Australian Workers' Union, The v Boral Resources (Vic) Pty Ltd

[2017] FWC 5980

[2017] FWC 5980

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Workers’ Union, The
v
Boral Resources (Vic) Pty Ltd
(C2017/2721)

Cement and concrete products
COMMISSIONER RYAN	MELBOURNE, 28 NOVEMBER 2017

Alleged dispute about classification of supervisor under the enterprise agreement.

[1] On 23 May 2017 The Australian Workers’ Union (AWU) made an application for the Commission to deal with a dispute in accordance with the dispute settlement procedure contained at clause 22.4 of the Boral Concrete Testers' Enterprise Agreement 2013 (the Agreement).

[2] The AWU’s application relates to Mr Trevor Nayda, a concrete tester employed by Boral Resources (Vic) Pty Ltd (Boral). The AWU describes the dispute as follows:

“The dispute concerns whether the work performed by Mr Trevor Nayda from around July 2009 should be covered by a Tester Grade 3, Tester Grade 4 or Supervisor classification as provided for in the Boral Concrete Testers Enterprise Agreement 2013 ("The Agreement') and the two preceding agreements.”

[3] This matter was subject to conciliation before me but remained unresolved.

[4] Directions were issued to the parties in relation to the filing and serving of witness statements and outline of submissions and the matter was listed for hearing on 16 October 2017. At the hearing the AWU was represented by Mr C. Winter and Boral Resources was represented by Mr R. Marshall of FCB Workplace Law, by permission. Evidence was given by Mr Trevor Nayda and by Mr Dean Almonte, Graeme Biffen and Troy Hannaford for Boral. The further proposed witness for the AWU, Mr Brendan Gaffey, was not available to attend.

[5] At the hearing on 16 October 2017 I put several questions to the parties on issues which I believed the parties had not addressed in their submissions and witness evidence. I then gave leave to the parties to file any further submissions following the conclusion of the hearing, if they so wished. Those questions were as follows:

1. Boral refers to two Grade 4 employees being classified as Grade 4 because of grandfathering, and that those employees do not have all of the qualifications of a Grade 4.  How does this reconcile with clause 1.5(a) of the Agreement?

2. What impact does the absence of a higher duties type provision have in relation to the interpretation of clause 2.4?

3. What is meant by the words 'when operational needs require the employee to perform these duties' in the Grade 4 classification definition?

4. During periods when Mr Nayda was performing the “allocator role” was Mr Nayda on the roster for Saturday and Sunday work in accordance with clause 3.1.3 of the Agreement?

5. How does the provision of clause 6.6 relating to on-site supervision interact with the positions adopted by both parties in relation to the interpretation of the agreement?

[6] The AWU elected not to make any further submissions in relation to the questions posed by the Commission. Boral took the opportunity of filing a further statement from Mr Almonte on 8 November 2017 which addressed issues raised by the Commission.

Background

[7] Mr Nayda was employed by Boral on an 18 month fixed-term contract to assist on the Victorian "East Link Project" in September 2005. At that time he was engaged as a Concrete Tester Grade 1 under the Boral Concrete Testers and Australian Workers Union Workplace Agreement 2007-2010 (the2007 Agreement). On 3 December 2007 Mr Nayda was placed on a subsequent fixed term contract and again classified as a Concrete Tester Grade 2. On 24 June 2008 Mr Nayda was offered full time employment by Boral as a Concrete Tester Grade 3, splitting his time between field work (i.e. undertaking concrete testing at client sites) and laboratory work at Boral's Thornbury Laboratory in Victoria (Laboratory). The 2007 Agreement contained a very broad provision relating to movement between grades:

“3.1.1: Tester Grade 2 to 4

Employees at this level will have experience to work independently in the field with minimal supervision, performing work expected of a competent concrete tester. Experience in the field and demonstrated competence in testing, analysis and interpretation of test results will be determinants to progress through levels. Competence will be determined by the Laboratory Supervisor and Technical Management".

