Mr Walter Benson v St George's Basin Country Club Ltd
[2018] FWC 6908
•20 DECEMBER 2018
| [2018] FWC 6908 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 739 - Application to deal with a dispute
Mr Mark Johnson; Ms Alison Marr; Mr James Buist; Mr Kevin Cooke; Mr Walter Benson
v
St George's Basin Country Club Ltd
(C2018/2640)
DEPUTY PRESIDENT SAMS | SYDNEY, 20 DECEMBER 2018 |
Dispute about matters arising under an enterprise agreement – maintenance and horticultural employees – appropriate classification levels under the enterprise agreement – s 206 of the Act enlivened – minimum base rates of pay applicable under the Modern Award – relationship between NAPSA and Modern Award considered – appropriate levels of training relevant – classifications determined – base rates of pay determined.
BACKGROUND
[1] This is an application filed on 17 May 2018 by the Australian Workers’ Union (the ‘Union’) on behalf of its members, Mr Mark Johnson, Ms Alison Marr, Mr James Buist, Mr Kevin Cooke and Mr Walter Benson (collectively the ‘applicants’), pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’), in respect to a dispute arising under the St George’s Basin Country Club Limited Enterprise Agreement (the ‘Agreement’). The applicants are employed in the maintenance and horticultural team at the St George’s Basin Country Club (the ‘Club’ or the ‘respondent’). The respondent is a large registered/licensed Club located in Sanctuary Point on the South Coast of New South Wales.
[2] The applicants are covered by the Agreement, which was approved by Fair Work Australia (as the Commission was then styled), on 23 November 2012. Although the Agreement reached its nominal expiry date on 29 November 2015, it remains operational, pursuant to s 54 of the Act. In the present case, the applicants dispute the base rates of pay that apply to them. In accordance with my usual practice, I listed the dispute for a conference on 30 May 2018. Although the parties continued to discuss the matter following the conference with a view to resolving it, on 12 June 2018, the applicants requested that the matter proceed to arbitration, in accordance with cl 34 of the Agreement. The matter proceeded to hearing on 18 September 2018. Ms J Gherjestani of the Union appeared for the applicants and Ms L Pike of ClubsNSW appeared for the respondent. At the hearing the following witnesses gave evidence:
• Mr Kevin Cooke, applicant;
• Mr Walter Benson, applicant;
• Ms Alison Marr, applicant;
• Mr James Buist, applicant;
• Mr Mark Johnson, applicant;
• Mr David Hancock, Union Organiser; and
• Mr John Berthon, Course Superintendent.
[3] I note that the original application involved another applicant, Mr Mark Vanzino. However, he subsequently withdrew his involvement in the matter and is no longer employed by the Club.
THE EVIDENCE
For the applicants
Mr John Hancock
[4] Mr Hancock is an official of the Union and has held this position since 2003. Mr Hancock provided evidence in reply to Mr Berthon’s witness statement and the respondent’s written submissions.
[5] Mr Hancock said that in August 2012 he became aware, through United Voice, that the Club intended to negotiate an enterprise agreement to cover its employees. He attended a meeting with the Club to discuss the proposed agreement around this time. After reviewing the proposed agreement, he concluded that the proposed rates of pay were below those in the Registered and Licensed Clubs Award 2010 (the ‘Award’), and therefore the Union would not agree to its terms, nor would the Union be a party to the Agreement. He said he advised the Club of the Union’s position. After the meeting, he advised the Union’s members that given they would no longer receive a $14 drink allowance and the rates of pay were below the Award, they would not be ‘better off overall’ under the proposed Agreement than the Award. The members had agreed they would be adversely affected and would not agree to the terms of the proposed Agreement.
[6] In November 2017, following a telephone call from Mr Buist, Mr Hancock reviewed the applicants’ pay slips. He compared the applicants’ classifications with the classifications in the Award and determined they were being paid less than what they would be paid under the Award. He raised this with the Club’s Operations Manager, Mr Ben Clegg who said ‘I know, I will fix it up’.
[7] Although Mr Hancock became aware in December 2017 that the Club had increased the applicants’ rates of pay, the Club would not back pay for previous periods where the Union maintained the applicants had been wrongly classified. He contacted Mr Clegg, who agreed to back pay from July 2017 through to December 2017, but would not back pay any amount prior to July 2017. He claimed the Club ceased to reply to all forms of contact from that point onwards.
[8] Mr Hancock gave evidence in respect to the proposition that the Bowling and Golf Clubs Employees (State) Award [AN120079] (the ‘NAPSA’) was the source of the applicants’ classifications. He said it was clear in the 2012 meeting with the Club, that the proposed Agreement would be a stand alone document, underpinned by the Award, having ‘nothing to do with the NAPSA’. His opinion was that the Form F17 also supported this position.
[9] In oral evidence, Mr Hancock agreed that the AWU had not raised a claim in respect to the Agreement until 2017, notwithstanding that in 2012, he believed the proposed Agreement would result in its members being be worse off than the Award. He said that he was not aware that the applicants were covered by the Agreement, and believed their terms and conditions were determined by the Award throughout this time. It was only in December 2017, following the phone call from Mr Buist, that he was informed the applicants were covered by the Agreement (as far as he Club was concerned).
Mr Kevin Cooke
[10] Mr Cooke commenced employment with the Club in November 2002 as a Trades Assistant on a permanent part time basis. In September 2003, his role changed to Groundsman on a full time basis. Since the Agreement was approved, he has been classified as a Horticulture Employee Level 3. Mr Cook holds a Certificate III in Landscape Construction.
[11] Mr Cooke said that the Club increased his hourly pay to $21.29 on 1 December 2017, which aligns with the classification of Maintenance and Horticultural Employee Level 3 (Tradesperson) under the Award. On 1 July 2018, the rate increased to $22.04. He provided the following table showing what he was paid, compared to what he claims he should have been paid during the relevant period:
[12] Mr Cooke detailed the duties and tasks that he performs for the Club. In his role, he operates the following machines:
• rough cutters;
• bunker rakes;
• light rough mowers;
• fairway mowers;
• tractors (front end loaders);
• tease mowers;
• surrounds mowers;
• hand mowers;
• whipper snippers;
• edgers;
• trucks and cars;
• rotary hoes;
• sweepers; and
• coring machine;
• and air raiders [though, I think this was a reference to aerators].
