 2 of the Agreement was to be carried out on the premise that the employee had made agreements with the employer under the terms of the Award rather than applying the terms of the Award without any hypothetical agreements made under the Award being taken into account.
5. The Commissioner erred by relying on a reconciliation prepared by the respondent purportedly in discharge of its obligations under Undertaking 2 which:
(a) was not produced to the Commission
(b) on the evidence of the respondent contained errors
(c) was calculated on the basis that the work performed was properly classified at Level 1 of the SCHADS Award.
[13] For the reasons outlined below we have decided to grant permission to appeal and uphold Ground 2 and Ground 5 (c) of the appeal and otherwise dismiss the appeal in relation to the other grounds.
[14] Further, on a rehearing we have determined that the Level 2 Paypoint 4 of the Award should be used as the wage basis of the reconciliation calculation for the entirety of the annual period under review. This and other findings set out later in this decision properly determine the matter before the Commission.
Relevant Agreement and Award provisions
[15] It is convenient to set out the provisions of the Agreement and the Award that are relevant to the contest between the parties.
[16] The term of the Agreement that underpins the dispute between the parties was inserted by way of an undertaking at the time of the approval of the Agreement. It is as follows:
Undertaking 2
Employees of Safe Places Community Services Limited employed under the Safe Places for Children Enterprise Agreement 2013 (the Agreement) will not be disadvantaged over the life of the Agreement when their terms and conditions under the Agreement are compared to MA0001 00 - Social, Community, Home Care and Disability Services Industry Award 2010 (the Award) as amended during the life of the Agreement; and
Each employee covered by the Agreement is entitled if they request it, to a reconciliation on an annual basis, to establish whether for work performed under the Agreement in the preceding year, the employee's total remuneration is less than the employee would have received under the Award; and
Where an employee terminates employment that employee is entitled, if requested, to a reconciliation for the year or part of a year immediately preceding termination of employment; and
Where a reconciliation establishes that an employee has been paid less under the Agreement than the employee would have been paid for performing the same work under Award, the employee will be reimbursed for the difference between the amount paid under the Award and the amount paid under the Agreement.
[17] The relevant provision of the Award concerning hours of work is as follows:
25. Ordinary hours of work and rostering
25.1 Ordinary hours of work
(a) The ordinary hours of work will be 38 hours per week or an average of 38 hours per week and will be worked either:
(i) in a week of five days in shifts not exceeding eight hours each;
(ii) in a fortnight of 76 hours in 10 shifts not exceeding eight hours each; or
(iii) in a four week period of 152 hours to be worked as 19 shifts of eight hours each, subject to practicality.
(b) By agreement, the ordinary hours in clause 25.1(a) may be worked up to 10 hours per shift.
[18] The relevant classification structure of the Award is found at Schedule B. Classifications for Social and community services employees 1 – 4 are set out below:
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.
B.3 Social and community services employee level 3
B.3.1 Characteristics of this level
(a) A person employed as a Social and community services employee level 3 will work under general direction in the application of procedures, methods and guidelines which are well established.
(b) General features of this level involve solving problems of limited difficulty using knowledge, judgment and work organisational skills acquired through qualifications and/or previous work experience. Assistance is available from senior employees. Employees may receive instruction on the broader aspects of the work. In addition, employees may provide assistance to lower classified employees.
(c) Positions at this level allow employees the scope for exercising initiative in the application of established work procedures and may require the employee to establish goals/objectives and outcomes for their own particular work program or project.
(d) At this level, employees may be required to supervise lower classified staff or volunteers in their day-to-day work. Employees with supervisory responsibilities may undertake some complex operational work and may undertake planning and co-ordination of activities within a clearly defined area of the organisation including managing the day-to-day operations of a group of residential facility for persons with a disability.
(e) Employees will be responsible for managing and planning their own work and that of subordinate staff or volunteers and may be required to deal with formal disciplinary issues within the work area.
(f) Those with supervisory responsibilities should have a basic knowledge of the principles of human resource management and be able to assist subordinate staff or volunteers with on-the-job training. They may be required to supervise more than one component of the work program of the organisation.
(g)Graduates with a three year degree that undertake work related to the responsibilities under this level will commence at no lower than pay point 3.
(h) Graduates with a four year degree that undertake work related to the responsibilities under this level will commence at no lower than pay point 4.
