T12891
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 D G Lewis Pty Ltd and Health Services Union of Australia, Tasmania No 1 Branch
Appeal against a decision handed down by Commissioner T J Abey arising out of T12613 of 2006 - Appeal dismissed - original decision and order confirmed REASONS FOR DECISION [1] The preamble to the Industrial Relations Act 1984 states:
[2] An industrial matter is defined as follows (where relevant):
(a) a matter relating to - (i) the mode, terms and conditions of employment; or (b) a breach of an award or a registered agreement- [3] This appeal relates to an application by the Health Services Union of Australia Tasmania No 1 Branch [T12613 of 2006] filed on behalf of its member, Mark Jeffries, alleging that the employer, DG Lewis Pty Ltd, had "breached Part III - Wages and Related Matters Clause 3 Classification Descriptors of the Community Services Award by classifying an employee at Community Services Employee - Level 2 instead of Level 2B." [4] Mark Jeffries is a `private employee' defined by the Industrial Relations Act 1984 (the Act) as meaning an employee other than:
[5] DG Lewis Pty Ltd is the employer of Mr Jeffries and meets the definition of a `private employer' which the Act prescribes as meaning:
[6] T12613 of 2006 was allocated to Commissioner Abey who issued a decision which found that the Community Services Award (CS Award) was the applicable award and that Mr Jeffries, should be classified as a Community Services Employee Level 2B as found in the CS Award. [7] The parties were "directed to confer with a view of reaching a settlement. The file shall remain open and either party may apply to have the matter re-listed should that be necessary." [8] Negotiations between the parties failed to reach a settlement. [9] The Commissioner's decision was not appealed. [10] DG Lewis Pty Ltd then filed an application for an interpretation of the following classification descriptor [T12735 of 2006]:
[11] DG Lewis Pty Ltd sought that the interpretation be applied retrospectively. [12] The notification before Commissioner Abey [T12613 of 2006] had not been finalized so the Commissioner relisted the matter at the request of the applicant (Jeffries) and invited written submissions from the parties. The matter was then listed for hearing to allow the parties to provide any further information if they so wished. At that hearing DG Lewis Pty Ltd said it did not wish to add anything further and relied on its written submission.1 [13] In a Supplementary Decision in matter T12613 of 2006, Commissioner Abey confirmed his earlier findings that DG Lewis Pty Ltd was covered by the CS Award and that the appropriate employee classification was that of a Community Services Employee - Level 2B. [14] Further Commissioner Abey ordered that:
[15] Chronology: 20 March 2006 Application T12613 of 2006 filed. 13 April, 2006 Hearing before Commissioner Abey. 28 April, 2006 Written submission filed by applicant (for Jeffries). 5 May 2006 Written submission in response filed by respondent (DG Lewis Pty Ltd). 16 May 2006 Decision issued by Commissioner Abey. 18 July, 2006 Application by DG Lewis Pty Ltd for interpretation of classification descriptor in CS Award. 2 October, 2006 Request by Health and Community Services Union advising that negotiations had failed to settle matter and seeking relisting. 6 November, 2006 Listed for hearing before Commissioner Abey. 27 November, 2006 Correspondence from DG Lewis Pty Ltd advising that it was of the view that the Disability Service Providers Award (DSP Award) was the appropriate award coverage and seeking further review of the matter. DG Lewis Pty Ltd also advised that it had "suspended further discussions" in regard to settlement. 21 December, 2006 Listed for hearing before Commissioner Abey. 11 January, 2007 Listed for hearing before Commissioner Abey. 24 January, 2007 Commissioner Abey issued Supplementary decision 13 February, 2007 Appeal lodged by DG Lewis Pty Ltd [T12891 of 2007]. [16] DG Lewis Pty Ltd filed a notice of appeal against the Supplementary decision of Commissioner Abey and relied on the following grounds:
[17] It was submitted by DG Lewis Pty Ltd (the appellant) that in the event that the Full Bench upheld the decision of Commissioner Abey that three alternatives existed in respect to the entitlement to any payment. They are:
[18] As previously noted there was no appeal against the first decision of the Commissioner; however to deal with the grounds of appeal relied on in the appeal against the Supplementary Decision it is necessary to consider the Commissioner's findings and reasons provided in both decisions. Appeal ground 1:
[19] It was submitted that the Commissioner had relied on a limited meaning of the word `home' and had given no weight to the appellant's submission that its premises should be considered on a par with other service models where the work is performed in a home specifically established for the purposes of providing residential care. It was submitted by the appellant that the private residence, the subject of this dispute, was specifically designed for the function of providing care and therefore the appellant should be covered by the Disability Service Providers Award (DSP Award).2 [20] The Scope clause in the DSP Award provides:
[21] The Scope clause in the CS Award states: "This award is established in respect of the industry of social and community services, in which the primary functions/industrial pursuits include: (vi) providing personal care for persons who have an intellectual, physical, psychiatric, and/or sensory disability in locations other than those covered by the Disability Service Providers Award and the Nursing Homes Award." [22] The appellant submitted that an area of difference appears to be that group homes are classified as being within the Scope of the DSP Award yet the home in which the service of the appellant is provided is a private home which for some reason comes within the Scope of the CS Award. We note that the appellant initially accepted that the CS Award was the appropriate award but disagreed with the employee classification. That position changed to a claim that the DSP Award was the applicable award. Where and what is the service provided? [23] The DSP Award prescribes that the award is established in respect to the provision of "residential care... ...in homes or institutions established for that purpose." [24] The CS Award prescribes that the award is established for the provision of "personal care ... in locations other than those covered by the DSP Award." [25] Neither award prescribes a definition of residential care or personal care. It seems to us however that there is a difference in the standard of the care provided in each circumstance. The appellant's establishment provides personal care to one resident with no immediate supervision or assistance whereas in a multiple resident establishment the care would be less individual or personal and supervision and assistance is available. [26] The Macquarie dictionary gives the following meaning to the word personal: "of or pertaining to a particular person; individual; private..." [27] The Dictionary is not helpful when looking at the meaning of residential other than providing the following amongst its definitions: "catering for guests who stay permanently or for extended periods..." [28] It was submitted by the appellant that the residence where the service is provided is a private home which has been specifically designed for the function of providing care to the current resident. The house has one resident who is the receiver of the care. The current resident was formerly a resident of Willow Court Training Centre and moved from there into a group home; both Willow Court and the group home are covered by the Scope clause of the DSP Award. The resident then moved into the service now carried out by the appellant. [29] The Service Agreement made with the State Government provides:
[30] In the appellant's case the provision is for Group Homes of less than 7 places however we were informed that the agreement is a generic agreement which covers group homes set up for residential care as well as single residences set up for the same purpose. Funding is provided in accordance with the Disability Services Act, 1992, Tasmania. [31] The appellant submitted that the only difference between its position and a group home run by an organization was that the appellant's residence is for one person whereas a group home provides service to more than one resident and that other than the number of residents there is no difference in the service provided and as such the appellant should be covered by the DSP Award and not the CS Award. [32] We disagree as award coverage is determined firstly by an assessment of the employer's business and in this case a further reference can be made to the type of service being provided which is either personal or residential. The determination of award coverage does not rely entirely on the meaning of the word home. [33] We now deal with the appeal ground. [34] The Health Services Union of Australia Tasmanian No. 1 Branch, appearing for Mr Jeffries (the respondent to the appeal) argued that both parties had been given ample opportunity to provide the Commissioner with any further information they wished to present. In his original decision the Commissioner determined that the appropriate award was the CS Award and that the appropriate classification under the CS Award was Community Services Employee - Level 2B. [35] The respondent disagreed that the parties had not been given the opportunity to address matters of concern, it submitted that the matter had been before the Commission for some time, that the Commissioner had issued a decision and a direction that the parties confer to seek a settlement. Negotiations failed to settle the issue and the appellant then sought an interpretation of the classification descriptor found in the CS Award. The matter was referred back to the Commissioner as the file had not been closed and the Commissioner was yet to make a final determination in respect to the dispute before him. He had however determined the appropriate award coverage and classification. [36] The appellant did not appeal the Commissioner's first decision which determined award coverage and classification determination. As we have noted earlier the appellant initially accepted that the CS Award was the applicable award. [37] In his supplementary decision the Commissioner said:
