[2015] FWC 6661
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s 739 - Application to deal with a dispute

United Voice
v
Cuddlepie Early Childhood Learning Centre
(C2014/7034)

DEPUTY PRESIDENT SAMS

SYDNEY, 28 SEPTEMBER 2015

Application to deal with a dispute under the dispute settlement procedure in an Award – consent arbitration –– Administration Officer – correct Award coverage - duties and responsibilities of employee – whether the employee correctly classified – employee covered by Clerks Award – employee appropriately classified at Level 5 of the Clerks Award – dispute concluded.

[1] This decision deals with an application filed by United Voice (the ‘Union’), pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’), which seeks to have the Fair Work Commission (the ‘Commission’) deal with a dispute in accordance with a dispute resolution procedure under an Award. As the dispute concerns the correct Award coverage of one of the Union’s member, it is not entirely clear which Award’s dispute resolution procedure applies. However, as there is no argument as to the Commission’s jurisdiction to determine the dispute by consent arbitration, this question can be put aside for present purposes.

[2] Broadly stated, the dispute concerns the correct Award coverage of Ms Joanna Hartley’s employment with her employer, Cuddlepie Early Childhood Learning Centre (the ‘respondent’). The Union contends that Ms Hartley is covered by the Clerks – Private Sector Award 2010 [MA000002] (the ‘Clerks Award’), rather than the Children’s Services Award 2010 [MA000120] (the ‘Children’s Services Award’). Further, the Union contends that Ms Hartley should be classified as a Level 5 employee under the Clerks Award, as set out in Schedule B to that Award.

[3] Following the lodgement of the application on 5 November 2014, the matter was listed for conference before Commissioner Cargill on 24 November and 11 December 2014. However, the parties were unable to resolve the dispute at that time. The respondent initially refused to consent to the matter being arbitrated by the Commission, but subsequently reversed its position and the matter was allocated to me for arbitration. Following a mention I conducted on 12 June 2015 in which the parties agreed that the application should be dealt with ‘on the papers’, directions were issued for the parties to file submissions on the matter.

SUBMISSIONS

[4] In written submissions, Ms D Leahy set out the circumstances under which Ms Hartley had been employed by the Centre. Ms Hartley was casually employed as an Administration Officer from 20 June 2012 and became a permanent part time employee on 2 July 2012. Ms Hartley holds a Certificate IV in Frontline Management, a Certificate III in Children’s Services and a Certificate II in Business Administration. She has eleven years’ experience in business administration. Her employment duties were set out in a letter of offer dated 2 July 2012, which was expressed as follows:

[5] The letter of appointment was accompanied by a Position Description, which is annexed to this decision and marked ‘Annexure A’. During the conciliation process before Cargill C, the parties had agreed upon a revised position description (annexed to this decision and marked as ‘Annexure B’).

[6] Ms Leahy observed that while Ms Hartley’s letter of appointment identified that her employment was covered by the Children’s Services Award, it did not identify any classification applying to her. From September 2012, she was paid slightly higher than the rate payable to a Level 4A.2 employee under the Children’s Services Award ($20.12 as at September 2012 and then $20.65 from 3 July 2013).

[7] Over the first 18 months of her employment, Ms Hartley had formed the view that she was not correctly classified. At the beginning of 2014, she received advice from the Union that she was properly covered by the Clerks Award. After bringing this information to the attention of Mr Tony Pike, the Director of the Centre, it was agreed that Ms Hartley would be paid as a Level 5 employee under the Clerks Award. In the result, her rate of pay increased to $21.98 per hour from 22 January 2014. However, when Ms Hartley sought backpay and an amendment of her position description in around April 2014, the respondent wrote to her on 21 May 2014 in the following terms:

[8] Ms Hartley sought clarification as to her classification and she and the respondent had corresponded on 26, 28 and 29 May 2014. The Union wrote to the respondent on 31 July 2014 setting out its view that Ms Hartley was properly classified as Level 5 under the Clerks Award, meaning that she should be paid $22.67 per hour. The respondent replied on 26 August 2014 to advise that it relied on the exclusion in cl 4.1(a) of the Clerks Award as a basis for its view that Ms Hartley was properly covered by the Children’s Services Award.

[9] After discussions between Ms Hartley and Mr Pike, the respondent commenced paying Ms Hartley at $20.95 per hour in accordance with a Level 3.3 employee under the Children’s Services Award. The respondent stated that it was paying Ms Hartley at level 3.3, rather than Level 3.1, in recognition of her Certificate III in Children’s Services. Ms Leahy noted that other employees, with similar qualifications, were paid at Level 4A. In any event, the fundamental dispute surrounding the proper classification of Ms Hartley’s duties, remained extant.

