Ausgrid Pty Ltd t/as Ausgrid v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2025] FWCFB 183
•15 AUGUST 2025
| [2025] FWCFB 183 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Ausgrid Pty Ltd t/as Ausgrid
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2025/781)
| VICE PRESIDENT ASBURY | SYDNEY, 15 AUGUST 2025 |
Appeal against decision [2025] FWC 102 of Deputy President Slevin at Sydney on 13 January 2025 in matter number C2024/3892 – Dispute referred to Commission under enterprise agreement – Deputy President determined Field Supervisor Plus ES role held by two employees should have been reclassified – Whether decision inconsistent with enterprise agreement for the purposes of s 739(5) of the Fair Work Act 2009 (Cth) – Powers of the Commission to arbitrate dispute referred to it under the enterprise agreement – Whether Deputy President erroneously took into account fairness and justice – Permission to appeal granted – Appeal dismissed.
Introduction
This appeal arises from a classification dispute. Classification disputes have long been a common feature of the work of industrial tribunals, including in the jurisdiction now exercised by the Commission under s 739 of the Fair Work Act 2009 (Cth) (the Act).[1] In the present case, a dispute was referred to the Commission concerning whether the role of two workers employed by Ausgrid Pty Ltd as Field Supervisors, Nathan Boyd and Kyle Johnson, should be reassigned to Power Worker Band D2 under the Ausgrid Enterprise Agreement 2021 (the Agreement), following a review of the Field Supervisor role they hold which is designated as Power Worker Band D1. A Deputy President of the Commission determined that Mr Boyd and Mr Johnson should be designated as Power Worker Band D2.[2]
Ausgrid says that the Deputy President exceeded the powers of the Commission to arbitrate the dispute and seeks permission to appeal and to appeal from the decision. The notice of appeal contains two grounds of appeal. The first ground is that the order made by the Deputy President is inconsistent with the Agreement and is, for that reason, outside the jurisdiction of the Commission by reason of s 739(5) of the Act. The second is that the Deputy President erred by relying on ss 577 and 578 of the Act as a basis to order the reclassification of the two workers who are the subject of this dispute.
For the reasons that follow, permission to appeal should be granted but the appeal should be dismissed. We do not consider that the decision of the Deputy President is inconsistent with the Agreement for the purposes of s 739(5) of the Act or that, when his reasons are properly understood, the Deputy President relied upon ss 577 or 578 of the Act as providing an independent basis upon which to determine that the positions held by Mr Boyd and Mr Johnson should be reclassified.
The Agreement
With certain exclusions that are not presently relevant, the Agreement is expressed to cover current and future employees of Ausgrid employed in the classifications listed in this Agreement at Appendix 1A or the bands in Appendix 4. Clause 13 deals with classifications and advancement and provides:
13. CLASSIFICATIONS AND ADVANCEMENT
Appendix 4 Career, Capability and Remuneration of this Agreement sets out employees’ classification structure and advancement, including training.
Appendix 4 is entitled “Career, Capability and Remuneration Framework”. Leaving aside professional, managerial and specialist employees, apprentices, trainees and cadets and transitional employees, Appendix 4 applies to all employees covered by the Agreement and provides for a broad-banded pay structure. Clause 1 of Appendix 4 provides an overview of the Appendix and, in clause 1.1, notes:
1.1. The CCR Framework is a broad-banded pay structure, as set out in Clause 5 of this Appendix. Work Level Standards provide a framework to differentiate Positions (grouped into Bands) based on the complexity of work undertaken by employees. Streams set out the nature of work undertaken by employees and each Band is divided into Levels.
Clause 3 of Appendix 4 contains a number of relevant definitions. Clause 3.1 defines a “Band” by reference to the complexity of the work involved as set out in the Work Level Standards as follows:
3.1. Band refers to a grouping of employees by complexity of work as detailed in the Work Level Standards.
The term “Position” is defined in clause 3.9 of Appendix 4 as follows:
3.9. Position refers to the appointment of an employee with an associated rate of pay by reference to a specific Stream and Band. Employees are appointed to a position and assigned to a role. The position is noted as a combination of the Stream and Band e.g. Power Worker Band B2.
The expressions “Role”, “Stream” and “Work Level Standards” are then defined in clauses 3.13 to 3.15 of Appendix 4 as follows:
3.13. Role refers to the scope of work undertaken in a Position. There may be one or many Roles within a Position. Employees are assigned to a role within their appointed position. The role is noted as per the Role Statement e.g. Lineworker.
3.14. Stream refers to a grouping of employees defined by the nature of the work performed.
3.15. Work Level Standards refers to a set of descriptors that enable the consistent classification of Positions, differentiating the increasing complexity of the work from lower to higher Bands. The Work Level Standards are contained in the Work Level Standards Policy, and are not incorporated into this Agreement.
Although the terms are used differently in the Work Level Standards, the Deputy President and the parties used the terms reclassification, reassignment and designation somewhat interchangeably.
Clause 5 of Appendix 4 is entitled “Operative Provisions”. Clauses 5.1, 5.2 and 5.3 indicate that positions are classified according to three Streams (being the Power Worker Stream, the Engineering Stream and the Functional Services Stream), that within each Stream there are discrete Bands, differentiated by a set of Work Level Standards and that within each Band there are discrete Levels. Clause 5.4 of Appendix 4 requires that Ausgrid apply the Work Level Standards to appoint employees to a specific Band. The clause provides:
5.4. Ausgrid will apply the Work Level Standards to appoint employees to a specific Band in a Stream, known as their Position.