B.3.2 Responsibilities
To contribute to the operational objectives of the work area, a position at this level may include some of the following:
(a) undertake responsibility for various activities in a specialised area;
(b) exercise responsibility for a function within the organisation;
(c) allow the scope for exercising initiative in the application of established work procedures;
(d) assist in a range of functions and/or contribute to interpretation of matters for which there are no clearly established practices and procedures although such activity would not be the sole responsibility of such an employee within the workplace;
(e) provide secretarial and/or administrative support requiring a high degree of judgment, initiative, confidentiality and sensitivity in the performance of work;
(f) assist with or provide a range of records management services, however the responsibility for the records management service would not rest with the employee;
(g) proficient in the operation of the computer to enable modification and/or correction of computer software systems or packages and/or identification problems. This level could include systems administrators in small to medium sized organisations whose responsibility includes the security/integrity of the system;
(h) apply computing programming knowledge and skills in systems development, maintenance and implementation under direction of a senior employee;
(i) supervise a limited number of lower classified employees or volunteers;
(j) allow the scope for exercising initiative in the application of established work procedures;
(k) deliver single stream training programs;
(l) co-ordinate elementary service programs;
(m) provide assistance to senior employees;
(n) where prime responsibility lies in a specialised field, employees at this level would undertake at least some of the following:
(i) undertake some minor phase of a broad or more complex assignment;
(ii) perform duties of a specialised nature;
(iii) provide a range of information services;
(iv) plan and co-ordinate elementary community-based projects or programs;
(v) perform moderately complex functions including social planning, demographic analysis, survey design and analysis.
(o) in the delivery of disability services as described in subclauses B.1.2 or B.2.2, taking overall responsibility for the personal care of residents; training, co-ordinating and supervising other employees and scheduling work programmes; and assisting in liaison and co-ordination with other services and programmes.
B.3.3 Requirements of the job
Some or all of the following are needed to perform work at this level:
(a) Skills, knowledge, experience, qualifications and/or training
(i) thorough knowledge of work activities performed within the workplace;
(ii) sound knowledge of procedural/operational methods of the workplace;
(iii) may utilise limited professional or specialised knowledge;
(iv) working knowledge of statutory requirements relevant to the workplace;
(v) ability to apply computing concepts.
(b) Prerequisites
(i) entry level for graduates with a relevant three year degree that undertake work related to the responsibilities under this level—pay point 3;
(ii) entry level for graduates with a relevant four year degree that undertake work related to the responsibilities under this level—pay point 4;
(iii) associate diploma with relevant experience; or
(iv) relevant certificate with relevant experience, or experience attained through previous appointments, services and/or study of an equivalent level of expertise and/or experience to undertake the range of activities required.
(c) Organisational relationships
(i) graduates work under direct supervision;
(ii) works under general supervision except where this level of supervision is not required by the nature of the responsibilities under B.3.2 being undertaken;
(iii) operate as member of a team;
(iv) supervision of other employees.
(d) Extent of authority
(i) graduates receive instructions on the broader aspects of the work;
(ii) freedom to act within defined established practices;
(iii) problems can usually be solved by reference to procedures, documented methods and instructions. Assistance is available when problems occur.
B.4 Social and community services employee level 4
B.4.1 Characteristics of this level
(a) A person employed as a Social and community services employee level 4 will work under general direction in functions that require the application of skills and knowledge appropriate to the work. Generally guidelines and work procedures are established.
(b) General features at this level require the application of knowledge and skills which are gained through qualifications and/or previous experience in a discipline. Employees will be expected to contribute knowledge in establishing procedures in the appropriate work-related field. In addition, employees at this level may be required to supervise various functions within a work area or activities of a complex nature.
(c) Positions may involve a range of work functions which could contain a substantial component of supervision. Employees may also be required to provide specialist expertise or advice in their relevant discipline.
(d) Work at this level requires a sound knowledge of program, activity, operational policy or service aspects of the work performed with a function or a number of work areas.
(e) Employees require skills in managing time, setting priorities, planning and organising their own work and that of lower classified staff and/or volunteers where supervision is a component of the position, to achieve specific objectives.
(f) Employees will be expected to set outcomes and further develop work methods where general work procedures are not defined.