[38] Accordingly we are satisfied that the Commissioner afforded the parties ample opportunity for additional information to be provided and has taken any additional information into account in his determination. [39] We detect no error by the Commissioner and reject appeal ground 1. Appeal ground 2:
[40] The appellant argued that the work performed by employees in his establishment was the same "in all respects" to that performed by workers in group homes. Accordingly there should be some "coincidence in terms of award coverage" and the principle of equal pay for equal work should have been given precedence in the Commissioner's reasoning. The appellant submitted that the right to equal pay for equal work is a "basic human right and that efforts to enforce that right should start from a rights framework analysis."4 [41] It was submitted by the appellant that "...irrespective of award coverage a classification for DG Lewis staff which results in higher rates of remuneration for the same work performed in group homes is contrary to the principle of equal pay for work of equal value and the Commissioner erred in not giving weight to this matter."5 [42] The appeal ground is misconceived. The Commissioner relied on the test in the Full Bench decision in NGT Pty Ltd v NUW to determine award coverage which takes into account an assessment of the employer's business. The test the Commissioner applied required an assessment of the employer's business prior to any determination of the employee's classification. This Commission has no principle of equal pay for equal work in its Wage Fixing Principles. [43] The appellant spent some time discussing the role of the ILO and its treaties and conventions and in particular the fact that "everyone without discrimination has the right to equal pay for equal work."6 Equal pay for equal work is a different concept to the wage fixing principles adopted by the Commission; nevertheless we have no argument with the appellant's submission as it relates to the International Labour Organisation (ILO) convention in respect to equal pay for equal work. However the value of the work of an employee is based on more than the concept of equal work, it takes into account the skills and qualifications required of the position as well as a consideration of the environment in which the work will be performed and the responsibilities of the employee rather than the narrow issue of the actual work performed. The assessment of the value of the work described in employee classifications in most, if not all, Australian industrial tribunals takes into account more than the narrow issue of the actual work performed. The principle of equal pay for equal work was not relevant to the Commissioner's consideration. [44] This is not a matter about equal work; it is a dispute about the application of classifications in an award the determination of which relies on the provisions of the award. There is no agreement that the work defined in the CS Award and the DSP Award is equal or identical and the submission put to the Commissioner that such was the case was no more than hearsay and a generalization without evidence and expressed only the view of the appellant which was challenged by the respondent. No evidence was provided to expand on that claim. The actual work may appear to be equal however the circumstances under which the work is performed differ as do the levels of responsibility. [45] In his first decision the Commissioner considered the history of the Level 2B classification and provided a detailed synopsis of that history. The Commissioner also noted that "....hitherto the directors of DG Lewis Pty Ltd have accepted the application of the CS Award, albeit at Level 2, Mr Kregor now contends that the `DG Lewis arrangements fall outside the present scope of the award and the award should be varied to address the issues raised.'" [46] In his supplementary decision the Commissioner considered the further submissions of the parties but came to the same conclusions in respect to award coverage and the appropriate classification level for Mr Jeffries. [47] The respondent noted that this Commission has no principle of equal pay for equal work other than its Pay Equity principle which relates to the issue of gender equity. [48] Further the respondent noted that the Commissioner had been made aware of the history of the CS Award and in particular the variation by consent which inserted the Level 2B classification and that his decision makes it clear that he took the history into account. It was submitted that the consent variation recognized "that employees providing residential care for people in their own home as compared to a more institutional setting demanded a higher level of responsibility and therefore warranted a higher rate of pay..."7 [49] We detect no error by the Commissioner and are satisfied that he applied the appropriate test to make his determination. [50] We reject appeal ground 2. Appeal ground 3:
