[2019] FWC 3896

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Toby Tucker
v
State of Victoria
(C2017/3152)

COMMISSIONER BISSETT

MELBOURNE, 27 JUNE 2019

Application to deal with contraventions involving dismissal Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] Mr Toby Tucker is a Senior Solicitor (VPS Grade 5 VR 2) in the Customer Services and Debt Management Branch (CSDM Branch) at the State Revenue Office (SRO) in the Department of Treasury and Finance (DTF). He has applied to the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute resolution procedure of the Victorian Public Service Enterprise Agreement 2016 1 (2016 Agreement). The application is made pursuant to s.739 of the Fair Work Act 2009 (FW Act) and was made on 13 June 2017. The Respondent to the dispute is the State of Victoria (State). Throughout the decision I have referred to Mr Tucker’s employing agency as “SRO”.

[2] In his notification of dispute to the Fair Work Commission (Commission) Mr Tucker raised two issues on which he said he was in dispute with SRO, the first being the correct classification of the position he occupies and the second going to pay progression in conjunction with misconduct processes.

[3] Prior to the hearing of the application Mr Tucker wrote to the Commission and indicated that he sought only to have the classification matter dealt with at this time and that the progression dispute should be held in abeyance pending the finalisation of a related matter before the Supreme Court of Victoria. In this respect this decision will not resolve the totality of the dispute between Mr Tucker and the State but only part of that dispute.

[4] Prior to the hearing I granted permission to both Mr Tucker and the State to be represented by a lawyer.

MATTERS BEFORE THE COMMISSION

[5] The immediate matters before the Commission for resolution in relation to the classification question as articulated by Mr Tucker are:

1. Does the Commission have jurisdiction to arbitrate the dispute between the Applicant and the Respondent, in so far as the dispute arises under the terms of the:

a. Victorian Public Service Workplace Determination 2012 (VPS Determination); and

b. Victorian Public Service Agreement 2006 (as varied and extended on 10 July 2009 in an order which came into force on 30 June 2009) (VPS Agreement 2006)?

2. Under the Victorian Public Service Enterprise Agreement 2016 (VPS Agreement) (and, if jurisdiction exists, under either or both of the VPS Determination 2012 and the VPS Agreement 2006):

a. Was, and has, the Applicant’s position been correctly classified as:

i. Victorian Public Service (VPS) Grade 4 “Legal Officer” from the relevant date to 3 October 2013; and

ii. VPS Grade 5 “Senior Solicitor” from 4 October 2013?

b. If the answer to question 2(a)(i) or 2(a)(ii) is no, what was/is the appropriate classification of the Applicant’s position being either a VPS Grade 5 “Senior Solicitor”, a VPS Grade 6 “Principal Solicitor” or a VPS Grade 7 “Senior Technical Specialist”.

[6] The first matter to be resolved goes to jurisdiction of the Commission whilst the second is the substantive dispute as to the correct classification of Mr Tucker.

WITNESSES

[7] Mr Tucker filed two witness statements, one dated 30 August 2018 2 and a statement in reply dated 2 November 2018.3

[8] Mr Jonathan Kerr provided a witness statement 4 in support of Mr Tucker. He was not required for cross-examination.

[9] Evidence was given for the State by:

• Mr Paul McKee, Digital Duties Program Leader, Operations Division, State Revenue Office Victoria (written statement dated 8 October 2018 5);

• Mr Graham George, Team Leader, Customer Services and Debt Management Branch, State Revenue Office Victoria (written statement 8 October 2018 6);

• Mr David Heywood, Project Manager, Human Resources, State Revenue Office Victoria (written statement 8 October 2018 7);

• Mr John Cahir, Team Leader, Legal Team, Customer Services and Debt Management Branch, State Revenue Office Victoria (written statement 8 October 2018 8);

• Ms Tracey Gittins Acting Branch Manager, Human Resources, State Revenue Office Victoria (written statement 8 October 2018 9); and

• Mr Don Di Federico, Branch Manager, Investigations Branch, Compliance Division, State Revenue Office Victoria (written statement 8 October 2018 10) who was not required for cross-examination.

JURISDICTION

[10] There is no dispute between the parties that the Commission has jurisdiction to deal with the classification dispute pursuant to the dispute settling procedures of the 2016 Agreement.

[11] Mr Tucker commenced his employment with SRO on 28 November 2011. At that time the Victorian Public Service Enterprise Agreement 2006 (as extended and varied) (2006 Agreement) applied to his employment. On 23 July 2012 the 2006 Agreement was replaced by the Victorian Public Service Workplace Determination 2012 (2012 Determination) and from that time it applied to Mr Tucker’s employment. On 18 May 2016 the Victorian Public Service Enterprise Agreement 2016 (2016 Agreement) came into operation and applied to Mr Tucker’s employment.

[12] Clause 12 of the 2016 Agreement, clause 11 of the 2012 Determination and clause 10 of the 2006 Agreement allow for matters arising under each to be dealt with in accordance with the detailed dispute settlement procedure. Each clause indicates that a dispute includes a grievance. A grievance is not otherwise defined in the Agreements or 2012 Determination.

[13] Clause 7.5 of the 2012 Determination provides that:

7.5 A dispute or grievance that is being considered pursuant to clause 10 of the 2009 Extended and Varied Version of the Victorian Public Service Agreement 2006 at the time this Determination is made by FWA may continue to be considered pursuant to clause 11 of this Determination.

[14] The effect of clause 7.5 of the 2012 Determination is that a dispute properly raised in accordance with the requirements of clause 10 of the 2006 Agreement that is being considered can continue to be dealt with in accordance with clause 11 of the 2012 Determination. A grievance is not otherwise defined.

[15] Clause 6.4 of the 2016 Agreement states that:

6.4 A dispute or grievance that is being considered pursuant to clause 11 of the Victorian Public Service Workplace Determination 2012 at the time this Agreement commences operation may continue to be considered pursuant to clause 12 of this Agreement.

[16] The effect of clause 6.4 of the 2016 Agreement is that a dispute properly raised in accordance with clause 11 of the 2012 Determination that is being considered can continue to be dealt with under clause 12 of the 2016 Agreement.

[17] The effect of these savings clauses is not to preserve the “old” dispute resolution clause or any aspect of the old agreement or determination but rather to allow the dispute to continue to be dealt with under the later dispute resolution procedure. The effect of each of these clauses is that a dispute properly raised under the 2006 Agreement may be “preserved” through the 2012 Determination and able to be dealt with under the 2016 Agreement.

[18] The savings clauses are relevant to the matter before me as Mr Tucker claims that he raised the classification dispute “within weeks” of commencing in his role with SRO on 28 November 2011. If he is correct then the dispute was raised in accordance with clause 10 of the 2006 Agreement and has continued uninterrupted since that time through the 2012 Determination and now continues to be dealt with in accordance with the 2016 Agreement.

[19] The resolution of the time Mr Tucker did raise his dispute is relevant to the relief he is entitled to.

[20] Classifications are dealt with at clause 23 of the 2016 Agreement, clause 21 of the 2012 Determination and clause 20 of the 2006 Agreement. Each of the Agreements and the Determination contain detailed classification descriptors.

[21] The dispute can be characterised as a dispute as to the correct classification of Mr Tucker. Regardless of when the dispute was raised I am satisfied that the dispute is about a matter arising under whichever of the 2006 Agreement, 2012 Determination or 2016 Agreement was in operation at that time the dispute was raised

The 2011 dispute

[22] I am satisfied that Mr Tucker raised the classification of his position within weeks of his commencement with SRO (the 2011 dispute). I am also satisfied that this dispute was finalised in October 2013 when Mr Tucker was appointed to the reclassified position of VPS Grade 5.

[23] I have reached this conclusion because Mr Tucker did nothing to convey that he was not content with the proposed resolution of his reclassification dispute in October 2013 when he was successful in being appointed to the reclassified position.

[24] Mr Tucker agreed in his evidence that the reclassified position was advertised internally, he applied for it and was successful in gaining it. He was appointed to the position and received a letter of appointment dated 4 October 2013.

