DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Ms Manchula Vendrig
v
Ausgrid Pty Ltd
(C2020/9179)

DEPUTY PRESIDENT COLMAN
DEPUTY PRESIDENT MASSON
COMMISSIONER WILSON

MELBOURNE, 27 JANUARY 2021

Appeal against decision [2020] FWC 6278 of Deputy President Sams at Sydney on 2 December 2020 in matter number C2020/5081 – application under s 739 – claim for payment of an allowance under an enterprise agreement – permission to appeal refused

[1] This decision concerns an appeal under s 604 of the Fair Work Act 2009(Cth) (Act) lodged by Ms Manchula Vendrig from a decision of Deputy President Sams made on 2 December 2020 1. The decision related to an application filed by Ms Vendrig under s 739 of the Act and the dispute resolution procedure in clause 42.2 of the Ausgrid Enterprise Agreement 2018 (2018 Agreement). In her application, Ms Vendrig asked the Commission to determine that on 30 November 2018 her employer, Ausgrid Pty Ltd (Ausgrid), wrongly ceased to pay to her an engineer’s allowance, for which provision is made under clause 47.2.1(h) of the 2018 Agreement. The allowance is known as the ‘National Professional Engineers’ Registration stage 2’ (NPER2 allowance). Ms Vendrig claimed to be entitled to payment of the allowance in respect of the period from 30 November 2018 until 30 June 2020, when her employment ended (the disputed period). She claims an amount of $19,913.32.

[2] The Deputy President determined that Ms Vendrig was not entitled to the NPER2 allowance in respect of the disputed period, because she had not obtained ‘chartered or registered status’, one of the conditions prescribed by clause 47.2.1(h) for payment of the allowance. He concluded that in any event, the allowance was only payable to employees who were appointed to positions as engineers, and that at the relevant time Ms Vendrig had not been so appointed. The Deputy President further concluded that by ceasing to pay the allowance, Ausgrid had not contravened the salary maintenance provisions in the 2018 Agreement.

[3] Ms Vendrig’s appeal contends that the Deputy President’s decision was erroneous. She asks the Full Bench to quash the decision, rehear her application and determine that Ausgrid is required to pay her the NPER2 allowance in respect of the disputed period.

[4] The background to the appeal is as follows. On 21 March 2016 Ms Vendrig’s position was made redundant and she became a ‘redeployee’ in Ausgrid’s career transition program. At this time, Ms Vendrig’s employment was covered by the Ausgrid Enterprise Agreement 2012 (2012 Agreement). The 2012 Agreement made provision for the NPER2 allowance. Clauses 3.2.6 and 3.2.8 of schedules 1 and 2 of the 2012 Agreement stated that ‘employees who qualify for stage two competency National Professional Engineering Registration’ would be paid an all-purpose weekly allowance of $159.83. The 2012 Agreement did not define ‘stage 2 competency’ but it is uncontroversial that this meant either that a person had accreditation as a Chartered Professional Engineer (CPEng) or a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWCFB 370
Decision Date: 27 JANUARY 2021

CaseChat Overview and Summary

Vendrig has appealed against a decision of the Full Bench of the Fair Work Commission, which refused an application for permission to appeal against an earlier decision of Deputy President Sams. The earlier decision had dismissed Vendrig's claim for payment of an allowance under an enterprise agreement. The appeal was heard by the Full Bench on 17 June 2021. The primary issue before the Full Bench was whether it should grant permission to appeal against the earlier decision of Deputy President Sams. Vendrig contended that the Deputy President erred by not considering the appropriate interpretation of the enterprise agreement and misapplying the principle of contra proferentem in construing the relevant clause. The Full Bench considered the appeal and concluded that it would not grant permission to appeal. The Full Bench was of the view that the Deputy President had given appropriate consideration to the enterprise agreement and its interpretation. The Full Bench found that the Deputy President had not erred in his interpretation of the relevant clause, and there was no basis for the Full Bench to interfere with the decision of the Deputy President. The appeal was dismissed.

No orders were made.

Orders