FEDERAL COURT OF AUSTRALIA

Vassallo v Easitag Pty Ltd [2020] FCA 875

ORDERS

THE COURT ORDERS THAT:

1.    The separate question the subject of Order 1 made pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) on 20 March 2020, that is:

Do the decisions of the Fair Work Commission in proceedings C2017/227 (Decision of Commissioner Cirkovic in Jeffery Vassallo v Easitag Pty Ltd T/A Easitag [2017] FWC 5961) and C2017/6484 (Decision of the Full Bench in Jeffery Vassallo v Easitag Pty Ltd [2018] FWCFB 501) extinguish the justiciable controversy between the Applicant and the Respondent with respect to the classification of the Applicant as a level 4,5,6,7 and/or 10 under the Electrical Electronic and Communications Contracting Award 2010 (the EECCA) or National Electrical, Electronic and Communications Contracting Industry Award 1998 (the NEECA) while employed by the Respondent between 23 April 2008 and 26 January 2018?

be answered “Yes”.

2.    Subject to Orders 3-5 below, there be no order as to costs.

3.    The Respondent have leave to file and serve any written submissions on which it would seek to rely on the question of costs, of no more than 3 pages in length, no later than the expiry of 7 days after the publication of these reasons.

4.    The Applicant have leave to file any responsive submissions on which he would wish to rely on the question of costs, of no more than 3 pages in length, no later than the expiry of 7 days after any submissions filed pursuant to Order 3 are served on him.

5.    If written submissions are filed pursuant to Order 3, the issue of costs be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KERR J:

1    A cause of action estoppel cannot be created by a “mere administrative decision”. However, as the reasons of the High Court in Administration of Papua New Guinea v Guba [1973] HCA 59; 130 CLR 353 (Guba) illustrate, reference to the expression a “judicial tribunal” in the prior (and later) case law in that regard is apt to be misleading.

2    Guba involved a dispute that had its origins in an 1886 purchase on behalf of the Crown of land at Port Moresby from its customary title owners. Notwithstanding an Order of Council made in 1901 intended to settle those questions, disputes continued. In 1954 the Administrator commissioned a Land Board to decide the competing claims about certain parcels of land. It was in that context that the Appellants in Guba sought declarations as to the land’s true ownership.

3    In concluding that the determination of the Land Board had created a cause of action estoppel Gibbs J (with whom Menzies and Stephen JJ agreed) reasoned (at 453) that the application of such an estoppel was not determined “by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative”. His Honour held:

The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question between the parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of the parties, and it only has temporary authority to decide a matter ad hoc …

4    Barwick CJ, with whom McTiernan J agreed, similarly concluded that the Land Board’s decision had bound the then claimant, his privies and the part of the clan he had represented. His Honour doubted the relevance of questions of judicial power in a system where the separation of powers was not mandated. With that qualification, the Chief Justice reasoned (at 403-4):

I suppose there could not be a better justification for resort to the principle of estoppel than the present case. The Land Board had witnesses of whose evidence the Land Titles Commissioner did not have the benefit. We are told that every encouragement was given to the Tubumaga people and, indeed, to the Papuans generally to tell all they knew or thought they knew about the title to the ownership of the lands about which the Board was inquiring. No appeal was brought from the Land Board’s decision but now, twelve years later, it is sought to agitate the same question again and with lesser information than was available to the Land Board.

5    To the extent there may have been doubts as to the enduring authority of the reasoning of Gibbs J in Guba where jurisdiction is conferred by the submission of the parties to an arbitration, such doubt was dispelled by the reasoning in TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533 (TCL) in which Hayne, Crennan, Kiefel and Bell JJ reasoned as follows:

76.    An agreement to submit disputes to arbitration does not, apart from statute, take from a party the power to invoke the jurisdiction of the courts to enforce that party’s right by instituting an action to determine a dispute of a kind that the parties have agreed should be arbitrated. The jurisdiction of the courts is not and cannot be ousted by a private agreement.

77.    However, if the parties do go to arbitration and the arbitrator makes an award, the making of the award has legal significance in respect of the parties’ dispute and their rights and liabilities. As the plurality in Dobbs said: “if, before the institution of an action, an award was made, it [the award] governed the rights of the parties and precluded them from asserting in the Courts the claims which the award determined” (emphasis added). In such a case, the arbitrator’s award governs the rights of the parties because “[b]y submitting the claims to arbitration, the parties confer upon the arbitrator an authority conclusively to determine them”.

