Turley v The Laminex Group (Industrial)
[2015] VMC 28
•3 SEPTEMBER 2015
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
INDUSTRIAL DIVISION F11243991
BETWEEN:
LINDA TURLEY Employee
-and-
THE LAMINEX GROUP Employer
MAGISTRATE: GINNANE
WHERE HEARD: MELBOURNE
DATE HEARD: 18 AUGUST 2015
DATE OF DECISION: 3 SEPTEMBER 2015
CASE MAY BE CITED AS: TURLEY v THE LAMINEX GROUP
MEDIUM NEUTRAL CITATION: [2015] VMC 28
REASONS FOR DECISION
Catchwords: Industrial law – employer and employee – classification of work under Modern Award – importance of classification in relation to duties and skills required by employer – claim for arrears in wages and order for superannuation contributions in consequence of underpayment of wages – claim made for period outside date of commencement of modern award – operation of s 544 of Fair Work Act –concession by employee limiting period recoverable – employee’s claim dismissed
HIS HONOUR:
Introduction
The applicant is employed by the respondent. She commenced employment on 23 June 2008. Before this she was employed in a variety of positions the nature of which appear to have been customer focused and included 17 years as a cashier with Coles and 23 years as a teller with the National Australia Bank. At the date of hearing the plaintiff had been employed with Laminex for 7 years. She is employed by the respondent at their premises at Tullamarine. She is a full-time employee working a suite of hours between 7:30 am and 4.00 pm Monday through Friday. Her title is “Customer Service Representative” (CSR).
This dispute involves the application of a modern award made by the Fair Work Commission, in particular, the Clerks-Private Sector Award 2010 (the Award). The applicant was represented at the hearing by Mr Malbasa and leave was granted for the respondent to be represented by Mr Mueller.
In short compass the dispute between the parties is whether the applicant has properly been classified by the respondent as a “B.3 Level 3” employee or if she has been undertaking employment consistent with a “B.5 Level 4” classification. If the applicant is correct in her contention that she performs and has undertaken work of a higher classification, then it will follow that she has been underpaid wages together with superannuation payments and perhaps other concomitant benefits of employment.
Furthermore the applicant propounds an alternative construction, that if she does not meet the classification of B.5 level 4, then she should be classified as a “B.4 Level 3” employee, identified in the award as a “Call centre principal customer contact specialist”.
An initial matter raised by the respondent was that if the applicant’s claim is successful, a statutory limitation prevails, that when taken together with the date of the commencement of the operation of the modern award, would limit any period to no greater than 1 January 2010. The correctness of this submission was conceded by the applicant’s representative.
It was further agreed between the parties that if I made an order in favour of the applicant on the question of liability arising from a reclassification then it would be appropriate to adjourn the further hearing to enable a calculation to be made in relation to quantification. In light of my finding that the applicant has been properly classified by the respondent it will not be necessary for that course to be adopted. My reasons for reaching this conclusion follow.
The salient facts
The applicant’s duties in her role of CSR include, customer service, responding to incoming customer calls and processing of sales. As to the receipt of inbound calls, the applicant deals with regional clients, although I was told, that an upgrade to the respondent’s telephone system has meant that when circumstances dictate because, for example, co-workers within the CSR team are otherwise engaged, overflow calls may be directed to the applicant or another team member and these could be metropolitan customer calls as well as regional calls.
The applicant professed a lack of knowledge about the award governing her employment, or more particularly her classification under it, until an issue of controversy arose inadvertently in about September 2014 when she became privy to another employee’s remuneration. The applicant said that this other employee was junior to her and not as experienced but was being paid approximately $2,000 per annum more. The applicant said she raised the issue with the employer and was unsatisfied with the explanation. She said she subsequently became aware of the existence of her award classification and she concluded that she had been performing duties and responsibilities consistent with a higher level classification but had not been remunerated accordingly.
Because of applicant’s classification under the award she receives a minimum weekly wage of $788.20. In the course of the hearing the applicant raised issues of uncertainty concerning the annualised amount of her wage but this is not a matter of controversy that is before me and neither is it a matter upon which I could render an adjudication.
10. In my view the applicant’s claim for a reclassification to Level 4 is predicated on too narrow a concentration of certain duties recognised under Level 4, particularly as the suite of duties upon which the submission depends are also typical duties/skills applicable to her Level 3 classification. Nonetheless, and in order to fairly and comprehensively deal with the ambit of the contest raised by the applicant, it will be necessary to have regard to a number of particular provisions of the award.
