Tanya Michelle Thacker v Partnership Builds Pty Ltd
[2023] FWC 196
•24 JANUARY 2023
| [2023] FWC 196 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Tanya Michelle Thacker
v
Partnership Builds Pty Ltd
(C2022/8283)
| COMMISSIONER PLATT | ADELAIDE, 24 JANUARY 2023 |
Dispute in relation to classification structure under the Social, Community, Home Care and Disability Services Industry Award 2010
On 15 December 2022, Ms Tanya Thacker (the Applicant) made an application for the Commission deal with a dispute under s.739 of the Fair Work Act 2009 (the Act).
The dispute is between Ms Thacker and her employer, Partnership Builds Pty Ltd (the Respondent or Partnership Builds) and concerns the correct classification of Ms Thacker under the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award). Ms Thacker contended in her application that she should be classified as a Level 2 Pay Point 1, under Schedule B.2 of the Award. Partnership Builds maintained that Ms Thacker was correctly classified as a Level 1 Pay Point 3 under Schedule B.1 of the Award.
Jurisdiction
Clause 9 of the Award contains the Dispute Resolution process:
9.1 Clause 9 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.
9.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.
9.3 If the dispute is not resolved through discussion as mentioned in clause 9.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
9.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 9.2 and 9.3, a party to the dispute may refer it to the Fair Work Commission.
9.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
9.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.
In her application, Ms Thacker outlined the process that she had undertaken in relation to the dispute at the workplace level. There was no dispute, and I am satisfied, that the requirements of clauses 9.2 and 9.3 had been met, allowing Ms Thacker to make her application to the Commission. The dispute concerns a matter under the Award.
A conference was conducted by telephone on 21 December 2022. During the conference, I addressed the parties on the powers conferred on the Commission, including the requirement for consent in order for me to exercise arbitration powers. The parties were not able to resolve the dispute through conciliation during the conference, and at its conclusion, both parties consented to having the matter arbitrated.
Requirements of the Award
The dispute centred around the correct classification for the work that Ms Thacker performed under the Award. Ms Thacker contended she should be classified as a Level 2 under Schedule B.2, whilst the Respondent contended that Ms Thacker was correctly classified as Level 1 under Schedule B.1. Both parties were directed to provide information and submissions directed to how Ms Thacker’s duties met requirements (reproduced below) relevant to the question to be determined:
Schedule B—Classification Definitions—Social and Community Services Employees
B.1 Social and community services employee level 1
B.1.1 Characteristics of the level
(a) A person employed as a Social and community services employee level 1 works under close direction and undertakes routine activities which require the practical application of basic skills and techniques. They may include the initial recruit who may have limited relevant experience.
(b) General features of work in this level consist of performing clearly defined activities with outcomes being readily attainable. Employees’ duties at this level will be closely monitored with instruction and assistance being readily available.
(c) Freedom to act is limited by standards and procedures. However, with experience, employees at this level may have sufficient freedom to exercise judgment in the planning of their own work within those confines.
(d) Positions at this level will involve employees in extensive on-the-job training including familiarisation with the goals and objectives of the workplace.
(e) Employees will be responsible for the time management of their work and required to use basic numeracy, written and verbal communication skills, and where relevant, skills required to assist with personal care and lifestyle support.
(f) Supervision of other staff or volunteers is not a feature at this level. However, an experienced employee may have technical oversight of a minor work activity.
(g) At this level, employers are expected to offer substantial internal and/or external training.
B.1.2 Responsibilities
A position at this level may include some of the following inputs or those of a similar value:
(a) undertake routine activities of a clerical and/or support nature;
(b) undertake straightforward operation of keyboard equipment including data input and word processing at a basic level;
(c) provide routine information including general reception and telephonist duties;
(d) provide general stenographic duties;
(e) apply established practices and procedures;
(f) undertake routine office duties involving filing, recording, checking and batching of accounts, invoices, orders, stores requisitions and maintenance of an existing records system;
(g) resident contact and interaction including attending to their personal care or undertaking generic domestic duties under direct or routine supervision and either individually or as part of a team as part of the delivery of disability services;
(h) preparation of the full range of domestic duties including cleaning and food service, assistance to residents in carrying out personal care tasks under general supervision either individually or as part of a team as part of the delivery of disability services.
