Nicholas Hufton v State of Victoria Department of Justice Consumer Affairs

[2015] FWC 2008

[2015] FWC 2008

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Nicholas Hufton
v
State of Victoria - Department of Justice - Consumer Affairs
(C2014/5201)

State and Territory government administration
COMMISSIONER BISSETT	MELBOURNE, 31 MARCH 2015

Alleged dispute regarding classification.

[1] Mr Nicholas Hufton is employed by the Victorian Public Service in the Department of Justice and Regulation (the Department). Mr Hufton commenced employment in January 2003 as a Solicitor and is currently classified as a Solicitor Level 3 (VPS4) with the Market Engagement Division of Consumer Affairs Victoria (CAV). Mr Hufton says he is incorrectly classified and should be classified as a VPS Grade 5 Range Level 2. He seeks to be correctly classified and to have the classification recognised from January 2010 when he says he commenced working at that level.

[2] Mr Hufton has sought to have his classification rectified through direct discussions with the Department. This did not result in a satisfactory outcome from his perspective and he now seeks to have the mater dealt with pursuant to the dispute settling procedure of the Victorian Public Service Workplace Determination 2012 (the Determination).

[3] Clause 11 of the of the Determination sets out the dispute settling procedure in respect of matters arising under the Determination. It provides for conciliation and arbitration of disputes.

[4] Clause 21 and Schedule E of the Determination deal with classifications of employees.

In notifying the dispute to the Fair Work Commission Mr Hufton put his classification as being the prime matter in dispute between himself and the Department. He also sought that the Commission make orders that the Department was in breach of the Determination and the Fair Work Act 2009 (the Act) although he no longer presses for such orders.

[5] The dispute between Mr Hufton and the Department can be properly characterised as one going to the appropriate classification of Mr Hufton. I am satisfied that this dispute is about a matter arising under the Determination. I am also satisfied that the steps in the dispute settling procedure have been followed.

[6] I am therefore satisfied that I have jurisdiction to deal with the dispute by arbitration.

Classification standards

[7] Mr Hufton is employed as a Solicitor Level 3. The legal grades are aligned to the VPS structure such that a Solicitor Level 3 is aligned to a VPS Grade 4. A Senior Solicitor aligns to the VPS Grade 5 Value Range 1 or 2. Table 2 of Schedule E to the Determination sets out the ‘legal grade and value range descriptors’ for such positions. These classification descriptors have not changed since 1996.

[8] For ease I have referred consistently in this decision to Mr Hufton’s current classification as VPS4. I have used VPS5.1 to mean VPS5 Value Range 1 and VPS5.2 to mean VPS5 Value Range 2.

[9] Clause 21 of the Determination deals with classifications. It states:

21 CLASSIFICATIONS AND SALARIES – GENERAL

21.1 Positions will be classified within the VPS Structure, or the following adaptive classification structures aligned to it, based on work value:

• Legal Officer
• Allied Health
• Science
• Custodial Officers
• Housing Services Officer
• Housing Customer Services Officer
• Clerk of Courts
• Sheriff’s Officer
• Community Corrections Officer
• Fisheries Officer

21.1.1 Classifications are divided into Grades and Value Ranges.

21.1.2 Employees will be employed within one of these Grades and Value Ranges based on work requirements in accordance with the Classification and Value Range Standard Descriptors at Schedule E to this Determination.

21.2 Movement Between Value Ranges

21.2.1 Employees and/or positions can move between Value Ranges.

21.2.2 Movement between the Value Ranges can occur following a job resizing review. The review process includes an assessment of the work the Employer requires to be undertaken and the performance of that work by the Employee. These are assessed against the benchmarks specified in the Classification and Value Range Standard Descriptors at Schedule E to this Determination.

[10] The classification descriptors for legal officers specify four areas of work - litigation, advice, legislative drafting and legal drafting.

[11] It was not contested between the parties that Mr Hufton’s work, and that of the legal officers working in the same area, is primarily litigation work but includes advice work and legal drafting. These are the areas of the descriptors relevant for the determination of his correct classification. Mr Hufton’s role and that of his immediate co-workers does not include legislative drafting.

