Mr Jeffrey Vassallo v Easitag Pty Ltd
[2018] FWCFB 501
•24 JANUARY 2018
| [2018] FWCFB 501 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Jeffrey Vassallo
v
Easitag Pty Ltd
(C2017/6484)
DEPUTY PRESIDENT GOSTENCNIK | 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 further evidence, on the basis that, as Mr Vassallo acknowledged, there was no reason why the evidence in question could not have been adduced at first instance, and because in our opinion the evidence would not be likely to alter the result. 2
Permission to appeal
[8] An appeal under s.604 of the 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. 3 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 to appeal may otherwise be granted on discretionary grounds.
[9] 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
[10] 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 an appealable error. 5 However, the fact that a member of the Commission at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.6
[11] Mr Vassallo’s grounds of appeal variously contend that the Commissioner reached the wrong conclusion in determining that he is properly to be classified as a grade 4. He contends that her construction of the Award was incorrect, and that her determination is contrary to s.739 of the Act.
[12] In determining the dispute, the Commissioner was required to consider the interpretation of the Award. This task did not involve the exercise of discretion; accordingly, the question on appeal, as concerns the Commissioner’s analysis of the Award, is whether her interpretation was correct.7 Other decisions made during the course of hearing and determining the matter at first instance might involve the exercise of discretion. Such decisions are appealable on the bases identified in House v The King.8
Classifications in the Award
[13] Clause 16.2 of the Award identifies the classifications of employees covered by it (other than apprentices), namely Electrical Worker Grades 1 through to 10. Schedule B to the Award sets out the classification definitions.
[14] A Grade 4 Electrical Worker is defined as follows.
B.2.4 Electrical worker grade 4
(a) An Electrical worker grade 4 is an employee who:
(i) has worked for not less than one year in the industry or holds the equivalent experience and without limiting the scope of the work and to the level of the employee’s training is an employee who is accredited to perform:
• scaffolding or rigging; or
• is directly in charge of an electrical store and responsible for materials, ordering and purchasing; or
(ii) has worked for not less than one year as an Electrical worker grade 3 or has the equivalent experience in the installation of electronics equipment and who, under the minimum supervision of a tradesperson or electronics serviceperson:
• installs radio, communications and related equipment including antenna; or
• installs fire alarm or security alarm equipment; or
• installs, terminates and tests data and communication cabling; or
• inspects and tests fire alarms or security alarm equipment involving a range of responsibility beyond that of an Electrical worker grade 3 and works without assistance and supervision; or
• holds a restricted electrical registration (SA only).
(b) Provided that this person must not undertake tasks requiring the skills of a tradesperson.
(c) Included in this grade is the work of Purchasing clerk/storeperson and Electronic equipment installer level 2.
(d) Definitions applying to this grade of worker prior to 5 October 1990.
• Alarm/security tester grade 2
• Restricted B class licensed electrical worker
• Purchasing clerk/storeperson.
[15] A Grade 10 Electrical Worker is defined in the following terms:
B.2.10 Electrical Worker grade 10
(a) An Electrical worker grade 10 is an Electrical worker grade 5 who has successfully completed:
(i) an appropriate Associate Diploma; or
(ii) an AQF Advanced Diploma, or:
(iii) their formal equivalent; and
(iv) is employed to use the skills acquired through the training and/or experience specified.
(b) Included in this grade is the work of:
• Advanced electrical tradesperson level 3;
• Advanced electronic serviceperson level 3;
• Advanced instrument tradesperson level 3;
• Advanced refrigeration/air conditioning tradesperson level 3; and
• Advanced electrical tradesperson powerline level 3 (SA only).
(c) Definitions applying to this grade of worker prior to 5 October 1990:
• Electronic serviceperson grade 3.