B.4.2 Responsibilities
To contribute to the operational objectives of the workplace, a position at this level may include some of the following:
(a) undertake activities which may require the employee to exercise judgment and/or contribute critical knowledge and skills where procedures are not clearly defined;
(b) perform duties of a specialised nature requiring the development of expertise over time or previous knowledge;
(c) identification of specific or desired performance outcomes;
(d) contribute to interpretation and administration of areas of work for which there are no clearly established procedures;
(e) expected to set outcomes and further develop work methods where general work procedures are not defined and could exercise judgment and contribute critical knowledge and skills where procedures are not clearly defined;
(f) although still under general direction, there is greater scope to contribute to the development of work methods and the setting of outcomes. However, these must be within the clear objectives of the organisation and within budgetary constraints;
(g) provide administrative support of a complex nature to senior employees;
(h) exercise responsibility for various functions within a work area;
(i) provide assistance on grant applications including basic research or collection of data;
(j) undertake a wide range of activities associated with program activity or service delivery;
(k) develop, control and administer a records management service for the receipt, custody, control, preservation and retrieval of records and related material;
(l) undertake computer operations requiring technical expertise and experience and may exercise initiative and judgment in the application of established procedures and practices;
(m) apply computer programming knowledge and skills in systems development, maintenance and implementation;
(n) provide a reference and research information service and technical service including the facility to understand and develop technologically based systems;
(o) where the prime responsibility lies in a specialised field, employees at this level would undertake at least some of the following:
(i) liaise with other professionals at a technical/professional level;
(ii) discuss techniques, procedures and/or results with clients on straight forward matters;
(iii) lead a team within a specialised project;
(iv) provide a reference, research and/or technical information service;
(v) carry out a variety of activities in the organisation requiring initiative and judgment in the selection and application of established principles, techniques and methods;
(vi) perform a range of planning functions which may require exercising knowledge of statutory and legal requirements;
(vii) assist senior employees with the planning and co-ordination of a community program of a complex nature.
B.4.3 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) knowledge of statutory requirements relevant to work;
(ii) knowledge of organisational programs, policies and activities;
(iii) sound discipline knowledge gained through experience, training or education;
(iv) knowledge of the role of the organisation and its structure and service;
(v) specialists require an understanding of the underlying principles in the discipline.
(b) Prerequisites
(i) relevant four year degree with one years relevant experience;
(ii) three year degree with two years of relevant experience;
(iii) associate diploma with relevant experience;
(iv) lesser formal qualifications with substantial years of relevant experience; or
(v) attained through previous appointments, service and/or study, an equivalent level of expertise and experience to undertake a range of activities.
(c) Employees undertaking specialised services will be promoted to this level once they have had the appropriate experience and undertake work related to the responsibilities under this level.
(d) Employees working as sole employees will commence at this level.
(e) Organisational relationships
(i) works under general direction;
(ii) supervises other staff and/or volunteers or works in a specialised field.
(f) Extent of authority
(i) required to set outcomes within defined constraints;
(ii) provides specialist technical advice;
(iii) freedom to act governed by clear objectives and/or budget constraints which may involve the contribution of knowledge in establishing procedures within the clear objectives and/or budget constraints where there are no defined established practices;
(iv) solutions to problems generally found in precedents, guidelines or instructions;
(v) assistance usually available.
The decision
[19] The TSU and Safe Places agreed upon two questions to be answered by the Commissioner in the arbitration of the dispute as follows:
Question 1 – the Classification Question
1. For Mr Michael Watson (an employee engaged as Youth Worker 1, as defined by clause 19.3.2.2 of the Safe Places for Children Enterprise Agreement 2013), what is the corresponding classification in the Social, Community, Home Care and Disability Services Industry Award 2010? Further:
a. What is the level of work being performed by Mr Watson?;
b. What is the level of supervision that Mr Watson is under, or has available to him?; and
c. What effect does Mr Watson’s Certificate IV in Youth Work have on his employment with Safe Places for Children?
Question 2 – the Reconciliation Question
2. Has the employer complied with its obligation to undertake a reconciliation of the Applicant’s annual remuneration in accordance with undertaking 2 of the Safe Places for Children Enterprise Agreement 2013 upon his request on 30 March 2018?
[20] The Commissioner addressed each of the above questions in turn.
[21] In relation to the Classification Question the Commissioner said:
“[63] When there is a dispute over the proper classification of an employee, the starting point is to:
1. Ascertain the work performed by the employee; and
2. Compare the work performed by the employee, in this case, to the classification under the Award.”
[22] The Commissioner examined the work performed by Mr Watson, made a comparison with the classification under the Award and concluded as follows:
“[64] Mr Watson works as a Youth Worker with one or two young people at a time. His task is to manage all the daily needs of the young people in his care while on shift.
[65] As to the support or supervision he has, he is expected to manage and de-escalate situations on his own. During a routine shift, he makes ordinary routine decisions but cannot make any decision that is outside the Employer’s policy, the young person’s Care Map or Positive Behaviour Support Plan. That is, the work performed by Mr Watson is that he works individually and autonomously, but only in accordance with the young person’s care plan.
[66] The Employer submits that all decisions other than the routine daily decisions are made by the team in consultation with the Department and other stakeholders.
[67] Mr Watson describes his responsibilities to include all the daily needs of the young person including the provision of prescription and non-prescription medication.
[68] I conclude that Mr Watson’s role is limited by the framework put in place under the Employer’s policy, care map and positive behaviour support plan. The Applicant’s own supervision notes support that the role is so confined, with the notes describing the tasks completed by Mr Watson, and these notes being generally consistent with that described by the Employer.
