Mr Michael Watson v Safe Places Community Services Limited T/A Safe Places for Children (Safe Places)

[2020] FWC 323

[2020] FWC 323

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Michael Watson
v
Safe Places Community Services Limited T/A Safe Places for Children (Safe Places)
(C2018/5009)

COMMISSIONER BOOTH BRISBANE, 29 JANUARY 2020

Dispute about classification; whether Employer complied with the undertaking contained within the Agreement.

[1] The Applicant, Mr Michael Watson, represented by his Union, the Australian Municipal Administrative, Clerical and Services Union (The Services Union) lodged an application for the Fair Work Commission (Commission) to deal with a dispute under s.739 of the Fair Work Act 2009 (the Act).

[2] Mr Watson has been employed by Safe Places for Children (the Employer/the Respondent), as a Youth Worker Level 1 since 17 December 2012. Mr Watson’s employment is subject to the Safe Places for Children Enterprise Agreement 2013 (the Agreement).

[3] The dispute concerns a number of matters concerning Mr Watson’s proper classification as an employee. He submits that his employer has incorrectly classified him as Youth Worker Level 1. Additionally, he submits that the Employer has not complied with an undertaking under the Agreement.

[4] Despite significant attempts to resolve the matter, it was not settled and the matter proceeded to arbitration. At the arbitration hearing, Mr Watson was represented by Ms Rebecca Girard of The Services Union. Mr Troy Spence of Counsel was granted permission to appear instructed by Mr Troy McKernan, an Industrial Relations Specialist of the Employer.

[5] At the hearing in this matter, the following individuals gave evidence on behalf of the Applicant:

•  Mr Michael Watson;

•  Ms Naomi Griffiths-Whitfield;

•  Mr Frank Major;

•  Mr Drew Cutler; and

•  Mr Lee Wordsworth.

[6] And on behalf of the Respondent:

•  Ms Mangu Marylou Slade;

•  Mr Kees-Jan Archbald; and

•  Mr Russell Chapman.

[7] The parties agreed on questions for arbitration 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?

[8] Undertaking 2 of the Agreement states as follows:

“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.”

Question 1 – the Classification Question

Mr Watson’s Submissions and Evidence

[9] Mr Watson’s primary submission is that Level 1 of the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) is not the relevant classification that should be used in calculating his employment reconciliation. In determining the corresponding classification of a Youth Worker Level 1 in the SCHADS Award, consideration must be given to the requirements of the role, the level of supervision provided to the employee and the qualifications of the employee.

[10] Mr Watson submits that Level 1 of the SCHADS Award requires employees to undertake routine activities within clearly defined practices and procedures, and that duties may include routine clerical or support activities, basic word processing, general reception and telephone duties and general stenographic duties. Mr Watson submits that he is required to perform work which is not consistent with the requirements of Level 1.

[11] Mr Watson’s final submissions were that the position could not be classified less than Level 2 under Schedule B, and further Level 3 under Schedule B classification picked up the complexity of behaviours and was a significant determinant of what might make the position Level 3 instead of Level 2. 1 Further, determining the position at Level 2 would ignore this important aspect of Mr Watson’s work.

Supervision and Complexity of the Role

[12] Mr Watson submits that the level of supervision an employee works under is defined for each level within Schedule B of the SCHADS Award. Accordingly, Level 1 provides that employees will be closely monitored while working under direct supervision.

[13] Mr Watson submits that his interaction with his Case Manager is minimal: he is only required to have monthly supervision meetings with the Case Manager and engage in weekly team meetings. The Case Manager is not located at the same premises as Mr Watson and has limited interaction unless the need arises. The Applicant refers to Complete Windscreens (SA) Pty Ltd v Fair Work Ombudsman (No 2) 2 in support of his submission that the Commission approach the matter with reference to the practical reality of his employment; that he was required to and did work without direct supervision.3

[14] Mr Watson further refers to Paulin v Gymsports 4 in support of his submission that “general supervision” would be met by the physical presence of a more qualified employee at the workplace, and that the supervision in the case of his employment is otherwise “limited supervision” where “…the person exercising the supervision need not be physically present”.5 Mr Watson also refers to Hall v Board of Professional Engineers f Queensland,6 where it was found that the geographical separation of an employee from his supervisor was relevant to the level of supervision provided.7

[15] The Applicant contends that the evidence before the Commission identified the complexity of the clients in the care of the Respondent. Further, the Applicant submits that Ms Slade confirmed that Mr Watson has the skills and knowledge to work with these clients. 8

[16] Mr Watson submits that despite an assertion by the Respondent that Mr Watson receives approximately 8 to 10 hours per week of support as a youth worker, Ms Slade of the Employer conceded Mr Watson had not been provided with this level of supervision. 9

[17] Further the Applicant submits that, despite assertions of the limited autonomy of a Level I Youth Worker, Ms Slade confirmed the Applicant had autonomy in his role.

