Australian Municipal, Administrative, Clerical and Services Union v Sydney Water Corporation t/as Sydney Water
[2010] FWA 5356
•27 JULY 2010
[2010] FWA 5356 |
|
DECISION |
Fair Work Act 2009
s 739 - Application to deal with a dispute
Australian Municipal, Administrative, Clerical and Services Union
v
Sydney Water Corporation t/as Sydney Water
(C2010/3633)
DEPUTY PRESIDENT SAMS | SYDNEY, 27 JULY 2010 |
Alleged dispute about matters arising under an enterprise agreement.
[1] Fair Work Australia (FWA) has been asked to deal with a dispute between the Australian Municipal, Administrative, Clerical and Services Union (‘the Union’) and Sydney Water Corporation (‘the Corporation’) in respect to the introduction of new competency programs for employees across the Corporation. The dispute came before FWA pursuant to an application under s 739 of the Fair Work Act 2009 (‘the Act’), lodged by the Union on 10 May 2010. Section 739 of the Act is in the following terms:
(1) This section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute.
(2) FWA must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to FWA dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises FWA to deal with the matter.
Note: This does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, FWA must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.
Note: FWA 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), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) FWA may deal with a dispute only on application by a party to the dispute.
[2] The dispute arises under the terms of the parties’ industrial instrument, the Sydney Water Enterprise Agreement 2009 (‘the Agreement’), in particular cl 48, Step 5:
If the dispute or grievance remains unresolved after exhausting Steps 1 to 4, and relates to a matter arising under this Agreement and/or the National Employment Standards, either party may refer the matter to Fair Work Australia, provided that they provide all other parties at least three working days’ notice in writing of their intention to refer.
Fair Work Australia may deal with the dispute in two stages:
a. Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
b. if Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:
(i) arbitrate the dispute; and
(ii) make a determination that is binding on the parties.
If Fair Work Australia arbitrates the dispute, it may also use the powers that are available to it under the Fair Work Act. Subject to any right of appeal the parties to the dispute agree to be bound by a decision made by Fair Work Australia in accordance with this subclause (48.6).
[3] FWA convened two conciliation conferences with the parties under s 739(4) of the Act above. However, no settlement of the dispute could be achieved and the parties subsequently agreed (at my request), on two questions to be determined by arbitration. The two questions are:
1. As one part of the process in implementing a competency program the Competency Development Committee must reach broad agreement that the program meets the requirements of clause 8 before the program may be considered by Sydney Water for implementation.
2. Does the scope and makeup of the current Competency Development Committee for ‘Science and Environment’ meet the requirements of the agreement?
[4] Determination of these questions falls for consideration under cl 8 of the Agreement which I outline in full below:
8. Competency Programs
8.1 General
8.1.1. To improve organisational capability, learning and career development the employer may implement Competency Programs for different work groups or occupational groups.
8.1.2. All Competency Programs must comply with the Competency Program Principles in Schedule 4 to this Agreement.
8.2. Development and implementation
8.2.1. Where the employer proposes to introduce a Competency Program it will do so according to the procedure set out in this subclause (8.2).
8.2.2. It is the agreed intention of the parties in designing Competency Programs that no employee will be disadvantaged by virtue of the implementation of those Competency Programs.
8.2.3. When a decision is made to implement a Competency Program the employer will firstly identify the specific work group or occupational group to be covered by the proposed Competency Program.
8.2.4. The employer will then establish a Competency Program Development Committee (the committee) in relation to the identified work group or occupational group.
8.2.5. The committee will be large enough to ensure that it is broadly representative of the identified work group or occupational group and will be comprised of an equal number of employees and employer representatives one of whom will act as the convenor.
8.2.6. The employer will then approach the group of employees that will be covered by the proposed Competency Program and call for nominations for employee members of the committee.
8.2.7. To be eligible to be a committee member an employee must have sufficient skills and experience within the spectrum of work to be covered by the Competency Program to enable them to make a meaningful contribution to the committee.
