DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

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

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 Registered Professional Engineer (RPEng), and that Ms Vendrig did not possess such accreditation. Despite this, Ausgrid paid Ms Vendrig the NPER2 allowance. It did so pursuant to the terms of an unregistered industrial agreement known as the Engineers’ Transitional Agreement (ETA), which was made in 2010 between Ausgrid and Professionals Australia. The ETA provided that Ausgrid would pay the NPER2 allowance to all engineers for a period of 5 years only, during which time they were expected to obtain accreditation. This deadline was subsequently deferred on several occasions.

[5] On 24 May 2018, the 2018 Agreement was approved by the Commission. Clause 47.2.1 (h)(ii) of the 2018 Agreement made provision for a weekly skills retention allowance. Clause 47.2.1(h)(ii) did not use the expressions ‘National Professional Engineers’ Allowance’ or NPER2, although they appear elsewhere in the 2018 Agreement. But it is common ground that the allowance provided for in clause 47.2.1(h)(ii) is the same as the NPER2 allowance in quantum and substance. The 2018 Agreement was more explicit as to the eligibility requirements. Clause 47.2.1(h)(ii) reads as follows:

‘(h) A weekly skills retention allowance payable for all purposes.

(ii) Employees who have qualified for stage one competency (outlined in 47.2.1(h)(i) and have accreditation as a Chartered Member of Engineer's Australia (CPEng) or Registered Professional Engineer (RPEng) status or equivalent shall be paid the weekly all-purpose allowance which is frozen at the rate paid immediately prior to the commencement of this agreement.’ (emphasis added)

[6] The chapeaux to clause 47 states that the clause will operate until 30 November 2018 and that on 1 December 2018 ‘it will be replaced in its entirety by Appendix 4, Career Capability and Remuneration, and will from that point no longer apply.’

[7] On 6 August 2018, the company wrote to Ms Vendrig ‘in relation to the National Professional Engineers Registration Stage 2 competency (NPER2) allowance’ that the company was currently paying to her. The letter stated that the company had no record of Ms Vendrig having attained ‘chartered or registered status’, and that this was a requirement for payment of the NPER2 allowance. The letter stated that Ausgrid would only continue to pay the NPER2 allowance to employees who had not attained accreditation until 30 November 2018. It further stated that if Ms Vendrig did not meet the qualification requirements by this time, the allowance would not be included in her salary for the purposes of transitioning to the new ‘CCR framework’ under the 2018 Agreement on 1 December 2018.

[8] Ms Vendrig’s initial application for accreditation to the professional accreditation body was rejected on 14 August 2018. Ms Vendrig appealed this decision on 24 February 2019 and, following a number of reviews, her appeal was upheld and she was granted accreditation, and the status of ‘RPEng’, on 23 October 2019.

[9] On 4 May 2020 Ms Vendrig was offered voluntary redundancy, which she accepted on 30 June 2020, and her employment terminated on that day. Ms Vendrig received a final payment of $374,949.96 in redundancy and accrued leave entitlements.

[10] Ms Vendrig lodged her application under s 739 of the Act on the last day of her employment. She referred to the Commission a dispute under clause 42 of the 2018 Agreement concerning her claim to be entitled to payment of the NPER2 allowance in respect of the disputed period. In her application, Ms Vendrig stated that the dispute was about the ‘loss of my allowance 2 (see Enterprise Agreement 2018) was removed (sic) on 30/11/2018’. She referred to the ‘registration allowance in accordance with the Ausgrid Agreement 2018 clause 47.2.1(h)(ii)’, and stated that, under the new agreement, those who had not obtained registration as a professional engineer would no longer be paid the allowance. Ms Vendrig stated that she had had little notice of the requirement to obtain accreditation and that she had not been able to obtain accreditation before October 2019. She also contended that the NPER2 allowance was covered by the grandparenting and salary maintenance provisions in Appendix 4 of the 2018 Agreement, which applied to her transition to the company’s new ‘CCR’ framework, because the allowance had previously been part of her salary.

[11] In his decision, the Deputy President concluded that Ms Vendrig had not attained the required qualification by the necessary date and was therefore not entitled to the allowance:

‘[47] In my view, Ms Vendrig has no entitlement to the NPER2 allowance as she had not obtained her ‘chartered or registered status’ by 30 November 2018. She was advised of this requirement on 6 August 2018 in a letter she claims she had not received and did not see until 26 August 2020 (in Ausgrid’s evidence). I reject Ms Vendrig’s evidence that she did not receive this letter. It was very convenient for her to claim she was unaware of this clear and unequivocal requirement, because it undermines all her later claims over two years, that she was confused and no one explained to her why the allowance was removed.