Qualifications and Progression

[18] The Applicant submits that, prior to commencing employment with the Employer, he completed a Certificate IV in Youth Work 10 And that this qualification directly aligns with the role of a Youth Worker. Further, that the minimum entry point for an employee who holds a relevant Certificate IV is Level 2.2.

[19] Mr Watson submitted that, under cross-examination, Ms Slade confirmed the Certificate IV in Youth Work is considered a relevant qualification by the Department of Child Safety Youth and Women (the Department).

[20] Mr Watson also completed Therapeutic Crisis Intervention Training immediately prior to his employment on 13 December 2012, which he is required to update every 3 months in order to be rostered on for shifts, and later in June 2013 a mandatory Trauma and Attachment Training course. 11

[21] Mr Watson notes that he has been employed at Level 1 with the Employer since December 2012 and, while he has acquired new skills and knowledge relevant to his role over this time, he has not progressed in pay points since commencement.

Witness Statement of Mr Michael Watson

[22] Mr Watson, as the Applicant in these proceedings, filed a witness statement. 12

[23] Mr Watson states that in his role as a Youth Worker, he is required to work with high-needs children between the ages of 12 and 18, who display extreme trauma-based behaviours. Mr Watson was required to make a declaration upon commencement of his employment that he understood the requirements of the role and has provided a copy of that undertaking, and the position description referred to in it, to the Commission. 13

[24] Mr Watson states that he is often required to work with one or two young people at a time. Mr Watsons notes that the length of a single shift is typically 24 hours from 10am each day, but that he is often rostered on for double or triple shifts. Mr Watson says he is the sole carer of that young person or people for that entire period.

[25] Mr Watson participates in regular supervision meetings with a Case Manager. In the supervision meetings, he provides information to the Case Manager about the work undertaken to support the young person or people in his care. Mr Watson has provided the Commission with a copy of recent supervision notes in this regard. 14

[26] Mr Watson states his duty is to identify, prevent and manage crisis in the young people in his care while on shift and that he has been physically assaulted on more than one occasion while working. Mr Watson states he does not have immediate access to support or supervision when a crisis escalates, and he states he is expected to manage and de-escalate situations on his own. Mr Watson submits he is able to do this as a result of the skills and resilience he has acquired through many years of experience and training.

[27] Mr Watson notes that there is an on-call person available throughout the shift to provide advice or mental support if needed. Mr Watson can also obtain limited assistance by calling an ambulance, the police, or reporting an incident to the Department of Child Safety.

[28] Mr Watson states that given his experience and length of service with the Employer, he is required to provide mentoring, guidance and supervision to new employees on “shadow shifts”. Mr Watson has provided to the Commission the expectations of him when supervising an inductee as outlined by the Employer. 15

[29] Mr Watson’s other responsibilities on shift include providing prescription and non-prescription medication to the young person, maintaining the young person’s medical log, securing the medications, supervising any maintenance persons at the residence, liaising with the Department of Child Safety, schools and medical professionals, and offering support to the young person in court and correctional centre visits as required.

[30] In addition to the above, Mr Watson states he is required to carry out “Youth Worker Roles” and “Education and Employment Youth Worker Roles”. Further, he is required to take leadership over the young person’s education and employment in undertaking the Education and Employment Youth Worker roles. Mr Watson has also provided a copy of the additional “Youth Worker Roles” he is required to carry out. 16

Witness Statement of Ms Naomi Griffiths-Whitfield

[31] Ms Naomi Griffiths-Whitfield is a Youth Worker Level 1 at the Employer since September 2009 and has filed a witness statement in support of Mr Watson in these proceedings. 17

[32] Ms Griffiths-Whitfield states that she works independently in her role as a Youth Worker, with no supervision on a frequent basis. Ms Griffiths-Whitfield states she is instructed not to contact her supervisor, known as a Case Manager, unless critically urgent. Ms Griffiths-Whitfield states that in critically urgent situations, she has been instructed to send a text message to the Case Manager, wait 30 minutes and then call if the matter has not been resolved. Outside of these communications, she meets with her Case Manager once a month to review her cases and clients.

[33] Ms Griffiths-Whitfield is responsible for making decisions in relation to the client’s daily routine and personal administration, including corresponding with the Department of Child Safety, Queensland Probation and Parole Office and other stakeholders. Ms Griffiths-Whitfield states she has had up to 3 young people in her care on occasion and is often asked to do “shadow shifts” with new employees.

[34] Ms Griffiths-Whitfield states that at the end of every shift, she is required to complete 2 shift reports, update client case notes, update the client case calendar and document and submit critical incident reports where they are required.