8.2.8. The relevant union(s) may nominate an employee with the skills and experience specified by the employer (under subclause 8.2.6) to sit on the committee.
8.2.9. Where more eligible employees are nominated for committee membership than are required the nominated employees will be given the opportunity to vote on which of them will sit on the committee. If the employees concerned do not take up this opportunity, the employer will make the selection.
8.2.10. Where fewer eligible employees are nominated for committee membership than are required the employer may select further eligible employees to make up the shortfall.
8.2.11. The function of the committee is to oversee the design of the proposed Competency Program in accordance with the requirements of clause (8) for consideration by the employer.
8.2.12. In exercising its functions the Committee will make decisions by broad agreement (meaning more than a simple majority but not necessarily unanimity).
8.2.13. Where the employer approves a Competency Program forwarded to it by the Committee, the implementation of that Competency Program will proceed in accordance with the procedure set out in clause 47 of this Agreement (Consultation and significant organisational change).
8.2.14. Where a new Competency Program commences, employees will transfer into it on their current rate of pay.
8.2.15. Where an employee has been assessed as holding certain Units of Competency and the employer requires them to use those Units of Competency to complete their daily duties they will be paid in accordance with the terms of the applicable Competency Program.
8.2.16. If a dispute or grievance arises in relation to the design, implementation or operation of a Competency Program it will be dealt with in accordance with the procedure set out in clause 48 of this Agreement (Dispute Resolution and Grievance Procedures). This will include the option to refer the dispute or grievance to Fair Work Australia at Step 5 of the procedures to deal with as it sees fit (including the options of conciliation and arbitration).
8.3. Employer responsibilities
Where a Competency Program is implemented the employer will:
a. identify, assign and assess competencies; and
b. design and implement learning and development plans to assist employee development.
8.4. Employee responsibilities
Where a Competency Program is implemented employees will:
a. undertake work up to and including their level of assessed competence; and
b. maintain their level of skill at the assessed level of competence; and
c. coach and support others in the on-the-job acquisition of competencies that they themselves hold.
[5] All Competency Programs must comply with Sch 4 of the Agreement. This Schedule identifies the Competency Program Principles under the following headings:
Principle 1: Meet business needs
Principle 2: Encourage consultation between all stakeholders
Principle 3: Support career development and learning
Principle 4: Be aligned to the national standards
Principle 5: Competency Programs have a common structure
Principle 6: Have a common format
Principle 7: Provide common levels of competence
Principle 8: The program is to be transparent and have simple assessment system
Principle 9: Grievance
Principle 10: Reviewed by a continuous improvement process
Principle 11: Awarding qualifications
BACKGROUND
[6] On 20 January 2010, the Corporation wrote to the Union advising of a proposal to develop a Competency Program for the Science and Environment Occupational Group and identified seven JobTypes (later reduced to six, then five) in this Group as follows:
Air Quality Monitoring Specialist, 10 staff
Environmental Analysts, 27 staff
Environmental Scientists, 39 staff
Field Sampling Specialists, 43 staff
Hydrogrophers, 20 staff
Water Resource Management staff, 71 staff
Lab Analysts, 74 staff
[7] The letter invited the Union, in conjunction with the Association of Professional Engineers, Scientists and Managers, Australia (APESMA), to nominate one employee to be a member of the Competency Development Committee (CDC) (cl 8.2 of the Agreement). Staff representatives on the CDC were determined as one for each Job Type. The Corporation identified future competency programs to be introduced for all of its employees under the following ‘Job Families’ or ‘Occupational Groups’:
Science & Environment
Asset Engineering
Water Operations
Communications & Stakeholder Relations
Finance/Strategy & Regulatory
Human Resources & Safety
Information Technology
Administration
Trades
[8] However, the full program has only progressed to the present stage in the Science and Environment Group and it is acknowledged that this Group will constitute a template for the roll out of the remainder of the Competency Programs across the Corporation.
