Fair Work Act 2009
s.739—Dispute resolution

Emilio Gonzadi; Adrian Butcher; Richard McConnell
v
SkyCity Darwin Pty Ltd
(C2014/5601)

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)].

[1] An application to deal with a dispute has been made pursuant to s.739 of the Fair Work Act 2009 (“the Act”) by Emilio Gonzadi (“the first applicant”), Adrian Butcher (“the second applicant”) and Richard McConnell (“the third applicant”) in relation to a dispute with SkyCity Darwin Pty Ltd (“the respondent”) concerning payments made to them apropos the SKYCITY Darwin Enterprise Agreement 2011-2015 (“the Agreement”). At its core, the dispute concerns the remuneration that has been paid by the respondent to the applicants - arising from contention about whether the Agreement is applicable to them. The applicants, through their representative, Lucio Matarazzo Pty Ltd, contend the respondent has inappropriately paid them outside the parameters of the Agreement - which the applicants also contend covers their employment. The respondent, through its representative, the Queensland Hotels Association, contends the applicants’ employment is not subject to the Agreement and payments have been made appropriately in all the circumstances.

[2] The dispute was the subject of settlement endeavours between the parties or the parties’ representatives, or both. A settlement agreement was reached in relation to that part of the dispute which concerned the first applicant. The dispute is not, however, resolved in relation to the second and third applicants (collectively “the applicants”).

[3] It seems to be the case that the applicants seek, if nothing else, the making of recommendations or the expressing of an opinion by the Commission; and the respondent does not object to that course. In this regard, I should note I would otherwise hold reservations about whether there is a proper basis to purport to determine the dispute between the applicants and the respondent to any putative finality - given that the characteristics of the application involve, in substance, an alleged underpayment of wages.

[4] A summary of the parties’ written submissions in support of their respective contentions is as follows (other than in relation to the first applicant, in relation to whom, as I have noted, settlement was reached).

Applicants’ submissions

[5] The second applicant submits his employment position of plumber is covered by the Agreement as does the third applicant in relation to his employment position of electrician. In this regard, the applicants rely on cl.4 (Application and Parties Bound) and Appendix A (non-gaming classifications) of the Agreement. The applicants relevantly have been employed during periods following the approval by the Commission of the Agreement.

[6] In support of their contentions, the applicants draw attention to that part of the Agreement containing provisions dealing with classifications in Appendix A. The applicants submit that on a consideration of the descriptions of the non-gaming classifications in Appendix A (as opposed to, for example, position titles), the respondent has made a “wrong assumption” in claiming that the positions of plumber and/or electrician are not covered by the Agreement merely because these positions are not listed alongside the other positions there identified - including “carpenter, painter, fridge mechanic and gardener” - in classification grading Level 6 non-gaming employees and that this excludes them based on the claim that this is an exhaustive list.

[7] The listed job titles and positions are, it is submitted, an “indicative list of positions” on the side of all the classification gradings starting from Level 1. This is a non-exhaustive, indicative list of employment positions and jobs which provides relativities and assistance in the application of the Agreement, and in the classification grading of jobs pursuant to the written descriptors which define the classification gradings. The key words are “and classifications”, meaning the classification descriptors are defined by cl.5 in the Agreement, not listed position job titles. An examination of dictionary definitions of words used in the Agreement supports the reading of the Agreement as advanced by the applicants.

[8] Further assistance in support of the applicants’ claim may be gleaned, it is submitted, from an examination of the Level 5 non-gaming employee descriptor, which provides that this level may possess a trade qualification and the employees perform duties with limited supervision. The positions of plumber and/or electrician require trade qualifications, and Level 6 non-gaming employees can perform their own tasks with a greater degree of skill and proficiency than employees at lower levels, and accept greater responsibilities and a wider range of tasks than employees at lower levels. This indicates that employees performing jobs requiring trade qualifications may be graded in a number of different classification grading levels in Appendix A because it is a skills-based classification structure, not a structure based on a list of indicative job titles on the side of the classification grading descriptors.

[9] The applicants submit they do not ask the Commission to make a ruling as to what specific grading level should be set for the positions of plumber and/or electrician, but rather in relation to the application of the Agreement to determine whether the positions of plumber and/or electrician are covered by the Agreement.

[10] The applicants submit that nowhere in the Agreement does it state that if the respondent creates new trades-qualified job positions (e.g. fitter and turner, plumber or sand blaster) are these new positions excluded from the Agreement - because Level 5 non-gaming employees in Appendix A makes reference to, and does not exclude, any or all potential new and current employment positions that require trade qualifications.