[48] The facts were that Ms Vendrig did not obtain the requirements to be eligible for the allowance and she knew and understood this to be the case. Her continued agitation of the issue, despite being told on numerous occasions she was not eligible, was simply an irresponsible unwillingness to accept the reality. Then, when all her protests were being met with the same response, she deliberately and mischievously waited to her last day of employment to lodge a dispute in this Commission in an attempt to have the Commission grant her an entitlement to which she was not, and never was entitled to from 30 November 2018.’

[12] The Deputy President concluded that in any event, Ms Vendrig was not entitled to the NPER2 allowance because clause 47.1.1 states that clause 47 applies only to employees classified as engineers, and Ms Vendrig was not appointed to a position as an engineer during the dispute period.

[13] The Deputy President also concluded that Ausgrid had not reduced Ms Vendrig’s pay upon her transition to the CCR framework:

‘[55] In any event, Ausgrid had not reduced her pay on transition. It had complied with the Agreement and its commitment that no one would lose pay. Despite Ms Vendrig claiming this amounted to a loss of pay, it was no such thing. In employment jargon, rates of pay are ordinarily understood not to include allowances, unless expressly stated, a fortiori where here a rate of pay expressly excluded the inclusion of the NPRE2 [sic] allowance if the employee does not qualify. This was precisely the circumstances Ms Vendrig was in and no amount of silly, misleading word games alters that fundamental truth.’

[14] The Deputy President rejected Ms Vendrig’s contention that she had been treated differently to other employees, finding that two other employees had not achieved the accreditation by the cut-off date and that their NPER2 allowance was consequently removed (at [59]). The Deputy President concluded that Ms Vendrig’s application sought to establish an entitlement that did not exist and dismissed her application.

The appeal

[15] Ms Vendrig’s notice of appeal, which includes a subsequently filed document entitled ‘statement of reasons’, advances seven principal grounds which variously contend that the Deputy President’s decision is affected by error. Ms Vendrig elaborated on her appeal grounds in written submissions and in oral argument before us.

[16] Ms Vendrig’s first ground of appeal contended that she was treated differently from one of her colleagues and that the Deputy President was wrong to conclude otherwise. She submitted that the NPER2 allowance of a Mr Chawla had been terminated on 30 November 2018 but was subsequently reinstated. Ms Vendrig said that she understood that the reason for the reinstatement of Mr Chawla’s allowance was because of the application of clause 17.11 of Appendix 4 of the 2018 Agreement, which provides that employees who are paid salary maintenance on 30 November 2018 subject to Appendix 5 (which deals with redundancy, redeployment and salary maintenance) will transition to the CCR framework ‘based on the Ordinary Rate of Pay of their current appointed Position classification (inclusive of Previously Appliable All-purpose Allowances).’ The latter expression is defined in clause 3.12 of Appendix 4 as including the NPER2 allowance.

[17] Ms Vendrig invokes these provisions of the 2018 Agreement in relation to her own circumstances and contends that the company should have maintained her NPER2 allowance on the same basis as it did for Mr Chowla. She contended that the Deputy President erred by not taking into account the effect of clause 17.11 of Appendix 4 of the 2018 Agreement, and by instead focusing on clause 17.12. Ms Vendrig also relied on clause 17.7 of Appendix 4, which states: ‘To be clear, where an employee immediately prior to transition received a Previously Applicable All-Purpose Allowance the employee will not receive less than their previous base rate of pay plus the Previously Applicable All-Purpose Allowance … under the CCR framework.’ She contended that this too confirmed her entitlement to salary maintenance that included her NPER2 allowance.

[18] Ms Vendrig’s second and third grounds of appeal contended that the Deputy President failed to take proper account of clauses 1.6 and 1.7 of Appendix 4. Clause 1.6 provides that pay for current employees, as at 30 November 2018, would be ‘grandparented, meaning no current employee will lose pay at the point of transition to the CCR framework, pursuant to clause 17’. Clause 1.7 provides that ‘employees who receive salary maintenance will continue to be paid salary maintenance under the CCR framework’. Ms Vendrig contended that, contrary to these provisions, she did lose pay at the point of transition to the CCR framework, because she no longer received the NPER2 allowance.

[19] Ms Vendrig’s fourth ground of appeal contests the Deputy President’s finding that her substantive position as an engineer was ‘nominal’. She contended that this finding was contrary to the evidence, which in fact demonstrated that she was at all times an engineer.

