Industrial Magistrate dismisses claim, finding employee was classified and paid correctly
The Industrial Magistrate has dismissed a worker’s claim for underpayment under an award, on the basis that the claimant was classified and paid correctly.
The claimant was casually employed by the respondent under the Serco CPSU Acacia Prison General Enterprise Agreement 2017 (Cth) (Agreement).
It was common ground that the claimant was employed on a casual basis.
The claimant accepted that if the Corrections and Detention (Private Sector) Award 2010 (Cth) (Award) applied, he was paid above the award rate and his claim could not succeed, but contended:
- The Agreement applied, under it he was a ‘Trainee Custodial Officer (Induction)’ (TCO), and his role involved custodial functions meaning the role within ‘Custodial Officer’;
- His rate of pay was therefore governed by Schedule 2 of the Agreement, being the only schedule specifically mentioning ‘casual’ employment relating to Custodial Officers;
- Schedule 2 of the Agreement provides one casual Custodial Officer rate pay: $39.60 per hour;
- He should therefore have been paid at the rate of $39.60 per hour;
- The respondent was liable for the difference between the rate paid and the rate claimed, under s 50 of the Fair Work Act 2009 (Cth) (FWA), as it contravened the Agreement.
The respondent argued there was no Agreement contravention and contended the Award applied; that casual TCO’s do not exist as Schedule 2 refers to casual Custodial Officers only; and that the Agreement definition ‘Employee performing custodial functions who is working towards completing or has successfully completed a Certificate III in Correctional Practice’ (Cert III) applied. The respondent contended the claimant was not entitled to the rate claimed, as a trainee not performing ‘custodial functions’.
The Industrial Magistrate found the court was required to consider the applicable industrial instrument and appropriate job classification. The Industrial Magistrate considered the written offer of employment, found the Award covered the employment, but noted the respondent intended the Agreement to apply.
The Industrial Magistrate noted that if the Agreement covered and applied to the employment then the Award did not apply. The Industrial Magistrate found the Agreement applied as FWA ss 52(1)(a) and 52(1)(c) were fulfilled as the Agreement was in operation during the period of employment. No other FWA provision provided or had the effect that the Agreement did not apply the parties.
The Industrial Magistrate considered the details of the Agreement, the work done at different times, training and the work of a Custodial Officer role. The Industrial Magistrate found the Agreement covered the claimant, his correct job classification was as a TCO, and that his employment as a casual did not change this.
The Industrial Magistrate found the claimant satisfied two of three characteristics of being a Custodial Officer; he was an employee, and he was working towards completing a Cert III. But at no time during the employment did the claimant perform custodial functions, as taken from those of a Correctional Officer under the Award. The Industrial Magistrate found the claimant was not a Custodial Officer – casual or otherwise, and was paid the correct rate and dismissed the claim.
The decision can be read here.