United Workers' Union v Casson Homes Inc
[2023] FWC 129
•15 MARCH 2023
| [2023] FWC 129 |
| FAIR WORK COMMISSION |
| OPINION |
Fair Work Act 2009
s.739—Dispute resolution
United Workers’ Union
v
Casson Homes Inc
(C2022/8207)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 15 MARCH 2023 |
Alleged dispute about any matters arising under the Social, Community, Home Care and Disability Services Industry Award 2010’ – meaning of ‘appropriate certificate’ in Schedule B
Issue
The United Workers’ Union (the Applicant) has referred a dispute between it and Casson Homes Inc (the Respondent) to the Commission under s 739 of the Fair Work Act 2009 (Cth) (the Act) and the dispute resolution procedure in the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award).[1] The parties seek from the Commission an opinion on the correct classification of three employees (the relevant employees) under the Award. The relevant employees are support workers who are currently classified as ‘social and community services employees’ at Level 1 of Schedule B of the Award. The UWU contends that the correct classification for the relevant employees, is Level 2 ‘social and community services’ under clause B.2.1(e) of the Award.
The Respondent operates a number of different facilities in and around Perth, Western Australia, that are dedicated to assisting clients with mental health issues.[2] In-patient care is provided in the form of a fully staffed psychiatric facility providing around the clock care for its patients (Casson House) and a separate aged care facility that provides care for elderly residents.[3]
In addition, there are a number of other facilities that fall under the ambit of Casson Communities.[4] These include the Transitional Accommodation in Tuart Hill and the house of Supported Independent Living (SIL) in Helena Valley. The Respondent also provides support for clients dealing with mental health issues who live independently in the community.[5]
The Applicant and the Respondent agree that the relevant employees should be classified as ‘social and community services employees’ under Schedule B of the Award. However, as observed, where the difference between them lies is the ‘level’ at which the employees are appointed under the relevant classification framework.
The resolution of the dispute turns in part on the proper construction of the Award in respect of clause B.2.1(e) of Schedule B. Relevantly, clause B.2.1(e) of Schedule B reads:
B.2 Social and community services employee level 2
B.2.1 Characteristics of the level
…
(e) Employees who have completed an appropriate certificate and are required to undertake work related to that certificate will be appointed to this level. Where the appropriate certificate is a level 4 certificate the minimum rate of pay will be will pay point 2.
The Applicant favours an interpretation whereby an employee is appointed to Level 2 if:
a) they have completed an appropriate certificate; and
b) they are required to undertake work related to that certificate.
The Respondent submits that the relevant employees were correctly classified as social and community workers Level 1 by virtue of the facts that:
a) the certificates held by the relevant employees were not ‘appropriate’ as they were not ‘required’ by the Respondent to undertake the duties they performed; and
b) the relevant employees were not required to undertake work in relation to their certificates.
The Respondent pressed that it was never its intention that the relevant employees perform work related to the certificates they held, nor was it the reality of the duties they perform.
Having conferred with the parties, the parties agreed that the questions asked of this Commission and on which an opinion is sought, are as follows:
a) what is the proper construction of clause B.2.1(e) of Schedule B of the Award; and
b) on the commencement of their employment, what was the proper classification of the support worker position in which the relevant employees were employed, by reference to clause B.2.1(e) of Schedule B of the Award.
Background
Before traversing the background to this matter, it should be said that the parties were in agreement that: (a) there is a dispute between them; (b) the dispute had been properly notified to the Commission; and (c) the requirements of the dispute settlement procedure had been complied with.
Turning to the relevant employees, Ms Parminder Kehal remained employed with the Respondent, whilst the other relevant employees, a Ms Kylie Cooper and Ms Jedda Spice had resigned. Perhaps unsurprisingly, the day before the hearing, the Commission was notified that due to personal circumstances, Ms Cooper and Ms Spice were unavailable to give their evidence. While the Respondent consented to their witness statements being tendered into evidence, the Respondent submitted that minimal weight should be attributed to such statements. The Applicant also called a Ms Helen Thomas, who purported to be a former Team Leader within the Respondent organisation and who had been a point of contact for the relevant employees in the workplace. There was some dispute as to whether Ms Thomas portrayed an accurate picture of her former role in the organisation. Briefly stated, I was unconvinced by Ms Thomas’ account and have afforded it little weight. Ms Thomas struck me as a former employee of the Respondent who had been aggrieved by her treatment, and the treatment of others, within the organisation.
The Respondent called three witnesses, Ms Peta Williamson, Community Manager, Ms Roisin Kielty, General Manager of Casson Communities, and Mr Mark Retzlaff, Roster Clerk. The Respondent’s witness provided evidence of little use with respect to determining a qualification that may represent an ‘appropriate’ certificate.
Ms Williamson gave evidence that her duties within the Respondent organisation extended to overseeing staff and dealing with staff complaints, conducting performance appraisals, conducting monthly meetings with staff and processing and overseeing time sheets.[6] Ms Williamson clarified that her primary role however was to liaise with Team Leaders and ‘NDIS’ (National Disability Insurance Scheme) staff on matters involving duties and rostering.[7]
Ms Williamson explained that in addition to clinical staff, the Respondent employs a number of care workers and support workers.[8] Ms Williamson said that although there is some limited overlap in duties, care workers predominantly provide hands-on assistance to clients. This includes toileting, showering, medication prompting and other personal care activities to assist with daily living.[9] Support workers, particularly those who are employed to assist clients with community engagement, provide emotional support for clients. This is achieved by taking clients on outings, assisting clients to complete tasks like shopping and taking clients to appointments.[10] Support workers mainly assist clients to maintain a connection to the community.[11]
According to Ms Kielty, the main goal of support workers within the Respondent organisation is to assist clients with community participation and engagement.[12] Ms Kielty reiterated the primary mandate of support workers is to get their clients out of their accommodation and to build their confidence in achieving daily living tasks.[13] Tasks include assisting clients with their shopping, going to appointments, going to the bank, going for walks in the park and going out for coffee and cake.[14] Ms Kielty clarified that support workers are not employed to provide personal care for clients in the form of showering, toileting or dressing.[15]
Ms Kielty noted that depending on the client and their NDIS goals, a support worker may be required to assist a client with daily living tasks such as keeping their room clean or watering their garden.[16] However, the majority of duties involve taking clients from place to place and helping them to stay connected to the community.[17]
Ms Kielty said that support workers are required to provide information about their clients via an online client log.[18] This involves accessing the online log, clicking on the client’s name, and briefly describing what outings or activities the worker had helped support their client with that day.[19] Ms Kielty expressed that this was a simple task and involved a description of what was achieved.[20]
Mr Retzlaff explained that he created the fortnightly rosters to allocate shifts for support workers assisting clients in various facilities of the Respondent.[21] As part of his role, he allocated shifts for Ms Copper, Ms Spice and Ms Kehal. Mr Retzlaff gave evidence that:
a) Ms Cooper was rostered exclusively to provide support for clients in Casson House and that none of the clients Ms Cooper assisted had complex care needs;[22]
b) Ms Spice was rostered to provide support for clients in SIL;[23] and
c) Ms Kehal was rostered to work with community clients as well as clients in Casson House.[24]
2.1 Ms Kehal
Ms Williamson confirmed that Ms Kehal commenced employment with the Respondent as a support worker in around August 2021.[25] It appeared uncontroversial that Ms Kehal remained employed by the Respondent but was currently on leave due to a work-related injury.