[8] Both the Boral Concrete Testers Enterprise Agreement 2011 (the 2011 Agreement) and the Boral Concrete Testers Enterprise Agreement 2013 (the 2013 Agreement) contained the following provision in relation to the classification structure of employees covered by the agreement:

“Multi-Skilling and Competency Structure

Trainee Grade 1:

Employees at this level will perform routine duties essentially of a manual nature and work under direct supervision. There will not necessarily be an expectation of having previously acquired industry skills.

Employees will have undergone the Employer induction program, and will be required to undertake further training to achieve competency at Grade 2 level.

A training plan will be developed upon commencement to undertake 3 months training to become competent to grade 2.

Tester Grade 2:

Employees at this level will have undergone training as a Tester Grade I and would be assessed as competent as follows:

Conduct compression, flexural and indirect tensile sampling without

Supervision

Conduct VPV and shrinkage sampling

Conduct air tests on concrete without supervision

Perform all laboratory duties in regard to specimen recording

Raw material sampling as directed

[9] The 2011 Agreement and the 2013 Agreement contained slightly different wording in relation to Tester Grade 3 and Tester Grade 4. The respective provisions are set out below.

[10] The 2011 Agreement provides as follows:

“(c) Tester Grade 3:

Employees at this level will be able to perform the duties as listed for Grade 2, plus employees at this level would also be expected to be competent in carrying out four of the following seven combinations:

(i) Conduct yield testing and report findings

(ii) Organise and conduct Agitator Uniformity Testing without supervision

(iii) Perform laboratory duties in regard to all specimen testing

(iv) Super plasticise loads either at the concrete plant or on site

(v) Mix mapping and transfer

(vi) Obtain Certificate III in Laboratory Skills

(vii) Control and maintain shrinkage process

(d) Tester Grade 4:

Employees to obtain this level will be able to perform the duties as listed for Grade 2 and 3, plus employees at this level would also be expected to:

(i) Supervise tester activity in regard to both quality assurance and quality control testing as required

(ii) Supervise project work as directed

[11] The 2013 Agreement provides as follows:

“(c) Tester Grade 3:

Employees at this level will be able to perform the duties as listed for Grade 2, plus be competent in carrying out four of the following seven tasks:

(i) conduct yield testing and report findings

(ii) organise and conduct Agitator Uniformity Testing without supervision

(iii) perform laboratory duties in regard to all specimen testing

(iv) super plasticise loads either at the concrete plant or on site

(v) mix mapping and transfer

(vi) obtain Certificate III or IV in Laboratory Skills

(vii) control and maintain shrinkage process

(viii) allocating testers work

(d) Tester Grade 4:

Employees to obtain this level will be able to perform the duties as listed for Grade 2 and (7 out of the 8 requirements in) Grade 3 when the operational needs require the employee to perform these duties. In addition an Employee at this level is expected to:

(i) supervise tester activity in regard to both quality assurance and quality control testing as required; and

(ii) supervise project work as directed

Supervisor:

The Supervisor shall be selected by management. There will be duties associated with the administration and management of the laboratory and the direct supervision of the concrete testers in the technical department.

[12] The Supervisor classification was expressed in the same terms in both the 2011 Agreement and the 2013 Agreement as follows:

“Supervisor:

The Supervisor shall be selected by management. There will be duties associated with the administration and management of the laboratory and the direct supervision of the concrete testers in the technical department.”

[13] From 2009 to 2016 Mr Nayda was primarily performing work in the laboratory rather than in the field. In about November 2016 Mr Nayda was returned to full time field work as a reorganisation within Boral meant that the laboratory based work that Mr Nayda had been performing was allocated to s different location and to a new employee employed in a role which was not covered by the Agreement.

Applicant’s Case

[14] The essence of the case advanced by the AWU was put as follows in the written submissions of the AWU:

“13. …….in 2009 ………Mr Nayda was asked by Dean Almonte to cease being a Concrete Field Tester and work full time in the Laboratory in Thornbury.