Mr Cooke adjusts and maintains the majority of the machines listed above to varying degrees. This includes maintaining water and oil levels, checking hydraulic hoses and tyre pressure, and ensuring the machinery is free from dirt, grass and grease. He cleans, inspects and reports problems with turf machinery. If significant maintenance work is required, there is a mechanic in the maintenance and horticulture team. In addition, he applies fertilisers, including Roundup, about three to four timers per year during renovation periods. He prepares turf and other surfaces for play on a daily basis (this can form up to 90% of his daily work). He estimated maintenance of vehicles, and motor engines constitute approximately 5% of his work over a 12 month period.
[13] Mr Cooke claimed that all repair and minor renovation of machinery is performed by maintenance and horticultural employees. Renovation work that he has performed includes: carpentry, painting, renovating the toilet systems, hanging doors, concreting cart paths, retaining walls, erecting fences, making/welding metal screen barriers and erecting them, welding, tiling toilets, paving, building brick pits, general brick work, clearing blocked drains, fixing broken pipes and installing pipes, building dams and retaining walls, installing new irrigation lines and fixing the lines, felling trees, and disposing of dead animals. He provided several photographs which showed some of the projects he had worked on.
[14] For one to two weeks per year, Mr Cooke supervises and trains school leavers and students who are undertaking vocational training and occasionally dole and community work employees. His duties have remained the same since 2003.
[15] Mr Cooke said that the maintenance and horticultural employees were not given an opportunity to be involved in bargaining for the Agreement and they did not want it to be approved. I note Mr Cooke also gave evidence of some rather serious allegations against the Club, including what could be described as ‘adverse action’. That evidence is not relevant to the question to be determined in this case.
Mr John Berthon’s evidence in reply
[16] Mr Berthon said Mr Cooke:
• has always been a Level 3 employee;
• main duties include;
• mowing and maintaining the greens including the rough and light rough;
• raking bunkers;
• general painting;
• trimming plants;
• using sprinklers;
• is not required to perform ‘many duties in his statement’; for example, he does not apply insecticides and fungicides and does not perform mechanic duties; and
• may apply fertilizers from time to time, but only under supervision.
[17] Mr Berthon said that all staff are aware that if they undertake higher duties, then it needs to be identified on their timesheets. He attached two of Mr Cooke’s timesheets where Mr Cooke had written ‘Level 4 Form Work’ and what appears to be ‘Level 4 Concrete’ next to shifts in the weeks 23 February 2016 and 21 June 2016.
[18] In a reply statement, Mr Cooke accepted that he is not a mechanic, but he offers regular assistance to the mechanic. He also assists with the maintenance of turf machinery, such as changing cylinders and checking water and oil levels. He does not adjust the blades of fairway mowers. He is qualified to spray insecticides and pesticides on the golf course. While Mr Berthon had asked him to do so, he had refused on the basis he was not being paid for it. He also clarified that the maintenance and horticultural team plant trees as required, and while not ‘hundreds each year’, there have been instances where they have planted over 100 trees in a year.
[19] In cross examination, Mr Cooke said that the Union had assisted him with his statement, particularly in relation to technical issues relevant to the NAPSA and the Award. He agreed he had spoken to the other employees, who are included in this dispute in relation to the duties they perform, to help him form his opinion about what duties he performed. He explained why he removed his involvement with insecticides and pesticides from his statement. He maintained that 90% of his daily summer responsibility is in respect to preparation of playing services. Given the slower rate of growth during the cooler months, it is not as high as 90%. He said Mr Benson similarly performs 90% of his time performing these duties, as do Ms Marr and Mr Buist; but Mr Johnson is the mechanic. He also maintained he performs maintenance and repair of motor vehicles 5% of the year, formation and maintenance of gardens, lawns and greens up to 10-15% of the year, and maintenance and care of trees about 10-15% of the year. In total, for 90% of the year he is mowing, and in the remaining 10% he performs the other duties. After being taken to the classifications in the Agreement, he agreed the majority of the work he performs falls into Levels 1 to 3 in the Agreement.
Mr Walter Benson
[20] Mr Benson has worked with the Club since 2011, after working for the Club for three months as part of a ‘Work for the Dole’ program. He is a regular and systematic casual employee with rostered hours from Monday to Thursdays 6am to 2pm and 6.30am to 1pm on Fridays. He is covered by the Agreement and is classified as a Level 2 Horticultural Employee. Mr Benson holds a Certificate III in Landscape Construction and a Certificate II in Landscaping. Mr Benson’s evidence was that he performs the duties of a Level 3 Maintenance and Horticultural Employee (Tradesperson) under the Award. He provided a table of a comparison of wages disclosing what he received and what he claims he should have received over the relevant period:
[21] Turning to his duties, Mr Benson said he operates the following pieces of machinery:
- rough cutters;
- bunker rakes;
- edgers;
- fairway mower;
- hand mower;
- light rough mower;
- surrounds mower;
- teaser mower;
- tractor (front end loader);
- vehicles (trucks and cars); and
- whipper snippers.
Mr Benson claimed he maintains or assists maintaining these machines to varying degrees and is also required to adjust them in certain respects. He undertakes day to day maintenance on vehicles and motor engines. However, the substantial and significant maintenance work is performed by the Mechanic, Mr Johnson.
[22] Mr Benson prepares the turf and other surfaces for play every day. This includes replacing surfaces when necessary. He performs minor renovation work involving carpentry, painting and welding; examples include: building brick pits, general brick work on block walls, renovating the toilet sytem (flush), brick retaining walls, assisting Mr Johnson weld bins and seats, painting seats, carpentry work, painting bins, painting inside and outside the toilets, hanging toilets doors, concreting cart paths, retaining walls, erecting fences, making and installing screen barriers (out of metal), tiling paving, erecting safety fences, work on bowling greens, club surroundings, roll cut, set up and blow of fairways and surrounds, and brick edging. He applies fertilisers and herbicides about three to four times per year during renovation periods.
[23] Mr Benson’s ongoing duties include formation and maintenance of all gardens, lawns and greens as an ongoing basis. He assists the maintenance and horticultural team plant, maintain and care for many trees each year, including by spraying, watering and keeping the grass from around them and mulching. He supervises casual employees, as well as students who are undertaking work experience. The extent of the supervision includes guiding, mentoring and demonstrating the various methods of work.