Ms Williamson said that before commencing employment with Casson Communities, Ms Kehal undertook an unpaid work placement at Casson House.[26] Ms Williamson said that it was not until after Ms Kehal commenced employment that she was informed she was undertaking the placement in order to gain her Certificate IV in Mental Health. Ms Williamson stated that she was not aware that Ms Kehal held this certificate until 4 July 2022, when it was presented to her – a point that Ms Williamson reiterated at hearing.
With respect to Ms Williamson’s awareness of Ms Kehal’s Certificate IV in Mental Health, Ms Kehal disputed Ms Williamson’s account. Ms Kehal drew upon an Expression of Interest (EOI)[27] that she had sent to the Respondent for the support worker role. The EOI listed Ms Kehal’s qualifications as ‘Cert IV in Mental Health’ and ‘BSc – Chemistry’.
Ms Kehal stated that she had completed a Certificate IV in Mental Health which had been issued to her on 18 August 2021. Ms Kehal said that she had provided this information to the Respondent during her recruitment interview on 20 August 2021.[28]
Ms Kehal gave evidence that in 2022, after discussing her Certificate IV with a colleague, she became aware that her colleague was receiving a higher rate of pay due to having the Certificate IV in Mental Health qualification. This prompted Ms Kehal to query with the Respondent why she was not receiving the higher pay rate in recognition of her Certificate IV.
Ms Williamson acknowledged that Ms Kehal had been reclassified to the Level 2 classification and her pay had been backdated to 4 July 2022.[29] However, Ms Williamson said that the reclassification of Ms Kehal’s position was due to the additional care duties that Ms Kehal had agreed to undertake and as a gesture of goodwill.[30] Ms Williamson noted that unlike Ms Cooper and Ms Spice, Ms Kehal was asked, on occasion, to assist with the personal care of clients, particularly one client who suffered from incontinence.[31]
Ms Kehal referred to email correspondence that had passed between her and Ms Williamson. While proving unnecessary to transcribe all that passed between Ms Kehal and Ms Williamson in their correspondence, of relevance was the following:
From: Peta Williamson <[email protected]>
Date: Fri, Jun 17, 2022 at 2:25 PM
Subject: RE: Pam pay
To: parminder kehal <[email protected]>
Cc: Roisin McLoughlin <[email protected]>, Chris Goodrem <[email protected]>Good Afternoon Pam,
Thank you for your email.
It is correct that staff with a Cert IV in mental health receive a different pay rate however, I have looked in your file and no certificate was ever handed in when you commenced with Casson Communities and nothing is stated on any other documents that you provided when applying for the Support Worker Position.
It is important to sight the certificate and have a copy in your staff file.
Once you provide me with this I will be more than happy to adjust your rate.I hope you have a good weekend :)
Kind regards,
Peta Williamson
Regarding the duties Ms Kehal performed, she provided several examples, including, but not limited to, the following:
a) effective communication to manage a client with autism who had mental health challenges and anxiety;
b) managing several clients with psychiatric conditions;
c) cleaning of an unhygienic house;
d) grooming, washing, cleaning, and looking after plants;
e) communicating by touch for a client who was non-verbal, blind, and deaf; and
f) giving morning medication, assisting with breakfast, assisting with toileting, showering, laundry, and dressing.
As part of her evidence, Ms Kehal provided her position description. Under the competency profile, the following was set out:
Competency profile Essential Desirable The specific competencies, knowledge, qualifications, training and experience that are required to fill this role Knowledge · Sound knowledge and awareness of NDIS.
· Understanding and Knowledge of clients plans wishes and goals.
· Understanding the reporting requirements for NDIS.
Practical · Leadership and People management.
· Ability to respond appropriately to clients who are [sic] need of services for NDIS.
Experience · Significant understanding of what is required to provide supports to meet client goals.
· Experience of working as a support worker or lived experience.
Training and experience Qualified:
· Suitable certificate related to support worker or history within the field of providing services.
2.2 Ms Cooper
Ms Williamson reported that Ms Cooper commenced employment with the Respondent in around May 2021, until her resignation on 8 December 2022.[32] Ms Cooper had completed a Certificate III in Allied Health Assistance on 7 May 2014.
According to Ms Williamson, Ms Cooper began her employment with Casson House as a care worker, reporting directly to Ms Sonia Church.[33] However, Ms Williamson understood that Ms Cooper performed one or two shifts as a care worker before deciding that she preferred a support worker role and transferred to Casson Communities.[34] Ms Williamson said that she was not aware of Ms Cooper’s qualifications prior to her beginning work as a support worker and did not know whether Ms Church was made aware of the certificates that Ms Cooper held.[35] Ms Williamson stated that in agreeing to Ms Cooper’s transfer to the support worker role, she did not know that Ms Cooper held a Certificate III, nor did she consider it relevant for the role.[36]
Mr Retzlaff said that Ms Cooper was rostered exclusively to provide support for clients in Casson House.[37] Mr Retzlaff noted that none of the clients Ms Cooper assisted had complex care needs.[38] Mr Retzlaff explained that a client with complex care needs is one that requires, for example, manual handling to get them in and out of bed, may require assistance going to the toilet, or have bowel or incontinence issues.[39] According to Mr Retzlaff, Ms Cooper was not required to perform manual handling tasks with clients (i.e. lift them in and out of bed, or assist them into a wheelchair), nor was she required to assist them with personal care.[40]
Ms Williamson said that it was her understanding that during her employment as a support worker with Casson House, Ms Cooper had three primary clients: ‘PB’, ‘V’ and ‘AB’.[41] Similar to the evidence of Mr Retzlaff, Ms Williamson said that none of these clients had complex needs and Ms Cooper was not required to attend to their personal care.[42] Ms Williamson observed that had Ms Cooper remained as a care worker, attending to clients’ personal care needs would have formed part of her duties.[43] As a support worker, however, it was not.[44]
In response to Ms Cooper’s assertion that one client with whom she worked had an eating disorder, Ms Williamson said she did not believe this to be true and in the event that it was, it was not information that Ms Cooper should have been privy to.[45] Ms Williamson clarified that Ms Cooper was never directed to assist ‘V’ in relation to her dietary needs.[46] Ms Williamson stated that clients living in Casson House have around the clock care, including from care workers and clinical staff.[47] Ms Williamson noted that it is not appropriate for support workers to give advice or information to clients in relation to their nutrition, and Ms Cooper was certainly never directed to do this.