[12] An area of contention is the application of the classification descriptors and the delineation of them between the various grades. This is caused by the use of terms such as ‘complex’, ‘more complex’ and so on that are not definitive and carry with them some comparative judgement.

[13] A reading of the descriptors suggests that the classification needs to be determined with comparison to the level below so that a VPS4, in litigation ‘prepares and/or instructs in more complex cases...’ presumable from the VPS3.2 who ‘prepares more complex cases’ than the VPS3.1.

[14] There are also clearer differentiators. The VPS5.1 for example ‘Prepares and instructs counsel in complex and/or sensitive matters’ whilst a VPS4 ‘prepares and/or instructs in complex matters’ (that is, does not deal with sensitive matters). Such differences are further explored later and will be of assistance in determining the dispute before the Commission.

[15] In my experience dealing with classification matters that come before the Commission it is not unusual to see a set of descriptors that does not have a clear delineation between one classification level and the next, particularly in ‘white collar’ work. This is not a case where a particular qualification or recognised skill absolutely determines classification level.

Background

[16] From 2005 to 2009 Mr Hufton worked in a unit within the Department where he says his work consisted mainly of VCAT merit review cases and criminal prosecutions. He says that until about 2010 he acted as a lawyer in matters with the advocacy being conducted by a Senior Legal Manager within the Department.

[17] From 2009 a reduction in staff numbers, including the loss of more senior staff including the Senior Legal Manager, resulted in increased workload to the remaining staff. From mid-2009, due to the unavailability of more senior staff, Mr Hufton says he was required to carry out cases he had not done before including VCAT disciplinary inquiries and applications in court for civil remedies.

[18] Mr Hufton says that from 2010 he was undertaking litigation cases which were no different to those being carried out by VPS5 and VPS6 lawyers even though he was being paid as a VPS4 lawyer.

[19] In July 2013 Mr Hufton wrote to Ms Katherine Bannon, his manager, requesting that his position be reclassified to a VPS5.2. This letter was acknowledged by Ms Bannon who, despite being followed up by Mr Hufton, took no action on the matter.

[20] On 20 May 2014 Mr Hufton again raised the matter with Ms Bannon by email. Once again no action was taken by Ms Bannon. Mr Hufton met with Ms Bannon on 29 May 2014 and said that the dispute he had raised with her went to the failure of the Department to classify him correctly. On 30 June 2014 Mr Hufton notified the Commission of the dispute.

[21] On 4 July 2014 Mr Hufton met with Ms Bannon and Ms Pavone from the Human Resources area of the Department. At that meeting he was provided with information relating to reclassification procedures and invited by Ms Pavone to provide a submission in support of his claim. On 15 July 2014 Mr Hufton provided his submissions to Ms Bannon. 1

[22] Following the notification of the dispute to the Commission an assessment of Mr Hufton’s claim for reclassification was undertaken by Ms Caitlin Huffer, Manager Employee Relations. Whilst she would ordinarily assess a classification matter on the basis of a position description, in this case she took into account the additional information provided by Mr Hufton. In undertaking her assessment of classification Ms Huffer did not meet or discuss the matter with Mr Hufton. She did seek clarification and further information from Ms Bannon.

[23] Mr Hufton went on leave on 30 August 2014. On 27 October 2014, upon his return from leave, he met with Ms Bannon and Mr Levens. He was provided with a letter dated 27 October 2014 in which he was advised his request for a reclassification had been rejected.

[24] Conciliation of the dispute was conducted before the Commission on 30 October 2014. Following from this a more detailed letter explaining the assessment of his classification was provided to Mr Hufton. Attached to that letter was further details of Ms Huffer’s assessment along with the assessment made by Ms Bannon as to the complexity of the matters Mr Hufton had included in his written submission.

[25] Following the receipt of this information Mr Hufton indicated he wished his dispute to proceed to arbitration.

Evidence

[26] Evidence was given in this matter by Mr Hufton, Ms Caitlin Huffer, Manager Employee Relations and Ms Kathryn Bannon, General Manager Enforcement and Legal Services Branch (Mr Hufton’s immediate manager).