[69] As for the level of supervision, the Employer suggests it expects that 8 to 10 hours are provided weekly to each Youth Worker Level 1. The Applicant submits that this is not the case. Under cross-examination, Ms Slade could not describe, except in the vaguest terms, how 8 to 10 hours supervision actually was delivered to Mr Watson.
[70] On the evidence before me, the supervision given to Mr Watson was significantly less than that suggested by the Employer.
[71] Mr Watson also reported performing other responsibilities, with reference to what is referred to as “shadow shifts”. This work involves shadowing a new employee to ensure the new employee is not left alone with the young person, and for Mr Watson to demonstrate how he does his work. Shadow shifts requires more than shadowing a new employee, it requires providing feedback into an online portal with the inductee’s Supervisor.
[72] The Employer submits that Mr Watson has no supervisory responsibilities, and that shadow shifts are neither compulsory nor supervisory in nature. In this regard, the Employer points to evidence that in April 2019, the Employer clarified that shadow shifts were not compulsory.
[73] Whether shadow shifts are compulsory or not, the evidence establishes that Mr Watson did perform them. That that they are no longer compulsory does not change the work performed by Mr Watson.
…
[81] While it was noted in Livende Incorporated v Health Services Union 7 there is “no perfect fit” when deciding the appropriate classification rate under an Agreement when assessing against a classification under Award, based on the evidence, submissions and assessment of the work undertaken detailed above, Mr Watson’s work is best characterised under Level 2 of Schedule B.
[82] I have found that Mr Watson works under general guidance within clearly defined guidelines. The tasks required of him are to undertake a range of activities and work within established guidelines, notwithstanding the complexity of the behaviour of the young person. The evidence establishes that assistance is readily available, but that Mr Watson is not subject to direct supervision (compare B.1.3 (b)).
[83] I accept that shadow shifts are not supervisory but could not be described as a task that is merely a technical oversight of a minor work activity, 8 but more in the nature of guiding the work of lower classified employees.9 That is, the participation in shadow shifts, although limited in number, are more aligned with Level 2 than Level 1.”
[23] Mr Watson holds a Certificate IV in Youth Work. This is not in dispute. However, its relevance to a comparison of Mr Watson’s work with the classification under the Award was disputed. The Commissioner found:
“[75] The Employer’s case is that a Certificate IV was not required prior to the release of a paper from the Department entitled “Strengthening The Queensland Residential Care Workforce- Minimum Qualification Standard Information Sheet in July 2018”. At this time, the Employer determined that all employees should work towards a Certificate IV in Child Youth and Family Intervention (Residential Care).
[76] Mr Watson submits that prior to commencing his employment, he completed a Certificate IV in Youth Work. In his opinion, this qualification directly aligns with the role of a Youth Worker.
[77] Mr Watson’s Certificate IV in Youth Work is a recognised qualification by the Department, and in my view this Certificate should have been recognised by the Employer.
…
[87] As to timing, the Employer submits that Mr Watson’s current Certificate IV in Youth Work has no effect on his employment for the period of reconciliation, which is the subject of this dispute, as the qualification had not been recognised as a relevant qualification by the relevant state government department at that time.
[88] In my view, Mr Watson is entitled to rely on his current Certificate IV in Youth Work as a recognised equivalent qualification, given its recognition as equivalent by the Department. The effect of this is that from July 2018, it was a relevant qualification and an appropriate certificate which could potentially satisfy the first part of Schedule B.2.1(e). That is, “employees who have completed an appropriate certificate…. Where the appropriate certificate is a level 4 certificate the minimum rate of pay will be pay point 2”.
[89] As for timing of the recognition of the qualification and its relevance to this dispute, the dispute is clearly in two parts. It is not relevant to the question of the reconciliation being for a period prior to July 2018, but it is relevant to the question of Mr Watson’s classification which is an ongoing dispute presently before this Commission.
[90] I therefore conclude that Mr Watson’s Certificate IV in Youth Work should be recognised as an equivalent qualification after July 2018.”
[24] Later in the decision the Commissioner addressed the progression between pay points within the classification set out in the Award. It is convenient to provide the Commissioner’s conclusion here:
“[150] Under clause 13.3 of the Award, progression from one pay point to the next level requires demonstrated competency and satisfactory performance over a limited period of 12 months at each level within the level and the employee has acquired and satisfactorily used new or enhanced skills within the ambit of that classification.
[151] There is no evidence before the Tribunal that Mr Watson has not complied with these requirements, therefore for the reconciliation period there should have been included a notional amount at Level 1.3.
[152] It would seem to me that recalculating the reconciliation to include Level 1, pay point 3, is equal to an amount of around $2860 10 in the year of reconciliation. This additional amount results in a notional figure of $63,796. This would not indicate that Mr Watson is disadvantaged when his terms and conditions under the Agreement are compared to the Award.”