[20] By her fifth ground of appeal (which is numbered ‘6’ in the notice of appeal, affecting the numbering of the subsequent grounds), Ms Vendrig contended that the 2018 Agreement overrides any contract or notice from the company concerning the removal of her allowance, and that because she was entitled to full salary maintenance under the 2018 Agreement, Ausgrid was required to continue to pay her the NPER2 allowance.

[21] The sixth ground of appeal concerns certain exhibits tendered in evidence before the Deputy President, which Ms Vendrig believes support her interpretation of the 2018 Agreement and the outcome she seeks. In particular, she refers to an exhibit B3, which is a ‘question and answer’ document issued to employees by Ausgrid in November 2018. This stated that employees had been ‘transitioned over to CCR on [their] current pay point and relevant allowances’, which Ms Vendrig understood to include her NPER2 allowance.

[22] The seventh ground of appeal restates or elaborates on the earlier appeal grounds and contends that Ms Vendrig took all reasonable steps to obtain her accreditation as quickly as possible. Ms Vendrig further submitted that the Deputy President’s decision gave precedence to the company’s letter of 6 August 2018 over the terms of the 2018 Agreement itself, and that she had simply not paid attention to the letter because she sincerely believed that, as a redeployee, her salary would be maintained as per clause 1.7 of Appendix 4 of the 2018 Agreement, and that the 2018 Agreement prevailed over the arrangements referred to by the company in its correspondence.

Consideration

[23] Generally, an appeal may only be made with the permission of the Commission under s 604. However, where an appeal is brought from a decision of the Commission made under a dispute resolution procedure in an enterprise agreement, it is necessary to consider the terms of the enterprise agreement, as these are the source of the Commission’s authority to deal with the dispute. ‘Tier 3’ of the dispute resolution procedure in clause 42.2 of the 2018 Agreement states that, if the relevant issue remains unresolved after ‘Tier 2’ of the procedure, the matter may be referred to the Commission for arbitration, ‘with the rights of the parties to appeal being reserved’.

[24] In our view, this provision establishes a right to appeal a decision of the Commission made under clause 42.2, such that permission to appeal under s 604 of the Act is not required. The clause employs language analogous to the provision that was before the Full Bench in AMWU v Silcar Pty Ltd. 2 That clause stated that a decision of the Commission was binding on the parties, ‘subject to either party exercising a right of appeal’. The Full Bench in Silcar concluded that this term created an independent right of appeal under the terms of the agreement. Like the term in Silcar, clause 42.2 of the 2018 Agreement does more than recognise the possibility of an appeal under s 604 of the Act. It contemplates that a decision of the Commission made under the clause will be subject to a right of appeal.

[25] However, as we explain further below, Ms Vendrig is no longer employed by Ausgrid. The 2018 Agreement therefore no longer applies to her and she has no current right to invoke the dispute resolution procedure. On this basis, in order to appeal, Ms Vendrig must rely on s 604 of the Act, because the agreement-based appeal right is not available to her.

[26] An appeal under s 604 of the Act is an appeal by way of rehearing, however the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision-maker. 3

[27] In our opinion, the Deputy President’s conclusion that Ms Vendrig was not entitled to the NPER2 allowance was plainly correct. The source of the entitlement to the allowance was clause 47.2.1(h) of the 2018 Agreement. It requires an employee to have the relevant accreditation in order to receive the allowance. Further, clause 47 states that it ceases to apply from 1 December 2018. By the time Ms Vendrig obtained her accreditation as a RPEng in October 2019, clause 47 had long since ceased to apply. Appendix 4 applied in its stead. Ms Vendrig therefore did not have an entitlement to the NPER2 allowance under clause 47.2 on 30 November 2018, or at any other time.

[28] In her appeal submissions, Ms Vendrig contended that the Deputy President erred at [3] and elsewhere in his reference to clause 47.2.1(h)(i)-(ii) as the relevant source of her entitlement to the allowance. She said that this provision did not apply to ‘redeployees’ prior to 30 November 2018 and that the source of her entitlement was instead clause 17.11 of Appendix 4, referred to above. We reject these contentions.

[29] First, Ms Vendrig’s application under s 739 clearly identified clause 47.2.1(h) as the source of her claimed entitlement to the NPER2 allowance. This was how Ms Vendrig characterised the dispute that she referred to the Commission for arbitration. Her appeal is from the determination of that dispute. Ms Vendrig cannot now on appeal seek to recast the dispute.