[24] In cross examination, Mr Benson said he had drafted the various headings in his statement and that he did not speak to the other applicants about his duties.
[25] Mr Benson disagreed with Mr Cooke’s assessment of 90% of his daily work being preparation of surfaces for play. He said if that were true, it would take up all day, every day. He disagreed it was a significant portion of his work on the basis that there is too much else to do. In summer of course, it does form a larger part of the work than in winter. Ms Pike asked Mr Benson whether he ‘led’ the minor renovation work referred to above. He said although he has performed some if on his own, no one really leads the task. Rather, the team discuss the best way to undertake it as a team, and then do it. These duties are performed as, and when they are required. They are not daily tasks. While there is no daily schedule of work, work such as concreting is prepared for in advance.
[26] In re-examination, Mr Benson discussed supervision in the team. He said the team all know what to do – there is no real supervision. The team gets directed to do particular work, but no one is actually physically supervising them.
Mr Berthon’s evidence in reply
[27] Mr Berthon said Mr Benson is a casual Level 2 Horticultural Employee. His main duties include:
- setting up the course for play;
- mowing all greens; and
- using a whipper snipper to neaten edges.
[28] He believed Mr Benson ‘significantly overstated his duties’. At no time, was he required to supervise casual employees or students undertaking work experience, but he may have been required to work alongside them.
[29] In reply, Mr Benson said Mr Berthon only described a few of the duties he and his colleagues perform. He provided a number of photographs showing the variety of duties that he and his team have undertaken at the Club. All of the team undertake work in relation to the irrigation and drainage systems. He also gave evidence as to what the other applicants do in their roles.
[30] Mr Benson also referred to the chainsawing which is required, and that he undertook a chainsaw maintenance and small tree felling course. He also does concrete work, bolting outdoor furniture and plumbing work, such as changing cisterns. He also supervised the ‘Work for the Dole’ employees, including during a three day project. He said he was never given any instruction to perform higher duties, or advised that he could claim for such duties.
Ms Alison Marr
[31] Ms Marr has worked for the Club since 13 October 2013, when she was employed as a casual. In July 2014, she was converted to full time. She is currently classified as a Level 3 Horticultural Employee under the Agreement. She has a Certificate III in Horticulture.
[32] Ms Marr said her duties have expanded significantly since she was first employed. She now performs tasks such as green keeping, maintenance, repair work, machinery maintenance, bricklaying, concreting, tiling, painting, rubbish removal, garden construction and design, fencing, irrigation, drainage, turf laying, tree lopping and removal. She works Monday to Thursday 6.30am to 3pm and on Fridays she works 6.30am to 1pm. In December 2017, the Club increased her rate of pay to the equivalent of a Maintenance and Horticultural Employee Level 3 (Tradesperson) under the Award. She provided the following table of what she has been paid, compared with what she claimed she should have been paid during relevant period:
[33] Ms Marr said she operates and undertakes regular servicing and maintenance of a number of machines and equipment including:
- Air raider (though I think this may be a reference to aerators);
- coring machine;
- bunker rakes;
- edgers;
- fairway mower;
- light rough mower;
- rotary hoe;
- rough cutters;
- surrounds mower;
- sweeper;
- tease mower;
- tractor; and
- whipper snippers.
[34] She inspects each machine before it is used and cleans it thoroughly after use. If any of the machines have a significant fault, she notifies the Mechanic or Head Green Keeper immediately. Her duties also include applying fertilisers, fungicides, herbicides and insecticides. Ms Carr maintains and repairs vehicles and undertakes general maintenance and repair work including:
- changing tyres and bearings;
- fixing any leaks;
- back lapping on cylinder blades; and
- changing oils and fuels.
[35] Ms Marr undertakes repairs and minor renovation work including carpentry, such as building seats and bin holders, retaining walls, formwork, concreting, painting, drainage and pipe work, building retaining walls and dam walls.
[36] Ms Marr listed a number of duties involved in the formation and maintenance of gardens, lawns and greens. This forms a major part of her work at the Club. She assists the team with planning and maintaining dozens of trees annually.
[37] Ms Marr is required to train and supervise employees of a lower grade, including apprentices, young people on work experience, people taking an educational course and others undertaking the ‘job active’ Work for the Dole program.
Mr Berthon’s evidence in reply
[38] Mr Berthon said Ms Marr ‘significantly overstated her duties’ in her statement. Her ‘main duties’ include:
- maintaining all gardens for the Club and on the golf course;
- spraying fertilizers where needed;
- mulching gardens; and
- preparing the bowling greens.
[39] In reply, Ms Marr denied she overstated her duties, and added yet more to her list.
Mr James Buist
[40] Mr Buist has worked as a Level 3 Horticultural Employee since October 1999. On 2 April 2015, he was promoted to Level 6 Horticultural Employee. He is now second in charge when the Head Groundsman is absent. He is covered by the Agreement and holds a Certificate III in Landscape Construction. Mr Buist provided a table showing the rate of pay he received and what he claims he should have been paid during the relevant periods:
[41] Mr Buist said that during the time he was classified as a Level 3 Horticultural Employee, he performed all the tasks that are described in the equivalent classification of Maintenance and Horticultural Employee Level 3 (Tradesperson) under the Award. The duties he identified were in essence the same as Ms Marr’s description.
[42] Mr Berthon provided no evidence about what Mr Buist’s duties involved prior to his promotion to Level 6.
[43] In a reply statement, Mr Buist gave evidence in respect to Mr Berthon’s account of the other applicants’ duties. He said:
- Mr Cooke’s tasks are not limited to the few tasks which Mr Berthon identified. They include concreting and irrigation work;
- Ms Marr performs a large number of tasks Mr Berthon had omitted;
- Mr Johnson performs more duties that Mr Berthon identified, including cylinder grinding, which he said has resulted in significant cost savings for the Club; and
- similarly, Mr Benson also performs significantly more duties than Mr Berthon had identified.
