Ms Kim Nguyen v Probe Operations Pty Ltd T/A Probe Group Cx
[2024] FWC 2867
•17 OCTOBER 2024
| [2024] FWC 2867 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Ms Kim Nguyen
v
Probe Operations Pty Ltd T/A Probe Group Cx
(C2024/5725)
| COMMISSIONER REDFORD | MELBOURNE, 17 OCTOBER 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]; jurisdictional objection; whether dispute about a matter arising under the Agreement
On 17 August 2024 Mrs Kim Nguyen made an application pursuant to s 739 of the Fair Work Act 2009 (the Act) seeking that the Commission deal with a dispute, alleged to be about a matter arising under the Probe Next Generation BPO Enterprise Agreement [AG2021/9001] (the Agreement), involving her former employer, Probe Operations Pty Ltd (Probe).
The dispute, which I outline in more detail below, relates to whether Mrs Nguyen’s pay rate for some of the work she performed for Probe should have been increased. Probe objects to the Commission dealing with the dispute on various grounds.
On 30 August 2024 having reserved its rights in relation to its objection, Probe participated in a conference I conducted in relation to the matter also involving Mrs Nguyen. The matter did not resolve at this conference. On 4 October 2024 I conducted a hearing to determine the jurisdictional objection.
Mrs Nguyen appeared for herself at the hearing. After considering submissions by Probe that it be granted permission to be represented by a lawyer or paid agent in this matter, I granted that permission. Mr Daniel Fawcett of Counsel appeared at the hearing for Probe.
At the hearing, evidence was given by:
Mrs Nguyen, who gave evidence as to the manner in which she says she and other employees raised their request for a pay increase and her attempts to progress the matter;
Mr Hermant Maran, Portfolio Manager for Probe, who also gave evidence as to the manner in which he and Mrs Nguyen and other employees raised the matter and attempted to progress it;
Mr Adrian Anderson, Operations Director for Probe, who gave evidence as to his engagement with Mrs Nguyen and other employees about their pay rate queries, and the manner in which Probe was dealing with them;
Ms Fadazai Sanhanga, Senior Circle Lead for Probe, who began working with Probe in May 2024 and who engaged with Mrs Nguyen about some of these matters towards the end of Mrs Nguyen’s employment at Probe;
(a)Ms Rachel Stock, People Business Partner for Probe, who gave evidence about the extent to which she had involvement in Mrs Nguyen’s pay rate queries and associated matters.
An outline of submissions was tendered by Mrs Nguyen, which I took largely as her witness statement. A witness statement was tendered in respect to each of the other witnesses and all bar Ms Stock were subjected to cross examination.
Earlier in this proceeding Mrs Nguyen applied for a confidentiality order in relation to evidence she proposed to call from two witnesses. I declined to grant that order for reasons delivered on transcript on 30 September 2024
Publication of the names of certain Probe clients
Probe requested that in any published decision in relation to this matter, the names of certain of its clients’ names not be published, due to commercial sensitivity. There is no need for me to mention the names of those clients in order to provide reasons for this decision, and their identity and the use of their names is not relevant to the matters I need to determine. I have omitted the names of those clients where necessary.
What the dispute is about.
Mrs Nguyen worked for Probe between 20 March 2023 and 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.
In the Form F10 which initiated this Application, Mrs Nguyen says “I am writing to formally raise issues of fair compensation and recognition of entitlements during my time at Probe Operations …”[1]. Relevantly, the Application says further:
“I believe that I deserve back pay for all the work that I have completed for [omitted] … I believe I deserve fair compensation that reflects the value of my contributions. I am respectfully asking for a backdated adjustment of [omitted]-related pay to align with the increased responsibilities that I took on during my employment”[2].
The Application also says “[y]our review of my entitlement claims and request for fair compensation is vital to addressing the grievances outlined.”[3].
In her submissions filed in opposition to the jurisdictional objection, Mrs Nguyen said:
39. Even though I am no longer an employee and the Agreement does not explicitly exclude former employees, I believe the Commissioner has the authority to intervene because the dispute process began while I was still an employee of Probe.