[27] I find that each of the witnesses gave their evidence as to the facts in a genuine fashion. Ms Bannon on the information she provided to Ms Huffer, Ms Huffer as to the process of assessment she undertook and Mr Hufton as to the matters he considers should be taken into account by the Commission in determining his application.

Conflict of interest

[28] Mr Hufton says that at the time the Department undertook a review of his classification it had a conflict of interest as it was a respondent to litigation he had commenced in the Commission. In the dispute notification Mr Hufton alleges breaches of the Act which are pecuniary penalty provisions. The Department undertook the assessment of his classification after he notified the dispute and hence, Mr Hufton says, after it became a party to litigation. For this reason he submits that the Department’s assessment of his correct classification could not have been carried out in a fair and independent manner. The assessment, he submits, is tainted by the conflict. For this reason Mr Hufton submits that any finding of the Department as to classification made after he had notified his dispute to the Commission should be disregarded as unsafe and unreliable.

[29] Mr Hufton’s submission does not stand up to scrutiny. The Commission does not have the power to make findings with respect to alleged breaches of the Act or the Determination. These are matters for a court of competent jurisdiction. The only matter the Commission is being asked to decide and can decide is if the Determination is being properly applied in so far as the classification of Mr Hufton is concerned.

[30] In any event it is expected, under the dispute resolution procedure of the Determination that, a dispute having been brought to its attention, the Department will undertake steps in an attempt to resolve the dispute including assessing the claim and participation in conciliation before the Commission. The Department cannot be criticised for attempting to do what was required of it under the Determination.

Mr Hufton’s classification

[31] The substantial majority of Mr Hufton’s evidence goes to the type of litigation he is involved in compared to the type of litigation conducted by VPS5 and VPS6 lawyers.

[32] Mr Hufton provides material that he says demonstrates that he should be classified at VPS5.2. Because of the ‘cumulative’ nature of a classification at VPS5.2 (that is, it builds on the VPS5.1) his material enables an assessment of whether or not, in the first instance, he should be classified at VPS5.1 and, if the answer to this is yes, if he should be classified at VPS5.2.

[33] I shall therefore first assess Mr Hufton against the VPS5.1 level.

Should Mr Hufton’s position be classified at VPS Grade 5 Value Range 1?

[34] The grade descriptors and classification standards for legal officers are set out in Schedule E to the Determination. I have not had regard to the descriptors relating to legal drafting as this is not relevant to the work of Mr Hufton.

[35] Mr Hufton’s case essentially is that he does a wider range of cases now (and has since 2010) than he did prior to 2010 2; that the cases he is responsible for are of the same nature as those of the VPS5s; that he briefs more often, on more complex matters and more widely than VPS5s3; and that he undertakes the same level of risk assessment and decision making as a VPS54.

[36] I have considered each of the descriptors in ‘Litigation’, ‘Advice’ and ‘Legal drafting’, along with the evidence of Mr Hufton and Ms Bannon. In considering the descriptors and evidence it has, at times required a consideration of the differences in descriptors for VPS4 and VPS5.

Litigation - Prepares, and instructs counsel in complex and/or sensitive matters

Evidence

[37] Mr Hufton submits that I should have no regard to the opinions expressed by Ms Bannon as to the complexity of work undertaken by him. An assessment of this was provided by Ms Bannon to Ms Huffer. Ms Huffer relied on this in undertaking her assessment as to the correct classification of Mr Hufton.

[38] Mr Hufton makes his submission on the grounds that when an opinion is offered in evidence the facts used to reach that opinion must also be put and that Ms Bannon has not produced the facts on which she bases her opinion. He therefore submits that the Commission ‘is not in any position to make its own valuation of whether the [Department's] opinion as to complexity is correct.’ 5 Mr Hufton also submits that I should have no regard of Ms Bannon’s assessment because she consistently used the phrase ‘not novel or complex’ when novelty is not an element in any of the descriptors.

[39] I do not accept Mr Hufton’s submissions on this point. Firstly, the Commission is not strictly bound by the rules of evidence. 6 Second, Ms Bannon was asked for her assessment of the work undertaken by Mr Hufton on the basis of information he provided as to the cases he worked on from 2010 - 2014. Mr Hufton relies on this material to support his claim. The views of Ms Bannon were sought by Ms Huffer to enable her to complete her assessment of Mr Hufton’s work against the classification standards. Ms Bannon was in a position to make an assessment of the complexity of the cases handled by Mr Hufton. She is his manager and is responsible for the allocation of work to VPS4 and VPS5 lawyers.