Mr Mark Johnson
[44] Mr Johnson has been employed on a full time basis since 7 March 2011. He has been a Tradesperson for nearly 40 years and has a several qualifications, including a Certificate III in Landscape Construction. He is employed under the Agreement as a Level 4 employee. The Club has paid him the equivalent rate of Level 4 under the Award since December 2017. For the period 2012 to 2017, he was paid the equivalent rate of a Maintenance and Maintenance and Horticultural (Tradesperson) Level 3 under the Award. Mr Johnson provided a table showing the rate he has been paid since December 2012, compared to what he claimed he should have been paid:
[45] Mr Johnson provided a list of duties he performs in his role. These include:
• supervising and training employees on maintenance of turf machinery, vehicles, and welding material;
• delivering verbal reports to management about the process of the work;
• liaison with management in respect to issues associated with the greens, vehicles, machinery or industrial matters;
• day to day work requiring specialist skills, including substantial maintenance on a number of turf machinery.
For the respondent
Mr John Berthon
[46] Mr Berthon is the Course Superintendent, and has been employed by the Club since February 1998. He is the immediate supervisor of all the applicants. Mr Berthon said that under the Agreement, Mr Cooke and Ms Marr are properly classified at Level 3, Mr Buist as Level 6, Mr Johnson as Level 4 and Mr Benson at Level 2 within the horticultural classifications.
[47] Mr Berthon said that each day he directs the employees and provides them with their jobs for that day. The applicants are required to report to him if they finish their allocated tasks earlier to receive further direction. On occasion, the applicants may suggest a certain task to him and he may agree, depending on the circumstances. Generally, Mr Berthon requires the employees to set up the golf course for play. This work includes:
a) mowing;
b) moving markers;
c) changing hole locations;
d) raking bunkers;
e) hand watering;
f) cleaning rubbish bins; and
g) maintaining ball washers.
[48] It was Mr Berthon’s evidence that only he and Mr Buist are competent and experienced in repairing breakages and irrigations systems. On the odd occasion when this does happen, he may direct one or two of the applicants to assist him. Mr Berthon said he allocates duties to apprentices or work experience students when they work at the Club. The Club has not engaged an apprentice in 15 years and the Club engages a work experience student once every two years. None of the applicants have been responsible for an apprentice under Mr Berthon’s management. It was Mr Berthon’s belief that all staff are aware that if they undertake higher duties, they must record such work on their timesheets.
[49] Mr Berthon described how each employee was given the opportunity to undertake a Certificate III during their employment with the Club. Each employee was advised that completion of the training would not result in an increase to their wages, as the Club does not require them to be qualified. The applicants’ work did not change when they obtained the Certificate III qualifications.
[50] Mr Berthon’s cross examination was brief, but illuminating. He described each applicant as very experienced, dedicated, honest, hardworking Maintenance and Horticultural Employees. Given each applicant's understanding, experience, skills and qualifications, they know which duties to perform on a daily basis and complete these duties to an exceptional standard. Nevertheless, the daily jobs are pretty much the same from day to day. However, on occasion, he changes a few things and allocates different people to do certain tasks (such as where there is a need to carry out drainage, concreting or irrigation instalments and the like).
[51] Mr Berthon acknowledged that in respect to the applicants’ duties ‘everything they have put down on their statement[s] is correct. They have done that – every bit of that work at various stages over the years.’ Mr Berthon said that in preparing for this case, he had only been asked to list the applicants’ ‘main duties’. He did not elaborate on ‘every sort of thing that they have done over the years’. He conceded that everything the applicants’ wrote in their statements was correct; they have performed the duties they identified and have been performing them over a number of years.
SUBMISSIONS
For the applicants and the Union
[52] The Union submitted that the question for determination in this matter is:
‘Have the applicants’ base rates of pay and allowances been consistent with clause 35 of the Agreement and s 206 of the Act for their classification of work from 23 November 2012 to 1 December 2017?’
[53] Ms Gherjestani submitted that the applicants are not receiving the Minimum Wage Rates of Pay, as per cl 35 of the Agreement and s 206 of the Act. Ms Gherjestani provided the following table detailing the applicants’ classifications under the Agreement and what the Union submits is the corresponding Award classification. The table also specifies the equivalent Award entitlement paid for the relevant periods.
Applicant | Agreement Classification Level | Award Classification Level | Award Entitlement Paid | Incorrect Entitlement Period |
Mr Cook | Level 3 Horticulture Employee | Maintenance and Horticulture Employee Level 3 (Tradesperson) | Maintenance and Horticulture Employee Level 2 | 23 November 2012 to 1 December 2017 |
Ms Marr | Level 3 Horticulture Employee | Maintenance and Horticulture Employee Level 3 (Tradesperson) | Maintenance and Horticulture Employee Level 2 | August 2014 to 1 December 2017 |
Mr Buist | Level 3 Horticulture Employee | Maintenance and Horticulture Employee Level 3 (Tradesperson) | Maintenance and Horticulture Employee Level 2 | 23 November 2012 to 2 April 2015 |
Mr Johnson | Level 4 Horticulture Employee | Maintenance and Horticulture Employee Level 4 (Tradesperson) | Maintenance and Horticulture Employee Level 3 (Tradesperson) | 23 November 2012 to 1 December 2017 |
Mr Benson | Level 2 Horticulture Employee | Maintenance and Horticulture Employee level 3 (Tradesperson) | Below Maintenance and Horticulture Employee Level 1 | 23 November 2012 to 1 December 2017 |
[54] Ms Gherjestani put that although the Club has paid the applicants the equivalent to the Award classifications to the correct reference points since 1 December 2017 and processed back pay payments for the period 1 July 2017 to 1 December 2017, the applicants seek to be paid the higher rates for the period from 23 November 2012 to 1 July 2017. The Club has rejected this proposal.
[55] The applicants ask the Commission to make a finding as to the applicants’ substantial roles and to confirm the rates of pay for each of the applicants’ during the relevant periods under the Award’s minimum rates.
[56] Ms Gherjestani submitted that the classifications under the Agreement align with the Award classifications. However, in the event the Commission finds they do not align, the applicants ask the Commission to determine that the duties they perform fall within the classification levels which the Union proposed.
[57] Ms Gherjestani explained the delay in the dispute application being brought to the Commission. She said that the Union did not know the employees were covered by the Agreement, until they contacted Mr Hancock in 2017. She said the applicants did not vote on the Agreement’s approval, nor were they given a copy of the Agreement during the access period. She noted that in December 2017, the Club acknowledged the incorrect classifications and corrected the rate of pay. The Union then asked the Club to make back payments for the period 2012 through to 2017. This was refused. While the Club had accepted the incorrect classification initially, it subsequently changed its position once the matter was listed for a conference before the Commission.