[11] The respondent, it is submitted, is operating on the mistaken belief that only the job titles or job positions listed in “a claimed exhaustive list” in Appendix A are covered by the Agreement - and that it is claimed that some positions with trade qualifications are covered by the Agreement and it is claimed others such as the positions of plumber and or electrician are not covered by the Agreement. However, when cll.4-5, Appendix A and the entire classification grading descriptors in the Agreement are read in their entirety the respondent’s assumptions would be seen to be incorrect.

[12] Moreover, the respondent would need to explain the “novel claim” why some of the maintenance employee positions of carpenter, painter, fridge mechanic and gardener are covered by the Agreement, yet the maintenance employee positions of the applicants are not covered by the written descriptors in Appendix A. The applicants work in the same maintenance section area as employees who perform the role of carpenter, painter, fridge mechanic and gardener (whom the respondent accepts are covered by the Agreement), whereas the applicants are allegedly not also covered. In this regard, it is instructive to consider the documents (namely the Forms F16 and F17) that were lodged by the respondent in support of the 2011 application for the approval of the Agreement and authorities, including Smith & Nephew Pty Ltd [2010] FWA 2465 (“Smith & Nephew”) (a decision which, among other matters, considered the fairly chosen criterion in relation to enterprise agreements). A reading of the documents lodged in support of the application for the approval of the Agreement supports a conclusion the Agreement was relevantly intended to cover the applicants - for there would be no proper basis to exclude these tradesperson applicants.

[13] The applicants’ submissions continue that the respondent may incorrectly or mistakenly believe that (irrespective of what is written in cll.4-5, Appendix A and the entire classification grading descriptors) by the operation of, for example, terms and conditions contained in contract of employments, relevant employees would suddenly or automatically become salaried staff. However, any contract of employment-related arrangements including an annualised rate of remuneration (in lieu of additional hours, call backs, overtime, penalty rates, loadings, etc) do not override the obligations of the respondent to the applicants under the Agreement and any such arrangements have not rendered the applicants as not being covered by the Agreement. The decision in Smith & Nephew confirms and highlights how non-specific, indifferent definitions based on mistaken beliefs do not override the actual application of an enterprise agreement.

[14] The applicants further submit that the requirements of s.186(3) of the Act are met in the application of the Agreement by applying the written words in the cll.4-5, Appendix A and the entirety of the classification grading descriptors. Examples to highlight best practice for future enterprise agreements for the respondent (which is currently in negotiations to renew the enterprise agreement) include the decision in Freedom Retail Enterprise Agreement 2013-2016 [2013] FWCA 10049, which noted matters relevant to s.186(3A). The Commission should recommend that the respondent in its future bargaining negotiations provide all its employees with a notice of employee representational rights. In this regard, the applicants rely on Michael Voet; Adam Broome v GWA Group Limited T/A GWA Bathrooms & Kitchens [2014] FWC 4307 (a decision which considered matters concerning a notice of employee representational rights and scope and which cited MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2010] FWAFB 6519). The third applicant has been an electrician and an employee of the respondent for about a decade and, the submissions asked rhetorically, whether he had been provided a “notice of employee representational rights prior to the commencement of enterprise bargaining that culminated with the making of the Agreement?

Respondent’s submissions

[15] The respondent submits the issue for determination is whether the applicants are covered by the Agreement, and that the determination of this issue requires merely interpretation of the actual wording of the Agreement.

[16] In support of its contention the applicants are not covered by the Agreement, the respondent notes that the Agreement commenced on 2 December 2011. The respondent submits that the second applicant is employed principally to work as a qualified plumber, but also performs some handyperson duties; his employment with the respondent commenced in August 2012. The third applicant commenced employment with the respondent in February 2004 and has worked in a number of positions; and from August 2008 was employed as a qualified electrician.

[17] The respondent draws attention to cl.4 (Application and Parties Bound) of the Agreement and the words of cl.5.1 - which are that the classifications “shall be as set out” in Appendix A of the Agreement. In this regard, the respondent submits that the use of the word “shall” in cl.5.1 would indicate strict compliance. Appendix A of the Agreement is titled “Classifications Appendix A”, which contains two groups of employees - being non-gaming and gaming.