[9] The Corporation also set up three Working Parties in the Science and Environment Occupational Group. The Working Parties were to review the competencies relevant to their area and provide advice to the CDC. There have been at least seven meetings of the Working Parties and seven meetings of the CDC since March this year.
EVIDENCE
[10] Various items of correspondence between the parties and other relevant documents were tendered in the proceedings through the following witnesses:
Mr Asren Pugh, Assistant Branch Secretary of NSW and ACT Services Branch of the ASU
Ms Chantelle Jans, Field Sampling Officer with Sydney Water Corporation
Ms Maria Steel, Manager of Organisational Capability at Sydney Water Corporation
[11] Mr Pugh identified four competency programs previously introduced by agreement with the Union under the Sydney Water Award 2004 (‘the Award’) - the predecessor industrial instrument to the present Agreement. He said that the Union supports competency programs, so long as they are fair for employees and employees are not disadvantaged. (Competency programs under the former Award could only be introduced by agreement with the Union. This is not a requirement under the new Agreement).
[12] Mr Pugh criticised the Corporation’s use of the term ‘Job Families’ which is not a term used in the Agreement. The terms ‘Occupational Group’ and ‘Work Group’ are in the Agreement. Mr Pugh believed that the group of staff proposed for the Science and Environment Competency Program does not constitute either a Work Group or an Occupational Group. Mr Pugh also criticised the Corporation for unilaterally determining how the staff would be selected for the CDC which meant one person represented 10 Air Quality Monitoring Specialists and one person represented 74 Lab Analysts. He claimed this selection was in breach of cl 8.2 of the Agreement. Mr Pugh said that when the Union discussed the composition of the CDC with its members, issues were raised about the limited relationship between the work groups and fears that inexperienced staff might approve competencies for other work groups. Some employees felt they did not have the skills or experience to consider competencies for other work groups. These concerns were raised with the Corporation, but not properly addressed. The Union also proposed that the Working Parties be formally constituted and sit below an overarching CDC.
[13] Mr Pugh summed up the Union’s position as follows:
It is clear that the process that Sydney Water have followed so far in setting the scope and makeup of the Science and Environment CDC does not comply with clause 8 of the Enterprise Agreement. Sydney Water have not identified a specific Work or Occupational Group, the scope of the work covered by the CDC is too broad to allow for CDC members to have the skills and experience necessary to contribute meaningfully to the committee and the selection process for the staff representatives, in particular the representative from Hydrographers has breached the Agreement. Sydney Water’s intention to implement the Competency Program without requiring the broad agreement of the CDC is also a potential breach of the Agreement.
[14] In oral evidence, Mr Pugh confirmed the Union’s view that each Job Type should have its own CDC position. He denied this would mean 60 to 70 CDCs and said that more than one Job Type could, by agreement, be covered by a single CDC. Mr Pugh maintained that the Corporation cannot approve a competency program that has not been forwarded to it by the CDC, and the CDC cannot forward a competency program that has not been agreed to by ‘broad agreement’. Mr Pugh said the competency program could not be varied by the Corporation unless it was referred back to the CDC to test whether it meets the requirements of the Agreement.
[15] Ms Chantelle Jans’ duties involve observing and recording the quality of drinking water supplied by the Corporation through field tests provided to the Corporation’s laboratories at West Ryde. There are 43 Field Sampling Officers in the Field Services Group. Ms Jans volunteered to be on the Working Party dealing with the skills and competencies relevant to her Work Group. At a three hour meeting on 25 February 2010, the Working Party was provided with a draft competency program for each of the three jobs performed in the Field Services Group. On 1 March 2010, Ms Jans received an email calling for nominations for the CDC. Ms Jans attended four further meetings of the Working Party. She attended the first CDC on behalf of Field Samplers on 18 March 2010. The CDC included a staff representative for each of the Lab Analysts, Water Resources Managers, Air Quality Monitors and Hydrographers. The CDC received a presentation about the role of the CDC.