Ms Williamson observed that Ms Cooper also claimed that she assisted another of the clients, ‘PB’, with exercise activities.[48] Again, said Ms Williamson, this is not required of support workers.[49] Ms Williamson said that it is also not something that Ms Cooper was directed to do, as it would be inappropriate. Ms Cooper was, however, required to take ‘PB’ to hydrotherapy sessions and to meet with her physiotherapist who would assist with ‘PB’s’ mobility issues, but this is the extent of her permitted involvement with ‘PB’s’ exercise activities.[50]
2.3 Ms Spice
Up until Ms Spice’s resignation, she had worked for the Respondent as a support worker since August 2020.[51] Ms Spice had completed at Certificate III in Individual Support (Ageing), issued on 20 March 2018.[52]
The Award
It is uncontroversial that the Award covers the Respondent and the relevant employees.
Clause 13 reads:
13. Classifications
13.1 The definitions for the classification levels in clauses 15 to 17 are contained in Schedule B to Schedule E.
13.2 Employers must advise their employees in writing of their classification upon commencement and of any subsequent changes to their classification.
13.3 Progression
(a) At the end of each 12 months’ continuous employment, an employee will be eligible for progression from one pay point to the next within a level if the employee has demonstrated competency and satisfactory performance over a minimum period of 12 months at each level within the level and:
(i) the employee has acquired and satisfactorily used new or enhanced skills within the ambit of the classification, if required by the employer; or
(ii) where an employer has adopted a staff development and performance appraisal scheme and has determined that the employee has demonstrated satisfactory performance for the prior 12 months’ employment.
(b) Movement to a higher classification will only occur by way of promotion or re‑classification.
Clause 15 of the Award provides the minimum weekly wages for social and community services employees – traversing levels 1 through to 8.
Schedule B – Classification Definitions – Social and Community Services Employees (Schedule B) sets out various indicia with respect to each level in the classification schema (see Annexure A).
Principles relating to award interpretation and classification disputes
The resolution of a classification dispute involves multiple steps. The first question concerns the construction of the disputed classifications.[53]
Regarding the construction of an award, in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd, Katzmann J outlined the principles relating to the construction of awards, which her Honour observed were not in doubt:
Like any statute, the task of construing an award begins with the text: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 (“Wanneroo”) at [53] per French J. But the words of the award “must not be interpreted in a vacuum divorced from industrial realities” (Wanneroo at [57]). Regard must be had to the context and purpose of the clause (Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [14]) and the intention of the parties who made the agreement (Kucks v CSR (1999) 66 IR 182 (“Kucks”) at 184 per Madgwick J). The context includes the history (Short v F W Hercus Pty Limited (1993) 40 FCR 511 (“Short”) at 517–518 per Burchett J). It also includes the legislative background against which the award was made and in which it was to operate: cf. Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [30] per Gummow, Hayne and Heydon JJ.
An award is not a law but it has the force of a Commonwealth law. As it is neither a legislative instrument nor a rule of court but an instrument made by an authority, unless the contrary intention appears its interpretation is covered by the provisions of the Acts Interpretation Act 1901 (Cth): Wanneroo at 438 [51] – [52]; Acts Interpretation Act, s 46. That means that a construction that would promote the purpose or object underlying the award is to be preferred to one that would not: Acts Interpretation Act, s 15AA.
A narrow or pedantic approach is to be eschewed, but “[a] court is not free to give effect to some anteriorly derived notion of what is fair or just regardless of what has been written in the award” (Kucks at 184, approved in Ansett Australia Limited (subject to Deed of Company Arrangement) v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 at [8]). Cf. Wanneroo at [57] and Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) ALJR 1806; [2003] HCA 55 (“ACX Ltd v DCT”) per Hayne J at [115]. [54]
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.[55] Where the employee performs mixed functions, the approach has been to examine the ‘major and substantial employment’ of the employee or the ‘principal purpose’ or ‘primary function’ of the employee’.[56]
In Watson v Safe Places Community Services Ltd,[57] (Safe Places) a Full Bench of this Commission referred to the judgment of Davies v Carnachan Family Trust Pty Ltd,[58] where Judge Jones observed:
12. The courts and industrial tribunals have developed principles to be applied to ascertain whether an employee falls within a particular classification described in an award or agreement. Where the employee performs mixed functions, the approach has been to examine the “major and substantial employment” of the employee or the “principal purpose” or “primary function” of the employee.
13. For example, in Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200, Moore J referred to and applied decision of Sheldon J in Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 where his Honour, applying the “major and substantial employment” test, relevantly observed:
...it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.
14. The task of the Court in examining the major, substantial or principal aspect of the work performed by the employee will include consideration of the amount of time spent performing particular tasks, but also the circumstances of the employment, and what the employee was employed to do. The question is one of fact, to be determined by reference to the duties actually attaching to the position, rather than its title: City of Wanneroo v Holmes [1989] FCA 553; (1989) 30 IR 362at 379; Joyce v Christofferson (1990) 26 FCR 261at 278.
In Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd, Besanko J stated:
Where the particular issue is whether an employee is engaged in a particular classification or class of work, then the Court takes a practical approach and will consider the aspect of the employee’s employment which is the principal or major or substantial aspect (Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18; Director of The Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 7)[2013] FCCA 1097at [77]).[59]
The Full Bench of the Australian Industrial Relations Commission has described the ‘principal purpose’ test in the following terms:
[9] In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed. In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager. As such, he was not ‘employed in the process, trade, business or occupation of ... soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, merchandise or materials’ and was not, therefore, covered by the Award.[60]
However, in this matter the focus of the parties is on the particular construction of clause B.2.1 (e) of Schedule B of the Award, and whether the relevant employees, as support workers, fall/fell within its scope.
Consideration
5.1 Submissions on the construction of the Award
The Applicant’s primary position is that clause B.2.1(e) is not sufficiently ambiguous to depart from the ordinary and natural meaning of the text itself.
‘Appropriate’ is defined as ‘suitable or proper in the circumstances’ according to Oxford Languages and ‘suitable or acceptable for a particular situation’ according to Collins Dictionary. The language is clearly couched in intentionally broad terms so as to be, said the Applicant, applicable and adaptable to a wide range of social and community services employees under the Award and is not ambiguous.
It is the Applicant’s contention that, according to its ordinary and natural meaning, clause B.2.1(e) should apply to the relevant employees if:
a) they have an ‘appropriate’ certificate; and
b) they are required to undertake work ‘related’ to that certificate.
In the alternative, said the Applicant, if the clause is found to be ambiguous, then resolution should result from the settled principles of the construction of terms of industrial instruments, including turning on the language of the Award as a whole having regard to its context and purpose.
