[2020] FWC 4939

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Boeing Aerostructures Australia Pty Limited T/A Boeing Aerostructures Australia
(C2020/1263)

COMMISSIONER MCKINNON

MELBOURNE, 15 SEPTEMBER 2020

Reclassification dispute under enterprise agreement.

[1] On 12 November 2019, I held that Boeing had an obligation to assess a reclassification application by Don Bennett, Aerospace Tradesperson employed by Boeing Aerostructures Australia Pty Ltd, in accordance with Part 13 of Boeing Aerostructures Australia Pty Ltd (Port Melbourne) Enterprise Agreement 2018. Boeing says it proceeded to do so in December 2019. The Australian Manufacturing Workers’ Union says it did not. Much of the history of the matter is recounted in the first Decision 1 and I do not repeat it.

[2] The questions for determination are now these:

1. What does “reclassification successful” mean in a numerical sense in the context of an assessment for reclassification against the Common Standards in Attachment 2 to Part 13 of the Agreement?

2. Since the first Decision, has Mr Bennett been assessed for reclassification under Part 13 in accordance with the Agreement?

a. Were the scores he received on the assessment reasonable and based only on relevant considerations?

b. Was the outcome of the assessment pre-determined by Boeing?

3. Did Boeing or any of its employees act dishonestly, with bias or in a way that was plainly unreasonable, arbitrary or capricious in relation to the application for reclassification?

[3] The Agreement covers each of the parties to this dispute. It contains a Disputes Avoidance Procedure in Part 2 which empowers the Commission to deal with disputes over matters arising under the Agreement by mediation, conciliation and, if the dispute remains unresolved, arbitration. The questions for determination above are each matters arising under the Agreement.

The meaning of “reclassification successful” in Part 13 of the Agreement

[4] Part 13 of the Agreement sets out a process for reclassification from Aerospace Tradesperson 1 (103 tradesperson) to Aerospace Tradesperson 2A (110 tradesperson). The words “reclassification successful” are found at the bottom of an agreed assessment score sheet in Attachment 2 of Part 13. The words are not defined. An employee is given a ‘rating’ between 0 and 5 for each of 16 “common standards” that apply to Aerospace Tradespersons “across Boeing Manufacturing Centres at Fishermans Bend”. There is also a D Stamp requirement, which comes after reclassification is approved. Part 13 contains no express guidance about what ratings are required either in relation to each common standard or overall, to achieve an outcome of “reclassification successful”.

[5] How then to ascertain what “reclassification successful” means? The starting point is to consider the ordinary meaning of the words used in the Agreement, having regard to their context and evident purpose. 2 The search is for the objective common intention of the makers of the enterprise agreement, having regard to the language used to give effect to their agreement. Only where there is ambiguity, evidence tending to establish relevant objective background facts known to both parties may be admitted to aid interpretation.

[6] In the first Decision, I considered the language of the Agreement as it relates to Part 13 of the Agreement and held that there is an emphasis in the Agreement on the development and recognition of employee skills and career progression. Employees who have and use relevant skills or qualifications in their work are to be recognized and rewarded in a manner that is consistent with the terms of the Agreement.

[7] Consistent with this purpose, the Agreement’s classification structure has been developed to allow for the development of career opportunities based on training and a flexible approach to work organisation and output. It is unique to Boeing. Clauses 9.1-9.5 explain that the classification definitions reflect training qualifications and work skills at each level. They are broadly based and generic in nature. They sit within a structure that the parties have agreed sets appropriate relativities, wage rates, skill levels and training requirements.

[8] Assessment for the purposes of reclassification under Part 13 is applicable to employees not yet classified at that level and who meet the description of “operator” who has held a clean “C” stamp for at least 6 months – which I take to mean a 103 tradesperson under the Agreement (see page 10, page 106 and Part 9 of the Agreement including the reference on page 84 to signing off one’s own work “by stamp”).

