1
Fair Work Act 2009
s 739 - Application to deal with a dispute
Mark Launders
v
Officeworks Pty Ltd
(C2014/7356)
DEPUTY PRESIDENT SAMS SYDNEY, 18 AUGUST 2015
Application to deal with a dispute under a dispute resolution procedure in an enterprise
agreement – correct classification of employee – error in payment – terms of an enterprise
agreement – interpretation of words in the enterprise agreement – no ambiguity or
uncertainty – words to be given their plain, ordinary meaning - training a requirement of the
job – no training undertaken by employee – employee cannot be classified at higher level –
application dismissed.
BACKGROUND
[1] On 12 December 2014, Mr Mark Launders (the ‘applicant’) filed an application,
pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’) seeking to have the Fair Work
Commission (the ‘Commission’) deal with a dispute with his employer, Officeworks Pty Ltd
(‘Officeworks’ or the ‘respondent) in accordance with the dispute resolution procedure in the
Officeworks Agreement 2012 (the ‘2012 Agreement’). The applicant is a part time employee
at Officeworks’ Woollongabba store in Queensland.
[2] The dispute resolution procedure under the 2012 Agreement is set out as follows:
17 RESOLUTION OF ISSUES
17.1 Defined Terms
17 .1.1 "Party" means Officeworks or a Team Member or Team Members involved in
the dispute and "Parties" means both or all of them;
17.1.2"Dispute" means any matter concerning the application of the terms of
Agreement (not merely whether the Agreement applies at all) or matters arising from
the Agreement or matters arising at the workplace which pertain to the employment
relationship but does not include a matter or claim that:
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DECISION
AUSTRALIA FairWork Commission
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(a) would constitute an additional claim pursuant to clause 5.2 or;
(b) relates to matters in respect of which a Team Member (or former Team
Member) has an immediate right to make a legal claim pursuant to legislation
pertaining to termination of employment; or (c) relates solely to a Team
Member's immediate right to make a legal claim pursuant to legislation
pertaining to equal opportunity or unlawful discrimination complaints.
17.1.3 "Team Member Representative" means a fellow Team Member from the same
work location place or, if relevant, a representative of the SDA.
17.2 Dispute Resolution Procedure
The following procedure for the avoidance or resolution of disputes between
Officeworks and Team Members covered by this Agreement will apply.
17 .2.1 In the first instance, the dispute will, wherever possible, be discussed by the
affected Team Member and the manager at the work location concerned, with the joint
intent of achieving a satisfactory outcome.
17.2.2 If the dispute remains unresolved, an appropriate representative of Officeworks,
will assist in resolving the dispute. The Team Member may appoint a Team Member
Representative at any stage to represent the Team Member in relation to the dispute.
17.2.3 Should the dispute still remain unresolved, a senior representative of
Officeworks or another suitably authorised representative of Officeworks must
become involved. The Team Member and/or their Team Member Representative will
meet as required with the representative of Officeworks.
17.2.4 If discussions at the workplace level do not resolve the dispute, a party to the
dispute may refer the matter to Fair Work Australia for Conciliation and/or
Arbitration.
17.2.5 Fair Work Australia may deal with the dispute in 2 stages:
(a) Fair Work Australia will first attempt to resolve the dispute as it considers
appropriate, including by mediation, conciliation, expressing an opinion or
making a recommendation; and
(b) if Fair Work Australia is unable to resolve the dispute at the first stage, Fair
Work Australia may then:
(i) arbitrate the dispute; and
(ii) make a determination that is binding on the parties.
17.2.6 Until the dispute is resolved, but subject to Officeworks' responsibility to
provide a safe and healthy working environment, all work will continue in accordance
with the practices existing prior to the matter in dispute arising, or other agreed
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arrangements. No Party will be prejudiced as to the final settlement by the continuance
or deferment of the work in accordance with this clause.
17.2.7 The parties to the dispute agree to be bound by a decision made by Fair Work
Australia in accordance with this term.
17.3 Conduct of the Parties
17.3.1 In order to facilitate this Resolution of Issues procedure:
(a) the Party with the dispute must notify the other Party at the earliest
opportunity of the problem;
(b) throughout all stages of the procedure all relevant facts must be clearly
identified and recorded; and
(c) sensible time limits must be allowed for completion of the various stages of
discussion. However, the Parties must co-operate to ensure that the Resolution
of Issues procedure is carried out as quickly as possible.
[3] Shortly stated, the dispute concerns whether the applicant is properly classified as a
Level 1 Team Member or a Level 2 Team Member under the 2012 Agreement. The
respondent maintains the applicant is properly classified as a Level 2 Team Member and any
earlier payments made to him based on the Level 1 rate, was the result of an administrative
error. At this point, I note that because the alleged misclassification dates back to 2007, two
predecessor enterprise agreements are also relevant to this dispute - the Officeworks
Agreement 2006 (the ‘2006 Agreement’) and the Officeworks Agreement 2009 (the ‘2009
Agreement’). That being so, I set out each of the Agreements’ classification structures below.
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The 2006 Agreement
[4] The classification structure is found at Appendix A as follows:
[5] Clause 10 of the 2006 Agreement deals with rates of pay as follows:
10 RATES OF PAY
10.1 Adult Level 1 Team Member
10.1.1 A Level 1 Team Member will be paid an additional 10% above the
applicable Level 2 Team Member rate provided for in clause 10.2.
10.2 Adult Level 2 Team Member
10.2.1 The minimum rate of pay for a Level 2 Team Member for 38 hours per
week is as follows:
(a) Sites that can trade extended hours (as defined in Clause 8.1).
1 April ‘06 1 Oct ‘06 1 April ‘07 1 Oct ‘07 1 April ‘08 1 Oct ‘08
$581.60 590.60 600.60 610.60 621.60 632.60
(b)All other sites
1 April ‘06 1 Oct ‘06 1 April ‘07 1 Oct ‘07 1 April ‘08 1 Oct ‘08
$572.15 $581.15 $591.15 $601.15 $612.15 $623.15
10.2.2 Increases will take effect on the first pay period to commence on or after
the increment date.