The minimum rate of pay for employees engaged in responsibilities which are prescribed by B.1.2(h) is pay point 2.
B.1.3 Requirements of the position
Some or all of the following are needed to perform work at this level:
(a) Skills, knowledge, experience, qualifications and/or training
(i) developing knowledge of the workplace function and operation;
(ii) basic knowledge of administrative practices and procedures relevant to the workplace;
(iii) a developing knowledge of work practices and policies of the relevant work area;
(iv) basic numeracy, written and verbal communication skills relevant to the work area;
(v) at this level employers are required to offer substantial on-the-job training.
(b) Organisational relationships
Work under direct supervision.
(c) Extent of authority
(i) Work outcomes are clearly monitored.
(ii) Freedom to act is limited by standards and procedures.
(iii) Solutions to problems are found in established procedures and instructions with assistance readily available.
(iv) Project completion according to instructions and established procedures.
(v) No scope for interpretation.
(d) Progression
An employee primarily engaged in responsibilities which are prescribed by B.1.2(g) will, if full-time, progress to pay point 2 on completion of 12 months’ industry experience, or if part-time, on completion of 1976 hours of industry experience. Industry experience means 12 months of relevant experience gained over the previous 3 years.
B.2 Social and community services employee level 2
B.2.1 Characteristics of the level
(a) A person employed as a Social and community services employee level 2 will work under general guidance within clearly defined guidelines and undertake a range of activities requiring the application of acquired skills and knowledge.
(b) General features at this level consist of performing functions which are defined by established routines, methods, standards and procedures with limited scope to exercise initiative in applying work practices and procedures. Assistance will be readily available. Employees may be responsible for a minor function and/or may contribute specific knowledge and/or specific skills to the work of the organisation. In addition, employees may be required to assist senior workers with specific projects.
(c) Employees will be expected to have an understanding of work procedures relevant to their work area and may provide assistance to lower classified employees or volunteers concerning established procedures to meet the objectives of a minor function.
(d) Employees will be responsible for managing time, planning and organising their own work and may be required to oversee and/or guide the work of a limited number of lower classified employees or volunteers. Employees at this level could be required to resolve minor work procedural issues in the relevant work area within established constraints.
(e) Employees who have completed an appropriate certificate and are required to undertake work related to that certificate will be appointed to this level. Where the appropriate certificate is a level 4 certificate the minimum rate of pay will be pay point 2.
(f) Employees who have completed an appropriate diploma and are required to undertake work related to the diploma will commence at the second pay point of this level and will advance after 12 full-time equivalent months’ satisfactory service.
B.2.2 Responsibilities
A position at this level may include some of the following:
(a) undertake a range of activities requiring the application of established work procedures and may exercise limited initiative and/or judgment within clearly established procedures and/or guidelines;
(b) achieve outcomes which are clearly defined;
(c) respond to enquiries;
(d) assist senior employees with special projects;
(e) prepare cash payment summaries, banking reports and bank statements, post journals to ledger etc. and apply purchasing and inventory control requirements;
(f) perform elementary tasks within a community service program requiring knowledge of established work practices and procedures relevant to the work area;
(g) provide secretarial support requiring the exercise of sound judgment, initiative, confidentiality and sensitivity in the performance of work;
(h) perform tasks of a sensitive nature including the provision of more than routine information, the receiving and accounting for moneys and assistance to clients;
(i) assist in calculating and maintaining wage and salary records;
(j) assist with administrative functions;
(k) implementing client skills and activities programmes under limited supervision either individually or as part of a team as part of the delivery of disability services;
(l) supervising or providing a wide range of personal care services to residents under limited supervision either individually or as part of a team as part of the delivery of disability services;
(m) assisting in the development or implementation of resident care plans or the planning, cooking or preparation of the full range of meals under limited supervision either individually or as part of a team as part of the delivery of disability services;
(n) possessing an appropriate qualification (as identified by the employer) at the level of certificate 4 or above and supervising the work of others (including work allocation, rostering and providing guidance) as part of the delivery of disability services as described above or in subclause B.1.2.
B.2.3 Requirements of the position
Some or all of the following are needed to perform work at this level:
(a) Skills, knowledge, experience, qualification and/or training
(i)basic skills in oral and written communication with clients and other members of the public;
(ii)knowledge of established work practices and procedures relevant to the workplace;
(iii)knowledge of policies relating to the workplace;
(iv)application of techniques relevant to the workplace;
(v)developing knowledge of statutory requirements relevant to the workplace;
(vi)understanding of basic computing concepts.
