Mrs Kim Nguyen v Probe Operations Pty Ltd Trading AS Probe Group Cx
[2025] FWCFB 137
•21 JULY 2025
| [2025] FWCFB 137 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mrs Kim Nguyen
v
Probe Operations Pty Ltd Trading AS Probe Group Cx
(C2024/7921)
| DEPUTY PRESIDENT CROSS DEPUTY PRESIDENT DOBSON DEPUTY PRESIDENT WRIGHT | SYDNEY, 21 JULY 2025 |
Appeal against decision [2024] FWC 2867 of Commissioner Redford at Melbourne on 17 October 2024 in matter number C2024/5725
Mrs Kim Nguyen has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (FW Act) for which permission to appeal is required against a decision[1] (the Decision) of Commissioner Redford issued on on 17 October 2024.
The Decision dealt with an application made by Ms Nguyen pursuant to s.739 of the FW Act seeking that the Commission deal with a dispute, alleged to be about a matter arising under the Probe Next Generation BPO Enterprise Agreement (the Agreement), involving her former employer, Probe Operations Pty Ltd (Probe).
For the reasons that follow, we have decided to refuse permission to appeal.
The Commissioner’s Decision
Mrs Nguyen was employed by Probe from 20 March 2023 until 17 July 2024 as a collections officer and credit representative. Probe is a provider of outsourced contact and collections service solutions across Australia, operating contact and collections on behalf of its clients including financial institutions.[2] Mrs Nguyen resigned from her employment in writing on 2 July 2024, which took effect on 17 July 2024.[3]
The dispute was in relation to Probe’s alleged failure to pay Mrs Nguyen a higher rate of pay than the rates in the Agreement, for some of the work she performed. On 22 February 2024, a meeting was held involving Mr Adrian Anderson who at the time was an Operations Manager at Probe, Mrs Nguyen and several Probe employees who were part of Mrs Nguyen’s team. At that meeting, Probe employees including Mrs Nguyen asserted that they should receive a pay increase and be paid a higher rate of pay for the work they were performing, set with reference to ‘market rates’ such as those apparently available on websites such as Seek or Glassdoor.[4]
Probe raised the following three jurisdictional objections to the application:
a. Mrs Nguyen had not followed the steps set out in the Dispute Resolution Procedure:
b. the subject of the dispute does not relate to a matter arising under the Agreement or the NES as required by the Dispute Resolution Procedure; and
c. Mrs Nguyen did not have access to the Dispute Resolution Procedure and the Enterprise Agreement because she was no longer an employee of Probe.[5]
In relation to the issue of whether the subject of the dispute related to a matter arising under the Agreement or the NES, the application filed by Mrs Nguyen raised ‘issues of fair compensation and recognition of entitlements’ and that the role of her team ‘expanded significantly’, that they had more training sessions and that her responsibilities grew to managing other types of cases.[6] The application stated, ‘despite these increased duties, my compensation has not reflected these additional responsibilities’[7] and ‘my concerns about fair compensation arise from a thorough review of the Probe Next Generation BPO Enterprise Agreement 2022 (‘Agreement’)…Despite diligently fulfilling my responsibilities, I find myself inadequately compensated for the full range of entitlements outlined in this Agreement.’[8] In the ‘Relief sought’ section of the application, Mrs Nguyen stated, ‘I am respectfully asking for a backdated adjustment of [omitted]-related pay to align with the increased responsibilities I took on during my employment.’[9]
In the submissions filed by Mrs Nguyen pursuant to directions made by the Commissioner, Mrs Nguyen stated,
…our work evolved and it was beyond band level 1, and Probe never acknowledged all of the duties and responsibilities that we undertook as they were clearly outside my band 1 classification, contrary to the enterprise agreement provision i.e processing hardship cases, enforcements, data analysis and taking on some higher duties, which was all ongoing.[10]
In the Decision, the Commissioner noted that during the hearing he sought to clarify with Mrs Nguyen precisely how she was seeking that the Commission deal with the matter, in the context of s.739 of the FW Act.[11] On the basis of Mrs Nguyen’s confirmation, the Commissioner considered that Mrs Nguyen was asking the Commission to exercise a power of private arbitration pursuant to clauses 60.9(a) and (b) of the Agreement, and s.739(4) of the FW Act to:
(a) Determine that Mrs Nguyen’s pay rate should have been increased, such that she should have been paid a higher rate of pay for some of the work she performed by Probe than the rates in the Agreement, set with reference to market rates for the type of work she performed; and
(b) In order to resolve the dispute, order that she be paid by Probe an amount of money equivalent to the difference between the higher rate of pay and what she was paid, in respect of work she performed which should have attracted the higher rate of pay.[12]
The Commissioner stated that the dispute raised by Mrs Nguyen was not a dispute about whether the work Mrs Nguyen performed should have been paid under a different Band under the classification structure set out in Section 8 of the Agreement as there was no evidence that Mrs Nguyen sought to pursue such a dispute through the Agreement’s disputes and grievances procedure.[13]
The Commissioner referred to clause 32 of the Agreement in the Decision which deals with pay increases and provides:
PAY INCREASES
32.1 Probe’s remuneration and reward approach is designed to attract, retain and reward Employees in a competitive market and is part of a balanced offering to Employees. Pay figures in this Agreement are base Ordinary Hourly Rates of Pay. This Agreement does not reduce any rate currently paid. Individual Ordinary Hourly Rates of Pay will be confirmed in individual letters of offer.