14. Mr Nayda went from being a Concrete Field Tester who would travel to various construction sites across Melbourne, performing duties as a Tester Grade 3 to performing duties that were nominally carried out by a Supervisor or Tester Grade 4.

17. The work Mr Nayda has been performing since around July 2009 has not been that of a Tester Grade 3, but that of a Supervisor or Tester Grade 4 in accordance with the Agreement. The Tester Grade 3 Classification contained in the 2007-2010 Agreement only covered Testers working in the field.

19. Mr Gaffey will give evidence that he along with the other Field Testers would report to Mr Nayda, and that Mr Nayda would perform duties that of a Supervisor. Including allocating work, maintaining vehicles and dealing directly with clients.

[15] The evidence of Mr Nayda included the following:

“12. On or about 2009 I was asked to change roles by Dean Almonte because Simon had resigned from the Company. I went from being based on the road visiting sites, to working full time in Laboratory in Thornbury. I no longer performed the duties of field tester.

13. My work in the Laboratory in Thornbury changed significantly and I was required to take on duties that was (sic) traditionally performed by the supervisor, or at least a Tester grade 4, this included:

• The allocating of jobs to other concrete testers.

• Liaising directly with customers.

• Oversee and make autonomous decision while directing Boral Concrete Testers and Sub Contractors in their daily movements and duties, both in the field and the laboratory.

• I was instructing Level 4 Employees

• I was directly held responsible for the performance of Field Testers and

Laboratory employees.

• I was also responsible for the regular maintenance of the yard and the equipment.

• Including the calibration of equipment

• I reported directly to Dean Almonte who at that time hand been promoted, and Mario Tebone both Technical Managers.

14. By working in the Laboratory, I no longer received, site allowances or shift allowances which resulted in a significant loss of income. In addition most of the work I was asked to perform did not fit within the Tester Grade 3 Classification.”

Respondent’s Case

[16] The Respondent’s submissions of 22 September 2017 were relevantly:

“6. In order for an employee to progress between grades in the Agreement, an employee must be assessed by their Supervisor (ordinarily as part of a 6 monthly review) as meeting the competencies specified in the Agreement. The employee's Supervisor will then make a recommendation to the relevant Regional Manager who will then undertake an objective assessment as to whether or not the individual should progress to the next pay grade.

7. If the assessment undertaken by the Regional Manager determines that the employee should progress, the Regional Manager will liaise with Human Resources to implement the change.

8. All promotions between pay grades across the Agreement are at the absolute discretion of Boral and the Regional Manager.

14. As a Grade 3 Concrete Tester, Mr Nayda was responsible for undertaking all the duties set out above competently, and reported into a more senior supervisor. As part of his role, Mr Nayda would also "allocate work" which would require him to allocate client jobs to other Concrete Testers. The allocation of work to Concrete Testers is not a stand-alone role and is a role undertaken by many employees including but not limited to Grade 3 employees.

20. In or around late 2012 Mr Nayda again approached Mr Biffin. At this time Mr Nayda requested that he be promoted to Concrete Tester Grade 4 in accordance with the Agreement. In accordance with Boral protocol, Mr Biffin undertook a review of Mr Nayda's competencies against the skills outlined in the Agreement based on his own observations.

21. Upon review of the relevant information, Mr Biffin concluded that Mr. Nayda lacked the relevant competencies set out in the Agreement to be promoted from Concrete Tester Grade 3 to Concrete Tester Grade 4, based on the following observations:

(a) Mr Nayda could not mix map;

(b) Mr Nayda had no current supervision of employees, was not able to supervise employees and could not be trained to do so; and

(c) Mr Nayda did not have the relevant certifications required by the Agreement.

