DECISION

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

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Agilent Technologies Australia Pty Ltd
(C2013/1106)

COMMISSIONER ROE

MELBOURNE, 9 FEBRUARY 2015

Arbitration under disputes settlement procedure of Agreement - appropriate classification of technical employees - partial resolution of the dispute by determination of the Competency Standards Implementation process in accordance with the National Metal and Engineering Industry Competency Standards Implementation Guide.

[1] On 1 May 2014 I issued a decision finalising Step 3 of the Competency Standards Implementation process for technical employees at Agilent Technologies Australia Pty Ltd (Agilent). 1 This decision substantially resolved a very long running dispute about the employees’ classification. However, two matters remain in dispute concerning the classification outcome for the employees which flows from the earlier decision:

1. The disputed issue of whether or not an Agilent employee, without a relevant qualification at the C5 level, can be classified at C5 given that the core unit MEM30007A is not a part of the profile for line technicians.

2. There are some tasks in the profile which Agilent argue were not performed or required to be performed by particular individuals and as a consequence certain associated competencies should not be allocated to those individuals.

[2] This decision relates to the first of these matters. The parties agreed that it should be determined following written submissions which were received by 16 January 2015. Directions have been issued for the resolution of the second matter. I have carefully considered the submissions of the parties in reaching my conclusions.

[3] The appropriate classification of employees under the Manufacturing and Associated Industries and Occupations Award 2010 is achieved by reference to the Award terms and the Competency Standards Implementation Guide (the Guide).

[4] Employees can be classified based upon:

a. The achievement of the minimum training requirement specified for the classification level. For example, a trade certificate level 3 is a minimum training requirement for C10 and an advanced diploma is a minimum training requirement for C3. The minimum training requirement can be achieved by successfully completing a course of training at a Registered Training Organisation. In some cases an RTO may grant advanced standing or recognise prior learning for all or part of a qualification. Or

b. Using the competency standards implementation process as set out in the Guide and the points allocated to those competency units. At Step 3 of the process the competency units associated with the skill requirements for work in a particular job or skill area are identified. The competency units actually held by an individual worker from this job or skill area competency list or profile are then determined. The classification outcome flows from the number of competency unit points held. In some cases it is the additional points held beyond the minimum training requirement for a lower classification level which are considered. In some cases a number of the points have to come from a certain category of more advanced units. Or

c. Where the competency standards for a classification level are not expressed in points the classification is to be determined on the basis of the relative proportion of competencies in the competency standards held and utilised by the employee which are equivalent to the specified minimum training requirements in a classification level (Clause 24.3(b)(vi) of the Award).

[5] The competency standards requirements for qualifications in the trades and production fields are expressed in points. Relevantly this includes the Diploma of Engineering - Advanced Trade which is a minimum training requirement of C5. The competency standards requirements for qualifications in the technical field and the Diploma of Engineering - Technical (which is a minimum training requirement of C5) and the Advanced Diploma of Engineering (which is a minimum training requirement of C3) in particular, are not expressed in points.

[6] I am satisfied that to be classified as a C5 Advanced Engineering Tradesperson without the minimum training requirement it is necessary to achieve 60 additional points above C10 including mandatory units (Clause 24.3(v) of the Award). The mandatory units are the core band 2 units and the required number of points from B band units (including dual band units). This point is emphasised in the Guide where it states that: “at classification levels C9 to C6, Core Band 2 units may be included, but the full 16 points from the Core band 2 units must be included in the total number of points in order to be recognised at C5.” The details of the Training Package requirements have changed and developed since the Guide was written, however, the general principle is still applicable.

[7] I am satisfied, when considered in the context of the history of the various provisions, that the term classification level is a reference to the classification title read in conjunction with the relevant C level in Clause B.2.1 of the Award. The competency standards with accompanying points were developed first for the production and trades classifications between C14 and C5. For example, page 39 of the Guide noted that competency standards had not yet been finalised for technical employees and alternative provisions applied to them. The provisions in Clause 24.3(b)(vi) of the current Award have developed from those alternative provisions in earlier versions of the Award. The development of competency standards in the technical field occurred much later, beginning with the development of the standards for laboratory workers. Points were not generally allocated to the competency standards in the technical field.

[8] I am satisfied that Engineering/Laboratory Technician Levels 1 to V and Engineering Associate/Laboratory Technical Officer Levels 1 to 2 at C9 to C3 are classification levels “where the competency standards for a classification level are not expressed in points.” Where an employee does not meet the minimum training requirement (or equivalent through Recognition of Prior Learning) for these levels, their classification is to be determined on the basis of the relative proportion of competencies in the competency standards held and utilised by the employee which are equivalent to the specified minimum training requirements in a classification level.

[9] My decision of 1 May 2014 has finalised the matter of the competency standards units held and utilised by the employees, subject only to finalisation of the contested issue of tasks in the profile which Agilent argue were not performed or required to be performed by particular individuals. The issue therefore is what is the relative proportion of competencies which is equivalent to the minimum training requirement specified for Engineering/Laboratory Technicians and Engineering Associate/Laboratory Technical Officers and Engineering/Laboratory Technician Level V in particular?