[16] In their agreed statement of facts, the parties concurred that Mr Vassallo’s duties as a technician include the following:
• installing surveillance systems;
• tuning these systems, using specialised software;
• receiving and responding to calls from head office;
• attending customer premises and conducting site surveys;
• providing training to staff of clients on how to operate the systems;
• running cables from the power pack to the surveillance system – specialised tools are provided by the employer for this purpose;
• conducting service calls – the majority of Mr Vassallos’ jobs have been service rather than installation calls. 9
[17] Mr Vassallo contended that the work he performs is of a much higher level than grade 4. In the course of argument before us, Mr Vassallo submitted that the grade 4 classification is equivalent to a trainee role. Although the grade 4 classification does not refer to trainees, Mr Vassallo points to clause B.2.4(b), which states that an employee at this level ‘must not undertake tasks requiring the skills of a tradesperson’. Mr Vassallo contends that he possesses and uses the skills of a tradesperson, and therefore cannot fall within the grade 4 classification. In our view, this gives too broad a meaning to clause B.2.4(b). The clause is intended to prohibit a grade 4 from undertaking work that must be performed by a qualified tradesperson. It is directed at regulatory issues, rather than providing for a strict demarcation between a grade 4 and tradesmen; the latter would constitute a disincentive for grade 4 level employees to develop and apply new skills, and is unlikely to have been intended.
[18] Mr Vassallo contended that the descriptors in grade 4 do not match his day to day work. He does not undertake scaffolding or rigging, and is not in charge of an electrical store, as contemplated by B.2.4(a)(i).
[19] In respect of the work covered by B.2.4(a)(ii), Mr Vassallo submitted that he does not work ‘under the minimum supervision of a tradesperson or electronics supervisor’ (or indeed under any supervision), and is therefore not covered by this limb of the classification. In this regard, Mr Vassallo contended that he is the sole employee in Victoria. The Commissioner rejected Mr Vassallo’s contention that he worked with no oversight at all. He had at all times immediate access to his supervisor, the National Technical Service Manager in Brisbane, and did, in the Commissioner’s assessment, work subject to minimum supervision. We agree with this assessment.
[20] It was further contended by Mr Vassallo that sub-clause B.2.4(a)(ii) does not cover service call-outs to stores, which constitute a large part of his work. However, the clause does cover inspections and tests for security alarms. It appears to us that significant aspects of Mr Vassallo’s role are covered by the grade 4 classification.
[21] More generally, Mr Vassallo contended that he performs work of a highly specialised and technical nature, including the service and repair of the surveillance systems he installs, and that his work is properly to be classified at the highest level in the Award’s structure, grade 10.
[22] However, in our opinion it is quite clear that Mr Vassallo’s employment with the company is not covered by the grade 10 classification. To fall within grade 10, an employee must have ‘successfully completed an appropriate Associate Diploma, an AQF Advanced Diploma, or their formal equivalent’. Mr Vassallo does not have either type of diploma, nor does he possess any formal equivalent. Before the Full Bench, Mr Vassallo advanced an argument that ‘formal equivalent’ refers to something other than a qualification; that it contemplates the possession of skills and experience, knowledge or other practical attributes that are equivalent to what might be attained through gaining a diploma. This argument must be rejected.
[23] First, there is nothing ‘formal’ about the alternative for which Mr Vassallo contends. On his argument, grade 10 allows rather for an informal equivalent to the formal qualifications mentioned in B.2.10(a)(i) and (ii). This is contrary to the plain words of the provision; there must be a formal equivalent. Secondly, the descriptor for grade 7 (but conspicuously not for grade 10) refers, as an alternative to certain formal qualifications, to a requirement that the employee have ‘acquired the same standard of skills through other means including a minimum of two years’ experience in the industry.’ This is how Mr Vassallo endeavours to interpret the words ‘formal equivalent’. However, if this had been what the makers of the Award intended for grade 10, they could have repeated the same clear words used in the context of grade 7. Thirdly, the classification descriptor for grade 10 refers at its commencement, to an employee who has ‘successfully completed’ the diplomas or their formal equivalent. This language speaks to qualifications, not practical experience and skills. Skills and experience are developed and acquired, not ‘completed’. Sub-clause (iv) refers to skills, but this contains a new sentence that has left the words ‘successfully completed’ behind it. In any event, as is evident from the word “and” at the end of sub-clause (iii), the skills component is additional to the requirement that the employee has “successfully completed” the “formal equivalent” of either qualification enumerated in sub-clauses (i) and (ii).
[24] Mr Vassallo argued before us that the exercise of establishing an employee’s correct classification requires the Commission to match the employee’s role to the work covered by the classification descriptors. So much is true, but this is not necessarily the end of the task. Classifications frequently identify qualifications that an employee must possess in order to fall within the relevant grade. Electrical Worker Grade 10 is such a case. These qualification requirements cannot simply be ignored, as Mr Vassallo appeared to contend as an alternative to his submission on the meaning of ‘formal equivalent’.