[18] The respondent submits that, except for the “Introductory” level descriptor in the Agreement, which leaves the position titles area blank and would appear to apply to a whole range of introductory positions, each level contains a level descriptor and a list of associated position titles. There is no reference in Appendix A, or anywhere else in the Agreement, to the position titles being (or intended as being) indicative position titles. Further, the fact cl.5 uses the word “shall” and refers to Appendix A non-gaming employees (which includes both the level descriptors and the associated position titles) indicates that the level descriptors and the associated position titles must be read together.

[19] It would, therefore, be contrary to the wording of the Agreement to interpret these level descriptors and associated position titles separately, or to interpret the Agreement such that the level descriptors are read as being a skills-based classification structure. It also would be incorrect to suggest these position titles are indicative positions or a non-exhaustive list of positions that assist with the classification of jobs pursuant to the level descriptors.

[20] The respondent submits that if the Agreement had been worded differently (for example, by not using the word “shall” and/or indicated the position titles were indicative positions), then the interpretation provided by the applicants would have merit. However, as the Agreement is not so-worded, this is not the case.

[21] As there is no job title for a plumber or an electrician, the applicants are not covered by the Agreement. Further, in the case of the second applicant, as he is principally employed as a qualified plumber, the Level 3 non-gaming classification of the Agreement is not applicable. This classification does not apply to tradespersons and the second applicant is a qualified plumber.

[22] In reply to a number of specific matters relied on by the applicants, the respondent submits:

• The fact the Agreement does not make provision for new trade-qualified positions created by the respondent to be excluded from the Agreement does not mean that trade-qualified employees are covered as Level 5 non-gaming employees.



• The reason the maintenance position titles of carpenter, painter, gardener and fridge mechanic are covered by the Agreement while the maintenance position titles of plumber and electrician are not covered by the Agreement is because the position titles are not specified in the Agreement. Had the respondent and the union bargaining representative for the Agreement wanted to include these additional maintenance position titles then those titles would have included in the Agreement. In this regard, the respondent also noted that the second applicant was employed by the respondent after commencement of the Agreement.



• The decision in Smith & Nephew concerned an application for approval of an enterprise agreement and is not relevant to this dispute as the Agreement has already been approved.



• The wording of the Agreement is clear and there is no need to refer to extraneous material, such as the Form F17, and it is inappropriate to refer to the employer’s declaration to (seek to) override the actual wording of the Agreement.



• The respondent does not consider it has or has sought to avoid the Agreement by employing the applicants on a salary. Coverage of the Agreement is not determined by a consideration of the responses in the Form F17, but, rather, by a reading of cll.4-5 and Appendix A.

[23] The respondent submits the Agreement does not contain a salaried employment option (only a wage employment option which is inclusive of weekend penalties, district allowance, shift allowance and some public holidays). Moreover, to ensure employees covered by the Agreement or any other applicable industrial instrument are adequately paid, the respondent has a practice of considering all applicable wage entitlements and paying an annualised amount in excess of applicable entitlements. This practice should not be misconstrued as an attempt to avoid coverage of the Agreement or any other applicable industrial instrument.

[24] The respondent submits that the reference in the applicants’ submission to approaches adopted in certain enterprise agreements for the purpose of highlighting best practice for future negotiations by the respondent is irrelevant to the interpretation of the Agreement and outside the scope of the issue arising in this matter. The respondent submits it is not clear, from the applicants’ submissions, what issue may have arisen concerning the documents lodged in relation to the application for approval of the Agreement - which had accurately recorded matters going to the relevant union being the default bargaining representative. Moreover, the respondent had attended appropriately to matters concerning provision of the notice of employee representational rights. The respondent rejects any suggestion it had used the notice to improperly exclude classes of employees from bargaining or coverage. The Agreement was negotiated between the respondent and a union. The Act does not require all employees of an employer to be covered by an enterprise agreement, and the approval of the Agreement indicates that the member concerned therefore was satisfied the group of employees was fairly chosen.

[25] Similarly, the request in the applicants’ submission that the Commission recommend to the respondent that it provide all its employees with a notice of employee representational rights for future enterprise bargaining negotiations is not only outside the scope of the issue arising in relation to this application, but also unnecessary. That is, the Commission member to whom any future application for approval of an enterprise agreement is allocated will assess the relevant requirements when determining whether the proposed enterprise agreement should be approved. Therefore, the decisions referred to in the applicants’ submissions, namely, Michael Voet; Adam Broome v GWA Group Limited T/A GWA Bathrooms & Kitchens and MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union, are irrelevant. The respondent submits it does not have records of the names of employees who actually received a notice of employee representational rights prior to negotiations for the Agreement but, given that the third applicant’s position as an electrician was not included in the Agreement, he should not have a received any such notice.