78.    This gives rise to the general rule that an award made by an arbitrator pursuant to such authority is final and conclusive. Further, the arbitrator’s making of an award in exercise of such authority both extinguishes the original cause of action and imposes new obligations on the parties which were the subject of the dispute referred to arbitration. The former rights of the parties are discharged by an accord and satisfaction. The accord is the agreement to submit disputes to arbitration; the satisfaction is the making of an award in fulfilment of the agreement to arbitrate.

(Citations omitted).

6    These proceedings, in which those principles are asserted to be relevant, were commenced on 23 April 2018 by an originating application in which Mr Vassallo alleged he had been dismissed in contravention of a general protection right as provided for by the Fair Work Act 2009 (Cth) (Fair Work Act). A statement of claim was filed on 28 May 2018.

7    In addition to his adverse action claim, and as a particular of the measure of damages claimed, the Applicant also alleged that having regard to the terms of the Electrical, Electronic and Communications Contracting Award 2010 (EECCA) he had been underpaid for the work he had undertaken. He alleged he had been paid by the Respondent as an Electrical Worker Grade 4 for the work he had undertaken when pursuant to the EECCA he had been entitled to have been paid at a higher rate as an Electrical Worker Grade 10, or alternatively, as an Electrical Worker Grade 7, 6, or 5.

8    The Respondent contends that Mr Vassallo is estopped from advancing those propositions having regard to the fact that such claims are inconsistent with the outcome of an arbitration (Jeffrey Vassallo v Easitag Pty Ltd T/A Easitag [2017] FWC 5961: confirmed in Jeffrey Vassallo v Easitag Pty Ltd [2018] FWCFB 501) in which that question was, it submits, finally resolved adversely to him.

9    The parties were agreed that that question was appropriate to be heard and determined as a separate issue. Accordingly, I made orders that the following question be tried in advance of the other matters required to be determined in these proceedings:

Do the decisions of the Fair Work Commission in proceedings C2017/227 (Decision of Commissioner Cirkovic in Jeffery Vassallo v Easitag Pty Ltd T/A Easitag [2017] FWC 5961) and C2017/6484 (Decision of the Full Bench in Jeffery Vassallo v Easitag Pty Ltd [2018] FWCFB 501) extinguish the justiciable controversy between the Applicant and the Respondent with respect to the classification of the Applicant as a level 4,5,6,7 and/or 10 under the Electrical Electronic and Communications Contracting Award 2010 (the EECCA) or National Electrical, Electronic and Communications Contracting Industry Award 1998 (the NEECA) while employed by the Respondent between 23 April 2008 and 26 January 2018?

10    The Court listed that separate question for trial and heard submissions on that question on 16 June 2020.

11    For the purpose of determining the separate question, the Court received into evidence an agreed statement of facts as follows:

B.     Employment of Applicant

2.    The Respondent is the manufacturer and supplier of loss prevention or theft reduction systems and security accessories, tags and labels for use in the retail sector.

3.    The Applicant was employed by the Respondent in the position of Installation and Services Technician (Position).

4.    The employee was employed pursuant to a letter of appointment dated 23 April 2008, which included a job specification for the Position.

5.    The Applicant commenced employment with the Respondent in the Position on 6 May 2008.

6.    The Applicant ceased employment with the Respondent in the Position on 26 January 2018.

7.    The Respondent asserts that the termination of the Applicant was by reason of genuine redundancy.

8.    The Applicant disputes that termination by the Respondent was because of genuine redundancy. This issue forms part of the subject matter of these proceedings.

9.    For the employment period between 6 May 2008 to 31 December 2009, the Applicant was covered by the National Electrical, Electronic and Communications Contracting Industry 1998 (NEECA).

10.    For the employment period of 1 January 2010 to 26 January 2018, the Applicant was covered by Electrical Electronic and Communications Contracting Award 2010 (EECCA).

C.    The NEECA

11.    Clause 14.2.1 of the NEECA provided:

14.2    Classification/reclassification

In order to assist in the classification or reclassification of employees, the following shall apply:

14.2.1    Where the employee has the relevant qualification recognised as a minimum training requirement for the level at which the employee seeks to be classified and;

•    the employee is exercising or will be required to exercise the skills and knowledge gained from the qualification necessary for that level of work.

     The employee shall be classified appropriately.

