Townsend v City of Stonnington

[2015] FCCA 1297

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOWNSEND v CITY OF STONNINGTON [2015] FCCA 1297

Catchwords:
INDUSTRIAL LAW – Small claims list – what Level within classification applied to applicant’s employment with respondent – application dismissed.

Legislation:

Fair Work Act 2009, s.50

City of Wanneroo v ASU (2006) 153 IR 426

Kucks v CSR Limited (1996) 66 IR 182

Applicant: SHANE ALAN TOWNSEND

Respondent: CITY OF STONNINGTON

File Number: MLG 1941 of 2014

Judgment of: Judge Jones

Hearing date: 6 May 2015

Date of Last Submission: 6 May 2015

Delivered at: Melbourne

Delivered on: 2 June 2015

REPRESENTATION

Solicitors for the Applicant: Self Represented

Solicitors for the Respondent: Mr Pomroy  appearing on behalf of the respondent (not a solicitor)

ORDERS

1. The orders made on 11 March 2015 be set aside pursuant to Rule 16.05(2)(a) of the Federal Circuit Court Rules 2001.

2. The application filed on 23 September 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1941 of 2014

SHANE ALAN TOWNSEND

Applicant

And

CITY OF STONNINGTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. By his application and Form 5 – Small Claim under the Fair Work Act 2009 (“the Act”) filed on 23 September 2014, the applicant claims the respondent breached section 50 of the Act by failing to pay him wages and overtime in accordance with the classification Certified Gardener, Level D, Appendix 13 of the Stonnington Enterprise Agreement No. 7 (“the Enterprise Agreement”) for the period 27 April 2011 to 28 March 2013.

2. The matter was first listed in the small claims list of the Court on 27 February 2015. Orders were made by Judge Smith that the matter be adjourned to the small claims list before Judge Turner on 11 March 2015. On 11 March 2015 Judge Turner, there being no appearance by the respondent and the applicant appearing on his own behalf, made an order declaring that the respondent had breached the Enterprise Agreement and that the respondent pay the applicant the sum of $7,420.39. By an Application in a Case, the respondent sought that the matter be reinstated and the order of Judge Turner set be aside pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001.

3. Orders were made on 10 April 2015 by me listing the matter for hearing on 5 May 2015. 

Statutory instruments

1. The applicant was employed by the respondent from on or about 9 January 2010 to 6 September 2013. The Enterprise Agreement, sometimes referred to as Enterprise Agreement No. 7 came into effect from 15 July 2010 and expired on 24 March 2014. Consequently, at all material times the applicant’s employment was covered by the Enterprise Agreement. Appendix 13 - Parks Services covered all staff employed by the City of Stonnington Parks Unit except the Parks Superintendent (clause 1)

2. Clause 3 of Appendix 13 to the Enterprise Agreement dealt with the payment of wages and relevantly provided:

   a)In accordance with clause 22.7 Option for annualised salary as per Part B of this Agreement, the classifications and rates of pay in the table at the end of this Appendix shall apply.

   d)progression through the Levels will be in accordance with Part B of this Agreement

3. The table referred to in clause 3(a), sets out four positions; these being, Uncertified Gardener, Certified Gardener, Team Leader and Maintenance Officer. Within each of the positions there are various Levels specified to which are attached, in the table, hourly, weekly and annualised salaries. The amounts increase from Level A upwards. Relevantly the position referred to as Certified Gardener contained four Levels with a salary progression from Level A to Level D.

4. Part B of the Enterprise Agreement incorporates the whole of the Victorian Local Authorities Award 2001 (“the Award”). Appendix A to the Award contains classification definitions. The respondent says, and this is not disputed by the applicant, that the position Certified Gardener falls within the classification Employee Band 4. Clause 22.2 of the Award sets out rates of pay for each of the classification Employee Bands in appendix A.  There is no provision in the Award for salary progression within each Employee Band, this being a concept unique to the Enterprise Agreement. A copy of the classification Employee Band 4, so far as it relates to Physical/Community Services Employees, is set out in an attachment to this decision.

5. Clause 21 of the Award relevantly provides:

   21.    ANNUAL REVIEW

   21.1 Employees Bands 1 to 28 only

   21.1.1An annual review will be undertaken by the employer for all full-time and part-time employees.

   Provided that any employee who has had an absence of paid leave in excess of 3 months in aggregate or any unpaid leave on the preceding 12 months, shall have his/her assessment delayed by the period of such absence.

