Australian Municipal, Administrative, Clerical and Services Union v City of Greater Bendigo

[2017] FWC 1036

[2017] FWC 1036

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Australian Municipal, Administrative, Clerical and Services Union
v
City of Greater Bendigo
(C2016/2021)

COMMISSIONER BISSETT MELBOURNE, 27 FEBRUARY 2017

Alleged dispute about any matters arising under the enterprise agreement – classification of position.

[1] In January 2016 the Australian Municipal, Administrative, Clerical and Services Union (ASU) made an application to the Fair Work Commission (Commission) to deal with a dispute arising under the Greater Bendigo City Council Enterprise Agreement 2014 1 (the Agreement) pursuant to s.739 of the Fair Work Act 2009 (the FW Act). The dispute relates to the appropriate positions description (PD) and classification of its member Mr Terry Canfield who is employed as a Parks Worker by the City of Greater Bendigo (CoGB).

[2] On 14 October 2016 I issued a decision 2 with respect to the appropriate PD for the position occupied by Mr Canfield. In that decision I required the parties to confer to finalise the PD based on my decision (which they subsequently did) and to hold discussions as to the appropriate classification for the position.

[3] The parties were unable to reach agreement with respect to the classification and have subsequently requested that the Commission determine the matter. To this end, the parties have each provided written submissions to the Commission on the classification of the position. A brief hearing was also held to enable the parties to expand upon their submissions.

[4] This decision is in relation to the classification of the position.

Principles relevant to determination of classification

[5] In my decision 3 with respect to finalising the PD I said:

[8] On a more general level I should indicate that the difficulty often experienced in resolving PD and classification matters is that the work done by an individual, particularly a long standing employee, may not necessarily reflect what is required to be done by the employer. Instead it is a reflection of the skills and experience and in depth knowledge of the employee concerned. A conflict then arises between the work that is required to be done by the employer and what is actually done by the employee. Such are the circumstances before me. The extant situation is further complicated by the fact that Mr Canfield works in a location remote from Bendigo itself and so does not meet with or talk to his Leading Hand or other team members on a regular basis (as those co-located in Bendigo may do). This working environment adds, in my view, to Mr Canfield’s view as to what is required of him in performing his job. It is within this overall context that I have considered the competing submissions of the parties.

[6] The determination of the correct classification of a position is not a line by line exercise, nor is it a matter of searching for those descriptors that support the case put forward and ignoring all of the rest. Having said this, however, there are some general principles that should be applied.

[7] Firstly, the classification of a position must be decided on the basis of the requirements of the position as specified in the finalised PD.

[8] Second, that the occupant of a position may perform some functions at a higher or lower level is not determinative of the appropriate classification. It is neither true that all aspects of a position must fall within a single band nor that only one aspect of the job being at a higher level means the position should be classified at that higher level. Each of these approaches could lead to absurd outcomes and the artificial construction of tasks and responsibilities to force a position into a higher or lower classification. A position must be considered holistically. That is, a PD does not need to meet all of the criteria under each heading for the classification to fall within that Band.

[9] Third, the true classification of a position should be based on the highest functions of the position which are performed on a regular basis and which constitute a reasonable component of the work of the position. A change in classification cannot be based on the increase in the occupant’s knowledge – this a matter best recognised through incremental movements, not through reclassification of the position.

[10] Last, it is not correct to accept the lowest level at which a function is required to be performed nor the highest level and claim that as evidence of the correct band. The assessment must be of the overall requirements of the position.

Position requirements

[11] The position in question is a Parks Worker – Passive Reserves (Heathcote). There are other employees of CoGB employed as Parks Worker – Passive Reserves but this position is specific to the Heathcote township. The occupant of this position does not, generally, work outside this geographic area.

[12] The key responsibilities and duties of the position are, within the occupant’s area of responsibility, to:

● Execute the operational maintenance programs necessary to achieve and maintain high quality sites, routinely conducting mowing, brush cutting, edging, weeding etc;

● Undertake the work required in a tamely, safe and efficient manner;

● Undertake irrigation programming, maintenance and repair work at nominated sites including playing fields;

● Assist specialist turf maintenance works;

● Operate horticultural equipment;

● Undertake general maintenance as required.

Submissions

[13] The ASU argue that, based on the finalised PD and the classification definitions contained in the Agreement, the appropriate classification for the position in Band 4. The CoGB disagree and say that the position should be Band 3.

[14] I have based my assessment on the PD as agreed by the parties against the position classification definitions which form part of the Agreement.

