[2017] FWC 2951 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Bradley Davidson
v
Health Communication Network T/A Medical Director
(C2016/5804)
DEPUTY PRESIDENT ASBURY |
BRISBANE, 30 MAY 2017 |
Dispute about Modern Award coverage.
[1] Mr Bradley Davidson has made an application under s.739 of the Fair Work Act 2009 (the Act) notifying a dispute to the Fair Work Commission (the Commission). The Respondent is Health Communication Network T/A Medical Director (HCN or the Employer). The dispute was not able to be resolved by conciliation. HCN objects to the Commission arbitrating the dispute alleging that arbitration under the relevant industrial instrument (which is in dispute) is by consent only. In the alternative, HCN submits that Mr Davidson is seeking declarations which would amount to an impermissible exercise of judicial power by the Commission. This Decision deals with HCN’s jurisdictional objection.
[2] Mr Davidson’s application states that the industry of the Employer is information technology and the industrial instrument that “covers” the employment relationship is the Clerks – Private Sector Award 2010 (the Clerks Award). However, the subject matter of the dispute is a contention by Mr Davidson that the Clerks Award does not cover his employment and that his employment is covered by the Professional Employees Award 2010 (the Professionals Award). Mr Davidson originating application articulates the dispute as follows:
“`1. Dispute is regarding the relevant Modern Award that is applicable to our Current / Ongoing/ employment within the Bundaberg Customer Care Call Centre, where we provide Application/Software Support for [HCN].
2. Current we are being employed under the [Clerks Award] when regarding the work that we perform, I believe that we should be employed under the [Professionals Award].
3. Our employment activities are limited to providing Break Fix & Training for the software applications created by [HCN].
…
5. I believe that we should be determined to be employed under the [Professionals Award]; due to the work we perform falling under the Clause 3. Definitions and interpretation.
In particular the clause – 3.3 Information technology and telecommunications services stream.
As [HCN] perform the function of subclause – (c) the design and manufacture of computer software; & in particular the work that we have been employed to perform would be categorised by the subclause – (i) activities which are incidental, ancillary or complimentary to the activities set out in this definition.”
[3] It appears from Mr Davidson’s application that the parties have been in dispute regarding modern award coverage for a number of years. The dispute appears to have arisen during the course of bargaining for an enterprise agreement and identification of the relevant reference instrument for the purposes of the Better Off Overall Test. A bargaining dispute has previously been before the Commission, but did not resolve the dispute.
[4] Mr Davidson has expressed the relief he is seeking from the Commission as follows:
“I am requesting for [the Commission] to make a determination of the applicable award, which is relevant to the work that we perform. & that if the [Professionals Award] is determined to be the most appropriate award that any underpayment of wages, since the inception of the [Professionals Award] from January 1st 2010 be rectified.”
[5] Directions were issued on 16 November 2016 following a conference in which the matter was unable to be resolved by agreement. The Applicant was directed to file material providing the basis on which he claims that the Professionals Award applies to his employment, including details of his duties and job requirements relevant to the coverage and classification definitions provided in the Professionals Award. On 23 November 2016 the Applicant filed his material in accordance with Directions issued.
[6] On 30 November 2016 the Respondent filed its response to the Applicant’s material. In its outline of submissions the Respondent contended that the application ought to be dismissed on the papers, for want of jurisdiction. The Respondent contended that the Commission must not deal with a dispute by arbitration unless expressly authorised to do so pursuant to s. 595(3) and (5) of the Act. As Neither the Clerks nor Professionals Award authorise arbitration, unless it is by consent, and the Respondent does not consent to arbitration. In the alternative, the Respondent contends that the declarations sought by the Applicant that the Professionals Award covers his employment and that underpayments should be rectified, involve the exercise of judicial power. In support of this contention the Respondent points to the fact that what is sought is a bare declaration and that such a declaration is not sought as a preliminary step in resolving a dispute.
[7] Further correspondence was sent from my Chambers to the Applicant on 6 January 2017 requesting that he indicate to the Commission whether he objected to the Respondent’s jurisdictional objection being dealt with on the papers.
[8] In his response to Chambers, the Applicant did not clearly advise whether he objected to the jurisdictional objection being dealt with on the papers. On that basis, I listed the jurisdictional objection for hearing and a notice was sent to the parties on 2 February 2017 listing the matter on 28 February 2017.