   21.1.2The review will be confidential and comprise as a minimum the following:

   ·A Review of the Level within a Band or classification Level; ……

   21.1.3Progression of an employee from one Level to the next within the Band will not be automatic but subject to this clause will be dependent upon the achievement of all of the following:

   21.1.3(a)the acquisition and satisfactory utilisation of new or enhanced skills if required by the employer and as is determined in accordance with any Staff Development Scheme;

   21.1.3(b)the meeting of established performance objectives as determined in accordance with any Staff Development Scheme;

   21.1.3(c)satisfactory service over the preceding 12 months.

   …………………………………………….

Background and evidence.

1. The applicant relies on his application and Form 5 as well as two affidavits filed on 3 October 2014 and 28 April 2015. The respondent relies on its response filed 3 October 2014 and affidavits sworn by Mr Brett Pomroy and filed on 2 February 2015 and 10 March 2015. Mr Pomroy was cross examined.

2. The applicant commenced his employment with the respondent as a Certified Gardener Level A employed on a casual basis. The respondent says that the applicant’s status changed to a full-time employee in or around March 2011 whereas the applicant maintains that, by reason of a payslip he has produced in November 2010 which does not record a casual loading and indicates that he accrued annual leave, he was employed as a Certified Gardener Level A on a full-time basis from on or around November 2010. For the purposes of deciding on the applicant’s claim it is unnecessary for me to make a finding about when the applicant’s status changed from casual to full-time.

3. From 17 March 2012, the applicant was employed as a Certified Gardener Level B. In March 2013, the respondent introduced a new classification, Senior Sportsground and Turf Wicket Curator. The applicant was reclassified in this position at Level A on 29 March 2013. This new classification was subsequently included in the Stonnington Enterprise Agreement No.8 which came into effect on 25 March 2014.

4. The applicant’s immediate supervisor when he commenced employment was Mr Mark Doyle. The applicant claims he was referred to as “Senior Sportsground and Turf Curator.” The respondent denies this and says that although he was the most senior Sportsground and Turf Curator this was not his title. Mr Doyle was classified and paid as a Certified Gardener Level D.

5. Mr Doyle resigned on or about 27 May 2011, following which it seems that the applicant assumed the majority, if not all, of Mr Doyle’s duties. The applicant does not say precisely what the additional duties were that he assumed. He does rely on, however, two Annual Reviews conducted by a Coordinator, Mr Peter Murray for the years August 2010 to August 2011 and August 2011 to August 2012.[1]  The applicant relies on the record made in the Annual Review, August 2010/August 2011 by Mr Murray that, “He is a capable curator who has demonstrated commitment to the supervision and training of apprentices” and “Shane has recently taken on the role of Senior Sportsground and Turf Wicket Curator.”

   [1] Applicant's affidavit filed 3 October 2014, annexures B and C.

6. The applicant submits that as he assumed the duties of his previous supervisor, Mr Doyle, he ought to have been promoted to Certified Gardener Level D from 27 April 2011 until 28 March 2013, when he was reclassified as Senior Sportsground and Turf Wicket Curator.

7. The respondent submits:

   a)employees in the Parks and Services area where the applicant worked have their remuneration determined by being allocated to a relevant Band in accordance with the duties they perform and pursuant to Appendix A of the Award;

   b)once an employee is placed within a Band there are various Levels or pay points within the Band at which the employee will be paid;

   c)progression through Levels of the Band is determined in accordance with cl.21.1.3 of the Award;

   d)progression occurs annually following an Annual Review and only to the next Level within the Band;

   e)the employee’s Level within the relevant Band is not determined with reference to the duties they perform. The duties performed by an employee is relevant to the determination of which Band applies to an employee.

8. The respondent submits that supervision is an indicative task or job characteristic of classification Employee Band 4, Appendix A to the Award: see for example paragraph 4.1.1(c), (d). In the applicant’s case, the respondent argues, the duties of supervision were already incorporated by the Band.

9. The respondent submits that the words used in cl.21.1.3(c) of the Award, “satisfactory service over the preceding twelve months”, is to be construed, in the context of the whole clause, as a reference to service in the employee’s current Level and not his or her service with the respondent generally. They argue that the context in which cl.21.1.3 of the Award appears is, as is apparent from the title of the clause, an Annual Review. Further, cl.21.1.3(b) of the Award provides that an employees progression will be dependent on, in addition to the other two factors specified in subclauses (a) and (c), meeting performance objectives determined in accordance with any Staff Development Scheme. Clause 16 of the Award refers to the Staff Development Scheme. Clause 16.1 includes as a broad principle, “annual review of plans.”