[25] Mr Tucker gave evidence that he continued to agitate for a reclassification of his position after this date. He could not recall exactly when or where he continued such agitation but “[i]t could have been at the pub, it could have been in the office.” 11 He said that he expected his managers to act on such agitation. To the extent that he raised the matter as vaguely as his evidence suggests, I do not consider that this constitutes a continuation of his 2011 dispute.

[26] Whilst employees may legitimately have a chat at the pub or around the office of matters on which they are not satisfied within the workplace a more formal approach needs to be taken if an employee wishes some formal and considered action to be taken about that matter on which they are aggrieved. I am not satisfied that Mr Tucker did so and am therefore satisfied that the classification matter raised in late 2011 was resolved in 2013. I certainly reject any notion that raising the matter at the pub as described by Mr Tucker constitutes raising a grievance.

[27] The 2012 Determination commenced on 23 July 2012, prior to that date I find the 2011 classification dispute was resolved. I am not satisfied that a dispute or grievance was raised pursuant to the dispute settling procedure of the 2006 Agreement prior to 23 July 2012.

The current dispute

[28] Mr Tucker’s evidence is that the next time he raised his dispute with respect to the classification of his position was on 27 August 2014 when he submitted his mid-yearly review to Mr George, his Line Manager. He says that Mr George replied in March 2015 that Mr Tucker should make a formal application for reclassification. 12

[29] It is apparent that on 26 May 2015 Mr Tucker put forward a proposal to Mr McKee for a reclassification of his position from VPS Grade 5.2 to VPS Grade 7.3A [sic] Senior Technical Specialist. I am satisfied that Mr Tucker prepared this proposal in response to a comment by Mr George in his PDP that he was “entitled to lodge a job reclassification review at any stage, provided it is supported by appropriate evidence…” 13

[30] The covering email to which the 26 May 2015 proposal was attached said:

Hi Paul,

As discussed, please find attached:

1. a cover letter to my application for a reclassification of my role (application)

2. letters of support...

3. my CV

4. Recommendation for Reclassification of Position/Review form

5. Updated Position Description

6. DRAFT application for reclassification of the role (please note that I would like assistance in completing this)

I’d like to workshop the application with you to ensure a fair and transparent appraisal of this application... 14

[31] Mr Tucker was then on personal leave until 14 August 2018. He did not meet with or speak to Mr McKee about the email and associated material before proceeding on that leave.

[32] On return from leave Mr Tucker says he saw Mr McKee and sought an update on the reclassification claim he had lodged on 26 May 2015. He says he was told by Mr McKee that if he pursued the matter the reclassified position would be advertised and he would have to apply for the reclassified position. He says that when he asked Mr McKee what he should do about the claim he was told to “go up the chain” which he took as an indication he should raise the matter with Mr Broderick, Commissioner of SRO or Mr Martine, Secretary of DTF.

[33] Mr McKee said that on 14 August 2015, the day Mr Tucker returned from leave, he and Mr Cahir, Team Leader of the Legal Team in the CSDM Branch, had a brief meeting with Mr Tucker. Mr McKee says that Mr Tucker did not mention his draft application for a reclassification and denies that a conversation about it occurred on that day. He said the meeting was very brief and was about Mr Tucker’s return to work following his extended leave.

[34] Mr McKee said he attempted to have further meetings soon thereafter with Mr Tucker but Mr Tucker declined the electronic invitations. On 19 August 2015 Mr Tucker indicated that he was happy to meet with Mr McKee but asked that specific details of what was to be discussed be advised so he could properly prepare. Mr McKee subsequently provided an agenda of 13 items, including the reclassification issue but Mr Tucker again declined the invitation to meet. 15

[35] Mr Tucker ultimately forwarded his 26 May 2015 material to Mr Broderick who replied that Mr Tucker should progress the matter through his managers.

[36] Mr Tucker says he made a request for an internal review under Regulation 6 of the Public Administration (Review of Actions) Regulations 2015 (Review Regulations) on 21 August 2015. 16 In that request he sought that a determination be made on his reclassification claim articulated on 26 May 2015.

[37] On 9 October 2015 Mr Tucker made a request for review by the Victorian Public Sector Standards Commissioner under Regulation 8 of the Review Regulations because of a failure of the Regulation 6 request to be actioned. 17 Ms Megan Bonomi replied in relation to that matter on 11 December 2015. Her response was that “As advised in my letter of 11 September 2015, the appropriate avenue for redress is outlined in the SRO grievance policy” and that the matter had been lodged with Mr David Heywood, the HR Manager “as per the established process”.18

[38] Mr Tucker says that Mr Heywood acknowledged receipt of Mr Tucker’s documentation on 18 December 2015. Mr Heywood sent an email to Mr Tucker which said:

Good afternoon Toby

I recently received emails from DTF with attached documents relating to a recruitment process and a reclassification process. DTF have advised you to follow the processes under the SRO Grievance Resolution Policy (link) if you wish to pursue these matters. That Policy states that “All employees are required to cooperate in and contribute to the grievance resolution processes set out in this Policy...” It also states that “Grievances are to be resolved through informal processes of discussion or conciliation wherever this is practicable.” And that “An employee with a grievance must discuss the processes of discussion or conciliation wherever this is practicable.” And that “An employee with a grievance must discuss the grievance with his or her immediate supervisor or with the Human Resources Case Manager before lodging a formal grievance.” For your information, I am the HR Case Manager for the purposes of staff grievances. Should you wish to have your issues reviewed under the SRO’s Grievance Resolution Policy, you should contact me to arrange a meeting to discuss the SRO processes and to pursue informal resolution in the first instance as required by the Policy.

Thanks and regards

David Heywood 19

[39] On 18 December 2015 Mr Tucker sent a Regulation 7 Notice to Mr Martine in relation to the failure to determine the matter. 20

[40] On 21 December 2015 Mr Tucker responded to Mr Heywood that “the matters are not ‘grievances’ but are rather initial review applications…under the Public Administration (Review of Actions) Regulations 2005.” 21

[41] On the basis of this exchange I am satisfied that in December 2015 Mr Tucker had made an informed decision that the claim he made with respect to the classification of his position was not a dispute or grievance under the dispute settlement procedure of the 2012 Determination or a grievance under the SRO Grievance Policy (Policy). He actively decided to pursue a separate avenue by which to resolve his outstanding claim.

[42] Mr Tucker is a well-educated person. He holds a Bachelor of Laws, a Bachelor of Commerce, a Master of Laws and a Graduate Diploma of Legal Education Practice. 22 It could reasonably be expected that Mr Tucker was capable firstly of researching various means by which his matter might be resolved and, secondly, of understanding the implications of various options. I am satisfied that, on 21 December 2015 when he wrote to Mr Heywood, Mr Tucker had the wherewithal to appreciate the path he was following in relation to his reclassification. Mr Heywood had provided Mr Tucker with information in relation to pursuing a grievance over the matter and Mr Tucker, having received this information, specifically rejected that his issue was a grievance. I am therefore not satisfied that Mr Tucker had, at this stage, invoked the dispute settling procedures under the 2012 Determination in that he had not raised a grievance.

[43] Whilst there were further exchanges between Mr Tucker and the Victorian Public Service Commissioner regarding his applications under the Review Regulations in early 2016 in none of these did he suggest the matters he raised were a “grievance” within the meaning of the Policy or the 2012 Determination.

[44] Mr McKee’s evidence is that he attempted to set up a meeting with Mr Tucker on 20 November 2015. Mr Tucker declined the meeting request. Mr McKee said that Mr Tucker did come into his office early that day when he told Mr Tucker that he wanted to discuss the reclassification with him. Mr McKee said to Mr Tucker “I am not supportive of recommending the Senior Solicitor role for reclassification from Grade 5 to Grade 7.3A.” He said Mr Tucker responded by saying that he no longer wished to discuss the application with Mr McKee. 23 Mr McKee confirmed this with Mr Tucker in writing and made a file note to this effect.24 Whilst Mr Tucker said he did not recall receiving the email from Mr McKee I am satisfied that it was sent to him by Mr McKee and, for this reason, I am satisfied that Mr McKee did tell Mr Tucker on 20 November 2015 that he did not support the reclassification.

