United Workers' Union v Activ Foundation Incorporated
[2023] FWC 593
•15 MARCH 2023
| [2023] FWC 593 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
United Workers’ Union
v
Activ Foundation Incorporated
(C2022/8185)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 15 MARCH 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]
The issue and outcome
The United Workers’ Union (the UWU) has referred to the Commission a dispute for determination under s 739 of the Fair Work Act 2009 (Cth) (the Act) and the dispute resolution procedure in the Activ – United Workers Union – Direct Care Enterprise Agreement 2021 (the Agreement).[1] The dispute is about the classification of six employees of Activ Foundation Incorporated (Activ) under the Agreement. The UWU contends that the six employees are appropriately classified as Level 2 under Schedule C of the Agreement, whilst Activ argues that the employees are appropriately classified at Level 1. Critical to the determination appears to be whether the employees have a ‘relevant Certificate III or higher qualification’, a purported requirement for progression to the Level 2A.1 classification under the Agreement.
The parties to the dispute articulated the questions to be arbitrated as follows:
A. When classifying an employee pursuant to clause 19.1 of the Agreement, does Schedule A of the Agreement require an employee to hold a “Certificate III in Individual Support (Disability) or equivalent in comparable area” (or be actively working towards the same) in order to be appointed to Level 2?
B. When classifying:
i.Ms Christine van de Leur pursuant to clause 19.1 of the Agreement, is her Certificate IV in Community Services (Disability Work) a relevant or equivalent qualification for the purposes of appointment to Level 2?
ii.Ms Suzan Longinous pursuant to clause 19.1 of the Agreement, is her Certificate IV in Community Services a relevant or equivalent qualification for the purposes of appointment to Level 2?
iii.Mr Manish Bajaj and Ms Sandra Chapman pursuant to clause 19.1 of the Agreement, are their respective Certificate III in Community Services a relevant or equivalent qualification for the purposes of appointment to Level 2?
iv.Ms Kristin Moon pursuant to clause 19.1 of the Agreement, is her Certificate IV in Community Services and/or Diploma of Community Services a relevant or equivalent qualification for the purposes of appointment to Level 2?
v.Ms Lamiyya Nyanje pursuant to clause 19.1 of the Agreement, is her Diploma of Community Services a relevant or equivalent qualification for the purposes of appointment to Level 2?
The answer to Question A is Yes.
The answers to Question B are:
B. When classifying:
i.Ms Christine van de Leur pursuant to clause 19.1 of the Agreement, is her Certificate IV in Community Services (Disability Work) a relevant or equivalent qualification for the purposes of appointment to Level 2? Yes.
ii.Ms Suzan Longinous pursuant to clause 19.1 of the Agreement, is her Certificate IV in Community Services a relevant or equivalent qualification for the purposes of appointment to Level 2? No.
iii.Mr Manish Bajaj and Ms Sandra Chapman pursuant to clause 19.1 of the Agreement, are their respective Certificate III in Community Services a relevant or equivalent qualification for the purposes of appointment to Level 2? No – there is insufficient material before this Commission to make such determination.
iv.Ms Kristin Moon pursuant to clause 19.1 of the Agreement, is her Certificate IV in Community Services and/or Diploma of Community Services a relevant or equivalent qualification for the purposes of appointment to Level 2? No.
v.Ms Lamiyya Nyanje pursuant to clause 19.1 of the Agreement, is her Diploma of Community Services a relevant or equivalent qualification for the purposes of appointment to Level 2? No – there is insufficient material before this Commission to make such determination.
Background
Before embarking upon the background to the matter, I note it was uncontroversial that: (a) there is a dispute between UWU and Activ; (b) the dispute has been properly notified to the Commission; and (c) the requirements of the dispute settlement procedure have been complied with.
The resolution of the dispute by reference to the questions posed turns on the proper construction of the Agreement in the context of largely uncontested facts. The parties therefore agreed that neither required the other’s witnesses for cross examination. The UWU relied upon the witness statements of Ms Christine Joy van de Leur and Ms Kristin Paula Moon (nee Scali) both of whom are disability support workers, and Activ relied upon the evidence of Ms Patrisha Ridley, Head of Training at Activ, and Mr Travis Moore, Head of Human Resources.
The relevant underpinning modern award that would cover Activ and the employees covered by the Agreement is the Social, Community, Home Care and Disability Services Industry Award 2010,[2] and the affected employees would, but for the Agreement, be classified as ‘social and community services’ employees.[3]
It is uncontroversial that Activ provides its direct care workers with the opportunity to undertake the Certificate III in Individual Support (Disability) and Certificate IV in Disability Support, which are delivered through Activ’s Pathways Team.[4] Activ bears the cost of this training and provides employees with paid time off to attend training sessions.[5]
I have commenced the background with the evidence of Ms Ridley. Ms Ridley included in her witness statement multiple annexures that have assisted this Commission in its understanding of the course content of various certificates referred to in this decision.