10. The respondent further argues that the ordinary meaning of the phrase utilised in the opening sentence of cl.21.1.3 of the Award, “Progression of an employee from one Level to the next within a Band”, is that an employee only progresses from his current Level to the next highest Level within a Band.

11. The applicant disputes the respondent’s construction of cl.21.1.3 of the Award. He argues that there is nothing in the wording of the clause which would restrict the progression through Levels within a Band occurring only once a year and only to the next higher Level. The applicant points out that in clause 21.2.1 – “Childcare Workers only”, the criteria which a childcare worker must complete before progressing from one Level to the next within a Band, includes criteria “(a) competency at the existing Level” and “(b) “twelve months experience at that Level ….”  The applicant argues that, by analogy, if it had been intended that progression for other employees under cl.21.1.3 of the Award was subject to 12 months service in the employee’s existing Level, this would have been made expressly clear as was done for Childcare workers.

12. The applicant further argues that there is nothing in the phrase at the commencement of cl.21.1.3 of the Award, “Progression of an employee from one Level to the next within a Band”, which can be construed as limiting the progression of an employee to the next higher Level from his or her existing Level.

Consideration

Principles governing the construction of Awards

1. The principles used in interpreting Awards are settled.

2. These principles were summarised by Justice French (as he then was) in the Federal Court of Australia in City of Wanneroo v ASU (2006) 153 IR 426 where his Honour said at [53]:

   “The construction of an Award, like that of a statute, begins with a consideration of the ordinary meaning of its words.  As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed.  Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction.  It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed.  It may extend to ‘... the entire document of which it is a part or to other documents with which there is an association’.  It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).”

3. His Honour then said at [57]:

   “It is of course necessary, in the construction of an Award, to remember, as a contextual consideration, that it is an Award under consideration.  Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial Awards are concerned - see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-4 (Street J). It may be that this means no more than that Courts and tribunals will not make too much of infelicitous expression in the drafting of an Award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

   Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”

4. In Kucks v CSR Limited (1996) 66 IR 182, Madgwick J stated at 184:

   “It is trite that narrow or pedantic approaches to the interpretation of an Award are misplaced.  The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.  Thus, for example, it is justifiable to read the Award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading.  And meanings which avoid inconvenience or injustice may reasonably be strained for.  For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

   But the task remains one of interpreting a document produced by another or others.  A Court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the Award.  Deciding what an existing Award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an Award.  So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

Construing the Enterprise Agreement and Clause 21.1.3 of the Award

1. The starting point is, of course, the Enterprise Agreement. Clause 3 of Appendix 13 of the Enterprise Agreement deals with the Payment of Wages for staff employed in the City of Stonnington Parks Unit. Cl.3 provides that these employees shall be paid in accordance with classifications and rates of pay specified in a table contained in Appendix 13. Cl.3(d) provides that, “Progression through the Levels will be in accordance with Part B of this Agreement.”

2. Part B of the Appendix 13 of the Enterprise Agreement incorporates the whole of the Award. Part 4 of that Award deals with, “Employer and employees duties, employment relationship and related arrangements.” Clause 21 – Annual Review is located in Part 4 of the Award. The applicable provisions of that clause are set out at [8] above. It is to be noted that the structure of clause 21 is such that the content of the Annual Review is specified for employees, described as, “Employees Bands 1 to 8” (cl.21.1) and separately for “Child Care Workers only” (cl.21.2).

3. Turning first to the context and purpose of the provision being construed; namely cl 21.1.3. It is clear that clause 21.1.1 requires that an Annual Review be undertaken by the respondent for all full-time and part-time employees. That review is to comprise at least a review of the Level within a Band or classification Level having regard to classification definitions contained in Appendix A – Classification definitions of the Award: cl.21.1.2.

4. It is to be recalled that, at the relevant time, the only classification applicable to the applicant’s employment was Certified Gardener or Band 4 of the classification definitions set out in Appendix A to the Award. Consequently, in the applicant’s circumstances, the Annual Review contemplated by reason of cl.21 can only have a review of a Level within Band 4.