[10] The Award specifies this as follows (Clause B.2.1):

C8 Engineering/Laboratory Technician—Level II	40% towards an Advanced Diploma of Engineering, or 60% towards a Diploma of Engineering—Technical, or equivalent
C7 Engineering/Laboratory Technician—Level III	Certificate IV in Manufacturing Technology, provided that the minimum experience required for a Technology Cadet has been completed, or Certificate IV in Laboratory Techniques, or 45% towards an Advanced Diploma of Engineering, or 70% towards a Diploma of Engineering—Technical, or equivalent
C6 Engineering/Laboratory Technician—Level IV	50% towards an Advanced Diploma of Engineering, or 85% towards a Diploma of Engineering—Technical, or equivalent.
C5 Engineering/Laboratory Technician—Level V	Diploma of Engineering—Technical, or equivalent.
C4 Engineering Associate/ Laboratory Technical Officer—Level 1	80% towards an Advanced Diploma of Engineering, or equivalent.
C3 Engineering Associate/ Laboratory Technical Officer—Level II	Advanced Diploma of Engineering, or equivalent.

[11] It is clear that in the technical field the benchmark for classifications can be either by reference to the Diploma of Engineering Technical or the Advanced Diploma of Engineering. There is no requirement to complete the Core units of the Advanced Diploma of Engineering until C3. The minimum training requirement at C3 includes the core units of the Advanced Diploma.
[12] It is possible to use the Advanced Diploma Engineering as the reference point for classification at C8, C7, C6, C4 and C3. For the following reasons I am satisfied that it can also be used as the reference point for C5.

[13] The term “or equivalent” is defined in the Award as including:

“any training which a registered provider (e.g. TAFE), or State recognition authority recognises as equivalent to a qualification which Manufacturing Skills Australia recognises for this level, which can include advanced standing through recognition of prior learning and/or overseas qualifications; or

where competencies meet the requirements set out in the Manufacturing Skills Australia competency standards in accordance with the National Metal and Engineering Competency Standards Implementation Guide.”

[14] Completion of the Diploma of Engineering Technical will give a candidate for the Advanced Diploma of Engineering automatic advanced standing. This is because the bank of competency units which are utilised for the lower level qualification are also utilised for the higher level qualification. The structure of the two qualifications is also directly comparable. The term “or equivalent” relates to any training which is recognised as equivalent to the qualification for this level and this includes advanced standing through recognition of prior learning. There is no doubt that the Diploma of Engineering Technical is equivalent to a proportion of the Advanced Diploma Engineering.

[15] The total number of competencies required for the Diploma of Engineering Technical is approximately 66.7% of the total number of competencies required for the Advanced Diploma of Engineering. This is the relative proportion of competencies which are equivalent to the specified minimum training requirements at C5.

[16] To meet the requirements for C5 in the technical field the profile must meet one of two benchmarks:

● The requirements equivalent to the Diploma of Engineering Technical - that is, the 5 core units and at least 15 elective units consisting of up to 8 group A units and at least 7 group B units (this can include up to 3 equivalent units from other training packages); or

● The requirements equivalent to 66.7% of the Advanced Diploma Engineering - that is the relevant proportion of the 30 units of which up to 8 can be group A units and at least 22 are group B or core units (this can include up to 5 equivalent units from other training packages).

[17] The profile in this case does not meet the requirements by reference to the Diploma of Engineering Technical because one of the core units is not in the profile. However, it could meet the requirements of the relevant proportion of the competencies which are equivalent to the specified minimum training requirements of C5 utilising the Advanced Diploma Engineering as the reference point. This would require a total of 20 units. There can be no more than 8 Group A units in the total of 20 units. There are 4 core units. Therefore there must be at least 8 Group B units.

[18] I am not satisfied that there is any requirement for the work to be compared to that which is required for C3, that is, the level which uses the full Advanced Diploma Engineering as the minimum training requirement. The circumstances of this case are about classification based upon the competency standards not based upon the minimum training requirement.

[19] When an employee is classified based upon the minimum training requirement there is no requirement for each competency unit in that qualification to be relevant to the job requirements. However, when an employee is classified based upon the competency standards implementation process there is a requirement that each of the competency standards in the profile generally meet the requirements of the job. As indicated in my earlier decision this involves a best fit approach and not every aspect of a particular competency unit, particularly prerequisite units and core units, will be an exact fit to the job requirements. However, the process focuses on the job requirements much more closely than in the case of classification by use of the minimum training requirement. This provides significant safeguards to employers that classification based upon the competency standards implementation guide will have relevance to work requirements. It would be inconsistent with this approach to artificially restrict progression by reference to matters which are not relevant to the job requirements.

[20] I determine the dispute about whether or not an Agilent employee, without a relevant qualification at the C5 level, can be classified at C5 given that the core unit MEM30007A is not a part of the profile for line technicians by finding that an employee can be classified at C5 without that core unit. In the context of the job profile in this case an employee would require a total of 20 units from the profile; of which 8 would be Group A units, 4 are core units and at least are 8 Group B units (including up to 5 from other packages).

COMMISSIONER

Final written submissions:

16 January 2015

1 [2014] FWC 2813.

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