[40] Ms Bannon is not put forward in this case as an expert witness on complexity in cases prosecuted. Rather she gives evidence as Mr Hufton’s manager.

[41] In considering the range of cases to be dealt with by staff in her area, it is Ms Bannon’s responsibility to make some assessment as to the complexity of the matters so that the work may be properly allocated. Her evidence is that the more complex matters are assigned by her to the VPS5 lawyers and others (not as complex) to the VPS4 lawyers. In deciding who a matter should be allocated to Ms Bannon says that she considers evidentiary issues, the alleged contravention, whether the contravention has been subject of previous jurisprudence and whether the matter is novel. It is evident that some value judgements must be made by Ms Bannon. Nothing was put to suggest that Ms Bannon is not capable of carrying out her managerial tasks competently.

[42] Ms Bannon’s use of the word ‘novel’ as relied on by Mr Hufton must be seen in the context of how she assesses complexity of a matter. Clearly the ‘novelty’ of the issue is relevant in determining complexity.

[43] It is my view that Ms Bannon’s assessment of complexity can be taken into account by me based on her experience in allocating work to VPS4 and VPS5 lawyers in her area.

[44] In contrast, Mr Hufton’s evidence is that complexity arises in any contested matter, regardless of the factual matrix surrounding the issue.

[45] Mr Hufton says that I should accept his evidence as to complexity. Mr Hufton compared his cases with those of VPS5 lawyers in his area where the cases were in the same jurisdiction (e.g. VCAT) or of the same type (e.g. merit reviews, civil remedy applications in courts). Mr Hufton’s evidence however does not provide me with the totality of information about the cases he worked on or the case comparators of his co-workers in helping me decide if his opinions as to complexity has any basis. Further, that cases he compared were in the same jurisdiction or of the same type does not mean that the work was of the same complexity.

[46] On this matter I prefer the evidence of Ms Bannon as to the bases of complexity and reject Mr Hufton’s view. While a contested matter may be complex, that a matter is contested does not, alone, make it complex. Each matter must be considered on its merits.

[47] That said however, the onus is on Mr Hufton to demonstrate that the work he is required to perform is more appropriately classified at the VPS5 level. Ms Bannon’s evidence is just one input into my assessment of the case. Her evidence is not determinative of the issue.

Consideration

[48] A VPS4 (Mr Hufton’s current classification) is required to prepare and/or instruct in more complex committals, summary prosecutions, inquests, trials and appeals. The key difference between the VPS4 and VPS5 would appear to be the inclusion of ‘sensitive’ matters at VPS5 although it might also be reasonably presumed that more complex matters will be dealt with at the VPS5 level.

[49] In support of his claim Mr Hufton has provided a summary of the cases he has appeared in over the last four years and aligned these with cases conducted or managed by the VPS5 and VPS6 lawyers. 7 He continues to rely on this document as evidence that the work he did was the same as that of a VPS5. He also relies on this as evidence to rebut Ms Bannon’s claim that he was not allocated work the same as that allocated to VPS5 and VPS6 lawyers.

[50] There are a few things to say of the comparative approach taken by Mr Hufton. The comparative material, on its face looks like Mr Hufton is carrying a relatively large workload. However, two of the now three VPS5s were employed in around May/June of 2014. The third VPS5 has been there for some considerable time. Whilst this may raise some issue as to work allocation prior to the recruitment of the VPS5s, nothing was put to me on this in the hearing. It is therefore not a matter I have considered although I do note that the type of litigation work carried out by Mr Hufton does not appear to have changed over this period.

[51] Further, it was Ms Bannon’s evidence, and not refuted, that some of the work conducted by the VPS6 was work initially allocated to a VPS4 (not Mr Hufton) that needed to be covered whilst that person was on leave.