The Applicant clarified that its interpretation of the phrase ‘appointed to this level’ is not that a current employee who later acquires an appropriate certificate must be immediately progressed to a higher level. The Applicant observed that clause B.2.1(e) refers to suitably qualified support workers being ‘appointed’ to level 2, whereas clause 13.3 and Schedule B.1.3(d) refers to ‘progression.’ The Applicant submitted that the relevant employees ‘completed an appropriate certificate’ prior to commencing employment with the Respondent.
The Applicant noted that the Respondent’s supposition that an existing employee could attain a certificate independent of the Respondent's directions, is not a relevant consideration for the Commission.
The Applicant disagreed with the Respondent’s interpretation that, for the purposes of clause B.2.1(e), ‘any certificate held by an employee cannot be an “appropriate” qualification if it is not one that the employer explicitly requires the employee to hold to carry out their role’. The Applicant added that the subclause should not be read down, and the word ‘appropriate’ should bear its ordinary and natural meaning of ‘suitable or proper in the circumstances’.
The Applicant submitted that even if clause B.2.1(e) intended that the employer explicitly require or request the employee to hold the qualification to carry out their role, which is not agreed, it is the Applicant’s assertion that the affected employees were required by the Respondent to hold such a certificate.
The Applicant observed that the Job Description Form provided to each of the relevant employees by the Respondent as part of their offers of employment contained a section on ‘Training and experience’, which described the requirements as:
Qualified: Suitable certificate related to support worker or history within the field of providing services.
The Applicant submitted that each of the relevant employees provided copies of their certificates to the Respondent as part of their application process, and each of them was provided documentation from the Respondent outlining that a ‘suitable’ certificate (or past experience) was a minimum requirement of the role. On this basis, said the Applicant, it is evident the Respondent required each of the relevant employees to have, at a minimum, a suitable certificate relating to support work (or past experience).
The Applicant argued that the Respondent’s defence that an employee only falls within Level 2 where the Respondent requires the certificate is not a proposition reflected in the text of the Award.
To recap, the Respondent submits that the relevant employees are/were correctly classified as social and community workers Level 1, by virtue of the fact that:
a) the certificates held by the relevant employees were not ‘appropriate’ as they were not ‘required’ by the Respondent to undertake the duties they performed; and
b) the relevant employees were not required to undertake work in relation to their certificates.[61]
The Respondent observed that the Macquarie Dictionary defines ‘appropriate’ as ‘suitable or fitting for a particular purpose, person or occasion’. Relevantly, ‘purpose’ is defined as ‘an intended or desired result; end or aim, intention or determination’.
The Respondent submitted that the Applicant’s interpretation of clause B.2.1(e) is such that it is immaterial to its application whether a position requires an employee that has completed an appropriate certificate.[62] The Respondent pressed that it did not share this view and it was not one that could be sustained when considering the principles of interpretation that apply.
The Respondent pressed that clause B.2.1(e) could not be read in a vacuum but should be read in the context of the entire provision in which it was located.[63] The Respondent observed that clause B.2.3 ‘Requirements of the Position’ includes at subparagraph (b)(i) a prerequisite that the employee hold ‘an appropriate certificate relevant to the work required to be performed’.[64] The natural and ordinary meaning of ‘prerequisite’ is something that must occur for something else to happen, said the Respondent.[65]
The Respondent stated it was its position that it does not ‘require’ employees to hold a particular certificate to perform the role, and nor does it ‘require’ its employees to undertake work relating to such certificates.[66]
The Respondent submitted that the certificates held by the relevant employees are not ‘appropriate’ or fitting for the intended result as they were not ‘required’ for the work the relevant employees are expected to perform. It was never the intention of the Respondent that the relevant employees undertake work relating to the certificates that they held, nor was it the reality of the duties they performed.
The Respondent added that on the basis of the definition advanced by the Applicant, any employee who is classified as ‘pay point 1’ under Social and community services Level 1 may elect, independent of any direction of their employer, to undergo training to acquire a certificate, and if any aspect of the certificate received or held could potentially apply to the work that they do, in any way, then the employer would be obliged to progress the employee to a higher pay point.
The Respondent argued that such an outcome is illogical and inconsistent with the Award when considered more broadly. The Respondent referred to clause 13.3 of the Award, which states as follows:
13.3 Progression
(a) At the end of each 12 months’ continuous employment, an employee will be eligible for progression from one pay point to the next within a level if the employee has demonstrated competency and satisfactory performance over a minimum period of 12 months at each level within the level and:
(i) the employee has acquired and satisfactorily used new or enhanced skills within the ambit of the classification, if required by the employer; or
(ii) where an employer has adopted a staff development and performance appraisal scheme and has determined that the employee has demonstrated satisfactory performance for the prior 12 months’ employment.
(b) Movement to a higher classification will only occur by way of promotion or reclassification.
According to the Respondent, this clause makes clear that there needs to be an explicit requirement on the part of the employer to enliven progression within a level. The Respondent emphasised it would be absurd that some kind of express requirement by the employer is required in order to progress within a level, but the employer could be required to progress an employee to an entirely new level, despite having no requirement for such qualification and not directing the employee to hold such qualification.
The Respondent acknowledged that the Applicant had clarified that it does not consider that ‘a current employee who later acquires an appropriate certificate must be immediately progressed to a higher level’. However, the Respondent highlighted that the Applicant’s concession is incompatible with the Applicant’s claim that employees who at the time of employment have such a certificate must commence at the higher rate. The result of that interpretation, which the Respondent pressed is unsustainable, is that an employee who commences employment with a certificate not required by the employer is entitled to be paid more than an employee who obtains the same certificate during the course of employment.
5.2 Construction of the disputed classification
In Australian Education Union v Yooralla (Yooralla),[67] the Federal Court of Australia considered the construction of Schedule B of the Award in respect of a classification dispute. In Yooralla, the dispute centred on whether Ms Legg, a ‘Disability Support Worker’, was a ‘Level 3’ employee for the purposes of the Award. Whilst not analogous to the case before me, Steward J made the following observation about the language used in Schedule B.2, which I consider apposite:
There are great difficulties in determining whether a person’s employment should fall within the highly generalised language of Sch B.2 or Sch B.3. One can see that, in general terms, Sch B.3 deploys language directed at activities which involve more responsibility and seniority than those mentioned in Sch B.2. The Modern Award appears to be capable, in that sense, of working in the abstract. But applying the generalised language to a person’s actual employment is another matter. For example subcl B.2.2(d) refers to a person who assists “senior employees with special projects”. Such a person is to be categorised as “Level 2”. However, a “Level 3” job will also be one with responsibility, to use the language of subcl B.3.2(m), for providing “assistance to senior employees”.[68]
As identified in Yooralla, Schedule B.2. adopts highly generalised language. Structure is embedded in Schedule B.2 (and for that matter B.1) by reference to various subheadings, including ‘Characteristics of the level’,[69] ‘Responsibilities’,[70] and ‘Requirements of the position’.[71] The ‘Requirements of the position’ subheading is compartmentalised into the headings of: (a) Skills, knowledge, experience, qualification and/or training; (b) Prerequisites; (c) Organisational relationships; and (d) Extent of authority. It is an expansive landscape of multiple indicia where one traverses the descriptors with a view to determining whether an employee’s ‘major and substantial employment’ falls within the descriptors for social and community services – support worker.