Witness Statement of Mr Frank Major

[35] Mr Frank Major is a Youth Worker Level 1 at the Employer since October 2018 and has filed a witness statement in support of Mr Watson in these proceedings. 18

[36] Mr Major states that he completed a “shadow shift” under the supervision and instruction of Mr Watson at a placement in Brisbane. Mr Major is employed as a Level 1.1 under the Agreement. Mr Major does not hold any formal qualifications but is enrolled in the Certificate IV offered by the Employer.

Employer’s Submissions and Evidence

[37] The Employer submits that Mr Watson has been employed as a Youth Worker Level 1 since commencing employment on 3 December 2012.

[38] The Employer refers to Grabovsky v United Protestant Association of NSW Ltd T/A UPA (Grabovsky), 19 and Jeffrey Vassallo v Easitag Pty Ltd T/A Easitag,20 as authority for their submission that, when there is a dispute over the proper classification of an employee, the dispute is resolved by ascertaining the work performed by the employee and then comparing that work to the classification descriptions in the applicable industrial instrument, construed in accordance with the established principles of construction for industrial instruments.

[39] The Employer also refers to the facts and findings in Grabovsky where the employee held a Certificate III in Aged Care, which was required for a higher classification. The Employer notes that the Commission in Grabovsky did not find the employee was subject to the higher classification, as the employee had not been classified as such by the employer and the employee was not performing duties specifically mentioned in the enterprise agreement for that higher level. 21

Supervision and Complexity

[40] The Employer notes that Mr Watson is required to complete a shift report at the end of each shift, which is checked by the Case Manager on a daily basis. The Employer submits that Mr Watson is required to attend regular team meetings where the week is planned for the young person in care. This planning includes what activities the Youth Worker will do with the young person as well as working on a menu plan for the week. The Employer expects Case Managers will provide approximately 8-10 hours per week of support and supervision to Youth Workers.

[41] The Employer submits that monthly formal supervision meetings allow the Youth Worker to discuss their performance and opportunities for career progression and work together with their supervisor on a plan that will support their progression. Further, Mr Watson, in addition to his Case Manager, has access to a Quality and Systems Manager or external provider Complex Care for extra support when needed.

[42] The Employer relies on the case of Jeffrey Vassallo v Easitag Pty Ltd T/A Easitag, 22 which further considered the concepts of “minimum supervision” required as follows:

“…In my judgment, whilst there may indeed be some increase in the level of practical responsibility when there is no employee on site, it does not mean that all care and responsibility for decisions are required to be made by the relevant worker.” 23

[43] The Employer submits that the extent of Mr Watson’s authority, in relation to a lack of any autonomous decision making required by his role, is also clearly listed in the SCHADS Award where it is stated that work outcomes are clearly monitored, freedom to act is limited by standards and procedures, solutions to problems are found in established procedures and instructions with assistance readily available, project completion is according to instructions and established procedures and there is no scope for interpretation. 24

[44] Further that Mr Watson’s role has limited autonomy and that his freedom to act is constrained by the requirement to work within established procedures and with reference to organisational standards and policies and working under close direction. If Mr Watson was unable to find a solution to a problem in established procedures, there is assistance readily available through the on-call support network. There is no scope for interpretation in the performance of Mr Watson’s role, other than daily routine tasks. Mr Watson is also constrained by the young person’s Care Map and Positive Behavioural Support Plan.

[45] The Employer submits that Mr Watson has no supervisory responsibilities and is not required to provide any guidance to lower classified employees, nor have any technical oversight over activities.

Qualifications and Progression

[46] Regarding Mr Watson’s qualifications at Level 1, the Employer submits that while it is possible for a new employee with no qualifications or experience to be employed under this level, the Award does not limit the level to such potential employees. The Employer also submits that the Certificate IV in Youth Work does not directly align with the work being performed by Mr Watson. While there may be transferrable skills attached to the Certificate IV in Youth Work, the Employer notes the Certificate IV in Youth Work is more appropriately aligned to performing work in a community centre such as a PCYC.

[47] The Respondent notes that in July 2018 the Applicant’s Certificate IV in Youth Work was a recognised qualification for the work undertaken by the Applicant. It submits that this should have no effect on the Applicant’s employment at Safe Places for the period of the reconciliation, which is the subject of this dispute, as his qualification had not been recognised as a relevant qualification by the State government department at that time. 25

[48] The Employer submits further that, while there is no requirement for a Youth Worker to have any formal qualifications, it is encouraged that anyone engaged by the Employer as a Youth Worker will be undertaking a Certificate IV in Child, Youth and Family Intervention (Residential Care) at the Employer’s expense. A Youth Worker is not expected to undertake activities that require the application of acquired skills or knowledge other than skills such a Therapeutic Crisis Intervention to de-escalate a situation with a young person.

[49] The Employer submits that applying the principles in Grabovsky, the Employer is entitled to employ Mr Watson as a Youth Worker Level 1 and pay him in accordance with the work that he is performing, notwithstanding that he holds a Certificate IV in Youth Work. The Employer further submits that Mr Watson has not progressed in his role since employment as he has chosen not to do so. The Employer says that Mr Watson was offered a Youth Worker 2 role on certain terms but declined it.