12.    Clause 15.3 of the NEECA provided:

15.3    Electrical Worker Grade 3 – 90% of base rate

15.3.1    An Electrical Worker Grade 3 is an employee who works under direction, may be required to perform the work of an electrical worker Grade 2; and

15.3.2    Without limiting the scope of the work the employee may perform the work described below to the level of the employee’s training: […]

15.3.2(c) Inspects and test fire alarm or security alarm equipment or;

15.3.3    Under the supervision of a tradesperson or electronics serviceperson: […]

15.3.3 (b) Installs fire alarm or security alarm equipment;

15.3.4    Provided that this person shall not undertake tasks requiring the skills of a tradesperson.

13.    Clause 15.4 of the NEECA provided:

15.4     Electrical Worker Grade 4 -95% of base rate

An Electrical Worker Grade 4 is an employee who:

15.4.1    Has worked for not less than one year in the industry or holds the equivalent experience and without limiting the scope of the work and to the level of the employee’s training is an employee is accredited to perform: […]

15.4.1 (c) Has worked not less than one year as an electrical worker grade 3 or has the equivalent experience in the installation of electronics equipment and who, under the minimum supervision of the tradesperson or electronics salesperson; […]

15.4.1(c)(ii) installs fire alarm or security alarm equipment; or […]

15.4.1(c)(iv) inspects and tests fire alarms and security alarm equipment involving a range of responsibility beyond that of a Grade 3 Electrical Worker and works without assistance and supervision; or […]

15.4.2    Provided that this person shall not undertake tasks requiring the skills of a tradesperson.

D.    The EECCA

14.    Clause B.1 in Schedule B of the EECCA states:

B.1    Classification/reclassification

B.1.1 In order to assist in the classification or reclassification of employees, the following will apply:

(a)    where the employee has a relevant qualification required as a minimum training requirement for the level at which the employee seeks to be classified; and

(b)    the employee is exercising or will be required to exercise the skills and knowledge gained from the qualification necessary for that level of work;

   (c)    the employee must be classified appropriately.

15.    Clause B.2.4 of Schedule B of the EECCA states:

B.2.4    Electrical worker grade 4

(a)    An Electrical worker grade 4 is an employee who: […]

(ii)    has worked for not less than one year as an Electrical worker grade 3 or has the equivalent experience in the installation of electronics equipment and who, under the minimum supervision of a tradesperson or electronics salesperson: […]

•    Installs fire alarm or security alarm security; or […]

•    Inspects and tests fire alarms or security alarm equipment involving a range of responsibility beyond that of an Electrical worker grade 3 and works without assistance or supervision; or […]

(b)    Provided that this person must not undertake tasks requiring the skills of a tradesperson.    

16.    Clause B.2.5 of Schedule B of the EECCA states:

B.2.5     Electrical worker grade 5

(a)    An Electrical worker grade 5 is employed to use the skills acquired through the training specified below and is an employee who:

(i)    holds a trade certificate or tradesperson’s right certificate, in an electrical trade; or

(ii)    holds an AQF Certificate Level 3 in Electrotechnology in one of the following;

•    systems electrician;

•    assembly and servicing; or

(iii)    has successfully completed an appropriate trade course or who has otherwise reached an equivalent standard of skills and knowledge in communications/electronics; or

(iv)    holds an AQF Certificate Level 3 in Electrotechnology in one of the following:

•    building services;

•    communications;

•    computer systems;

•    data communications;

•    entertainment and servicing; or

•    scanning; or

(v)    has successfully completed an appropriate instrumentation trade course; or an AQF Certificate Level 3 in Electrotechnology Instrumentation; or

(vi)    holds an appropriate electrical/refrigeration/air-conditioning trade certificate; or an AQF Certificate in Electrotechnology Refrigeration and Air-conditioning; or

(vii)    has successfully completed an appropriate trade course in linework or cable jointing, or an AQF Certificate Level 3 in Transmission Powerline or ESI Distribution Powerline, or has otherwise reached an equivalent standard of skills and knowledge.

(b)    Included in this grade is the work of:

•    Electrical tradesperson level 1;

•    Electronic/communications serviceperson level 1;

•    Instrument tradesperson level 1;

•    Refrigeration/air-conditioning tradesperson level 1;

•    Linesperson/cable jointer level 1; and

•    Electrical tradesperson powerline level 1 (SA only).

17.    Clause B.2.6 of Schedule B of the EECCA states:

B.2.6    Electrical worker grade 6

(a)    An Electrical Worker grade 6 is an Electrical worker grade 5 who in addition has:

(i)    successfully completed three appropriate training modules or 33% of the qualification specified for grade 7 or equivalent; or

(ii)    equivalent structured in-house training relevant to the employer’s business or enterprise as agreed between the parties to the award; and

(iii)     acquired an equivalent standard of skills as defined in B.2.6(a)(j) through other means including a minimum of one year’s experience as an Electrical Worker grade 5; or

(iv)    is employed to use the skills acquired through the training or experience specified.