40. My concerns extend beyond pay and involve the lack of recognition for additional work performed, which was outside the scope of my role. We did not receive the appropriate response or support from any of the staff members of Probe.
41. Furthermore, 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 level 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.
42. Given the ongoing delays and lack of resolution, I kindly ask that you intervene in this matter to ensure my contributions and acknowledged, and appropriate action is taken.
During the hearing I sought to clarify with Mrs Nguyen precisely how she is seeking that the Commission deal with this matter, in the context of s 739 of the Act. The following exchange occurred:
Commissioner Redford:
I want to clarify with you Mrs Nguyen the nature of the dispute we’re dealing with. Because I want to make sure that when you address me on whether the Commission has the power to deal with this matter today and when Mr Fawcett addresses me on why the Respondent says the Commission doesn’t have the power to deal with this matter that we’re all very clear on what the matter is.
Now, I think you’re asking FWC to do two things.
I’m going to put those two things to you in the form of a proposition and I’m going to ask you to confirm whether I’m right, and maybe I’m not right and you should clarify that.
The first thing I think you are asking the Commission to do is make a decision or determination that at least for the period while you were working on [omitted], you should not have been paid the rate of pay set out in the agreement, but instead should have been paid a higher rate of pay set according to market rates, for the type of work you were performing.
Is that right?
Mrs Nguyen:
Um yes
Commissioner Redford:
But if that was all you were asking the Commission to do, this would not be enough for you – would not resolve this dispute for you. Such a determination, even if I were to make it, would not entitle you, as a matter of law, to that higher rate of pay. I think you are asking the Commission to do a second thing. I think you are asking the Commission to also make an order which would require Probe to pay you, at least in respect of the [omitted] work, an amount of money equivalent to the difference between a higher pay rate you are asking me to find should have been paid, and what you were paid. Is that right?
Mrs Nguyen:
Yes
And also the financial loss …”
Following this exchange, Mrs Nguyen also raised, for the first time in the proceeding, the proposition that she should also be awarded financial compensation for alleged “constructive dismissal”. I deal with this matter further below.
While Mrs Nguyen made reference, at various stages, to matters such as a lack of “recognition”, a lack of “acknowledgement”, increased workload, a lack of support and a lack of proper response to her complaints during her employment, I consider these matters are ancillary to the central complaint, which relates to pay rates. To this end I am guided by what it is Mrs Nguyen is asking the Commission to do to resolve the dispute in order to characterise precisely what the dispute is.
It is appropriate in this matter to distinguish between and a dispute about pay rates and whether those rates should have been increased, and a different dispute, about the appropriate classification level under the Agreement which should have applied to the work being performed. Probe submits that the dispute is not a classification dispute and is not about whether Mrs Nguyen should have been classified at Band 1 under the Agreement, or some other Band or classification level and that there is no evidence of, nor has it ever been suggested by Mrs Nguyen that her dispute is about the classification level under the Agreement that should have applied to her work.
I consider that this 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. This is 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. If the dispute is about whether the work should have been classified and paid under a different Band level, then, as I mention below, there is no evidence that Mrs Nguyen sought to pursue such a dispute – about Band levels – through the Agreement’s disputes and grievances procedure, and the Commission would have no jurisdiction to deal with that dispute.
I consider that what is being sought by Mrs Nguyen in relation to this matter is that the Commission exercise a power of private arbitration pursuant to clauses 60.9 (a) and (b) of the agreement, and s 739(4) of the Act to:
(a)Determine that 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.
Probe’s jurisdictional objection
It is clear enough to me that the granting of this application would require the Commission to determine, by way of arbitration, that a different and higher rate of pay should be payable to Mrs Nguyen for the work she performed for Probe than is provided for in the agreement. To this extent, the Application is somewhat novel, in that it seeks that the Commission exercise a private arbitration power pursuant to s 739(4) of the Act to ascribe a different rate of pay for work performed under an enterprise agreement than that which is provided for by the agreement.