Witness Statement of Ms Mangu Marylou (Mary) Slade

[50] Ms Slade is the Chief Operations Officer at the Employer and has filed a witness statement in support of the Employer in these proceedings. 26

[51] Ms Slade states that, while a Youth Worker may be working individually with a young person, they have 24/7 access to a Senior Youth Worker or Case Manager on-call. The Youth Worker will also have available an Area Manager as back up on-call. The Area Manager has access to a Senior Manager on-call.

[52] Ms Slade states that, during a routine shift, the Youth Worker will make ordinary daily routine decisions but cannot make any decision that is outside of the Employer’s policy, the young person’s Care Map or Positive Behaviour Support Plan, or is otherwise authorised by the Department. Ms Slade gives the example that a Youth Worker is not able to take a young person to get their hair cut or have family contact without prior authorisation from the Department.

[53] The duties of a Youth Worker include providing adequate food and meal preparation, transport to and from appointments, social engagement, education, household chores and shopping, but the Youth Worker does not have authority to make any decisions outside of the scope of their duty of care for the young person.

[54] Ms Slade states that it is expected that a Case Manager provides a Youth Worker with approximately 8-10 hours of support per week in various ways. 27 These include but are not limited to: daily debriefing phone call of approximately 30 minutes; responding to emails and text messages; informal coaching; team meetings; formal supervision; bi-monthly youth worker meetings and clinics; and post-crisis debriefing as required.

[55] Ms Slade states further that if there is a critical incident on shift, the Youth Worker has very definite timeframes within which they must notify on-call and/or the Department depending on the level of the critical incident. At times, the on-call worker is required to physically attend the property to provide additional support and, if required, relieve a Youth Worker from their shift.

[56] Ms Slade states that all decisions other than routine daily decisions regarding a young person are “made by the team”, 28 in consultation with the Department and other stakeholders. The Case Manager is ultimately responsible for ensuring Departmental permission has been received and all decisions are in line with Department requests. Further, there is a definite line of supervision and hierarchy of reporting that includes Youth Workers being directly supervised by a Case Manager. Ms Slade provided an organisation chart for the Employer to this effect.29 Ms Slade acknowledges that while a Youth Worker provides sole supervision and works alone with a young person, they are working within clearly defined boundaries, policies and procedures, and have limited autonomy or decision-making authority.

[57] Ms Slade also states that Mr Watson is not required to provide training, mentoring or supervision of new employees, nor is it usual for a Youth Worker Level 1 to have a shadow shift worker on shift with them. Ms Slade says that this is supported by the shift reports she has provided to the Commission, which includes one example in the six-month period where Mr Watson had a shadow shift employee.

[58] Ms Slade states further that Youth Workers Level 2 and above are required to take on additional paperwork tasks such as updating care maps, creating progress reports (which could be weekly or fortnightly), rostering if the task is delegated by the Case Manager, and may also attend stakeholder meetings and perform minute-taking of those meetings. Ms Slade states the Employer does not have confidence in Mr Watson’s ability to accurately complete the additional paperwork tasks which are inherent requirement in the roles above Level 1. She bases this opinion on two prior occasions where Mr Watson was spoken to regarding errors in his report writing. 30

Witness Statement of Mr Kees-Jan (Casey) Archbald

[59] Mr Archbald is the Chief Executive Officer (CEO) for the Employer and has filed a witness statement in these proceedings. 31

[60] He notes that supervision is fundamental to the Employer’s structure, due to the challenges of Youth Work. He states that support and supervision is provided to employees of all levels through both informal and formal methods.

[61] Further, he states that since 1 July 2018, Youth Workers have been required to undertake a Certificate IV in Child Youth and Family Intervention (Residential Care). This is the Employer’s preferred qualification for Youth Workers.

[62] Mr Archbald states that:

“While we recognise that some youth workers and other workers hold other Certificates, we consider the preferred qualification to be the most appropriate for the type of work we are performing for the reasons in the preceding paragraph”. 32

Consideration – the Classification Question

[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.

1. What work is performed by Mr Watson?

[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.

[74] I turn now to the requirements of the position, including prerequisites.

[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.

[78] Although not disputed, for the sake of completeness, I note that all other prerequisites, including Therapeutic Crisis Intervention training, have been completed by the Applicant.

2. Comparison of the Work Performed with the Classification under the Award

[79] According to the Employer, the work performed by Mr Watson is that of Level 1 of Schedule B.