[58] Ms Gherjestani referred to the Form F17 the Club has lodged in support of its application for approval of the Agreement. That form, which is a statutory declaration, expressly stated that for the purposes of the Better Off Overall Test (the ‘BOOT’), the Registered and Licensed Clubs Award 2010 was the underpinning Award, which correlated to the classifications in the Agreement.
[59] Ms Gherjestani submitted that even if the respondent’s submission that the Award classifications are not relevant is accepted, it would not make a difference to the outcome in this matter. She referred to Level 4 under the Agreement, which states:
Training and supervisions of lower grade employees, construction of serices and guidance, installation and maintenance of irrigation and drainage systems.
She added that Mr Benson, Ms Marr, Mr Cooke and Mr Buist each performed these duties during the period 2012 to 2017. The Level 3 Maintenance and Horticultural (Tradesperson) classification in the Award is a comprehensive equivalent to Level 4 of the Agreement.
For the respondent
[60] Ms Pike submitted that the applicants are paid a rate of pay equal to the corresponding classification in the Award, based on their applicable classification under the Agreement. Ms Pike submitted that the applicants’ submissions fail to understand the relationship between the Award and the Agreement in relation to employee classifications.
[61] Ms Pike said the relevant industrial instrument which applied to the employees for the period 19 December 2005 to 29 July 2011 was the Bowling and Golf Clubs Employees (State) Award [AN120079] (the ‘NAPSA’). The NAPSA and other relevant Club Industry NAPSAs were consolidated in the Award during the Award Modernisation Case between 2008 and 2009. As a result of the consolidation process, the Modern Award was created, which incorporated 21 Club Industry Awards. Between July 2010 and July 2014, the Award was subject to a transitional period, whereby the relevant industry NAPSAs transitioned to the Award.
[62] Ms Pike said the Horticultural and Maintenance employees transitioned in accordance with the table below:
Bowling and Golf Clubs Employees (State) Award | Registered and Licensed Clubs Award 2010 |
Level 1 NAPSA | Level 2 Modern Award |
Level 2 NAPSA | Level 3 Modern Award |
Level 3 NAPSA | Level 3 Modern Award |
Level 4 (Trade) NAPSA | Level 4 Modern Award |
Level 5 NAPSA (Bowling) Level 5 (Golf) NAPSA | Level 5 Modern Award |
[63] Ms Pike explained how the ‘pay level’ does not necessarily equate to the classification level, as set out in cl 17.2 of the Award. For example, under the Award, a Maintenance and Horticultural Employee Level 3 (Tradesperson) receives the Level 4 pay level. While this may lead to confusion, it does not justify the applicants’ claim which suggests each classification level under the Agreement must correspond to the classification level under the Award. This does not take into account the actual job in question.
[64] Ms Pike submitted that as the classifications contained in the Agreement reflect the corresponding classification levels in theState Award, the classifications under the Agreement correspond to the Award in accordance with the table below:
Agreement | Award |
Level 1 | Level 2 Modern Award Maintenance and Horticultural employee Level 1 |
Level 2 | Level 3 Modern Award (dependant on specific duties performed) Maintenance and Horticultural employee Level 2 |
Level 3 | Level 3 Modern Award (dependant on specific duties performed) Maintenance and Horticultural employee Level 2 |
Level 4 | Level 4 Modern Award Maintenance and Horticultural Level 3 (tradesperson) |
Level 5 | Level 5 Modern Award Maintenance and Horticultural Level 4 |
[65] Ms Pike acknowledged that the Union made a claim on behalf of the applicants in 15 December 2017 and the Club rectified the underpayment in or around 21 December 2017 by providing all relevant back pay to the applicants. To date, Ms Pike said that the applicants have been unable to substantiate their claims. The Club submits that each of the applicants inflated and misstated their day to day duties to suit their claims. The duties they list are not reflective of their day to day duties. While each employee may, on occasion, perform work associated with a higher classification, when this situation arises, the employees are required to record ‘higher duties’ on their timesheets. Mr Cook’s timesheets are evidence that such a practice exists. Ms Pike submitted the applicants are aware of the practice, and they do not perform the duties as regularly as they claim.
[66] In oral submissions, Ms Pike submitted that the question the applicants submit for determination is invalid as the Agreement is still the applicable industrial instrument which is in operation. She submitted that it is not open to the Commission to make a finding under the dispute resolution mechanism in relation to what she described as a ‘historical matter’. The Commission cannot make a finding about a historical underpayment for each of the applicants.
[67] When I put to Ms Pike that it is curious why the Club agreed to pay the applicants Level 3 and Level 4 rates under the Award, yet it maintains these levels are not their appropriate classification rates, she responded that the Club can pay employees whatever it chooses. In December 2017, it agreed to pay a figure that was proposed by the Union as this was a suggestion to resolve the dispute. Obviously, it did not. In any event, the Club made no admission that the levels corresponded to the applicants’ alleged classifications.
[68] Ms Pike referred to the applicants’ evidence that the majority of their duties comprised preparing the course for play which falls into Levels 1 and 2. It is open to the Club to pay the applicants higher duties when they perform duties at a higher classification level.
[69] Ms Pike submitted that the applicants failed to disclose that the majority of the tasks they identify in their statements are not always performed by them, until the hearing. The Club relies on Mr Berthon’s account of the applicants’ main duties. She acknowledged that there are no letters of appointment for any of the applicants.
[70] In reply, Ms Gherjestani strongly refuted that there had been no admission in respect to the misclassification issue. So much was evident from Mr Hancock’s evidence.
CONSIDERATION
[71] The question the Union seeks the Commission to determine is as follows:
‘Have the applicants’ base rates of pay and allowances been consistent with clause 35 of the Agreement and s 206 of the Act for their classification of work from 23 November 2012 to 1 December 2017?’
[72] Ms Pike objected to the question on the basis that the Club considers it invalid. The Agreement is still in operation, but the question asks the Commission to make findings in respect to the applicants’ classifications under the Award. Further, Ms Pike submitted that the Commission cannot make a finding in respect to a ‘historical matter’, nor can it make a finding in respect to ‘historical underpayments’. I note that these objections were only raised in closing submissions. In any event, both arguments are rejected for the following reasons.
[73] Turning to the first objection, it is necessary to consider the relevant terms of the Agreement and the Act. The DSP clause is found in cl 36 of the Agreement and reads as follows:
36 DISPUTE RESOLUTION AT THE WORKPLACE
36.1 If a dispute relates to:
36.1.1 a matter arising under the Agreement; or
36.1.2 the National Employment Standards; this term sets out procedures to settle the dispute.