2.1 Ms Patrisha Ridley
Ms Ridley has been the Head of Training at Activ for some 13 years.[6] She is responsible for the Activ Pathways team which provides ongoing training for both supported employees and direct care staff.[7]
Ms Ridley is experienced in the field of education, having worked in the field for 46 years in areas such as the Vocational Education and Training (VET) sector.[8] Ms Ridley is the National Director of the Independent Training Education Council of Australia (ITECA) which is a training industry organisation for Private Registered Training Providers.[9] Ms Ridley is, in addition, the Chair of the State Training committee for the Western Australian branch of ITECA.[10]
Insofar as being qualified for the role she holds, Ms Ridley has a Bachelor of Education, an Associate Degree in Training & Assessment, a Dual Diploma in Training & Assessment/Vocational Education, and a Certificate IV in Training and Assessment.[11]
2.1.1 Certificate III in Individual Support (Disability) and Certificate IV in Disability Support
Ms Ridley gave evidence that the primary purpose of the Certificate III in Individual Support is to provide people working in home or residential care settings the ability to follow individualised plans in order to provide person centric support.[12] Ms Ridley stated that the certificate can be undertaken with either an aging, disability, or aging and disability specialisation.[13] With respect to the disability speciality, participants are required to complete fifteen units, comprising of nine core units, three disability specific units and three elective units.[14]
The core units of the Certificate III in Individual Support are:
a) Provide individualise support;
b) Facilitate the empowerment of people receiving support;
c) Support independence and wellbeing;
d) Recognise health body systems;
e) Communicate and work in health or community services;
f) Work with diverse people;
g) Work legally and ethically;
h) Apply basic principles and practices of infection prevention and control; and
i) Follow safe work practices for direct client care.[15]
Disability specialisations include the units of:
a) Contribute to ongoing skills development using a strengths-based approach;
b) Support community participation and social inclusion; and
c) Work effectively in disability support.
Included in the evidence was the document titled ‘Australian Government CHC33021 Certificate III in Individual Support’.[16] That document described the qualification in the following terms:
This qualification reflects the role of individuals in the community, home or residential care setting who work under supervision and delegation as part of a multi-disciplinary team, following an individualised plan to provide person-centred support to people who may require support due to ageing, disability or some other reason.
These individuals take responsibility for their own outputs within the scope of their job role and delegation. Workers have a range of factual, technical and procedural knowledge, as well as some theoretical knowledge of the concepts and practices required to provide person-centred support.
Toward the end of the document, it is noted that the Certificate III supersedes and is not equivalent to the CHC33015 Certificate III in Individual Support.[17]
Ms Ridley said that the primary purpose of the Certificate IV in Disability Support is to help staff provide support in a manner that empowers people with disabilities to achieve higher levels of independence, self-reliance, community participation and wellbeing.[18] According to Ms Ridley, the course is predominately tailored for people working in leadership roles, such as team leaders and area managers.[19]
There are said to be prerequisites for studying the Certificate IV in Disability Support, including a Certificate III in Individual Support (Disability) or a Certificate III in Disability plus completion of the Entry to Certificate IV in Disability Support Skill Set unit.[20]
The core units of the Certificate IV in Disability Support are:
a) Follow established person-centred behaviour supports;
b) Facilitate community participation and social inclusion;
c) Facilitate ongoing skills development using a person-centred approach;
d) Provide person-centred services to people with disability with complex needs;
e) Manage legal and ethical compliance;
f) Work with people with mental health issues; and
g) Maintain work health and safety.
Included in the evidence was the document titled ‘Australian Government CHC33021 Certificate IV in Disability Support’.[21] That document described the qualification in the following terms:
This qualification reflects the role of individuals in a range of community setting and people’s home, who provide support in a manger that empowers people with disabilities to achieve greater levels of independence, self-reliance, community participation and wellbeing. Workers promote a person-centred approach, work according to and may contribute to an individualised plan, and work without direct supervision. They may be required to supervise and/or coordinate a small team…
Toward the end of the document, it is noted that the Certificate IV in Disability Support supersedes and is not equivalent to CHC43115 Certificate IV in Disability.[22]
Ms Ridley stated that for Activ staff involved in providing direct care, the Certificate III in Individual Support (Disability) is the most effective and relevant qualification given the nature of the work undertaken.[23] Ms Ridley added that the individualised disability focus of the course enables Activ’s employees to best support its customers.[24]
Ms Ridley gave evidence that the aforementioned qualifications are directly relevant to the work undertaken by the vast majority of Activ’s direct care employees.[25] Ms Ridley added that in the case of specialised direct care roles, other qualifications may be relevant, such as when working with a mental illness or psychiatric disability – the Certificate IV in Mental Health.[26]
Ms Ridley explained that relevance of VET courses had nothing to do with hierarchy where a higher qualification ‘trumps’ a lower-level qualification. Ms Ridley said that VET courses are designed to provide specific and practical job skills that are related to a specific industry sector and roles being performed within it.[27] Ms Ridley continued that the specific nature of VET courses meant that they were not often transferable between industry sectors.[28]
2.1.2 Certificate III and IV and a Diploma in Community Services
Ms Ridley summarised that the work undertaken by a community service worker is different from that of a disability support worker.[29] She highlighted that community service workers have a focus on delivering community programs whilst a disability support worker is focused on individual support to assist with daily living.[30] The latter role being individualised and centred around the person.[31]
Included in Ms Ridley’s evidence was an extract taken from a web page of the Western Australian government, which provided explanation on the roles of a ‘Community Worker’ and a ‘Disability Support Worker’.[32] Ms Ridley summarised the description of these rules that had been publish by the Department of Training and Workforce Development, in the following terms:
a)[c]ommunity workers are described as facilitating community development initiatives and collective solutions within a community. Their focus is to support community groups to identify their needs, participate in decision-making and develop appropriate services and facilities. This includes planning, developing and delivering a range of programs and services, including family support, resettlement programs for migrants and refugees, community and adult education, counselling services and programs for children; and
b)[d]isability support workers are described as providing personal, physical and emotional support to people with disability who require assistance with daily living. This may include showering, dressing, preparing food and eating, and often facilitate or assist with outings or other social activities. Support may also include assistance with self-medication and arranging activities to enhance the client’s physical, emotional and intellectual development.[33]
Ms Ridley stated that she understood that the Certificate IV in Community Services reflects the role of community service workers who design and deliver person-centred services to individuals and/or groups.[34] Ms Ridley added that it is a broad qualification not specific to disability, albeit it would assist with some knowledge required of a disability support work – especially around decision making. However, Ms Ridley concluded that the course missed the key criteria of supporting individualised services.[35]
The Certificate IV in Community Services course outline[36] sets out the ‘Qualification Description’ in the following terms:
This qualification reflects the role of community service workers who design and deliver person-centred services to individuals and/or groups. Workers may provide support, advocacy or interventions to individual clients, groups or communities across a range of services.