5.4.1. Ausgrid will designate the Level in a Band at which an employee commences. This will usually be Level 1 however, in exceptional circumstances this may be a higher Level. What constitutes "exceptional circumstances" will be determined by Ausgrid on a case by case basis.
5.4.2. Ausgrid will notify employees of their appointed Stream, Band and designated Level under this Agreement, in writing.
Clause 11 of Appendix 4 is entitled “Progression to a higher Level” and provides a process by which employees can progress as follows:
11.1. Progression to a higher Level in a Band (excluding Band D3, for which there is only one (1) Level) is based on the employee’s Performance Rating.
11.2. An employee will move from Level 1 to Level 2 in their Band only if:
11.2.1. they have completed an annual performance cycle at their existing Level of that Band;
11.2.2. they have the minimum capabilities required of their current Role; and
11.2.3.their Performance Rating at the conclusion of that annual performance cycle following Calibration was "Meets Expectations" or “Exceeds Expectations”.
11.3. An employee will move from Level 2 to Level 3, Level 3 to Level 4, or Level 4 to Level 5 in their Band only if:
11.3.1. they have completed an annual performance cycle at their existing Level of that Band; and
11.3.2. they have the minimum capabilities required capabilities of their current Role; and
11.3.3. their Performance Rating at the conclusion of that annual performance cycle following Calibration was "Exceeds Expectations".
11.4. An employee can only move one Level in any one annual performance review cycle.
11.5. If an employee progresses to a higher Level in a Band, the progression will be effective as at the date of commencement of the next annual performance cycle.
11.6. Promotion from Band A1 to Band A2, from Band A2 to B1, from Band B1 to Band B2, from Band B2 to C1, from Band C1 to Band C2, from Band C2 to D1, from Band D1 to Band D2, from Band D2 to Band D3 will occur via a selection process pursuant to Clause 12 of this Appendix.
Clause 12 of Appendix 4 is entitled “Promotion to a higher Band” and provides as follows:
12.1. Promotion to a higher Band will occur via a selection process (as governed by Ausgrid’s policies as amended from time to time, noting that these policies are not incorporated into this Agreement). The selection will be based on:
12.1.1. merit; or
12.1.2. for eligible Roles (set out in Ausgrid’s policies as amended from time to time, noting that these policies are not incorporated into this Agreement), a streamlined selection process.
12.2. Ausgrid shall determine the number of Positions and Roles required based on Ausgrid’s assessment of its business needs. In assessing its business needs, Ausgrid will consider the capabilities required within various work groups, what skills are needed to complete required tasks, the complexity of work, future work needs, job redesign, productivity improvements and technology changes. As such, promotion to a higher Band will occur if:
12.2.1. there is a Position available at the higher Band as required by Ausgrid as result of this assessment; and
12.2.2. the employee applies for and accepts an offer of appointment to that Position.
12.3. For promotion into Band A2, Band B1, Band B2, Band C1, Band C2, Band D1 and Band D2, Ausgrid will designate which Level in the new Band an employee commences at. This will usually be Level 1 however, in exceptional circumstances, this may be a higher Level. What constitutes "exceptional circumstances" will be determined by Ausgrid on a case by case basis. To be clear, for promotion into Band D3, there is only one (1) level.
The parties agree that the reference to the “Work Level Standards” in the Agreement is a reference to Ausgrid’s Work Level Standards Policy 2018. Although clause 3.15 of Appendix 4 indicates that the Work Level Standards “are not incorporated into this Agreement”, clause 5.4 requires that Ausgrid “will apply the Work Level Standards to appoint employees to a specific Band”. The Work Level Standards Policy provides a definition of work level standards indicating the purpose of the standards as follows:
Work level standards provide a consistent methodology to assess the size and complexity of roles for classification, minimising subjectivity and maximising consistency related to making fair and transparent structural and remuneration decisions. Work level standards describe for PM&S levels:
• Broad task requirements, key duties and responsibilities;
• Knowledge required; and
• Operating context and characteristics.
The principles underlying the Work Level Standards are described as follows:
Ausgrid’s work level standards are guided by the following principles:
• Work level standards will not be developed with the intent of changing pay levels associated with positions (Ausgrid Agreement 2018 Appendix 4, 2.2.3)
• Work level standards describe the typical characteristics of work that is regularly performed;
• The characteristics represent a set of generic standards which apply to all employees in a prescribed Enterprise Agreement band;
• Work level standards describe complexity of work which determines the classification of roles, and is not an exhaustive list of duties or the attributes or skills of an individual employee;
• A role should only be reclassified where a sustained and substantial change in the nature of work alters the level of complexity.
The Work Level Standards then contain, in table form, a detailed description of the characteristics of the work performed within the various bands by reference to subjects such as influence/impact, leading and developing, difficulty, planning focus, direction and general. The “characteristics” of work performed within the bands are described as follows:
Characteristics detailed in the work level standards are:
• Influence/Impact: Level and type of influence both internally and externally, and level of financial and strategic impact the role has on the organisation.
• Leading and Coaching: The depth and scope of knowledge, decision making, and expertise required of the role. Level of coaching provided to others, including technical expertise or professional excellence.
• Complexity: The complexity and diversity of the operating environment.
• Planning Focus: Level and type of planning and goal setting and prioritisation, and associated accountabilities.
• Direction: The nature of interaction, guidance and prioritisation provided by the line manager.
• General: Includes general expectations, specialist skills and typical accreditations and experience of the role.