36.2 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management. The Employee who is party to the dispute may appoint a representative of their choice present at any stage during these discussions, which may include a union official.
36.3 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Australia
36.4 Fair Work Australia may deal with the dispute in 2 stages:
36.4.1 Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
36.4.2 if Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:
(i) arbitrate the dispute; and
(ii) make a determination that is binding on the parties.
Note If Fair Work Australia arbitrates the dispute, it may also use the powers that are available to it under the Act.
A decision that Fair Work Australia makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.
36.5 While the parties are trying to resolve the dispute using the procedures in this term:
36.5.1 an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and
36.5.2 an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:
(i) the work is not safe; or
(ii) applicable occupational health and safety legislation would not permit the work to be performed; or
(iii) the work is not appropriate for the employee to perform; or
(iv) there are other reasonable grounds for the employee to refuse to comply with the direction.
36.6 The parties to the dispute agree to be bound by a decision made by Fair Work Australia in accordance with this term.
[74] Clause 35 of the Agreement reads as follows:
35 INCREASE TO RATES OF PAY AND ALLOWANCES
35.1 The Club shall increase the rates of pay and allowances contained in Schedule B and Schedule C from the first full pay period on or after the 15 of July each year, until the Agreement reaches its nominal expiry date.
35.2 When the Club increases the rates of pay and allowances contained in Schedule B and Schedule C it will be either 3% or as per the Federal Minimum Wage Decision, whichever is the greater. The Club reserves the right to absorb the increase(s) into any future mandatory increase(s) required by law.
35.3 When the Agreement reaches the nominal expiry date, and if the parties have not reached a new Enterprise Agreement, the Club shall increase rates of pay in accordance with the Federal Wage Decision.
[75] The terms of s 206 of the Act is set out below:
206 Base rate of pay under an enterprise agreement must not be less than the modern award rate or the national minimum wage order rate etc.
If an employee is covered by a modern award that is in operation
(1) If:
(a) an enterprise agreement applies to an employee; and
(b) a modern award that is in operation covers the employee;
the base rate of pay payable to the employee under the agreement (the agreement rate) must not be less than the base rate of pay that would be payable to the employee under the modern award (the award rate) if the modern award applied to the employee.
(2) If the agreement rate is less than the award rate, the agreement has effect in relation to the employee as if the agreement rate were equal to the award rate.
If an employer is required to pay an employee the national minimum wage etc.
(3) If:
(a) an enterprise agreement applies to an employee; and
(b) the employee is not covered by a modern award that is in operation; and
(c) a national minimum wage order would, but for the agreement applying to the employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;
the base rate of pay payable to the employee under the enterprise agreement (the agreement rate) must not be less than the employee’s order rate.
(4) If the agreement rate is less than the employee’s order rate, the agreement has effect in relation to the employee as if the agreement rate were equal to the employee’s order rate.
[76] The fundamental dispute between the parties is the applicable base rate of pay for each of the applicants. This task requires interpretation of Schedule A – Classification Levels, cl 30 – Rates of Pay, and to some extent, there is a dispute about the interpretation of cl 13 – Higher Duties. I apprehend it is common ground between the parties that the Commission has jurisdiction to determine a dispute about a matter under the Agreement, pursuant to cl 36.4.2 of the Agreement and 739(4) of the Act. Of course, the Commission’s jurisdiction to arbitrate the dispute is constrained by the provisions of s 739(5) of the Act, which provide that in arbitrating a dispute the Commission ‘must not make a decision that is inconsistent with [the] Act’. In this case, it is my view that the limitation in s 739(5) is enlivened because of the operation of s 206 of the Act.
[77] Section 206 provides a limited exception to the general rule about the interaction between modern awards and enterprise agreements, as set out in s 57 of the Act:
57 Interaction between modern awards and enterprise agreements
(1) A modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.
(2) If a modern award does not apply to an employee in relation to particular employment because of subsection (1), the award does not apply to an employer, or an employee organisation, in relation to the employee.
[78] The Explanatory Memorandum to the Fair Work Bill 2008 in dealing with the interaction between ss 57 and 206 stated:
‘Clause 57 - Interaction between modern awards and enterprise agreements
218. This clause provides for the interaction between a modern award and an enterprise agreement that each cover an employee in relation to particular employment at the same time.
219. Subclause 57(1) provides that a modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment. The effect of this subclause is that an agreement that is in operation and covers an employee determines the employee's rights and obligations in relation to particular employment, even if an award covers the employee in relation to that employment.
220. This subclause highlights the difference between when an agreement covers an employee and when it applies to an employee. An employee may be covered by both a modern award and an enterprise agreement in relation to particular employment at the same time; however, both types of industrial instrument cannot apply to an employee in relation to that particular employment at the same time.
• Clause 206 provides a limited exception to this rule: where an enterprise agreement contains a base rate of pay for an employee that is less than the base rate of pay that would apply to that employee under an award that covers them, the base rate of pay from the award is taken to be a term of the agreement.’
[79] As the Full Bench of the Commission said in Ferryman Pty Ltd v The Maritime Union of Australia [2013] FWCFB 8025¸ ‘[t]he effect of s 206(2) is that despite any clause in an enterprise agreement the base rate of pay in the agreement must not be less than the base rate of pay under the relevant modern award.’
[80] The above discussion makes plain that Ms Pike’s objections to the question put by the Union cannot be sustained. The Union has not asked the Commission to arbitrate a dispute about a term of the Award. Rather, the Union has asked the Commission to determine the interpretation and application of the Agreement, which according to ss 739(5) and 206 of the Act, requires the Commission to consider how the Award would apply to the applicants in respect to their base rates of pay.
[81] Ms Pike’s characterisation of this dispute as a ‘historical claim’, is similarly rejected. Ms Gherjestani made it patently clear that the applicants do not seek an order from the Commission of back pay (though I accept much of the evidence seemed to be directed to that issue). It is trite that there is no power under the Act for the Commission to make underpayment orders. Rather, the applicants seek a determination that their base rates of pay are based on their correct classifications. If such a finding is made, then it is a matter entirely for them and the Union to decide what to do with such finding of the Commission.