[45] Mr Cahir gave evidence that on 5 May 2016 he received an email from Mr Tucker which had attached to it the material in relation to the reclassification claim he had sent to Mr McKee on 26 May 2015. Mr Cahir followed the matter up with Mr McKee who advised him that the matter had been finalised in November 2015 when Mr McKee told Mr Tucker he would not support the application for reclassification. Mr Cahir confirmed this in writing to Mr Tucker. 25

[46] Whilst Mr Tucker chose to pursue the non-finalisation of his classification demands in 2015 through the Review Regulations, this does not fully answer if his disagreement with the SRO was, in any event, a “grievance” that had been raised for the purposes of the dispute settlement procedure of the 2012 Determination.

[47] The dispute settlement procedure in the 2012 Determination states that the dispute (grievance) must first be discussed between the employee and employer. If a party to a dispute refers that dispute to an internal dispute resolution process the matter must be dealt with in accordance with that process provided it is dealt with as expeditiously as possible. Following this the dispute may be referred to “FWA” (the Commission) for conciliation.

[48] However, just because a person has a grievance does not mean that the grievance has been raised with the employer in accordance with the dispute settlement procedure of the relevant agreement. The reference to the dispute settlement procedure applying to grievances does not absolve an aggrieved person from the responsibility to raise the dispute in accordance with the procedure. The reference to grievance is to ensure that, should a grievance be referred to the dispute settlement procedure, jurisdiction exits to deal with it.

[49] In this case Mr Tucker said that the matters in relation to his classification claim were not a grievance (such that the internal grievance process might be utilised to try and resolve that dispute). Given Mr Tucker disavowed that the matter was a grievance it is difficult to see how it could be a grievance such that the dispute settlement procedure in the 2012 Determination applied to it. Even if it was I am not satisfied that Mr Tucker sought to bring that grievance within the purview of the dispute settlement procedure. I reach this conclusion because in November 2015 Mr Tucker told Mr McKee he no longer wished to discuss the matter with him and there is no evidence that he did, at that time, seek to refer the matter elsewhere.

[50] In this case where Mr Tucker had the opportunity to formalise his grievance and to have it dealt with through the internal grievance process he not only chose not to but disavowed that the matter was a grievance. Further, at no stage did Mr Tucker seek to have his matter dealt with in accordance with the dispute settling procedures of the 2012 Determination. Rather, he made a deliberate decision to deal with his matters through the various Review Regulations. I do not accept that it can now be maintained that those efforts constituted the raising of a dispute or grievance under the dispute settlement procedure of the 2012 Determination.

[51] I accept that the dispute settlement procedure in the 2012 Determination is broad and designed to capture both collective disputes and individual grievances. However, a party must take some positive action to activate the process contained therein. Mr Tucker not only failed to do so but eschewed the characterisation of his claim as a grievance such that it might have been captured. While this might not have been what he intended it is what he has done and it is not within my power to undo such an error.

[52] On Mr Tucker’s evidence it was September of 2016 before he took any further action in relation to his reclassification.

[53] On 29 September 2016 Mr Tucker lodged with Mr Heywood a 65 page document titled “Lodgement of Review of Actions/Grievance”. 26

[54] The letter to Mr Heywood on 29 September 2016 commenced:

Lodgement of Review of Actions/Grievance

RE: Mr T Tucker, Senior Solicitor, State Revenue Office

1. This is a grievance, formally referred to as a “Review of Actions”, lodged in accordance with Regulation 6 of the Public Administration (Review of Actions) Regulations 2015 (Regulations).

2. I lodge this grievance with you as per your directions and advices for the purposes of the Regulations and the Public Administration Act 2004 (Vic)...

[Underlining added]

[55] That document, on Mr Tucker’s evidence, disputed the continuing failure of SRO to classify his role appropriately (amongst other things).

[56] This is the first time, clearly identifiable, Mr Tucker raised the failure to progress his reclassification as a “grievance”. When he had the opportunity to do so in December 2015 Mr Tucker expressly denied that the failure to progress his reclassification claim was a grievance.

[57] The covering letter to Mr Heywood of 29 September 2016 is to be contrasted with the covering letter in the Review of Actions application made by Mr Tucker on 21 August 2015 and 9 October 2015.

[58] The letter to Mr David Martine on 21 August 2015 commenced:

This is an application …under Regulation 6 of the Public Administration (Review of Actions) Regulations 2005… 27

[59] The letter to Ms Belinda Clarke QSO, Public Sector Standards Commissioner, of 9 October 2015, commenced:

Regulations 8 Review of Applications – State Revenue Office (SRO)

…

1. This is an application …under Regulation 8 of the Public Administration (Review of Actions) Regulations 2005… 28

[60] I am satisfied that Mr Tucker submitted the material to Mr Heywood on 29 September 2016 as a grievance and that this was the first time he indicated that it was a grievance and he wished to have it treated as such.

[61] The 2012 Determination ceased operating on 17 May 2016 and the 2016 Agreement commenced on 18 May 2016. I am therefore satisfied that Mr Tucker did not raise his grievance under the 2012 Determination. There was, therefore, no dispute or grievance to be “saved” by the savings provision of the 2016 Agreement.

[62] I am therefore satisfied that the dispute arose under the 2016 Agreement. This is not to deny that Mr Tucker raised the issue of the classification of his position in 2011 and 2015. The 2011 dispute resulted in a reclassification. The 2015 reclassification was rejected by Mr McKee and pursued by Mr Tucker through alternative means. While I accept that the grievance dealt with pursuant to the dispute settlement procedure of the 2016 Agreement is the same as that raised in 2015, that Mr Tucker raised the matter first in 2015 does not mean that, from that time, it was a dispute or grievance raised in accordance with the dispute settlement procedure of the 2012 Determination.

[63] I am therefore satisfied that the “grievance” was properly raised in September 2016 and is before the Commission pursuant to the dispute settlement procedure of the 2016 Agreement.

[64] The dispute can be characterised as a dispute in relation to the appropriate classification of Mr Tucker’s role of Senior Solicitor in SRO pursuant to the 2016 Agreement.

THE RECLASSIFICATION CLAIM

[65] Positions within the VPS structure are classified according to Grade (Grades 1, 2, 3 etc) and within each Grade to a Value Range (VR1, VR2). Employees or positions can move between the value ranges based, in part, on performance of the work of the position. There are classification standards for each grade and for the value ranges within a grade. The legal officer structure is aligned to the VPS structure.

[66] The substance of Mr Tucker’s reclassification claim is set out in his correspondence of May 2015. In his grievance letter sent to Mr Heywood on 29 September 2016 Mr Tucker complains that “a reclassification application lodged on 26 May 2015 has been ignored.” On 26 May 2015 Mr Tucker sought a reclassification to a “VPS Grade 7.3A”. 29

[67] Mr Tucker’s claim now is that the position he occupies should be reclassified as a VPS Grade 7 or alternatively as a VPS Grade 6 or alternatively as a VPS Grade 5. In his witness statement Mr Tucker says that his position ought to have been classified as a VPS Grade 7.2 or alternatively VPS Grade 6.2 or alternatively VPS Grade 5.2 30 - that is at the higher VR of the Grade.

[68] The first assessment necessary is if Mr Tucker’s position sits within the description for a particular Grade at VR 1. If his position is not classified within the lower VR of a Grade it will not be classified at the higher VR of that Grade.

[69] The classification standards relevant to the claim of Mr Tucker form part of the 2016 Agreement. 31

The approach to determining classification

[70] In Hufton v State of Victoria – Department of Justice – Consumer Affairs 32 (Hufton) the Commission found that:

[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.

[71] It was also found that:

[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…

[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.

[72] The decision in Hufton is consistent with the decision in Sim v LUO Enterprise Pty Ltd (No 2) 33 where Federal Magistrate O’Sullivan said:

126. In Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union (1998) 29 IR 263 at 275, a Full Court of the Federal Court adopted a test to determine this sort of question as one based on whether the employee was engaged substantially in the duties of the relevant classification.

127. The principle generally applied to determining whether an employee is engaged in a particular classification or class of work has been referred to as “the principle of major and substantial employment”.It has also been referred to as the “principal purpose” test. It was described by Sheldon J in Ware v O’Donnell Griffin (Television Services) Pty Ltd (1971) AR (NSW) 18 in the following terms:

This principle is almost as old as industrial arbitration and it makes a practical approach to determining the application of awards where duties are of a mixed character and certain elements which taken alone would be covered by more than one award. This is not an appropriate occasion on which to discuss the method by which this test should be applied expect to say that it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.