10.3 Adult Level 3 Team Member
APPENDIX A 1 CLASSIFICATION STRUCTURE TRAINING DEVELOPMENT LEVEL LOCATION & POSITION APPLICABLE AT EACH COMPETENCY LEVEL Customer Service Centre Store Level 1 (Coordinator or Customer Service Centre Team member Business Machines Specialist) Specialist Indicative Role Training and Completion of Training Techworks Specialist Core Training as per Officeworks Modules and work
Furniture Specialist Learning and Development performance standards Front End Coordinator Framework and Work described in Officeworks Receiving Coordinator Experience procedures, policies and Printworks Coordinator enterprise agreement. Assistant Merchandise Coordinator Level 2 Team member * Stationery Indicative Role Training and Completion of Training *Furniture Core Training as per Officeworks Modules and work *Business Machines Learning and Development performance standards *Techworks Framework and Work described in Officeworks * Printworks Experience procedures, policies and
*Receiving enterprise agreement. * POS Level 3 (Trainee) Team member *Stationery Indicative Role Training and Completion of Training *Furniture Core Training as per Officeworks Modules and work *Business Machines Learning and Development performance standards *Printworks Framework and Work described in Officeworks *Receiving Experience procedures, policies and *POS enterprise agreement.
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10.3.1 An adult full-time Team Member or an adult part-time Team Member
may be employed as a Level 3 Team Member for up to 3 months employment
with Officeworks. During this time a Level 3 Team Member will receive the
required training and work experience to enable them to perform competently
on the job as a Service Assistant Level 2.
10.3.2 The Store Manager will assess the Team Member's competency
regularly during the three months and will move the Team Member to Level 2
Team Member as soon as the Team Member is assessed to be competent in
their role or at the end of the three-month period. An adult Level 3 Team
Member shall be paid 90% of the rate for an Adult Level 2 Team Member.
The 2009 Agreement
[6] The classification structure is found at cl 8, as follows:
8.1 A 'Team Member' means an employee of Officeworks covered by this Agreement.
8.2 Classification Structure
8.2.1 ‘Specialist Team Member (Level 1)’ means:
a Customer Service Centre Team Member
Technology Specialist
Furniture Specialist
Print & Copy Specialist
Stationery Specialist
Who has received the indicative role and core training as per Officeworks
Learning and Development framework and work experience. Competency is
determined in completion of training modules and work performance standards
described in Officeworks procedures, policies and this Agreement.
8.2.2 ‘Team Member (Level 2)’ means a Team Member other than a
Specialist in the following departments:
Stationery
Furniture
Technology
Print & Copy
Receiving
POS
8.2.3 Key Classification
The key classification for this Agreement is ‘Team Member (Level 2)’ as
defined in clause 8.2.2. The rate of pay for a ‘Team Member (Level 2)’ as of
the commencement this [sic] Agreement, has been based upon, and is relative
to, the rate for the classification of Service Assistant Level 2 as provided in
Clause 12 of the Officeworks Superstores Pty Ltd Award 2002.
[7] Clause 9 deals with rates of pay.
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9 RATES OF PAY
9.1 Specialist Team Member (Level1)
9.1.1 A Specialist Team Member will be paid an additional 10% above the
applicable Team Member rate provided for in clause 9.2.
9.2 Adult Team Member (Level 2)
9.2.1 The minimum rate of pay for an Adult Team Member (Level 2) for 38
hours per week is as follows:
1 May ‘09 1 April ‘10 1 April ‘11
$648.60 $666.60 $686.60
9.2.2 Increases will take effect on the first pay period to commence on or after
the increment date.
The 2012 Agreement
[8] The relevant provisions in relation to classifications in the 2012 Agreement are set out
at clause 8 as follows:
8 DEFINITIONS
8.1 A 'Team Member' means an employee of Officeworks covered by this Agreement.
8.2 Classification Structure
8.2.1 'A Team Member with additional responsibilities, which they are responsible for
shall be a Specialist Team Member (Level 1 )'.
A Team Member at this level includes:
All customer service centre Team Members
Technology specialist
Furniture specialist
Print & copy specialist
Stationery specialist
Key Holder
Who has received the indicative role and core training as per Officeworks Learning
and Development framework and work experience. Competency is determined in
completion of training modules and work performance standards described in
Officeworks procedures, policies and this Agreement.
And
Is engaged in all or any of the functions listed in level 2,and
Who is at a level of skill above that of a level 2,
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Who may also be responsible for stock control
Who may be responsible for the supervision, mentoring and coaching of Team
Members
8.2.2 'Team Member (Level 2)' tasks include but are not limited to
the provision of information, advice and assistance to customers;
demonstration of products/items for sale;
the sale or hire of products/items by any means;
the recording by any means of a sale or sales;
the receiving, arranging or making payment by any means;
the receiving and preparation for sale and or display of products/items in or about
any store;
the pre-packing or packing, weighing, assembling, pricing or preparing of products
or other items for sale;
the display, shelf filing, replenishing or any other method of exposure or
presentation for sale of goods;
the wrapping or packing of products/items for despatch and the despatch of
products/items;
the receipt, preparation, packing of products/items for repair or replacement and the
repair of products/items;
8.2.3 Key Classification
The key classification for this Agreement is 'Team Member (Level 2)' as defined in
clause 8.2.2. The rate of pay for a 'Team Member (Level 2)', as of the commencement
this Agreement, has been based upon, and is relative to, the rate for the classification
of Service Assistant Level 2 as provided in Clause 12 of the Officeworks Superstores
Pty Ltd Award 2002.