Probe argues that such an exercise of power in this matter is beyond the jurisdiction of the Commission.
Probe Operations has identified three grounds on which it objects to the Commission dealing with this matter. They are:
(a)That the Applicant has not followed the steps set out in the Dispute Resolution Procedure[4];
(b)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[5];
(c)That the Applicant is not an employee of Probe as she has ceased her employment and does not therefore have access to the Dispute Resolution Procedure and the Enterprise Agreement[6];
Mrs Nguyen’s submissions as to jurisdiction.
I was not assisted to any great extent by Mrs Nguyen’s submissions as to jurisdiction in relation to this matter. Much of Mrs Nguyen’s written submissions contained a series of factual assertions relating largely to matters associated with her pay rate, as opposed to the question as to whether the Commission has the power to deal with this dispute at all. I agreed to treat much of Mrs Nguyen’s written submission as her evidence in chief, about which she confirmed the veracity of under oath and was subject to cross examination.
Relevantly, Mrs Nguyen submits that:
“Even though I am no longer an employee and the Agreement does not explicitly exclude former employees, I believe the Commissioner has the authority to intervene because the dispute process began while I was still an employee of Probe”.[7]
At the hearing in relation to this matter, the Mrs Nguyen made submissions in support of the contention that the Commission is empowered to deal with a dispute under the Agreement if it remains unresolved after mediation or “anything before that”. She argued that she had attempted to resolve her dispute at various levels within Probe and because despite these efforts the dispute was not resolved, the Commission is empowered to “intervene” and arbitrate the dispute pursuant to s 595 of the Act.
The dispute resolution procedure
Section 739 of the Act may allow the Commission to deal with a dispute including if it is authorised to do so by the terms of an enterprise agreement. This may extend to arbitrating the dispute pursuant to s 595 and 739(4) if of the Act, if that authorisation exists. The Agreement provides at clause 60 the following dispute resolution procedure:
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.
Construing the Agreement
The principles to be applied in construing an enterprise agreement are well-settled. In WorkPac Pty Ltd v Skene[8] a Full Court of the Federal Court summarised the relevant principles as follows:
“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “turns on the language of the particular agreement, understood in the light of its industrial context and purpose”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced. (references omitted)”
In Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No.2)[9], when applying these principles to the construction of the requirements of a dispute resolution procedure in an enterprise agreement, Flick J commented that “it is concluded that each of these requirements must be construed with a degree of flexibility consistent with the industrial context in which the two clauses were drafted”[10].
It appears clear to me that the industrial context relevant to the operation of clause 60 of the Agreement, which is its dispute resolution procedure, is that it is to be navigated by individual Probe employees and groups of Probe employees who may not have the benefit of legal training or industrial experience or human resources expertise. Employees who have disputes they may wish to raise with Probe are required to find the clause, interpret it, map its terminology on to their lived workplace experience and the terminology used in their workplace, and execute its “steps” within the reality of the workplace. For example, as is discussed in more detail below, evidence in this matter suggested that a “Team Leader” at Probe, as is referenced in clause 60.3 of the Agreement, is known as a “Circle Team Leader”. And even then, employees in a “team” might be more engaged with a different person who is not called their “Circle Team Leader”, but because of the role that person is playing in the team, may be forgiven for assuming they are their “Team Leader”. It appears it may not always be clear who an employee’s “Campaign Manager’ is, as is referenced in clause 60.4 of the Agreement. Employees might also not even know the identity of the Chief Executive Officer, as is referenced at clause 60.6 of the Agreement, and I consider that the industrial reality of the Probe workplace, as with many workplaces, is that it may not be straightforward for many employees to simply contact a CEO in order to “have discussions” about a dispute.
These matters require the clause to be given a flexibility of meaning consistent with the industrial context of this workplace.
How was a dispute purported to be raised and what was done to progress it?
The 22 February 2024 meeting.