[80] Mr Watson considers that his position has aspects of “up to” Level 4 of Schedule B. In the Applicant’s submission, Level 2 does not address the complexity of the clients in the care of the Applicant, and that Level 3 “picks up the complexity of the behaviours as a significant determinant of what might make a position level 3 instead of level 2.” 33

[81] While it was noted in Livende Incorporated v Health Services Union 34 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, 35 but more in the nature of guiding the work of lower classified employees.36 That is, the participation in shadow shifts, although limited in number, are more aligned with Level 2 than Level 1.

Requirements of the Position, Including Prerequisites

[84] The Employer says at the time of appointment, Mr Watson was employed in the position of Youth Worker Level 1 and required him to perform duties associated with the position notwithstanding his Certificate IV in Youth Work.

[85] It is the case that, as found in Grabovsky,an employer is entitled to employ an employee in the position at a lower level notwithstanding a formal relevant qualification. However, Grabovsky is also authority that where there is a dispute over the proper classification of an employee, the dispute is resolved by ascertaining the work performed by the employee and then comparing that work to the classification descriptions in the applicable instrument, construed in accordance with the established principles of construction for industrial instruments.

[86] Mr Watson’s Certificate IV was declared in July 2018 by the Department to be an equivalent qualification. The Employer has not accepted this to be the case, 37 and pressed employees, including Mr Watson, to complete Certificate IV in Child Youth and Family Intervention (Residential Care). Mr Watson points to his current Certificate IV and submits that it should be recognised as an equivalent qualification.

[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.

[91] I would add at this point that there has been no criticism of the quality of the work of Mr Watson with young people. Indeed, throughout the hearing Mr Watson was praised as an excellent worker.

[92] I turn now to the questions for arbitration, and as to Question 1 conclude as follows:

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?

Mr Watson’s corresponding classification under the Award is as a Social and Community Services Employee Level 2 pay point 2 from July 2018.

Further:

a. What is the level of work being performed by Mr Watson?

Mr Watson works individually and autonomously with one or two young people. The level of work is defined by established routines, methods and standards. In this case these are the Employer’s policies, care map and positive support plans.

b. What is the level of supervision that Mr Watson is under, or has available to him?

The level of supervision is available as required but it is not direct; further, it is less than 8 -10 hours per week.

c. What effect does Mr Watson’s Certificate IV in Youth Work have on his employment with Safe Places for Children?

Mr Watson’s Certificate IV in Youth Work is a relevant qualification and should be recognised by his Employer from July 2018.

Question 2 – the Reconciliation Question

[93] Mr Watson submits that his employer has not complied with the following undertaking:

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 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.”

[94] In order to resolve this dispute, the parties agreed on the following question concerning the reconciliation:

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?

Background

[95] On 30 March 2018, Mr Watson states he requested a reconciliation of his wages against what he would have been paid under the SCHADS Award. Mr Watson says that the reconciliation completed by the Employer was calculated against Level 1 of the SCHADS Award. Mr Watson disputed both his classification and that there has been compliance with the Undertaking 2.

[96] Mr Watson submits that Clauses 13, 15, 20, 23, 25, 26, 27, 28, 29, 31, 34 and Schedule B of the SCHADS Award are relevant to the calculation of his reconciliation.

[97] The Applicant says that the Respondent has not met its obligations in relation Undertaking 2 of the Agreement, because it has failed to provide the Applicant with an accurate reconciliation of what he would have received if he had been employed under the Award.

[98] The Respondent asserts that Mr Russell Chapman, General Manager of Finance and IT of the Employer, performed a reconciliation in compliance with Undertaking 2. Further, that there is no evidence before the Commission to demonstrate that the reconciliation performed was not in accordance with the terms of the Agreement.

Interpreting the Undertaking

[99] Both the Applicant and the Respondent made submissions about how the Commission should interpret the Undertaking.

[100] The Applicant submits the dispute is about interpreting the plain language of Undertaking 2, concluding the Employer is required to apply the Award provisions, not the Agreement provisions, when calculating the reconciliation of the Applicant’s wages against the Award. 38

[101] The Applicant submits that the starting point is s.186(2)(d) of the Act, which provides the Commission must be satisfied that an enterprise agreement passes the Better off Overall Test (“the BOOT”) before it can approve it. That is, the approval of the Agreement is contingent on it passing the BOOT, under s.193 the Act. Undertaking 2 was required by the Commission so it could be satisfied that the Agreement passed the BOOT, in accordance with s.193. Under s.191, if the Commission accepts an undertaking, that undertaking is taken to be a term of the Agreement.

[102] The Applicant submits that the Respondent has failed to discharge its obligation to provide the reconciliation of the Applicant’s wages received compared with what he would have received under the Award.

[103] The Respondent noted that s.190 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 sections 186 and 187 of the Act. These requirements include passing the BOOT.

[104] The Respondent submits the BOOT is not relevant to the purposes of interpreting the Agreement. The Respondent referred to the decision of the Full Bench in Automotive Food Metals Engineering Printing And Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd  39 (Berri) which is authority that terms of an enterprise agreement must be given the plain meaning and read in context. Further, it does not “involve rewriting the agreement to achieve what might be regarded as fair or just outcome. The task is always one of interpreting the agreement produced by the parties.”