At this level, workers may be autonomous with limited responsibility within established parameters and may be required to supervise and lead other workers in projects or teams. Work may take place in a range of community service, case work or case management contexts.[37]
The core units of the course include:
a) Facilitate the interests and rights of client;
b) Assess co-existing needs;
c) Use communication to build relationships;
d) Work with diverse people;
e) Work legally and ethically;
f) Develop and maintain networks and collaborative partnerships; and
g) Maintain work health and safety.
As with the other courses referred to, there are a multitude of elective units. Those elective units are diverse but include: (a) Facilitate the empowerment of people with disability; and (b) Provide person centred services to people with disability with complex needs, amongst others.[38]
To qualify for the Certificate IV in Community Services, the participant must complete the seven core units and eight elective units.[39]
Regarding the Certificate III in Community Services, Ms Ridley expressed that she understood the course reflected the role of entry level community service workers who support individuals in community settings or support the implementation of specific community-based programs.[40]
The Certificate III in Community Services course outline[41] sets out the ‘Qualification Description’ in the following terms:
The qualification reflects the role of entry level community services workers who support individuals through the provision of person-centred services. Work may include day-to-day support of individuals in community settings or support the implementation of specific community-based programs.
At this level, work takes place under the direction of others and supervision may be direct or indirect. Work may take place in a range of community services organisations.[42]
To qualify for the Certificate III in Community Services, the participant must complete the five core units and seven elective units.[43] The elective units include the unit ‘Facilitate the empowerment of people with disability.[44]
According to Ms Ridley, she understood that the Diploma in Community Services reflected the role of community services, case management and social housing workers involved in managing, coordinating and/or delivering person-centred services to individuals, groups and communities.[45]
Unsurprisingly, the Diploma in Community Services requires the completion of eight core units and eight elective units.[46] Whilst elective units fall within areas of specialisation such as ‘Case Management’, ‘Social Housing’ and ‘Statutory & Forensic Child Youth, Family and Welfare’, elective units also include the unit, ‘Provide person-centre services to people with disability with complex needs’.
2.1.3 Certificate IV in Community Services (Disability Work)
Ms Ridley noted that this course had been discontinued in 2002. Ms Ridley explained that the qualification did not support individualised services currently provided within the industry and was not reflective of the current thinking on supporting people with a disability.[47]
According to Ms Ridley, there had been three significant changes to the disability VET packages since 2022 with there being no equivalent between the older courses and most of the units of competency in the current qualification.[48]
2.2 Ms Christine Joy van de Leur
Ms van de Leur has worked as a disability support worker since 1995 to present. In 1998, she completed a Certificate III of Human Services and in 2004 a Certificate IV in Community Services (Disability Work).[49]
Ms van de Leur explained that she had obtained the two certificates because she wanted to advance her career as a house supervisor and at the time completion of, or working toward, a Certificate IV in Community Services (Disability) was required for the position.[50]
Ms van de Leur’s Record of Achievement from CY O’Connor College of TAFE for the Certificate IV in Community Services (Disability Work) listed the following course work as having been completed:
a) Advocate for Clients;
b) Undertake Administrative Work;
c) Utilise Specialist Communication Skills;
d) Deliver and Develop Client Service;
e) Maintain Organisations Information Systems;
f) Maintain Effective Networks;
g) Follow the Organisations Occupational Health and Safety Policies;
h) Maintain an Effective Work Environment;
i) Orientation to Disability Work;
j) Maintain an Environment Designed to Empower People with Disabilities ;
k) Provide Services to People with Disabilities;
l) Design Procedures for Support;
m) Plan and Implement Community Integration; and
n) Design and Adapt Surroundings to Group Requirements.[51]
Several years ago, Ms van de Leur transitioned from house supervisor into a role called ‘Overnight Support Worker’.[52] The duties were of the two positions were essentially the same, the main difference being that the duties in the latter role were, as the name suggested, performed overnight.[53] Duties included providing support and care for a group of customers who lived in shared accommodation on an individual and group level.[54]
On the commencement of the Agreement, ‘Overnight Support Workers’ were automatically transitioned to ‘Support Worker’ Level 2 in recognition of their greater responsibilities and limited access to higher levels of managerial supervision overnight.[55]
Before the Agreement came into operation, Ms van de Leur did not receive notification that she needed to update her certificate to continue to meet job requirements, or that not updating her qualifications would impact her wage.[56]
When the Agreement came into operation, Ms van de Leur was appointed to Level 2A.1 (the minimum for an ‘Overnight Support Worker’ under the Agreement) rather than a Level 2A.2, which the Agreement describes as being the minimum for an ‘Overnight Support Worker’ with a ‘relevant Certificate IV’. Ms van de Leur was advised that neither of her qualifications were eligible to qualify her for the higher rate of pay because her older qualifications had been ‘superseded’.[57]
2.3 Ms Kristin Paula Moon (nee Scali)