22. Mr Biffin consequently met with Mr Nayda and explained that he did not believe that Mr Nayda had the relevant skills to progress between levels. No further discussions were had in relation to any progression and the matter was not raised again by Mr Nayda with Mr Biffin or any other supervisor.

23. In or around late 2016 as part of preparation for a new enterprise agreement, a further assessment was undertaken by Boral. At this time Mr Nayda, and all other Concrete Testers' competencies were again assessed by Mr Biffin and Mr Andrew Patterson, General Manager Human Resources (Southern Region), against the relevant skills matrix.

24. Mr Biffin in conjunction with Mr Patterson considered the Applicant's skills and determined that while he was competent and fluent in undertaking the skills required of a Grade 3 Concrete Tester, he was unable to demonstrate that he should progress to a higher grade for reasons including that Mr Nayda:

(a) continued to lack more complex testing skills such as mix mapping required of a Grade 4;

(b) was unable to supervise employees of lower classifications or provide direction beyond the allocation of work;

(c) had not been involved in providing any direction to any other employee aside from taking calls from the Call Centre in Port Melbourne in relation to client sites and jobs and allocating testers based on an existing worksheet, requiring them to attend various projects across Metropolitan Melbourne;

(d) did not have any authority on behalf of Boral to make autonomous decisions';

(e) was never held accountable for supervising any testers or the quality of their work. Any direction provided by Mr Nayda to other employees would have been based on instructions from supervisors above him and Mr Nayda would have acted merely as a conduit for that information9;

(f) did not hold the relevant certifications needed to progress in accordance with the Agreement; and

(g) although Mr Nayda had a thorough knowledge of concrete and was able to articulate this when liaising with clients, he could not manage mix designs or sign off on reports as required by a Concrete Tester Grade 4 employee.

25. In view of all of the above, the Respondent maintains that Mr Nayda is appropriately classified in accordance with the Agreement.

26. Further the Respondent rejects the alternate submission made by the Applicant that despite Mr Nayda's formal engagement as a Concrete Tester Grade 3 under the Agreement, and no formal appointment to a Supervisor, as required by clause 2.4 of the Agreement, that Mr Nayda is appropriately classified as a Supervisor due to the allocator duties he undertook.

27. The Respondent submits that Mr Nayda did not, and does not have the competencies or acquired the skills to undertake Supervisory duties, which aside from needing to be formally appointed to in accordance with clause 2.4(3) of the Agreement, would involve Mr Nayda;

(a) monitoring and approving wages and timecards;

(b) answering questions in relation to the Agreement and any Human Resources matters (as a first point of call);

(c) monitoring and scheduling applications for leave and absences;

(d) overseeing scheduling issues were the allocator is unable to do so for example, in circumstances where the allocator is unable to draft or work the roster appropriately;

(e) managing training requests and requirements such as inductions on site;

(f) undertaking performance management of employees and holding all Concrete Testers employed under the Agreement to account for their performance and behaviour;

(g) managing vehicles including but not limited to inspecting the state of vehicles and monitoring their maintenance and insurance;

(h) auditing the laboratory in conjunction with the National Association of Testing Authorities;

(i) directing the work of testes, ensuring the needs of customers are met;

(j) managing client relationships;

(k) completing all Work Cover paperwork including managing employees who are engaged on light duties.

28. The Respondent reiterates that the allocation of client work is not a stand-alone role, nor is it indicative of more senior position. Instead it is a role required to be undertaken at all grades.

29. Between January 2008 and March 2016 Boral has had four employees engaged as Supervisors in accordance with the Agreement. In accordance with the Agreement all four supervisors have been formally appointed.

30. It is the Respondent's view that at no point was Mr Nayda undertaking the duties set out in paragraph 28 of these submissions, but further to that, Mr Nayda was never formally appointed to the role of Supervisor in accordance with clause 2.4(e). Mr Nayda was at all times a Grade 3 Concrete Tester in accordance with the Agreement who undertook allocation duties as an employee of that grade.