128. These principles have been applied in cases in the federal jurisdiction and I am satisfied are applicable in this case…

[footnotes omitted]

[73] Given Mr Tucker’s claim it is necessary to consider the functions required to be carried out by Mr Tucker against the position descriptors for each of the levels in the VPS structure relevant to legal officers. 34

[74] Mr Tucker has been classified as a VPS Grade 5 “Senior Solicitor” since 4 October 2013. There is no submission that he is over classified in his current role. He has been classified at this level since 2013 and, as this dispute did not properly arise until 2016, I am satisfied that I do not need to determine if he is correctly classified at that level or if he should have been classified at a VPS Grade 5 since he commenced in November 2011. I would observe that, on the evidence before me it is not possible, in any event, to determine a classification in 2011.

[75] The task before me is to determine if Mr Tucker should be classified as a VPS Grade 6 or Grade 7. In determining the appropriate classification it is necessary to have regard to the work requirements of the position. How well Mr Tucker does his job is not the issue under consideration nor is it a relevant input in deciding the correct classification of the role he performs. This is because it is the requirements of the position that must be evaluated and that evaluation should be the same regardless of who occupies the position. Mr Tucker, as an individual, could only be relevant to the classification if he is given particular responsibilities not normally required of the position, because of some specific requirement of the employer, or if he performs at the VR level specified.

[76] Mr Tucker seeks to rely on the decision in Choppair Helicopters Pty Ltd v Bobridge 35 where Bromberg J said:

71 Ms Bobridge’s work of actually flying helicopters, together with the requirement that she be available to fly as and when required and the other pilot’s work or work closely connected thereto must be regarded as substantial. Taking into account the quality of that work, given the importance of it relative to other duties performed, as well as the high level of skill involved and weighting that appropriately, the better view is that pilot work was the major or substantial aspect of Ms Bobridge’s work. In those circumstances, although the primary judge took a different approach, his Honour’s conclusion that the helicopter pilot classification in Schedule E of the AP Award was appropriate and applicable should not be disturbed.

[77] I do not disagree with his Honour and his conclusion in that case. That case however provides no support for the position put by Mr Tucker. In that matter the dispute went to whether Ms Bobridge’s employment was covered by the Airline Operations – Ground Staff Award 2010, the Clerks – Private Sector Award 2010 or the Air Pilots Award 2010 in circumstances where she undertook administrative work and helicopter piloting work. I do not accept that the decision went to how well the person was doing their job. In the particular factual circumstances of the case it was recognised that it was the highest function performed that could and should determine the award coverage. It could only be relevant to the matter before me if there was some conflict as to the appropriate classification structure of Mr Tucker’s position but that is not the matter in dispute. It is accepted that Mr Tucker is a legal officer – the dispute is the appropriate level of the role.

[78] Consistent with the principals in Hufton the determination of the correct classification of Mr Tucker’s position must be based on the highest function performed on a regular basis which forms a substantial component of the position. That is, the outliers (both higher and lower level functions) should not be given more weight than warranted given the time spent on them.

[79] The determination of the requirements of Mr Tucker’s role must be undertaken objectively based on the evidence before the Commission. Such a determination by the Commission requires consideration and evaluation of the evidence. That evidence includes the position description that has applied to Mr Tucker’s role since 2015. That Mr Tucker may assert particular requirements of his position does not make them so.

[80] The position descriptors for a Senior Principal Solicitor and Principal Solicitor VPS Grade 5 and VPS Grade 6 are aligned against:

• Litigation;

• Advice work;

• Legislative drafting; and

• Legal drafting.

[81] I accept that it is unlikely that it is expected that a legal officer would be engaged in each of these areas of activity. It would be unusual, for example, to expect a legal officer to be undertaking legislative drafting and to be doing litigation work, least of all because the different work would be undertaken by different arms of the bureaucracy. That a legal officer position might not be involved in one or more of the specific areas does not discount that role from classification at any particular level. Rather, as mentioned above, the requirements of the position as they align in each of these four areas must be evaluated.

[82] The Senior Technical Specialist level (VPS Grade 7) is aligned against five key descriptors:

• Decision making;

• Accountability and frameworks;

• Innovation and originality;

• Communication; and

• Knowledge and proficiency.

[83] The key descriptors against which a VPS Grade 7 is assessed suggests some strategic shift in the role of the Senior Technical Specialist from the general descriptors of Grade 6 and below.

What are the requirements of Mr Tucker’s role?

[84] Mr Tucker is employed in the position of Senior Solicitor VPS Grade 5 in the CSDM Branch of the SRO.

[85] The current position description 36 of the role provides the following:

Primary Purpose

The Debt Management Branch has responsibility for all aspects of debt management, debt reporting and the collection of outstanding revenue on behalf of the SRO. Specifically, the role enforces and undertakes prosecutions of particularly litigious complex and sensitive recovery matters.

The role also provides qualitative and authoritative advice and opinions on complex or difficult debt recovery and insolvency matters. It also conducts litigation undertaken by the Branch including case preparation, formal Court appearances and briefing counsel/instructing at hearings.

Key responsibilities

• Appear as an advocate for the Commissioner in contested proceedings in the Supreme Court of Victoria, Magistrates’ Court of Victoria and Federal Court of Australia.

• Independently manage complex revenue recovery cases, including negotiating with taxpayers and their representatives at a senior commercial level.

• Instruct and Brief Counsel in complex and/or sensitive matters.

• Provide legal advice to management on recovery cases including assessing claims for voidable transactions under the Corporations Act 2001.

• Provide authoritative advice to Branch Management and Executive on critical issues relating to Acts administered by the SRO and other sensitive matters.

• Advise management on the development of recovery policies and changes in the law affecting debt recovery procedures.

• Provide advice and recommendations to management on preferred litigation options including signing certificates required under the Civil Procedure Act 2010.

• Provide advice to Branch staff in legal aspects of debt recovery.

• Enter and maintain accurate statistical information in SRO’s business systems.

• Mentor Recovery Officers on required legal action/s for recovery cases, and provide mentor support and advice to the Solicitor Level 3 in their role.

[86] That position description was revised and approved in August 2013 (when the position was upgraded from a VPS Grade 4 to VPS Grade 5).

The evidence

[87] Mr Tucker’s evidence is that the position description does not fully state the volume of work done; the significant responsibility of the role including personal liability assumed under the Civil Procedure Act 2010 (Vic) for proceedings commenced or defended; the necessary significant legal knowledge and experience required; the impact of the role on the Victorian taxation regime; the fiscal position of the State of Victoria and the taxpayers; the high level of mentoring and formal supervision required and the challenging nature of the role including dealing with people in dispute with the SRO. 37

[88] Mr Tucker said, in his written witness statement, that:

26 At all material times, the work I did, which was required by the role, included:

(a) conducting civil litigation in State and Federal courts on behalf of the Commissioner of State Revenue (‘the Commissioner’) including drafting legal documents such as pleadings, affidavits, certificates and notices under taxation laws;

(b) appearing as a solicitor advocate in the Supreme Court of Victoria, the Magistrates’ Court of Victoria, the Federal Court of Australia and the Federal Circuit Court of Australia, including trials and contested appearances;

(c) representing the Commissioner at mediations and pre-hearing conferences conducted at the Magistrates’ Court of Victoria;

(d) representing the Commissioner in negotiations with taxpayers and their legal representatives;

(e) mentoring and supervising junior lawyers at the SRO;

(f) briefing Counsel when required;

(g) providing legal advice to the Commissioner;

(h) developing proposals for, conducting, and implementing major legislative reforms including reforms to the Land Tax Act 2005 (Vic);

(i) ensuring that the Commissioner adheres to the highest ethical standards as set out in the State of Victoria’s Model Litigant Guidelines and the Civil Procedure Act 2010 (Vic) (‘CP Act’);

(j) providing leadership and guidance to the SRO based on advanced expertise in insolvency law and debt recovery litigation;

(k) signing legal documents on behalf of the Commissioner, including notices under the Taxation Administration Act 1997 (Vic) (‘TA Act’) and certificates under the CP Act;

(l) representing the Commissioner in his capacity as a creditor in the liquidation of companies and the bankruptcies of individuals; and

(m) representing the Commissioner in dealings with the Australian Securities and Investments Commission (‘ASIC’), the Australian Financial Security Authority (‘AFSA’), the Law Institute of Victoria (‘LIV’) and other external stakeholders as and when required.