[82] Of course, the Club has now acknowledged the applicants’ rate of pay as claimed by the Union. If the respondent conceded that these Award rates are the relevant reference points for the purposes of s 206, then I anticipate there would be no dispute. However, Ms Pike expressly stated that the Club does not concede this point. The rates that are being paid to the applicants are, in the Club’s view, higher than the minimum that would apply to them under the Agreement. Ms Pike alluded to cl 35.2 in the Agreement that the Club may absorb future increases into what it says is a current over Agreement rate of pay. Thus, it is difficult to see how this is a ‘historical’ claim. It is very much a current live dispute.
[83] Turning then to the gravamen of the dispute - which is what the applicants actually do and what base rate of pay applies to that work. It is necessary for the Commission to make findings as to the applicants’ duties. Although I had anticipated that there was some dispute between the parties as to exactly what duties they performed, the picture was made pellucidly clear when Mr Berthon gave his frank oral evidence that everything that the applicants had said in their statements was correct; see: para [51] above. Although he conceded the applicants have performed each of the duties just as the applicants described, he maintained that his description of their duties comprised the applicants’ ‘main duties’. It is somewhat disingenuous for the Club to maintain its opposition to the Union’s claim when it has not only agreed to the exact rate of pay sought since July 2017, and in light of Mr Berthon’s evidence that the role and duties of the applicants have not changed since 2002. I do not accept Ms Pike’s valiant, but futile attempt to justify this concession by submitting that the Club was free to choose to pay its employees whatever it liked. It is difficult to accept on what rational basis the Club chose to pay its employees, as this choice was exactly what the Union claimed.
[84] The parties agree that the applicants are classified under the Agreement as follows:
• Mr Cook - Level 3 Maintenance and Horticulture Employee
• Ms Marr - Level 3 Maintenance and Horticulture Employee
• Mr Buist - Level 3 Maintenance and Horticulture Employee (though he has since been promoted to Level 6)
• Mr Johnson - Level 4 Maintenance and Horticulture Employee
• Mr Benson - Level 2 Maintenance and Horticulture Employee
The base rates of pay for each of these levels is conferred by the Agreement, at Schedule B. However, that is not the end of the matter. As required by s 739(5), the Commission cannot make a determination which is inconsistent with the Act. This requires me to consider the application of s 206 to this dispute.
[85] A major issue in this case is how to determine the applicable base rate of pay, as contemplated by s 206. Ms Pike submitted that given the classification levels in the Agreement are mirrored in the NAPSA, the relationship between the NAPSA and the Award classification levels is determinative of this question. The corollary of this submission is that very little consideration, if any, is given to the duties the applicants perform. This does not appear to me to be a correct approach to s 206. Section 206 requires consideration of the base rate of pay that would be payable to an employee under the Modern Award, if the Modern Award applied to the employee. Often, this is a hypothetical exercise. I note that theState Award was terminated on 29 July 2011 (see: PR512463) - over a year before the Club applied to the Commission for approval of the Agreement. It could not have been the relevant reference instrument for the Agreement’s approval. It follows that simply because the Club submits that particular levels of the NAPSA transitioned in a particular way, with little rationality or common sense, does not determine the s 206 question.
[86] In order to consider any implications s 206 of the Act may have to determining this dispute, one must examine the appropriate classifications for the work performed by the applicants and then find what base rate of pay would apply to them under the Award. While evidence such as job descriptions and Agreement classifications can be helpful indicia (as in the case of Liviende Incorporated v Health Services Union [2014] FWCFB 8080), in this matter, the relevant test is the duties actually performed by the relevant employees, particularly given the weight of the evidence in this matter went to this very issue. As the Full Bench stated in Fonterra Brands (Australia) Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2015] FWCFB 2912 at [16]
[16] The task of determining the appropriate classification involves making findings of fact as to the requirements of the roles and applying those facts to the proper scope of the Agreement classifications. Often this is a difficult task, especially when the agreement operates on notions implied by practice and local understandings. Further, duties may be comprehended by more than one classification or be outside the scope of all classifications. In such circumstances it is necessary to determine the substantial character of the role by reference to the level of responsibilities and the duties of the position to determine the most appropriate classification from the range of classifications in the agreement.
I intend to adopt this approach in determining the appropriate classification levels of the applicants under the Award.
[87] Turning to the relevant provisions of the Award, cl 4.1 provides as follows:
4.1 This award covers employers of employees engaged in the performance of all or any work in or in connection with or for clubs registered or recognised under State, Territory or Commonwealth legislation and their employees in the classifications within Schedule C—Classification Definitions, to the exclusion of any other modern award.
[88] Clause 17.1 of the Award is as follows:
17.1 General
An adult employee within a level specified in the following table (other than an apprentice or an employee engaged on a supported wage) will be paid not less than the rate per week assigned to the classification, as defined in Schedule C—Classification Definitions, for the area in which such employee is working. An employee’s rate of pay is inclusive of the award rate set out in this clause and the additional allowance (where applicable) for first aid set out in clause 18.2.
[89] Under Schedule C, Maintenance and Horticultural Employee Level 2 employees are defined under the Award as follows:
C.9.2 Maintenance and horticultural employee level 2 means an employee who has satisfactorily attained the appropriate level of training (at level 2) and is engaged in the following activities in addition to the work of level 1:
(a) operation and minor maintenance of motorised equipment under supervision, other than machinery or equipment requiring the holding of specialised licences;
(b) assistance in the maintenance, renovation and reconstruction of greens and fairways, and/or maintenance of playing surfaces, including mowing, rolling, top dressing, seeding, turfing and sprigging, fertilising under supervision, planting and maintenance of trees, pruning under supervision;
(c) applies fertilisers, fungicides, herbicides and insecticides under general supervision;
(d) gardening duties including the planting and trimming of trees, sowing, planting and cutting of grass, and the watering of plants, gardens, trees, lawns and displays;
(e) performs routine maintenance of turf, synthetic, artificial and other play surfaces;
(f) completion of basic records;
(g) assistance in the construction and installation of facilities and systems;
(h) performs tasks incidental to the employee’s work.