On 22 February 2024, a meeting was held involving Mr 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, including Mr Maran, Ms Razu and Ms Jagarlamudi. Meeting notes made in respect to that meeting by Mrs Nguyen, were attached to Mr Anderson’s witness statement[11]. Mrs Nguyen agreed under cross examination that these notes were an accurate reflection of the matters discussed during the meeting.
At the time of this meeting, Mr Milad Ho was the “Senior Circle Lead” for Mrs Nguyen and others involved in the dispute. In his evidence, Mr Anderson said that the “Senior Circle Lead” is the “Team Leader”.
Mrs Nguyen gave evidence that at this time, Mr Ho was “in training” and that prior to him taking on this role, Mr Anderson was in charge of all of the things her team was doing, and they reported directly to him. She said Mr Ho had no experience and the team still went to Mr Anderson to ask questions, and Mr Ho escalated most matters to Mr Anderson. In re-examination, Mr Anderson said at the time he was not Mrs Nguyen’s immediate manager or team leader.
While it is not recorded in the meeting notes, Mr Anderson said in his oral evidence that Mr Ho was at the meeting on 22 February 2024 but left the meeting, for it to be conducted by Mr Anderson.
It was unclear from Mr Anderson’s evidence who, if anyone, was in the role of “Campaign Manager” with respect to Mrs Nguyen. Mr Anderson said there was a “portfolio manager” which was a vacant role. Mr Ho and Mr Barbin may have been acting in those roles until Ms Sanhanga started later in 2024. At about this time Mr Maran may have also been seconded into such a role as a subject matter expert assisting Ms Sanhanga.
It was not initially clear from the evidence who, at this time, was Chief Executive Officer for Probe. During his evidence, I asked Mr Anderson who the CEO was in the first half of 2024 and he wasn’t sure. In re-examination, it was put to Mr Anderson that the Probe CEO is Manish Sharma, and he agreed.
Mrs Nguyen gave evidence that during the meeting on 22 February 2024 she reminded Mr Anderson that there was a list of complaints and issues and concerns and said that he mentioned “he was going to discuss with Mr Sam Adair about the recognition and fair compensation of our work”.
Mr Maran gave evidence that during the meeting, Mr Anderson said he would discuss “pay concerns with Sam”. He also described an email he sent to Mr Anderson on 15 April 2024 in which he said “it has been nearly two months since we made our first request in regards to our pay rise [my emphasis]” which I take to be a reference to the 22 February 2024 meeting.
Mr Anderson said that in the meeting, the team members asked for a pay rise on the basis that (a) they felt that their duties were more complex and workload had increased, (b) according to online sources, such as Seek and Glassdoor, other credit representatives were getting paid a higher rate of $36 per hour, (c) according to the Australian Bureau of Statistics, the average weekly earnings for Australians is $1838.10 and (d) the cost of living had increased.
He also said that during the meeting he mentioned words to the effect that the only way that a pay increase could happen is if the relevant position description is incorrect, although even in those circumstances he was not able to guarantee that this would warrant a pay increase. He agreed to review the relevant position description for a Collections Officer as an action from the meeting.
The meeting notes appear to suggest that people present in the meeting said things including “we feel underpaid and overworked and no compensated for the right pay …”, “other credit representatives are getting the right pay for the job … online consensus (such as Seek, Glassdoor and other sources) other credit representatives are getting paid $36.00 per hour”, “the average weekly earnings for Australians is $1838.10 as of May 2023, according to the Australian Bureau Statistics (ABS)”. One of the outcomes of the meeting is recorded as “Adrian will talk with Sam to discuss our pay”.
There is no evidence that at any point during the meeting of 22 February 2024 anyone, including Mrs Nguyen characterised the complaint about pay as a “dispute”, or a “grievance”, or a dispute or grievance under the Agreement’s dispute resolution procedure
For some reason, neither Mrs Nguyen’s or Mr Maran’s evidence is explicit that they raised during the meeting with Mr Anderson a request that they be paid higher rates of pay for the work they were doing, referenced to online sources such as Seek or Glassdoor. Mr Anderson’s evidence, and the meeting notes, are more explicit that those matters were raised. That evidence informs Mrs Nguyen’s and Mr Maran’s rather more incidental references to “compensation” and “pay” such that it appears likely those matters were raised during the meeting by the participants including Mrs Nguyen. In cross examination, Mrs Nguyen conceded that the primary concern that she had in the meeting was that she felt underpaid and she wanted a pay increase.