32.2 Probe encourages clients to pay fair and reasonable rates to attract and retain high quality candidates.
32.3 The rates of pay set out in clause 29.1 (Ordinary Hourly Rate of Pay) will be increased in
accordance with clients appropriate increases to wages to be paid to Employees.32.4 In addition, if during the life of this Agreement:
(a) the minimum rates of pay under the Award are increased; and
(b) following the increase, the minimum Ordinary Hourly Rates of Pay contained in this Agreement for each classification fall below the equivalent base minimum Award rates; then
(c) the minimum base Ordinary Hourly Rate of Pay contained in this Agreement will be adjusted to ensure they reflect the minimum Award rates. Probe will make any necessary adjustments to an individual Employee’s base hourly rate of pay to ensure the Employee’s individual base rate is no less than the adjusted minimum Ordinary Hourly Rate of Pay payable under this Agreement. Such adjustment will be effective from the date the increased minimum Award rates take effect.
32.5 Wages will be paid by electronic funds transfer on a fortnightly or weekly basis in arrears as determined by Probe.
The Commissioner determined that the subject of the dispute does not relate to a matter arising under the Agreement or the NES as required by the Dispute Resolution Procedure because there is no means under the Agreement by which pay rates may be increased through an alignment to ‘market rates’.[14] The Commissioner made this determination following an analysis of how pay rates are increased under the Agreement. The Commissioner noted that the Agreement ascribes particular pay rates for different kinds of work and provides for several mechanisms for how those rates may be increased.[15]
The Decision recorded that the primary mechanism providing for how pay rates may be increased under the Agreement is clause 32.4, which provides that if minimum rates of pay under the relevant award are increased, the minimum ordinary hourly rates of pay contained in the Agreement are to be adjusted to ensure they are no less than minimum award rates.[16] A further mechanism is at clause 32.3 which, although difficult to interpret, did not appear to be a mechanism to review and increase pay rates under the Agreement with reference to ‘market rates’.
The Commissioner observed that clauses 32.1 and 32.2 are aspirational and do not appear to confer a right upon an employee covered by the Agreement to seek, or an obligation upon the employer to provide, a pay increase, or conduct a review of pay rates with reference to a broader concept of work value, such as market rates.[17]
The Commissioner said that even if he was wrong in determining that the dispute does not relate to a matter arising under the Agreement or the NES, it is likely that the terms of clause 69 which provided that there would be no extra claims including with respect to ‘additional wage claims’ would prevent a broader based review of the pay rates set out in the Agreement relating to market rates or some other measure of work value.[18]
The Commissioner stated that it was not necessary for him to determine the remaining two objections. However, the Commissioner observed that it may be possible for a former employee to ask the Commission to deal with a dispute pursuant to s.739 after they have left employment,[19] and further that:
The ‘dispute’ raised by Mrs Nguyen concerning a pay increase was not just raised by her, but by a group of employees; and
The flexibility of meaning which should be given to clause 60 of the Agreement, taking into account that this is a dispute being brought by multiple people, and taking into account the industrial reality of the Probe workplace, is such that it is unlikely strict compliance with each of its ‘steps’ would be required before a matter could be referred to the Commission pursuant to clause 60.8. This would depend on the circumstances of the particular matter in question.[20]
The Decision also referred to Mrs Nguyen’s request during the hearing, that the Commission provide assistance with an alleged ‘constructive dismissal’. The Commissioner noted that there was no reference to this matter at any stage earlier in the proceeding, that it had not been raised or progressed at all under clause 60 of the Agreement and it was not raised at any stage previously in Mrs Nguyen’s material. The Commissioner concluded that the alleged ‘constructive dismissal’ was not a dispute about a matter arising under the Agreement and that the Commission did not have jurisdiction to deal with it through the application made by Mrs Nguyen.[21]
Grounds of Appeal
Mrs Nguyen raised the following grounds of appeal:
1. The Commissioner erred by failing to properly apply and interpret the provisions of the Agreement, specifically clauses 32, 60 and 69.