Finally, clause 41 of the Agreement is entitled “Dispute Settlement Procedure”. The objective of the dispute settlement procedure is described in clause 41.1 and includes, in clause 41.1(e), that the “objective of this DSP is to ensure that disputes relating to the relationship between the employer and employees are dealt with in accordance with this clause”. Clause 41.2 then provides for a staged dispute resolution procedure. Tier 1 provides for disputes to be dealt with initially at a “Local/Regional Level”, Tier 2 provides for escalation to the “Corporate level” and Tier 3 for disputes to be dealt with at the “Tribunal level”. Tier 3 provides as follows:
Tier 3
Tribunal Level
If the issues remain unresolved after Tier 2 the matter may be referred to the FWC for conciliation in the first place then arbitration with the rights of the parties to appeal being reserved.
The process before the FWC must be free from industrial action.
The parties may agree that a person other than the FWC can deal with a dispute in accordance with section 740 of the Fair Work Act 2009. In the absence of such agreement, the dispute will be dealt with by the FWC.
At least as the submissions were developed on appeal, Ausgrid does not contend that the Commission did not have jurisdiction to deal with a dispute as to the classification of a particular position held by an employee. The primary submission advanced by Ausgrid on appeal is that the outcome of the dispute determined by the Deputy President is inconsistent with the Agreement because it departs from the process required by the Appendix 4 and the Work Level Standards Policy.
Factual background
The background to the dispute may be relatively briefly stated. Mr Boyd commenced employment with Ausgrid in 2007. In 2022, he accepted a position as a Field Supervisor with the business known as Plus ES. Mr Boyd had worked as an acting Field Supervisor for 24 months prior to taking up the position with Plus ES. Mr Johnson also commenced employment with Ausgrid in 2007. He commenced as an apprentice and worked as a powerline worker. Mr Johnson acted as a Field Supervisor for Ausgrid for 12 months and was then appointed to the Field Supervisor position with Plus ES at the same time as Mr Boyd.
The Field Supervisor Plus ES positions were new positions in 2022 and were designated as falling within the D1 stream. Plus ES is an entity established by Ausgrid to operate within unregulated areas of the electrical and telecommunication infrastructure industry as a commercially driven enterprise. Ausgrid is itself prohibited from tendering for certain types of work, such as work related to connections to the network, as a result of its monopoly over the maintenance and operation of the distribution network. Plus ES, however, can apply for tenders, allowing it to undertake projects such as installing EV chargers. Most of Plus ES’ work is done by contractors, with some tasks handled by Ausgrid staff seconded to Plus ES, including Mr Boyd and Mr Johnson.
Mr Boyd and Mr Johnson both gave evidence in relation to the nature of the work they perform in the position of Field Supervisor Plus ES. Ausgrid called evidence from its Head of Infrastructure Delivery, Nathan Larkin, and Kathy Spanos, who is employed by Ausgrid in the position of People Partner. Mr Larkin and Ms Spanos also gave evidence in relation to the role and responsibilities of the Field Supervisor Plus ES position and Field Supervisor positions within Ausgrid more generally. The role statements for the Field Supervisor ES position and the Field Supervisor position generally were also in evidence before the Deputy President. Given the grounds of appeal advanced by Ausgrid, it is unnecessary to describe in detail the nature of the work performed by Mr Boyd and Mr Johnson or the work of Field Supervisors within Ausgrid more generally.
The dispute which was ultimately referred to the Commission arose as a result of a review of the Field Supervisor position which was conducted in late 2023 following a request by the CEPU. Ms Spanos described Field Supervisors as a frontline leadership role and indicated that there are around 85 Field Supervisors. Ms Spanos asserted that, as a consequence of the evolving business model and reduced levels of support, Field Supervisors with direct reports took on more responsibility to self-manage these tasks, not only for themselves, but also the team members that they manage. A business case was developed for the review of these roles, including the development of a new role statement and formal job evaluation in which the roles were assessed against the Work Level Standards. The Field Supervisor role was assessed as being classified as a Power Worker Band D2 position.
Ms Spanos gave evidence that, after the review was complete, a decision was made to exclude the positions held by Mr Boyd and Mr Johnson from the outcome. As a result, Mr Boyd and Mr Johnson were not reassigned (or reclassified) from Power Worker Band D1 to Power Worker Band D2. Ms Spanos gave the following evidence:
The amendments made to the role statement recognised the increased people leadership responsibilities. After the evaluation was completed, I was part of the discussion and assessment to determine if the changes made to the role would apply to the roles held by Mr Boyd and Mr Johnson. The assessment determined the changes to the role did not apply to Mr Boyd and Mr Johnson on the basis that they do not have direct reports and as such would not have had the associated increase in supervisory responsibilities.
Mr Larkin also gave evidence in relation to the Field Supervisor review. It appears that Mr Larkin was not directly involved in the review process:
In November 2023 I became aware of a broader organisational review of Field Supervisor positions. The driver of the review was a recognition of the increased demand on Field Supervisor roles in relation to their leadership responsibilities. The review involved the development of a new Field Supervisor role statement was created and evaluated by the People and Culture team, with a new classification of Power Worker Band D2 being the result.
When the review reached an advanced stage I was involved in discussions on how the review would apply within Infrastructure Delivery and the determination of which Field Supervisor positions were or were not aligned to the leadership attributes that the review sought to recognise.
The review was a form of recognition of increased demands on Field Supervisor positions in relation to their formal leadership responsibilities. On that basis, the increase to Power Worker Band D2 only applied to the four Field Supervisor positions within my delivery function because they actually performed duties related to this change. To be clear, these are the four Field Supervisors who have direct employees reporting to them.
As the role’s held by Mr. Boyd and Mr. Johnson do not have supervisory responsibilities and did not perform the work recognised within this review they were not included within the scope of that review and would continue in their Power Worker Band D1 role and would work to their existing role statement.