[25] There were several issues in dispute concerning the calculation of the reconciliation but hours of work. TSU highlights the hours of work in the appeal.
“[125] Clause 25(1)(b) of the Award provides for ordinary hours of work of 38 hours per week or an average thereof. The ordinary hours worked each shift is not exceeding eight hours each. By agreement, these ordinary hours may be worked up to a ten-hour shift.
[126] Mr Watson asserts that the approach to be taken in calculating hours of work is to apply ordinary hours to the first of eight hours of the shift and overtime thereafter. The reason for this is that in s.193(2) of the Act provides that if under a flexibility term in a relevant Modern Award, an individual flexibility arrangement has been agreed to by the employee and their employer, the Commission must disregard the individual flexibility arrangements for the purpose of determining whether the Agreement passes the BOOT.
[127] The Employer says that employees sign an employment agreement to work under the Agreement, which provides for shifts greater than eight hours in length.
[128] As indicated above, the assessment of whether Mr Watson has been disadvantaged under the Agreement as compared to the Award assesses disadvantage is not a “BOOT”. Section 193 is only relevant when assessing the BOOT.
[129] In any event, s.193(2) is not applicable to ordinary hours of work calculation. This is because s.193(2) refers to a flexibility term. Such a term is defined in S.144 and requires a modern Award to include this term (a flexibility term) enabling an employee and an employer to agree on an arrangement which varies the effect of the Award. But clause 25(1)(b) does not vary the Award, it is part of the Award that ordinary hours may be worked up to 10 hours with agreement.
[130] Having concluded that s.193(2) does not apply, and noting the Award provides for employees to work up to 10 hours, consistent with the Award, and such an agreement has been made with the Applicant under the Agreement, the calculation of hours of work is consistent with the provisions of the Award.
Conclusion on Hours of Work
[131] Mr Watson is not disadvantaged for the period of the reconciliation by the hours of work clause.”
[endnote omitted]
[26] The Commissioner answered the reconciliation question as follows:
“[159] I conclude as follows:
1. Subject to Clause 2, the Employer has complied with its obligations to undertake a reconciliation of the Applicant’s annual remuneration in accordance with Undertaking 2 of the Agreement.
2. Should the Applicant dispute that the amount of progression payment is more than $2860 and the amount would result that Mr Watson had been paid less under the Agreement than he would have been paid for performing the same work under the Award, the parties should in the first instance raise the matter by way of informal conference.”
Appeal submissions – the classification question
[27] TSU submits that the Commissioner correctly identified the approach to be taken in classifying a position into a classification structure in an Award. 11 It says:
“…the Commission has effectively determined that the work should be classified at Level 2 of the Award. Where the Commission appears to have gone astray in the task by failing to find that the position should have been classified at no lower than Level 2 from the commencement of the Appellant’s employment, arises out of a misunderstanding by the Commission of the provisions of clause B.2.1e of Schedule 2.” 12
[28] TSU contends that a certificate level IV is not a prerequisite for the classification of Level 2 and even if an employee does not hold a qualification they can still be classified at Level 2. 13 The TSU submits that the Commissioner’s view that the certificate held by the Appellant is only relevant to the task from the date on which it was recognised as a relevant qualification by the Department misunderstands the relevant provisions of the Award.
[29] Safe Places disagrees with the Commissioner’s conclusion that Mr Watson is appropriately classified at Level 2 of the Award from July 2018 but submits that this conclusion was available to the Commissioner and does not reflect error of the House v King type. 14 In that regard, we observe that the matters raised in this appeal are not akin to the nature of discretionary decisions primarily addressed in House v King.
[30] Further, Safe Places says:
“It is submitted that there was no error in the Commissioner’s decision in determining that the Appellant’s certificate IV was a relevant, and appropriate certificate, from July 2018, as it was not until this date that it was mandatory for the Appellant to have such a qualification.” 15
Consideration – classification question
[31] We consider that the Commissioner correctly identified the test to apply.
[32] In Davies v Carnachan Family Trust Pty Ltd, 16 Jones J observed:
“12. The courts and industrial tribunals have developed principles to be applied to ascertain whether an employee falls within a particular classification described in an award or agreement. Where the employee performs mixed functions, the approach has been to examine the “major and substantial employment” of the employee or the “principal purpose” or “primary function” of the employee.
13. For example, in Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200, Moore J referred to and applied decision of Sheldon J in Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 where his Honour, applying the “major and substantial employment” test, relevantly observed:
…it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.
14. The task of the Court in examining the major, substantial or principal aspect of the work performed by the employee will include consideration of the amount of time spent performing particular tasks, but also the circumstances of the employment, and what the employee was employed to do. The question is one of fact, to be determined by reference to the duties actually attaching to the position, rather than its title: City of Wanneroo v Holmes [1989] FCA 553; (1989) 30 IR 362 at 379; Joyce v Christofferson (1990) 26 FCR 261 at 278.”