[51] It was submitted that the Commissioner relied on an implied meaning of the term `home' despite there being no definition in either the DSP Award or the CS Award. Further it was submitted that the Commissioner also insisted on a literal application of the term `higher classified employee' and `employer' and that the terms `client' and `supervision' were not addressed. [52] It was argued by the appellant that its model of service should be measured against the group home standard. Further it was argued that the Commissioner had placed undue weight on the literal meaning of the expression "higher classified employee" an expression found in the classification description for Community Services Employee - level 2 and level 2B. The Community Services Employee - level 2 "Works under the immediate supervision of a higher classified employee...." Whereas the Community Services Employee- Level 2B works "without the immediate supervision of a higher classified employee...." [53] In this matter the receiver of the service is also the Chairman of the employing Company; however by any manipulation of the language the receiver of the service (or client) could not be deemed the "higher classified employee..." which is the interpretation the appellant sought the Commissioner to adopt. The work was performed in the private home of the consumer of the service and the status of the consumer is not relevant to the determination of award coverage, the award has application to employees and employers and sets out rates and conditions of employment attached to the service provided. There is no provision in the award, or in any award to our knowledge, where the employer can be covered by a classification and be deemed both the employer and an employee. [54] The consumer of the service is the tenant of the appellant's property which the appellant argues has been specifically established for the purpose of providing care. Accordingly the appropriate award coverage should be the DSP Award. [55] The residence is a privately owned property which is rented to the client of the service. It was submitted that "residences are built from the ground up and designed specifically for the individual's needs."8 However the appellant agreed that if the need to provide the service to the current tenant ceased the residence would revert to a normal residence.9 [56] The appellant's company has been "specifically established to manage accommodation services for the current resident."10 It was submitted that "The nature of the regulations governing the way in which the State Government administers public moneys is such that it cannot give moneys directly to an individual. It can only give moneys to a corporate entity which has legal responsibilities in regard to financial and fiduciary accountability."11 [57] The business of the appellant is to "...enter into agreement with the State Government, receive funds and employ staff to deliver residential care in an accommodation setting, as per the model described here. DG Lewis doesn't have a role in building, designing or directing the actual accommodation. Securing it, yes, but not in the building and designing of it."12 [58] The Commissioner has properly considered the issue of the award prescriptions. The fact that the client is a director of the company employing the employee is not relevant to his determination. Furthermore the client cannot be the `higher classified employee.' The client cannot be both the employee and the employer. A higher classified employee is just that, an employee of a higher award classification than the employee providing the service. The award classification recognises the professional skills, responsibilities and qualifications required to perform the work. In this matter the higher classified employee would be an employee classified at a skill level higher than that of Community Services Employee - Level 2B. The first requirement is that the person be an employee, the second requirement is that the employee be engaged at a classification higher than that of the employee seeking assistance. A significant aspect of the classification of Community Services Employee - Level 2 B is that the employee works independently at the workplace. This is not the case in a group home where there would be a number of employees working together and where supervision is available. Any direction or instruction given by the client or consumer of the service (in this case also being the employer) cannot satisfy the award definition of supervision provided or available by a higher classified employee. [59] The Commissioner found that he could not "read the award in a manner that would allow the employer (or consumer of service) to stand in the place of the higher classified employee."13 [60] We agree with that finding. [61] The appeal ground is misconceived and the Commissioner has correctly applied the literal meaning of the relevant expressions. There is no ambiguity in the award provisions and the Commissioner was only able to give the literal meaning to the words higher classified employee. It is our view that the words are clear, matter of fact and difficult to misconstrue. A definition of client is not relevant to the Commissioner's determination. [62] Appeal ground 3 is rejected, we detect no error by the Commissioner. Appeal ground 4:
[63] The appellant argues that it is possible to find that a particular employer falls outside the scope of an award and is thereby award free. Further it was submitted by the appellant that the "passage of time should have an influence on obtaining a fair and just resolution of and matter in law.(sic)" It is not clear just what the appellant is claiming. The application has been the subject of a number of hearings and conferences in an attempt at settlement by negotiation. There is nothing unusual about such a process. The Commissioner was required to make a determination of the matter before him taking into account the submissions and evidence before him and in accord with the legislative and statutory requirements. It would be inappropriate and a questionable practice if the passage of time were to influence the Commissioner's decision. We note that some delay in proceedings was unavoidable due to the unavailability of Commission members and the appellant's representative. [64] Further it is our view that the public interest is not an irrelevant consideration; in fact the Commission is required to have regard to the public interest in the exercise of its jurisdiction. [Act S.20(1)(d)] [65] Appeal ground 4 is rejected, there is no error by the Commissioner. Appeal ground 5:
[66] The Commissioner stated in his supplementary decision that he had examined both awards and noted that the CS Award had a `catch all' application unless an employer was specifically covered by the DSP Award (and one other which is not relevant to this matter). He examined the history of classification levels 2 and 2B as at the time of the first hearing the appellant did not dispute that the CS Award was the appropriate award. The appellant provided a brief written submission prior to the Commissioner issuing his supplementary decision. Correspondence from the appellant dated 27 November, 2006, said:
[67] The Commissioner did give weight to the history of the awards and has appropriately addressed that history. [68] We reject appeal ground 5. Appeal ground 6:
[69] The appellant withdrew this appeal ground.14 Appeal ground 7:
[70] The appellant complained that the Commissioner had not provided adequate reasons for his decision. We disagree; the Commission identified the issues which he had to determine, much of the submissions by the appellant were not within jurisdiction and not relevant to his determination. The issue for determination was award coverage, we are satisfied that the Commissioner properly addressed the issue for determination and provided adequate reasons for his decision. [71] Appeal ground 7 is rejected. Appeal ground 8:
[72] The basis of this ground of appeal appears to be the appellant's view that the award is defective as it does not allow the consumer of the service, who is also the chairman of the employing company, to be considered as the higher classified employee as prescribed in the CS Award. [73] The appeal ground is misconceived. The Commissioner was required to do no more than determine the appropriate award coverage for the employee employed by the appellant. The award only relates to employers and employees. The appellant submitted that the chairman of the company, being the employer and the consumer of the service, can be deemed the higher classified employee. As we have noted previously it is not possible that the employer can also be the higher classified employee. There is no defect with the award provision. The appellant seeks to interpret the award in a manner never intended by those who drafted its provisions and in a manner unheard of in any industrial proceedings. [74] The Commissioner provided the opportunity for issues to be raised in conference as well as the opportunity for written submissions. Also there were two formal hearings where submissions were able to be presented. He specifically noted in his supplementary decision that he had agreed to accept additional information and did so. [75] There was no denial of procedural fairness, in fact the Commissioner has provided the parties with a number of opportunities to present submissions and even allowed the appellant to challenge his first decision without the filing of any formal appeal. [76] We reject appeal ground 8. Appeal ground 9:
[77] Again it is our view that the appeal ground is misconceived. The appellant suggests that the award by the Commissioner is unfair and unreasonable as it dates back to December 1999 which is when the employee was originally engaged by the appellant. A breach of award is a serious matter and is a matter of fact; the parties were given an opportunity to reach a settlement following the Commissioner's initial decision but this was unsuccessful. A negotiated outcome could take into account the period of time that the breach had occurred however this Full Bench has no power to reduce the legal entitlement of an employee when a breach has been found. [78] Appeal ground 9 is rejected, it is our view that the decision of the Commissioner is not unreasonable, we are satisfied that he addressed all the matters relevant to his determination. Appeal ground 10:
[79] Whilst a number of the appeal grounds overlap and rely on the same complaint it is our view that the appellant fails to understand the role of the Commission in its dispute resolution role. The Commission provides the parties to a dispute the opportunity to present submissions and evidence. The Commission has regard to the submissions and evidence presented. If required the Commission would consider any appropriate provisions of an award as well as applying any relevant sections of the Act. Further, it may also have regard to ILO conventions if appropriate. The Commission does not take into account matters outside its statutory responsibilities or unrelated to the circumstances of the matter before it for determination, be they emotional, moral or ethical unless the statute provides that it do so. [80] The appellant conceded that there was no employee of a higher classification supervising Mr Jeffries and that he worked alone in his carer's role. It was submitted that "as an employer and as directors of the company we have made some very strict policies in relation to the extent to which our workers are required or otherwise to make decisions independent of direction from us. Mr Lewis (the client) has a condition called cerebral palsy and is subject of severe physical limitations to his physical capacity to act physically. He is able to indicate agreement and disagreement, give his consent and the general training and instruction is given to staff requires that in all situations where questions arise they are to consult the director, the chairman of the company."15 It was also submitted that "Once you say that the supervision can only be provided by employees it denies the fact that Mr Lewis is capable of providing supervision himself or any other person with disabilities for that matter. Now we think that is very dangerous ground."16 [81] It is our view that the preceding submissions reveal a misunderstanding of the employee/employer relationship as it applies to the exercise of the carer's professional skills, qualifications and responsibilities. The award talks about the professional skills of the employee and the provision is not related to the day to day repartee between the carer and the client. [82] Some time was spent discussing the meaning of certain words found in the award and how they applied to Mr Lewis. The appellant agreed that Mr Lewis is the employer as well as being the client or the consumer of the service provided by Mr Jeffries. It was submitted that "I think the difficulty here is that it is important to Mr Lewis and to the company in terms of the way the service is organized. Now, the workers recognize the authority of Mr Lewis as an individual to make decisions on his own behalf and to have those decisions enforced; that is part of the principles of self determination and the principles of...."17 Again we have no difficulty with the sentiment expressed but as the appellant agreed the submission has nothing to do with the matter before the Commissioner. [83] Likewise the submissions in respect to the award provision of supervision by a higher classified employee are misconceived, the appellant said that "Now wherever you start within the level of classification... you are going to reach a point where a staff member is supervised by somebody who is not an employee of the award"18 Further "Because no organization or company that employs anybody can negate - can abjure its responsibility to supervise its employees at whatever level."19 [84] The appellant appears to misunderstand the difference between supervision of professional skills by another employee professional and management's prerogative to manage the work arrangements of employees. They are different concepts. [85] We note that the respondent said on a number of occasions that the appellant was seeking to re-open the merit of issues already determined by the Commissioner in his first decision for which no appeal had been lodged. The respondent is correct in its submission. The appellant in fact attempted to re-run its case in the second hearing before the Commissioner and informed him that it disagreed with his original findings. We think it more appropriate that an appeal had been filed in accord with the provisions of the legislation. [86] The appellant submitted that he did not understand the findings of the Commissioner but did concede that the "Commissioner has been more than fair in extending us the opportunities that he has to deal with things. If we have failed to take advantage of those opportunities then I accept some blame for that..."20 It seems to us that the appellant actually agrees with most of the Commissioner's findings but has difficulty accepting his determination. [87] Both parties indicated that they were prepared to seek settlement by negotiation and we would encourage them to do so. [88] We reject the appeal and confirm the decision of the Commissioner which provides:
[89] Payment should be made within 14 days of the date of this decision if the parties are unable to reach a negotiated settlement.
P L Leary Appearances: Date and place of hearing: 1 Original transcript PN31
|