[10] In referring to ss 47 and 48 of the Act, Ms Leahy noted that it was uncontroversial that Ms Hartley is covered by a Modern Award. Sections 47 and 48 of the Act are in the following terms:

47 When a modern award applies to an employer, employee, organisation or outworker entity

48 When a modern award covers an employer, employee, organisation or outworker entity

[11] The question to be determined by the Commission was which Award was ‘expressed to cover’ Ms Hartley, within the meaning of s 48(1) of the Act. To this end, Ms Leahy examined cl 4 of the Clerks Award, which is expressed as follows:

[12] Ms Leahy said that there was no question that Ms Hartley is not excluded from Award coverage by the Act (cl 4.1(b), or by way of coverage of a transitional instrument (ccl 4.2, 4.3) and that clauses 4.4 and 4.5 are not relevant to this dispute. Clause 4.6 expressly excludes employees covered by 22 named modern awards and the Children’s Services Award is not included in this list. Cl 4.7 refers to the award classification ‘most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.’

[13] For completeness, I include at this point, the coverage clause of the Children’s Services Award, which is set out at cl 4 as follows:

4. Coverage

[14] Ms Leahy submitted that despite the respondent being a community-based, not for profit enterprise, it was not owned or controlled by government. Therefore, it should be characterised as a private sector employer.

[15] Ms Leahy referred to the definition of ‘clerical work’ set out at cl 3 of the Clerks Award, which: ‘includes recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard and attending a reception desk’. Both the original and revised position descriptions (see Annexures A and B, respectively) demonstrate that Ms Hartley’s role largely involves office work related to the conduct of the respondent’s business. The differences between the two position descriptions were that the revised document included ‘completing payroll’ and set out further detail in relation to payroll, accounts, bookkeeping and operational systems and service, including funding, enrolment and corporate governance. These duties were said to support a finding that Ms Hartley is largely engaged in clerical work. The proportion of duties carried out that are not clerical in nature are insignificant in relation to the totality of the duties. The Commission should find that Ms Hartley is ‘engaged wholly or principally in clerical work, including administrative duties of a clerical nature.’

[16] While Ms Leahy noted that the Children’s Services Award does not contain clerical classifications, she acknowledged that some of the ‘indicative duties’ listed under classifications of Level 4 Children’s Services Employee, Level 5 Children’s Services Employee and Level 6 Children’s Services Employee (Director) include clerical duties. However, in all of these cases, clerical duties are ancillary or incidental to the relevant classifications. The broader descriptions of these classifications refer to relevant qualifications in children’s services with specific appointments in the Centre (Authorised Supervisor, Children’s Services Co-ordinator). Support Workers are unqualified and untrained, except for Level 3 Support Workers, who may hold a Certificate III in Children’s Services. Administrative duties were the last in a list of ‘odd jobs’ that Support Workers may be required to carry out.

[17] Ms Leahy compared the classifications in the Children’s Services Award with those of the Clerks Award. She characterised those under the latter Award as centring on increasingly complex and responsible clerical and office functions. By contrast, none of the classifications under the Children’s Services Award can be characterised as ‘clerical classifications’. Therefore, Ms Hartley can not be excluded from coverage under cl 4.1(a) of the Clerks Award.

[18] Ms Leahy referred to both cl 4.7 of the Clerks Award and cl 4.7 of the Children’s Services Award, which are expressed in identical terms, drawing particular attention to the note at the end of cl 4.7 of the Children’s Services Award. This note supported a finding that Ms Hartley is covered by the Clerks Award. Her role as Administration Officer is not accurately reflected in the broader descriptions of the classification levels in the Children’s Services Award; she does not hold a Diploma in Children’s Services; she was not appointed as a Supervisor and was not involved in the management of education programs. She does hold a Certificate III in Children’s Services, a requirement under the classification of Level 3 Support Worker. However, this classification does not fully encompass the integrated nature, responsibility and range of administrative duties that Ms Hartley is required to undertake. Nor does she undertake other indicative duties such as food preparation, laundry work, cleaning, gardening, driving or maintenance. In contrast, Ms Hartley’s job description strongly correlated with the classifications set out under the Clerks Award.

