Australian Municipal, Administrative, Clerical and Services Union v Eastern Australia Airlines Pty Limited
[2011] FWA 1482
•16 MARCH 2011
[2011] FWA 1482 |
|
DECISION |
Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)
Australian Municipal, Administrative, Clerical and Services Union
v
Eastern Australia Airlines Pty Limited
(C2010/699)
COMMISSIONER RAFFAELLI | SYDNEY, 16 MARCH 2011 |
Dispute relates to employment classification - Eastern Australia Airlines Pty Ltd and Australian Services Union Agreement 2004-2007 (extended to 30 June 2010).
[1] The Australian Municipal, Administrative, Clerical and Services Union (ASU) has made application for Fair Work Australia (FWA) to deal with a dispute in accordance with a dispute settling procedure pursuant to section 739 of the Fair Work Act (the Act).
[2] The dispute is with Eastern Australia Airlines Pty Limited (Eastern) and it concerns the classification of one of the ASU’s members, Ms Cath Sumpter. The relevant agreement is the “Eastern Australia Airlines Pty Ltd and Australian Services Union Agreement 2004-2007 (extended to 30 June 2010)” (the Agreement).
[3] It is said by Eastern that FWA has no jurisdiction to deal with the dispute. It refers to clause 13 of the Agreement which deals with settlement of dispute. That clause provides as follows:
“13. SETTLEMENT OF DISPUTES PROCEDURE
The following procedures will be carried out to deal with either individual or collective issues. At all stages of these procedures, the employee may elect to have a third party present:-
13.1 The matter shall first be discussed by the aggrieved Employee and his/her Supervisor and/or Manager.
13.2 If not settled, the matter shall then be discussed by the aggrieved Employee with Management in the following order:-
(a) Department Manager
(b) General Manager
13.3 If still not resolved, the matter shall be discussed between the employee Union delegate and an appropriate representative of the Company.
13.4 Should an issue remain unresolved, the appropriate Australian Services Union official representative of the Company will then become involved. This may involve senior Union officials and Company Management, meeting, as required to seek to resolve any dispute.
13.5 If the matter is still unresolved, it shall be submitted to a member of the Commission whose decision shall, subject to any appeal in accordance with the Workplace Relations Act 1996, be final and shall be accepted by the parties.
13.6 While the above procedure is being followed, work shall continue as normal, as instructed by the Company. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this Clause.
13.7 Where a bona fide safety issue is involved, the Company and the appropriate safety authority must be notified concurrently or at least a bona fide attempt made to so notify that authority.”
[4] However, Eastern points to another relevant clause dealing with the classification of employees, clause 52.2 which provides as follows:
“52.2 Higher Level Progression Procedures
The following procedures are to be followed by employees in all levels in order to achieve progression to a higher level per the Classification Structure of this Agreement.
52.2.1 The proposed higher level progression shall first be discussed by the Employee with his/her Supervisor.
52.2.2 Once the Employee and his/her Supervisor are in agreement, a written submission must be prepared by the Employee and submitted to his/her Supervisor.
52.2.3 The Supervisor must complete written justification to support the employee’s submission and forwarded to the relevant line Manager.
52.2.4 The line Manager must complete a written recommendation to the Departmental manager for assessment.
52.2.5 The Departmental Manger must complete a written recommendation to the General Manager whose decision is final.
Determination of all higher level progressions will be made by the General Manager. All progressions must be necessary in order to meet the needs of the business.
This procedure will be read in conjunction with the explanatory notes at the beginning of each level in the classification structure and further will only be appropriate in the circumstance where an individual is requesting reclassification. It is not appropriate in circumstances where individual are applying for vacancy positions.”
[5] Eastern says that the dispute is about Ms Sumpter’s desire to have her role reclassified to level 4 under the Agreement, rather than maintaining it at her current classification which is level 3. Eastern also says that Ms Sumpter sought a regrading under clause 52.2. It is not disputed that Ms Sumpter was supported by her supervisor. Her request was declined by her line manager. That outcome was challenged by Ms Sumpter. On 18 December 2009, Mr Lidbury, Acting Executive Manager wrote to Ms Sumpter indicating his decision that regrading was not warranted.