Ms Moon has worked with Activ as a disability support worker in shared accommodations since September 2020.[58] She has a Certificate IV Community Services which she completed on 8 December 2016.[59] The units studied in completion of this course included:
a) Facilities The Interests and Rights Of Clients;
b) Work in an Alcohol and Other Drugs Context;
c) Increase The Safety of Individuals at Risk Of Suicide;
d) Assess Co-Existing Needs;
e) Use Communication to Build Relationships;
f) Confirm Client Development Status;
g) Recognise And Respond Appropriately to Domestic and Family Violence;
h) Work With Diverse People;
i) Promote Aboriginal and/or Torres Strait Islander Cultural Safety;
j) Work Legally and Ethically;
k) Assess And Promote Social, Emotional and Physical Wellbeing;
l) Develop And Maintain Networks and Collaborative Partnerships;
m) Identify And Respond to Children and Young People At Risk;
n) Respond to Critical Situations; and
o) Maintain Work Health and Safety
In addition to the Certificate IV Community Services, Ms Moon has completed a Diploma of Community Services.[60] The units studied in completion of that course appear to have included those studied for the Certificate IV in addition to some others:
a) Facilitate The Interests and Rights of Clients;
b) Assess Coexisting Needs;
c) Develop and Implement Service Programmes;
d) Develop Workplace Communication Strategies;
e) Establish and Confirm the Counselling Relationship;
f) Apply Specialist Interpersonal and Counselling Interview Skills;
g) Facilitate The Counselling Relationship and Process;
h) Develop Facilitate and Review All Aspects of Case Management;
i) Analyse Impacts of Sociological Factors on Clients in Community Work and Services;
j) Manage And Promote Diversity;
k) Manage Legal and Ethical Compliance;
l) Facilitate Workplace Debriefing and Support Processes;
m) Work With People with Mental Health Issues;
n) Reflect on an Improved Own Professional Practise;
o) Manage Work Health and Safety;
p) Facilitate The Interests and Rights Of Clients;
q) Work in an Alcohol and Other Drugs Context; and
r) Assess Coexisting Needs
Ms Moon provided a Position Description she had been provided with when she first applied for work with Activ.[61] It was Ms Moon’s view that the role had remained substantially similar since then albeit administration duties and compliance reporting had increased.[62]
Whilst the Position Description is transcribed in full at Annexure A to this decision, it is observed that the ‘Position Purpose’ of that same Position Description stated:
To provide support and work in collaboration with Activ’s customers to maintain skills and develop independence. Through the development, implementation and monitoring of Person Centred Plans, staff will support customers to achieve goals and work towards outcomes. This may include providing support with daily living skills, health and hygiene, maintaining the customer’s home environment, supporting social interaction, recreational opportunities and employment options. Support will be provided in alignment with the National Disability Standards.
Classifications in the Agreement
Clause 19.1 of the Agreement sets out that ‘[t]he classification structure and Base Rates are set out in Schedule C of this Agreement’.
Schedule C: Classifications and Base Rate of Pay, sets out six classification levels. Those levels are Levels, 1, 2A, 2B, 2C, 3 and 4. Relevant to the dispute are classification levels 1 and 2A:
| Classification | Level & Pay Point | Role & Progression | Base Rate From first full pay period after EA commencement |
| Level 1 | Level 1.1 | Starting level for Employees new to the industry, with less than 6 months experience and no qualification | $24.99 |
| Level 1.2 | Progression after 6 months in the role Starting level for experienced staff with no qualifications | $25.17 | |
| Level 1.3 | Annual Progression from 1.2, subject to satisfactory performance | $25.32 | |
| Level 2A | Level 2A.1 | Employees with a relevant Certificate III or higher qualification will start at this level Employees with 2 years’ experience in the industry and who are actively working towards a Certificate III or other relevant qualification, will start at this level. | $29.32 |
| Level 2A.2 | Employees with a relevant Certificate IV or higher qualification will start at this level Annual Progression from 2A.1, subject to satisfactory performance | $30.23 | |
| Level 2A.3 | Annual Progression from 2A.2, subject to satisfactory performance | $31.14 | |
| Level 2A.4 | Annual Progression from 2A.3, subject to satisfactory performance | $31.97 |
At Schedule A of the Agreement sits the Responsibility and Competency Matrix (the Matrix), which describes ‘the generic responsibilities and competencies required of all Employees’ under the Agreement by their classification level.
The Matrix notes that there are role specific requirements for certain positions, however that does not appear to be the case for the position of ‘Support Worker’. A copy of the Matrix is attached at Annexure B to this decision.
Relevantly, in respect of the Level 2 classification, under ‘4. Education and training requirements’, the Matrix sets out the following:
Certificate III in Individual Support (Disability) or equivalent in comparable area.
Or with at least 2 years of experience in industry and actively working towards a Certificate III or other relevant qualification.
Note: Where an Employee discontinues studying the Certificate III that Employee will be reclassified to Level 1, pay point depending upon current year / rate.
Note 2: Activ will provide training for the Certificate III for Employees that have demonstrated satisfactory performance at Level 1. (italics for emphasis)
Question A
4.1 The UWU’s submissions
Regarding the interpretation of the Agreement, the UWU submits that clause 19.1 of the Agreement sets out that the classification structure and Base Rates are set out in Schedule C of the Agreement. Pursuant to Schedule C, under Level 2A, employees with a ‘relevant Certificate III’ will start at Level 2A.1 and employees with a ‘relevant Certificate IV or higher qualification’ will start at Level 2A.2.