[19] Ms Leahy submitted that when considering Ms Hartley’s duties in their totality as set out in the revised job description (see Annexure B), it is clear that she is properly classified under Level 5 of the Clerks Award. The knowledge and skills required to undertake these duties were drawn from her Certificate IV in Frontline Management. She reports directly to the Centre Director, but works autonomously, subject to his broad direction. It is relevant that when Ms Hartley took leave, Mr Pike would contact her with questions as to the Centre’s administrative operations and systems. She is a signatory to the respondent’s bank accounts and operates its internet banking system. While she did not direct or supervise any employees, she does provide support and assistance to other staff in relation to administrative duties.

[20] Ms Leahy directly correlated the indicative duties and skills set out at B.6.2(i)-(iv) of Classification Level 5 and Ms Hartley’s job description as follows:

 

(i) Apply knowledge of organisation’s objectives, performance, projected areas of growth, product trends and general industry conditions.

  

Taking enrolment applications, assessing vacancies and assessing occupancy projection and re-enrolment procedures with the Director (Part 4); Supporting the National Quality Framework in Cuddlepie and ensuring compliance with the relevant legislation (Parts 1 and 4); maintaining a broad knowledge of Cuddlepie’s funding and attending to relevant reporting requirements (Part 4)

 

(ii) Application of computer software packages with either a micro personal computer or a central computer resource including the integration of complex word processing/desktop publishing, text and data documents.

  

Operation and maintenance of computer system including the Child Care Accounting System (Part 1); Processing pays etc through Quickbooks (Part 2); updating all software in accordance with accountants recommendation (Part 3); Implementing ongoing and new and improved administrative systems and updating procedures and evaluating system results (Part 4); effectively maintaining systems such as the Childcare Benefit, Child Care Rebate, Special Child Care Benefit and Jobs and Education processes for the purposes of ensuring funding (Part 4).

 

(iii) Provide reports for management in any or all of the following areas:

    ● account/financial;

    ● staffing;

    ● legislative requirements;

    ● other company activities

  

Record, type and distribute reports, minutes and planning documentation (Part 1); Ensure that administrative processes and practices adhere to the current legislation, including the Privacy Act (Part 1); Prepare payment summaries and process end of year reports (Part 2); Prepare accounting and financial reports for Director, Committee and Accountant (Part 3); Liaising with government departments as an authorised contact (Part 4); Assist the Director with inclusion support claims and reporting (Part 4); Maintenance of filing systems and retention records in compliance with requirements under the Education and Care Service National Law and Regulations (Part 4); Assist the Committee to ensure compliance with corporate governance requirements (Part 4)

 

(iv) Administer individual executive salary packages, travel expenses, allowances and company transport; administer salary and payroll requirements of the organisation

  

See Part 2 (Payroll)

[21] In the alternative, Ms Leahy submitted that if the Commission finds that Ms Hartley is covered by the Children’s Services Award, it should also find that she is classified as a Level 4A.4 in light of her high degree of responsibility, her experience, the similarities between the indicative duties for that classification and her job description and the fact that other holders of a Certificate III in Children’s Services, employed by the respondent, are paid at this level.

[22] Finally, Ms Leahy submitted that the Commission should find that Ms Hartley is classified as a Level 5 Employee under the Clerks Award. As a result, the Commission should order that the respondent pay her the difference in the amounts paid to her and the rates of pay under this classification since the commencement of her employment.

For the respondent

[23] In written submissions, Mr Pike referred to Ms Leahy’s submissions and confirmed the factual background and position descriptions provided by her were correct. He said that although the respondent had been advised by Jobs Australia that Ms Hartley is covered by the Children’s Services Award, it sought a determination of Ms Hartley’s correct classification from the Commission. He suggested that if the Commission found that Ms Hartley is covered by the Clerks Award, she may be appropriately classified as a Level 4 employee. The respondent sought the Commission’s guidance on this point.

[24] In reply, Ms Leahy noted that Jobs Australia was the national peak body for non-profit organisations assisting unemployed people to prepare for and find work. It did not appear that this role was relevant to the respondent’s business as a community-based, not-for-profit early childhood learning centre. Moreover, Ms Leahy understood that Jobs Australia had not provided the respondent with written advice as to its opinion concerning Ms Hartley’s award coverage.

[25] In relation to the respondent’s alternative submission that Ms Hartley should be properly classified as a Level 4 Employee under the Clerks Award, Ms Leahy emphasised that while the description for Level 4 described supervision as a ‘principal feature’ of the role, it was expressly stated that this was ‘not a pre-requisite’. Similarly the description for Level 5 set out that the relevant employee ‘may’ have delegated responsibility for work under their control or supervision. However, the reality that Ms Hartley does not supervise employees, was a consequence of the workplace being a small, community based, not-for-profit organisation.