A consultation process then took place in relation to the exclusion of the role held by Mr Boyd and Mr Johnson from the outcome of the review involving the two employees and the CEPU. As part of the consultation process, a detailed email was sent to Mr Boyd and Mr Johnson by Vishant Nand, Portfolio Manager – Electrical Infrastructure, dated 31 January 2024. The email relevantly stated:
I understand that the outcome of the recent Field Supervisor role review this afternoon has been challenging and I want to express my support as you navigate through this process.
In the review process, It became apparent that the alignment of the new Field Supervisor role was not as strong as initially expected. As a result, a decision was made to align the role with a new statement.
Your submission of the Project Officer D2 role statement was carefully evaluated. It was reviewed against your current accountabilities and against existing roles within Infrastructure Delivery. Regrettably, it was concluded that the responsibilities within your role did not align with the PO D2 role and there was a disparity when comparing it to other similar roles.
Upon conducting a detailed breakdown of roles and responsibilities, it was determined that the EO D1 role closely encompasses the duties and functions of your current position.
Please below a breakdown of current examples of work conducted and how they align to the EO D1 role statement in conjunction with the work level standards.
Mr Nand then provided a detailed analysis of the application of the Work Level Standards to the role performed by Mr Boyd and Mr Johnson to justify the view taken by Ausgrid that the positions properly fall within the D1 Band. The matter was then put in dispute by the CEPU and subject to further consultation between the parties. By letter dated 10 April 2024 addressed to the CEPU, Mr Nand provided a summary of the consultation process and the outcome in the following terms:
As a recap of the consultation process
- Ausgrid proposed that the employees would move to the Engineering Officer D1 role statement and in doing so established the following objectives or interests;oReassign the relevant employees to a role statement that is more reflective of their current accountabilities
oMaintain continuity (at a minimum) of the employees’ current D1 Work Level Standards in the ongoing role that they are assigned to
oEnsure the role statement/classification is aligned to business need.
- Whilst the consultation process focused on feedback, questions and concerns with Ausgrid’s proposal, the prominent theme was to lobby for the employees to transition to a higher, D2 Field Supervisor role statement, which could be characterised as an Alternate Proposal. Ausgrid has broadly declined the proposal, with reasons outlined within the body of consultation materials with the following point being observed.
oThe proposal does not meet the established interests of Consultation that were established from the outset of consultation.
oFundamentally, the employee’s role has not changed and the employees work would involve the continued application of the D1 Work Level Standards
oThe work and activities of the employees are not well represented by those of the Field Supervisor D2 role statement and are a better fit those of the Engineering Officer role statement.
Accordingly, the outcome of consultation has been to support Ausgrid’s initial proposal to reassign employees to the Engineering Officer role statement. Whilst I appreciate that the outcome and final decision may be disappointing, I am satisfied that Ausgrid has made best endeavours to consult with Kyle, Nathan and their representative. With the outcome in mind, the nominal date of role statement reassignment will be 22nd April 2024
Ausgrid had evidently determined that the roles performed by Mr Boyd and Mr Johnson did not align with the application of the D1 Band in the Work Level Standards. Mr Boyd and Mr Johnson, and the CEPU, were not satisfied with the outcome and the dispute was referred to the Commission.
Decision of the Deputy President
In his decision, the Deputy President initially summarised the evidence that was before the Commission and the submissions of the parties. In examining the evidence, the Deputy President conducted a detailed analysis of the role statements of the Field Supervisor Plus ES positions and the Field Supervisor position as follows:[3]
Mr Boyd provided the role statement for the Ausgrid Field Supervisor following the review. The ES Plus Field Supervisor Role Statement was dated 10 May 2022. The Role Statement for Field Supervisors following the review was dated 6 December 2023. The Role Statement after the review reads as an updated role statement with a higher band (D2), a slightly different focus on affordability for customers, with some additional responsibilities and “context dimensions” compared to the Role Statement for the ES Plus role. Specifically, the differences were:
a)Under “Role Purpose” the Plus ES role refers to delivering work that supports the safety, reliability, sustainability, and commerciality of electrical infrastructure opportunities for Plus ES. The Ausgrid document refers to delivering work that supports the safety, reliability, sustainability, and affordability of the network for customers.
b)Under “Context Dimensions”:
i.The ES Plus document refers to “Influence/Impact”: as being multiple interdependent work groups and key stakeholder interaction and issue resolution. The Ausgrid document refers to broad interdependent work groups, key stakeholder engagement, and problem solving.
ii.The ES Plus document under “Leading & Developing” mentions Frontline leadership of work groups and/or technical or functional expertise. The Ausgrid document refers to Frontline leadership of broad or multifunctional work groups and/or technical or functional expertise.
iii.The ES Plus documents identifies under “Difficulty” broad activities with technical or functional challenge and decision making with multiple variables but with support to select options. The Ausgrid document identifies activities with extensive technical or functional challenge and decision making with diverse variables and options.
iv.Under “Planning Focus” the ES Plus document refers to managing objectives or providing input into tactical planning for broader work group. The Ausgrid document identifies local or tactical planning and implementation or providing input into operational planning for broader work group.
v.Under ”Direction” the ES Plus document refers to tactical direction and guidance from mid-level management. The Ausgrid documents refers to operational direction and support from mid-level leader(s).
c)For “Accountabilities” The ES Plus document refers to tasks such as liaising with internal and external stakeholders, coordinating emergency functions, and undertaking relevant audits and inspections. The Ausgrid document refers to similar tasks but adds specific responsibilities such as ensuring electrical work is completed in accordance with relevant ESRs, network standards, Australian Standards, Service & Installation Rules, and technical instructions, as well as conducting regular safety interactions, audits, and inspections to ensure compliance with safety policies and policies and procedures.
d)The Ausgrid document adds the responsibility of managing the work group’s performance against goals and actions with guidance from the Field Manager.