[89] Mr Tucker says that since he commenced in 2011 he has held “the most senior legal role” in the CSDM Branch of the SRO. 38

[90] Mr Tucker said that work was not allocated to him by his managers but rather that there was a bucket of work that came through an internal database of debts. They would be “escalated up” and he would then allocate the work either to himself or to the junior solicitors in his team on the basis of their skills and capabilities. Other work came in the form of general correspondence or may be work referred to him by managers.

[91] Mr Tucker’s evidence is that he regularly appeared in contested proceedings in various Courts. He defines a contested proceeding as one where the other party has filed a notice of appearance, where the other party is self-represented or where the other party is represented. 39 Mr Tucker describes all insolvency and debt recovery proceedings as “trials”.40

[92] Mr Tucker conceded that in all of the appearances he has done in various Courts, only five to six instances came to mind when the Court reserved its decision. 41

[93] Mr Tucker agreed that a substantial part of his role was collecting debt on behalf of the SRO although said that, while this was “an important aspect…it was not the only aspect of [his] role.” 42 He distinguished this task from recovery of grants made under the First Home Owners Grant Act 2000 and preference claims which he said amounted to about 20-30% of his role.43

[94] Mr Tucker’s evidence is that he also provided legal advice to the Commissioner for State Revenue. He said that once every one to two months there was direct contact with the Commissioner but that he would also “draft memorandums recommending particular legal action that was addressed to the – it went to the Commissioner” that he “presumed” were done at the Commissioner’s request. 44 Mr Tucker said he would receive requests up to five times a day from the Commissioner although said that often this was to have the Commissioner sign off on the commencement of proceedings under the Civil Procedures Act (Vic) (CP Act) as this function was not delegated.45

[95] Mr Tucker says that his assessment of himself as an “advanced expert in insolvency law” is framed within the confines of the SRO and his knowledge of the ATO. He understands that he knows more about insolvency law than anyone else in the SRO. Mr Tucker said that this level of expertise was required of him from the day he commenced in the SRO.

[96] Mr Tucker agreed that the personal liability he carries under the CP Act is no different to that of any other solicitor in Victoria who signs a certificate under that Act.

[97] Mr Tucker said that over time his role had expanded. He said that in 2015 all government solicitors were required to have a practising certificate (not previously required) and he had to formally supervise junior staff and assist them to get admitted to practice law, to supervise paralegals and to sign CP Act certificates previously signed by the Commissioner.

[98] In his evidence Mr Tucker provided “work sheets” 46 he says he provided at work in relation to cases he worked on. His evidence is that he categorised each of the cases as “complex” or “not complex” (C or NC) based on whether they met at least one of a range of indicia. The indicia included the monetary value, if the matter was novel, and if it was opposed.47 Mr Tucker agreed that if a party was self-represented or represented by a lawyer he would consider the matter complex. Mr Tucker also considered that matters were complex if the party subject to proceedings was represented by Counsel.

[99] Mr Tucker agreed that at times his team leaders would attend meetings with directors, liquidators and the like. He said that it was not common place for them to do so and he would “try to drag them to creditor’s meetings” which sometimes they would attend. At other times he was directed to attend alone and would report back on the outcome and await further instructions. 48

[100] Mr Tucker said that he has been involved in “driving major legislative change” and that this has been through:

raising the issue with our policy team or the Commissioner himself directly on a case by case basis saying this is an issue, and these issues would often arise with the cases that I was running. And I would say, "This law is wrong. I think it should change. This is how you should change it. Here's my opinion. Here's my advice. If you need any help let me know", and often I will get requests for advice, "Please this is the draft". You know, my job wasn't to actually draft the legislation, but they'd say, "Well, this is the draft. Do you have any comments?" Yes, here's my comments, yes or no". "Can you please give me a memo and background as to why this change is necessarily so?", et cetera, which I did provide. 49

[101] Mr Tucker agreed that he was not involved in meeting with parliamentary drafters and that he did not engage in drafting proposed legislation himself.

[102] Mr Tucker also said that while his managers reported “up the chain” he was “steps ahead” of his managers in his understanding of legal issues.

[103] Mr Tucker agreed that there were times when he was in court when he would need to contact his managers to gain instructions on factual information but that in court he had to make the call on the basis of his instructions and the information before him.

[104] Mr McKee was Branch Manager of CSDM Branch from April 2013 to March 2018. He was a VPS Grade 6.2 with responsibility for 40 staff including four Team Leaders and a Project Officer who reported directly to him. Mr McKee said that for most of his time as Branch Manager, CSDM Branch had two customer service teams and two debt management services teams – a debt recovery/enforcement team and a debt legal team (in which Mr Tucker worked). The legal team had two to three solicitors. The legal team was engaged in “managing cases at the end of the debt recovery process, including the enforcement and recovery of debts owed to the State under the Corporations Act 2001 (Cth) or the Bankruptcy Act 1996 (Cth).” 50 He said that at any one time the legal team would have 100-200 cases on hand although not all were being worked on at any one time and that this was a “small percentage” of the approximately 60,000 debts sought to be recovered each year by the debt recovery team.

[105] Mr McKee gave evidence that Mr Tucker’s role, at the time of the 2013 reclassification was not exclusively litigation work. Although litigation formed part of his work it was not a substantial part of his work. Rather, Mr McKee said that Mr Tucker’s role was to resolve aged matters and that did not always require litigation. 51

[106] Mr McKee agreed that Mr Tucker was involved in negotiation of debts and that this was directed to the legal resolution of the matters. Mr Tucker was required to undertake a variety of legal and administrative tasks at the end of the debt recovery process. These tasks, he said, were carried out “as and when required” with some carried out rarely. The tasks carried out were:

11.1 negotiating the payment or resolution of outstanding debts, using appropriate legal methods, with taxpayers and their representatives;

11.2 responding to taxpayer or their representatives’ enquiries relating to the resolution of their outstanding debts;

11.3 overseeing service of legal documents, which could occasionally involve an innovation approach such as using Facebook or Skype;

11.4 undertaking (some) legal research by using legal databases, court websites, and other providers;

11.5 contributing to the development or improvement of legal recovery strategies, mostly for aged files. This might, for example, involve testing the SRO’s ability to use certain legislative power to recover debts.

11.6 liaising with the courts, insolvency practitioners, or other similar stakeholders, where necessary or appropriate for particular files.

11.7 keeping his Team Leader, Branch Manager, and where necessary the debt recovery team of the CSDM Branch up-to-date on his activities.

11.8 providing advice and opinions on debt collection legal strategies to his Team Leader, Branch Manager, and other CSDM Legal Team solicitors, if warranted;

11.9 drafting, preparing and filing any required notices or supporting material such as affidavits for court matters;

11.10 appearing for the Commissioner in the Supreme Court for general company wind-ups (usually 3-4 matters each Wednesday morning), and appearing in bankruptcy matters in the Magistrates’ Court or Federal Circuit Court (on average on matter per week, subject to available internal budget). The other CSDM Legal Team solicitors (VPS Grade 2 and 3) would also appear in these matters.

11.11 instructing barristers for more complex cases, where we decided to engage them;

11.12 keeping track of timelines and court dates for filing materials and responding to documents and notices received, mostly in related to the allocated debt legal files worked on;

11.13 assisting the Team Leader with legal mentoring support of the other CSDM Legal Team solicitors; and

11.14 providing legal advice to debt recovery staff within the CSDM Branch where required.

[107] Mr McKee was responsible for the reclassification of Mr Tucker’s position to VPS Grade 5 in 2013. In undertaking this task Mr McKee completed grade/value range descriptor checklists comparing Mr Tucker’s position against that for a VPS Grade 5 and VPS Grade 6. 52 He says that he ticked the “majority of boxes in the Grade 5 ‘Value Range 1’ and ‘Value Range 2’ checklist” and that he also ticked a “number of the VPS ‘Grade 6 Value range 1’ checklist”.53 He said that, as the VPS Grade 6 builds on the VPS Grade 5, it was difficult to properly assess the extent to which a person in Mr Tucker’s position might carry out Grade 6 work compared to Grade 5.