I consider that during the meeting held on 22 February 2024, Probe employees including Mrs Nguyen raised with Mr Anderson 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 Seek or Glassdoor. This matter was not characterised as a “dispute” or a dispute relating to the Agreement’s dispute resolution procedure.
Earlier conversations
In oral evidence, Mrs Nguyen said that in or about January 2024 she raised “concerns” with Mr Barbin, Mr Maran and Mr George Karagiannis (Compliance Manager) but these were not concerns about her pay rate.
Mrs Nguyen also gave oral evidence that she asked for a pay rise in a conversation she had with Mr Barbin in July 2023. She said she sought a response to this request but did not receive one.
Engagement with the People Team
On 20 March 2024 Mrs Nguyen sent an email to Probe payroll in which she asked who she should contact regarding a pay increase. This email was forwarded to Ms Velasco (Payroll Specialist), who asked Mrs Nguyen for more details. In response, Mrs Nguyen said that she had a question regarding a pay rise, that she had spoken to her operations manager but had not received a response and sought advice on “what next relevant steps or other avenues we need to take … is there anyone else we can speak to regarding this matter.”[12] This email was forwarded to Ms Stock, who is Probe’s People Business Partner. On 20 March 2024, Ms Stock sent an email to Mrs Nguyen which said that agent roles within Probe are classified based on the nature of the work undertaken, and her role falls under the enterprise agreement, classified Band 1 – Collections Agent[13].
Mr Maran said in evidence that “we attempted to raise our pay concerns with HR but we did not receive the necessary support or guidance to proceed with the process”[14].
Meeting in March 2024
Mrs Nguyen gave evidence that around 22 March 2024 she attended a meeting via “Google Meets” with Mr Anderson, Mr Karagiannis, Mr Ho, Mr Maran and other employees. She said the meeting was to follow up “concerns” and that it was in regards to the position description, the workload and the complaints list. It was said that Mr Anderson explained that delays had affected the completion of the position description and that “decisions regarding our recognition of work were dependent on the company’s review of its financial budget”[15].
Mr Maran gave similar evidence about this meeting[16].
Further meetings and discussions
Mrs Nguyen said that in late April, she and her team again raised their concerns “about workload” with Mr Ho and Mr Karagiannis [17]. At about this time she was moved to a different campaign. She said that her “former colleagues would tell me that their meetings with Mr Adrian, Mr Karagiannis and Ms Fadazi were ongoing about their position description”[18].
Mr Anderson gave evidence that in or around May 2024 a meeting took place with the team regarding the status of the position description review but he could not recall whether Mrs Nguyen attended the meeting. Mr Maran said that a meeting via Google Meets occurred with Mr Anderson on 22 May 2024 and he included in his statement a screenshot of the meeting link, which indicated that Mrs Nguyen was not present. He said that in the meeting the position description and work responsibilities were discussed.
Letter to Ms Sanhanga
Ms Sanhanga started in the role of Senior Circle Lead at Probe in May 2024.
On 26 June 2024 Ms Sanhanga received a letter sent to her signed by several team members included Mrs Nguyen and Mr Maran which said, among other things, “we believe that we are not monetarily compensated fairly for our work …” and “we deserve a pay rise” and “we are asking Probe Group to back pay all the team members who were involved in [omitted]”[19].
Prior to Ms Sanhanga having received this letter, it appears it had been made known to her, by members of the team she was working with, that they were seeking an increase to their pay, in respect to the work they were doing. It appears that this occurred during the period in which Mrs Nguyen was working on a different campaign. Ms Sanhanga said in her evidence she had several meetings or catchups with the team about this matter – at least three meetings – including one on 22 May 2024, and subsequently told the team that a new position description was going to come into effect in relation to their work after 1 July 2024, and there would be a pay increase for them as a result of this new position description.