The Deputy President summarised the evidence given by Mr Boyd and Mr Johnson in relation to the nature of the Field Supervisor Plus ES position and the work they performed as well as the evidence given by Ms Spanos and Mr Larkin in relation to the roles.[4]
The Deputy President then addressed the jurisdictional objection advanced by Ausgrid. The Deputy President concluded that clause 41 of the Agreement confers a broad power of arbitration on the Commission. The Deputy President rejected the submission that clause 41 is confined to disputes that arise from the application of a term of the Agreement and, in any event, was satisfied that the dispute did concern the application of the Agreement given that the CEPU’s submission was that Mr Boyd and Mr Johnson’s roles had not been properly classified and paid under the Agreement.[5]
The Deputy President recorded that, in essence, Ausgrid’s response to the dispute was that it was justified in excluding Mr Boyd and Mr Johnson from the reassignment of other Field Supervisors because their roles did not directly supervise other Ausgrid employees and that the CEPU’s submission that the nature of the roles included supervision of contractors and that was sufficient to warrant their designation as Power Worker Band D2, along with the other Field Supervisors, should be rejected. The Deputy President recorded the evidence given in relation to the supervisory duties of Mr Boyd and Mr Johnson and concluded:[6]
The evidence of Mr Boyd and Mr Johson included descriptions of the work they did with contractors. Those descriptions fit comfortably within the descriptors for Band D2. Further, the Role Statements for the ES Plus Field Supervisors and Ausgrid Field Supervisors (issued after the review), which are described above, are in very similar terms. The differences reflect the differences between the work groups but the complexity of the work is very similar. In reaching that finding I rely upon the analysis of the Role Statements set out earlier, without repeating it.
The Deputy President indicated that he could see no basis for excluding the role held by Mr Boyd and Mr Johnson from the reassignment. The Deputy President’s conclusion was stated in the following terms:[7]
I can see no basis for excluding Mr Boyd and Mr Johnson from the reclassification based on the reasons provided. They hold leadership roles in doing so. The evidence demonstrates that they are expected to lead the performance of the contracts they supervise. They act as subject matter experts (SME) in doing so. They pass on corporate communications and results to contractors. The distinction that they do not performance manage employees of Ausgrid does not in my view justify excluding them from the reclassification. It is the nature of the way ES Plus operates that the work that is to be supervised is not done by Ausgrid employees. This does not mean that Mr Boyd and Mr Johnson are not providing the type of leadership that other Field Supervisors are providing. It simply means they are doing it in a different way for workers who are not directly employed by Ausgrid.
The Deputy President found that the fair, just and equitable outcome based on the merits of the dispute is that Mr Boyd and Mr Johnson be reclassified in the same manner as other Field Supervisors subject to the 2023 review on the basis that their roles were substantively the same as those held by other Field Supervisors who had been reassigned to roles designated as Power Worker Band D2 for the purposes of the Agreement.[8]
Permission to appeal
An appeal from a decision of the Commission generally requires permission under s 604 of the Act. However, an appeal from a decision made in arbitration of a dispute under an enterprise agreement’s dispute settlement procedure can modify the requirement for permission to be required for an appeal. Because the Commission is acting as a private arbitrator in accordance with the disputes clause, the clause may remove the requirement for permission to be granted by granting a right of appeal.[9] The dispute settlement procedure in clause 41 of the Agreement sets out that at Tier 3 “the matter may be referred to the FWC for conciliation in the first place then arbitration with the rights of the parties to appeal being reserved.”
Provisions using identical language (including an earlier iteration of the Agreement) have been considered by previous Full Benches although differing conclusions have been reached as to whether permission to appeal is required in such a case. In Arampamoorthy v Ausgrid Management Pty Ltd T/A Ausgrid [2019] FWCFB 689, the Full Bench considered clause 42.2 of the Ausgrid Enterprise Agreement 2018 which was in the same terms as clause 41.2 of the current Agreement and said:[10]
In our view, clause 42.2 of the 2018 Agreement does not confer on the parties to a dispute an independent right to appeal an arbitrated decision made by the Commission. Clause 42.2 makes clear that whatever rights to appeal may exist are reserved. The purpose of the provision is to ensure there is no doubt that one or both parties to a dispute may exercise whatever rights they have to appeal an arbitrated decision of the Commission.
No other provision of the 2018 Agreement deals with the question of an appeal from an arbitrated decision of the Commission pursuant to the dispute settlement procedure in the 2018 Agreement. Accordingly, the question of what rights parties to a dispute may have to appeal an arbitrated decision of the Commission is to be determined by reference to the Act. Section 604 of the Act provides for an appeal by an aggrieved person to the Full Bench of the Commission, but only with the permission of the Full Bench. The Act does not confer on a party a right to appeal a decision of the Commission. An appeal under the Act is conditional on permission to appeal being granted. It follows that Mr Arampamoorthy requires permission to appeal from the Decision, in accordance with s 604(1) of the Act.
In Vendrig v Ausgrid Pty Ltd[2021] FWCFB 370, on the other hand, a Full Bench of the Commission construed clause 42.2 of the Ausgrid Enterprise Agreement 2018 as establishing a right to appeal a decision of the Commission made under clause 42.2, such that permission to appeal is not required.[11] That conclusion was obiter dicta in circumstances in which the Full Bench otherwise concluded that the appellant was unable to rely on the agreement-based right of appeal because she was no longer employed by Ausgrid.