[16] At a second meeting of the CDC on 25 March 2010, the employee representatives had said that the Job Family was too broad and the CDC were dealing with too many Job Types. She did not feel that she had the experience or qualifications to comment on other jobs in the CDC. She also said that there had not been enough time to properly discuss and consider all of the information. A third CDC meeting was held on 8 April 2010, and the Lab Analysts’ representative said the Job Family had too many jobs and the jobs were not consistent and some had been left out. Ms Jans attended another three CDC meetings. At the meeting on 1 June 2010, Sch 4 of the Agreement Competency Principles Check List was discussed. She denied that decisions had been made by the CDC about whether Sch 4 had been complied with.
[17] Ms Jans summed up her evidence as follows:
I still have many concerns about the process being followed. Employees are aware of the importance of the process and I have had no time to respond to those concerns. For example, some employees have raised that they don’t believe that I am qualified to make decisions about their career paths. I agree with this. I don’t feel that I can add anything to the process concerning jobs outside of the Field Services Group. There are even some jobs in my group that I don’t feel qualified to comment on and I haven’t had the chance to consult with other employees about that.
[18] In oral evidence, Ms Jans said she did not believe that four weeks was sufficient to raise, consider and decide issues, given that there were seven working party meetings, seven CDC meetings and copious amounts of documentation to be reviewed.
[19] Ms Maria Steel has been involved in the design and development of competency programs at the Corporation for five years. Ms Steel said that as part of the Corporation’s identification of business roles and classifications relating to water and waste water services, research was undertaken internationally and within Australia. The Corporation subsequently identified nine occupational groups and a range of Job Types. Ms Steel described the process undertaken by the Corporation in setting up the Science and Environment CDC. Ms Steel said that to make the CDC workable the Corporation proposed one representative from each Job Type. She noted that proportional representation is not mentioned in cl 8 of the Agreement.
[20] Ms Steel believed that no member of the CDC had expressed concern that they did not have the skills or experience required to represent the Job Type for which they nominated. Ms Steel stated that, wherever possible, the Corporation uses the National Units of Competency to identify skills across multiple disciplines. In this case, the skills are the same across the ‘Job Family’. It is recognised that not all jobs possess identical competencies. However, in Science and Environment there are three main categories - monitoring water and waste water, business related competencies and additional safety competencies. She rejected Mr Pugh’s definitions. The Corporation had suggested it may be appropriate for members of the Working Parties to be members of the CDC. However, there is no requirement under the Agreement to have formal working parties. They have been used as a means of engaging staff in the process. Ms Steel denied that there had been insufficient time provided to CDC members to consider proposals and consult with staff.
[21] In oral evidence, Ms Steel said that about three years ago the Corporation commenced a process of ‘curriculum mapping’ or ‘skills mapping’ and from there the competencies were developed to determine ‘Job Families’.
[22] Ms Steel said that the Working Parties in Science and Environment (Lab Analysts) began before the Agreement was certified and continued after its ratification. Ms Steel said that in order to meet career pathing opportunities (Sch 4) the process must be developed across ‘Job Families’ and cannot be achieved within a Job Type. A CDC for one Job Type would not achieve career pathing opportunities. She agreed it was a matter of efficiency and streamlining in not having large numbers of CDCs going through the process. However, there are now working parties for all the Job Types. She also agreed there was nothing stopping the Corporation having a CDC for each Job Type.
SUBMISSIONS
For the Union
[23] Mr T Slevin, of Counsel, submitted that the first matter to be determined concerns the proper construction of the words in cl 8 of the Agreement. He relied on the principles of award construction as discussed in City of Wanneroo v AMWU (1989) 30 IR 363 and Kucks v CSR Limited (1996) 66 IR 182.