Ms Sanhanga said, following receipt of the letter on 26 June 2024, she did not have any conversation with Mrs Nguyen or any other team member about it. It was put to Ms Sanhanga in cross -examination that at some time around the point at which Mrs Nguyen resigned her employment, she asked Ms Sanhanga “where the pay rise request letter was heading”, and that Ms Sanhanga said it was sitting with Mr Anderson and HR. Ms Sanhanga could not recall that conversation but said it “sounds right”.
End of Mrs Nguyen’s employment
Mrs Nguyen resigned her employment in writing on 2 July 2024, which took effect on 17 July 2024.
Is there a dispute under the agreement?
A dispute resolution procedure in an enterprise agreement that allows for the referral of a dispute to the Commission is ordinarily confined, to some extent, in relation to the types of disputes it may be used to resolve. As is commonly the case, clause 60 of this Agreement provides that its procedures may be used to settle disputes relating to “a matter arising under this Agreement”, or the NES.
It was submitted for Probe that Mrs Nguyen’s dispute is not a dispute about a matter arising under the Agreement because the pay increase being sought by the applicant is being sought for reasons exterior to the agreement or the NES, including, for example $36.00 per hour, which might be rates available in the market through Seek or Glassdoor, or by reference to average weekly earnings according to ABS statistics but is a request for a pay increase not known to the agreement or “divorced” from any entitlement under the agreement.
Above, I characterised Mrs Nguyen’s dispute as being about whether her 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 whether she should be paid back pay in respect to that amount.
Like most enterprise agreements, the Agreement ascribes particular pay rates for different kinds of work. It also provides for several mechanisms for how those rates may be increased.
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.
A second mechanism appears to exist at clause 32.3, which says:
The rates of pay set out clause 29.1 (Ordinary Hourly Rate of Pay) will be increased in accordance with clients appropriate increases to wages to be paid to Employees.
This clause is expressed in a manner that is difficult to interpret. It was submitted for Probe that this clause refers to rates that clients of Probe might set, and circumstances where a client passes on or is prepared to provide a particular increase to employees for a particular job. Whether this is correct or not, it does not appear to me that this clause is mechanism to review and increase pay rates under the agreement with reference to “market rates”.
The Agreement also provides that:
32.1 Probe’s remuneration and reward approach is designed to attract, retail and reward Employees in a competitive market and is part of a balanced offering to Employees …
32.2 Probe encourages clients to pay fair and reasonable rates to attract and retain high quality candidates.
The means by which pay rates under the agreement may be increased must be considered with regard to clause 69 of the Agreement – it’s no extra claims clause. This clause provides:
69.1 Probe and the Employees agree that they will not pursue any extra claims made in relation to employment terms and conditions for the lift of this Agreement. This includes any additional wage claims …
It does not appear to me there is any mechanism by which rates of pay under the Agreement may be increased during its life referable to a market rate. Certainly, the mechanism in clauses 32.4 does not, and, to the extent that the meaning of clause 32.3 is decipherable, it seems not to give rise to a market rates review.
Clauses 32.1 and 32.2, are aspirational. They 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.
Mrs Nguyen and her colleagues requested a pay increase in respect to the work they were performing for Probe. They were perfectly entitled to make this request, and to press for an answer. A positive answer was not forthcoming. But this is 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”.
Accordingly, the dispute, as characterised, is not a dispute about a matter arising under the Agreement. The application must fail on this basis.
A dispute over a request for a determination from the Commission inconsistent with the terms of the Agreement
Even if I am wrong about this, the terms of the no extra claims clause (clause 69), which includes specific reference to “additional wage claims” would seem to clearly prevent some kind of broader based review of the pay rates set out in the Agreement relating to market rates or some other measure of work value.