[33] Further, the principles of construction of enterprise agreements also operate when considering classification structures, including indicative tasks specified for various levels, for the purpose of determining the appropriate classification Level of an employee. Each level of a classification structure and the underpinning definitions must be read in the context of higher or lower levels having regard to the descriptions at higher and lower levels of similar tasks with ascending and descending degrees of complexity. 17
[34] The major, substantial or principal aspect of the work performed by Mr Watson is the care of one or two young people in a residential setting where he has to exercise limited initiative and decision making with regard to the day to day activities of the young person or people. Mr Watson is the carer in the house when on his shift.
[35] This work is performed within the scope of the Care Map, Positive Behaviour Support Plan and Safe Places policies and procedures provided to Mr Watson.
[36] This work is performed by Mr Watson under general supervision the primary aspects of which are an ability to contact a Case Manager 24 hours a day as needed and monthly meetings with a Case Manager.
[37] This work is in excess of the requirements of Level 1 if the Award. Mr Watson is not subject to close direction and his work activities cannot be described as routine. He exercises initiative and decision making in often unpredictable emergent circumstances. The level of supervision he receives is less than that required under Level 1. It could not be said that Mr Watson is closely monitored. Whilst instruction and assistance are available on an as needs basis the Commissioner correctly found that the supervision given to Mr Watson was significantly less than that suggested by the Employer. The Commissioner correctly found that whilst the shadow shifts performed by Mr Watson are not supervisory, they are in the nature of guiding the work of lower classified employees. This is not compatible with Level 1 of the Award.
[38] The Commissioner found that Mr Watson’s work is best characterised under Level 2 of Schedule B. 18 We agree. At level 2 of the Award employee works under general guidance within clearly defined guidelines and undertakes a range of activities requiring the application of acquired skills and knowledge. Mr Watson’s work is closely aligned to the characteristics of Level 2, in particular:
(b) General features of 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.
[39] Mr Watson’s work whilst undertaking shadow shifts aligns with the following:
(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.
[40] Up to this point we agree with the Commissioner’s finding and the basis upon which the issue was approached. We also do not consider that the TSU’s proposition that Mr Watson should have been treated as a Level 3 or 4 under the Award for comparative purposes is sound or justified based upon the material before the Commission.
[41] However, we consider that the Commissioner’s conclusion that Level 2 was relevant only from July 2018 is not consistent with the analysis undertaken as to the work Mr Watson was performing and the classification criteria established by the Award. The finding that Mr Watson was at Level 2, based as it was upon the work he was performing, must logically mean that he was a Level 2 employee whilst ever he was performing that work. That situation did not change as a result of the Queensland Government announcing that it requires all Youth Workers to have or be working towards a qualification that included a Certificate IV in Youth Work.
[42] It is not in dispute that Mr Watson has a Certificate IV in Youth Work. The characteristics of Level 2 include:
(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.
[43] This feature of Level 2 is but one aspect of the classification. It is not definitive of an employee being correctly classified at level 2 and the weight given to this aspect does not represent the proper application of the Award classification criteria to the present task. This had a direct impact upon what was required for the proper application of the reconciliation undertaking and this error warrants the grant of permission to appeal and the intervention of the Full Bench.
[44] As a result, Ground 1 is not made out. The Commissioner did determine the proper award classification level but was in error in determining that such should be applied only from July 2018 and this should be been reflected into the reconciliation requirements. Ground 2 of the Appeal is made out. We find that for the comparative purposes required the correct classification for Mr Watson under the Award is Level 2. Permission to appeal is granted and the appeal is upheld in relation to this ground.
Appeal submissions – the reconciliation question
[45] TSU submitted that the Commissioner misunderstood the undertaking. It said:
“To interpret the undertaking as proposed by the Respondent and accepted by the Commission has the effect of changing the operation of the undertaking from one which ensures that the Agreement satisfies the better off overall test to one which satisfies a test that has no basis in law.
The Appellant’s case that the boot principles should be applied in the reconciliation is compelling as to allow the substitution of a lesser test would mean that the Agreement could not have passed the boot in the first place.
Plainly the requirement that an employee not be disadvantaged in the terms of the undertaking must be read as the employee not being disadvantaged in the sense that the employee should be no worse off than if the boot was properly applied. This is how the undertaking should be understood having regard to the context and the purpose for which it was given.” 19
[46] In response to this submission, Safe Places said:
“The Appellant’s submission that Undertaking 2 of the Agreement requires the Commission to undertake a ‘Better Off Overall Test’ is not supported by the terms of Undertaking 2, and seeks to render all clauses in the Agreement otiose, relying purely on the terms of the SCHADS Award.