[105] Also relevant in this context is that “it may be inferred that such agreements are intended to establish binding obligations”. 40

[106] In terms of what is required to satisfy the plain language of the reconciliation clause, the Respondent submits as follows:

a) when there is a request from an employee; and

b) the reconciliation is to establish whether for work performed under the Agreement in the preceding year the employee’s total remuneration is less an employee would have received under the Award.

[107] Further, the Respondent referred to s.190(3)(b) where undertakings approved by the Commission must not result in substantial change to the proposed enterprise agreement.

[108] The Employer submits that the proposition of the Applicant, that the terms of the Agreement are to be completely bypassed and only regard given to the Award ignores that the enterprise agreement is a standalone Agreement, and if applied in the manner contended by the Applicant, this would result in the Agreement provisions being inapplicable, therefore creating a substantial change in the enterprise agreement.

Beechworth Bakery Decision

[109] The Respondent referred the Commission to the decision in Shop Distributive and Allied Employees Association v Beechworth Bakery Employee Code Pty Ltd T/A Beechworth Bakery 41 (Beechworth).

[110] Mr Spence’s submission was that the undertaking considered in Beechworth was similar to the current Undertaking and was not approved, although noting that the Undertaking in this matter refers to no disadvantage rather than a better off over all test.

[111] The Applicant submitted that the Beechworth decision was irrelevant to this matter having been decided after the Agreement was approved.

[112] In my view, the Beechworth decision does not assist either party, save that it points to the clear fact that there are indeed practical difficulties in reconciliation clauses. This was also identified in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Manufacturing Workers’ Union v Main People Pty Ltd 42 where the Full Bench again rejected a reconciliation clause noting it was, “An undertaking which is uncertain, ambiguous or merely aspirational such that it does not establish an enforceable entitlement for the purpose of s.191.”

[113] Notwithstanding the clear challenges in interpreting reconciliation clauses, the threshold matter then, is: how is this Undertaking to be interpreted?

Consideration – the Undertaking Question

[114] Ms Girard contends that the principles that are applied when determining whether an agreement passes the BOOT should similarly be applied when calculating the reconciliation provided for in the Undertaking. Any arrangements, implied or otherwise, must be disregarded and the assessment should be done on the minimum requirements of the relevant Modern Award.

[115] Alternatively, Mr Spence submits that the Undertaking does not use the language of an Award assessment being the BOOT but uses the language of ‘no disadvantage’. What the Employer suggests this means is there is an entitlement for an employee to make an annual reconciliation request, and if it is identified that they would be paid more under the Award then the reimbursement process ensues.

[116] My view is the plain language of the Undertaking contemplates ensuring an employee, following a request for a reconciliation, is not disadvantaged. The test is not is a “better off over all” test, but requires the reconciliation to assess whether an employee is disadvantaged in accordance with the Undertaking.

[117] The words of the Undertaking support this interpretation: “an employee will not be disadvantaged over the life of the Agreement when their terms and conditions under the Agreement are compared to the Award”. That is, to interpret this Undertaking there should be no disadvantage to an employee when their terms and conditions are compared to the Award.

[118] As to how this process is to be carried out, the Respondent submits there is no level of specificity in the Agreement 43 but suggests compliance in the steps it has taken. While I agree that there is no specificity in the Agreement, the task of this Tribunal is to decide whether Mr Watson is disadvantaged when his terms and conditions under the Agreement are compared to the award.

Reconciliation Issues in Dispute

Reconciliation

[119] For the period of reconciliation, it was agreed that the Applicant was paid $64,160.09.

Reconciliation amounts different for Applicant and Respondent

[120] Both the Applicant and the Respondent Employer sought to assist the Commission in providing comprehensive reconciliations, 44 initially for a shorter period but ultimately for the same 12-month period.

[121] The Applicant asserts that he is entitled to be paid during the reconciliation period an amount of $69,778.26.

[122] In calculating the amount of the reconciliation, the Employer acknowledged it made some errors in its calculations. As a result, the initial calculation of $56,081.46 was increased, initially to $56,942.76 and then to $60,936.

[123] At the same time the Fair Work Ombudsman (FWO) calculated Mr Wordworth’s (Mr Watson’s colleague) reconciliation pay at a slightly less amount that the Employer’s figure. Both the Applicant and the Respondent however disagreed with the FWO’s assessment and neither ultimately sought to rely on this material.

What are the issues in dispute when calculating the reconciliation in accordance with Undertaking 2?

[124] While a significant number of interpretations and calculations were agreed between the parties, the reconciliations also confirmed some long-standing issues in dispute: hours of work, TOIL and public holidays. In addition, the reconciliation calculations revealed two further issues: hours actually worked, particularly shortfall hours and how they are dealt with under the Award, and length of service/progression to a higher pay point under the Award. All of the matters are considered below.