[26] Ms Leahy reiterated that Ms Hartley’s duties should be considered in their totality. Her level of expertise, responsibility and experience, particularly in relation to enrolment projections, legal compliance and fundraising should lead to a finding that she is properly classified at Level 5 under the Clerks Award. Ms Leahy further reiterated that Ms Hartley received only broad direction and guidance from Mr Pike and reported to him and the Committee of Management (directly or through Mr Pike). Her job description referred to her initiative and application, direction and judgement.

CONSIDERATION

[27] At the outset, I would observe that the respondent put no evidence or argument in opposition to the Union’s detailed and well-considered submissions in this case. Its only defence was that Jobs Australia had advised that Ms Hartley is correctly employed under the Children’s Services Award. I note that Jobs Australia did not appear to represent the respondent and did not put any submissions to support its opinion.

[28] In my view, there can be no doubt that Ms Hartley is employed under the Clerks Award. I arrive at this conclusion from the following unassailable propositions.

1. Ms Hartley’s position description is that of Administration Officer. This is entirely consistent with the Clerks Award’s coverage clause references to ‘employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature.’

2. The Clerks Award’s coverage clause excludes employers in a list of 22 industry awards. The Children’s Services Award is not included in this list.

3. The definition of ‘clerical work’ in cl 3 of the Clerks Award is consistent with both Ms Hartley’s original position description and the revised position description. The revised description sets out further detail in respect to payroll duties, which are entirely consistent with an administrative or higher level clerical function.

4. Ms Hartley carried out her duties principally in an office and not a classroom or room where others are providing children’s services or early education services.

5. The Clerks Award contemplates an employer being covered by more than one Award and that an employee is covered by an award classification most appropriate to the work performed and the environment in which the employee normally performs the work (See cl 4.7).

6. While there may be some clerical tasks and functions performed by the employees classifications under the Children’s Services Award, these are incidental or ancillary to the Award’s classifications primary tasks or functions. They are not clerical functions. Accordingly, I do not consider the Children’s Services Award contains clerical classifications such as to constitute an exclusion under cl 4(1)(a) of the Clerks Award.

[29] For the aforementioned reasons, I am satisfied that Ms Joanna Hartley’s employment with Cuddlepie Early Childhood Centre, as an Administration Officer is covered by the Clerks - Private Sector Award 2010 [MA000002].

[30] An ancillary question arises from this conclusion. The Union contends that Ms Hartley’s duties and responsibilities are encapsulated in Level 5 of the Clerks Award. The Centre submitted that if the Commission found that Ms Hartley was covered by the Clerks Award, her appropriate classification should be Level 4, as Ms Hartley did not supervise any other employees. The respondent merely sought clarification of the appropriate classification of Ms Hartley.

[31] The characteristics and duties of Level 4 and Level 5 employees are set out in Schedule B of the Clerks Award below:

B.5 Level 4

B.5.1 Characteristics

B.5.2 Typical duties/skills

B.6 Level 5

B.6.1 Characteristics

B.6.2 Typical duties/skills

[32] In my view, it is particularly relevant that Ms Hartley’s work and field of study is business administration. She holds post secondary qualifications in this field and has a high level of experience and knowledge in business administration. She reports directly to the Centre’s Director, Mr Pike and either through him or directly to the Centre’s Committee of Management. Her work and responsibilities are only subject to broad guidance and direction from senior staff, such as Mr Pike. There can be no doubting Ms Hartley is often required to ‘exercise initiative, discretion and judgement’ in the performance of her duties. This latter characteristic is entirely consistent with the words used in her job description requiring her to ‘apply knowledge and skills independently and routinely where judgement and initiative are required.’

[33] Given these observations, I am comfortably satisfied that Ms Hartley’s classification is at Level 5 of the Clerks Award.

[34] Having determined both questions posed by the parties in favour of Ms Hartley, I expect that the respondent will take the appropriate steps to rectify Ms Hartley’s Award coverage and correct classification, including the payment of backpay for the difference between the amount she was actually paid and the rate applicable to Level 5 of the Clerks Award at the particular time.

[35] Should either of the parties require orders to reflect my conclusions in this dispute, I will do so upon application being made within fourteen days. The dispute is otherwise resolved and the file will be closed.

gnature Block 181213.tif

DEPUTY PRESIDENT

Final written submissions:

For the Union: 7, 31 July 2015.

For the respondent: 24 July 2015.

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