[52] Mr Hufton says he relies on the outcome of his cases compared to the outcomes of VPS5 cases. The difficulty in comparing outcomes to determine complexity is that it tells me little of the level of complexity of the work performed per se. If the comparisons are accurate (and I do not necessarily accept that they are) the best it tells me is that matters were equally complex. It does not tell me if that work is at the VPS4, VPS5 or VPS6 level. Further, Ms Bannon, in her evidence, disputes a number of the comparisons as to ‘sameness’ put forward by Mr Hufton 8 whilst accepting parity of complexity in others.9

[53] Mr Hufton’s evidence is that his comparative assessment is based solely on the enforcement outcome reports circulated within CAV 10. He agrees that he is not aware (except for a general awareness of being in the same office) of the detail of the cases, the work that is carried out in the lead up to or in the prosecution or disposal of those matters by the VPS5s.

[54] On the issue of comparability of the complexity of cases I accept the evidence of Ms Bannon. In making her assessment she accessed not just the Enforcement Outcome Reports relied on by Mr Hufton to create the comparison table, but also case files and, where necessary, information from other relevant sources. 11 I am satisfied that her knowledge of what makes a case complex is more detailed and reliable than just the Enforcement Outcome Report.

[55] Mr Hufton also relies on his submission of 15 July 2014 to the Department to support his claim. In his submission he puts forward ‘three examples of the highest complexity’ to illustrate his claim to work at the VPS5 level. The difficulty with this evidence is it tells me nothing of the remainder of the case work completed by Mr Hufton over the period of his claim (there were over 50 cases over the four year period). Further, the material does not address the issue of the sensitivity of the cases which is a differentiator of work between the VPS4 and VPS5 levels.

[56] I have carefully considered the evidence of Mr Hufton. In terms of the case studies he put into evidence, there is nothing in the material that suggests to me that the cases he is dealing with are sensitive matters or that they otherwise sit within the VPS5.1 descriptors. Having said this I accept, on the basis of the material, that some of the cases had some complexity to them but there is nothing in the descriptors for a VPS4 that says the occupant of such a position cannot deal with complex cases such that this alone dictates that he should be a VPS5. In this respect I note the evidence of Ms Bannon that she accepts, reviewing the evidence submitted by Mr Hufton, that between 5 and 10 per cent of his case workload could be described as ‘more complex’. 12

[57] As I found above, Mr Hufton’s evidence is that, in his view, any contested matter is complex. There is no factual basis for that claim. Such a submission is not sustainable and does not provide a sound basis for making a decision as to classification.

Litigation - Represents the agency within Government and externally

[58] Mr Hufton relies on his appearances in VCAT and the courts as evidence that he represents the agency. Whilst I accept that in appearing in such matters Mr Hufton is representing the Department I do not accept that these appearances meet this descriptor which, it seems to me, goes to matters broader thancourt work and briefings. If this descriptor only related to court or tribunal work it would have no work to do given other descriptors. In addition I note that Mr Hufton makes no claim of representing the agency within Government. Considering the evidence presented, I do not consider that Mr Hufton has demonstrated that the work he does meets this descriptor.

Litigation - Appears in contested and indictable matters in the Magistrates and County courts

[59] I accept that Mr Hufton does appear in matters in the Magistrates and County courts. I am satisfied, on the basis of the evidence, that these matters are contested. Mr Hufton’s evidence is that two of the matters he dealt with over the four year period were indictable matters. 13 Whilst it is correct that Mr Hufton appears in contested and indictable matters the indictable matters make up a very small part of his workload.

[60] Mr Hufton partially meets this descriptor with respect to his work. In my opinion, however, this descriptor must be considered in the context of the complexity of the work. My finding above with respect to complexity is therefore relevant.

Litigation - Coordinates complex criminal prosecutions

[61] Mr Hufton provides evidence of four matters he dealt with that he says meet this descriptor. I accept on its face that the matters were criminal prosecutions but the evidence does not make it clear the extent to which each case was complex or how this varied from work that may be conducted at the VPS4 level.

[62] Whilst Mr Hufton criticises Ms Bannon for a failure to define ‘complex’ in her assessment of his work, he provides little of assistance to the Commission on this question that might support his claim.

[63] I am not satisfied that I can find on the evidence that Mr Hufton coordinates complex criminal prosecutions.