[26] In conclusion, the respondent submits that the question of whether the second and third applicants are covered by the Agreement can be answered by perusing the clear wording of the Agreement, being an agreement that has been approved by the Commission. It is inappropriate and irrelevant, the submissions continue, to attempt to alter the clear meaning of the Agreement by referring to extraneous materials. The respondent is a party to the Agreement and has a good understanding of the intention and meaning of the Agreement.

Applicants’ submissions in reply

[27] The applicants’ submissions in reply indicate they do not agree with certain of the submissions for the respondent. The response submissions rely upon and reiterate or reinforce, with some elaboration, the primary submissions, although other matters are also addressed. For example, the applicants’ submissions in reply address matters including the following:

• The Agreement does not state or mandate that the level descriptors and associated position titles must be read together, and similarly does not state or mandate that the associated position titles listed are an exhaustive list (of all 506 employees at the respondent’s Casino who are covered by the Agreement as is indicated in the Form F17).



• The Agreement does not state that if the respondent creates a new job position (e.g. a fitter and turner, plumber or sand blaster) that requires trade qualifications that these new positions are excluded from the Agreement; Level 5 non-gaming employees in Appendix A makes reference to, and does not exclude, any or all potential new and current employment positions that require trade qualifications.



• The applicants do not agree with the submissions of the respondent:




in relation to the word “shall” in cl.5 of the Agreement;

that position titles such as plumber or electrician are a classification. The non-gaming classifications in the Agreement are as set-out from Level 1 to Level 7 - and not the indicative job title positions that fall into the relevant classification level descriptors;

as to the respondent’s “erroneous assumption” that the Agreement does not make provision for new trade qualified positions created by the respondent because they are not named in an indicative list of job positions;

that Smith & Nephew is not relevant.

[28] The applicants submit this dispute highlights reasons why the answers in the Form F17 are relevant and important, and why, in the upcoming enterprise agreement negotiations, the respondent in answering to its obligations pursuant to s.186(3) of the Act should have clear and unambiguous delineations. The answer provided in the Form F17 does not define “wage staff” and “salaried staff”, and does not state trades positions are excluded and not covered by the Agreement, and neither does the Agreement. The respondent, the applicants submit, has not sought to explain why some of the maintenance employee positions of carpenter, painter, fridge mechanic and gardener are covered by the Agreement, yet the maintenance employee positions of plumber are not covered by the written descriptors as stated in Appendix A in the Agreement. The decision in Bruce Jenkins v Captain Cook Cruises Pty Ltd [2014] FWC 6321 (a case concerning a majority support determination) lends support to the matters relied upon by the applicants. The applicants submit the maintenance employee positions of carpenter, painter, fridge mechanic, gardener, plumber and electrician at the respondent’s workplace are not geographically, operationally or organisationally distinct from one another as defined in s.186(3A) of the Act.

[29] The applicants also contend that the principles of severability can apply when the Commission is asked to determine matters such as this industrial relations dispute in relation to the application and scope of the Agreement in that if any clause or part of a clause in an enterprise agreement can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it shall be read in the latter way: Bis Industries Bootu Creek Enterprise Agreement 2012 [2012] FWAA 8538.

Consideration

[30] The principal issue in dispute is whether the Agreement applies to the second applicant (a plumber) and the third applicant (an electrician). If the Agreement applies to the applicants, then modern awards cannot apply: see s.57(1) of the Act.

[31] The Agreement does not expressly state that trade qualified electricians or plumbers are covered. Equally, it does not expressly state that they are not covered - hence the disputed contentions in this application.

[32] The relevant or potentially relevant clauses of the Agreement to which the parties’ submissions principally referred read as follows:

“4. Application and Parties Bound

4.1 The Parties to this Agreement are: SKYCITY Darwin, Employees whose rates of pay and classifications are set out in Appendix A. & the union covered by this agreement in United Voice.

5. Classifications

5.1 Classifications shall be as set out in Appendix A of this agreement.”

[33] Appendix A relevantly reads:

“CLASSIFICATIONS APPENDIX A

Non-Gaming

...