[24] As to the scope question, Mr Slevin said it raises the issue of whether the Corporation has adequately identified the specific work groups or occupational groups to be covered. He put that the ‘make up’ issue has four legs:
...The first is whether the CDC is large enough to be broadly representative of the identified work group or occupational group (clause 8.2.5). The second is whether the members of the committee have sufficient skills and experience within the spectrum of work to be covered by the Competency Program to make a meaningful contribution to the CDC (8.2.7). The third is whether when calling for nominations for the CDC SW could specify that the employee representatives be one from each of the six (later five) job types rather than simply calling for nominations generally from the group of employees covered by the proposed program (clause 8.2.6). The fourth leg, which follows from the third is whether the nominations process, whereby SW required the nominees to each job type position determine who would sit on the committee, was in accordance with the requirement that all of the nominated employees be given the opportunity to vote on which of them would sit on the committee (clause 8.2.9).
[25] Mr Slevin submitted that there was a disconnect between what had occurred in respect to the Science and Environment CDC and the terms of cl 8 of the Agreement. There are obligations on the Corporation which have not been met. This dispute is about the process. The substance must fit within the agreed process for the proper identification of work and occupational groups. Mr Slevin said that in overseeing the development of the competency programs the CDC must be able to do the work it is required to do by having committee members who are representative and qualified to do so.
[26] In looking at the history of the dispute, the Union, from the outset, had complained that the CDC was a loose occupational group which was too broad and where jobs were entirely different. The breadth of the CDC also meant that the employee representatives could not possibly meet the requirement of having sufficient skills and experience, within the spectrum of work, to make a meaningful contribution. The information was also very detailed (see Ms Jans evidence). Mr Slevin said the Corporation had rejected the Union’s concerns and forged on; even forming working parties which have no place under the Agreement. The Union suggested turning the existing working parties into CDCs, but this was rejected by the Corporation. The Union had not rejected the possibility of some Job Types lending themselves to a single CDC and sought further discussion of those matters. Mr Slevin pointed to the Union’s criticisms of the nomination process and the duplication of different terminologies.
[27] Mr Slevin put that the CDC has a greater role than merely a procedural one. Its functions under Sch 4 and cl 8.2.2 are not merely procedural, but involve an exercise of substantive judgement. The ordinary meaning of the words are not ambiguous and support the construction of the clause asserted by the Union. Mr Slevin added that the words ‘broad agreement’ must mean something more than having one employee representative for 74 employees and one for 10 employees.
[28] Mr Slevin highlighted Ms Jans’ evidence concerning the complaints of the CDC being too broad and that the representative from one group having no idea about the work of another group. The time frames were also unrealistic. Ms Jans doubted that she could properly make an assessment of all Job Types within the CDC.
For the Corporation
[29] Mr Ferrier referred to cl 4 of the Agreement by noting that:
“The agreement should not be interpreted in a way that would hinder Sydney Water’s pursuit of the following objectives - and it details - the essential sustainable water services; protecting the environment; and protecting public health. This is significant considering how a competency arrangement should be made because our view is that the development of workforce capability is an essential part of Sydney Water meeting those objectives, and competency programs are an integral part of developing workforce capability.
[30] Mr Ferrier said that competency programs are an integral part of developing workforce capability. Hesaid that there are no definitions of ‘work group’ or ‘occupational group’ and the Corporation took account of both internal and external labour markets. The Corporation identified that the Science and Environment Group undertakes work in scientific and environmental monitoring and waste water quality. This was a reasonable career group and is not inconsistent with approaches taken by other large organisations. In any event, the final decision under cl 8.2.3 is one for the employer to make.
[31] Mr Ferrier submitted that if the Union’s position of a CDC covering every Job Type was accepted, the Corporation might end up with 40 to 50 CDCs taking four to six months each to complete their work. This was logistically unmanageable.
[32] Mr Ferrier rejected the Union’s contention that the CDC can only make a decision to approve a competency program before sending it to the employer. The employer has the ultimate discretion to accept or reject a CDC’s decision, including one which the CDC does not support. Mr Ferrier submitted that the Agreement provides for employees to have sufficient skills and experience within the spectrum of work and not across the spectrum of work. (Mr Ferrier’s emphasis.)