[9] To achieve reclassification under Part 13, a 103 tradesperson must provide supporting evidence in relation to each of the common standards. Of the 16 common standards, 11 are competency-based and deal with particular work functions, skills or knowledge. The other 5 can be described as ‘behavioral’ attributes (interpersonal skills, attitude, productivity, performance and quality). A score sheet included in the Agreement helps to explain the kind of evidence required for at least the competency-based standards.

[10] Part 13 also provides that the Training Department is available for pre-assessment consultations to assist employees to understand what particular supporting evidence is required. The purpose of this commitment, together with inclusion of the prescribed score sheet, is to ensure employees have an opportunity to understand the basis upon they will be assessed and to give them a reasonable chance of success. The opportunity is to be provided before an employee applies under Part 13 and before their application is assessed.

[11] Each of these features inform an understanding of what it means to achieve “reclassification successful” in Part 13 of the Agreement.

The ratings scale

[12] The Agreement does not deal expressly with how the ratings scale from 0 to 5 on the score sheet in Part 13 is intended to be applied. Boeing says that a rating of 3 should be construed as an employee working at a level that ‘meets expectations’, with a rating of less than 3 equating to ‘below expectations’ and rating of more than 3 equating to ‘above expectations’. A slightly different interpretation of the ratings scale in Part 13 is urged by the Union, based on the premise that “reclassification successful” requires a ‘pass’ mark or 50%. In a numerical sense, this would equate to a rating of 2.5 (the midway point between 0 and 5).

[13] While standalone, Part 14 of the Agreement offers some guidance on what the parties intended for the reclassification process in Part 13 because it deals with a similar reclassification from a 110 tradesperson to Aerospace Tradesperson 2B (115 tradesperson). Like Part 13, it sets out agreed reclassification criteria with score sheets and ratings. Unlike Part 13, it contains a rating scale. Ratings are from 1 to 5, with ‘1’ equating to “Never” and ‘5’ equating to “Always”. A rating of ‘3’ equates to “Sometimes”, which delivers a performance rating of ‘competent’ and is described as “successfully meeting key job requirements with little need for guidance. Carries out the function as required”. For each criterion against which the assessment is conducted, a successful rating requires that the “level achieved should be sometimes and competent” – in other words, a rating of ‘3’ or above, ‘3’ being the mid-way point between ‘1’ and ‘5’.

[14] Part 16 of the Agreement separately contains a reclassification process for Engineers and Scientists. Each discipline defines the skills normally applicable for each level under the Agreement. A ‘common progression matrix’ is used to define the mix of skills appropriate for progression between levels. To determine the number of competencies required to progress, a benchmark of 80% of total normally applicable competencies is used. Where competencies are not generally required for a particular skill level, this is indicated in the score sheet. Behavioral attributes are also assessed using the ‘Boeing Performance Values’. Ratings in the score sheet are not numbered but expressed in words, with five ratings ranging from “basic” to “advanced expert”. The middle (or third) rating is “complete”. While the Part 16 process is particular to the technical classification stream, some guidance can be gleaned from these last two attributes: firstly, as to how behavioral attributes are assessed by Boeing; and secondly, because in the same way as Part 14, a median rating is the minimum benchmark for competency in the particular skill.

[15] A score sheet formerly used for the purposes of Part 13 is not a reliable guide in relation to how skill-based competencies should be assessed under the Agreement, due to material departures from the score sheet in Part 13. Importantly for present purposes, it substituted the 0 to 5 rating system with a simple ‘yes or no’ assessment for each competency and grouped some of the competencies together rather than providing for them to be assessed individually. While it does not aid interpretation of the Agreement, the score sheet does provide some historical insight into the numerical value of ratings previously used to assess the behavioral common standards as either 1, 3 or 5. A rating of ‘3’ equated to the “normal, expected or required” level for 103 tradespersons. A rating of ‘5’ reflected a standard of behavior required to achieve reclassification to the role of 110 tradesperson.