Level 5 Non-Gaming Employees at this level have undertaken formal training or have equivalent competencies, possess a trade qualification or have equivalent competencies and are required to perform their duties and responsibilities under limited supervision. Employees at this level exercise discretion in the performance of their tasks and can demonstrate a comprehensive knowledge of the policies and procedures at SKYCITY Darwin and can apply those policies and procedures to their own work. Employees at this level are required to regularly supervise work performed by employees operating within skill levels 1-4. [And in a separate column lists the following: Commis Chef; Commis Baker; Commis Pastry; Butcher; Sunset Cafe Supervisor; Dragon Court Supervisor; Bars Supervisor; Housekeeping Supervisor; Uniform Supervisor]

Level 6 Non-Gaming Employees at this level can make decisions with respect to their work area and can co-ordinate the work of other employees. Employees at this level can perform their own tasks with a greater degree of skill and proficiency than employees at lower levels, and accept greater responsibilities and a wider range of tasks than employees at lower levels. Employees at this level need extensive knowledge of the policies and procedures of SKYCITY Darwin. Employees at this level have the capability to co-ordinate and train other employees and accept responsibility for the work performance of their area and work under general supervision. [And in a separate column lists the following: Demi Chef; Demi Baker; Demi Pastry; Carpenter; Painter; Gardener; Fridge Mechanic]”

[34] The applicants submit, in short, the Agreement exhibits a type of skills-based classification structure and the nominated positions/roles listed for each classification are indicative only (and provides a non-exhaustive list to assist in providing relativities and assistance in the application and classification grading of employment positions pursuant to the written descriptors). The respondent submits, in short, the Agreement exhaustively lists the relevant positions/roles in each level, and the Agreement does not state these are indicative positions; and that, as such, the only positions covered by the Level 6 non-gaming employees classification of the Agreement are those specifically nominated. I consider the parties each have an arguable case in such respects; and the applicants’ submissions have referred particularly to the information that was contained in the Form F17 that was lodged by the respondent in support of the application made to the Commission for the approval of the Agreement.

[35] It seems to me the Agreement identifies several levels for a stream of employees and (with the exception of the Introductory level) exhaustively lists a number of positions/roles for each level. The identified positions/roles are the relevant classifications, not the level. The applicants’ interpretation of the classification structure would carry greater weight if the Agreement expressly stated the positions/roles identified were indicative positions/roles. As an illustrative, comparative example, the Health Professionals and Support Services Award 2010 (“the HPSS Award”) identifies several “levels” for a stream of employees and lists a number of indicative positions/roles for each level. Here, the identified “level” is the relevant classification, not the position/role identified (see, for example, Schedule B.1 of the HPSS Award, including the words “Indicative roles at this level are: ...”).

Conclusion

[36] While the parties have, as I noted earlier, arguable cases respectively for the differing constructions or interpretations advanced, it nonetheless seems to me that the respondent’s submissions are to be preferred - namely, the positions/roles identified in the Agreement are the only classifications covered by the Agreement. I base this opinion on a plain reading of the words of the Agreement.

[37] The respondent also submits that if the respondent and union bargaining representative for the Agreement had wanted the Agreement to cover electricians and plumbers at the trade level, the Agreement would have expressly identified these positions/roles (just as certain other positions have been expressly identified in the Agreement); and this seems to be a persuasive submission.

[38] The information contained in the Form F17 that was lodged by the respondent in connection with the application for the approval of the Agreement does not assist me in the question of construction or interpretation of the words of the Agreement; it may be the case that some or all of the responses provided were, for example, inaccurate (a not uncommon occurrence based on my experience in having read numerous Forms F17 in relation to applications for the approval of enterprise agreements).

[39] The question of whether the group of employees was fairly chosen (see ss.186(3) and (3A) of the Act) is not a matter that relevantly arises in relation to the dispute before me or, indeed, a matter for me to comment on given the Agreement has already been approved - and with the member who approved the Agreement having been satisfied as to the requirements thereto. The matters raised by the applicants in their submissions concerning certain authorities to which reference is made, severability, and the like, do not assist me in relation to the interpretation of this particular enterprise agreement.

[40] In short, there is nothing in wording of the Agreement itself which suggests the positions/roles identified are indicative only or provide a guide as to the appropriate positions/roles at a particular level. While the Agreement includes a level encompassing certain trade classifications, it does not appear to envisage the coverage of every possible trade. Rather, the Agreement appears to refer only to the trades specifically identified - with the result that, in my opinion, the Agreement does not apply to or cover the applicants.

[41] I am not otherwise persuaded by the submissions of the applicants that I should make certain recommendations to the respondent, given any such matters would be plainly beyond the parameters of the dispute as notified.

[42] With the expression of the opinion about the Agreement, coupled with my view that it would not be apt to make recommendations about matters that are beyond the parameters of this particular dispute, the proceedings are now concluded.

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