33. Having regard to the structure of the relevant classification criteria in the Agreement, which sets out that to obtain a Grade 4 level "Employees ... will be able to perform the duties as listed for Grade 2 and 7 out of the 8 requirements in Grade 3 when operational needs require the Employee to perform these duties" and further, that "the Supervisor shall be selected by management" neither Grade 4 nor Supervisor have any relevance to the work actually performed by Mr Nayda namely because:

(a) he does not meet 7 of the 8 criteria required to move from Grade 3 to

Grade 4; and

(b) he is not responsible for the supervision of employees; and

(c) he has not at any stage been selected or promoted by management.

34. On a proper reading of all the evidence, Mr Nayda is appropriately classified as a Grade 3 Concrete Tester. Mr Nayda engages principally and substantially in the role of a Grade 3 Concrete Tester, has no responsibility for the supervision, training or co-ordination of any other employees as is required by both the Grade 4 Concrete Tester and Supervisor role.”

Consideration

[17] The issue raised by this dispute requires determination of the correct classification for Mr Nayda across three separate enterprise agreements which covered him from 2009 to November 2016.

The dispute and the 2007 Agreement

[18] The 2007 Agreement provides that allocating an employee to a specific classification at level 2, level 3 or level 4 is dependent upon an employee having “experience in the field and demonstrated competence” in a number of areas but where the employee’s competence is solely determined by the Laboratory Supervisor and Technical management.

[19] Progression was not automatic but was as determined by Boral. In the period between 2009 and the end of the 2007 Agreement (25 July 2011) it would appear that Mr Nayda was not considered by Boral to have the necessary competencies to advance from Level 3 to Level 4.

[20] The 2007 Agreement contains no process enabling an employee to request reclassification and contains no process requiring Boral to consider reclassification.

[21] The 2007 Agreement also provided that Supervisors “shall be selected by management” but without providing any guidance as to how that might occur.

[22] The 2007 Agreement contained a Dispute Resolution Procedure at clause 8.3 which applied to “all disputes and/or grievances between the Employer and Employees concerning matters pertaining to the employment relationship but excluding anything which would constitute prohibited content under the Workplace Relations Act as amended.” The disputes procedure provided for the then AIRC to conciliate or arbitrate the dispute if the dispute resolution steps set out in the clause were complied with.

[23] It is clear that the 2007 Agreement permitted Mr Nayda to raise a dispute or grievance about his classification level. Any failure by Boral to have considered a request from Mr Nayda for reclassification or any decision by Boral not to reclassify Mr Nayda would have been amenable to the dispute resolution procedure in the 2007 Agreement and could ultimately have been determined by the AIRC.

[24] It is also clear that at no stage whilst the 2007 Agreement covered Mr Nayda did he use the dispute resolution procedure in that Agreement.

[25] It would be singularly inappropriate to use the current dispute arising under the terms of the 2013 Agreement to deal with an alleged dispute under the 2007 Agreement when the dispute resolution procedure in the 2007 Agreement was not used by Mr Nayda.

The dispute and the 2011 Agreement

[26] The language of the classification structure in the 2011 Agreement is both absolutely clear and totally unambiguous in setting a condition precedent for movement from Tester Grade 3 to Tester Grade 4. The condition precedent is that an employee “will be able to perform the duties as listed for Grade 2 and 3”.

[27] The evidence is clear that for the period that Mr Nayda was covered by the 2011 Agreement he could not perform the duties listed for Grade 2 and 3 of the 2011 Agreement. At the very least Mr Nayda did not have a Certificate III in Laboratory Skills and Mr Nayda could not perform the task of “mix mapping and transfer”.

[28] The evidence establishes that at no time whilst the 2011 Agreement covered Mr Nayda did he meet the condition precedent necessary for reclassification to Tester Grade 4.

[29] The evidence in this matter clearly establishes that Mr Nayda was undertaking the task of “allocating testers work”. This was a task which Boral contended “is a role undertaken by many employees including but not limited to Grade 3 employees.”