[33] Mr Ferrier also said that the Union’s proposal might mean that major programs could be halted by three self-appointed employees who come to a view that elements of a large and complex program, did not meet their satisfaction.
[34] Mr Ferrier outlined the employee nominating process and said it was conducted strictly according to the provisions of the Agreement. Mr Ferrier added that the total process has sufficient checks and balances and should proceed to finality. Finally, Mr Ferrier submitted that FWA should determine that the first statement is invalid and the second question should be answered in the affirmative.
In reply
[35] Mr Slevin firstly said that submissions about Australian and international standards are not relevant. What is relevant is what cl 8 of the Agreement provides for and how it regulates the development of competency programs.
[36] Secondly, the Corporation’s concerns as to logistical nightmares or some misguided employee frustrating the process, ignores the dispute mechanism provisions in cl 8.2.16. This clause should allay any of the Corporation’s concerns in that regard.
CONSIDERATION
[37] Two matters can be disposed of at the outset. Firstly, I do not consider much turns on the argument over the different terminology used in this dispute to describe the ‘Job Families’ used interchangeably with ‘Occupational Groups’ and ‘Job Types’ used interchangeably with ‘Work Groups’. The parties well understand the meaning of these terms. Nevertheless, I think it would be wise if, for no other reason than consistency, to reach agreement about the terms to be used in the future.
[38] Secondly, I do not consider that competency programs introduced under the 2004 Award are relevant to these proceedings. The relevant provisions are under the industrial instrument under which the parties currently operate - the Agreement. In any event, there is now an entirely different process for the development of competency programs than existed under the former Award. There is no doubt that the Corporation has the final say as to whether a particular Competency Program is to be introduced. However, under the Agreement it does so within both an advisory and consultative process - advisory; through the decisions of the CDC, and consultative; when it consults with the Union subsequent to its approval of the CDC’s recommendation.
[39] In my view, both processes must be given some genuine work to do and not given mere ‘lip service’. It should not be lost sight of that the 2009 Agreement has moved significantly (as far as the employer is concerned) in advance of what occurred under the 2004 Award. There, the Union could effectively veto the introduction of new competency programs. This is no longer the case. However, in my view, the function and role of the CDC is not as limited as contended for by the Corporation. So much so is evident by the terms of cl 8 itself, particularly when considered in the context of the intent of the totality of the clause. True it is that cl 8.2.11 refers to the CDC overseeing the design of the proposed Competency Program. However, in my opinion, these words must be referenced to cl 8.2.2 which states that “the agreed intention of the parties in designing Competency Programs.....”. In other words, it is the parties, through their various representatives on the CDC who design the Competency Programs. Moreover, the undisputed evidence of Ms Jans demonstrates a role for the CDC which is not limited to ticking off a check list in accordance with Sch 4 of the Agreement. Indeed, the preamble to Sch 4 makes it explicit that a CDC, in assessing the Competency Program Principles, does so within a ‘framework designed to align existing job skills and knowledge within the workplace with educational standards. Implementation will allow effective career development and will clearly identify current and future skills needs’. It is plainly a role of substance, not mere procedure.
[40] As a further extension of this proposition, I do not accept a scenario in which the CDC’s recommendation would be overturned by Management. It must follow from a plain reading of the words in 8.2.13 and the spirit of the clause overall, that the CDC would not send a rejected Competency Program to Management for consideration. In all circumstances, a CDC would only recommend a particular Competency Program for approval - not rejection. For once it is rejected, it seems to me that Management cannot overrule such a view. This must logically be so, given the requirement in cl 8.2.12 for ‘broad agreement’ in the CDC’s decision making. Obviously, this includes at least some of the Management representatives on the CDC. It can hardly have been the intention of the parties that Management would overrule its own representatives on the CDC.
[41] Further, in my view, under the terms of cl 8, Management is not able to vary, alter or approve a rejected Competency Program, without referring it back to the CDC. This must be so because cl 8 mandates a function of the CDC to test a competency program against the requirement that an employee not be disadvantaged by its introduction. I do not see how it is possible, under the clear and unequivocal terms of cl 8, for Management to conduct that exercise itself or ignore the CDC’s specific role in doing so.