a. In relation to clause 32, the Commissioner failed to recognise that the role Mrs Nguyen performed was outside the scope of her original classification, and that her duties significantly expanded over time, particularly with respect to the hardship, enforcement, and capitalisation aspects of her role. The failure to adjust Mrs Nguyen’s remuneration accordingly contravened the principles outlined in clause 32, which require that employees receive fair compensation for the work they undertake.
b. In relation to clause 60, the Commissioner failed to consider the extent to which this provision had been violated by Probe. The dispute resolution procedure outlined in clause 60 mandates specific steps for resolving employment disputes, including an obligation for both parties to engage in good faith negotiations. However, Probe did not engage in the prescribed dispute resolution process after Mrs Nguyen raised her concerns regarding her classification and pay discrepancies. This omission was not adequately addressed by the Commissioner, who erroneously concluded that the dispute did not warrant further consideration under the Agreement’s procedural safeguards.
c. The Commissioner erroneously concluded that clause 69 applied to Mrs Nguyen’s claim despite the fact that the work she undertook exceeded the scope of her original classification. The Commissioner did not properly consider that the work Mrs Nguyen performed in hardship roles and additional responsibilities in enforcement and capitalisation fell outside the purview of the original job description, and thus, should have been treated separately. The Commissioner’s failure to distinguish between the original scope of work and the additional responsibilities resulted in an unjust dismissal of Mrs Nguyen’s claims.
d. The aspirational language in clause 32 creates a reasonable expectation for employees that there would be regular reviews of their pay based on market standards, and that this expectation was not honoured, despite being part of the company’s stated pay approach. It is arguable, while clause 69 restricts new wage claims, it does not explicitly state that competitive pay reviews are barred, leaving room for interpretation that reviews or increases based on market standards could be pursued as part of the company's good faith obligations under clause 32. This contradiction between the expectation of competitive pay in clause 32 and the restriction on wage claims in clause 69 could form the basis that the Agreement failed to address employees' concerns adequately.
2. The Decision did not adequately address the issue of underpayment, which Mrs Nguyen raised as a central concern in her case. Mrs Nguyen was consistently paid at a rate of $24 per hour for duties that expanded well beyond the original scope of her role. The Commissioner failed to acknowledge the clear disparity between Mrs Nguyen’s remuneration and the expectations placed upon her. The Commissioner’s failure to recognise that Mrs Nguyen’s compensation did not reflect the additional responsibilities she undertook led to an unjust denial of fair remuneration, contrary to the principles of fairness outlined in Australian employment law.
3. The Commissioner incorrectly applied clause 69 of the Agreement to dismiss Mrs Nguyen’s claim for additional compensation. The work Mrs Nguyen undertook, which included hardship, enforcement, and capitalisation roles, was clearly outside the scope of her original classification and job description. The Commissioner’s failure to recognise the evolving nature of Mrs Nguyen’s duties and the resulting claims for fair compensation led to an erroneous application of clause 69. This misapplication prevented Mrs Nguyen from receiving proper compensation for the work that was performed.
4. The Commissioner failed to adequately address the procedural fairness in relation to how Probe dealt with Mrs Nguyen’s grievances. Despite clear evidence that Mrs Nguyen raised concerns regarding her pay and classification, Probe did not engage in the dispute resolution procedure as mandated by Clause 60 of the Agreement.
5. The Commissioner determined that the dispute in question was not one about a matter under the Agreement. This finding was in error, as the dispute concerns matters directly governed by the terms of the Agreement, including classification, remuneration, and the dispute resolution process. The failure to recognise that Mrs Nguyen’s claim was within the scope of the Agreement led to the erroneous dismissal of her claims.
6. In determining the outcome of Mrs Nguyen’s case, the Commissioner did not give adequate weight to the public interest involved. This matter is not only about the treatment of an individual employee but also about broader systemic issues within the industry, including the misclassification of roles, underpayment, and failure to adhere to dispute resolution procedures. The public interest in ensuring that employees receive fair treatment and adequate compensation for the work they perform is a critical issue that the Commissioner failed to adequately consider in his decision.