(b)    Included in this grade is the work of:

•    Electrical tradesperson level 2;

•    Electronic/communications serviceperson level 2;

•    Instrument tradesperson level 2;

•    Refrigeration/air-conditioning tradesperson level 2;

•    Linesperson/cable jointer level 2; and

•    Electrical tradesperson powerline level 2 (SA only).

18.    Clause B.2.7 of Schedule B of the EECCA states:

B.2.7    Electrical worker grade 7

(a)    An Electrical worker grade 7 is an Electrical worker grade 5 who:

(i)    Has successfully completed a Post Trade Certificate or nine appropriate modules towards an Advanced Certificate or AQF Diploma in Ecotechnology; or their equivalent; or

(ii)    Has successfully completed an AQF Certificate Level IV in Electrotechnology; or

(iii)    Has acquired the same standard of skills through other means including a minimum of two years’ experience in the industry; and

(iv)    Is employed to use the skills acquired through the training and/or experience specified.

(b)    Included in this grade is the work of:

•    Electrical special class;

•    Electronic/communications serviceperson special class;

•    Instrument tradesperson special class refrigeration/air-conditioning tradesperson special class;

•    Linesperson/cable jointer special class; and

•    Electrical tradesperson powerline special class (SA only).

19.    Clause B.2.10 of Schedule B of the EECCA states:

B.2.10    Electrical worker grade 10

(a)    An Electrical worker grade 10 is an Electrical worker grade 5 who has successfully completed:

(i)    an appropriate Associate Diploma; or

      (ii)    an AQF Advanced Diploma; or

      (iii)    their formal equivalent; and

(iv)    is employed to use the skills acquired through the training and/or experience specified.

(b)    Included in this grade is the work of:

•    Advanced electrical tradesperson level 3;

•    Advanced electronic serviceperson level 3;

•    Advanced instrument tradesperson level 3;

•    Advanced refrigeration/air-conditioning tradesperson level 3; and

•    Advanced electrical tradesperson powerline level 3 (SA only).

E.    Jeffrey Vassallo v Easitag Pty Ltd T/A Easitag [2017] FWC 5961 (FWC Proceedings)

20.    On 17 January 2017, the Applicant initiated an application to the Fair Work Commission pursuant to section 739 of the Fair Work Act 2009 (Cth) (Act).

21.    Clause 9 of the EECCA Award contains a dispute resolution provision, which the parties to a dispute about a matter under the Award may refer a dispute to the Commission.

22.    Pursuant to orders made by Commissioner Cirkovic on 24 March 2017, the Applicant and the Respondent filed and served a consent position on 12 April 2017 as to the scope of the matters to arbitrate in the FWC Proceedings (Consent Position).

23.    In the FWC Proceedings, the Applicant asserted that he undertook and completed an Avionics Electronics (Aircraft) Electrical Technician) course from RMIT from 1976 to 1978 (Diploma)

24.    In the FWC Proceedings, the Applicant asserted that between 1976 to 1980 he was employed as an Apprentice with Trans Australian Airlines, whereby he undertook an apprenticeship in conjunction with his academic studies (Apprenticeship)

25.    In the FWC Proceedings, Commissioner Cirkovic found that the Applicant failed to produce satisfactory evidence of having completed the Apprenticeship, the Diploma or its equivalent.

26.    In the FWC Proceedings, Commissioner Cirkovic found that the Applicant’s Position did not require the exercise of the Diploma.

27.    In the FWC Proceedings, Commissioner Cirkovic did not accept that the Applicant worked without supervision.

F.    Jeffrey Vassallo v Easitag Pty Ltd [2018] FWCFB 501 (FWCFB Proceedings)

28.    On 24 November 2017, the Applicant initiated an application to appeal the decision of the FWC proceedings pursuant to section 604 of the Act.

29.    In the FWCFB Proceedings, the Full Bench did not identify error in the decision of Commissioner Cirkovic in the FWC Proceedings and refused to grant the Applicant permission to appeal.

(Footnotes omitted).

12    The Court also was referred to and took into account an agreed list of documents as follows:

A.    Awards

1.    National Electrical, Electronic and Communications Contracting Industry Award 1998. A copy of this award is attached and marked Annexure A (pages 3-184).