[9] At the Hearing on 28 February 2017 the Applicant appeared on his own behalf while the Respondent sought permission to be represented by Counsel. The Respondent relied on s.596(2)(a) and (b) of the Act submitting that the matter was complex in nature and it would enable the matter to be dealt with more efficiently given that the Respondent does not employ any lawyers and the matter involves a legal argument.
[10] The Applicant indicated that he was unable to respond to the issue of legal representation on the basis that he was not familiar with the provisions of the Act relied on by the Respondent. At my request, my associate provided the Applicant with a copy of the relevant section of the Act and the matter was adjourned to allow the Applicant time to read the section and respond to the application for the Respondent to be legally represented.
[11] In objecting to the Respondent being legally represented the Applicant relied upon s. 596(2)(c) of the Act contending that an issue of fairness would arise should the Respondent be granted permission to be represented given that the Applicant was unrepresented.
[12] I decided to grant the Respondent permission to be legally represented on the basis that the matter involved some complexity relating to the jurisdiction of the Commission as well as award coverage and interpretation, which, in my view, would be conducted more efficiently if permission to be represented was granted. I further indicated to the parties, that the Respondent’s permission to be represented was limited to the jurisdictional matter and that should the matter proceed to arbitration, then the issue of permission to be represented would need to be revisited.
RELEVANT PROVISION OF THE AWARDS
[13] The dispute settlement provisions of the Clerks and Professionals Awards are identical. Clause 9 of the Clerks Award and Clause 10 of the Professionals Award provide as follows:
“9. Dispute resolution
9.1 In the event of a dispute about a matter under this award, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.
9.2 If a dispute about a matter arising under this award or a dispute in relation to the NES is unable to be resolved at the workplace, and all appropriate steps under clause 9.1 have been taken, a party to the dispute may refer the dispute to the Fair Work Commission.
9.3 The parties may agree on the process to be utilised by the Fair Work Commission including mediation, conciliation and consent arbitration.
9.4 Where the matter in dispute remains unresolved, the Fair Work Commission may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute.
9.5 An employer or employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause.
9.6 While the dispute resolution procedure is being conducted, work must continue in accordance with this award and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.” (underlining added)
Legislation
[14] Relevant legislative provisions in relation to the power of the Commission to deal with disputes are as follows:
“595 FWC’s power to deal with disputes
(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a) By mediation or conciliation;
(b) By making a recommendation or expressing an opinion.
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
(4) In dealing with a dispute, the FWC may exercise any powers it has under this subsection.
Example: The FWC could direct a person to attend a conference under section 592.
(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.
…
738 Application of this Division
This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.”
739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
[15] The Commission’s powers to deal with disputes derive, in the case of an enterprise agreement, from the terms of the dispute resolution procedure contained in the enterprise agreement. As a Full Bench of the Commission concisely observed in CFMEU v North Goonyella Coal Mines Pty Ltd 1: the Commission may deal with a dispute only on application of a party to the dispute (s.739(6)); is prohibited from exercising any powers limited by the dispute resolution procedure (s.739(3)); may arbitrate only if the dispute resolution procedure permits it to do so (s.739(4)); and must not make a decision that is inconsistent with the Act, the enterprise agreement and any other applicable fair work instrument (s.739(5)).
Submissions
[16] The Respondent submits that the Commission must not deal with a dispute by arbitration unless expressly authorised to do so: s. 593(3) and (5) of the Act. Neither the Clerks Award nor the Professional Employees Award authorise arbitration unless by consent. Further and in the alternative, the Respondent submits that the only relief the Applicant seeks is a declaration that the Professional Employees Award applies to his employment and orders that any resulting underpayments be rectified. An order for underpayment involves the exercise of judicial power. Similarly, the making of a declaration with respect to which award applies – devoid of any other proposed exercise of powers which is within the Commission’s jurisdiction – requires the exercise of judicial power. 2 If contrary to these submissions the Commission considers that it has jurisdiction to deal with the dispute, then the Commission ought to conclude that the Clerks Award applies to the Applicant’s employment.
[17] The basis for the assertion that the Clerks Award applies to the Applicant’s employment can be summarised as follows. The Respondent conducts a business which provides software and software support to health professionals and medical practices. Mr Davidson performs work in a call centre operated by the Respondent as a Customer Care Agent. Mr Davidson’s role does not require him to perform professional engineering or professional scientific work. Mr Davidson’s role does not require him to hold a university degree with science or information technology accredited by the Australian Computer Society at a professional level or to have sufficient qualifications and experience to be eligible for admission to the Australian Computer Society. Mr Davidson’s position description as set out in the Respondent’s submission and detailed in a witness statement provided by the Respondent’s Service Delivery Manager, is a classic call centre position. The classifications in the Clerks Award include all centre employees.