Hours of Work

[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. 45 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 and 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 46 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.

Time Off Instead of Payment for Overtime

[132] Clause 28.2 of the Award provides for an arrangement of time off instead of payment for overtime. Any amount of overtime that has been worked by an employee and is to be taken as time off instead of the employee being paid for it, must be the subject of a separate agreement under this Clause.

[133] Similarly, relying on s.193(2), the Applicant submits that Clause 28.2 is a flexibility arrangement and therefore must be disregarded for the purposes of calculating the reconciliation. Further, the absence of any agreement between the Applicant and the Respondent renders Clause 28.2 inapplicable.

[134] For the reasons I have detailed above concerning the application of s.193(2), it is similarly not relevant in deciding how the time off instead of overtime provisions are to be applied.

[135] It is the case however, that the Award requires a separate agreement to be entered into each occasion an employee agrees to take time off, and there is no separate agreement between the Applicant and Respondent for the accrual of time off instead of payment for overtime.

[136] Mr Chapman’s evidence was that employees have agreed to work shifts greater than eight hours and to utilise the “Hours Bank” system. His evidence was that the Employer applies the Award provisions on the assumption that there is agreement to the longer shifts and the time off instead of payment for overtime provisions of the Award.

[137] What then is the effect of the requirement in Clause 28.2 in terms of the task of assessing whether Mr Watson was disadvantaged when the terms and conditions under the Agreement are compared to the Award?

[138] Mr Chapman’s evidence referred to the Employer’s focus on the Hours Bank for managing time worked, payments for additional hours worked, and time off on full pay. Mr Chapman asserts these are broadly comparable to the time off in lieu 47 of overtime provisions of the Award, so these provisions are used in the reconciliation.

[139] Having concluded that Undertaking 2 requires an assessment of disadvantage to Mr Watson, and on the basis that the employee’s remuneration is calculated according to the time off instead of payment provisions in Clause 28.2 of the Award, I identify no disadvantage to the Applicant.

Conclusion on Time Off Instead of Payment for Overtime

[140] Mr Watson is not disadvantaged by the application of the time off instead of payment for overtime clause for the period of the reconciliation.

Public Holidays

[141] The Applicant submitted that the Respondent had not provided for public holidays where the Applicant had been rostered off.

[142] The Employer acknowledged that in preparation for the reconciliation, shifts were identified which fell partly or wholly on a public holiday. Adjustments were made accordingly and increased the amount to the Applicant by $861.30. 48

[143] The Employer has acknowledged the Applicant’s entitlement to pay in accordance with clause 34 of the Award and the NES.

Conclusion on Public Holidays

[144] Mr Watson is entitled to payment for shifts which fell partly or wholly on public holidays, notwithstanding he has not been rostered to work.

Shortfall Hours

[145] The Applicant submitted that the reconciliation provided by the Respondent did not include shortfall hours. He submits the Award does not provide for shortfall hours and therefore when calculating a reconciliation against the Award, shortfall hours cannot be included.

[146] In response to the Applicant’s submissions, that in the weeks when there are shortfall of hours and the Employer reduces the hours in the bank accruals, the Employer acknowledged it needs to make a nominal payment in the reconciliation at ordinary time in the same way that TOIL operates. 49 As a result it revised the reconciliation amount from $56,081.46 to $60,936.

Conclusion on Shortfall Hours

[147] Shortfall hours should not be included when calculating the reconciliation against the Award.

Failure to Recognise Progression under the Award

[148] The Applicant submits that the Employer has not complied with its obligation in terms of Undertaking 2 in relation to the recognition of any length of service and progression available under the Award. In relation to this error and/or omission, the Applicant submits that the obligation in the Undertaking has not been met by the Respondent.

[149] Mr Chapman acknowledged that there was no length of service or progression included in the reconciliation:

“Is there a reason why progression hasn’t been applied?--- I would suggest that this was done in that where still sort of fine tuning the process, it was either missed or it was overruled by Mr Archbald, one of the other I couldn’t tell you which”. 50

[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 51 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.

[153] Should my calculations in relation to this matter be wrong, the parties are invited to informally raise the matter where the matter will be listed for further conference on this point.

[154] As to the period of assessment for the reconciliation, I accept the submissions of the Respondent that the in the Applicant’s Form F10 dispute application, the Applicant requested that his remuneration, in accordance with the Agreement for the period 30 March 2017 to 30 March 2018, be reconciled against his putative entitlements under the Award for the same period. It is that period that should be the subject of any reassessment.

Conclusion on Disputed Clauses – no disadvantage found

[155] Subject to any recalculation to include progression payment, I have concluded that there is no disadvantage arising from the interpretation by the Employer of Hours of Work or Time off Instead of Payment for Overtime. I similarly conclude that, after the recalculation for Public Holidays and Shortfall of Hours following submissions from Mr Watson, no disadvantage now arises from the interpretation of these clauses by the Employer.