[9] The applicant contends that he is properly classified as a Level 1 Team Member and,
amongst other things, relies on a period from 2007-2011 during which he was paid at an
equivalent rate for that classification. The respondent’s explanation is that this was the result
of an administrative error. It denies that the applicant was ever classified as a Level 1 Team
Member, and that he is, and always has been, properly classified as a Level 2 Team Member.
[10] The matter was listed for conciliation on 7 and 20 January 2015, but the dispute was
not able to be resolved. During these conferences, the applicant was represented by Ms S
Purton of the Shop, Distributive and Allied Employees’ Association (the ‘Union’). However,
I note that, during the course of the conference on 20 January 2015, Ms Purton advised the
Commission that the Union would no longer be representing the applicant in the event of an
arbitration of the dispute. The respondent was represented in conciliation by its Employee
Relations Manager, Mr C Dixon and then by its Regional HR Manager (North), Ms H
Dorman following the former leaving the employ of the respondent.
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[11] The matter was listed for mention again on 10 February 2015 and directions were
issued for the parties to file and serve submissions, any evidence on which they relied and to
advise if they sought a hearing of the matter. By consent, the matter proceeded on the basis of
the written material provided by the parties. The applicant provided written submissions and
documentary material on 30 March 2015, with the respondent providing written submissions
and documentary material on 27 April 2015. The applicant filed further materials in reply on
11 May 2015.
[12] In his later submission, the applicant appeared to amend what he was seeking from
this proceeding. Accordingly, I sought the views of the parties as to whether this might form
the basis for further settlement negotiations of the dispute. However, following
correspondence from the parties, it became clear that the matter was still not amenable to
settlement and my Chambers advised the parties on 8 July 2015 that the matter would be
determined on the basis of the materials previously submitted.
SUBMISSIONS
Mr Launders’ submission
[13] In his submissions, the applicant set out the history of the dispute as follows. He had
first raised the issue of his correct classification with store management in 2013. After some
time, Human Resources (HR) offered him $500 in back pay, which he considered inadequate.
He acknowledged that he should have noticed the issue sooner and had compromised his
claim by seeking backpay for that financial year only. However, he insisted he be returned to
the higher rate of pay. HR had never responded to this offer, despite him following it up with
store management.
[14] The applicant contacted the Union for assistance at some time in 2014. At that time,
Officeworks stated that his payment at the Level 1 rate was a mistake. It based its position on
the fact that the applicant was identified as being employed at Level 2 in his contract of
employment, dated 7 November 2007. This was contrary to his local Manager’s assurance
that when he passed probation that and due to his specialist knowledge, he would be paid as a
Level 1 Team Member. This was set out in the e-form signed by himself and the Manager.
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[15] The applicant referred to a meeting on 9 December 2014 between himself, HR and a
representative of the Union. HR had advised that he would be backpaid approximately
$5,000, but the respondent refused to return him to Level 1. The applicant attached an email
from his Union representative, Ms Purton, as to her recollection of the meeting from her
notes. It was expressed in these terms:
‘There was a meeting between Sarah [Roddis, HR Manager], Mark and myself on 9 Dec
at Officeworks Woollongabba.
To be discussed at this meeting was the back payment of the difference between level
1 and level 2 and having Mark being put back on Level 1 from Level 2.
Sarah stated that the line was going to be drawn in the sand today and regardless of
whether Mark did or did not like the outcome of the meeting that the company was
going to authorise the back payment out of ‘good will’. It was going to be from when
the date of rate changed approx. Feb 2011 until that pay week and there were just a
few calculations missing in regards to leave and that once they had that sorted out it
would be paid. The company maintained that Mark had never performed the Level 1
role and it was simply an administrative error and that he could not be put back on
Level 1. Mark left the meeting letting Sarah know that he was not happy and would
continue persuing [sic] the matter through a fair work dispute.’
[16] The applicant referred to his Contract of Employment (Attached to this decision and
marked as ‘Annexure A’) and to cl 10.1 and 10.2 of the 2006 Agreement (See para [5]). The
applicant conceded that he had not questioned his 2007 contract at the time, as he understood
that Level 2 referred to him being part time and that the levels referred to types of
employment (probation, part time and full time). He had been told that the members of the
Technology Department Team were paid at the same rate as Full-Timers or Level 1.
[17] The applicant noted that his contract set out a base rate of pay of $17.6753 per hour.
At the relevant time (November 2007), the minimum rate of pay for a Level 2 Team Member
at sites that can trade extended hours, was $621.60. Dividing this by 38 and adding 10% (for a
Level 1 employee as set out at cl 10.1.1) resulted in a base rate rounded up to $17.6753. He
believed that this clearly demonstrated that it was his identification as a Level 2 Team
Member, which was the error.
[18] The applicant attached an email from a former colleague, Mr Marc Edmonds. Mr
Edmonds had said that when he had been working in the Stationery Department, a position
became available in the Business Machines Department. He had been told to apply for it and
was told he would receive a higher rate of pay. When he successfully applied for the job, his
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rate of pay was put up one level higher. He believed that everyone was at the higher level in
the Department. To demonstrate this, the applicant attached payslips which, he said disclosed
that Mr Edmonds was paid at the probationary rate (Level 3, being Level 2, less 10%) of
$14.22 per hour in May 2007 and at the Level 1 Rate of $17.39 (being Level 2, plus 10%) in
September 2007. Another email from Mr Ian Curtis, a former Technology Line Manager, set
out Mr Curtis’ belief that Business Machines Team Members had been paid at level 1 rates in
recognition of the Team Members’ specialist technology knowledge ‘and the ability to pitch
extended warranty and Rentsmart packages.’
[19] The applicant emphasised that his specialist knowledge, gained through formal
qualifications and his own personal research, was higher than that of a Level 2 Team Member.
He had been known to give other employees advice on their personal technology issues. He
made particular reference to a customer who had expressed his gratitude after the applicant
had corrected a software ‘firewall’ issue that had caused the customer’s internet access to fail.
