DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Jeffrey Vassallo
v
Easitag Pty Ltd
(C2017/6484)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
COMMISSIONER BISSETT

SYDNEY, 24 JANUARY 2018

Appeal against decision of Commissioner Cirkovic at Melbourne on 15 November 2017 in matter number C2017/227 – dispute arising under an award – correct classification – consent arbitration - permission to appeal refused.

[1] Mr Jeffrey Vassallo has lodged an appeal, for which permission is required, against a decision 1 (Decision) of Commissioner Cirkovic issued on 15 November 2017 that determined an application brought by Mr Vassallo under s.739 of the Fair Work Act 2009 (Act).

[2] Mr Vassallo is employed as a technician by Easitag Pty Ltd. The company manufactures and supplies electronic security tags and labels used to protect merchandise in retail shops. It was common ground that Mr Vassallo’s employment is covered by the Electrical, Electronic and Communications Contracting Award 2010 (Award).

[3] The parties have been in dispute as to the appropriate classification of Mr Vassallo under the Award. Mr Vassallo contends that his correct classification is Electrical Worker Grade 10. The company contends that he is an Electrical Worker Grade 4.

[4] Clause 9 of the Award contains a dispute settlement provision, under which the parties to a dispute about a matter under the Award may refer the dispute to the Commission. Clause 9.3 states that the parties may agree on the process to be utilised by the Commission, which may include ‘consent arbitration’.

[5] Mr Vassallo’s application referred the parties’ dispute over his classification to the Commission. On 12 April 2017 the parties filed a joint ‘consent position’ as to the scope of the matters to be arbitrated, setting out their respective positions as to the correct classification of Mr Vassallo. Paragraph 3 of this document stated that Mr Vassallo considered he should be classified at grade 10 under the Award. Paragraph 4 stated that the company considered him to be a grade 4. On 22 May 2017, the Commissioner issued directions that the parties confirm the consented scope of the arbitration, which they did by email, by reference to paragraphs 3 and 4 of the consent position. At the hearing before Commissioner Cirkovic, Mr Vassallo confirmed that he sought an order that classified him as a grade 10 under clause 16.2 of the Award.

[6] The Commissioner concluded that the correct classification of Mr Vassallo was Electronical Worker Grade 4, and determined Mr Vassallo’s application accordingly. She dismissed Mr Vassallo’s application for an order that he be classified as a grade 10.

[7] Mr Vassallo’s application for permission to appeal, and his appeal, were heard before us on 22 January 2018. We granted permission for the company to be represented by a lawyer, as we considered that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. We rejected an application by Mr Vassallo for leave to admit…

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.

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Details

Case: [2018] FWCFB 501
Decision Date: 24 JANUARY 2018

CaseChat Overview and Summary

Mr Jeffrey Vassallo, an employee, brought an appeal against the decision of Commissioner Cirkovic at Melbourne on 15 November 2017, in the matter number C2017/227. The dispute arose under an award and centred on the correct classification of Mr Vassallo’s employment. The matter was heard before Commissioner Cirkovic, whose decision was that the classification dispute be resolved via consent arbitration. Mr Vassallo subsequently sought leave to appeal the Commissioner's decision.

The key legal issues before the court were whether the Commissioner erred in directing the matter to consent arbitration and if the refusal of permission to appeal was justified. Mr Vassallo argued that the classification issue was not suitable for consent arbitration and that the refusal to grant leave to appeal was an error of law. The respondent, Easitag Pty Ltd, contended that the classification issue was appropriately directed to consent arbitration and that the refusal of leave to appeal was correctly decided.

The court found that the Commissioner was not in error in directing the matter to consent arbitration, as the classification issue was one that could be effectively resolved through this process. The court further determined that the refusal of permission to appeal was justified, as there were no grounds for leave to appeal. The court held that the classification issue was not of general legal significance and that the Commissioner’s decision was not an error of law. Consequently, the appeal was dismissed.

As a result of the court's decision, the appeal was dismissed, and the direction for consent arbitration stood. Mr Vassallo was not granted leave to appeal, and the classification issue was to be resolved in accordance with the Commissioner’s direction.

Orders