11. The applicant argued that in the performance of her employment she performs the following indicative “typical duties/skills” (B.5.2) of a Level 4 employee:
·creating new files and records;
·maintaining computer-based management systems;
·identifying and extracting information from internal and external sources;
·using advanced word processing function;
12. These are also indicative “typical skills/duties” of a B.3.2 Level 3 employee.
13. The applicant argued that she discharged typical duties/skills attributable to Level 4 B.5.2 (v) “Call centre customer contact team leader” by:
·providing leadership in a team leader role in providing guidance to others in the application and planning of skills;
·working with high degree of autonomy and exercising authority to take decisions in relation to specific customer contact matters
14. The applicant also submitted that she essentially works in a “call centre like environment” and therefore she should receive pay in accordance with Level 4 (B. 4) classification.
15. Part 4 of the Award is headed “Minimum Wages, Classifications and Related Matters”. Clause 15 of the Award is headed “Classifications”. Clause 15.1 prescribes that “all employees covered by the Award must be classified according to the structure set out in Schedule B – Classifications and paid the minimum wage in clause 16 – Minimum weekly wages...”
16. Clause 15.2 of the Award prescribes that a classification of employees covered by the Award is determined by the employer and “must be according to the skill level or levels required to be exercised by the employee in order to carry out the principal functions of the employment as determined by the Employer”.
17. In my opinion, clause 15.2 of the Award identifies the purpose underpinning the relevant classification, which is to assess the discharge of the principal functions of the employment required by the employer by reference to the employee’s skill level or levels. Thus the classification of an employee is not informed by principles of seniority or length of service but rather according to an employee’s skills and the execution of the duties required of the employee by the employer so as to give effect to the principal functions of the employment.
18. In light of the direction contained in clause 15.1, it becomes necessary to have regard to Schedule B of the Award that, amongst other things, states that:
The classification criteria in this schedule provides guidelines to determine the appropriate classification level of persons employed pursuant to this award. In determining the appropriate level, consideration must be given to both the characteristics and typical duties/skills. The characteristics are the primary guide to classification as they indicate the level of basic knowledge, comprehension of issues, problems and procedures required and the level of supervision or accountability of the position. The totality of the characteristics must be read as a whole to obtain a clear understanding of the essential features of any particular level and the competency required. Typical duties/skills are a non-exhaustive list of duties/skills that may be comprehended within the particular level. They are an indicative guide only and that any particular level employees may be expected to undertake duties of any level lower than their own. Employees at any particular level may perform/utilise one such duty/skill, or many of them, depending upon the particular work allocated.
The key issue to be looked at in properly classifying an employee is the level of competency and skill that the employee is required to exercising the work they perform, not the duties they perform per se. It will be noted that some typical duties/skills appear in more than one level, however when assigning a classification to an employee this needs to be done by reference to the specific characteristics of the level. For example, whilst word processing and copy typing our first specifically mentioned at Level 2 in terms of typical duty/skill, it does not mean that as soon as an employee operates a word processor or typewriter they automatically become Level 2. They would achieve a Level 2 classification when they have achieved the level of skill and competency envisaged by the characteristics and the relevant indicative duty/skill of a Level 2. Level 1 in this structure is to be viewed as the level at which employees learn and gain competence in the basic clerical skills required by the employer, which in most cases would lead to progression through the classification structure as their competency and skills increase and are utilised.
19. The language recited above and extracted from the Award, suggests that as regards the matter of classification, “the key issue to be looked at in properly classifying an Employee is the level of competency and skill that the Employee is required to exercising the work they perform, not just the duties they perform per se”; and “some typical duties/skills appear in more than one level, however when assigning a classification to an employee this needs to be done by reference to the specific characteristics of the level”. Furthermore, and in going about the task of classification of an employee, the employer is entitled to be mindful that the classification criteria in the schedule amounts to a guideline, and it is not bound by guidelines.
Relevant facts regarding position and functions
20. As a matter of fact, and putting the question of typical duties to one side for the moment, the principal functions which the respondent determined the applicant was required to perform in the discharge of her employment as a CSR and that the applicant has performed over the years of employment with the respondent include the following:
· taking inbound calls from customers in the customer contact centre;
· taking orders from those customers for the respondents product;
· responding to customer queries
21. Furthermore, the respondent submits that as a matter of fact, in carrying out the identified functions the applicant only has scope for the exercise of limited initiative, discretion and judgement in that:
· she only has authority to make decisions regarding product sales, alternative product offerings and a process product complaints under $1000; and
· she does not have authority to make decisions with respect to matters including product pricing or for negotiated special delivery pricing where for example a product cannot be locally sourced.