[18] The Respondent also referred to advice from the Fair Work Ombudsman provided in October 2014, to the effect that the Respondent’s call centre employees are covered by the Clerks Award.
[19] Mr Davidson provided a statement in which he sought to set out his skills and abilities under the various Professional responsibility levels stipulated for Level B.1.1 – Graduate professional engineer, Professional Scientist and information technology employee under the Professional Employees Award. Mr Davidson also contends that he does not perform clerical work on the basis that he does not undertake recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone and switchboard and attending a reception desk.
[20] Mr Davidson accepts that he works in a call centre and answers telephone calls but maintains that he is not engaged wholly or principally in clerical work. Rather, Mr Davidson contends that callers are looking for technical support relating to the Medical Director range of software. Mr Davidson states that he is required to do more than direct a call to an appropriate area. In addition, Mr Davidson is required to record information into a software application which is a customer relationship tool. This software application is used to record every contact that customers have with Medical Director including discussions about their reasons for contacting the call centre, answers to questions asked by Mr Davidson and the steps he takes to resolve the issue in relation to which they have contacted the call centre. Mr Davidson states that recording this information can be distinguished from clerical typing, such as would be covered by the Clerks Award. Mr Davidson also asserts that when he answers a telephone call he is required to assess and identify the needs of the client with the expectation that he can resolve the issue on the initial contact.
[21] In addition Mr Davidson listed other duties he is required to perform including: identifying issues and providing the Microsoft SQL Database repair script that was created to resolve the issue; resolving issues in applications; providing remote support assistance; reporting on database entries; troubleshooting and identifying resolution processes after assessing values determined by the SQL database queries.
Consideration
[22] I do not accept that the resolution of the present dispute by arbitration would necessarily involve the Commission exercising judicial power. The decision of a Full Bench of the Australian Industrial Relations Commission in Tenix Solutions Pty Ltd v Community and Public Sector Union 3 referred to by the Respondent dealt with a dispute about whether there had been a transmission of business so that an agreement bound an employer that had assumed responsibility for a business covered by the agreement. The Commission at first instance held that there was no jurisdiction to deal with the dispute because it was not a dispute over the application of the agreement and the only issue was whether as a consequence of the takeover a business, the agreement bound the employer. In upholding that decision, the Full Bench noted that there was no evidence of an employee or the Union being in dispute about the application of any terms of the Agreement prior to the dispute being notified to the Commission, and that the dispute was limited to the question of whether the employer was bound by the agreement as a successor to a business. In reaching this conclusion, the Full Bench noted that there was no issue between the parties over the scope, quantification or interpretation of the agreement so far as it provided any terms and conditions to which the employee in dispute may have been entitled.
[23] The Full Bench rejected the submission that the dispute was about whether the employee in question was a shift worker and what her classification and entitlements comprised, and noted that the submission was undermined by the characterisation of the dispute by the Union as one about the binding effect of the agreement rather than the application of particular clauses. The Full Bench went on to hold that a dispute about whether the employer was bound by the agreement as a successor to a business was not a dispute about the application of the agreement. In reaching this conclusion, the Full Bench stated:
“[42] We do not discount the possibility that there may be circumstances in which the determination of the binding effect of an agreement is an essential preliminary issue in the settlement of genuine questions as to the agreement’s application. We do not need to explore that issue further, however, since those circumstances did not arise in this case. The Commissioner characterised the dispute as solely about the binding effect of the Agreement. We can find no error in his reasons for doing so.”
[24] In the present case, I do not discount the possibility that Mr Davidson’s dispute could be articulated in a manner so that the Commission would not be exercising judicial power in arbitrating the dispute. However, that is not the end of the matter. The fact that the dispute resolution procedure in both of the awards to which the dispute relates does not allow for arbitration of the dispute other than by consent of both parties, is a further issue. HCN does not consent to the Commission arbitrating the dispute and accordingly, the Commission has no power to make a binding determination about the issue of proper award coverage for Mr Davidson.