7. The Decision overlooked that Probe’s actions forced Mrs Nguyen to resign.
Submissions
Mrs Nguyen
The submissions filed by Mrs Nguyen did not expand upon the Grounds of Appeal and made additional submissions about matters which are not relevant to the issue of whether the dispute relates to a matter arising under the Agreement. These additional submissions are therefore not relevant to the appeal.
Probe
In relation to Appeal Grounds 1, 2, 3 and 5, Probe submitted that these grounds all relate, in substance, to whether the Commissioner erred in finding that the dispute was not a matter arising under the Agreement. Probe submitted that the Commissioner correctly determined that Mrs Nguyen’s dispute was not one which arose under the Agreement as there were no terms of the Agreement which provided a mechanism for an employee’s remuneration to be increased in accordance with market rates. Probe submitted that as the Commissioner held, Clauses 32.1 and 32.2 are plainly aspirational in nature and on the ordinary meaning of those words, they do not go so far as to oblige Probe to pay above the ordinary hourly rates of pay set out in clauses 29.1 and 29.2, or at any ‘market rate’. Probe submitted that clause 32.4 provides for increases ‘in accordance with clients’ appropriate increases’ but does not confer an entitlement to any remuneration increase by reference to ‘market rates’ of pay. Probe submitted that clause 32.4 provides for certain increases depending on the minimum rate of pay under the Contract Call Centres Award 2020 and that there is nothing in the ordinary meaning of the words used in this clause which suggests that an increase to rates of pay under the Agreement may be referable to any ‘market rate’ of pay. Probe submitted that the Commissioner’s conclusion that clause 69 would prevent a broader-based review of the pay rates set out in the Agreement relating to market rates or some other measure of work value interpretation accords with the text of the provision and was plainly correct given that s.739(5) of the Act prevented the Commission from making a decision inconsistent with the Agreement.
In relation to Appeal Ground 4, Probe submitted that this ground is misconceived as the dispute was never about whether Probe did or did not comply with the Dispute Resolution Procedure in the Agreement, or otherwise failed to afford Mrs Nguyen procedural fairness. Accordingly, the Commissioner was not required to make, and did not make, any findings in this regard.
In relation to Appeal Ground 6, Probe submitted that this ground is misconceived as the Commissioner, in determining whether the dispute arose under the Agreement, was not required to consider the public interest.
In relation to Appeal Ground 7, Probe submitted that Mrs Nguyen first alleged that she had been constructively dismissed during the hearing of her application on 4 October 2024. Probe submitted that as jurisdiction is conferred on the Commission only after steps have been taken consistent with clause 60 of the Agreement, the Commissioner did not have jurisdiction to deal with an allegation of constructive dismissal. Probe also submitted that Mrs Nguyen first alleged that she had been the victim of retaliation in her Notice of Appeal but has adduced no evidence in support of this allegation. The issue of alleged retaliation was not before the Commissioner and was not a matter determined by the Commissioner, accordingly, there is no appealable decision in this regard.
Consideration
An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[22] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(1) requires the Commission to grant permission if the Commission is satisfied that it is in the public interest to do so.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[23] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[24]
As the appeal concerns the proper construction of the Agreement and whether the Commission has jurisdiction to deal with the dispute, it is to be determined by the ‘correctness standard’.[25] Therefore, if the answer given by the Commissioner to a constructional or jurisdictional question was correct, then any error made in the reasoning process will not result in the appeal being upheld. If we conclude that it was wrong, the appeal may be upheld, and the Full Bench may substitute the correct answer.[26]
The principles of interpretation of enterprise agreements are well established[27] and need not be recited in this decision.
The Commissioner dismissed the application because he found that the subject of the dispute does not relate to a matter arising under the Agreement or the NES as required by the Dispute Resolution Procedure.
The Dispute Resolution Procedure is at clause 60 of the Agreement and provides:
60. RESOLVING DISPUTES AND GRIEVANCES
60.1 If a dispute relates to:
(a) a matter arising under this Agreement; or
(b) The NES,
this term sets out the procedures to settle the dispute.
60.2 An Employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.
60.3 In the first instance, the parties to the dispute must first try to resolve the dispute at the workplace level. The Employee(s) concerned will first meet and confer with their Team Leader or immediate manager. This will involve the Employee(s) and Probe (or supervisor) meeting and conferring on the matter.
60.4 If the matter is not resolved then discussions between the Employee(s) and the campaign manager may occur.
60.5 If the matter remains unresolved then discussions may take place between the Employee(s) and Probe's People Team Member or his/her nominee.
60.6 If still the matter remains unresolved, then discussions may take place between the Employee(s) and Probe's Chief Executive Officer or his/her nominee.