Section 739(5) of the Act provides that in dealing with a dispute under the section, the Commission must not make a decision that is inconsistent with the Act, or a fair work instrument that applies to the parties. Undoubtedly, the Agreement is such an instrument.
Even if the Agreement could be construed as providing for, somehow, a mechanism for pay rates to be increased in accordance with market rates (which I consider it cannot), any such provision must be read as subject to clause 69. A decision made by the Commission in support of such claims would be inconsistent with s 739(5)[20].
Above, I characterised the dispute as also being one in which Mrs Nguyen asks the Commission to make an 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. Having determined that the dispute is not one about a matter arising under the Agreement, it is not necessary for me to determine whether Mrs Nguyen is seeking that the Commission make orders in this matter which would not be permissible because of the limitation in s.739(5). No such submissions were made by Probe. Having said, that, it seems likely the common approach adopted to s 739(5) would pose further difficulties for Mrs Nguyen’s application[21].
A dispute about classification.
As I have said above this is 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. In cross examination, Mrs Nguyen conceded that she wanted Probe to increase her rate of pay to at least $36.00 per hour, or by at least 50%. This is not a rate of pay referable to any of the classification levels in the Agreement.
If the dispute was about whether the work should have been classified and paid under a different Band level there is no evidence that Mrs Nguyen sought to pursue such a dispute – about Band levels – through the Agreement’s disputes and grievances procedure.
Some reliance appeared to be placed by Probe on the fact that at no stage did Mrs Nguyen or any of the other employees characterise the matters they were raising about their pay rates as a “dispute” or a dispute under the dispute resolution procedure[22]. I do not consider those submissions to be particularly persuasive. A dispute resolution procedure should be given a flexibility of meaning consistent with the industrial context in which it exists. A dispute may exist despite the absence of or use of the word “dispute” or a failure to characterise it as a dispute referable to a dispute resolution procedure[23].
Rather, in this matter, it is the to characterisation of the “dispute” as one being about an increase to pay set with reference to market rates, as opposed to, for example whether the appropriate Band was being applied, which leads me to the conclusion that there was no dispute about a matter arsing under the agreement raised or progressed through clause 60 of the agreement, such that it might ultimately be referred to the Commission.
A dispute about constructive dismissal.
From the bar table, during the hearing, Mrs Nguyen also said that she was seeking the Commission’s assistance with an alleged “constructive dismissal”. There had been no reference to this matter at any stage earlier in the proceeding. To the extent this forms part of the dispute Mrs Nguyen asks the Commission to deal with, I do not consider it a dispute about a matter arising under the Agreement, nor has it been raised or progressed at all under clause 60 of the Agreement, nor was it raised at any stage previously in the Applicant’s material, and the Commission does not have jurisdiction to deal with it through this application.
Has Mrs Nguyen followed the steps set out in the dispute resolution procedure and can the Commission deal with a dispute in respect to a former employee?
Having determined that Mrs Nguyen’s dispute is not a dispute about a matter arsing under the agreement, it is not necessary for me determine whether Mrs Nguyen followed the steps set out in the dispute resolution procedure or whether the fact that she brought the application after ceasing employment with Probe means that the Commission is not empowered to deal with or arbitrate the dispute. I do however make the following observations.
The “dispute” raised by Mrs Nguyen concerning a pay increase was not just raised by her, but by a group of employees. The comments made by Flick J in Qantas No.2 relating to circumstances where a dispute relates to more than just an individual employee are therefore apposite[24].
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.
Therefore, it may not have been fatal to Mrs Nguyen’s attempt to refer this matter to the Commission, that she first raised her dispute in the meeting of 22 February 2024 with Mr Anderson, the Operations Manager instead of Mr Bardin, who I was told was the Senior Circle Lead. The term “Team Leader” which is used in clause 60.3 of the Agreement does not appear to be used in the Probe workplace – the term “Senior Circle Lead” is used instead. Thus, ambiguity in the application of clause 60 to the reality of this workplace arises – and this is likely to have been accentuated in this matter by Mr Bardin being in training at the time, and Mr Anderson still being the person to whom Mrs Nguyen and her team went to with most of their questions.