Section 190 of the Act allows the Commission to approve an enterprise agreement with undertakings if the Commission has a concern that “the agreement does not meet the requirements set out in ss 186 and 187.” These requirements include passing the BOOT.
If the Commission approves an enterprise agreement after accepting an undertaking in relation to the agreement, and the agreement covers a single employer, the undertaking is taken to be a term of the agreement, as the agreement applies to the employer.
As outlined in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited, the terms of the Agreement must be given their plain meaning and read in context. Further to this, undertakings approved by the Commission must not result in substantial change to the proposed enterprise agreement.” 20
[47] In relation to the calculations of hours at work, TSU said:
“The approach advocated by the Appellant was that the same principles that could be drawn from the provisions of s193 in relation to the BOOT should be applied when comparing Award entitlements to entitlements under an agreement.
Specifically, the Appellant submitted that:
“41. The Applicant contends that the principles that are applied when determining whether an agreement passes the better off overall test should similarly be applied when calculating the reconciliation provided for in Undertaking Two of the Agreement. Any arrangements implied or otherwise must be disregarded, and the assessment should be done on the minimum requirements of the relevant modern award.”
The Commissioner at [130] determined that as the Appellant had effectively agreed to work up to 10 ordinary hours under the Agreement the same “agreement” to work up to ten ordinary hours should be applied to the Award when working out his entitlements under the Award.
The Appellant submits that this approach is inconsistent with the purpose of the undertaking which as stated earlier in the Appellant’s submission is to ensure that an employee employed under the terms of the Agreement is not disadvantaged in relation to the operation of the Agreement by being better off overall. 21
[48] On the other hand, Safe Places agrees with the decision of the Commissioner that given the Award provides for employees to work up to 10 hours at ordinary time, and such an agreement has been made with the Applicant under the Agreement, the calculation of hours of work is consistent with the provisions of the Award.
Consideration – the reconciliation question
[49] We have set out the relevant terms of the undertaking that created the reconciliation obligation earlier in this decision. Although the undertaking was provided in order to meet the BOOT established by s 193 of the FW Act, and this sets its context, the reconciliation required is not of itself a better off overall commitment. Rather, as part of meeting the BOOT the employer gave an undertaking that it would conduct and apply an annual reconciliation where a request was made. The Commission in accepting that element of the undertaking (as part of the undertaking more generally) found that the Agreement, as modified by the undertakings, met all of the approval requirements including the BOOT. 22 The undertakings also became a term of the Agreement.23
[50] The Commissioner’s conclusions about the nature of the reconciliation exercise in this regard were correct.
[51] The Full Court of the Federal Court in WorkPac Pty Ltd v Skene 24 (WorkPac) provided the following convenient summary of the required approach to considering a term of an enterprise agreement:
“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.” 25
[citations omitted]
[52] Applying this approach, the undertaking relevantly required that when requested, Safe Places would undertake an annual reconciliation to establish whether, for work performed under the Agreement in the preceding year, Mr Watson’s total remuneration under the Agreement was less than he would have received under the Award. Where the reconciliation establishes that Mr Watson had been paid less under the Agreement than he would have been paid for performing the same work under Award, Mr Watson was to be reimbursed for the difference between the amount paid under the Award and the amount paid under the Agreement.
[53] In practical terms, this did require the employer to assess the payments afforded by the Award and the Agreement when applied to work performed by Mr Watson during the relevant annual period and to deal with some of the issues canvassed before the Commissioner as to how the Award should be applied given the impact of the Agreement upon the actual arrangements adopted by the parties.
[54] The Commissioner expressed her consideration of each of these application issues by reference to whether Mr Watson was disadvantaged in relation to each aspect. Further, the ultimate conclusion was made by reference to whether the employer’s approach to hours of work, time off in lieu of overtime (TOIL) and payment for overtime, and the impact of the recalculation of public holidays and shortfall of hours, meant that Mr Watson was not disadvantaged. 26 A generous reading of the decision might indicate that each aspect was being assessed so as to inform the ultimate question as to whether Mr Watson was paid less that he would have been paid for performing the same work under Award. This would be consistent with the Commissioner’s earlier conclusion that the notional award-based figure produced by the reconciliation was $63,796;27 being less than the amount already paid of $64,160.09.28
[55] It is also tolerably clear that in answering the reconciliation question, the Commissioner found that the final reconciliation met the requirements of the undertaking by reference to net result, rather than by reference to the individual calculations that the employer should have made. In that light, it is necessary for us to consider the foundation upon which that assessment was made.