[25] The Commissioner set out in her decision Mr Vassallo’s clear acknowledgement under cross-examination that he did not possess an associate diploma or an AQF advanced diploma, nor any formal qualification similar to such diplomas. She considered an academic transcript from RMIT tendered by Mr Vassallo, indicating that he had completed certain modules of training, but showing no final degree or diploma. She was not satisfied, rightly in our view, that what Mr Vassallo had produced constituted a ‘formal equivalent’ to the relevant diplomas.
[26] Moreover, the Commission found that, irrespective of whether Mr Vassallo possessed the requisite qualifications (which he did not), his position did not require the exercise of a qualification of the kind referred to in the grade 10 classification descriptors, this being a further requirement for a grade 10. 10 In this connection, she accepted the evidence of Mr Debney (Company Director) in respect of the purpose for which Mr Vassallo was employed, the nature of his work and the duties he was required to perform. We do not identify any error in this regard.
[27] Mr Vassallo contended that the Commissioner’s conclusion was contrary to s.739(5) of the Act, which provides that the Commission must not make a decision that is inconsistent with the Act, or a fair work instrument (in this case, an award). In essence this contention is simply that the interpretation of the Award adopted by the Commissioner was wrong, and that she should have accepted his argument that the correct classification covering his employment was grade 10. For the same reasons set out above, this submission cannot be accepted.
[28] Mr Vassallo submitted that the Commissioner’s decision was contrary to the Victorian Occupational Health and Safety Act. The argument seemed to be that, if he is a grade 4 employee as the Commissioner found, he is in effect a trainee and is not being properly supervised. We do not see any merit in this submission. Grade 4 is not concerned with trainees, and we were not otherwise persuaded of any contravention of this or any other legislation.
[29] We perceive there to be some merit in Mr Vassallo’s argument that the grade 4 classification is not entirely in keeping with the standing of the work he performs. However, the question that the parties asked the Commissioner to determine in their consent position document was whether Mr Vassallo should be classified as grade 4 or grade 10. She was not asked to consider whether any other classification might be applicable. This fact has jurisdictional significance. Section s.739(1) applies only if a term referred to in s.738 (including a term in an award) ‘requires or allows’ the Commission to deal with a dispute. Section 739(4) states that, if, in accordance with the term, the parties have agreed that the Commission may arbitrate, it may do so. The Commissioner’s authority to arbitrate the dispute derived from the consent of the parties. As noted above, the Award states that the parties may agree to consent arbitration. The Commissioner carefully confirmed with the parties the scope of their consent: they referred to her the question of whether Mr Vassallo was a grade 4 or a grade 10.
[30] Had the dispute been more broadly framed, it would have been open to the Commission to consider whether other classifications might more appropriately cover Mr Vassallo’s employment. In this connection, we note that grade 5 covers an employee who has ‘successfully completed an appropriate trade course or who has otherwise reached an equivalent standard of skills and knowledge in communications / electronics’ (emphasis added). 11
[31] The Commissioner’s approach to the interpretation of the Award was correct. She determined the dispute referred to her under the disputes procedure in the Award, in accordance with that term and within the scope of the parties’ consent to arbitration. We do not identify any error on the part of the Commissioner in the conduct of the proceeding or her analysis and determination of the dispute before her.
Disposition of the appeal
[32] As we have not identified any error in the Decision, we are not persuaded on public interest grounds or otherwise to grant permission to appeal.
[33] Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Mr J Vassallo for himself
Mr J Ward, Counsel for Easitag Pty Ltd
Hearing details:
2018.
22 January.
Melbourne.
1 [2017] FWC 5961
2 See Piyush Jain v Infosys Limited[2014] FWCFB 5595, at [18]
3 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
4 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481
5 Wan v AIRC (2001) 116 FCR 481 at [30]
6 Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78
7 Pawel v AIRC [1999] FCA 1660
8 (1936) 55 CLR 499
9 [2017] FWC 5961 at [23]
10 Electrical, Electronic and Communications Contracting Award 2010 atclause B.2.10(a)(iv))
11 Ibid at clause B.2.5(a)(iii)
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