[108] Mr McKee gave evidence that as Branch Manager he was aware of the work required to be carried out in the role of Senior Solicitor (VPS Grade 5) performed by Mr Tucker. He said that over time “it became clearer…that the Senior Solicitor role, while exercising some autonomy in the types of files being completed, was essentially an informing role, rather than a decision-making role – it was a role that required the person to be across issues on the ground, and to run anything that was possibly contentious or problematic up the flag to the Team Leader or Branch Manager…for their views and decision-making capacity.” 54

[109] Mr McKee said that Mr Tucker was required to get approval prior to expending money (such as for filing signing off notices to be issued in court for winding up a company, signing off issuance of bankruptcy proceedings etc) as he did not have a financial delegation.

[110] Mr McKee agreed that Mr Tucker provided legal supervision to the more junior lawyers in the legal team 55 but said he had no role in managing or mentoring staff in the legal team otherwise.56

[111] Mr McKee gave evidence that there were “probably 4 or 5 cases [worked on by Mr Tucker] that were particularly controversial or complex over the years I worked as…Branch Manager – on average, one a year”. 57 He said that the decision-making for these cases (and non-opposed cases) was managed through discussions between the legal team, Team Leader and himself. He said discussions regularly occurred with the legal officer responsible for a file and with Senior Recovery staff who worked on debt recovery. From the meetings in which Mr Tucker was involved his opinion on how to proceed58 would be sought (and valued) but he would be provided with direction on how to proceed.

[112] Mr McKee said that as the Senior Solicitor it was expected that Mr Tucker would do the more complicated legal work with the less complex legal tasks going to the more junior solicitors in the team. Mr McKee said that just because Mr Tucker did the more complicated work this did not mean the work was necessarily complex.

[113] Mr McKee agreed that Mr Tucker appeared in the Supreme Court on a weekly basis but said he did not appear in the Supreme Court on contentious matters weekly. Mr Tucker was required to exercise his legal judgement in matters in the Supreme Court. 59

[114] Mr McKee agreed that Mr Tucker provided advice in relation to debt recovery and insolvency work.

[115] Mr McKee’s evidence is that the Mr Tucker:

• Only briefed Counsel following agreement that he should do so and a determination by Mr McKee of who should be briefed;

• Vary rarely provided advice directly to the Commissioner;

• Only once was involved in assisting in the consideration of legislative reforms;

• Signed certificates under the CP Act as part of his role.

[116] Mr Graham George was Mr Tucker’s Team Leader from May 2013 until August 2015. His evidence is that:

13. In the Senior Solicitor Position, the Applicant was responsible for conducting litigation to recover tax debts in the various Courts, namely the Supreme Court of Victoria, the Federal Court of Australia and Magistrates’ Court of Victoria. The Applicant was also allocated some cases that did not require court proceedings to be commenced or engaged in. By way of example, one type of matter that I would allocate to the Applicant was unfair preference payment claims lodged by insolvency practitioners, against the Commissioner, in respect of tax payments made by insolvent companies.

14. As the Applicant’s Team Leader, I allocated the Applicant cases to work on and the Applicant sought my direction and sign off as required, at various stages of the litigation. Typically this would involve the Applicant preparing and filing documents to commence proceedings as well as appearing on behalf of the Commissioner in Court in these matters. 60

[117] Mr George said that he allocated cases to the legal team but that Mr Tucker would decide which cases were allocated within the team.

[118] Mr George also said that Mr Tucker predominantly appeared in non-contested matters and that Counsel was generally engaged to appear in contested matters. He said that Mr Tucker did appear in some contested matters where it was considered not necessary to brief counsel. He agreed that Mr Tucker mentored and trained junior solicitors and was a source of legal advice.

[119] Mr George agreed that Mr Tucker’s work was independent but said that there would be “sign-off processes” along the way, meetings to discuss matters, consider prospects of winning, the need to brief counsel and so on. 61

[120] Mr George agreed that Mr Tucker appeared weekly in the Supreme Court. His evidence is that most of these issues were straight forward and that while Mr Tucker had appeared in some contentious matters since 2014 it was rare that counsel was not engaged for complex matters. 62

[121] Mr John Cahir is the Team Leader of the Legal Team in CSDM Branch. He has held that position since August 2015 when he took over from Mr George. He supervises three lawyers and four support staff. The lawyers are classified at VPS Grade 5, VPS Grade 4 and VPS Grade 3. Mr Tucker is the VPS Grade 5 Senior Solicitor.

[122] Mr Cahir said that as Senior Solicitor Mr Tucker was responsible for the preparation and filing of documents to commence court proceedings on instruction from his managers. The types of proceedings included winding up or reinstatement of corporations in the Supreme Court, bankruptcy of individuals in the Federal Court and applications for default orders in the Magistrates’ Court. He said that Mr Tucker (and other solicitors in the legal team) appeared in uncontested matters and that, depending on the complexity of the matter, Mr Tucker might appear in contested matters “although barristers were employed in the majority of contested matters.” 63 He said that the more junior lawyers in the team had developed their skills over time and were able to deal with the majority of winding up matters which allowed Mr Tucker to focus on unfair preference claims.

[123] Mr Cahir gave evidence that:

The Legal Team act under instruction from the Branch Manager and the 2 Team Leaders. Generally, this involves an authorised memorandum from the Recovery Team Leader requesting various litigation action to be commenced. In cases where bankruptcy action is recommended by the lawyers in the Legal Team, this needs to be authorised by the CSDM Branch Manager in a signed memorandum. Where an offer to settle a debt is made by a debtor to the lawyers in the Legal Team, the relevant lawyer would defer to me, as the Team Leader of the Legal Team, or the CSDM Branch Manager, for instructions. 64

[124] Mr Cahir said that the primary function of Mr Tucker was to resolve debts. He said that the role was not properly described as litigation but as debt resolution although agreed that litigation was the end point if the matter could not otherwise be resolved.

[125] Mr Cahir agreed that he did not supervise Mr Tucker’s legal work but that while Mr Tucker conducted his legal work independently, he received that work through Mr Cahir or the debt recovery team. Mr Cahir said that he worked with Mr Tucker to assess the complexity of incoming matters and the allocation of that work within the team. He said that if a matter was fairly complex he would speak to Mr Tucker and they “would brief a barrister”. 65

[126] Mr Cahir agreed that he would give instructions to Mr Tucker on behalf of the SRO. In this context Mr Cahir would give his opinion about whether proceedings should be commenced or if another way should be considered to resolve a matter. Having given instructions he said he would leave it to Mr Tucker to carry out those instructions. 66

[127] Mr Cahir agreed that Mr Tucker appeared weekly in the Supreme Court but said that counsel was briefed for contested matters. Mr Cahir gave evidence that when Mr Tucker commenced in 2011 “he was very energetic…he was tackling some fairly big ones [cases] on his own…”. Mr Cahir said this changed in June 2014 when Mr Tucker rang him from the Magistrates’ Court upset at attacks from his opposition. He expressed to Mr Cahir that he was doing things on his own and needed help. From then on Mr Cahir says the SRO has obtained the services of a barrister for contested matters and bankruptcies. 67

[128] Ms Tracey Gittins is Acting Branch Manager in SRO. She has been in this position for about 12 months. Prior to this she was the principal HR consultant in SRO. In this role in 2017 she undertook a classification review of the position occupied by Mr Tucker. In undertaking the review Ms Gittins assessed the Senior Solicitor position occupied by Mr Tucker against the VPS Grades and Value Range Descriptors for Grades 5, 6 and 7. Part of this task involved a comparison of the Senior Solicitor against positions in the Office of Public Prosecutions Victoria at the Grade 5 and Grade 6 level. Ms Gittins said she was unable to assess the complexity of Mr Tucker’s work so sought input from Mr McKee in this regard. Ms Gittins based her evaluation on the Senior Solicitor position description and the practical requirements of the role. In doing so she determined that the role more closely aligned with a VPS Grade 5 than Grade 6.