[25] I am also of the view that this is not an appropriate case about which I should make a recommendation or state an opinion. Notwithstanding my view that the dispute could be characterised in a way that does not require an exercise of purely judicial power, the manner in which Mr Davidson’s case is presently pleaded and the relief sought is essentially a declaration that the Professionals Award covers or applies to his employment. Any recommendation on this point would not be binding on the Respondent and I see no basis for making a recommendation in a form that if it was a determination, would constitute an impermissible exercise of judicial power.
[26] Even if I considered making a Recommendation, the information provided by Mr Davidson in support of his claim does not sufficiently address the matters relevant to award coverage. Mr Davidson relies on the information technology coverage of the Professionals Award. By virtue of clause 4.2 the Professionals Award covers employers engaged in the information technology industry and their employees “who are covered by the classifications in Schedule B” of the Award. The information technology industry is defined in clause 3.3 of the Award as follows:
“3.3 Information technology and telecommunications services stream
information technology industry means:
(a) the design and manufacture of computers and computer peripherals;
(b) the design and manufacture of telecommunications equipment;
(c) the design and manufacture of computer software;
(d) computer system installation, repair and maintenance;
(e) computer consultancy services;
(f) computer programming;
(g) system analysis services;
(h) the design, development and maintenance of online internet architecture and the facilitation of online content management; or
(i) activities which are incidental, ancillary or complementary to the activities set out in this definition.”
[27] “Professional information technology employee” is defined in clause 3.3 of the Award as follows:
“Professional information technology employee means an adult person qualified to carry out professional information technology duties as defined. The term Professional information technology employee will embrace and include Graduate information technology employee and experienced information technology employee as defined.”
[28] “Professional information technology duties” are also defined in clause 3.3 as follows:
“professional information technology duties means duties carried out by a person in any particular employment the adequate discharge of any portion of which duties requires a person to:
(a) hold a university degree with a science or information technology major (three, four or five year course) accredited by the Australian Computer Society at professional level; or
(b) have sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society.”
[29] On the basis of Mr Davidson’s own material, and that provided by the Respondent, Mr Davidson does not meet the definition of a Professional information technology employee nor does he perform Professional information technology duties. It is clear from that information that the duties Mr Davidson is required to perform involve installation of software applications that have been designed and developed by others. Mr Davidson selects a pre-determined range of options rather than developing or designing them himself. Initiative displayed by Mr Davidson is limited to selecting from pre-determined solutions to attempt to resolve particular problems identified by clients.
[30] There is no evidence that Mr Davidson holds a relevant degree or that Mr Davidson’s qualifications and experience are such that he would be eligible for admission as a member of the Australian Computer Society. In any event, the issue is the skills that Mr Davidson is required to exercise rather than those he actually holds. On the basis of the material tendered by both parties, I am unable to accept that to perform his duties as a Customer Care Agent, Mr Davidson is required to undertake professional information technology duties or to exercise the skills required of a professional information technology employee as described in clause 3.3 and Schedule B of the Award.
[31] The Clerks Award contains a broad and inclusive definition of clerical work. The classification definitions in Schedule include employees at various levels who are working in call centres. In my view, the type of work undertaken by Mr Davidson is described within one or more of the classification definitions in the Clerks Award. In this regard level 2 – which has qualification level of a Certificate II in Telecommunications (Customer Contact) –includes in relation to call centre customer contact officer:
● Enter and retrieve data;
● Use common call centre technology;
● Manage own work under guidance;
● Provide at least one specialised service (sales and advice for products and services, complaints or fault inquiries or data collection surveys.
[32] Level 3 – which has qualification level of a Certificate II in Telecommunications (Customer Contact) – includes in respect of call centre customer contact officer:
● Exercise some discretion and judgment in the selection of equipment, services or contingency measures;
● Provide multiple specialised services to customers including complex sales, service advice for a range of products or services and difficult complaint and fault inquiries.
[33] I do not accept Mr Davidson’s submission that the Clerks Award does not properly or appropriately describe and therefore cover the work that he is required to perform for the Respondent.
Conclusion
[34] For the reasons set out above, Mr Davidson’s application in C2016/5804 is dismissed and an Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
2 Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2017] FWCFB 217; Community and Public Sector Union v Tenix Solutions Pty Ltd PR940630.
3 Appeal by Susan McCallum; Community and Public Sector Union v Tenix Solutions Pty Ltd (formerly LMT Australia Pty Ltd) PR940630.
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