In our view, the conclusion in Arampamoorthy should be preferred. The reference in Tier 3 of clause 41.2 of the Agreement to the rights of the parties to appeal “being reserved” is best understood as a reference to rights of appeal which exist otherwise than as conferred by the Agreement. The right of appeal which otherwise exists is that found in s 604(1) of the Act and is subject to a requirement to obtain permission to appeal. We agree with the observation of the Full Bench in Arampamoorthy that the purpose of the provision is to ensure there is no doubt that one or both parties to a dispute may exercise whatever rights they may have to appeal an arbitrated decision of the Commission rather than to confer an independent right of appeal unconstrained by a requirement to seek permission to appeal.
Section 604(2) requires that permission to appeal must be granted if the Commission is satisfied it is in the public interest to do so. The Commission otherwise has a broad discretion as to whether to grant permission to appeal. We are satisfied that permission to appeal should be granted in this matter. The grounds of appeal raise issues of general application in relation to the scope of the Commission’s powers when dealing with a dispute under s 739 of the Act generally, and the operation of s 739(5) in particular. It is appropriate that those issues be considered by the Full Bench. The operation of the classification structure in the Agreement is also of significance to Ausgrid and its employees in addition to the importance of the issue for the two staff members who are the subject of this dispute.
Grounds of appeal
Ausgrid advances two grounds of appeal: first, that the order of the Deputy President is inconsistent with the Agreement and, for that reason, outside the jurisdiction of the Commission by reason of s 739(5) of the Act; and, second, that the Deputy President erred by relying on ss 577 and 578 as a basis to order the reassignment or reclassification of the roles held by Mr Boyd and Mr Johnson. We will deal with the two grounds in turn.
It is appropriate to record what Ausgrid does not contend on the appeal. Ausgrid does not dispute that the Deputy President had jurisdiction to deal with the dispute referred to the Commission by the CEPU. Its grounds concern the power of the Deputy President to determine the correct classification of Mr Boyd and Mr Johnson’s positions in arbitration of the dispute. It says to do so is inconsistent with the Agreement in the circumstances of this matter. Ausgrid’s grounds of appeal also do not contend that, if the Deputy President did have power to determine the correct classification of the positions held by Mr Boyd and Mr Johnson, his decision that the appropriate classification was Band D2 was wrong. No ground attacks the merits of the Deputy President’s decision.
We note the order made by the Deputy President referred to the two individuals by name and required that they be reclassified rather than that the role of Field Supervisor Plus ES be designated as Power Worker Band D2. The obvious intention of the decision and order is the reclassification of the role currently held by the two individuals. Ausgrid did not contest the form of the order on appeal and, in our view, it is clear that the order was to give effect to the decision that the role being performed by Mr Boyd and Mr Johnson be designated as falling within Band D2.
Ground 1: Whether decision is inconsistent with the Agreement?
Ausgrid’s first ground relies upon s 739(5) of the Act. Section 739(1), when read with s 738(b), indicates that the section applies, among other things, where an enterprise agreement includes a term that provides a procedure for dealing with disputes that requires or allows the Commission to deal with a dispute. The remainder of s 739 imposes certain limitations on the powers of the Commission in dealing with such a dispute. Section 739(3) provides that the Commission must not exercise powers limited by the term, s 739(4) provides that the Commission may arbitrate if the parties have agreed it may do so and s 739(6) provides that the Commission may only deal with a dispute on application by a party to the dispute. Section 739(5) is central to the present appeal and provides:
(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
The effect of s 739(5) has been considered by the Commission and the Federal Court on a number of occasions. In Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82; (2016) 244 FCR 178, North, Jessup and Reeves JJ said:[12]
… Section 739(5) does not alter the character of the arbitration which the Commission undertakes under an enterprise agreement in the terms of the Agreement. It merely places a limit on the range of arbitrated (but not conciliated, it may be noted) outcomes available to the Commission in those cases in which the parties have agreed that the Commission may arbitrate (using, in this respect, the same formula as appears as subs (4) of s 740, on any view a private arbitration provision).
The limitation imposed by s 739(5) is that the Commission must not determine a dispute in arbitration in a manner that is inconsistent with the Act or a fair work instrument that applies to the parties, including an enterprise agreement under which the dispute is referred to the Commission. It is to be noted that the Commission does not infringe the limitation imposed by s 739(5) simply because it is alleged it has reached the wrong conclusion on the very matter which was given to it for arbitration.[13]
Ausgrid referred to the following passage in the decision of the Full Bench in Commissioner for Public Employment (Cth) v Koulakis[2024] FWCFB 264:[14]
… The Commissioner was required to determine a dispute that had been referred to him for arbitration under an enterprise agreement. Section 739(5) prohibits the Commission, in dealing with such a dispute, from making a decision that is inconsistent with a fair work instrument which applies to the parties. The Commission’s task in such a matter is to give effect to the agreement of the parties, not simply to deliver an outcome that it may consider to be fair (unless that is what the terms of the dispute resolution procedure in the agreement require the Commission to do).
Ausgrid emphasised the observation that the Commission is “required to give effect to the agreement of the parties, not simply deliver an outcome that it may consider to be fair”. That observation must, in our opinion, be viewed with some caution. The nature of the powers able to be exercised in arbitration will turn on the terms of the dispute resolution term of the enterprise agreement, the nature of the dispute which has been referred to the Commission and the positions put by the parties to the dispute. In many disputes, the Commission can, in arbitration, determine what it considers to be the fair or appropriate outcome. The limitation imposed by s 739(5) is only that the decision made in arbitration must not be inconsistent with the Act or the agreement. We do not understand the Full Bench in Koulakis to have expressed any different view.