On another occasion, his specialist knowledge of an individual vendor’s laptop models, had
meant that he could ensure that a customer received the correct software subscription. Further,
the applicant noted that he would ‘troubleshoot’ equipment that had been returned by
customers, thereby saving money for the respondent.
[20] The applicant had requested that the respondent provide him with documents setting
out the basis for its view that he was not a Specialist. While these documents disclosed that
the role of ‘Specialist’ had ‘evolved’ during 2012 (after he had been assigned to this role), the
core indicator remained of having extra knowledge and skills. The respondent had not
followed its processes and he had never been advised that he was being reassigned or
provided with a proper explanation. He believed the respondent’s reluctance to investigate his
claim arose from the financial benefit it sought to gain by keeping him classified as a Level 2
Team Member.
Officeworks’ submission
[21] Officeworks submitted that the applicant had been correctly classified at Level 2 Team
Member under the 2012 Agreement and that he had been similarly classified in preceding
enterprise agreements. The applicant had actually been paid in excess of his entitlements and
was certainly not entitled to back pay. The respondent’s offers made to the applicant were
made on a ‘without prejudice’ basis and therefore should not be understood to be an
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admission of liability. The applicant’s submissions relied on selective evidence and the emails
referred to by him should not be given any weight, in the absence of their evidence being
tested by cross examination.
[22] The respondent explained that at the time the applicant commenced employment, he
was covered by the the 2006 Agreement. Cl 10.3 of the 2006 Agreement set out that full and
part time employees may be employed as Level 3 Team Members for up to three months,
during which time they receive training and work experience to transition to Level 2 Team
Member. Cl 10.4 of the Agreement contemplated that such an employee would transition to
Level 2 Team Member once assessed as competent at the end of three months.
[23] On 19 November 2007, a new contract of employment was entered into setting out the
applicant’s employment with Officeworks on a part time basis. That contract ‘made clear’
that he was classified as a Level 2 Team Member, but set out his rate of pay as a Level 1
Team Member. This latter reference was an error. The respondent denied that the applicant
had ever been told that he would be engaged as a Level 1 Team Member at this time and there
was no evidence to support this assertion, aside from an erroneous reference on the e-form
document. The e-form was described by the respondent as being an ‘internal transactional
document for the purpose of making payroll changes’. It was collateral to the contract of
employment. The error was not such as to change or displace the contractual relationship
between the parties. Nor had the applicant provided any evidence that he had completed the
appropriate training, in accordance with the respondent’s policies and procedures.
[24] The respondent explained that the applicant entered into an amended contract of
employment on 2 September 2008 when his hours of work were reduced to 15 hours per
week. The respondent conceded that the pay scale level remained unaltered and the pay rate
error continued. The applicant’s rate of pay was reduced from 30 January 2011, following his
classification being corrected to Level 2 Team Member. The applicant did not raise the issue
again until 3 July 2013 when the 2012 Agreement was in operation. The classification
structure is set out at clause 8.2 of the 2012 Agreement (see para [8]).
[25] The respondent said that the majority of adult employees at the Woollongabba Store
were classified at Level 2. Any assertion that the applicant performed additional
responsibilities was denied. Nor had he received the core training, as required in the relevant
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industrial instruments. While the applicant’s initiative was praiseworthy, it was not relevant
for the purposes of his correct classification.
[26] The respondent relied on a written statement of Ms Sarah Roddis, the State HR
Manager. Ms Roddis was of the view that the applicant did not meet the level of performance
or competence required under the classification of a Level 1 Team Member. He was properly
covered under Level 2. His strong technology knowledge was acknowledged, but he did not
engage in coaching, mentoring, cash office duties, opening and closing the store or any
leadership/management tasks.
[27] Ms Roddis set out her understanding of the history of the dispute. In September 2013,
she had referred the applicant’s query as to backpay and ‘reinstatement’ to the position of
Level 1 Team Member to the Store Manager, Mr Howard Sutton. She, Mr Sutton and Ms
Margaret Robinson, IR Manager, had determined that the applicant was not entitled to
backpay, as he was properly classified as a Level 2 Team Member. The description of the
applicant on the e-form at the time his guaranteed hours changed and his request for payroll
deductions for Union fees, contained an error as to his classification. However, this was not
determinative and Ms Roddis could not recall having seen the signed e-form provided by the
applicant in evidence.
[28] Ms Roddis was aware that the applicant had been offered an amount of $500 as
compensation for the administrative error and in settlement of the dispute. However, this offer
had not been accepted by the applicant. Mr Sutton had told the applicant that he would not be
reinstated to Level 1 Team Member. While the applicant had been overpaid, it was stressed
that the respondent did not intend to recover these amounts. The applicant had then sought
back pay for the financial year and reinstatement to Level 1 Team Member. Given the lengthy
passage of time, Ms Roddis had assumed that the matter was finalised, until she was
approached by the Union in September 2014. She then reviewed the applicant’s personnel file
and spoke to Mr Sam Uithol, who was the Manager at the Woollongabba store. Mr Uithol
could not recall having discussed the applicant’s classification at Level 1 with him in 2007.
[29] Ms Roddis had attended a meeting with the applicant and Ms Purton of the Union on
19 December 2014. Ms Roddis acknowledged the error on the e-form, but explained that this
document was different to a contract of employment. The applicant had not accepted this
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explanation. She apologised for the error and offered the full backpay amount. However, the
applicant continued to seek his reinstatement to Level 1 Team Member. Ms Roddis told the
applicant that this was not possible as his work was not properly classified as that level. The
applicant referred her to a typed document setting out the respondent’s customer service
expectations. While Ms Roddis did not believe that this was a formal Officeworks document,
she told him that customer service skills were a fundamental skill for all retail staff. The
applicant had acknowledged that he did not perform a number of tasks which Ms Roddis had
described as meeting the respondent’s expectations of a Level 1 Team Member.