The adoption of generalised language is perhaps unsurprising when one considers the breadth of positions that may arguably fall with the scope of ‘Schedule B Social and community services employee’. In Yooralla, it was acknowledged that on 26 March 2010, the Full Bench of what was then the Fair Work Australia made orders for the Award to be amended to delete Schedule E and change the definition of ‘social and community services sector’ in the Award to include the provision of disability services, and to transfer the five disability services sector levels into Levels 1, 2 and 3 of Schedule B.
It is within this context, a context where Schedule B has adopted highly generalised language, that clause B.2.1(e) is to be construed.
The essence of the Respondent’s position is that I should, as a matter of construction, read the word ‘appropriate’ as meaning that the certificate was required by the Respondent to undertake the duties the employee performed. ‘Appropriate’ therefore incorporates the meaning of ‘required’.
In my view, there is no basis for so reading the word ‘appropriate’ or ‘an appropriate certificate’. As highlighted by the Applicant, the word ‘appropriate’ is defined as ‘suitable or proper in the circumstances’ according to Oxford Languages and ‘suitable or acceptable for a particular situation’ according to Collins Dictionary. The language is clearly couched in intentionally broad terms so as to be applicable and adaptable to a wide range of social and community services employees under the Award.
In this respect, whilst forming part of the highly generalised language of Schedule B.2, I do not consider that the word is ambiguous. Critical to the definition is the point that ‘appropriateness’ is underpinned by situation or circumstance. The situation or circumstance in this case is informed by the word ‘work’ in the second clause. As can be seen, the first clause ‘Employees who have completed an appropriate certificate’ is joined by the conjunction ‘and’ to the clause ‘are required to undertake work related to that certificate’. As to what constitutes an ‘appropriate’ certificate, meaning the suitability or appropriateness of the subject matter of the certificate (course units covered), will be dependent on the work performed by the employee. The relationship between the work performed and the word ‘appropriate’ is further reinforced by the notion that the work is to ‘relate’ to that certificate.
This conclusion is reinforced when regard is had to clause B.2.3(b). This part of Schedule B.2 sets out various ‘Prerequisites’. Four prerequisites are listed and the use of the word ‘or’ indicates that only one need be satisfied for the prerequisite to be met. One of those prerequisites is ‘an appropriate certificate relevant to the work required to be performed’. Again, ‘appropriateness’ in this context turns on the subject matter of the certificate in light of the work required.
In Safe Places, the Full Bench of the Commission considered an appeal against a decision of Commissioner Booth at first instance.[72] The Commissioner had addressed a dispute about the reconciliation of Mr Watson’s remuneration for a period under an enterprise agreement (Agreement) against what he would have received under the Award.[73] One of the questions agreed upon in respect of the arbitration and dispute was about the classification in the Award that should be applied to Mr Watson for the purpose of the reconciliation. This question involved the consideration of the level of work performed by Mr Watson, the level of supervision, and the effect of a Certificate IV in Youth Work held by him.[74]
Much like the dispute before me, the Full Bench identified that the relevant classification structure of the Award was to be found at ‘Schedule B. Classifications for Social and community services employees’.[75] It then traversed the reasons of the Commissioner, including the Commissioner’s findings in respect of the Certificate IV in Youth Work, which I find relevant for current purposes. The Commissioner found:
[75] The Employer’s case is that a Certificate IV was not required prior to the release of a paper from the Department entitled “Strengthening The Queensland Residential Care Workforce- Minimum Qualification Standard Information Sheet in July 2018”. At this time, the Employer determined that all employees should work towards a Certificate IV in Child Youth and Family Intervention (Residential Care).
[76] Mr Watson submits that prior to commencing his employment, he completed a Certificate IV in Youth Work. In his opinion, this qualification directly aligns with the role of a Youth Worker.
[77] Mr Watson’s Certificate IV in Youth Work is a recognised qualification by the Department, and in my view this Certificate should have been recognised by the Employer.
…
[87] As to timing, the Employer submits that Mr Watson’s current Certificate IV in Youth Work has no effect on his employment for the period of reconciliation, which is the subject of this dispute, as the qualification had not been recognised as a relevant qualification by the relevant state government department at that time.[88] In my view, Mr Watson is entitled to rely on his current Certificate IV in Youth Work as a recognised equivalent qualification, given its recognition as equivalent by the Department. The effect of this is that from July 2018, it was a relevant qualification and an appropriate certificate which could potentially satisfy the first part of Schedule B.2.1(e). That is, “employees who have completed an appropriate certificate…. Where the appropriate certificate is a level 4 certificate the minimum rate of pay will be pay point 2”.
[89] As for timing of the recognition of the qualification and its relevance to this dispute, the dispute is clearly in two parts. It is not relevant to the question of the reconciliation being for a period prior to July 2018, but it is relevant to the question of Mr Watson’s classification which is an ongoing dispute presently before this Commission.
[90] I therefore conclude that Mr Watson’s Certificate IV in Youth Work should be recognised as an equivalent qualification after July 2018.
The employer in Safe Places argued that the Certificate IV obtained by Mr Watson was not required prior to the release of certain governmental papers.[76] However, Mr Watson pressed that his qualification directly aligned with the role of a Youth Worker. The Commissioner found that the Certificate IV in Youth Work was a recognised qualification by the ‘Department’ and should have been recognised by the employer. However, the Commissioner observed that for the purpose of the reconciliation, the Certificate IV was not relevant to the question of reconciliation prior to its recognition by the Department as a recognised equivalent position.
On appeal, and in respect to the principles of construction regarding classification frameworks, the Full Bench stated:
[33] Further, the principles of construction of enterprise agreements also operate when considering classification structures, including indicative tasks specified for various levels, for the purpose of determining the appropriate classification level of an employee. 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.[77]
In respect of the appropriate classification and the relevance of Mr Watson’s Certificate IV, the Full Bench in Safe Places stated:
[41] However, we consider that the Commissioner’s conclusion that Level 2 was relevant only from July 2018 is not consistent with the analysis undertaken as to the work Mr Watson was performing and the classification criteria established by the Award. The finding that Mr Watson was at Level 2, based as it was upon the work he was performing, must logically mean that he was a Level 2 employee whilst ever he was performing that work. That situation did not change as a result of the Queensland Government announcing that it requires all Youth Workers to have or be working towards a qualification that included a Certificate IV in Youth Work.