[156] I therefore conclude that the Respondent has complied with its obligations in its reconciliation of the Applicant’s annual remuneration in accordance with Undertaking 2 of the Safe Places For Children Enterprise Agreement 2013.

[157] Although not necessary to deal with for the purposes of this dispute, given both the Applicant and the Respondent made certain submissions about the calculation of the deductions from the Hours Bank, the Employer did seek to explain how it works. I note that the present arrangement, as explained by the Employer, takes half from each of the overtime hours accrued. The Applicant contends, without providing any evidence, that any deduction for shortfall hours for time not worked can only be done in ordinary time.

[158] As the Award is silent on this point it is not a matter for calculation in this dispute. It may well be, however, a proper subject for bargaining in any future enterprise bargaining negotiations.

Conclusion on the Reconciliation Question

[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.

COMMISSIONER

Appearances:

Ms R Girard for the Applicant.
Mr T Spence of Counsel with Mr T McKernan for the Employer.

Hearing details:

Brisbane.
16 May;
20 & 21 August;
31 October.
2019.

Printed by authority of the Commonwealth Government Printer

<PR716078>

 1   Mr Watson submitted at various times (prior to final submissions) that he should be classified as Level 4 under the SCHADS Award, for example because as he is required to work as a sole employee.

 2 [2017] FCAFC 212.

 3   Complete Windscreens (SA) Pty Ltd v Fair Work Ombudsman (No 2) [2017] FCAFC 212.

 4   [2015] FWC 2604.

 5   Paulin v Gymsports [2015] FWC 2604 at [52].

 6 [2012] QSC 23.

 7   Hall v Board of Professional Engineers of Queensland [2012] QSC 23 at [33].

 8 Applicant’s Closing Submissions in Reply, at [9].

 9 Applicant’s Final Submissions, filed 11 September 2019, at [31].

 10   Witness Statement of Mr Michael Watson, dated 29 March 2019, Annexure MW07.

 11   Ibid at [46] and [47]; Annexure MW08, MW09 and MW10.

 12   Witness Statement of Mr Michael Watson, 29 March 2019.

 13   Ibid, Annexure MW01 and MW02.

 14   Ibid, Annexure MW03.

 15   Ibid, Annexure MW04 & MW05.

 16   Ibid, Annexure MW06.

 17   Witness Statement of Ms Naomi Griffiths-Whitfield, dated 9 November 2018.

 18   Witness Statement of Mr Frank Major, undated.

 19   [2015] FWC 2504.

 20   [2017] FWC 5961.

 21   [2015] FWC 2504 at [45].

 22   [2017] FWC 5961.

 23   [2017] FWC 5961 [48].

 24   SCHADS Award, Schedule B.1.3(c), SACS 22.2.6 Extent of authority.

 25 Respondent’s Closing Submissions, filed 25 September 2019, at [93].

 26   Witness Statement of Ms Mangu Marylou (Mary) Slade, dated 18 April 2019.

 27 Ibid, at [15].

 28 Ibid at [22].

 29   Ibid, Annexure MS-1.

 30   Ibid, at [59] and Annexure MS-10.

 31   Witness Statement of Mr Kees-Jan (Casey) Archbald, dated 26 October 2018.

 32   Ibid, at [52], [54].

 33 Applicant’s Final Submissions, filed 11 September 2019, at [58].

 34   [2014] FWCFB 8089 at [55].

 35   Schedule B - Level B(1)(f).

 36   Schedule B - Level B(2)(d).

 37   See statement of Mr Kees-Jan (Casey) Archbald at [52], [54].

 38   The Applicant refers decision in Kucks v CSR Ltd [1996] IRCA 166as to the legal principles when interpreting industrial instruments such as Awards.

 39   “Automotive Food Metals Engineering Printing and Kindred Industries Union” known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd [2017] FWCFB 3005 at [114].

 40   [2017] FWCFB 3005 at [47].

 41   [2017] FWCFB 1664.

 42   [2015] FWCFB 4667 at [38].

 43   Transcript PN80.

 44   Based on Level 1.2 of the SCHADS Award.

 45 Witness Statement of Mr Lee Wordsworth, at [36].

 46 Witness Statement of Mr Russell Chapman, at [11].

 47   Time off in lieu in Modern Award clauses is referred to as “time off instead of payment for overtime”.

 48   Witnes Statement of Mr Russell Chapman, dated 14 June 2019, at [66] and [67].

 49 Further Supplementary Statement of Mr Russell Chapman, dated 16 August 2019, at [7].

 50   Transcript PN1560.

 51   This is pay point 3 Level 1 as as the time of the decision, a more accurate though possibly lesser amount would be calculated for the period of the reconciliation.