[30] Ms Roddis did not dispute the applicant’s view that he had strong technology
knowledge, but his duties included replenishment and customer service in the technology
area. The applicant explained that he was applying for a home loan and did not believe that he
would be successful as a Level 2 Team Member. He also stated that he believed that the
change in his pay level on the system, was as a result of him being ‘targeted’ by Store
Management. Ms Roddis explained that the arrangement had not been changed at the store
level; rather, it had been changed by the team in Melbourne and the misunderstanding arose
from an administrative error. While she was unable to give the applicant a specific
explanation as to how the administrative error had occurred, she suggested ‘human error’.
The applicant expressed dissatisfaction that the error had not been detected earlier. However,
Ms Roddis put that he had contributed to the error by not bringing it to the respondent’s
attention. The applicant believed that the respondent would have noticed the error. Ms Roddis
told the applicant that this was unrealistic and ‘he should be responsible for discrepancies in
his pay slip.’
[31] Ms Roddis reiterated that due to the respondent’s error and lack of attention given to
the issue, backpay to him would be processed as an ‘act of good faith’. It was not an
acknowledgement of the applicant being properly classified as a Level 1 Team Member. Ms
Judith Fletcher (State HR Manager) was to process the backpay in Ms Roddis’ absence. When
she told the applicant that his classification at Level 1 ‘would not be supported by the
business’ he stormed out of the room. Ms Purton had told Ms Roddis that she believed that
the respondent was being more than generous (with its backpay offer).
[32] Ms Roddis stated that Level 1 Team Members were expected to have a high level of
education, training and experience, a strong relationship with the leadership team and other
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Team Members and a natural ability to coach and mentor colleagues. Level 1 was viewed as a
stepping stone to a leadership role.
[33] The respondent referred the Commission to a number of authorities relevant to the
interpretation of the terms of an enterprise agreement and submitted that the principles
relating to the construction of contracts were generally applicable to the construction of
enterprise agreements; See: Codelfa Construction Pty Ltd v State Rail Authority of NSW
[1982] HCA 24; BP Australia Pty Limited v Nyran Pty Limited [2003] FCA 520; Kucks v CSR
Ltd (1996) 66 IR 182; Australasian Meat Industry Employees’ Union v Coles Supermarkets
Australia Pty Ltd (1998) 80 IR 208; United Firefighters’ Union of Australia v Metropolitan
Fire and Emergency Services Board (2006) 152 IR 106; Watson v ACT Department of
Disability, Housing and Community Services (ACT) (2008) 171 IR 392; and Short v FW
Hercus Pty Ltd (1993) 46 IR 128. In this case, the language in the relevant industrial
instruments was clear and unambiguous.
[34] The respondent further submitted that a proper construction of the industrial
instruments revealed that the applicant was correctly classified at Level 2 Team Member and
that he was therefore not entitled to any backpayment. In fact, he had been overpaid. Finally,
it was put that this application should be dismissed.
In reply
[35] The applicant said that the evidence, properly understood, demonstrated that his pay
rate at Level 1 Team Member was correct until its adjustment in 2011. The respondent had
not addressed all of the relevant evidence in this case. It was not correct to say that his earlier
pay classification at Level 1 Team Member was in error.
[36] The applicant put that his evidence of his conversation with Mr Uithol relating to him
being appointed at Level 1 following his probation, was corroborated by the emails of Mr
Edmonds and Mr Curtis. The applicant noted that Ms Roddis had not put that Mr Uithol had
denied that such a conversation had occurred, merely that he could not recall the conversation.
[37] While the applicant remembered requesting a change in his working hours was
documented in the e-form, he could not remember signing, or even viewing an amended
contract of employment. He believed it was incorrect to characterise the e-form as simply a
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pay document, as it was used to amend his contract. However, he understood it had not been
placed on his employment file and he had not been provided copies of this document.
[38] The applicant submitted that the changes in classification which occurred when the
2009 Agreement and 2012 Agreement became operative were not relevant to his original
appointment. He had been covered by the 2006 Agreement at the commencement of his
employment. This instrument did not mention specialist or training prerequisites. He claimed
that technology specialist training did not commence until mid-2011 and that the respondent
had not provided sufficient information in respect to the training modules.
[39] The applicant believed that the majority of the employees said by Officeworks to be
employed as Level 2 Team Members (constituting 75% of the workforce) would have been
employed after him and that those employed as Level 1 Team Members (constituting 25% of
the workforce) had been employed before him. This later group had been paid at Level 1 prior
to the implementation of the 2009 Agreement.
[40] The applicant acknowledged that he had not undertaken specialist training. However,
he had not previously been made aware of the existence of that training. It had not been a
prerequisite at the time of his employment. If directed to do so, he would have undertaken the
training. He believed that the training programs were implemented when the specialist criteria
were inserted into the 2009 and 2012 Agreements. He noted that there was no record of him
undergoing any training until 11 months after the commencement of his employment. He
speculated that record keeping of staff training may have changed around this point. In
addition, this record did not reflect training he had undertaken externally, work experience
gained in other roles or his attendance at product launches, outside of working hours.
[41] The applicant described the evidence of Ms Roddis as biased and misleading. She had
not participated in the meeting of 19 December 2014 in ‘good faith’ and had simply described
the issue as a mistake. Her inability to tell him how the error had occurred further raised his
concerns. The document he had shown her setting out the Specialist Criteria was from the
respondent’s intranet and he rejected any inference that he had improperly created this
document.
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[42] The applicant conceded he had become ‘annoyed’ during the meeting of 19 December
2014 as Ms Roddis could not answer his questions or properly acknowledge the material he
had provided. He questioned the transparency and lack of accountability surrounding payroll
and used the example of ‘rogue management’, as constituting a potential flaw in the system.
He denied having ‘stormed out’ of the meeting, although he was ‘disappointed´ when he left.