Litigation - Exercises judgement within established parameters

[64] Mr Hufton gives no evidence of meeting this criterion. His evidence is that he attends to matters with clear instructions on what charges can be dropped if the defendant pleads guilty to others. This does not suggest that Mr Hufton exercises judgement but rather that he attends with a clear outline or matrix of possible decisions.

[65] I am further supported in this view by Mr Hufton’s evidence that he may call the office to obtain instructions on how to deal with a particular situation. That is, he is not exercising judgement but gets further instructions when an unexpected event occurs.

[66] I consider that Mr Hufton is not exercising judgement but rather applying agreed outcomes to matters. I do not therefore consider that Mr Hufton meets this descriptor in his work.

Litigation - Provides advice to team members

[67] Mr Hufton says that he provides advice to compliance officer colleagues on whether there is sufficient evidence to proceed to court or a tribunal with a matter and that, when he is allocated a litigation file, he works with compliance officers on the form of statements.

[68] I consider that this criteria needs to be considered in the context of the complexity of the matter itself. I accept that, regardless of the complexity of the matter at hand, this work is required of any lawyer responsible for a matter before a tribunal or a court.

[69] In light of my findings above as to complexity of matters dealt with by Mr Hufton I am not satisfied that he carries out this work in the context of the cases intended to be conducted at a VPS5.1 level. I do accept that he does provide advice as he describes to compliance colleagues.

Advice work - Initiates research and analysis to provide advice on complex or cross discipline matters and provides authoritative legal advice within the area of specialisation

[70] Mr Hufton’s submission with respect to this descriptor relies on an acceptance of the detailed case studies he relies on to show that he deals with complex and/or sensitive matters.

[71] Mr Hufton relies, in particular, on two of the case studies to show that he provides authoritative advice. He has, however, provided no evidence in these proceedings to demonstrate his advice is authoritative as opposed to what is otherwise expected of a lawyer in CAV at the VPS4 level.

[72] There is nothing in the evidence provided by Mr Hufton that demonstrates he initiates research and analysis for the purposes set out in the descriptor.

[73] It is my opinion that the advice work referred to here is beyond that directly involved in litigation. If it was intended that the advice work would be restricted to litigation this descriptor would have been in the grouping on litigation. It appears that on Mr Hufton’s evidence the only advice work he does is related to his litigation work. I am therefore not satisfied Mr Hufton carries out the work referred to in this descriptor.

Advice work - Provides specialist legal expertise and advice to policy/practice development

[74] Mr Hufton says this item is not relevant as he does not undertake policy work.

Legal drafting

[75] Mr Hufton relies on two case studies as evidence that he works at the VPS5.1 level in respect of legal drafting. Again Mr Hufton confuses the work that he is required to complete for any matter submitted to the courts or tribunal (e.g. legal pleadings, submissions) as part of the litigation as evidence in respect to legal drafting at a broader level. This is a major limitation in Mr Hufton’s evidence.

[76] Whilst it appears that Mr Hufton is skilled in writing submissions, memorandums of advice to the Director CAV and other legal documents, I am not convinced that he has provided me with adequate evidence that his work is at the VPS5.1 level and not indicative of work at the VPS4 level.

Classifications in the Office of Public Prosecutions

[77] Mr Hufton also gives evidence that the classifications at the Office of Public Prosecutions (Victoria) also support his claim that his position should be classified at VPS5. He says that the ‘advocacy competency framework, advocacy hearing framework’ 14 shows that an advocate who carries out summary contests is properly classified at VPS5.

[78] Mr Hufton provided little or no addition information than this on the framework. No information was given as to how an employee would demonstrate competency or the link between this framework and the classification descriptors in Schedule E to the Determination. This information provides no basis for me to conclude that Mr Hufton should be classified at VPS5.

Conclusion

[79] I have carefully considered all of the evidence put before me by Mr Hufton on each of the elements in the descriptors for a VPS5.1 (legal officer). On the basis of that evidence I conclude that Mr Hufton is not working at, nor should he be classified as, a VPS5.1.

[80] The true classification of a position should be based on the highest functions of the position which are performed on a regular basis and which constitute a substantial component of the work of the position. In this matter I cannot conclude that the highest function Mr Hufton performs on a regular basis is at the VPS5.1 level.