[30] Secondly, we agree with Ausgrid that clause 17.11 of Appendix 4 did not apply to Ms Vendrig. Clause 17.11 refers to salary maintenance under Appendix 5. Contrary to Ms Vendrig’s contentions, we do not consider that she was, in November 2018, an ‘excess employee’ for the purposes of Appendix 5. She did not fall within the definition of such an employee, because she was not provided with a notice of the kind referred to in clause 2.2 of Appendix 5, namely one that advised her that her position was redundant and that she was an ‘excess employee for the purposes of Appendix 5’. The two documents referred to by Ms Vendrig are plainly not notices of this kind. Ms Vendrig did not become an ‘excess employee’ until 2020. Further, the salary maintenance referred to in Appendix 5 relates to situations where an ‘excess employee’ is permanently appointed to a role at a lower grade. This is not what occurred in Ms Vendrig’s case.

[31] But even if clause 17.11 did apply to Ms Vendrig, this would not assist her. The reference in clause 17.11 of Appendix 4 to ‘Previously Applicable All-Purpose Allowances’ is defined in clause 3.12 of Appendix 4 as including the ‘National Professional Engineering Registration 2’. But this was not an allowance to which Ms Vendrig was entitled under the 2018 Agreement, because Ms Vendrig did not meet the accreditation requirement stipulated in clause 47 until after clause 47 had ceased to apply. Clause 17.11 of Appendix 4 could therefore not operate to preserve it. The same analysis applies to clause 17.7 of Schedule 4 (which in our view also has no application to Ms Vendrig, because read in context, it is concerned with persons eligible for new allowances after 30 November 2018 (see clause 17.6)).

[32] Ms Vendrig could only have been entitled to the NPER2 allowance under the 2018 Agreement if she had satisfied the requirements of clause 47. She did not meet those requirements. She had previously received the NPER2 allowance from the company only because it had chosen to provide it to her, on a discretionary, over-agreement basis. There is no suggestion that the ETA had any legal force. 4 It is not incorporated into the 2018 Agreement. There is no provision in the 2018 Agreement that requires the company to continue to afford discretionary, over-agreement payments or other benefits not provided for in the instrument. Moreover, it would not make sense for clause 47 to require accreditation as a precondition for the payment of the NPER2 allowance, only then to oblige the company to include the allowance in salary maintenance despite the condition not being met. It would be absurd for the company to be required to provide salary maintenance in respect of a payment that it was never required to make in the first place. We note that, given Ms Vendrig did not meet the requirements of clause 47.2.1, the company could have ceased paying her the allowance at any time.

[33] The fundamental question raised by Ms Vendrig for determination by the Commission was whether under the 2018 Agreement she had been entitled to be paid the NPER2 allowance in respect of the disputed period. The Deputy President’s determination of this question was plainly correct. This is sufficient for us to conclude that there is no merit in the appeal and to refuse permission to appeal under s 604. For the same reason, had the right of appeal under clause 42 of the 2018 Agreement continued to be available to Ms Vendrig, we would have dismissed the appeal. However we will deal briefly with the appeal grounds.

[34] We reject the first ground of appeal. It is not relevant to inquire whether Ms Vendrig was treated differently from Mr Chawla or any other employee. The dispute concerned whether the company had complied with its obligations under the 2018 Agreement in respect of Ms Vendrig. Even if the company had applied the 2018 Agreement to Mr Chawla in a different manner, it would not follow that it had applied the 2018 Agreement incorrectly to Ms Vendrig. In any event, we see no basis to doubt the finding of the Deputy President that Ms Vendrig was not treated differently to other employees.

[35] We reject the second and third grounds of appeal. The requirements in clauses 1.6 and 1.7 of Appendix 4 that ‘no current employee will lose pay at the point of transition to the CCR framework’ and that employee will ‘continue to be paid salary maintenance under the CCR framework’ operate upon the conditions of employment applicable under the 2018 Agreement. Ms Vendrig had no entitlement to the NPER2 allowance under the 2018 Agreement, and the over-award benefit afforded to her by the company was ceased, effective from 30 November 2018, because she had not obtained accreditation by that date.

[36] Because Ms Vendrig had no entitlement to the NPER2 allowance under the 2018 Agreement, it does not matter whether she was an engineer as defined in clause 47.1.2. However, we do not consider that any error has been revealed in the Deputy President’s analysis of that question.