[30] Whilst the 2013 Agreement specifically added “allocating testers work” as a task to be performed by Tester Grade 3 employees it was not a task for Tester Grade 3 employees under the 2011 Agreement. Therefore whilst Mr Nayda was covered by the 2011 Agreement and was performing the task of “allocating testers work” he was performing a task for Boral which was additional to the task required to be performed as a Tester Grade 3. Having said that, it is also clear that the task of “allocating testers work” was not a task specifically allocated to the classification of Supervisor.

[31] Given that the task of “allocating testers work” was not a task identified for a Tester Grade 3 under the 2011 Agreement it follows that the task of “allocating testers work” was not a task comprehended by the wage rates for a Tester Grade 3 under the 2011 Agreement. In other words Mr Nayda, whilst covered by the 2011 Agreement and whilst performing the task of “allocating testers work”, may not have been paid an appropriate rate for that work. The fact that the task of “allocating testers work” was added to the tasks of a Tester Grade 3 under the 2013 Agreement does not mean that during the life of the 2011 Agreement that the appropriate rate of pay for “allocating testers work” was the rate for a Tester Grade 3.

[32] Mr Nayda has also sought to be classified as a Supervisor under the 2011 Agreement. It is clear from the plain language of the 2011 Agreement that movement from a Tester to a Supervisor is at the discretion of management of Boral. Boral declined at any time that Mr Nayda was covered by the 2011 Agreement to select him for advancement to Supervisor. It is the fact of not being selected by Boral as a Supervisor which provides the soundest basis for determining that Mr Nayda, whilst covered by the 2011 Agreement, should not have been classified as a Supervisor.

[33] The fact that the classification of Supervisor includes “duties associated with the administration and management of the laboratory and the direct supervision of the concrete testers in the technical department” is insufficient to identify all of the duties which are comprehended by the classification. The evidence presented by Boral as to the duties of a Supervisor is uncontentious and should be accepted. It is clear that Mr Nayda has not performed all of the duties identified by Boral as being duties of a Supervisor and this supports a finding that Mr Nayda should not have been classified as a Supervisor whilst covered by the 2011 Agreement.

The dispute and the 2013 Agreement

[34] Much of the discussion concerning the Tester Grade 4 and Supervisor under the 2011 Agreement also applies to the consideration of the same matters under the 2013 Agreement.

[35] It is clear that under the 2013 Agreement the task of “allocating testers work” is a Tester Grade 3 task.

[36] There is a difference in the language for Tester Grade 4 as between the 2011 Agreement and the 2013 Agreement. Whereas the 2011 Agreement contained a simple condition precedent relating to the ability “to perform the duties listed for Grade 2 and 3”, the 2013 Agreement restates the condition precedent as relating to the ability “to perform the duties as listed for Grade 2 and (7 out of the 8 requirements in) Grade 3 when the operational needs require the employee to perform these duties”.

[37] It is not clear to the Commission what impact the additional words ‘when the operational needs require the employee to perform these duties” has on the Tester Grade 4 classification but in the circumstances of this matter it is not necessary to come to any concluded view as to the meaning of those words.

[38] It is sufficient for the disposition of this matter to note that the condition precedent for Tester grade 4 remains that an employee must able to perform the duties as listed for Grade 2 and 7 out of the 8 requirements in Grade 3.

[39] As the evidence in this matter makes clear Mr Nayda is not able to perform or meet 7 out of the 8 requirements in grade 3. On his own evidence Mr Nayda has not obtained a Certificate III or Certificate IV in Laboratory Skills and Mr Nayda cannot perform the task of “mix mapping and transfer”.

[40] The evidence establishes that at no time whilst the 2013 Agreement covered Mr Nayda did he meet the condition precedent necessary for reclassification to Tester Grade 4.