[42] It is not in dispute that Mr Watson has a Certificate IV in Youth Work. The characteristics of Level 2 include:
(e) Employees who have completed an appropriate certificate and are required to undertake work related to that certificate will be appointed to this level. Where the appropriate certificate is a level 4 certificate the minimum rate of pay will be pay point 2
[43] This feature of Level 2 is but one aspect of the classification. It is not definitive of an employee being correctly classified at level 2 and the weight given to this aspect does not represent the proper application of the Award classification criteria to the present task. This had a direct impact upon what was required for the proper application of the reconciliation undertaking and this error warrants the grant of permission to appeal and the intervention of the Full Bench. (italics for emphasis).
What was telling in Safe Places was that a ‘requirement’ imposed by government or a regulatory body for Mr Watson to hold a Certificate IV in Youth Work did not change the finding that Mr Watson fell within the Level 2 classification. In my view, the word ‘appropriate’ does not connote in and of itself that there must be some sort of requirement, whether imposed by a third party or an employer, for the employee to hold the certificate. To adopt the construction pressed by the Respondent would be to read illusory words into the Award.
I will return to Safe Places shortly, but before doing so it would be remiss not to further address clause B.2.1(e). To be appointed at Level 2 (B.2 Social and community services employee level 2), the employee must not only have completed an appropriate certificate but must also be required to perform work related to that certificate. Whilst not expressly referenced, it is the employer that requires the employee to undertake the work. The determination of whether the work relates to the ‘appropriate’ certificate is one that demands an assessment on an objective basis having regard to the factual matrix.
5.3 What is the classification of the support worker position in which the relevant employees were employed by reference to clause B.2.1(e)
It is a swift return to Safe Places and the salient point that was made by the Full Bench at paragraphs [42] and [43]. That is, notwithstanding the completion of the requisite certification, this feature of a Level 2 classification (at clause B.2.1(e)) is but one feature or indicia of the classification. The Full Bench expressed that it (at clause B.2.1(3) is not definitive of an employee being correctly classified at Level 2.
In my view, the dispute has occurred due to a misperception that clause B.2.1(e) is the definitive feature, such that the satisfaction of this ‘criterion’ (or not) will determine whether an employee is correctly classified as Level 2. However, this view sits contrary to the framework in which clause B.2.1(e) is situated – that is under the ‘characteristics of the level’. Clause B.2.1(e) is but one of six characteristics. If clause B.2.1(e) was so definitive with respect to determining whether an employee was correctly classified as Level 2, it would arguably stand alone.
Notwithstanding, an opinion is sought as to what was the proper classification of the relevant employees by reference to clause B.2.1(e).
The Respondent submitted that the judgment of Yooralla shows that there is a greater divide between Levels 1, 2 and 3, which is incompatible with the view of the Applicant. In Yooralla, the Court sought to determine the proper classification of a disability support worker under the social and community services worker classification of the Award. The Court was, in part, tasked with determining whether Ms Legg, the disability support worker, should have been classified as a Level 2 or Level 3 social and community services employee under Schedule B of the Award.
The Respondent detailed the qualifications of Ms Legg and outlined her responsibilities and duties with the workplace. Briefly stated, they included:
a) preparation of written plans for each of her clients to use in the programs administered by the centre, including ‘Lifestyle Action Plans’ to assist clients to meet their daily and weekly goals;
b) planning the types of programs that were to be offered to the clients in the coming year;
c) teaching clients how to undertake [certain] tasks, without assistance, and independently;
d) working closely with the supervisor to discuss the programs to be allotted to her clients;
e) assisting in the preparation of timetables together with Action Plans;
f) keeping daily notes on the clients where were ‘detailed and nuanced’; and
g) grading clients according to the level of progress they had achieved in any one period.
Despite the relative complexity of her role, it was nevertheless determined by his Honour in Yooralla that Ms Legg was properly characterised as a Level 2 rather than a Level 3 social and community services employee pursuant to Schedule B of the Award, contemplating, as he did, a greater degree of responsibility and seniority attendant on Level 3 and upward.
In Yooralla, his Honour was focused upon the specific way in which different types of disability services were provided for across Levels 1, 2 and 3 of the social and community services employees classification under Schedule B of the Award. His Honour detailed the evolution of the Award in this respect:
[57] On 26 March 2010, the Full Bench of Fair Work Australia made orders (following its decision in [2010] FWAFB 2024) for the Modern Award to be amended. It had received submissions that argued that distinguishing between the disability services sector and the social and community services sector did not reflect the reality that many employers provide a combination of services. Fair Work Australia agreed with this. It was decided to delete Sch E, to amend the definition of “social and community services sector” in the Modern Award to include the provision of disability services, and to transfer the five disability services sector levels into Levels 1, 2 and 3 of Sch B. The highest former Level 5 effectively became a part of Level 3 of Sch B. There is nothing in the reasons of Fair Work Australia which suggests that disability service workers were not in principle to remain categorised in accordance with those specific categories relating to the supply of disability services, as now expressed in Levels 1, 2 and 3 of Sch B, rather than by reference to the more general descriptors found in those levels.
With respect to the Ms Legg’s classification, his Honour expressed:
[58] In my view, read in context, Ms Legg’s “major and substantial employment” falls within the descriptor for the provision of disability services in Level 2. Her activities did not meet the description of “taking overall responsibility” in the delivery of disability services as described in subcll B.1.2 and B.2.2. It was not suggested that Ms Legg ran the Naroo Centre or supervised the other employees. Rather, she reported to Ms Faulkner. In contrast, I have little doubt that Ms Legg’s “major and substantial employment” comprised the implementation of “skills and activities programmes under limited supervision … as part of the delivery of disability services”, to use the language of cl B.2.2(k) (the other disability services paragraphs in Level 2 are inapplicable). This is what she did with her development and implementation of specific Action Plans for individual clients. It follows that Ms Legg’s employment should be categorised as “Level 2” for the purposes of the Modern Award.
[59] That conclusion is supported by the fact that a Level 3 categorisation appears to be limited to those working in the disability services sector who previously merited the highest Level 5 categorisation (in the former Sch E). In my view, Ms Legg’s employment did not fall within former Level 5 or current Level 3.
The Respondent submitted that Yooralla weighs strongly in favour of the Respondent’s position i.e. that Level 1 is the most appropriate for the relevant employees. The Respondent added that the work performed by the relevant employees is/was not complex, does not involve the implementation of care plans, does not involve the planning and execution of complex meal preparation and planning, and does not involve supervision of other staff. The major and substantial employment of these workers is/was providing transport and support to clients and in doing so enabling these clients to stay connected to the community.