[37] As to the fifth ground of appeal, Ms Vendrig is correct that the terms of the 2018 Agreement prevail over any inconsistent notice from the company concerning the removal of her allowance, however, there was no such inconsistency. As to the sixth ground of appeal, we do not consider the exhibited material to assist Ms Vendrig’s argument. In particular, the statement in exhibit B3 that employees have been ‘transitioned over to CCR on your current pay point and relevant allowances’ is entirely compatible with the company’s position, and with the terms of the 2018 Agreement: it is relevant allowances that are to be maintained, not allowances that are irrelevant because the employee has not qualified for them.

[38] In respect of the seventh ground of appeal, the Deputy President did not give ‘precedence’ to the company’s letter of 6 August 2018 over the terms of the 2018 Agreement itself. There was no inconsistency between the letter and the 2018 Agreement.

[39] None of the grounds of appeal has been substantiated.

[40] Even if we had considered that the Deputy President had reached the wrong conclusion, we would not have quashed the decision, because there would be no utility in doing so. As we have mentioned, Ms Vendrig is no longer employed by Ausgrid, and the 2018 Agreement no longer applies to her (see s 52 of the Act). An enterprise agreement does not give a person an entitlement unless the agreement applies to the person (see s 51(2)). Ms Vendrig is no longer able to invoke or use the dispute resolution procedure in the 2018 Agreement. By parity of reasoning with the decision of the Full Bench in Simplot v AMWU, 5 we consider that we would have no power to rehear Ms Vendrig’s application under s 739. Moreover, there cannot be a dispute over the application of the 2018 Agreement in respect of a person who is not an employee covered by the agreement. This is not a case where, for example, a union has brought an application on behalf of an employee who has since been dismissed, but the issue in question remains in dispute between the union and the company. The matter concerns the claim of a former employee of the company concerning her own particular circumstances during a period when she used to be employed. Accordingly, there could be no utility in quashing the decision, because there would be no proper basis for the Full Bench to rehear Ms Vendrig’s application or to remit it to another member for redetermination.

[41] Finally, Ausgrid had contended before the Deputy President that the Commission had no jurisdiction to determine her dispute because Ms Vendrig had not taken the dispute through the first two steps of the dispute resolution procedure, as required by clause 42. The Deputy President accepted the company’s contention that Ms Vendrig had not told management that she was taking her issue through the dispute settlement procedure, and that the company therefore had had no opportunity to formally respond to her dispute at each step in the process, ‘or at all’ (see [37](3)). He also accepted that the first Ausgrid knew of the dispute was when the Commission listed the s 739 matter for conciliation, after Ms Vendrig’s employment had ended. Despite this, the Deputy President concluded that on fine balance, he was prepared to accept that the Commission had jurisdiction to determine the matter (at [39]). We find it difficult to see how this conclusion was open to the Deputy President, given his finding that the company was not aware of the dispute before it was lodged. Tier 3 of the process allows the Commission to arbitrate only those disputes that ‘remain unresolved after Tier 2’. It is not apparent to us how there can be a dispute between two parties if one of them is unaware of the dispute, or how it can be said in the present case that the dispute ‘remained unresolved after Tier 2’. The company did not cross-appeal or raise a notice of contention in respect of this point. However, it is a matter that goes to the jurisdiction of the Full Bench. If the Deputy President had no power to determine the application in the first place because the requirements of clause 42.2 had not been met, an appeal that asks the Full Bench both to quash and to rehear the application is incompetent. However, it is not necessary for us to reach a final conclusion on this matter.

Conclusion

[42] There is no basis to grant permission to appeal under s 604, either in the public interest or on the conventional basis. The Deputy President’s conclusion that Ms Vendrig was not entitled to the allowance was correct. The decision to dismiss the application is not affected by appealable error. Permission to appeal is therefore refused. Had permission to appeal not been required, we would nevertheless have dismissed the appeal.

DEPUTY PRESIDENT

Appearances:

M Vendrig for herself
N Gao for Ausgrid Pty Ltd

Hearing details:

2020
Melbourne
22 January

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 1   [2020] FWC 6278

 2   [2011] FWAFB 2555

 3   See Coal and Allied v AIRC (2000) 203 CLR 194 at [17]

 4   As to the status of unregistered industrial agreements under the general law, see Ryan (Receiver and Manager of Homfray Carpets Australia Pty Ltd) (In Liq) (Receivers and Managers Appointed) and Another v Textile Clothing and Footwear Union [1996] VSC 16, per Hayne JA, at 263 to 267.

 5   [2020] FWCFB 5054