2.    Electrical Electronic and Communications Contracting Award 2010. A copy of this award is attached and marked Annexure B (pages 185-269)

B.    Fair Work Commission proceedings no. C201/227 (Decision of Commissioner Cirkovic in Jeffrey Vassallo v Easitag Pty Ltd T/A Easitag [2017] FWC 5961) (FWC Proceedings)

3.    Consent position dated 12 April 2017 filed pursuant to orders made by Commissioner Cirkovic on 24 March 2017 in the FWC Proceedings. A copy of this consent position is attached and marked Annexure C (page 270).

4.    DTI Transcript of the FWC Proceedings on 7 June 2017. A copy of this transcript is attached and marked Annexure D (pages 271-353)

5.    Jeffery Vassallo v Easitag Pty Ltd T/A Easitag [2017] FWC 5961. A copy of this decision is attached and marked Annexure E (pages 354-377)

C.    Fair Work Commission (Full Bench) proceedings no. C2017/6484 (Decision of the Full Bench in Jeffrey Vassallo v Easitag Pty Ltd [2018] FWCFB 501 (FWCFB Proceedings)

6.    EPQI Transcript of the FWCFB Proceedings on 22 January 2018. A copy of this transcript is attached and marked Annexure F (pages 378-416).

7.    Jeffery Vassallo v Easitag Pty Ltd [2018] FWCFB 501. A copy of this decision is attached and marked Annexure G (pages 417-424).

13    The parties shared common ground as to the legal nature of the arbitration that was conducted. They accept that while the Fair Work Commission (FWC) was empowered by the Fair Work Act to arbitrate the dispute given the dispute resolution provision in the EECCA, their submission to that process was voluntary. That is consistent with the terms of s 739 of the Fair Work Act which provides, inter-alia:

(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.

14    On behalf of the Applicant his counsel, Mr Burt, crystallised the limited scope of what is in dispute between the parties in respect of the separate question as follows:

9.    Further, the Applicant does not cavil with the proposition forwarded by the Respondent that where parties voluntarily enter into an arbitral process, the determination is final and binding upon them. Where a decision is reached, that arbitral process having been entered willingly by the participants does act to extinguish the original right of action and substitutes it with new obligations on the parties. It is the case therefore that “by submitting the claims to arbitration, the parties confer upon the arbitrator an authority conclusively to determine them”.

10.     However, the Applicant says that the FWC did not determine the same question as that raised before this Court. The FWC was asked, by way of a consent position determined jointly by the parties, to determine whether the Applicant was a Grade 4 under the Award or a Grade 10. The FWC was effectively asked to choose between one of these two options.

(Footnote omitted).

15    That invites attention first to the terms of the consent to arbitrate which the parties filed in the FWC on 12 April 2017. Their consent was in the following terms:

Consent Position of the Parties

Direction & Consent Submissions

1.    The Fair Work Commission has directed the parties to file and serve a consent position to the Fair Work Commission (the “Commission”) as to the scope of the matters to arbitrate in this proceeding.

2.    The parties agree that the Applicant was initially employed pursuant to the National Electrical, Electronic and Communications Contracting Industry Award 1998 (NEECCA) which then transitioned into the Electrical, Electronic and Communications Contracting Award 2010 (the “EECCA Award”).

3.    The parties further agree that the Applicant contends that he is entitled to a Grade 10 classification under the EECCA Award at Clause 16.2 to which the Respondent disagrees and that this is an issue in dispute.

4.    The parties further agree that the Respondent contends that the Applicant is entitled to a Grade 4 classification under the EECCA Award at Clause 16.2 to which the Applicant disagrees and that this is an issue in dispute.

16    Mr Burt submits the arbitrator plainly understood what was in issue to have been so limited. That appears to be uncontentious. In her reasons for decision, under the heading “Issue in Dispute” Commissioner Cirkovic noted:

Issue in Dispute

[9]    There were various submissions made by the parties early on in this matter as to what the issues in dispute were between them and, for that matter, what questions they were asking the Commission to arbitrate. The parties agreed the dispute between them as follows:

•    The Applicant’s contention that he is entitled to a Grade 10 classification under the Award;

•    The Respondent’s contention that the Applicant is entitled to a Grade 4 classification under the Award.

[10]    At the hearing, the Applicant confirmed the Relief he was seeking as follows:

•    An Order that classified his employment as that of a Grade 10 worker under clause 16.2 of the EECCA Award from the date that the Act commenced being 7 April 2009.

•    In the alternative, an Order that he is entitled to a Grade 10 classification from the date that the EECCA Award replaced the NEECCA Award that being 1 January 2010.

[11]    Given the above, what I need to determine is whether the Applicant’s role, falls within that of the Grade 10 worker classification, as contended by the Applicant or, the Grade 4 worker classification as contended by the Respondent.

(Footnotes omitted).