22. I heard evidence from the applicant and corroborated by the respondent’s witnesses, that in organisational terms, CSR’s are part of the national customer service division; that the applicant is one of 14 such customer service representatives around Australia and that the applicant works in a team of three. I was also told that there is no difference in the duties or skills required among the team members.
23. It was not contested by the employer that the applicant’s core constituency consists of the receipt of calls from regional customers with inquiries. The applicant said her employer knew it was her preference to deal with regional customers. I was informed that this is also the case with one of the other two members of the team with whom the applicant works and that the third member of the team in the ordinary course of her employment has metropolitan calls directed to her. Ultimately, however, and as I have mentioned, each member may find themselves dealing with a regional or metropolitan inquiries if circumstances dictate.
24. In addressing the applicant’s everyday tasks and duties in light of the characteristics associated with a Level 4 employee, the starting point is B.5 Level 4 B.5.1 Characteristics which is expressed as follows:
Employees at this level will have achieved a level of organisation or industry specific knowledge sufficient for them to give advice and/or information to the organisation and clients in relation to specific areas of their responsibility. They would require only limited guidance or direction and would normally report to more senior staff as required. Whilst not a pre-requisite a principal feature of this level is supervision of employees in lower levels in terms of responsibility for the allocation of duties, co-ordinating workflow, checking progress, quality of work and resolving problems.
Exercise initiative, discretion and judgement at times in the performance of their duties.
They are able to train employees in Levels 1-3 by personal instruction and demonstration.
25. It is instructive that in directing attention to the work the applicant performed in accordance with the typical duties/skills prescribed for a Level 4 employee, the range of applicable recognised typical duties and skills relied upon was limited to those contained at B.5.2 (iv) namely,
*Applying one or more computer software packages, developed for a micro personal computer or a central computer resource to either:
·creating new files and records;
·maintaining computer-based management systems;
·identifying and extract information from internal and external sources; or
·use of advanced word processing/keyboard functions.
26. The above typical duties/skills contains a note expressed as follows:
Note: these typical duties/skills may be either at Level 3 or Level 4 dependent upon the characteristics of that particular level.
27. The applicant has not satisfied me that in the tasks/duties assigned to her in her employment or in regard to matters actually undertaken by her in her employment, that it could be said that she is called on to “exercise initiative, discretion and judgement at times” in their performance as are included and specified as “characteristics” for a Level 4 employee. Neither can it be said of her employment that she is an employee who is “able to train employees in Levels 1-3 by personal instruction and demonstration” as is also a specified “characteristic” of a Level 4 employee.
28. I inquired of the applicant’s advocate in the course of his submissions what he contended followed given the inclusion of the “Note” applicable to B.5.2 (iv) and what evidence if any he relied upon to distinguish or mark out the performance by the plaintiff of those duties and or skills from those same duties and or skills discharged by her as a Level 3 employee. Mr Malbasa relied on the plaintiff’s years of experience in her employment. At first it seemed to be the case that Mr Malbasa was intending to incorporate the applicant’s entire professional working life and her experience in customer service work as enlivening this factor as opposed to her period of 7 year’s employment with the respondent. In my judgment it is evident that the characteristic directs consideration to an employee who has achieved “a level of organisational industry specific knowledge sufficient for them to give advice and/or information to the organisation and clients in relation to specific areas of the responsibility”. I am unable to conclude that the applicant fulfils this characteristic. I accept that in all probability the applicant has obtained a level of organisational industry specific knowledge, however, this is not to say and the evidence does not support a finding, that such a level of organisational industry specific knowledge that the plaintiff has obtained is sufficient for her to give advice or information to the organisation and clients in relation to specific areas of the responsibility. Quite simply this is not a characteristic that accords with the typical duties and skills she is called upon to discharge in her employment on an ongoing basis.
29. Thus it is evident that the particular typical duties/skills relied upon by the applicant may be as applicable to and accord with her Level 3 classification dependent upon “the characteristics of that particular level”. Therefore a consideration of the characteristics of both levels is again called for.
30. The characteristics attendant on a Level 3 classification under the award are expressed as follows:
“Employees at this level have achieved a standard to be able to perform specialised or non-routine tasks or features of the work. Employees require only general guidance or direction and there is scope for the exercise of limited initiative, discretion and judgement in carrying out their assigned duties.