The UWU observes that the Agreement refers to a ‘relevant Certificate III or higher’, and while the meaning of the word ‘relevant’ is not explicitly defined in the Agreement, it is plainly a reference to a certificate relevant to the type of work performed by employees covered by the Agreement and classification structure therein. That is, says the UWU, a certificate relevant to providing disability support services.
It is on this basis that the UWU contends that, even though the term ‘relevant’ has a broad meaning, an ordinary and natural meaning without ambiguity is nevertheless apparent from the text of the clause without reference to the broader context and purpose of the Agreement as a whole.
Turning to Schedule A, the UWU submits that the Matrix refers to a ‘Certificate III in Individual Support (Disability) or equivalent in comparable area’ in relation to the indicative education and training requirements for a Level 2 employee. The UWU further submits that Schedule A also refers to a ‘Certificate IV in Disability or equivalent qualification in a comparable area’ in relation to the education and training requirements for a Level 3 employee.
The UWU contends that Schedule A (unlike Schedule C) is not referred to in any clause of the Agreement. The UWU says that as such, Schedule A does not impose an additional requirement that an employee must hold a Certificate III in Individual Support (Disability) or equivalent (or be actively working towards the same) in order to be appointed to Level 2. Rather, Schedule A should be characterised as a relevant guide to interpreting the generic responsibilities and competencies required for a given level, which does not displace the ordinary and natural meaning of clause 19.1. Pursuant to clause 19.2, the classification is determined by Schedule C, and Schedule C refers to a ‘relevant Certificate’.
The approach endorsed by the UWU is to ascertain whether the affected employee holds a ‘relevant Certificate III or higher qualification’ (Schedule C) rather than whether they hold a “Certificate III in Individual Support (Disability) or equivalent in comparable area’ (Schedule A). The UWU argues that the answer to Question A is ‘no’ – Schedule A does not impose this additional requirement on the application of clause 19.1.
4.2 Activ’s submissions
Activ submits that clause 3 of the Agreement sets out the coverage of the instrument as applying to direct care employees covered by the classifications listed in Schedule C.
Schedule C sets out the classification level, the pay points within the level, role and progression and the base rate of pay applicable at the time of commencement. Activ observes that there are three grades within Level 2, being Level 2A, Level 2B and Level 2C. However, it considers that for the purpose of the dispute, the relevant question is whether the employees should be classified as Level 1 or 2A.
Activ submits that Schedule C identifies that Level 2A.1 is the starting level for an employee with:
a) a relevant Certificate III or higher qualification; or
b) 2 years’ experience in the industry who are actively working towards a Certificate III or other relevant qualification.
However, Activ observes that Schedule C provides little information regarding the nature of the work being performed, and that this information is contained in Schedule A – the Matrix, which sets out:
a) Overview of the role;
b) Progression;
c) Span of influence and focus;
d) Education and training requirements;
e) Previous work experience;
f) Customer engagement and person-centred engagement;
g) Personal care, skill development and support;
h) Technical and business expertise;
i) Quality expectations;
j) Leadership and people responsibilities;
k) Results obligations;
l) Reporting, documentation and administration; and
m) Occupational health and safety responsibilities.
Activ observes that Schedule A identifies that ‘[t]his matrix describes the generic responsibilities and competencies required of all Employees under this agreement by their classification level’.
According to Activ, the purpose of Schedule A is clearly stated as identifying the generic competencies required of all employees.
Referring to the UWU’s application, Activ notes that the UWU states (at item 7 of question 2) that it is their interpretation of the Agreement that a Certificate III in Individual Support (Disability) is simply the preferred qualification for progression to Level 2. Activ submits that such a view is clearly at odds with the stated purpose of Schedule A.
Activ further submits that Schedule A does not operate contrary to Schedule C. Instead, it operates as a tool for determining the appropriate classification of an employee and identifying the duties and responsibilities required of that grade. It is an integral part of the Agreement and is relevant in determining an employee’s classification.
Activ observes that the Agreement does not define the terms ‘relevant’ or ‘equivalent’. It says that it is appropriate that consideration is given to the ordinary meaning of the term, along with its context and purpose.
4.3 Consideration and conclusion
The decision of the Full Bench in Australian Manufacturing Workers’ Union v Berri Pty Ltd informs that in construing an enterprise agreement, it is first necessary to determine whether an agreement has a plain meaning, or it is ambiguous or susceptible of more than one meaning.[63] When ascertaining whether a clause is ambiguous or susceptible of more than one meaning, regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.[64]
It is accepted that the principles of construction of enterprise agreements operate when considering classification structures, including indicative tasks specified for various levels, for the purpose of determining the appropriate classification level of an employee.[65] Each level of a classification structure and the underpinning definitions must be read in the context of higher or lower levels having regard to the descriptions at higher and lower levels of similar tasks with ascending and descending degrees of complexity.[66]
The typical resolution of a classification dispute involves multiple steps. The first question concerns the construction of the disputed classifications.[67] Having arrived at the construction of the disputed classifications, the dispute is thereafter resolved by ascertaining the work performed by the employee and then comparing that work to the classification descriptions in the applicable industrial instrument, construed in accordance with the established principles of construction for industrial instruments.[68]
However, in this case, the Commission is asked the discrete question of whether when classifying an employee pursuant to clause 19.1 of the Agreement, does Schedule A of the Agreement require an employee to hold a ‘Certificate III in Individual Support (Disability) or equivalent in comparable area’ (or be actively working towards the same) in order to be appointed to Level 2?