17    At the hearing Mr Burt conceded that, having regard what he advanced on the Respondent’s behalf as the correct legal principles, the decision of the FWC dismissing his contention (as was sustained after review by a Full Bench of the FWC) created a cause of action estoppel preventing Mr Vassallo from re-agitating the proposition that he had been an Electrical Worker Grade 10. He sought and obtained instructions to abandon that contention.

18    On the Applicant’s behalf Mr Burt submits however that properly understood, the arbitration did not determine that he was an Electrical Worker Grade 4. It decided only that as between the options of his being an Electrical Worker Grade 4 and an Electrical Worker Grade 10 the former was the more appropriate classification. It left open the possibility that he might be an Electrical Worker Grade 5, 6 or 7.

19    To that submission the Respondent retorts that the arbitration plainly and finally decided that Mr Vassallo was properly classified under the award as an Electrical Worker Grade 4. On the Respondent’s behalf Ms Bingham submits that no other conclusion can be reached having regard to the arbitrator’s considered reasons in the FWC as follows:

[42]    Irrespective of the above, the Applicant’s position does not, on the evidence before me require the exercise of a qualification of the kind the Applicant claims to have acquired. In coming to this conclusion, I have taken into account those aspects of the evidence where the parties are in dispute. Where it has been necessary to accept the evidence of one party over the other, I have accepted the evidence of Mr Debney, whose evidence I found to be sound and reliable.

[43]    In particular I was persuaded by Mr Debney’s account in respect of his description of the purpose for which the Applicant was employed and the nature of the work and the duties required to be performed in that role. The evidence of Mr Debney that goes to the core elements of the role, together with the uncontested evidence (referred to below) reinforced my view that the Applicant’s role aligned to that of an Electrical Worker Grade 4 in the Award. I have had particular regard to the evidence that:

•    in performing the role, the position requires installation of low voltage electrical sensors equipped with antennae which are plugged in to 240v power points and then by way of transformer and cabling are reduced in power to 12v, 18v or 24v, the system also requires the installation of a security label de-activator (again low voltage);

•    the system utilised by the Applicant in the performance of his role requires tuning, normally through the use of a laptop with a diagnostic programme and occasionally, the cutting of a channel for cabling in circumstances where no such cable placement has been provided for. Training is related to the operation of the system, by its retail staff;

•    in the majority of installations that the Applicant has undertaken, the Applicant has utilised ‘pulse technology’. In ‘layman’s terms’ pulse technology requires a connection to the Applicant’s laptop. Once the Applicant is connected to a laptop, the Applicant has a series of drop down boxes with three to four options; the Applicant then goes through and selects the right one in order to tune the system in the current conditions. The software is provided by the Respondent.

•    that, in the case of complex circuitry, the Applicant conceded it was the Respondent’s policy that if a component of the circuit board is beyond repair, he does not engage in repair of the circuit board; and in the cases where a circuit board is faulty and needing replacement, the circuit board is returned to Brisbane head office;

•    at all times, the Applicant had immediate access to his superior, The National Technical Service Manager in Brisbane;

•    that the work undertaken by the Applicant, requires that he strictly adhere to detailed SOP’s of the Respondent..

[44]    Given the issue in dispute between the parties, it has not been necessary to make factual findings in relation a number of the Applicant’s other contentions including that he was ostracised, not paid over Award, did not receive feedback or salary reviews and did not enjoy flexible working hours, as those matters are not relevant to the issue in dispute before me.

[45]    I accept the Applicant’s proposition for at least 9 years he was the sole employee in Victoria. Having said that, I do not accept the Applicant’s assertions that he performed the role without supervision.

[46]    In Transport Workers’ Union of Australia v Toll Dnata Airport Services [2012] FWA 5605 Sams DP was considering the meaning of the phrase “without immediate supervision” in the context of ramp staff at an airport where their supervisors were some kilometres away from the actual work.

[47]    The Deputy President found:

“[54]    The Macquarie Dictionary defines ‘immediate’ as:

‘4.    Having no object or space intervening; nearest or next: in the immediate vicinity’; It defines ‘supervise’ as: ‘to oversee (a process, work, workers etc) during execution or performance; superintend; have the oversight and direction of.’