60.7 If the matter remains unresolved at the workplace level, Probe may refer the dispute to mediation. The mediation will be conducted in accordance with the procedures agreed between Probe and the Employee(s) from a panel of mediators also agreed between Probe and the Employees, and will be scheduled to occur no later than 14 days after the steps in clauses 61.3 - 61.6 are followed. The parties agree that Probe will bear the costs of engaging the mediator and will be responsible for the terms of engagement. The parties may agree that due to the significance/complexity of the issue that the matter is not suited to mediation and the matter can be referred to the FWC under clause 61.8.
60.8 If the matter remains unresolved after mediation or in the event the parties agree that mediation is not appropriate due to the significance or complexity of the issue then either party may refer the dispute to the FWC for conciliation and, if conciliation is unsuccessful, expressing an opinion or making a recommendation.
60.9 If the FWC is unable to resolve the dispute at the first stage, the FWC may then:
(a) arbitrate the dispute; and
(b) make a determination that is binding on the parties.Note: If the FWC arbitrates the dispute, it may also use the powers that are available to it under the Act.
A decision that the FWC 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.
60.10 While the parties are trying to resolve the dispute using this procedure:
(a) 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;
(b) an Employee must comply with a direction given by Probe to perform other available work at the same workplace, or at another workplace, unless:
(i)the work is not safe;
(ii)applicable occupational health and safety legislation would not permit the work to be performed;
(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.
60.11 Where a bona fide safety issue is involved, Probe and the Employee's appropriate safety representative must be notified or a genuine attempt made to notify that representative.
60.12 The parties agree that they will co-operate to ensure that the dispute resolution procedures are carried out as quickly as reasonably possible given the individual circumstances of the dispute or grievance.
60.13 Either party is permitted to be accompanied by a representative of his or her choosing, including a union representative, at each stage of the dispute settlement procedure.
60.14 This clause shall not apply to any dispute about whether Probe had reasonable business grounds under sections 65(5) or 76(4) of the FW Act to refuse a request for flexible working arrangements or to extend a period of unpaid parental leave.
60.15 The parties to the dispute agree to be bound by a decision made by the FWC in accordance with this term.
Clause 60 of the Agreement is a term that provides a procedure for dealing with a dispute for the purpose of s.738(b) of the FW Act so s.739 applies to a dispute on application by a party to the dispute. Under s.739(3), the Commission must not exercise any powers limited by clause 60 in dealing with a dispute. The effect of this provision is that the Commission does not have the power under s.739 to deal with every dispute that might arise between Probe and an employee; the Commission may only deal with a dispute as described in clause 60.1 of the Agreement, that is, a dispute which ‘relates to…a matter arising under [the] Agreement or the NES’.
The Commission has the power to arbitrate a dispute under s.739(4) because the effect of clause 60.9 of the Agreement is that the parties have agreed to this course. Arbitration may only occur following referral of the dispute by either party pursuant to clause 60.8 for conciliation, if conciliation is unsuccessful. Clause 60.9 permits the Commission to exercise any of its powers under the FW Act when arbitrating the dispute and provides that a decision that the Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the FW Act, so an appeal may be made against the decision. Clause 60.15 provides that the parties to the dispute agree to be bound by a decision made by the Commission in accordance with clause 60.
The Commission's role in dispute settlement procedures in an enterprise agreement are in the nature of a private arbitration.[28] It is well accepted that, prior to exercising any power to resolve a dispute said to arise under an agreement, the Commission must correctly characterise that dispute. When characterising the nature of a dispute, the Commission is not confined to the dispute notification document. The entire factual background is relevant, including matters such as the submissions advanced.[29]
Therefore, the steps that are required to determine if the dispute relates to a matter arising under the Agreement, (as it is not alleged by Mrs Nguyen that the dispute relates to the NES), are to first characterise the dispute having regard to the evidence before the Commissioner as to the factual background, the application made by Mrs Nguyen and the submissions and material provided by both parties. It then falls to consider if the dispute so characterised ‘relates to a matter arising under the Agreement’ as required by clause 60.1 of the Agreement. Commissioner Saunders (as he then was) considered this expression in Australian Workers’ Union v Bekaert Wire Ropes Pty Ltd T/A BBRG Australia in the context of a different enterprise agreement and made the following observations after considering the relevant authorities:[30]
[9] The expression “in relation to” in clause 8 is of wide and general import. The use of the word “matter” in clause 8 is of variable import. Its meaning in a particular context depends upon that context. In the context of clause 8, the “matter” is one “arising under” the Agreement. To arise under the Agreement, it is not necessary that the matter involve the interpretation of the Agreement. All that is necessary is that the matter will involve the Commission making a decision on a claim which is made by one of the parties to the dispute which is based on the Agreement.[31]
[citations omitted]
We adopt Commissioner Saunders’ approach to the construction of the expression ‘a matter arising under the Agreement.’ Once Commissioner Redford characterised the dispute, he was then required to determine whether the dispute was a claim based on the Agreement.