As a general proposition, it is accepted that when interpreting an instrument (be it a statue or an enterprise agreement), one should strive to give meaning and effect to each of its terms.[69] As was said by the Full Bench in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Simplot Australia Pty Ltd, ‘[w]e are not at liberty to consider any word or sentence as superfluous or insignificant. All words must prima facie be given some meaning and effect.’[70]
As observed, clause 3 of the Agreement sets out the coverage of the Agreement by reference to Schedule C. Clause 19.1 of the Agreement sets out that the classification structure and Base Rates are set out in Schedule C of the Agreement.
Evidently Schedule C is important because it sets the parameters for coverage whilst, in addition, it creates the pay structure for relevant employees in accordance with various classifications and levels within those classifications.
Some might also say that Schedule B is of importance as it appears to provide a framework for the transition of employees from the ‘DC EA 2015’ to the ‘One Support Worker’ model as set out in the Agreement. The ‘DC EA 2015 is said to mean the ‘Activ Foundation Incorporated – United Voice – Direct Care Staff Enterprise Agreement 2015’.[71] Schedule B effectively identifies the classification under the DC EA 2015 and the equivalent classification under the Agreement. It is not apparent that the Schedule is referred to anywhere else in the Agreement – unlike Schedule C.
Under Schedule C, Level 2A, employees with a ‘relevant Certificate III’ will start at Level 2A.1 and employee with a ‘relevant Certificate IV or higher qualification’ will start at Level 2A.2. As to what constitutes ‘relevant’ is not expressly divulged in the context of the Agreement (that is, ‘relevant’ is not defined).
However, the parties have referred me to the Matrix (Schedule A), which Activ says describes the generic responsibilities and competencies required of all employees under the Agreement by their classification level. For Level 2, the ‘Education and training requirements’ are described as follows:
Certificate III in Individual Support (Disability) or equivalent in comparable area.
Or with at least 2 years of experience in industry and actively working towards a Certificate III or other relevant qualification.
Note: Where an Employee discontinues studying the Certificate III that Employee will be reclassified to Level 1, pay point depending upon current year/rate.
Note 2: Activ will provide training for the Certificate III for Employees that have demonstrated satisfactory performance at Level 1.
To be able to answer the question asked, it is necessary to return to Schedule C, the schedule referred to in clause 19.1. That Schedule clearly sets out, in my view, that to start at Level 2A.1 an employee must have either the requisite qualification or alternatively the requisite experience in the industry (in this case two years) and be working toward the Certificate III or other relevant qualification (requisite qualification).
I do not consider that this part of Schedule C, Level 2A.1 is ambiguous. Reference is made to a ‘relevant’ ‘Certificate III or higher qualification’. The word ‘relevant’ means ‘bearing upon or connected with the matter in hand; to the purpose; pertinent: a relevant remark’.[72]
As observed, it is accepted as a general proposition that when interpreting an instrument, one should strive to give meaning and effect to each of its terms. Whilst the UWU has correctly identified that Schedule A is not referred to in other parts of the Agreement – the same can also be said for Schedule B. Yet neither Schedule A nor B appear to be perfunctory inclusions. Schedule B imposes additional requirements on Activ, compelling it to recognise an employee’s classification under the DC EA 2015 and attribute to that same employee a specified classification under the Agreement. The absence of reference to Schedule B in the remainder of the Agreement does not nullify the sentence in paragraph 2 of the Schedule, which provides ‘the following entitlements will apply to Employees whose employment classifications will transition…’. Any argument that Schedule A is neutered due to an absence of reference to it in the remainder of the Agreement must be rejected.
Returning to Schedule C, Level 2A.1 refers to ‘relevant’, and it is here that Schedule A of the Agreement has work to do. Schedule A informs, in part, as to the type of qualification that has bearing upon or is connected with the Level 2 classification, and the duties and responsibilities under that classification.
Activ submitted, correctly in my view, that Schedule A does not operate contrary to Schedule C. Activ continued that the Matrix operates as a tool for determining the appropriate classification of an employee and identifying the duties and responsibilities required of that grade.
It is worthwhile reiterating at this juncture that ‘Schedule A: A Responsibility and Competency Matrix’ sets out:
This matrix describes the generic responsibilities and competencies required of all Employees under this agreement by their classification level.
The Matrix clearly articulates that within it are the ‘generic responsibilities and competencies’ required of all ‘Employees’ by their ‘classification level’. The reference to the ‘classification level’ expressly relates back to those classifications set out in Schedule C – so much is evident from the content of the Matrix. Further the ‘generic responsibilities and competencies’ exist as a ‘requirement’. This, meaning the word ‘requirement’, is not a word that speaks of optionality or something nice to have.
The word ‘generic’ qualifies the words ‘responsibilities and competencies’. However, it should not be construed as somehow diluting what is required by way of competency. ‘Generic’ simply refers to all the members of a genus or class; it is to be construed in this context as prescribing the competencies for each ‘level’ from Level 1 to Level 4 classifications – and in particular the ‘Education and training requirements’ of each.
The Matrix itself again speaks to ‘requirements’ when referring to ‘Education and training’. Again, the language is obligatory – it is education or training that is required for the employee to be appointed to a specific classification level.
It follows that for an employee under the Agreement to be appointed to Level 2, that same employee must hold a Certificate III in Individual Support (Disability) or equivalent in a comparable area. Alternatively, the employee must have at least two years of experience in industry and actively working towards a Certificate III or other relevant qualification.
As to what constitutes ‘equivalent in a comparable area’, the word ‘equivalent’ indicates that it is a certification of the same level (Certificate III). The words ‘comparable area’ suggest that the area does not have to be the same but must be capable of being compared – that is, the area of study must have similarities to the Certificate III in Individual Support (Disability).