Ausgrid submits that the decision of the Deputy President is inconsistent with the Agreement. In its written submissions, Ausgrid submitted that, having found that that it had followed the procedure dictated by the Agreement, the Deputy President had no power to order an alternative outcome and should have dismissed the application. The basis upon which it is alleged that the decision is inconsistent with the Agreement was developed somewhat in oral submissions. As we understand the submission, the inconsistency was said to arise in three ways. Although the contentions overlap to a significant degree, it is appropriate to address the three submissions in turn.
The first contention is that Appendix 4 requires that a particular process be followed in assessing and evaluating roles. In particular, clause 5.4 requires that Ausgrid apply the Work Level Standards. The Work Level Standards contemplate that roles will be assessed and evaluated in a way that is meaningful across a range of characteristics, that roles must be designed to fit the classification structure and evaluated roles will be compared to existing roles that have a similar work complexity to ensure equivalence and fairness and that new or changed roles will be assessed formally by People and Culture in a structured and objective role evaluation process to sustain consistent classification decisions. Ausgrid submits that this process was not followed in relation to the positions of Mr Boyd and Mr Johnson and it is inconsistent with the Agreement for the Deputy President to determine the correct classification of their positions without the process being followed.
The submission does not accurately state what occurred in the case of Mr Boyd and Mr Johnson, or the limitations imposed by the Agreement. Ausgrid conducted a detailed review of the Field Supervisor positions. The review included all the Field Supervisor positions, including the positions of Mr Boyd and Mr Johnson. At the conclusion of the review, Ausgrid determined that the positions of Mr Boyd and Mr Johnson should be excluded from the reclassification because, in substance, Ausgrid formed the view that Mr Boyd and Mr Johnson did not have direct reports and did not fit within Band D2. The review considered the positions of Mr Boyd and Mr Johnson and Ausgrid conducted a detailed analysis of their positions against the Work Level Standards. The CEPU disagreed with the outcome and that dispute was referred to the Commission. The Deputy President had jurisdiction to determine the dispute as to whether the classification decision of Ausgrid was correct.
Any process contemplated by Appendix 4 or the Work Level Standards had been followed and no inconsistency with the Agreement arises from the Deputy President determining the dispute as to the correct classification of the positions of Mr Boyd and Mr Johnson. In any event, Appendix 4 and the Work Level Standards do not set out a prescriptive process that must be followed. Clause 5.4 of Appendix 4 simply requires that Ausgrid “will apply the Work Level Standards to appoint employees to a specific Band in a Stream”. We do not consider that clause 5.4, or any aspect of the Work Level Standards to which Ausgrid referred, prevents an employee disputing that their position is correctly classified whether a review has occurred or not. If such a dispute cannot be resolved, it can be referred to the Commission for resolution and the Commission can determine the classification dispute without infringing s 739(5).
The second contention advanced by Ausgrid is that the Deputy President imposed his own assessment of what constituted a fair, just and equitable outcome for Mr Boyd and Mr Johnson without reference to the requirements of the Agreement or the Work Level Standards. The submission is based on a reading of the Deputy President’s reasons which is neither fair nor accurate. The Deputy President set out and considered the evidence given as to the nature of the work and responsibilities of Mr Boyd and Mr Johnson’s positions and engaged in a detailed examination of the relevant role statements. The Deputy President made a clear finding, at paragraph [29], that “[t]hose descriptions fit comfortably within the descriptors for Band D2”. There can be no doubt that the Deputy President found that the roles held by Mr Boyd and Mr Johnson fit within Band D2 by reference to the Work Level Standards not by reference to his own assessment of what was fair and just.
Ausgrid focuses particularly on the language used in paragraph [33] of the decision that “the fair, just and equitable outcome based on the merits of the dispute” is that Mr Boyd and Mr Johnson be reclassified. Properly understood, that statement is no more than a conclusion that the Deputy President believed the fair outcome of the dispute was that the positions of Mr Boyd and Mr Johnson should be reclassified because those positions fit within the description of Band D2 in the Work Level Standards. That is plain from the earlier express conclusion that the positions of Mr Boyd and Mr Johnson “comfortably fit within the descriptors for Band D2” and the reference in paragraph [33] itself that the outcome was “based on the merits of the dispute”. The reference to “merits of the dispute” can only sensibly be understood to be referring to the Deputy President’s conclusion as to the correct classification of the positions.
Ausgrid also submits that the Deputy President did not conduct a general assessment of the requirements of the positions held by Mr Boyd and Mr Johnson. In paragraph [29], the Deputy President relied upon, without repeating, his earlier analysis of the evidence and the role statements. It is apparent, in our opinion, that the Deputy President considered the responsibilities of the positions generally. The decision focused particularly on the management and supervisory responsibilities of Mr Boyd and Mr Johnson at paragraphs [28] to [32]. That is unsurprising given that the only reason given by Ausgrid for excluding Mr Boyd and Mr Johnson from the reclassification concerned the extent of their supervisory responsibilities. We do not consider that the Deputy President failed to consider the positions as a whole.
The third contention made by Ausgrid, which was articulated primarily in its written submissions, is that the determination of the Deputy President is inconsistent with clause 12.2 of the Agreement because it had the effect that Mr Boyd and Mr Johnson would be appointed to a higher band. Ausgrid relies on the decision of Deputy President Easton in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Ausgrid Management Pty Ltd T/A Ausgrid[2024] FWC 2905. The decision concerned a dispute as to whether Ausgrid should have permanently appointed more operators to Band C1. Relevantly, the Deputy President observed:
Clause 12.2 in Appendix 4 gives Ausgrid the fettered right to determine the number of positions and roles that it requires from time to time. Ausgrid is fettered insofar as it is required to consider certain nominated factors when assessing its business needs (the capabilities required within various work groups, what skills are needed to complete required tasks and so on), but the 2021 Agreement ultimately reserves for Ausgrid the right to determine its own business needs and promote operators (or not) accordingly.