[41] Given that the 2013 Agreement uses the same words to describe the Supervisor classification I adopt what I said in relation to Mr Nayda not being entitled to be reclassified to the Supervisor classification under the 2011 Agreement and apply to the 2013 Agreement.

Conclusion

[42] In accordance with the terms of the 2011 Agreement and the 2013 Agreement at all times whilst covered by those Agreements Mr Nayda was entitled to be classified as Tester Grade 3 and Mr Nayda was not entitled to be classified as Tester Grade 4 or Supervisor.

Recommendation

[43] The above decision accords with the principles for interpreting an enterprise agreement and in particular the requirement of s.739(5) of the Act that the Commission must not, in dealing with a dispute arising under the disputes procedure of an enterprise agreement, make a decision that is inconsistent with the enterprise agreement.

[44] Having said that, it is necessary to note the inconsistent treatment accorded to employees by Boral. The evidence of Boral is that two concrete testers who do not meet the condition precedent for classification to Tester Grade 4 are currently classified as Tester Grade 4 and have been in receipt of that classification for many years. These two employees classified as Tester Grade 4 are, on the evidence of Boral’s witnesses, doing no more than Tester Grade 3 work, although they do that work at a consistently high quality level. Even accepting the evidence of Boral’s witnesses that Mr Nayda does not perform field work to the same high standard as these two employees it is clear from the evidence that between 2009 and November 2016 Mr Nayda operated primarily from the laboratory location doing a range of duties which were not required of him as a Tester Grade 3 but for which Boral took the benefit.

[45] It is odd in such circumstances as the present that Boral relies upon a precise application of the terms of the 2011 and 2013 Agreements to deny Mr Nayda anything other than Tester Grade 3 rates of pay whilst at the same time paying two employees, who only meet the requirements for Tester Grade 3, the higher rate of Tester Grade 4. Boral has exercised a discretion to pay the two employees above their entitlement under the terms of the 2013 Agreement whilst not exercising the same discretion to pay any additional monies to Mr Nayda.

[46] The Commission recommends that Boral pay to Mr Nayda for the period from 26 July 2011 (the date of commencement of the 2011 Agreement) until Mr Nayda was returned to field work in early 2017 an amount equal to half of the difference between a Tester Grade 3 and Tester Grade 4. It is very clear that the circumstances which gave rise to this dispute are not likely to occur again given the restructure in Boral’s business which occurred in late 2016 or early 2017. As this dispute is a “one off” it is the type of matter which lends itself to a “one off” solution. Whilst there was a clear contest between the evidence relied on by the AWU and the evidence relied on by Boral as to what duties Mr Nayda actually performed whilst working in the laboratory from 2009 until his transfer back to field work in early 2017 the Commission prefers the evidence of Mr Nayda. Mr Nayda was doing more than he was required to do whilst working in the laboratory and Boral certainly got the benefit of Mr Nayda’s extra effort. Just as the two employees who are classified and paid as Tester Grade 4 because they are good workers rather than being entitled to the classification so should Boral recognise the efforts of Mr Nayda whilst he was working in the laboratory. An appropriate level of recognition is to pay him half of the difference between Tester Grade 3 and Tester Grade 4.

[47] A recommendation from the Commission is nothing more and nothing less than a recommendation. There is no obligation on Boral to adopt the recommendation and in making a recommendation the Commission is not creating or even recognising any right of Mr Nayda to be paid anything above Tester Grade 3 rates of pay. However, a recommendation is made to address the industrial relations issues at play in this dispute whereas the decision in this matter addresses the dispute through the specific language of the Agreements and the specific requirements of the Act. The decision and the recommendation can happily coexist.

COMMISSIONER

Appearances:

C. Winter on behalf of The Australian Workers’ Union.

R. Marshall on behalf of Boral Resources (Vic) Pty Ltd.

Hearing details:

2017.

Melbourne:

October 16.

Final written submissions:

Respondent by November 8, 2017.

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<Price code C, AE403920  PR597721>