It is relevant at this point to observe that the completion of such certification is not the only consideration when appointing an employee to the Level 2 classification. It is one of 13 items under the Matrix that are taken into account when making such decision.
Question B
To recap, Question B referred to a cadre of Activ’s employees and former employees (Ms Lamiyya Nyanje and Ms Sandra Chapman). It asked, when classifying:
i.Ms Christine van de Leur pursuant to clause 19.1 of the Agreement, is her Certificate IV in Community Services (Disability Work) a relevant or equivalent qualification for the purposes of appointment to Level 2?
ii.Ms Suzan Longinous pursuant to clause 19.1 of the Agreement, is her Certificate IV in Community Services a relevant or equivalent qualification for the purposes of appointment to Level 2?
iii.Mr Manish Bajaj and Ms Sandra Chapman pursuant to clause 19.1 of the Agreement, are their respective Certificate III in Community Services a relevant or equivalent qualification for the purposes of appointment to Level 2?
iv.Ms Kristin Moon pursuant to clause 19.1 of the Agreement, is her Certificate IV in Community Services and/or Diploma of Community Services a relevant or equivalent qualification for the purposes of appointment to Level 2?
v.Ms Lamiyya Nyanje pursuant to clause 19.1 of the Agreement, is her Diploma of Community Services a relevant or equivalent qualification for the purposes of appointment to Level 2?
5.1 UWU’s submissions
The UWU submits that regardless of whether the proper test for determining the classification level is ‘relevant Qualification’ (Schedule C) or ‘Certificate III in Individual Support (Disability) or equivalent in comparable area’ (Schedule A), all affected employees hold a sufficiently relevant or equivalent qualification for the purposes of appointment to Level 2.
Regarding the use of the word ‘equivalent’ in Schedule A, the UWU contends that it is a reference to employees holding either the named qualification or a qualification which is sufficiently equal to that. In that respect, the UWU contends that the qualifications held by the employees in question are both relevant and equivalent for the purposes of their positions.
On that basis, the UWU says the answer to all sub-questions to Question B is ‘yes’ – these are relevant and comparable qualifications.
5.2 Activ’s submissions
Whilst having filed extensive submissions, Activ summarised the dispute as being one that relates to whether the qualifications held by the relevant employees are relevant qualifications for the purpose of appointment to Level 2 under the Agreement.
Regarding the interpretation of the relevant clauses of the Agreement, Activ remains of the view that Schedule C of the Agreement identifies that Level 2A applies where an employee has:
a) a relevant Certificate III or higher qualification; or
b) two years’ experience in the industry and are actively working towards a Certificate III or other relevant qualification.
Activ submitted that the above makes it clear that the primary distinction between Levels 1 and 2A is the possession of, or progression toward, a relevant Certificate III or higher qualification.
Regarding the Matrix, Activ identified that the reference to ‘equivalent in a comparable area’ under Level 2 takes into consideration other roles where the Certificate III in Individual Support (Disability) is not relevant to the work being performed. Activ pointed to a current example where Activ is engaging direct care workers who are predominately engaged to support customers with a mental illness or psychiatric disability. Activ noted that these employees are considered to have a relevant qualification if they have a Certificate IV in Mental Health
5.3 Consideration and conclusion
The first observation is that the Certificate III in Individual Support (Disability) and Certificate IV in Disability Support, and the Certificates III and IV in Community Services, focus on the provision of individualised care. While it is true the latter certificates also focus on supporting individuals in community settings or supporting the implementation of specific community-based programs, it is nevertheless the case that these latter certificates encompass supporting individuals through the provision of person-centric services. To draw a distinction between the groupings of qualifications as one being individual-centric and the other community centric is an artificial distinction which fails to acknowledge the individualised care component of the Certificates III and IV in Community Services.
The second observation is that units of study, particularly the core units, in both the Certificate III in Individual Support (Disability) and Certificate IV in Disability Support, appear to cover a broader subject matter than that of a ‘Disability’ speciality. In this respect, I refer to units in the Certificate III Individual Support (Disability) such as ‘Work legally and ethically’, ‘Follow safe work practices for direct client care’, ‘Apply basic principles and practices of infection prevention and control’, ‘Work with diverse people’ and ‘Communicate and work in health or community services’. However, these examples of broader subject matters are not confined to the abovementioned five.
Similarly, the Certificates III and IV in Community Services cover broad subject matter in the core units. It is subject matter, much like many of the core units in the Certificate III in Individual Support (Disability) and Certificate IV in Disability Support, that one might anticipate useful across multiple health milieus.
However, the Certificates III and IV in Community Services allow, like other courses traversed, for the selection of elective units. I have already noted that these courses offer elective unit(s) that focus on disability. The Certificate IV in Community Services offers the electives of: (a) Facilitate the empowerment of people with disability; and (b) Provide person-centred services to people with disability with complex needs, amongst others.[73] In my view, if the employee had completed a Certificate IV in Community Services and had completed these two units, then this would constitute a certificate that is equivalent to the Certificate III in Individual Support (Disability) and is within a comparable area. Further, if the employee had completed a Certificate III in Community Services, inclusive of the unit ‘Facilitate the empowerment of people with disability,[74] then again, I would consider the employee had completed a certificate that is equivalent to the Certificate III in Induvial Support (Disability) and is within a comparable area.
Before addressing the questions that form Question B, it is relevant to again highlight that what constitutes a relevant Certificate III or higher qualification is the Certificate III in Individual Support (Disability) or equivalent in a comparable area.