5. It is in the context and purpose of conducting an Annual Review that cl.21.1.3 is located. This is the relevant contextual consideration. That cl.21.1.3 has as its context the conduct of annual reviews is made clear by the reference in cl.21.1.3(a) and (b) to “any Staff Development Scheme” Clause 16 of the Award provides for the Staff Development Scheme. Clause 16.1 includes as a broad principle, “annual review of plans.” In my opinion cl.21.1.3(c) reinforces the notion of an annual review by reference to “satisfactory service over the preceding twelve months.”

6. In my opinion cl.21.1.3(c ) the phrase“satisfactory service over the preceding twelve months” should be construed to refer to the applicant’s previous 12 months satisfactory service at the employees current Level. This construction is consistent with the context within which those words are located; namely, Annual Review.

7. The applicant’s contention in respect of the different language used in relation to the progression of Childcare workers from one Level to the next in clause 21.2 and other workers in clause 21.1  arise from a presumption of statutory interpretation that the drafters of the legislation will be presumed to use the same language and if that is not the case then the intention was to change the meaning.[2] However, that presumption is rebuttable and may ultimately turn on the view the Court forms as to the care exercised by the drafter in the choice of words.[3] It is to be borne in mind that the instrument being considered is an Award and a pedantic or literal approach may well be misplaced. At all times, regard must be had to industrial realities and the context and evident purpose of the clause or part of the Award in which the provision is located.

   [2] DC Pearce and RS Geddes, Statutory Interpretation in Australia (7^th Ed) at p.119.

   [3] Ibid at p.121.

8. Further the context in which clauses 21.2.1(a) and (b) occur is a clause (clause 21.2 Childcare Workers only) which clearly operates in its effect as an exception to the criteria for progression from one Level to another within a Band for all other employees covered by the Award. There is no reference to Staff Development Scheme, there is provision for appropriate in-service training for employees and, by comparison to clause 21.1.3, there is specific provision for the accelerated incremental progression to the next pay point Level.

1. I am satisfied that, having regard to the language used in cl.21.1.3 and the context and purpose of the provisions in which it is located, cl.21.1.3 is to be construed as providing for annual progression of an employee from one Level to the next. Such progression is expressly said not to be automatic but subject to an employee achieving specified criteria. I find, therefore, that the progression of employees from one Level to the next within a Band pursuant to cl.21.1.3 is limited to progression on an annual basis.

2. The next matter I must decide is whether the phrase utilised in the opening sentence of cl.21.1.3 of the Award, “Progression of an employee from one Level to the next within a Band” is to be construed as confining the progression of an employee from the Level at which that employee is presently classified to the next higher Level only or whether it should be construed as an enabling progression from the employee’s existing Level to a Level which in the pay point scale is more than one Level higher.

3. The determination of the proper construction of the phrase in the opening sentence of cl.21.1.3 of the Award, “Progression of an employee from one Level to the next within a Band” goes to the heart of the applicants’ claim. The applicant’s claim is that during the period from 27 April 2011 to 28 March 2013 he should have been paid at Level D. Instead, during that period, he was paid at Level A (during the period 27 April 2011 to 16 March 2012) and Level B (during the period 17 March 2012 to 28 March 2013).

4. Applying the settled principles, the Court must first ascertain the ordinary meaning of the words; in this case, “from one Level to the next”.  It is clear that the words, “one Level” refers to the employee’s current Level. The question becomes, what does the phrase, “to the next” mean ?

5. The English Oxford dictionary (on-line) defines the word “next” relevantly as:

   A. adj. (and prep.)

   I. In attributive use.

   1.

   a. Lying nearest in place or position.

   c. More generally: closest to hand, most convenient, most readily available.

   2.

   b. Immediately neighbouring, adjacent, or adjoining (irrespective of whether a particular order or sequence is mentioned or implied).

   II. In predicative use.

   8.

a. Nearest in place or position.

b. With to. (Most) immediately neighbouring, adjacent, or adjoining (irrespective of whether a particular order or sequence is mentioned or implied).

9.

a. Coming in immediate succession to another in time, sequence, etc.

1. I am satisfied having regard to the dictionary meaning that the ordinary meaning of phrase, “from one Level to the next” is a reference to progression by an employee from his or her current Level to the next higher Level; that is, from Level A to B, from Level B to C and from Level C to D.