Was the dispute correctly characterised by the Commissioner?
The pay rise matter was first raised by Mrs Nguyen and her colleagues at a meeting on 22 February 2024. Notes of that meeting prepared by Mrs Nguyen were in evidence before the Commissioner. The meeting notes referred to Mrs Nguyen and her colleagues having new responsibilities and an increased workload and that other credit representatives were getting paid $36.00 per hour according to websites such as Seek, Glassdoor and other sources.[32]
Mrs Nguyen attached two emails dated 13 March 2024 and 15 April 2024 respectively to the application following up the request for a pay rise.[33] There is nothing on the face of these documents or the notes of the meeting on 22 February 2024 which indicate that Mrs Nguyen and her colleagues were seeking a pay rise in accordance with the Agreement. On 20 March 2024, Ms Rachel Stock, People Business Partner, sent Mrs Nguyen an email with a copy of the Agreement which advised that Agent roles within Probe are classified based on the nature of the work undertaken, not individual performance, and that Mrs Nguyen’s role was classified as a Band 1 – Collections Agent. The email also provided that compensation is reviewed annually with the release of the Commission’s annual wage review decision for each of the relevant awards, and that if Mrs Nguyen believed that the classification of her role should be reviewed, she should discuss this with her manager/s who Ms Stock included in her email response.[34]
By email dated 20 March 2024, Mr Anderson advised Ms Stock that he and Ms Samantha Adair, Head of Collection, had agreed to rewrite the position description (PD) as the position had changed since it was first created and that they would assess if the PD ‘warrants a regrading’.[35] Mr Anderson gave evidence in the proceedings before the Commissioner that in or around the first week of April 2024, Mr George Karagiannis, Ms Adair and Mr Anderson reviewed the classification of Collections Agents under section 8 of the Agreement and after reviewing and considering the duties of Band-1 Collections Agents and Mrs Nguyen’s duties, they determined that the duties were fundamentally the same and that Mrs Nguyen’s role was not required to be re-graded as Band 2 under the Agreement.[36]
On 26 June 2024, Mrs Nguyen and her colleagues provided a ‘document detailing our pay rise request’ to Ms Fadzai Sanhanga, Senior Circle Lead for Probe, who Mrs Nguyen started reporting to in May 2024.[37] The document advised that Ms Nguyen and her colleagues had reviewed the Agreement, they felt that they were not monetarily compensated for their work, they had identified clause 25.1 of the Agreement which permits Probe to direct an employee to carry out such duties as are within the limits of the employee’s skill, competence and training consistent with the classification structure of the Agreement, and they believed that their skills, experience, competence and training are not outlined in the Agreement.
Prior to lodging the application, the only reference that Mrs Nguyen made to the Agreement in respect to the dispute was to clause 25.1 in the document of 26 June 2024. The application referred to clause 25.1, clauses 26.1 and 26.2, which deal with staffing standards, clauses 28.1 to 28.3 which deal with training and support and clause 58.6 which deals with consultation about major change. Relevantly, the application did not refer to section 8 which deals with classifications, clause 29 which deals with ordinary hourly rates of pay and clause 32 which deals with pay increases. The first occasion that Mrs Nguyen referred to her responsibilities exceeding the band 1 classification was in her submissions filed in the proceedings before the Commissioner dated 18 September 2024.[38]
The Commissioner characterised the dispute with reference to the remedy sought and said that he was guided by what Mrs Nguyen was asking the Commission to do to resolve the dispute in order to characterise it precisely.[39] Although the character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute,[40] the relief sought may cast light on the true nature of the dispute in some cases.[41]
The Commissioner said that he considered that the dispute is about whether Mrs Nguyen should have had her pay increased, set with regard to market rates of pay, for some of the work she performed. The Commissioner specifically considered whether the dispute was about whether the work Mrs Nguyen performed should have been paid under a different Band under the classification structure set out in Section 8 of the Agreement and found that it was not such a dispute.[42] The Commissioner said that if the dispute was about classification, there was no evidence that Mrs Nguyen sought to pursue such a dispute through the Agreement’s disputes and grievances procedure, and that the Commission would have no jurisdiction to deal with that dispute.[43]
Mrs Nguyen did not allege in the Notice of Appeal that the Commissioner erred in his characterisation of the dispute. However, it is necessary for us to consider this matter when assessing the grounds of appeal advanced by Mrs Nguyen. Having reviewed the material before the Commissioner, and taking into account the entire factual background, and Mrs Nguyen’s own description of the dispute, which she confirmed during the hearing before the Commissioner, we can find no error in relation to the characterisation of the dispute by the Commissioner.