Notwithstanding the submissions of the Respondent, in respect of Ms Kehal, I consider her Certificate IV in Mental Health is an appropriate certificate for the purpose of clause B.2.1(e) of the Award and she is required by the Respondent to undertake work related to that Certificate IV.
The Respondent operates facilities that are dedicated to assisting clients with mental health issues.[78] While Ms Kehal has been known to provide personal care assistance at the request of the Respondent organisation, this has not been persuasive in determining that her qualification constitutes an ‘appropriate certificate’.
Witnesses for the Respondent gave evidence regarding the duties and responsibilities of a support worker, including the duties and responsibilities of Ms Kehal. Primarily, the position of a support worker is to assist clients with community participation and engagement. That requires the support worker to facilitate, or as termed by Ms Kielty, ‘get’ the client out of their accommodation to build confidence in achieving daily living tasks.
It is evident that when Ms Kehal undertakes this work, she does so unsupervised. That is, she provides care for the client outside of their accommodation, encouraging them to participate in activities of daily living. It can be assumed that when Ms Kehal assists the Respondent’s clients within their homes or when taking them to appointments, going to the bank, or even walking to a park and having a coffee and a cake, Ms Kehal assumes responsibility for that client’s care. Now the client accesses the services of the Respondent organisation because of mental health issues. Ms Kehal is not simply providing the services of a companion or transportation; she is a support worker qualified to assist people with mental health challenges to engage with society.
The units of study within the Certificate IV, as referred to at Attachment 1 of the Witness Statement of Ms Kehal,[79] are apposite to the care and work that Ms Kehal is undertaking. Ms Kehal helpfully provided the Learner Guides to the units, which provided remarkable detail of the course content.[80] Ms Kehal is to be commended for including this level of detail in her witness statement. Having considered all of the evidence, and in light of the construction to be attributed to clause B.2.1(e), in my opinion, Ms Kehal has completed an appropriate certificate and is required by the Respondent to undertake work related to that certificate.
However, it is important to caution that clause B.2.1(e) is only one of the characteristics of Level 2. Whilst Ms Kehal has the appropriate certificate and is required to undertake work related to that certificate, it does not thereafter follow that she falls within the Level 2 classification of Schedule B. Undertaking work that is related to the certificate does not mean that Ms Kehal’s ‘major and substantial employment’ falls within the descriptor for the provision of social and community services in Level 2. I do not intend to say anything further on this point with respect to the correct classification of Ms Kehal. This is because it was a question not asked of this Commission.
Conclusion
Having considered the materials filed by the parties, I consider that the answer to Question B is that on the commencement of Ms Kehal’s employment, her proper classification be reference to clause B.2.1(e) only was that of Level 2 in Schedule B of the Award.
With respect to Ms Cooper and Ms Spice, I again note that neither presented for the hearing – having given notice the day earlier of their unavailability. With respect to the certificates annexed to their witness statements, I observe that Ms Coopers’ Certificate III in Allied Health Assistance includes one unit dedicated to mental health issues. Ms Spice’s Certificate III in Individual Support (Ageing) did not reflect units undertaken specific to mental health. Briefly stated, based on the evidence before me, I am not content to find that the certificates constituted ‘appropriate certificates’, as understood by reference to clause B.2.1(e).
DEPUTY PRESIDENT
Appearances:
Mr Z Doherty, for the Applicant.
Mr T Makamure, for the Respondent.
Hearing details:
2023.
Perth (by video):
28 February.
Annexure A
Schedule A
Schedule B
B.1.1Social and community services employee level 1
B.1.2Characteristics of the level
(a)A person employed as a Social and community services employee level 1 works under close direction and undertakes routine activities which require the practical application of basic skills and techniques. They may include the initial recruit who may have limited relevant experience.
(b)General features of work in this level consist of performing clearly defined activities with outcomes being readily attainable. Employees’ duties at this level will be closely monitored with instruction and assistance being readily available.
(c)Freedom to act is limited by standards and procedures. However, with experience, employees at this level may have sufficient freedom to exercise judgment in the planning of their own work within those confines.
(d)Positions at this level will involve employees in extensive on-the-job training including familiarisation with the goals and objectives of the workplace.
(e)Employees will be responsible for the time management of their work and required to use basic numeracy, written and verbal communication skills, and where relevant, skills required to assist with personal care and lifestyle support.
(f)Supervision of other staff or volunteers is not a feature at this level. However, an experienced employee may have technical oversight of a minor work activity.
(g)At this level, employers are expected to offer substantial internal and/or external training.
B.1.3Responsibilities
A position at this level may include some of the following inputs or those of a similar value:
(a)undertake routine activities of a clerical and/or support nature;
(b)undertake straightforward operation of keyboard equipment including data input and word processing at a basic level;
(c)provide routine information including general reception and telephonist duties;
(d)provide general stenographic duties;
(e)apply established practices and procedures;
(f)undertake routine office duties involving filing, recording, checking and batching of accounts, invoices, orders, stores requisitions and maintenance of an existing records system;
(g)resident contact and interaction including attending to their personal care or undertaking generic domestic duties under direct or routine supervision and either individually or as part of a team as part of the delivery of disability services;
(h)preparation of the full range of domestic duties including cleaning and food service, assistance to residents in carrying out personal care tasks under general supervision either individually or as part of a team as part of the delivery of disability services.
The minimum rate of pay for employees engaged in responsibilities which are prescribed by B.1.2(h) is pay point 2.
B.1.4Requirements of the position
Some or all of the following are needed to perform work at this level:
(a)Skills, knowledge, experience, qualifications and/or training
(i)developing knowledge of the workplace function and operation;
(ii)basic knowledge of administrative practices and procedures relevant to the workplace;
(iii)a developing knowledge of work practices and policies of the relevant work area;
(iv)basic numeracy, written and verbal communication skills relevant to the work area;
(v)at this level employers are required to offer substantial on-the-job training.
(b)Organisational relationships
Work under direct supervision.
(c)Extent of authority
(i)Work outcomes are clearly monitored.
(ii)Freedom to act is limited by standards and procedures.
(iii)Solutions to problems are found in established procedures and instructions with assistance readily available.
(iv)Project completion according to instructions and established procedures.
(v)No scope for interpretation.
(d)Progression
An employee primarily engaged in responsibilities which are prescribed by B.1.2(g) will, if full-time, progress to pay point 2 on completion of 12 months’ industry experience, or if part-time, on completion of 1976 hours of industry experience. Industry experience means 12 months of relevant experience gained over the previous 3 years.
B.2Social and community services employee level 2
B.2.1Characteristics of the level
(a)A person employed as a Social and community services employee level 2 will work under general guidance within clearly defined guidelines and undertake a range of activities requiring the application of acquired skills and knowledge.