[81] It is often the case that a position will have incidental (though important) tasks or require the exercise of responsibility or accountability at a higher or lower level than the classification of the position. These ‘outliers’ cannot be the determinative factor in deciding the appropriate classification of a position. Rather, they should be seen as what they are – incidental to the main functions and responsibilities.

Should Mr Hufton’s position be classified at VPS Grade 5, value range 2?

[82] Having found that Mr Hufton’s position should not be classified at a VPS5.1 level it is not possible to conclude the position should be classified at a VPS5.2 level.

Other matters

[83] Mr Hufton has, since July 2013, attempted to have the matter of his correct classification resolved. The Department agrees that it did not respond to Mr Hufton’s request in a timely manner. It was only after Mr Hufton notified a dispute to the Commission in accordance with the dispute resolution procedure in the Determination that any action was taken by the Department to address his legitimate issue. Following this notification Mr Hufton was asked and did provide a detailed submission as to why he thought his position should be classified at the higher level. He did this on 15 July 2014. 15

[84] It is not acceptable that such delay and inactivity occur on a legitimate request from an employee. The Commission would be most concerned if such delays were to become the norm. The Commission does note that the Department and Ms Bannon have both accepted that the delays are unacceptable and Ms Bannon is now aware of the need to progress matters raised with her in a timely and appropriate manner.

[85] I would strongly recommend that the Department put in place mechanisms to ensure that the chance of such delays are minimised in the future.

[86] Mr Hufton also raises issues with respect to the letter he received from the Department dated 5 November 2014. In particular he queried the statements in the letter that ‘there must be an ongoing operational requirement for the employee to perform the role at a higher level’ 16 and ‘your request was never assessed by [Employee Relations] as CAV management do not believe you are performing work at the VPS Grade 5 level, nor do they have an ongoing requirement for you to do so....’17. Mr Hufton suggests that this indicates that the Department could stop a legitimate reclassification by claiming there was no operational requirement for a position at the higher level, even though the work was being done at that level. Ms Huffer gave evidence that that if Mr Hufton was being assigned work at the VPS5 level on a regular and systematic basis then there would be a requirement for him to be classified at that level. In this case however, her evidence was that ‘the assessment found that [he wasn’t] doing the work or regularly being assigned the work at the higher level and therefore there [was] no operational requirement for [him] to do the work at the higher level.’18

[87] I accept the evidence of Ms Huffer on this point. Her reasoning is sound even if the wording of the letter is clumsy.

[88] It is evident that for a position to be reclassified the work required of the position must meet the higher classification requirements. If the work is required to be done then the position must be classified at the appropriate level for that work. The letter was merely stating that Mr Hufton’s work was not assessed to be at a VPS5, in addition there was no requirement for him to work at that level.

Conclusion

[89] Mr Hufton has made a claim for his position to be reclassified. In such a claim the obligation is on the Applicant is to demonstrate how the work he does and/or the requirements of his position justify classification at the level claimed.

[90] Mr Hufton has not met the evidentiary requirements to satisfy me that he should be classified at VPS grade 5 Value Range 1 or 2.

[91] The application is therefore dismissed.

COMMISSIONER

Appearances:

M. Hufton for himself.

K. Reidy for the Respondent.

Hearing details:

2015.

Melbourne:

February 27.

 1   Exhibit A1, attachment F.

 2   Exhibit A1, paragraph 13-29.

 3   Exhibit A1, paragraph 30(b).

 4   Exhibit A1, paragraph 31(c).

 5   Applicant’s submission of 16 December 2014, paragraph 9.19.

 6 Section 591, Fair Work Act 2009.

 7   Exhibit A1, attachment K1.

 8   Transcript PN635, PN644, PN648 and PN653.

 9   Transcript PN625 and PN630 .

 10   Exhibit A1, paragraph 27.

 11   Transcript PN737 and PN741.

 12   Transcript PN592.

 13   Exhibit A1, attachment F page 66.

 14   Exhibit A1, attachment ah.

 15   Exhibit A1, paragraph 25(f).

 16   Exhibit R1, attachment CH-10.

 17   Exhibit R1, attachment CH-10.

 18   Transcript PN410.

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