Does the dispute relate to a matter arising under the Agreement?
The Commissioner concluded that the dispute raised by Mrs Nguyen was not a dispute about a matter arising under the Agreement because there is no means under the Agreement by which pay rates may be increased through an alignment to ‘market rates’.[44] On one view, a requirement that there must be a mechanism to align pay rates to market rates to bring the dispute within the Commission’s jurisdiction could be regarded as an overly narrow reading of clause 60.1 as all that is required is for the dispute to involve a claim based on the Agreement. However, we note that the reasoning which led to the Commissioner’s conclusion was based on an analysis of the terms of the Agreement, including clause 32 which deals with pay rises, and that it is clear from that analysis that the dispute is not based on clause 32. Further, to the extent that Mrs Nguyen referred to other provisions of the Agreement in the application, these provisions do not deal with pay rates so it cannot be said that the dispute is based on these provisions. We find no error in the Commissioner’s findings that the dispute raised by Mrs Nguyen was not a dispute about a matter arising under the Agreement.
Having decided these preliminary matters, we now consider the grounds of appeal.
Appeal Ground 1
In Appeal Ground 1, Mrs Nguyen claimed that clause 32 requires that employees receive fair compensation for the work they undertake and that the failure to adjust Mrs Nguyen’s remuneration contravened the principles outlined in clause 32. In our view, the plain and ordinary meaning of clause 32, when read in context, contain no such requirement. Further, Mrs Nguyen claimed that the aspirational language in Clause 32 creates a reasonable expectation for employees that there would be regular reviews of their pay based on market standards. We note that there is no reference in clause 32 to regular reviews; it is clear on the face of clause 32 that pay rates are increased in accordance with the annual wage review and when clients increase the wages that will be payable to staff. The Commissioner found that these provisions do not appear to confer a right upon an employee covered by the Agreement to seek, or an obligation upon the employer to provide, a pay increase, or conduct a review of pay rates with reference to a broader concept of work value, such as market rates. We agree with the Commissioner’s finding in this regard. Mrs Nguyen also claimed that the Commissioner erred in failing to distinguish between the original scope of work and the additional responsibilities in the context of considering clauses 32 and 69. The Commissioner was not required to consider these matters when determining whether the dispute related to a matter arising under the Agreement. Finally, Mrs Nguyen claimed that the Commissioner failed to consider the extent to which Probe complied with clause 60. Prior to the appeal, Mrs Nguyen has never alleged that Probe had not complied with clause 60 so this was not a matter before the Commissioner.
We do not consider that there is any arguable error in relation to Appeal Ground 1.
Appeal Ground 2
Appeal Ground 2 is that the Decision did not adequately address the issue of underpayment, and that the Commissioner failed to acknowledge the clear disparity between Mrs Nguyen’s remuneration and the expectations placed upon her.
The Commissioner was not required to consider these matters when determining whether the dispute related to a matter arising under the Agreement. We do not consider that there is any arguable error in relation to Appeal Ground 2.
Appeal Ground 3
Appeal Ground 3 is that the Commissioner’s failure to recognise the evolving nature of Mrs Nguyen’s duties and the resulting claims for fair compensation led to an erroneous application of Clause 69. Mrs Nguyen claims that this misapplication prevented Mrs Nguyen from receiving proper compensation for the work that was performed.
The Commissioner was not required to consider the evolving nature of Mrs Nguyen’s duties when determining whether the dispute related to a matter arising under the Agreement. The Commissioner referred to clause 69 in the Decision in the context of his consideration of whether the dispute related to a matter arising under the Agreement. In addition, the Commissioner said that if even if the dispute related to a matter arising under the Agreement, Clause 69 appeared to prevent a broader based review of the pay rates set out in the Agreement. Clause 69 provides that Probe and its employees will not pursue any extra claims made in relation to employment terms and conditions for the life of the Agreement including any additional wage claims.
Having regard to the plain and ordinary meaning of clause 69 read in context, we believe that the Commissioner’s application of clause 69 to the matter before him was correct. We do not consider that there is any arguable error in relation to Appeal Ground 3.