Assessment of the witnesses

[129] As I said above it is not Mr Tucker’s subjective opinions or beliefs that determine the work he was required to perform or the complexity of it. Rather, such an assessment must be made on an objective consideration arising from an evaluation of the evidence.

[130] Whilst Mr Tucker was sincere in the evidence he gave I found his evidence was designed to place him in a position of exaggerated importance. He had “significant” responsibility, “significant” legal knowledge was required, he provided a “high level” of “formal” supervision, he was an “advanced” expert, he drove “major” legislative change and there was a “challenging” nature to his role.

[131] Mr Tucker used such adjectives suggesting that there may have been “less challenging” roles with less responsibility or knowledge required elsewhere although provides no comparative information that would allow such an assessment to be made. Further, Mr Tucker relied heavily on his own subjective views of the importance and complexity of the work he did. It cannot be that because a party to proceedings appears to represent themselves or is represented by a friend or a legal practitioner that a matter is particularly complex or contentious yet this is how Mr Tucker described his work.

[132] That Mr Tucker exaggerated his case is also illustrated through what he said of providing advice to the Commissioner for State Revenue which I take as being designed to have me conclude that the Commissioner was in constant contact with him seeking his “expert” advice or opinion on legal strategies for debt recovery matters. That, prior to the matter being delegated, Mr Tucker was required to have the Commissioner sign off on CP Act certificates does not equate to the Commissioner regularly seeking legal (or any other) advice from Mr Tucker in the sense Mr Tucker seeks to convey nor does Mr Tucker drafting memos that he “presumed” were at the request of the Commissioner equate to the Commissioner seeking advice from him. This is not to undervalue the work of Mr Tucker but his exaggeration does not do him great service.

[133] Mr Tucker also sought to over emphasise the extent to which he operated in isolation of his managers though omission of reference to them, the instructions they gave and the discussions held on progressing matters. Problematic matters were discussed with his managers for their “decision-making capacity”. Further, Mr Tucker agreed that, while he attended creditors’ meetings, he would report back to his managers “and wait for further instructions.” This does not describe a person who works autonomously or without supervision. I accept that they did not and could not supervise Mr Tucker’s legal work but this does not mean he worked in isolation.

[134] The over-emphasis and exaggeration in Mr Tucker’s evidence suggests the need to treat his evidence with some caution in this regard. This is not to suggest his evidence should be ignored but the adjectives given lesser weight.

[135] That Mr Tucker’s evidence was consistent does not make it more credible than other evidence before the Commission. That does no more than suggest a long held and accepted reality of Mr Tucker.

[136] The evidence of Mr McKee, Mr Cahir and Mr George was consistent in the assessment of the work done by Mr Tucker although generally they were prone to understate the complexity, in particular of the court work undertaken by Mr Tucker. I found each of them however to be generally clear and credible with no animus towards Mr Tucker. I have, in the main, accepted their evidence except as otherwise stated.

[137] I have carefully considered the evidence of Mr McKee with respect to the assessment of Mr Tucker’s role against the VPS Grade 5 and VPS Grade 6 position leading to the 2015 reclassification of Mr Tucker’s position. I accept his evidence that in completing this task he erred on the side of generosity. It may well be that he has in this matter erred on the side of caution. I have, however, accepted his evidence where it is supported by the evidence of others. This evidence is informative but not persuasive.

[138] I have had regard to the assessment undertaken by Ms Gittins but only as an input into the totality of material I must consider. I do not take the assessment as persuasive. This is not to suggest that it is wrong or that errors were made in the assessment but rather is a reflection of the need for the Commission, having been given the task of determining the correct classification amongst three options, to determine that matter for itself. Further, the assessment of Mr Gittins does not provide the reasons for the conclusions she reached which is an integral part in determining the classification.

The primary tasks of Mr Tucker

[139] Mr Tucker’s primary tasks are discerned from the evidence before the Commission.

[140] In the main it seems to me that the key distinctions drawn between the witnesses goes to the level of complexity of the work undertaken by Mr Tucker, his level of autonomy and the extent to which he provided legal advice.

[141] I accept that Mr Tucker:

• Provided legal supervision (but not more general supervision otherwise) to junior solicitors in the legal team;

• Was responsible, at times, in consultation with the Team Leader, for the allocation of legal work amongst the solicitors (including himself) within the legal team;

• Acted on instructions from relevant managers at the SRO;

• Appeared weekly in the Supreme Court of Victoria and appeared in the Magistrates’ Court Victoria and Federal Court of Australia;

• Appeared as a solicitor advocate but also briefed counsel as required and as approved by his managers.

[142] I do not accept that a matter is complex because it is contested or because of the monetary figure involved. It seems to me that a variety of factors go to the determination of complexity. The broad-brush approach suggested by Mr Tucker does not provide the information necessary to decide which matters are complex.

[143] I do not accept that all of Mr Tucker’s court work was on complex cases. I do accept that the SRO did brief counsel as and when considered necessary following discussions between Mr Tucker and his managers. This is not to suggest that there were not occasions over the period of his employment where Mr Tucker has not undertaken complex legal cases. I should observe however that even if counsel was briefed to appear in the more complex matters this does not suggest Mr Tucker did not have carriage of such matters or was not responsible to ensure as he could a positive outcome for the SRO.

[144] I accept that in all litigation in which Mr Tucker was involved he was involved in determining the litigation strategy. I do not accept that he did this on his own. As he said he operated on instructions. I am confident that he provided advice to his managers but I am satisfied that they provided the final approval to proceed and he acted on those instructions. In proceeding with matters I am satisfied that Mr Tucker would have been involved, and primarily responsible for, the drafting of affidavit material and submissions although expect that if counsel was briefed counsel would be involved in settling those matters. Where counsel was not briefed I am satisfied that Mr Tucker would have conducted the advocacy.

[145] I accept that Mr Tucker, as a senior Solicitor in the SRO, considers much of the internal advice he provides as “legal advice”. Further, I accept that at times that legal advice was complex and/or involved some detailed consideration of the relevant legislation. That he responded to enquiries and gave an opinion on how a matter might be progressed in a meeting where cases were generally discussed does not elevate his advice to it necessarily being difficult or involving complex matters. Again, the form of the query asked of him and the complexity of the matter at hand will influence the difficulty of the advice he gave. That he was asked does not elevate a matter to complexity.

[146] I accept, based on the position description, that Mr Tucker was required to undertake prosecutions of particularly litigious complex and sensitive matters. This, however, does not mean he acted alone. As Mr George said in his evidence (and I accept) meetings were held, cases discussed and decisions made as to strategy and the engagement of counsel. There were sign-off processes in place. Mr Tucker was not left to run a case isolated from support or advice.

[147] I do not accept that Mr Tucker worked autonomously or in isolation of guidance and support although do accept that his legal work was not supervised by his managers.
[148] I accept that Mr Tucker provided authoritative advice internally. He was the Senior Solicitor in debt recovery and he has the expertise in this area of law.

Classification

[149] Based on these findings it is necessary to first consider Mr Tucker’s role against a VPS Grade 6 VR1 position.

VPS Grade 6

[150] The following is an analysis of Mr Tucker’s role as determined above against the descriptors for a VPS Grade 6 Principal Solicitor.

General

[151] At a broad level the descriptors state that a VPS Grade 6 (Principal Solicitor):

• May manage a small to medium legal office or area of major specialisation.

• Interprets the environment and makes decisions where there is limited precedent

• Roles at this level are expected to identify and respond to new and emerging legal issues and deal with more complex or sensitive matters within the field of expertise.

[152] I am satisfied that Mr Tucker did deal with the more complex or sensitive matters that came into the legal team. It makes sense that, as the Senior Solicitor, he would take the more complex cases. This alone is not determinative of whether the position should be a VPS Grade 6. I am not satisfied Mr Tucker manages a small to medium legal office or area of specialisation. Certainly he is the Senior Solicitor in a specialised area but there exist other layers of management above him.

[153] It is not apparent that Mr Tucker is required to “interpret the environment and make decisions where there is limited precedence and creatively applies concepts to new situations” or that he responds to new and emerging legal issues although I do accept that he is the most senior solicitor in his area.