[90] Maintenance and Horticultural Employee Level 3 (Tradesperson) employees are defined under the Award as follows:
C.9.3 Maintenance and horticultural employee level 3 (tradesperson) means an employee who has completed trade or equivalent qualifications and undertakes one or more of the following duties (including non-trade tasks incidental to the employee’s work):
(a) operates, maintains and adjusts turf machinery as appropriate;
(b) cleans machinery and inspects machinery after each use, reporting any problems to a management employee;
(c) applies fertilisers, fungicides, herbicides and insecticides as directed by a management employee;
(d) prepares turf, synthetic, artificial and other surfaces for play;
(e) maintenance and repair of vehicles and/or motor engines;
(f) repair and minor renovation work involving carpentry and/or painting and/or welding;
(g) formation and maintenance of all gardens, lawns and greens;
(h) the planting, maintenance and care of trees;
(i) training and supervision of employees of a lower grade, including apprentices.
[91] Maintenance and Horticultural Employee Level 4 (Tradesperson) employees are defined under the Award as follows:
C.9.4 Maintenance and horticultural employee level 4 (tradesperson) means an employee who has satisfactorily attained the appropriate level of training at trade or the equivalent level, together with the additional requirements in supervision or other appropriate specialist modules. In addition to the duties of levels 1 to 3, the employee is also engaged in the following activities:
(a) supervision and training of subordinate staff, including tradespersons;
(b) presentation of written and or verbal reports including budgets,
(c) general liaison with management;
(d) activities requiring application of specialist skills.
[92] Turning to the definitions of each classification, the obvious difference between the three levels is the relevant qualifications. A Level 2 employee must have satisfactorily attained the appropriate level of training; whereas a Level 3 employee must have completed a trade or equivalent qualifications. Level 4 also contains additional requirements in respect to supervision or other appropriate specialist modules. Clause C.1.3 of Schedule C provides as follows:
C.1.3 Appropriate level of training when used in this Schedule means that an employee:
(a) has completed an appropriate training program that meets the training and assessment requirements of a qualification or one or more designated units of competency from a Training Package; and/or
(b) has been assessed by a qualified skills assessor to have skills at least equivalent to those attained in an appropriate training course; and/or
(c) at 31 December 2009, has been doing the work of a particular classification for a period of at least three months.
[Note substituted by PR542178 ppc 04 Dec13]
(Note: The minimum classification level for an employee who has completed AQF Certificate III qualifications relevant to the classification in which they are employed is the Level 4 rate prescribed in clause 17.2. Any dispute concerning an employee’s entitlement to be paid at Level 4 may be referred to the Fair Work Commission for determination. The Fair Work Commission may require an employee to demonstrate to its satisfaction that the employee utilises skills and knowledge derived from Certificate III competencies, and that these are relevant to the work the employee is doing). [my emphasis]
[93] The final note is relevant to this dispute. In my opinion, it means that if an employee has completed an AQF Certificate III qualification, and the qualification is relevant to the classification they are employed in, the minimum base rate of pay is Level 4. The Level 4 rate prescribed in cl 17.2 is the rate of pay which applies to a Maintenance and Horticultural Employee Level 3 (Tradesperson) - currently $22.04.
[94] Each of the applicants has a Certificate III as follows:
• Ms Marr – Certificate III in Horticulture
• Mr Johnson – Certificate III in Landscape Construction
• Mr Benson – Certificate III in Landscape Construction
• Mr Cooke – Certificate III in Landscape Construction
• Mr Buise - Certificate III in Landscape Construction
[95] A consequent consideration is whether the certificates are relevantto their classifications. It was Mr Berthon’s evidence the Club gave each of the applicants the opportunity to obtain the Certificate III. However, he added that the applicants were expressly advised that as the Club did not require them to undertake the training, it would not result in a pay increase. I ask the rhetorical question – why would the Club offer and pay for this training, if it had not intention to benefit from the employees’ acquisition of certification?
[96] On a fair and objective reading of cl C.1.3, whether the Club requires the applicant to undertake the training is not the relevant question; rather, it is whether the Certificate III is relevant to the classification in which they are employed. Mr Berthon agreed to theproposition that given the applicants’ understanding, experience, skills andqualifications, they know which duties to perform on a daily basis, and do them to an exceptional standard. Thus, on the respondent’s own evidence, it seems inescapable that their qualifications are relevant to the applicants’ roles. When one also takes into account the type of work the applicants perform, it is even more apparent that their certificates are relevant to their positions and are of benefit to the Club.
[97] It is necessary to also consider the different duties required of Level 2, Level 3 and Level 4. Level 2 employees are ‘engaged in’ the particular duties listed in the definition as well as those in level 1. By comparison, a level 3 employee ‘undertakes one or more’ of the duties listed in that section. I have taken account of the list of duties the applicants say they undertake in their roles at the Club, as well as Mr Berthon’s evidence in relation to the extent they performed particular duties. I am satisfied that each of the applicants undertake the duties required in the Maintenance and Horticultural Employee Level 3 (Tradesperson) to the degree required to be classified at that Level. I am also satisfied that Mr Johnson satisfies the additional training requirements and undertakes the activities listed in Schedule C.9.4. I am therefore satisfied that if the Award had applied to the applicants, they would be correctly classified as follows:
• Mr Cooke – Maintenance and Horticultural Employee Level 3 (Tradesperson)
• Mr Benson – Maintenance and Horticultural Employee Level 3 (Tradesperson)
• Ms Marr – Maintenance and Horticultural Employee Level 3 (Tradesperson)
• In respect to Mr Buist, I do not have sufficient material about his current duties to be satisfied of his current Award classification (Level 6). However, given my findings in relation to the other applicants being Level 3, it follows that when Mr Buist was performing the same role, he would have been classified as Maintenance and Horticultural Employee Level 3 (Tradesperson)
• Mr Benson – Maintenance and Horticultural Employee Level 3 (Tradesperson)
• Mr Johnson – Maintenance and Horticultural Employee Level 4 (Tradesperson)
[98] Notwithstanding my finding about the appropriate classifications under the Agreement, the base rate of pay payable for Mr Cooke, Mr Benson and Ms Marr is the level 4 rate, per cl 17.2 of the Award, which is currently $22.04. For Mr Johnson, the base rate of pay is the level 5 rate, per cl 17.2 of the Award, which is currently $23.42. I make a determination in accordance with these findings. The dispute is resolved accordingly and concluded.
DEPUTY PRESIDENT
Appearances:
Ms J Gherjestani for the applicants.
Ms L Pike for the respondent.
Hearing details:
Sydney
2018
September 18
Printed by authority of the Commonwealth Government Printer
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