He believed he had not been treated seriously or professionally in this meeting and that
relevant material had been misplaced by the respondent. He could not recall Ms Roddis
referring to the Melbourne office of the respondent. When he questioned the lack of
documentation, Ms Roddis had merely replied, ‘What does it matter?’ The respondent’s
representative, Mr Courtney Dixon, had been unable to find a copy of the e-form he had
requested or identify who had authorised it.
[43] The applicant denied that he refused to accept the respondent’s backpay offer. Rather,
he had told Ms Roddis that he considered the matter unresolved until he was backpaid and
reinstated to Level 1 Team Member. The applicant said that Ms Fletcher had never paid his
back pay as claimed by Ms Roddis. He had not told Ms Roddis that he was unable to get a
home loan without being employed at Level 1. He had, in fact, been given pre-approval by a
number of financial institutions, but was hoping to borrow more money. He believed that Ms
Roddis had mentioned this matter to damage his reputation. He rarely checked his payslips
and never had reason to doubt that he was being paid accurately.
[44] The applicant noted that the 2012 Agreement set out that Level 1 Team Members
‘may be responsible for the supervision, mentoring and coaching of Team Members’ and that
the use of the word ‘may’ meant that this criterion was not determinative. He noted that the
Agreement did not set out cash office duties or the opening or closing of stores as criteria
under Level 1 Team Member. He had put this to Ms Roddis in their meeting. Nevertheless, he
was often approached by other staff members to answer questions or assist them while
performing his regular role. He was unaware of any mentoring roles at the Woollongabba
store.
[45] The applicant emphasised that he was continually told by Mr Sutton that ‘HR’ was
dealing with his dispute, but no specific responsible person was ever identified. This meant he
was unable to chase up his dispute because nobody had told him who was dealing with it.
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[46] The applicant provided copies of communications from the respondent dated 17
March 2011 which referred to the introduction of Category Specialists commencing in early
2011 or in late 2010. This document set out a number of employees who had completed that
training. He believed that the majority of these employees who were at Level 1 Team
Member, prior to this implementation. A further communication, dated 16 June 2011, sought
expressions of interest in the role of Technology Specialist and set out the criteria. A copy of
this document is annexed to this decision and marked ‘Annexure B’. Ms Roddis had been
disinterested in his view that he met all of these criteria.
[47] The applicant had originally sought sought full back pay and reinstatement to Level 1
Team Member. However, he now sought that the respondent honour its decision to back pay
him. In acknowledgement of his partial responsibility for the failure of the issue to be
identified in a timely fashion, he requested that he be backpaid from the financial year 2012
(when he brought it to the respondent’s attention) and that he be enrolled into the required
specialist training and then be reinstated to Level 1 Team Member.
CONSIDERATION
The applicant’s period of employment
[48] The applicant was first employed in 2007 as a Level 3 Part Time Team Member on
probation. There is no dispute that at that time the applicant was employed under the terms of
the 2006 Agreement – an instrument made under the provisions of the Workplace Relations
Act 1996 (‘WR Act’). The 2006 Agreement was subsequently replaced by the 2009
Agreement, which itself was replaced by the 2012 Agreement.
[49] It would seem to me that a question does arise as to whether the dispute, in so far as it
relates to the terms arising under the replaced Agreements, can be properly before the
Commission as a matter of jurisdiction. So much so must be apparent from the authority
found in Stephenson v Abetz [PR952743] (28 October 2004) (‘Stephenson’) in which a Full
Bench of the Australian Industrial Relations Commission (AIRC) found that when a
workplace agreement made under the WR Act was replaced by a subsequent agreement made
under the Fair Work Act 2009, the earlier agreement ceases to operate, such that the
Commission has no jurisdiction to deal with a dispute arising under the earlier agreement.
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[50] It must follow for present purposes, that the only instrument to which the dispute
relates, is the 2012 Agreement. Does it then follow that the Commission is precluded from
considering the alleged rights and benefits which were available, or said to have applied,
under the terms of previously expired Agreements?
[51] There has been some doubt case on the correctness of Stephenson (See: Grabovsky v
United Protestant Association of NSW Ltd [2015] FWC 2504 at paras [52]-[54] per Lawler
VP), but there is presently no Full Bench or superior court level decision which has
overturned the reasoning in Stephenson. I am thus bound to follow that decision. Given my
later conclusions in the matter and that no orders are seemingly sought by the applicant
pursuant to the terms of the 2006 and 2009 Agreements, I need take the application of
Stephenson to this dispute any further.
[52] That being said, I am satisfied that the dispute is competently before the Commission
as it has continued to arise (and has certainly been agitated by the applicant) under the terms
of the 2012 Agreement. I note, however, that the applicant has placed considerable reliance on
the main difference in Level 1 Team Member under the 2006 Agreement to the 2009
Agreement, being the introduction for the first time of specialist training. Importantly, the
applicant concedes that he has not undertaken that specialist training.
[53] I would wish to add that the evolution of a particular classification over time, as
manifested in new agreements, will often result in different and/or expanded skills and/or
requirements for a particular level to be different to when a person was first employed. This
has been particularly evident where the work and skills required for an earlier classification
are now more technically advanced or more customer-focused. In reality, the requirements of
a particular job (and its classification) can be very different to what they were first envisaged
many years ago.
[54] This circumstance will often result in the redundancy of an employee, if that
employee’s skills set no longer matches what the employer’s enterprise requires. Of course
that is not the case here. It seems to me that the core classification of Officeworks’ employees
under the Agreement is Level 2 Team Member. On either side of that classification is the
training/probation Level 3 Team Member and the supervisory/specialist training Level 1
Team Member. There was no evidence that the applicant undertakes any supervisory
[2015] FWC 5692
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functions. His evidence in this respect really went to him assisting Team Members with
technical issues.