1. Accountability and Extent of Authority

[15] The ASU submits that the following requirements of the position within the overall rubric of accountability and extent of authority all fall within Band 4:

a. Completion of work to satisfactory standards within time allocated.

b. Ensure the quality of works being undertaken.

c. Accountable for the quality, quantity and timeliness of work and for the care of assets entrusted to them.

d. Required to work under limited supervision and exercise discretion within the level of competency and technical expertise.

[16] Given their lack of commentary I assume that the ASU accepts that the other aspects of accountability and authority sit within Band 3 or elsewhere.

[17] CoGB submits that half of the criteria fit within a Band 2 and half within Band 3.

[18] I do not agree with the submissions of the ASU. Beyond an assertion that the identified criteria properly reflect Band 4, the ASU has not said how they align with Band 4. Further, a. and b. above are relatively generic. This is supported by the submissions of CoGB that these align to Band 2. That Band 4 requires of employees that “They are expected to exercise discretion within standard practices and processes, undertaking and implementing quality control measures” does not mean that anyone exercising discretion is at a Band 4. To take such an approach and ignore other aspects of the requirements of Band 4 is an erroneous approach to the matter at hand.

[19] I also do not agree with the submissions of the CoGB with respect to those responsibilities it says rest at Band 2. The search for the correct classification is not an exercise in finding the lowest level at which the work is performed (although I do note that the CoGB, in making an overall assessment of the position say it is Band 3).

[20] When viewed overall, I am satisfied that the accountability and responsibility of the PD sits within Band 3. There are certainly aspects that suggest Band 4 but, overall, I am satisfied that the work fits within Band 3.

2. Judgement and decision making

[21] The ASU identifies the following factors in the PD:

a. Nature of the work is clearly defined with established procedures well understood or clearly documented.

b. Exercise judgement in making day to day decisions regarding works under one’s direct control.

[22] It submits that these fall within the requirements of Band 4. In so doing, the ASU misquote the requirement under b. The PD for the position says “Exercise judgement in making day to day decisions regarding works under one’s direct control within established procedures. General supervision is available.” [Underlining added] Read in full this particular requirement sits squarely within Band 3.

[23] Just as it is inappropriate to only consider one or two criteria in determining the appropriate band, so it is inappropriate to consider only part of the established criteria in the PD.

[24] I accept that “guidance and counsel can be available…” fits within Band 4.

[25] Overall however, I consider that the judgement and decision making for the position sits, in the main, within Band 3. That one criteria sits within Band 4 is not enough to align the PD to Band 4 in this area, particularly when general supervision is available and the work is carried out within established procedures.

3. Specialised knowledge and skills

[26] The ASU submits that, on this matter, the PD should be at Band 4 on the basis that the PD requirements align to “a thorough understanding of the relevant technology, procedures and processes used within their operating unit.”

[27] Again the ASU seek to extract one criterion and ignore the others in Band 4, the most critical one being that “Employees in this Band must have the ability and skills to provide training in the post-trades or specialist disciplines either through formal training programmes or on-the-job training.”

[28] There is no evidence that the current occupant of the position has those skills or that CoGB requires him to have those skills.

[29] This aside, I do not consider that the ASU has provided enough information to support a conclusion that the criteria in this aspect is Band 4.

[30] Whilst I accept the characterisation of a number of the required skills as being at Band 2, I am satisfied that the PD requires specialised skills and knowledge at Band 3. In reaching this conclusion, I observe that care needs to be taken to not make judgement based on the basic tasks of the job.

4. Management skills

[31] The ASU again claim that the requirements of the PD place the position at Band 4 against the criteria specified under management skills. CoGB generally says the requirements are at Band 3 with one being at Band 4. I should note however that the assessment on this criteria is difficult given the dearth of criteria in the classification standards for a Level 3.

[32] I am satisfied that the requirement to “Provide general supervision and co-ordination and on-the-job training as required to other employees in passive reserves, contractors and volunteers and community groups” sits within Band 3. I would observe that, from my knowledge of the position gained from the determination of matters associated with the PD, such supervision is incidental to the position and not a substantial component of the work undertaken. It is not work that is regularly performed.

[33] That supervision is part of the job does not automatically mean that that part of the job sits within Band 4. The position classification standards for Band 3 acknowledge that positions at that level may involve first line supervision and that employees at Band 3 must be able to provide employees under their supervision with on the job training.

[34] I am not convinced that there is any requirement on the occupant of this position to have knowledge of personnel policies and practices applicable to the work of supervised employees.

[35] Whilst Band 4 employees should have the freedom to plan work a week in advance, this does not imply some constraint on a Band 3 position and must be balanced against the requirement for Band 3 employees to be accountable for the timeliness of their work. This requirement sits within the general responsibility to ensure maintenance work is completed in a timely, safe and efficient manner.

[36] I accept that the preparation and submissions of reports and other documentation sits within Band 4.