[42] In addition, the plain wording of cl 8.2.13 concerning what happens when the ‘employer approves a Competency Program forwarded to it by the Committee’ makes clear what happens in those circumstances. There is no provision or reference, either explicit or inferred, as to what happens in the event of the employer receiving a rejected Competency Program. This fortifies my view that the Agreement does not envisage a scenario in which the employer would receive and implement a Competency Program which has not been approved, by ‘broad agreement’, of the CDC.
[43] In any event, pursuant to cl 8.2.16, there is always recourse to FWA in the event of any disputes or grievances as to the design, implementation or operation of a Competency Program.
[44] In my opinion, the evidence of Ms Jans makes it apparent that the current membership of the Science and Environment CDC does not meet the requirements of either cl 8.2.5 or cl 8.2.7. It is not large enough to be broadly representative of the identified work or occupational group and its members feel uncomfortable in having insufficient skills and experience to consider the spectrum of work to be covered by the Competency Programs. I do not consider Mr Ferrier’s interpretation of cl 8.2.7 means only that the Committee Member must have skills and experience ‘within’ the spectrum of work and not ‘across’ the spectrum. These words must be read down and in conjunction with the following words of explanation and the context of the entire subclause; that is their skills and experience must enable them to make ‘a meaningful contribution to the Committee’. Leaving aside the proper construction of the subclause, it would make little sense and be unfair on both the Committee Members themselves and those whose competencies they are considering, for them to make such decisions, uninformed, and without the relevant skills and experience.
[45] One answer to the present dispute, of course, is to convert the working parties considering Job Types into CDCs and be comprised of members chosen in accordance with the principles in cl 8. While I have no concluded view as to whether this is the only answer to the present dispute, and it really goes beyond the questions I have been asked to answer, the following comments may be of assistance to the parties.
[46] It seems to me that the Corporation’s concern as to such a large number of CDCs being unworkable is not sustainable for the following reasons: Firstly, the reality is that the rationale for having separate CDCs for each Work Group is already recognised by the Corporation because of the establishment (at its initiative) of working parties whose functions fulfil the very purpose contended for by the Union. In other words, the structures already exist, notwithstanding the Working Parties do not have the same formality or function of the CDC. Secondly, the change in numbers of the Science and Environment CDC from the original seven to five, demonstrates that more than one Work Group can be represented by a single CDC. This was accepted by the Union as a possibility and it is willing to seriously consider such an outcome for other groups.
[47] I would also reject Mr Ferrier’s concern that the alternative proposed by the Union could mean major programs could be halted by three self-appointed employees, who come to a view that a particular program does not meet their satisfaction. Two things may be said about this concern. Firstly, such a scenario is not dependent on the number of CDCs established, because even on Mr Ferrier’s logic, it can occur now with one single CDC. Secondly, the concern does not reflect the ultimate role of FWA to deal with any unjustified or unreasonable frustration of the process by either party.
[48] On one view, the Union’s proposal, rather than being logistically unmanageable, might in fact have the contrary effect. If this present dispute is any guide, then there exists the potential for long and protracted arguments for each of the nine occupational competency programs. That said, it seems to me that if the working parties become CDCs, and feed their deliberations directly to Management, then one level of the existing arrangements would be eliminated.
[49] For the aforementioned reasons, I find that the statement posed in the first matter for arbitration is a valid proposition within the meaning of cl 8 of the Agreement.
[50] As to the second question requiring determination, I would conclude that it must be answered in the negative. That said, if the CDC’s scope and functions are, as I have outlined earlier in this decision, I see no reason why it is necessary to depart from the clear process in the Agreement for nominating and selecting the CDC representatives.
DEPUTY PRESIDENT
Appearances:
Mr T Slevin of Counsel for the Union
Mr R Ferrier for Sydney Water Corporation
Hearing details:
2010
SYDNEY
1 July
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