[6] It was said by Eastern that Mr Lidbury was the General Manager referred to in clause 52.2.5.
[7] Eastern argued that the deliberate words of clause 52.2.5, where the General Manager’s decision is final, are not subject to a decision by Fair Work Australia pursuant to clause 13.
[8] I agree with Eastern that the Act’s powers are constrained by clause 52.2.5 or indeed, many other provisions of the Agreement. This is because this Tribunal is not empowered to do something contrary to what the Agreement says. The Agreement says that promotions are ultimately up to the decision of the General Manager. To issue a decision pursuant to clause 13 would in effect render the final decision not final but penultimate. That would be a variation of the Agreement.
[9] To the extent of that argument, Eastern’s objection is made out.
[10] However, that is not the end of the matter. I do not know why clause 52.2 is relevant to Ms Sumpter’s predicament.
[11] I read clause 52.2 as referable to where an employee (presumably doing a job) is seeking promotion into another job. (I take “promotion” to mean at a higher salary or status level). There is no change in the jobs themselves. Rather, an employee is seeking to change.
[12] All the facts before me point to Ms Sumpter alleging that her job has changed because of the acquisition of skills and responsibilities. This, in her view, causes that very job to be seen as properly falling within level 4 and not level 3. This is evident from documents “A” “B” and “D”.
[13] In my view, clause 52.2 is irrelevant to a regrading. The dispute notified in the Form 10 application by the ASU says:
“4. What is the dispute about?
1. This dispute has its genesis in matter number C2020/191 Ms Cath Sumpter v Eastern Australian Airlines Pty Ltd. A lengthy period of discussion ensued while the settlement of disputes procedure was followed in accordance with clause 13 of the Eastern Australia Airlines Pty Limited and Australian Services Union Agreement (“the Agreement”) was followed. See attached “Annexure A”.
2. The matter was listed for conference before Commissioner Raffaelli on 30 June 2010. Since that date, the parties have been engaged in ongoing discussion and have met in an attempt to settle the dispute. However, a resolution to the dispute has not been achieved.
3. Ms Cath Sumpter is presently classified as Data Entry Clerk Level 3 in accordance with the clause 52 of the Agreement. Ms Sumpter has previously requested that the company review their decision to re-grade her classification from Data Entry Clerk Level 3 to Data Entry Clerk Level 4.
4. Ms Sumpter has been incorrectly classified under clause 52.1 of the Agreement as Data Entry clerk Level 3. The appropriate classification for Ms Sumpter, commensurate with her skills, duties performed and experience, is Data Entry Clerk Level 4.”
[14] The relief sought set out in the Form 10 application provides;
“5. Relief sought:
Reclassification of Ms Sumpter from Data Entry Clerk Level 3 to Data Entry Level 4 in accordance with clause 52 of the Agreement.”
[15] Neither “what the dispute is about” nor the “relief sought” are about promotion or progression procedures.
[16] In my view the dispute is about the proper classification of Ms Sumpter. That dispute seems to bring into focus clause 52.1 which provides as follows:
“52.1 Classification of Employees
Employee shall be classified in accordance with the following Classification Structure
Employees in levels 2, 3 and 4 are required to use a minimum of three skills listed at the skill level described. The three skills will relate to either operational roles or non-operational roles depending on whether or not the primary purpose of the employees is operational or non operational.”
(A comprehensive classification structure and definitions follow 52.2)
[17] In the circumstances at hand where a regrading is sought, there does not seem to be the restrictions that go to promotion or progression (clause 52.2) on FWA’s powers under clause 13.
[18] I consider that FWA has the power to deal with the ASU’s dispute. However, because even the ASU (and Ms Sumpter) seem to have proceeded on the basis that they needed to follow the clause 52.2 process, the parties may need to consider the future conduct of the dispute and FWA’s role.
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