(b) Prerequisites
(i)an appropriate certificate relevant to the work required to be performed;
(ii)will have attained previous experience in a relevant industry, service or an equivalent level of expertise and experience to undertake the range of activities required;
(iii)appropriate on-the-job training and relevant experience; or
(iv)entry point for a diploma without experience.
(c) Organisational relationships
(i)work under regular supervision except where this level of supervision is not required by the nature of responsibilities under B.2.2 being undertaken;
(ii)provide limited guidance to a limited number of lower classified employees.
(d) Extent of authority
(i)work outcomes are monitored;
(ii)have freedom to act within established guidelines;
(iii)solutions to problems may require the exercise of limited judgment, with guidance to be found in procedures, precedents and guidelines. Assistance will be available when problems occur.
Directions for the filing of material were issues on 21 December 2022. The material filed by the parties was received, collated into a digital court book, and distributed to the parties prior to the hearing.
I have given appropriate weight to the received material after an assessment of its character (e.g. hearsay, opinion evidence, or submission) and its relevance.
The hearing was held on 17 January 2023, by teleconference. As both Ms Thacker and Partnership Builds were unrepresented and unfamiliar with Commission processes, the hearing was conducted by way of determinative conference.
Ms Thacker represented herself and Ms Simone Fusaro represented Partnership Builds. Both persons were affirmed and gave evidence about the duties undertaken by Ms Thacker as it related to the classification structure contained in the Award. No issues of credit arise.
The key differences between Level 1 and Level 2 are as follows
| Activity | Level 1 | Level 2 |
| Level of supervision | Close direction | General guidance |
| Activities | Routine | A range of activities |
| Scope of work | Clearly defined activities | Function defined by established routines, methods and procedures |
| Level of discretion | Limited by standards/procedures | Has understanding of work procedures |
| Training | Employer to provide substantial training | |
| Supervision of others | Nil | May assist lower-level staff or volunteers |
| Time Management | Self-managed | Self-managed, and may oversee or guide others |
I note that Level 1 is applied to internal recruits with limited relevant experience. It appears to be an entry level.
The relevant evidence is summarised below.
The location at which Ms Thacker performs her work generally hosts two employees. The two employees are generally similar in status. It does not appear that one employee supervises the other. The two employees generally work autonomously but on occasion may assist each other. Ms Fusaro confirmed at the hearing that she is Ms Thacker’s supervisor but advised that she did not work at the same location as Ms Thacker.
This evidence does not support the contention that Ms Thacker works under close direction. I find that Ms Thacker works under general guidance.
In terms of the performance of tasks, it appears that the activities to be performed by Ms Thacker are clearly defined by procedures, however there is some level of initiative required.
In terms of the level of discretion to be exercised, it appears that Ms Thacker is required to have an understanding of work procedures relevant to her work area.
Ms Thacker is not required to supervise other staff.
Ms Thacker is responsible for her time management, ensuring that the relevant tasks are completed during the shift, but does not appear to provide assistance or supervision to lower classified employees or volunteers.
The final matter is the level of training. Level 1 requires the employer to offer substantial training. It appears that after the completion of Ms Thacker’s intensive training (including buddy shifts) on or about 18 August 2022, no further training has been provided. Other than where new equipment or processes are introduced, no further training is planned. The lack of substantial training is an indicator that Ms Thacker has progressed to Level 2.
Conclusion
My consideration of this matter is limited to the factual circumstances concerning Ms Thacker.
Having considered my factual findings against the characteristics of social and community services employee classification Level 1 and Level 2 as dictated by Schedule B.1 and B.2 of the Award, I find that Ms Thacker performed the duties of a Level 2 employee from the completion of her intensive training, which occurred on or about 18 August 2022.
I recommend that Partnership Builds pay Ms Thacker in accordance with that classification. Any disputes as to the payment of wages may be directed to the South Australian Employment Tribunal.
COMMISSIONER
Appearances:
T Thacker, the Applicant.
S Fusaro for the Respondent.
Hearing details:
2023.
Adelaide (by teleconference):
January 17.
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