(b)General features at this level consist of performing functions which are defined by established routines, methods, standards and procedures with limited scope to exercise initiative in applying work practices and procedures. Assistance will be readily available. Employees may be responsible for a minor function and/or may contribute specific knowledge and/or specific skills to the work of the organisation. In addition, employees may be required to assist senior workers with specific projects.
(c)Employees will be expected to have an understanding of work procedures relevant to their work area and may provide assistance to lower classified employees or volunteers concerning established procedures to meet the objectives of a minor function.
(d)Employees will be responsible for managing time, planning and organising their own work and may be required to oversee and/or guide the work of a limited number of lower classified employees or volunteers. Employees at this level could be required to resolve minor work procedural issues in the relevant work area within established constraints.
(e)Employees who have completed an appropriate certificate and are required to undertake work related to that certificate will be appointed to this level. Where the appropriate certificate is a level 4 certificate the minimum rate of pay will be pay point 2.
(f)Employees who have completed an appropriate diploma and are required to undertake work related to the diploma will commence at the second pay point of this level and will advance after 12 full-time equivalent months’ satisfactory service.
B.2.2Responsibilities
A position at this level may include some of the following:
(a)undertake a range of activities requiring the application of established work procedures and may exercise limited initiative and/or judgment within clearly established procedures and/or guidelines;
(b)achieve outcomes which are clearly defined;
(c)respond to enquiries;
(d)assist senior employees with special projects;
(e)prepare cash payment summaries, banking reports and bank statements, post journals to ledger etc. and apply purchasing and inventory control requirements;
(f)perform elementary tasks within a community service program requiring knowledge of established work practices and procedures relevant to the work area;
(g)provide secretarial support requiring the exercise of sound judgment, initiative, confidentiality and sensitivity in the performance of work;
(h)perform tasks of a sensitive nature including the provision of more than routine information, the receiving and accounting for moneys and assistance to clients;
(i)assist in calculating and maintaining wage and salary records;
(j)assist with administrative functions;
(k)implementing client skills and activities programmes under limited supervision either individually or as part of a team as part of the delivery of disability services;
(l)supervising or providing a wide range of personal care services to residents under limited supervision either individually or as part of a team as part of the delivery of disability services;
(m)assisting in the development or implementation of resident care plans or the planning, cooking or preparation of the full range of meals under limited supervision either individually or as part of a team as part of the delivery of disability services;
(n)possessing an appropriate qualification (as identified by the employer) at the level of certificate 4 or above and supervising the work of others (including work allocation, rostering and providing guidance) as part of the delivery of disability services as described above or in subclause B.1.2.
B.2.3Requirements of the position
Some or all of the following are needed to perform work at this level:
(a)Skills, knowledge, experience, qualification and/or training
(i)basic skills in oral and written communication with clients and other members of the public;
(ii)knowledge of established work practices and procedures relevant to the workplace;
(iii)knowledge of policies relating to the workplace;
(iv)application of techniques relevant to the workplace;
(v)developing knowledge of statutory requirements relevant to the workplace;
(vi)understanding of basic computing concepts.
(b)Prerequisites
(i)an appropriate certificate relevant to the work required to be performed;
(ii)will have attained previous experience in a relevant industry, service or an equivalent level of expertise and experience to undertake the range of activities required;
(iii)appropriate on-the-job training and relevant experience; or
(iv)entry point for a diploma without experience.
(c)Organisational relationships
(i)work under regular supervision except where this level of supervision is not required by the nature of responsibilities under B.2.2 being undertaken;
(ii)provide limited guidance to a limited number of lower classified employees.
(d)Extent of authority
(i)work outcomes are monitored;
(ii)have freedom to act within established guidelines;
(iii)solutions to problems may require the exercise of limited judgment, with guidance to be found in procedures, precedents and guidelines. Assistance will be available when problems occur.
[1] MA000100 (Award).
[2] Witness Statement of Ms Roisin Kielty, [2] (Kielty Statement).
[3] Ibid.
[4] Ibid [3].
[5] Ibid.
[6] Witness Statement of Peta Williamson, [1] (Williamson Statement).
[7] Ibid [2].
[8] Ibid [3].
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Kielty Statement (n 2) [5].
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Ibid [6].
[17] Ibid.
[18] Ibid [25].
[19] Ibid.
[20] Ibid.
[21] Statement of Mark Retzlaff, [1] (Retzlaff Statement).
[22] Ibid [5].
[23] Ibid [8].
[24] Ibid [9].
[25] Williamson Statement (n 6) [22].
[26] Ibid [23].
[27] Exhibit A4 Kehal’s Bundle of Documents.
[28] Witness Statement of Parminder Kehal, [3] (Kehal Statement).
[29] Williamson Statement (n 6) [23].
[30] Ibid.
[31] Ibid [24].
[32] Ibid [7].
[33] Ibid.
[34] Ibid.
[35] Ibid.
[36] Ibid.
[37] Retzlaff Statement (n 21) [5].
[38] Ibid.
[39] Ibid.
[40] Ibid.
[41] Williamson Statement (n 6) [7].
[42] Ibid.
[43] Ibid.
[44] Ibid.
[45] Ibid [10].
[46] Ibid.
[47] Ibid.
[48] Ibid [11].
[49] Ibid.
[50] Ibid.
[51] Witness Statement of Jedda Spice, [2].
[52] Ibid [3].
[53] Telstra Corporation Ltd v CPSU, the Community and Public Sector Union[2022] FWCFB 64, [6] (Telstra).
[54] [2013] FCA 638, [27]–[30].
[55] Grobovsky v United Protestant Association [2015] FWC 2504, [14].
[56] Telstra (n 53) [6].
[57] [2020] FWCFB 2993.
[58] [2018] FCCA 545.
[59] [2016] FCA 621, [27].
[60] Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387, 389 [9].
[61] Award (n 1) sch B.2.1(e).
[62] Respondent’s Response to the Application, [3] (Respondent’s Response); Digital Hearing Book, 132 (DHB).
[63] Respondent’s Response (n 62) [5]; DHB (n 62) 132.
[64] Respondent’s Response (n 62) [6]; DHB (n 62) 132.
[65] Respondent’s Response (n 62) [6]; DHB (n 62) 132.
[66] Respondent’s Response (n 62) [7]; DHB (n 62) 132.
[67] [2019] FCA 1511.
[68] Ibid [53].
[69] Award (n 1) sch B, cl B.3.1.
[70] Ibid sch B, cl B.3.2.
[71] Ibid sch B, cl B.3.3.
[72] Watson v Safe Places Community Services Ltd[2020] FWC 323.
[73] Ibid [7].
[74] Ibid [10].
[75] Ibid [18].
[76] Ibid [75]
[77] Carnes v MSS Security Pty Ltd[2019] FWC 7695, [75].
[78] Kielty Statement (n 2) [2].
[79] DHB (n 62) 58.
[80] Kehal Statement (n 28) attachment 3; DHB (n 62) 63–102.
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