Notification under section 130 by Construction, Forestry, Mining and Energy Union (New South Wales Branch) of a dispute with Department of Ageing, Disability and Home Care re incorrect classification of members [2012] NSWIRComm 98

Industrial Relations Commission New South Wales Medium Neutral Citation: Notification under section 130 by Construction, Forestry, Mining and Energy Union (New South Wales Branch) of a dispute with Department of Ageing, Disability and Home Care re incorrect classification of members [2012] NSWIRComm 98 Hearing dates: 30 July 2012, 31 July 2012, 1 August 2012, 2 August 2012 Decision date: 05 September 2012 Jurisdiction: Industrial Relations Commission Before: Harrison DP Decision: Qualifications and requirements do not meet Carpenter and Joiner Level 4. Application for recovery of underpayment of wages dismissed. Mixed functions provision of award has little or no application to the work as observed. Award to apply in appropriate circumstances. Catchwords: Application for reclassification from Carpenter and Joiner Level 3 to Level 4 - Question of skills applied, requirements of employer. Legislation Cited: Industrial Relations Act 1996 Category: Principal judgment Parties: The Construction, Forestry, Mining and Energy Union (NSW Branch) (CFMEU) (Applicant)

The Family and Community Services Agency, Disability and Home Care Department (Respondent) Representation: Ms K Nomchong (Respondent) Ms R Raju (Applicant) File Number(s): IRC 875 of 2009

DECISION 1The Construction, Forestry, Mining and Energy Union (NSW Branch) (CFMEU) seeks an increase in classification from Tradesperson Level 3 to Tradesperson Level 4 on behalf of four members, Mr David Aubin, Mr Raymond Morrant, Mr Robert Towers and Mr Shane Obereker, employed by the Family and Community Services Agency, Disability and Home Care Department (the Department) at the Stockton Facility for Physically and Intellectually Handicapped. 2Each of the persons subject to this matter have been employed by the Department at the Stockton facility in a maintenance capacity for many years. Mr Aubin commenced in 1987, Mr Obereker in 1996 and Messrs Morrant and Towers in 1997. 3Employment has been in accordance with the relevant Crown Employees Award from the outset. 4It is sufficient for present purposes to consider the award coverage from 2001 to date. The relevant awards are: Skilled Trades Staff - Department of Ageing Disability and Home Care (State) Award 2001 (AIRC) 331 IG 820 (the 2001 Award) Skilled Trades Staff - Department of Ageing Disability and Home Care (State) Award 2004 (RIRC) 354 IG 538 (the 2004 Award) Skilled Trades Staff - Department of Ageing Disability and Home Care (State) Award 2004 (VIRC) 362 IG 211 (the 2007 Variation) Skilled Trades Staff - Department of Ageing Disability and Home Care (State) Award 2009 (AIRC) 369 IG 966 (the 2009 Award) Skilled Trades Staff - Department of Family and Community Services (State) Award 2011 (AIRC) 371 IG 1696 (the 2011 Award) 5The CFMEU put an argument that a review of the correct classification should commence with a consideration of the 2001 Award. 6This argument is not sustainable. The present issue had its genesis in a reclassification process commencing with the 2007 Award Variation which introduced changes to the classification structure. No issue was raised or pursued through the award disputes procedure prior. 7The correct approach is to determine whether the employees were correctly classified in accordance with the 2007 Award Variation, the relevant provisions of which are: VARIATION 1.Insert in clause 1 Arrangement, of the award published 21 October 2005 (354 I.G. 538) the following new clause number and subject matter, and renumber existing clauses 13, 14, and 15 to read as 14, 15 and 16. 13.Average Disability Allowance 2.Delete clause 5, Classification Structure and insert in lieu thereof the following: 5. Classification Structure (i)Context: Trades staff perform, both on a planned and emergency basis, a variety of manual and technical tasks related to preventative and corrective maintenance, the installation of plant and equipment and the renovation and construction of buildings. Trades staff also ordinarily undertake work which is peripheral and incidental to their base trade so as to complete the whole job or so as to assist other staff complete the whole job. This Classification structure is designed to reward trades staff who possess, and are required by the Region to regularly provide, skills/knowledge beyond their base trade obligations. It does not reward service alone nor additional skill/knowledge performed at less than a trades standard. (ii)Structure: The following classification structure is to be applied from the first full pay period to commence on or after 13 February 2007. Pay levels as a percentage of base pay rates are: Title Rate of Pay Level 1 Tradesperson Base rate for relevant Trade Level 2 Tradesperson 105% of Base Rate for relevant Trade Level 3 Tradesperson 110% of Base Rate for relevant Trade Level 4 Tradesperson 115% of Base Rate for relevant Trade