Progression through the steps outlined in clause 60.4, 60.5 and and 60.6 is also unlikely to require strict compliance, particularly in circumstances involving a dispute concerning multiple employees. Mr Anderson himself could not provide a clear indication as to who the “campaign manager” was, or even who the CEO was. It seems to me to be unlikely that in those circumstances, strict compliance with a requirement to “have discussions” with those persons might be necessary, provided the dispute has been raised and attempts were made to progress it through the organisation, as they were in this matter. In this regard, I note that the dispute – albeit not a dispute under the agreement – was raised with a People Team member, through Mrs Nguyen’s emails to Ms Velasco and Ms Stock and was raised with Ms Sanhanga, who later took on the role of Senior Circle Lead.
As I mention above, I am not persuaded that the failure to characterise the request for a pay increase as a “dispute” necessarily amounts to a failure on Mrs Nguyen’s part to follow the steps in the dispute resolution procedure, particularly taking into account Flick J’s comments in Qantas No.2 about how a “dispute” should be construed in these circumstances. Probe submitted that, even though there were requests made by Mrs Nguyen and her colleagues for a pay rise there was no opposing view expressed by Probe managers in response, and thus that essential quality of a “dispute” as characterised by Flick J in Qantas is absent here. It is unnecessary for me to determine whether this is so. I do however observe that both Mr Anderson and Ms Stock, in response to these representations being made by Mrs Nguyen and her colleagues, are quick to refer them to the pay rates set in accordance with the Agreement. While this was not inappropriate in the circumstances, it also may suggest it was highly unlikely Mr Anderson or Ms Stock were agreeable to the request that they pay Mrs Nguyen and her colleagues some other rate of pay than those prescribed in the enterprise agreement.
Does Mrs Nguyen’s status as a former employee preclude her bringing the Application?
Probe’s further jurisdictional objection is that Mrs Nguyen was not an employee, or covered by the Agreement, at the time the Application was made. Mrs Nguyen submits that the Commission is entitled to deal with the dispute because she sought to progress it, through the dispute resolution procedure in the Agreement, during her employment and before she resigned.
While 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[25], it is not necessary for me to determine whether this is such a case, having already determined that the dispute in question is not one about a matter under the Agreement.
Conclusion
The application is dismissed.
COMMISSIONER
Appearances:
K.Nguyen on her own behalf
D.Fawcett of Counsel for Probe Operations
Hearing details:
2024.
Melbourne.
4 October
[1] Form F10 Application, 17 August 2024 p.9
[2] Ibid p.12
[3] Ibid p.12
[4] Respondent’s Outline of Submissions [18(a)]
[5] Ibid [18(b)]
[6] Ibid [18(c)]
[7] Applicant’s Outline of Submissions [39]
[8] (2018) 264 FCR 536 at [197]
[9] [2020] FWC 951
[10] Ibid [61]
[11] Witness Statement of Adrian Anderson [AA-2]
[12] Witness Statement of Rachel Stock [R3]
[13] Witness Statement of Rachel Stock [R5]
[14] Witness Statement of Hermant Maran [16]
[15] Applicant’s Outline of Submissions [24] – [27]
[16] Witness Statement of Hermant Maran [17] – [21]
[17] Applicant’s Outline of Submissions [28]
[18] Ibid [30]
[19] Witness Statement of Fadazi Sanhanga [FS-1]
[20] Australian Rail, Tram and Bus Industry Union & Australian Municipal, Administrative, Clerical and Services Union v Sydney Trains & Anor [2021] FWCFB 6010
[21] Srikumar Arampamoorthy v Ausgrid Management Pty Ltd T/A Transgrid[2019] FWCFB 689
[22] For example, Respondent’s Outline of Submissions, [28(c)]
[23] Qantas No.2 [64], [70]
[24] Qantas No.2 [64]
[25] Jonathan Mitchell v University of Tasmania[2022] FWCFB 165
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