[37] Overall, I am satisfied that the requirements of the position with respect to management skills sit within Band 3.

5. Interpersonal Skills

[38] The expectations of the position with respect to interpersonal skills do not sit neatly within either Band 3 or Band 4. This is reflective of the location and partial isolation within which the incumbent works.

[39] I consider that the ability to gain assistance and liaise with the CoGB staff and the ability to work constructively with and gain the cooperation of the community sit within the Band 4 requirement to gain cooperation and assistance from the public and other employees in the performance of well-defined activities.

[40] Within the context of the PD as a whole, I consider that the ability to work as a team player, the ability to discuss problems and develop options and solve minor problems and good communication skills sit with a Band 3. Should other aspects of the PD alter in the future, the context of these duties would operate within such a context and would not, as they are currently written, operate as an impediment to re-classification.

[41] On balance however, given the context, I am satisfied that the interpersonal skills of the position sit within Band 4. Those aspects that sit within Band 3 are not enough to bring the position within Band 3 on this factor. This conclusion reflects the remote nature of the position.

6. Qualifications and experience

[42] Nothing has been put with respect to the qualifications for the position that suggest that it sits within the Band 4 descriptors. The position would require a post-trades certificate for consideration of Band 4. No material has been put to me to suggest that the position requirements are equivalent to a post-trades certificate.

[43] I am satisfied that the requirements of the position with respect to qualifications and experience sit with Band 3.

Conclusion

[44] In reaching my conclusions I acknowledge that Mr Canfield, the current occupant of the position, is a very experienced and competent worker. It is a fact however that a classification decision is based on the requirements of the position and not on the experience of the person occupying the position. Further, the classification must be based on management’s requirements of the position. It is true that many employees who have occupied a position for many years will do work that is beyond the classification of the position – they enjoy the challenge but this cannot be the basis for my decision.

[45] I would also note that in reaching my conclusion there are some functions required under the PD in question which I have had trouble classifying including “making incidental purchases” and “being responsible for secure storage of plant and equipment”.

[46] I would note however that the incidental purchases are just that – incidental. They are not substantial purchases and the limitations and use of the credit card is well documented. 4 This does not suggest a substantial level of accountability and authority such that the position should be at Band 4. In reaching this conclusion I am aware of the increased allocation of credit cards to CoGB staff and whilst this should not be reflected specifically in the position classification standards it is an alteration to responsibilities that has occurred in recent years that is not properly reflected in the position classification definitions more broadly.

[47] With respect to safe storage of equipment, this is a responsibility unique to positions such as this – remote positions that utilise substantive machinery. Whilst this might or might not be a characteristic of a Band 4 position it does not alter my overall decision.

[48] The third area I should specifically mention, as it is an area identified by Mr Canfield as being critical, is the matter of supervision. That there is no supervisor on site on a day to day basis or that the supervision is limited does not necessarily give the occupant of the position a broad discretion to act. As was resolved in the finalisation of the PD, the occupant of the position works within a defined service delivery plan and maintenance schedule. As I found in my earlier decision, whilst the occupant of the position works with a high degree of autonomy it is:

apparent that this autonomy is exercised within the structure of a pre-determined Maintenance Schedule which determines the categorisation of sites (that is, A, B or C) and pre-determined Service Delivery Plan which, for each category, specifies service delivery timeframes, maintenance duties and tasks, improvement opportunities and customer service objectives. The occupant of this position does not determine the Maintenance Schedule for the Service Delivery Plan. These, however, provide the framework within which he must make decisions – given other events in the community – as to the maintenance tasks to be performed. 5

[49] The service delivery plan and maintenance schedule also provide a level of supervision to the occupant. As I said, the autonomy is constrained and this cannot be ignored even though I do accept that there is limited direct supervision.

[50] It should also be noted that a perusal of the Band 4 requirements does not indicate any level of supervision of the position occupant (as opposed to supervision of others). This may be a weakness in the classification definitions but that is not to the point. Considered overall, I am satisfied that, with respect to the level of supervision the position sits with Band 3.

[51] I have considered carefully the overall requirements of the position and am satisfied, at this time, the PD is correctly classified at Band 3 position.

COMMISSIONER

Appearances:

D. Harris for the Australian Municipal, Administrative, Clerical and Services Union.

D. Tozer for City of Greater Bendigo.

Hearing details:

2016.

Melbourne:

February 7.

 1   AE410176.

 2   Australian Municipal, Administrative, Clerical and Services Union v City of Greater Bendigo [2016] FWC 7280.

 3   Ibid.

 4   The occupant of the position is limited to single purchases of up to $1,000 and overall purchases of $2,500 per month.

 5   [2016] FWC 7280 at [10]

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