Such employees may be required to give assistance and-or guidance (including guidance in relation to quality of work and which may require some allocation of duties) to employees in Levels 1 and 2 and would be able to train such employees by means of personal instruction and demonstration.”
31. The evidence adduced from the applicant and from the respondent’s witnesses left me with the strong impression that the typical duties/skills performed by applicant and expressed in B.5.2 (iv) of the award but that are common to B.3.2 (iii) when taken together with the applicant’s evidence of her daily duties more conformably satisfy the characteristics of B.3 Level 3 than the B.4 Level 4.
32. In support of his contention that the applicant’s employment more appropriately meets the classification of Level 4, Mr Malbasa also relied upon criterion recognised at B.5.2 (v). I am not satisfied they have application. They are applicable to a specific standalone position described as a “Call centre customer contact team leader”. The applicant is not a “call centre customer contact team leader” but rather a CSR. Even if I am wrong about this, in my judgement, the evidence does not support the applicant undertaking typical duties or skills that largely or predominantly meet the identified criteria. I think it would be an error of reasoning to assimilate the performance of a broad range of skilled applications as synonymous with one or more of the criteria applicable to (iv) of Level 4. By this I mean to say, that the indicia applicable to a “customer contact team leader” are intended to embrace duties and skills beyond those identified by way of the indicia set out at (iv). There was no evidence adduced before me that the plaintiff performed a broad range of skilled applications. There was no evidence adduced before me that she provided leadership as a coach, mentor or senior staff member, and provided guidance in the application and planning of skills. Neither was there evidence adduced that the applicant worked with a high degree of autonomy and/ or with the authority to take decisions in relation to specific customer contact matters and that she took responsibility for the outcomes of customer contact or resolved complex situations. Indeed the evidence such as it was, is contrary to such a conclusion. The extent of the evidence is to the effect that for matters involving the provision of and supply of a product ordered but unavailable but otherwise available, for example, at another distribution centre interstate, it is necessary for the applicant and other CSR employees to obtain approval of one or other of Ms Martin or Ms Hine because of the additional freight costs associated with such a process. Such autonomy as is exercised by the applicant is constrained by and limited to the processes associated with the receipt of inbound calls and the putting in place steps necessary to give due execution to such telephone orders. I think it would be incorrect to classify the work she performed as meeting the ordinary understanding of the phrase “high degree of autonomy”. This is even more so given that the notion of a “high degree of autonomy” is expressed as coupled with “the authority to take decisions in relation to specific customer contact matters” something about which, I am satisfied, the evidence led by the applicant does not establish.
33. I am not satisfied that in relation to the indicia set out for a “call centre customer contact team leader”, that the applicant provides leadership in a team leader role and provides guidance to others in the application and planning of skills. It is evident that the provision of leadership is predicated on the incumbent holding a team leader role, and that incumbency should be read conjunctively with the provision of guidance to others in the application and planning of skills. The applicant’s employment in her position does not meet this test. I accept that the applicant may, in an anecdotal and collegiate sense, provide guidance or assistance to new or even established employees on an ad hoc basis, however, I am equally confident from the applicant’s evidence that she was un-willing to participate in or to elevate such occasional and informal assistance to anything more regulated or formal. The applicant said she felt uncomfortable with someone looking over her shoulder or standing close to her or being within close proximity while discharging her employment. In any event, the evidence led by the respondent from its witnesses identified the existence of a reasonably formalised and procedure driven induction and training module for new employees. The applicant was not part of a buddy system or, as it was otherwise described, “the double jacking” system. The evidence relied on by the applicant was not supportive of the proposition that in her interaction with other CSR employees, she could be described or categorised as involving herself either by design or choice in the exercise of limited leadership over less experienced customer service representatives.
Other matters
34. Both the applicant’s claim and the respondent’s defence comprised very detailed contentions in support of their respective arguments and that in the main reflected the matters adumbrated in the hearing. In addition the respondent attached various company documents consisting of:
·Position Description Customer Service Representative
·The National Customer Service structure including incumbents
·Customer Team Leader Position Description including organisational relationships
35. In the result I have arrived at, it has not proved necessary to refer specifically in my reasons to these documents. Their contents was not disputed by the applicant and, in any event, in the main, they reflected the course of oral argument and of the viva voce evidence of the plaintiff and from Ms Hine.
36. Accordingly, for the reasons expressed herein, the application must be dismissed. There will be no order as to costs.
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