2. There is no dispute that the applicant was appropriately classified as Employee Band 4, Appendix A to the Award. That classification specifies supervision and the provision of on-the-job training as indicative tasks or skills exercised by an employee in this Band. This is evident in almost all the component job characteristics identified in that Band: 4.1 Accountability and extent of the authority: 4.1.1(c) and (d), Judgment and decision making: 4.2.1(b), and Management skills: 4.4.1(a), (c) and (d).

3. The applicant, having been classified at Band Level 4, was expected to be able to supervise and/or train and have skills to engage in these tasks. The mere fact that he may have acquired additional tasks of supervision and on-the-job training, when he assumed to Mr Doyle’s duties, did not have the consequence he would be classified at Level D. The applicant’s duties are not entirely irrelevant to the progression of an employee through Levels. This is apparent from the wording of 21.1.3 (a) which provides that a criterion for progression is “the acquisition and satisfactory utilisation of new or enhanced skills if required by the employer…”

4. However, properly construed clause 21.1.3 permits, following the conduct of an annual review by the respondent, the progression of employees on an annual basis from their existing Level within the Band to the next higher Level within the Band, provided they meet specified criteria.

5. Consequently, I am not satisfied that the applicant was entitled, as he claims, to be paid during the period 27 April 2011 to 28 March 2013 in accordance with the rates of pay specified in Appendix 13 to the Enterprise Agreement, for Certified Gardener, Level D.

Conclusion

1. For the reasons set out in this judgment, the application filed on 23 September 2014 is dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date:  2 June 2015

APPENDIX A – VICTORIAN LOCAL AUTHORITIES AWARD 2001

.EMPLOYEE BAND 4

A position in this Band has the following job characteristics:

4.1 Accountability and extent of authority

4.1.1 Physical/Community Services Employees

4.1.1(a) They are expected to exercise discretion within standard practices and processes, undertaking and implementing quality control measures.

4.1.1(b) Employees in this Band may exercise high precision trade skills using various materials and/or specialised techniques.

4.1.1(c) Positions in this Band provide direction, leadership and on-the-job training to supervised employees or groups of employees.

4.1.1(d) Employees with supervisory responsibilities are required to ensure that all employees under their direction are trained in safe working practices and in the safe operation of equipment and made aware of all occupational, health and safety policies and procedures.

…………………………………………………..

4.2 Judgement and decision making

4.2.1 Physical/Community Services Employees

4.2.1(a) In positions in this Band, the objectives of the work are well defined but the particular method, process of equipment to be used must be selected from a range of available alternatives.

4.2.1(b) For supervisors, the process often requires the quantification of the amount of resources needed to meet those objectives.

4.2.1(c) Guidance and counsel are always available within the time available to make a choice.

………………………………

4.3 Specialist knowledge and skills

4.3.1 Physical/Community Services Employees

4.3.1(a) Employees in this Band must have the ability and skills to provide training in the post-trades or specialist disciplines either through formal training programmes or on-the-job training.

4.3.1(b) Employees in this Band also require a thorough understanding of the relevant technology, procedures and processes used within their operating unit.

4.3.1(c) Indicative but not exclusive of the skills required of an employee in this Band include:

Highly skilled horticultural work.

Safe and competent operation of Very Heavy Mechanical Plant.

…………………………………

4.4 Management skills

4.4.1 Physical/Community Services Employees

4.4.1(a) Some positions in this Band are at the “work face” while others involve supervision of employees or groups of employees.

4.4.1(b) All employees at this level should have sufficient freedom to plan their work at least a week in advance.

4.4.1(c) Where supervision is part of the job, it is expected that the supervisor will assist other employees in their tasks where required.

4.4.1(d) Supervisors are also expected to have a knowledge of personnel policies and practices applicable to the work performed and supervised employees.

………………………………………….

4.5 Inter-personal skills

4.5.1 Physical/Community Services Employees

4.5.1(a) Positions in this Band require the ability to gain co-operation and assistance from members of the public and other employees in the performance of well defined activities.

4.5.1(b) Employees in this Band may also be expected to write reports in their field of expertise.

…………………………….

4.6 Qualifications and experience

4.6.1 Physical/Community Services Employees

An employee in this Band will have satisfactorily completed the requirements of Band 3 or equivalent as well as a minimum of a post-trades certificate (e.g. special class trades) or equivalent and/or will have in addition have completed a TAFE certificate course or equivalent.