[55] While the applicant accepts that he has not actually fulfilled the training requirements
of Level 1 Team Member, there are, in any event, other skills he has, which place him at that
level, such as his specialist technical knowledge, which allows him to provide superior
technical service to the respondent’s customers. This evidence is not disputed by the
employer. However, that is not the point. What must determine this matter is whether the
applicant has the skills, qualifications and requirements of Level 1 Team Member under the
2012 Agreement. To get to the answer to that question, one must examine the plain, ordinary
meaning of the words used in the Agreement. This requires a consideration of the principles
of enterprise agreement interpretation. These principles are well known, as the authorities
cited by the respondent demonstrate; See: para [33].
[56] More recently, in Australasian Meat Industry Employees Union v Golden Cockerel Pty
Ltd [2014] FWCFB 7447, a Full Bench of the Commission summarised the principles in the
following way:
‘[41] From the foregoing, the following principles may be distilled:
1. The AI Act does not apply to the construction of an enterprise agreement
made under the Act.
2. In construing an enterprise agreement it is first necessary to determine
whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in
determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding
circumstances will not be admitted to contradict the plain language of the
agreement.
5. If the language of the agreement is ambiguous or susceptible to more than
one meaning then evidence of the surrounding circumstance will be admissible
to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the
objective framework of fact and will include:
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(a) evidence of prior negotiations to the extent that the negotiations tend
to establish objective background facts known to all parties and the
subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a
common assumption.
7. The resolution of a disputed construction of an agreement will turn on the
language of the Agreement understood having regard to its context and
purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in
which it operates.
9. Where the common intention of the parties is sought to be identified, regard
is not to be had to the subjective intentions or expectations of the parties. A
common intention is identified objectively, that is by reference to that which a
reasonable person would understand by the language the parties have used to
express their agreement.
10. The task of interpreting an agreement does not involve rewriting the
agreement to achieve what might be regarded as a fair or just outcome. The
task is always one of interpreting the agreement produced by parties.’
[57] It must be emphasised that the first task of enterprise agreement interpretation is to
establish whether the language used has a clear, ordinary and plain meaning. In DP World
Brisbane Pty Ltd and others v Maritime Union of Australia, The [2014] FWCFB 7889, a five
member Full Bench of the Commission said at paras [32]-[34]:
‘[32] On the issue of interpretation, the MUA relied upon Codelfa Construction Pty Ltd
v State Rail Authority (NSW) (Codelfa) which stated:
“The true rule is that evidence of surrounding circumstances is admissible to
assist in the interpretation of the contract if the language is ambiguous or
susceptible of more than one meaning. But it is not admissible to contradict the
language of the contract when it has a plain meaning.”
[33] The TWU similarly relied on Codelfa, among other authorities, when dealing
with the issue of interpretation in its submissions.
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[34] The key elements which can be distilled from the above authorities regarding the
construction or interpretation of agreements are:
(i) the construction task begins with considering the ordinary meaning of the
words having regard to their context and purpose - ordinary or well-understood
words should generally be accorded their ordinary or usual meaning;
(ii) where the language is ambiguous or open to differing interpretations it is
permissible to have regard to surrounding circumstances or context to assist in
the interpretation of an agreement;
(iii) regard should not be had to the subjective beliefs or understandings of the
parties about their rights and liabilities;.
(iv) the meaning of the provision is to be determined with regard to what a
reasonable person would have understood it to mean, with this usually
requiring consideration not only of the text, but also of the surrounding
circumstances known to the parties, and the purpose and object of the
transaction; and
(v) a court or tribunal is not free to give effect to some anteriorly derived
notion of what would be fair or just, regardless of what has been written into
the industrial instrument.’
[58] It follows that one cannot go to extrinsic material, surrounding circumstances, context,
or the subjective views of the parties, if the language used is plain and unambiguous. In my
view, that is the case with the words used in cl 8.2.1 of the 2012 Agreement, which, after
referring to various specialist roles, states:
‘Who has received the indicative role and core training as per Officeworks Learning and
Development framework and work experience. Competency is determined in
completion of training modules and work performance standards described in
Officeworks procedures, policies and this Agreement.’
Was the applicant appropriately classified?
[59] Given that the applicant acknowledged that he has not received the training so
envisaged by the above requirement, he cannot, in my opinion, be classified at Level 1 Team
Member, unless that training is completed, or he is required to undertake some broader
supervisory function. In accordance with the relevant authorities, it is therefore irrelevant that
the applicant was offered backpay or had some unwritten understanding with a previous
Manager that he would be paid at Level 1. In any event, at best this latter evidence was
hearsay.
[2015] FWC 5692
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[60] It is obvious that the alleged arrangement was entered into at a time when the training
components for Level 1 Team Member were not a requirement for the classification. I also
accept the evidence of the respondent that whatever may have been said or done which, on
any view, was hardly helpful, payment at Level 1 Team Member had been an administrative
error for which the respondent was prepared to accept some blame by paying him backpay for
a period of time.
[61] Although not strictly necessary, fortifying my view that the applicant’s classification
was always at Level 2 Team Member was the unequivocal advice he received in a 2
November 2007 letter of employment which stated his Classification as a Level 2 Team
Member, Part Time. The fact his rate of pay appears to be the Level 1 Rate (Level 2 + 10%)
(and it continued until January 2011) confirms there was, at the very least, a mistake as to the
appropriate rate of pay. As incredible as it may seem, the e-form changes to terms and
conditions of 19 November 2007 and 22 September 2008 merely continued the mistake. Even
so, I accept that the e-form is purely an internal payroll change document which cannot
override or displace the Agreement or a contract of employment. In other words, it is not the
rate of pay per se which determines what an employee is legally required to pay an employee,
but what the appropriate rate of pay is for the work performed by the employee, according to
the relevant industrial instrument.