…
I do not accept the CEPU’s argument that the words of clause 12.2 in Appendix 4 import or impose any other limitation on how Ausgrid must determine its own business needs. The ordinary meaning of the words used, considered in the context in which they appear, do not carry the meaning urged by the CEPU. In my view, the words used in fact confirm that Ausgrid is free to decide and determine its own business needs, so long as it considers the criteria identified in clause 12.2. The criteria/considerations identified in clause 12.2 do not, on any
objective interpretation, compel any particular outcome. For example, Ausgrid is entitled to determine for itself the “future work needs” but must consider those future work needs when determining the number of positions and roles it requires.
We do not consider that the decision assists Ausgrid. There may be reason to doubt that the Commission could not deal with a dispute in relation to a decision made by Ausgrid to create, or not create, positions given the breadth of the dispute resolution provision in clause 41. However, it is unnecessary to address that question in this appeal.
Although the CEPU referred to clause 12.2 before the Deputy President (in addition to clause 5.4), the submission was misconceived. No issue of the creation of a position, or of promotion, arises in the present dispute. The dispute concerns the correct classification of the Field Supervisor Plus ES positions already held by Mr Boyd and Mr Johnson. There is no dispute Mr Boyd and Mr Johnson are appointed to those positions or that the positions have been created, and are required by, Ausgrid. Even accepting that it is a matter for Ausgrid to create positions based on its business needs, Ausgrid has created the positions of Field Supervisor Plus ES. The dispute concerned the appropriate classification of the positions Ausgrid had decided to create. The decision of the Deputy President is not inconsistent with clause 12.2 of Appendix 4 to the Agreement.
For these reasons, the decision of the Deputy President is not inconsistent with the Agreement for the purposes of s 739(5) of the Act. Ground 1 must be rejected.
Ground 2: Whether the Deputy President erred by relying on ss 577 and 578 of the Act?
Ausgrid’s second ground is that the Deputy President erred in relying on ss 577 and 578 of the Act as sources of power to make the orders set out in his decision. Counsel for Ausgrid described the second ground of appeal as related to ground 1 and accepted that it did not “stand on its own two feet”.
The ground has already been adequately addressed in what we have said with respect to ground 1. In paragraphs [26] and [27] of the decision, the Deputy President referred to ss 577 and 578 of the Act. The Deputy President said no more than that, in dealing with the issue raised in the dispute, he was “mindful of the requirement in s 577 of the Act” and noted the terms of s 578. We do not think the decision suggests that the Deputy President regarded ss 577 and 578 as providing an alternative source of power to determine the correct classification of the positions held by Mr Boyd and Mr Johnson. As we have explained, the Deputy President based his decision on the finding that the positions “fit comfortably within the descriptors for Band D2” after having considered the evidence that was before him.
There is no error of the type alleged in ground 2 in the notice of appeal. Ground 2 must also be rejected.
Conclusion and disposition
Permission to appeal should be granted. However, no error of the type alleged in the notice of appeal has been established and the appeal must be dismissed.
The Full Bench makes the following orders:
(a)Permission to appeal is granted; and
(b)The appeal is dismissed.
VICE PRESIDENT
Appearances:
V Bulut, of counsel, instructed by Seyfarth Shaw for the appellant.
L Hamilton, of counsel, instructed by the CEPU for the respondent.
Hearing details:
8 April 2025.
Sydney (in person).
[1] Some recent examples include Hanlon v Wood Group PSN Australia Pty Ltd[2019] FWC 146; Transport Workers’ Union of Australia v PFD Food Services Pty Ltd[2020] FWC 515; Stannard v University of Tasmania[2023] FWC 3380; and Lew v Victoria (t/a Office of Public Prosecutions)[2024] FWC 3344.
[2] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Ausgrid Pty Ltd t/as Ausgrid[2025] FWC 102 at [34].
[3] [2025] FWC 102 at [7].
[4] [2025] FWC 102 at [4]-[15].
[5] [2025] FWC 102 at [23]-[24].
[6] [2025] FWC 102 at [29].
[7] [2025] FWC 102 at [32].
[8] [2025] FWC 102 at [33].
[9] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Silcar Pty Ltd [2011] FWAFB 2555; (2011) 208 IR 33 at [17]; PHI (International) Australia Pty Ltd T/A HNZ Australia Pty Ltd v Nash [2024] FWCFB 396 at [16]-[19].
[10] Arampamoorthy v Ausgrid Management Pty Ltd T/A Ausgrid [2019] FWCFB 689 at [6]-[7]. See also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Essential Energy [2024] FWCFB 379 at [73].
[11] Vendrig v Ausgrid Pty Ltd[2021] FWCFB 370 at [23]-[24].
[12] Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82; (2016) 244 FCR 178 at [33] (North, Jessup and Reeves JJ).
[13] Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82; (2016) 244 FCR 178 at [34] (North, Jessup and Reeves JJ); United Firefighters' Union of Australia v Fire Rescue Victoria [2024] FCAFC 84; (2024) 304 FCR 219 at [18] (Colvin, Raper and Dowling JJ).
[14] Commissioner for Public Employment (Cth) v Koulakis[2024] FWCFB 264 at [13].
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