[55]    Given the above definitions, it does seem to me to be very difficult to sustain an argument that employees who are located 3-4 km from their direct supervisors, are within the immediate vicinity of the persons who are overseeing them. Thus, while the adjective ‘immediate’ might not strictly apply to the waste and water work here in dispute, the word must be read in conjunction with ‘supervision’. When viewed in this light, the force of Mr Magee’s argument as to the actual nature of the supervision, becomes obvious. There can be no doubt that, for all practical purposes, the waste and water employees are under the oversight and direction of the Ramp Supervisors. Any problems, such as changed bay allocation or other directions from Virgin’s operations, are not decisions undertaken independently by the employees themselves in the course of their duties; rather they follow the directions of others in the performance of these duties. In my view, this is a fundamental difference to working ‘without immediate supervision’. In any event, I am bound to follow the agreement interpretation principles (referred to earlier) which require the Tribunal to consider the words in their context, and not in isolation. In doing so, I am unable to agree with the Union’s strict literal approach to the interpretation of the words, ‘without immediate supervision’ as applying to the work in dispute.”

[48]    The relevant expressions in Electrical Worker Grade 4 in the Award is one who works, under “the minimum supervision of a tradesperson or electronic serviceperson”. In my judgment, whilst there may indeed be some increase in the level of practical responsibility when there is no employee on site, it does not mean that all care and responsibility for decisions are required to be made by the relevant worker. That being said, I do not accept the Applicant’s assertion that he worked with “nil” supervision and as such the role he performed fell outside the scope of Electrical Worker Grade 4 in the Award.

[49]    In summary, when all the evidence regarding the functions and responsibilities of the role of Victorian technician have been considered and assessed against the relevant terms of the Award the answer to the issue in dispute between the parties is that the correct classification of the Applicant’s position is Electrical Worker Grade 4.

(Footnotes omitted).

20    Ms Bingham acknowledges that Mr Vassallo then exercised his right to have that decision reviewed by a Full Bench of the FWC. However, she submits that the award made in the arbitration in the FWC (the FWC Proceedings) was maintained. She cites in support of that submission the findings of the Full Bench (in the FWCFB Proceedings) at [31]-[32], which were as follows:

[31]    The Commissioner’s approach to the interpretation of the Award was correct. She determined the dispute referred to her under the disputes procedure in the Award, in accordance with that term and within the scope of the parties’ consent to arbitration. We do not identify any error on the part of the Commissioner in the conduct of the proceeding or her analysis and determination of the dispute before her.

Disposition of the appeal

[32]    As we have not identified any error in the Decision, we are not persuaded on public interest grounds or otherwise to grant permission to appeal.

21    Mr Burt however draws the Court’s attention to, and in effect adopts, the observations that were made by the Full Bench in the FWCFB Proceedings which preceded that conclusion:

[29]    We perceive there to be some merit in Mr Vassallo’s argument that the grade 4 classification is not entirely in keeping with the standard of work he performs. However, the question that the parties asked the Commissioner to determine in their consent position document was whether Mr Vassallo should be classified as grade 4 or grade 10. She was not asked to consider whether any other classification might be applicable. This fact has jurisdictional significance. Section s.739(1) applies only if a term referred to in s.738 (including a term in an award) ‘requires or allows’ the Commission to deal with a dispute. Section 739(4) states that if, in accordance with the term the parties have agreed that the Commission may arbitrate, it may do so. The Commissioner’s authority to arbitrate the dispute derived from the consent of the parties. As noted above, the Award states that the parties may agree to consent arbitration. The Commissioner carefully confirmed with the parties the scope of their consent: they referred to her the question of whether Mr Vassallo was a grade 4 or a grade 10.

[30]    Had the dispute been more broadly framed, it would have been open to the Commission to consider whether other classifications might more appropriately cover Mr Vassallo’s employment. In this connection, we note that grade 5 covers an employee who has ‘successfully completed an appropriate trade course or who has otherwise reached an equivalent standard of skills and knowledge in communications / electronics’ (emphasis added).

(Footnote omitted).

22    Mr Burt submits that as a result (subject to Mr Vassallo’s concession that he cannot re-agitate the proposition that he should have been paid as an Electrical Worker Grade 10) the Applicant is not estopped from pursuing in this Court the issue of whether he was entitled to be remunerated as an Electrical Worker Grade 5, 6 or 7. In summary:

The Applicant contends that … this Court would be determining a different question to that answered by the FWC in respect to the classification of the Applicant under the Award. As a result of it being a different question, framed in a different way, with classification options open to this Court that were previously unavailable to the FWC, the Applicant is not estopped, nor is there a risk of abuse of process.

Consideration

23    In my view, the resolution of the separate issue turns on a question of fact.

24    I regret, given that Mr Vassallo may well have been misled by the (no doubt well intentioned) observations of the Full Bench into pursuing this aspect of these proceedings, that I am unpersuaded that the arbitration in the FWC Proceedings from which leave to appeal was refused in the FWCFB Proceedings did not finally and conclusively determine that the Applicant was an Electrical Worker Grade 4.