[62] In addition, it does not make logical sense that a new employee who is assessed as
competent for Level 2 Team Member after three months training and experience, would jump
Level 2 and be placed at the specialist Level 1 Team Member, without the appropriate
training.
[63] It follows that the applicant’s position is properly classified at Level 2 Team Member
and unless and until he receives the appropriate training to qualify him as a specialist, he is
not entitled to the remuneration payable to a Level 1 Team Member. Notwithstanding this
conclusion, I would recommend that Officeworks honour any offer/s it has previously made
to backpay the applicant, without any admissions as to legal liability.
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[64] This dispute is determined accordingly and the application is dismissed. I so order.
DEPUTY PRESIDENT
Final written submissions:
Applicant: 30 March, 11 May 2015.
Respondent: 27 April 2015.
Printed by authority of the Commonwealth Government Printer
Price code G, PR570943
ORK WORK COMMISSION FAIR THE SEAL OF
[2015] FWC 5692
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ANNEXURE A 07/11/2007 Mark Launders Dear Mark, Congratulations. This letter confirms our offer of employment with Officeworks Superstores Pty. Ltd ("Officeworks Superstores") The terms and conditions associated with your
employment are listed below. Classification: Level 2 Team Member Part Time SUMMARY OF EMPLOYMENT DETAILS Name: Mark Launders If under 20 years of age, Date of Birth: Age:
Classification: n/a Base Rate of Pay: 17.6753 per hour (Ordinary hours, not including penalties) Minimum Guaranteed Hours (over a 4 week cycle) 100 Hours Commencement Date of the Next 4-week Cycle 19/11/2007
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ANNEXURE B HR lowest widest great Communication Bulletin prices vange service Category Specialists Nominations - Technology Intended audience: OW Total Business; Date: 16 June 11
Attachments: Technology Specialist Criteria Document Hi Team, Following the roll out of the Print & Copy and Furniture Category Specialists, nominations for Technology Category Specialists are now open. To ensure the right Team Members are nominated for this role, a Technology Specialist Criteria Document is in place which outlines what the business is looking for (see attached). Store Managers - please consider this document before nominating a Team Member. Other things to consider include; Team Members great at their role and passionate about technology Team Members delivering the business strategy to make their department great Team Members actively sharing knowledge within their team, store and region Team Members not likely to be moved out of Technology in the near future. Once nominations are recei
Manager To decide on the successful candidates. There will be an Induction Session for Team Members, which will be facilitated by the Learning & Development and Merchandise teams. Induction dates; QLD - Thur 7th July NSW -Tues 12th July VIC - Wed 27th July WA - Thurs 28th July SA - Thur 4th Aug Successful candidates will need to register for this Induction on gOlearn as well as complete a short survey. What to do? . Consider the Technology Specialist Criteria Document (attached) and dot points above Email your state L&D manager with the details (name, team member number) of the nominated Team Member
before COB Wednesday June 22nd. For more information about Category Specialists, contact your state Learning & Development manager.
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Specialist Criteria Document - Tec Criteria Descr Maintains up to date product knowledge & expertise . CUZ C . Consistently delivers great customer service . . .. Shares knowledge, A . demonstrates leadership sh and actively fosters a learning environment se . TE ar NE M En . fo Demonstrates Selling Skills Cc att Se . an
hnology: iption ble to provide our customers with detailed and accurate garding our products and services 0 Understanding of the backend process and lead tir supporting CSO nderstands store and product grading aintains expertise by completing all available training ograms and actively seeking out learning opportunities nderstands complimentary products to assist in solution s onsistently provides great customer service ensuring custo pectations are always met or regularly exceeded pable of handling difficult customer situations resolving a satisfactory manner for the customer and business ssesses excellent communication skills bility to service customers by trouble-shooting technology oducts omote the importance of solution selling - attachments, e ads by example through acknowledging, approaching and alifying the customers' needs tively builds the learning capacity of the team and openly ares knowledge within the team ntinually searches for improvement in product knowledg ling skills, internal processes and customer service pable of providing ongoing coaching and mentoring for chnology team members to ensure the sharing of knowled d team development ares technology related material featured in Communicat wsletter to other Team Members. tworks with team members from other stores and the erchandise team courages participation of team members in using collabor ums, OTV and Online Learning courses nsistently provides total selling solutions and generates achment sales Is Extra Cover, RentSmart, Dr. PC, Customer Special Order Deliver it services
Metrics dvice Demonstrates knowledge of the core te . complimentary products, the backend p nes times Continually drives the total solution for · sells, cross-sales, add-on sales Attend product training, road-shows, us . OTV and ensures other team members c elling Training Completion Records (gOlearn) Regularly checks Technology related mat .. mers Establish role as specialist for customer t . and solution selling hem Customer feedback forms . tc High engagement rate of store team men (collaborate, OTV, Online Learning course collaborate posts In-store training sessions Regional in-store training sessions ige Running 'How To' classes for customers . on ate Demonstrates how they have increased S sales and solution selling
hnology range, rocesses and CSO lead customers including up- es collaborate, utilizes omplete online training erial on Onet rouble-shooting issues bers in training tools rvices attachment
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Maintain Technology Merchandising Standards Commercial capability
Inspires other team members to be passionate and p sell technology products Actively maintains the technology merchandise stand Responsible for: 0 Implementing planograms 0 Ensuring the floor-plan in store reflects the intranet o Working with visual merchandising where th variances Ensures appropriate promotional locations reflect the Prices pillar, drives attachment sales or is 'P' graded Ensuring all technology stock is set up and displayed Understanding merchandising KPIs (including GMROI, turns, etc)
oactively ards Demonstrates the consistent ex Ensures up to date ticketing lan on the ere are Lowest roduct stock Ensures adequate amount of inv . Understands impact of over-sto Understands profitability and ret . Monitors product life-cycle to en Actively drives sales of end-of-lif
ecution of planograms entory to ensure sales cks turn on capital sure optimum profitability e stocks