Litigation

[154] Whilst Mr Tucker works on complex cases I am not satisfied that he works fully independent of guidance and advice from his managers. Further, the evidence does not support a finding that complex cases make up such a substantial part of his workload. I am satisfied that counsel is briefed on more complex matters and that, in this regard, legal support on complex matters is available to Mr Tucker.

[155] Mr Tucker does appear as a solicitor advocate in the Supreme Court. Whilst the criteria suggest that this should be in relation to “indictable matters which cannot be heard summarily” it is difficult to accept that only a solicitor involved in indictable matters could ever get through this hoop. I have not had regard to this factor because Mr Tucker does not have any opportunity to appear in such matters.

[156] I am satisfied that Mr Tucker develops briefs and advice. I am satisfied that he does, from time to time, provide high level advice in the specialised area of insolvency but as sought or in response to a particular case. This should be distinguished from advice on a proactive or strategic basis. I am also satisfied that he develops strategies, in consultation with the management team of CSDM Branch, for the management of complex legal proceedings.

[157] I accept that Mr Tucker is involved in litigation but accept that this is only part of the debt recovery process. Further, on Mr Tucker’s evidence, litigation was only one of a variety of functions he undertook.

[158] I am satisfied that Mr Tucker manages some internal stakeholders’ interests. I am not convinced he manages external stakeholders’ interests. 68

[159] My findings in this regard weigh against a finding the position is a VPS Grade 6.

Advice work

[160] I am satisfied that Mr Tucker provides authoritative advice internally on complex legal issues within the CSDM Branch. I am not convinced he provides authoritative written or oral advice on complex and challenging matters to external stakeholders.

[161] I am satisfied that, in consultation with the CSDM Branch management, Mr Tucker develops strategies for complex legal proceedings.

[162] This does not support a finding that the position should be classified a VPS Grade 6.

Legislative drafting

[163] I do not consider that Mr Tucker is required to undertake legislative drafting. That he does not meet any of this criterion (although he strained to suggest he does) is a neutral consideration.

Legal drafting

[164] The evidence before me does not allow me to conclude that Mr Tucker develops briefs on complex issues that provide definitive options. The evidence before me does not allow me to conclude that Mr Tucker prepares public communications.

[165] I am satisfied that, in conjunction with the management team, Mr Tucker formulates strategies to deal with highly complex matters but these are signed off by his managers.

[166] I am satisfied that Mr Tucker initiates legal research and analysis within his area of expertise.

CONCLUSION

[167] On the basis of these findings I cannot conclude that Mr Tucker’s role should be classified at VPS Grade 6 VR1. For this reason I cannot conclude that his role should be classified as VPS Grade 6 VR2 or VPS Grade 7.

[168] I am satisfied that Mr Tucker does work on some complex legal matters but the extent to which he does I consider over emphasised. While I appreciate that Mr Tucker has sought to provide some basis for his assessment of his work as complex or otherwise his subjective views do not assist me in the determination of his correct classification. Clearly he has worked on some complex matters but it appears that these are outliers in the substantial bulk of his work just as some of the simpler appearances in court might be.

[169] While I acknowledge that there was no one supervising Mr Tucker’s legal work this is not a basis alone on which his position could or should be classified at a VPS Grade 6 or Grade 7.

[170] I have briefly considered the descriptors for the Senior Technical Specialist Grade contained in the 2016 Agreement. I have done so, despite my view in Hufton that the descriptors build on each other grade to grade, because I accept that a person may be a technical specialist through an alternative pathway. It is apparent however, given my findings above and on the evidence before the Commission that the work of Mr Tucker does not fit within the Senior Technical Specialist range.

[171] For these reasons I am satisfied that Mr Tucker’s role is correctly classified at VPS Grade 5 (Senior Solicitor). I see no reason to disturb this grading or the VR2 attached to it and Mr Tucker’s work.

[172] Given my finding in relation to when the dispute before the Commission arose I do not consider I have jurisdiction to determine if Mr Tucker was correctly classified in November 2011 when he commenced at the SRO. Even if the dispute did reach back that far the evidence of Mr McKee, Mr Cahill and Mr George would convince me that there have been both organisational and staffing changes such that an assessment going back seven years would be a very challenging task.

[173] In conclusion I would observe that Mr Tucker’s claim that he knew, from within a week of his commencement, that his position was under classified belies any credible explanation. Mr Tucker had no history in the Victorian Public Service when he commenced at the SRO and no experience with the VPS classification system. Further the VPS classification system is at times unwieldy and the principles to be applied to classification determination steeped in the history of decisions of the Commission (and its predecessors) and the courts. It is, for these reasons, not feasible that he knew of an under classification in 2011, just weeks or months after he commenced in the Victorian Public Service.

[174] For these reasons the answers to the questions posed are:

Question 1(a): No.

Question 1(b): No.

Question 2(a)(i): Not applicable based on the findings as to when the dispute before the Commission was raised.

Question 2(a)(ii): Not applicable based on the findings as to when the dispute before the Commission was raised.

Question 2(b): VPS Grade 5 – Senior Solicitor.

[175] Mr Tucker’s application with respect to his reclassification is therefore dismissed.

COMMISSIONER

Appearances:

A. White of counsel for Mr Tucker.

J. Forbes of counsel for The State of Victoria.

Hearing details:

2019.

Melbourne:

March 5, 6, 7.

Final written submissions:

Applicant: 26 March 2019 and 2 April 2019.

Respondent: 26 March 2019 and 2 April 2019.

Printed by authority of the Commonwealth Government Printer

1 AE418873.

2 Exhibit A2.

3 Exhibit A3 (subject to confidentiality order).

4 Exhibit A1.

5 Exhibit R2.

6 Exhibit R3.

7 Exhibit R4.

8 Exhibit R5.

9 Exhibit R6.

10 Exhibit R1.

11 Transcript PN621.

12 Exhibit A2, attachment TT19.

13 Ibid.

14 Exhibit A2, attachment TT20.

15 Exhibit R2, attachment PM-19.

16 Exhibit A2, attachment TT21.

17 Exhibit A2, attachment TT22.

18 Exhibit A2, attachment TT23.

19 Exhibit R4 attachment DSH-3.

20 Exhibit A2 attachment TT24.

21 Exhibit A2 attachment TT25.

22 Exhibit A2.

23 Exhibit R2, paragraph 56.

24 Exhibit R2 attachment PM-24.

25 Exhibit R5 attachment JC-3.

26 Exhibit A2, attachment TT30.

27 Exhibit A2, attachment TT21.

28 Exhibit A2, attachment TT22.

29 Exhibit R2, attachment PM-8. It should be noted that there does not appear to be a classification of VPS Grade 7.3A. Rather, there is a Grade 7.3.

30 Exhibit A2, paragraph 11.

31 2016 Agreement Schedule E.

32 [2015] FWC 2008.

33 (2009) 191 IR 401.

34 Schedule C to the 2016.

35 [2018] FCA 325.

36 Exhibit A2, attachment TT4.

37 Exhibit A2, paragraph 29.

38 Exhibit A2, paragraph 33.

39 Transcript PN346-350.

40 Transcript PN344.

41 Transcript PN369.

42 Transcript PN371.

43 Transcript PN373 and PN379.

44 Transcript PN391 and 397-398.

45 Transcript PN 405.

46 Exhibit A3, attachment TT42 (subject to confidentiality order).

47 Transcript PN920–PN926.

48 Transcript PN983, 986-989.

49 Transcript PN1027.

50 Exhibit R2, paragraphs 6-7.

51 Transcript PN1213-1215.

52 Exhibit R2, paragraph 17.

53 Exhibit R3 paragraph 18.

54 Exhibit R3, paragraph 68.

55 Transcript PN1552-PN1553.

56 Exhibit R2 paragraph 82.

57 Exhibit R3 paragraph 87.

58 Transcript PN1582.

59 Transcript PN1062-1063.

60 Exhibit R3.

61 Transcript PN1681.

62 Transcript PN1763-5.

63 Exhibit R5, paragraphs 8 and 9.

64 Exhibit R5, paragraph 11.

65 Transcript PN2101.

66 Transcript PN2124-R2125.

67 Transcript PN2196.

68 Internal and external stakeholders are set out in the position description for the Senior Solicitor position, exhibit A2, attachment TT4.

Toby Tucker v State of Victoria