Turning to each of the of the individual employees and noting the clarification provided in the paragraphs that follow, when classifying:
i.Ms Christine van de Leur pursuant to clause 19.1 of the Agreement, is her Certificate IV in Community Services (Disability Work) a relevant or equivalent qualification for the purposes of appointment to Level 2? Yes
ii.Ms Suzan Longinous pursuant to clause 19.1 of the Agreement, is her Certificate IV in Community Services a relevant or equivalent qualification for the purposes of appointment to Level 2? No
iii.Mr Manish Bajaj and Ms Sandra Chapman pursuant to clause 19.1 of the Agreement, are their respective Certificate III in Community Services a relevant or equivalent qualification for the purposes of appointment to Level 2? No - there is insufficient material before this Commission to make such determination.
iv.Ms Kristin Moon pursuant to clause 19.1 of the Agreement, is her Certificate IV in Community Services and/or Diploma of Community Services a relevant or equivalent qualification for the purposes of appointment to Level 2? No.
v.Ms Lamiyya Nyanje pursuant to clause 19.1 of the Agreement, is her Diploma of Community Services a relevant or equivalent qualification for the purposes of appointment to Level 2? No – there is insufficient material before this Commission to make such determination.
In respect of Ms van de Leur’s Certificate IV of Community Services (Disability Work), I have considered Ms Ridley’s evidence that the certification is, in effect, defunct. It may be recalled that Ms Ridley gave evidence that the course was discontinued in 2002. Whilst Ms Ridley has spoken to the content of the course not reflecting the current thinking on supporting people with a disability, in the absence of tangible evidence from a relevant regulatory body that indicates or otherwise deems such qualification obsolete, I am hesitant to land on a finding that does not afford obeisance to the Certificate IV in Community Services (Disability Work). I am therefore unable to conclude that the Certificate IV in Community Services (Disability Work) is not a relevant or equivalent qualification for the purpose of appointment to the Level 2 classification.
DEPUTY PRESIDENT
Appearances:
Mr Z Doherty for the Applicant.
Mr P Moss for the Respondent.
Hearing details:
2023.
Perth (by video):
22 February.
Annexure A
Annexure B
[1] AE514138.
[2] MA000100.
[3] Statement of Agreed Facts and Questions to be Arbitrated dated 23 December 2022, [2].
[4] Witness Statement of Patrisha Ridley, [9] (Ridley Statement).
[5] Ibid.
[6] Ibid [2].
[7] Ibid.
[8] Ibid [3].
[9] Ibid [4].
[10] Ibid.
[11] Ibid [5].
[12] Ibid [13].
[13] Ibid [14].
[14] Ibid.
[15] Ibid [15].
[16] Ibid attachment A; Digital Hearing Book, 221 (DHB).
[17] Ridley Statement (n 4) attachment A; DHB (n 16) 224.
[18] Ridley Statement (n 4) [18].
[19] Ibid.
[20] Ibid [19].
[21] Ibid attachment B; DHB (n 16) 227.
[22] Ridley Statement (n 4) attachment B; DHB (n 16) 231.
[23] Ridley Statement (n 4) [22].
[24] Ibid.
[25] Ibid [23].
[26] Ibid.
[27] Ibid [27].
[28] Ibid [28].
[29] Ibid [31].
[30] Ibid.
[31] Ibid.
[32] Ibid attachment E; DHB (n 16) 247.
[33] Ridley Statement (n 4) [32].
[34] Ibid [29].
[35] Ibid [33].
[36] DHB (n 16) 233.
[37] Ridley Statement (n 4) attachment C; ibid 234.
[38] Ridley Statement (n 4) attachment C; DHB (n 16) 237.
[39] Ridley Statement (n 4) attachment C; DHB (n 16) 235.
[40] Ridley Statement (n 4) [30].
[41] DHB (n 16) 243.
[42] Ibid.
[43] Ridley Statement (n 4) attachment C; ibid 235.
[44] DHB (n 16) 245.
[45] Ridley Statement (n 4) [35].
[46] DHB (n 16) 253.
[47] Ridley Statement (n 4) [39].
[48] Ibid.
[49] Witness Statement of Ms Christine van de Leur, [5].
[50] Ibid [7].
[51] Ibid attachment 2.
[52] Ibid [10].
[53] Ibid.
[54] Ibid.
[55] Ibid [12].
[56] Ibid [12].
[57] Ibid [14], attachment 6.
[58] Witness Statement of Ms Kristin Moon, [2].
[59] Ibid [3].
[60] Ibid [4].
[61] Ibid [5].
[62] Ibid.
[63] (2017) 268 IR 285, 311 [114.7].
[64] Ibid 311 [114.8].
[65] Watson v Safe Places Community Services Ltd [2020] FWCFB 2993, [33].
[66] [2020] FWCFB 2993.
[67] Telstra Corporation Ltd v CPSU, the Community and Public Sector Union[2022] FWCFB 64, [6].
[68] Grobovsky v United Protestant Association [2015] FWC 2504, [14].
[69] “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Simplot Australia Pty Ltd[2018] FWCFB 1156, [28].
[70] Ibid, citing Project Blue Skv Australian Broadcasting Authority (1998) 194 CLR 355, 382 (McHugh, Gummow, Kirby and Hayne JJ); Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294, [92]–[93] (Allsop J).
[71] AE416801.
[72] Macquarie Dictionary (online at 11 March 2023) ‘relevant’.
[73] Ridley Statement (n 4) attachment C; DHB (n 16) 237.
[74] DHB (n 16) 245.
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