[56] We have found that the Commissioner was correct to find that the appropriate comparator classification for Mr Watson is Level 2 of the Award. However, for reasons set out earlier, the Commissioner did not reflect this into the reconciliation calculation as a result of the finding made about when the higher classification applied. As a result, we consider that the Commissioner’s answer to the reconciliation question on that aspect was also in error.
[57] In terms of the approach to the treatment of hours of work, we consider that the Commissioner was correct. For reasons set out earlier, the Commissioner rightly rejected the notion advanced on behalf of Mr Watson that the terms of s 193(2) of the FW Act should be applied. Clause 25(1)(b) of the Award provides that ordinary hours may be worked over a 10 hour span by agreement. The Award does not specify the form of agreement required and in our view it would not be appropriate, at least for present purposes, to ignore the fact that an agreement was in place for that to occur, including in relation to Mr Watson. The reconciliation is in respect to an identifiable employee. Mr Watson’s employment arrangements are known and it is this employment relationship that is the subject of the reconciliation. Where the effect of the Award is dependent upon the particular circumstances of a specific employee for the calculation to be made it is appropriate to incorporate known existing arrangements. The Commissioner’s conclusion about the calculation of wages for hours of work was correct.
[58] We also do not consider that any of the other elements of the comparison as determined by the Commissioner demonstrate appealable error.
[59] Accordingly, we do not grant permission to appeal, and dismiss the appeal, in relation to grounds 3 and 4.
[60] In relation to ground 5 (a) and (b) that the Commissioner erred by relying on a reconciliation prepared by the respondent purportedly in discharge of its obligations under Undertaking 2 which was not produced to the Commission and on the evidence of the respondent contained errors, we do not consider this raises public interest sufficient for permission to appeal to be granted. Grounds 5 (a) and (b) are dismissed.
[61] Finally, in relation to ground 5 (c) we note that at paragraphs 150 to 152 of the decision the Commissioner addressed the effect of the pay progression on Mr Watson concluding that he was appropriately classified at pay point 3 of Level 1. Having decided that the correct classification for the reconciliation is Level 2 we find, for the same reasons as the Commissioner, that the reconciliation should be calculated on Level 2 pay point 4. Appeal ground 5 (c) is made out and permission to appeal is granted.
Conclusion and disposition of the matter
[62] For reasons set out above, we have granted permission to appeal and upheld a number of the grounds advanced in this matter.
[63] The decision 29 is quashed to the extent necessary to give effect to our decision.
[64] On a rehearing, we have redetermined the correct classification of Mr Watson for the purpose of the reconciliation is Level 2.4 of the Award and that this was to be applied for the full period of the annual review. The reconciliation will need to be recalculated by the employer to give effect to this outcome.
[65] The finding made on the rehearing, and the remaining elements of the Commissioner’s decision that have not been disturbed by our findings, properly determine the application.
VICE PRESIDENT
Hearing details:
Determined on the papers by consent of the parties.
Final submissions:
For the Appellant, 15 May 2020.
For the Respondent, 8 May 2020.
Printed by authority of the Commonwealth Government Printer
<PR720015>
1 [2020] FWC 323.
2 See: O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]. The public interest is not satisfied simply by the identification of error, or a preference for a different result; see: GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266 (‘GlaxoSmithKline’); Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe (‘NSW Bar Association’); Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
3 GlaxoSmithKline Australia Pty Ltd v Makin (2010) FWAFB 5343.
4 See also CFMEU v AIRC (1998) 89 FCR 200 and Wan v AIRC (2001) 116 FCR 481.
5 See Wan v AIRC (2001) 116 FCR 481 at [30].
6 [2014] FWCA 1519.
7 [2014] FWCFB 8089 at [55].
8 Schedule B – Level B(1)(f).
9 Schedule B – Level B(2)(d).
10 This is pay point 3 Level 1 as at the time of the decision, a more accurate though possibly lesser amount would be calculated for the period of the reconciliation.
11 Supplementary Submission of the Appellant of 17 April 2020 at paragraph 36.
12 Ibid at paragraph 57.
13 Ibid at paragraphs 80-81.
14 This is a reference to House v King (1936) 55 CLR 499.
15 Submission of the Respondent of 8 May 2020 at paragraph 46.
16 (2018) FCCA 45.
17 Christian Carnes v MSS Security Pty Ltd [2019] FWC 7695 at paragraph 75.
18 Above n1 at [83].
19 Supplementary Submission of the Appellant of 17 April 2020 at paragraph 95-97.
20 Submission of the Respondent of 8 May 2020 at paragraphs 63-66.
21 Supplementary Submission of the Appellant of 17 April 2020 at paragraphs 105-108.
22 Above n2.
23 Fair Work Act 2009 (Cth), s.191.
24 [2018] FCAFC 131.
25 Ibid at [197].
26 Above n1 at [155].
27 Above n1 at [152].
28 Ibid at [119].
29 Above n1.
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