Appeal Ground 4
Appeal Ground 4 is that the Commissioner failed to adequately address procedural fairness in relation to how Probe dealt with Mrs Nguyen’s grievances and that Probe did not engage in the dispute resolution procedure as mandated by clause 60 of the Agreement.
We have already dealt with clause 60 in our consideration of Appeal Ground 1. The Commissioner was not required to deal with Mrs Nguyen’s concerns about procedural fairness when determining whether the dispute related to a matter arising under the Agreement. We do not consider that there is any arguable error in relation to Appeal Ground 4.
Appeal Ground 5
Appeal Ground 5 is that the Commissioner erred in determining that the dispute was not one about a matter under the Agreement, as the dispute concerns matters directly governed by the terms of the Agreement, including classification, remuneration, and the dispute resolution process.
We have already indicated that we find no error in the Commissioner’s findings that the dispute raised by Mrs Nguyen was not a dispute about a matter arising under the Agreement. Mrs Nguyen did not raise a dispute in relation to Probe’s compliance with the Dispute Resolution Procedure. We agree with the Commissioner’s findings that the dispute was not about classification or in relation to clause 32. We do not consider that there is any arguable error in relation to Appeal Ground 5.
Appeal Ground 6
Appeal Ground 6 is that the Commissioner did not give adequate weight to the public interest involved.
The Commissioner was not required to have regard to the public interest when determining whether the dispute related to a matter arising under the Agreement. We do not consider that there is any arguable error in relation to Appeal Ground 6.
Appeal Ground 7
Appeal Ground 7 is that the Decision overlooked that Probe’s actions forced Mrs Nguyen to resign.
In the Decision, the Commissioner stated that Mrs Nguyen’s alleged constructive dismissal was not raised or progressed at all under clause 60 of the Agreement, nor was it raised at any stage previously in Mrs Nguyen’s material, and that the Commission does not have jurisdiction to deal with it through this application. We find no error in this approach. We do not consider that there is any arguable error in relation to Appeal Ground 7.
Conclusion
We are not persuaded that permission to appeal should be granted. We do not consider that an arguable case has been advanced that the decision of the Commissioner was attended by appealable error.
We have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s 602(2), that the appeal raises any legal or factual issue of significance or general application, there is diversity of decisions at first instance, or the legal principles applied by the Commissioner are disharmonious when compared with other decisions. Further, we do not consider that the Commissioner’s decision is counter intuitive or manifests an injustice.
We order that permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Ms K Nguyen, the Appellant.
Ms A Shannon, on behalf of the Respondent.
Hearing details:
23 January 2025.
10AM.
[1] [2024] FWC 2867.
[2] Ibid at [13].
[3] Ibid at [60].
[4] Ibid at [47].
[5] Ibid at [25].
[6] Appeal Book p.31.
[7] Appeal Book p.32.
[8] Ibid.
[9] Appeal Book p.34.
[10] Appeal Book p.42.
[11] [2024] FWC 2867.
[12] Ibid at [22].
[13] Ibid at [21].
[14] Ibid at [72].
[15] Ibid at [64].
[16] Ibid at [65].
[17] Ibid at [71].
[18] Ibid at [74].
[19] Ibid at [90].
[20] Ibid at [84]-[85].
[21] Ibid at [82].
[22] This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[23] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46].
[24] [2010] FWAFB 5343, 197 IR 266 at [27].
[25] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30.
[26] Rail Commissioner v Rogers[2021] FWCFB 371 at [61].
[27] See for example James Cook University v Ridd [2020] FCAFC 123 at [65]; WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197]; AMWU v Berri Limited[2017] FWCFB 3005 at [114].
[28] Kentz (Australia) Pty Ltd –v- Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019 and Construction Forestry Mining and Energy Union –v- The Australian Industrial Relations Commission and Another [2001] HCA 16; (2001) 203 CLR 645.
[29] AMWU v Holden Limited PR940366 [47].
[30] [2018] FWC 6369.
[31] Ibid at [9].
[32] Appeal Book pp. 79-82.
[33] Appeal Book p.33.
[34] Appeal Book p. 173.
[35] Appeal Book p. 84.
[36] Appeal Book p. 62.
[37] Appeal Book pp. 87-88.
[38] Appeal Book p. 39.
[39] [2024] FWC 2867 [19].
[40] MUA v Australian Plant Services Pty Ltd PR908236 at [21]-[22].
[41] United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20].
[42] Ibid at [21].
[43] Ibid.
[44] Ibid at [72].
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