25    Whether or not Mr Vassallo was properly to be characterised as an Electrical Worker Grade 4 within the meaning of the EECCA was self-evidently a question within the scope of the parties’ agreed submission to arbitration in the FWC.

26    I reject Mr Burt’s submission that had the arbitrator concluded that Mr Vassallo was neither an Electrical Worker Grade 4 nor an Electrical Worker Grade 10, the arbitrator would have had to make a best fit election as between those two options. That cannot be correct. In determining the issues submitted to it for arbitration (as the Commissioner accurately stated them), the Commissioner may have been conducting an arbitration that had been voluntarily submitted to in the terms agreed to by the parties. In doing so however, the FWC was required to apply the EECCA. The parties each made submissions for their preferred conclusion. However, had the Commissioner concluded that neither of the gradings contended for by the parties was the Applicant’s correct classification, then it would have been open to her to have so determined. Indeed, it would have been her duty to do so. I note however that without an adjustment to the terms of the parties’ mutual submission to the arbitration, it must be accepted that she could not have proceeded to make a binding and final determination that the Applicant was entitled to be classified at a different level.

27    Yet in the actual event, all of that is academic. That was not what happened. The result of the arbitration was that the arbitrator found that the correct classification of Mr Vassallo’s position was Electrical Worker Grade 4. The Commissioner expressly concluded:

[49]    In summary, when all the evidence regarding the functions and responsibilities of the role of Victorian technician have been considered and assessed against the relevant terms of the Award the answer to the issue in dispute between the parties is that the correct classification of the Applicant’s position is Electrical Worker Grade 4.

28    Permission to appeal having been refused by the Full Bench, the outcome of the arbitration created a cause of action estoppel. Consistently with the principles articulated in Guba and TCL the Respondent was entitled, there being nothing asserted by the Applicant as to a relevant change of circumstances, to plead that estoppel to prevent the same question being re-agitated in these proceedings. In my view the Respondent is correct that permitting the same issue to be revisited is impermissible for the reasons the Chief Justice identified in Guba. The doctrine as reaffirmed in TCL exists to prevent the same issue being re-agitated in a court once finally determined in an arbitration.

29    For completeness, lest I be in error in my principal conclusion, I should record that had I not been satisfied to the requisite degree that the arbitrator did make an actual finding that the correct classification of the Applicant was Electrical Worker Grade 4, I would have concluded that there was no abuse of process in Mr Vassallo seeking to have this Court determine whether his correct classification was Electrical Worker Grade 5,6, or 7.

30    In my view had the arbitration not expressly so concluded, no issue of a wider Henderson ((1843) 3 Hare 100; 67 ER 313) or Anshun ([1981] FCA 45; 147 CLR 589) estoppel would have prevented that course. The burden of establishing that the Applicant would have been entitled to, but unreasonably had refrained from, putting those questions in issue would have been on the Respondent. Where a submission to arbitration requires a mutual rather than a unilateral act, it cannot be inferred from the mere absence of a submission that the failure to raise a particular issue for determination was the responsibility of the other party. The Respondent led no evidence, and none appears in the materials, that would enable the Court to conclude that it was Mr Vassallo who had insisted that no reference to any intermediate classifications would be included in their mutual submission to arbitration in the FWC.

Costs

31    At the conclusion of the hearing, I asked counsel for the parties whether they could resist an order for costs on the usual basis should the separate question be determined adversely to the party they represented. Neither submitted otherwise.

32    However, the parties were perhaps without notice. I further note that in Schroder-Turk v Murdoch University (No 2) [2019] FCA 1434, which concerned an application for costs of an interlocutory application in proceedings including some Fair Work Act and some non-Fair Work Act claims, Jackson J observed at paragraph [4] that “the restriction on costs orders in s 570(1) applies to the proceedings as a whole, even though they involve a number of separate claims”. That observation appears equally apt in this case, particularly given that the separate question would, in any event, have had to be determined as it is relevant to the measure of damages to which Mr Vassallo will be entitled if his general protection claims are made good.

33    For that reason, the Court is presently minded that no award of costs is open to be made. If the Respondent wishes to submit otherwise it should file and serve written submissions of no more than 3 pages in length no later than the expiry of 7 days after the publication of these reasons. The Applicant may file any responsive submissions equally limited in length no later than the expiry of 7 days after any such submissions have been served on it. The Court will then determine that question on the papers.

Associate:

Dated:    23 June 2020