[16] Given reliance on the principle in both Part 14 and Part 16 of the Agreement that a median rating should be interpreted as ‘meets expectations’, and absent any indication to the contrary in the Agreement, I find that the same principle underpins the score sheet in Part 13. That would technically equate to a rating of 2.5 (counting 0 as an available rating just as much as 5) but the score sheet makes no provision for half ratings. A rating of 2 would be below the median. I find that a rating of ‘3’ means ‘meets expectations’ for the purposes of Part 13.

The common standards

[17] The more controversial question in this matter is which expectations must be met to achieve a rating of “reclassification successful”. As their name suggests, the common standards are to be understood as standards of work that are common to a classification in the Agreement, but which one? It must be an Aerospace Tradesperson, but is it the 103 tradesperson or the 110 tradesperson or both?

[18] The words used in Attachment 2 suggest that the common standards apply to 110 tradespersons only, because they fall under the heading of “Award Classification: Aerospace Tradesperson 2 Wage Group 5 110% /W5A”. The word “Award” here must be read as “Agreement” because the Agreement applies to the exclusion of all other awards and enterprise agreements, and because the classification title is one found in Part 9 of the Agreement under Wage Group 5 (Level A), which I have earlier described as unique to Boeing and developed by agreement between the parties.

[19] However, Boeing contends that the common standards apply to both classifications and that a rating of ‘3’ in the score sheet in Part 13 should be understood as meeting the expectations of a 103 tradesperson.

[20] In general terms, a 110 tradesperson has, and is required to exercise, a greater level of skill, knowledge and experience than a 103 tradesperson. A comparative analysis of the two classifications in Part 9 of the Agreement confirms that there are both similarities and qualitative differences between the two classifications. Each works in the same general area on and around aircraft, interacting with the other. Each requires trade qualifications and computer skills and also performs planning, estimating and drafting tasks.

[21] 103 tradespersons understand and perform assigned trade tasks to the level of their training. They can sign off their own work. They undertake basic drafting, planning and estimating tasks. They perform trade work incidental to their core skills. They may operate CNC machines and perform basic operations of a CAD/CAM terminal.

[22] 110 tradespersons generally work to a level beyond that required of 103 tradespersons and may sign off the work of others. They also undertake drafting and planning and estimating tasks but at an intermediate level. They have trade skills beyond those that are incidental to their core skills. They may perform more than ‘basic’ operations on a CAD/CAM terminal in making routine modifications to NC/CNC programs.

[23] Qualitative differences between the two classifications are confirmed by the evidence of employees classified at each level. A 103 tradesperson is “your basic tradesman on the shop floor”, tasked with building or assembling products. An employee working at the 110 level is an expert in an area – a “go to guy in all aspects of the area” who is not the Team Lead but someone who can be asked for help or to assist production or with improvements.

[24] When the group of 11 competency-based attributes are set against classification descriptions for the 103 and 110 tradespersons in Part 9 of the Agreement, it is clear that three of these are unique to the role of a 103 tradesperson (basic planning tasks; basic estimating tasks; basic PC skills). They do not align with the role of a 110 tradesperson because at this higher classification, it is expected that performance will generally be at a standard above ‘basic’. To the extent that this might suggest inconsistency between the score sheet in Part 13 and the classification descriptions in Part 9, the score sheet should be understood as ancillary to Part 9 rather than intending to create new and different (lesser) expectations of the 110 tradesperson solely for the purposes of reclassification.

[25] The other eight competency-based standards in Attachment 2 to Part 13 of the Agreement require more than is expected of 103 tradespersons, although in a practical sense there may be a degree of overlap. These are properly understood as common to the 110 tradesperson but not the 103 tradesperson. Analysis of the common standards against the classification descriptions for the 103 and 110 tradespersons is set out in Attachment 1.

[26] The five ‘behavioral’ common standards rely on individual attributes rather than measurable level of skill. These can be understood in a general sense as common to all classifications, including 103 and 110 tradespersons.

Attributing value to the ratings scale

[27] With a rating of ‘3’ as ‘meets expectations’, numerical value can be given to each of the competency-based common standards, underpinned by the logic that to achieve reclassification, what is required is to demonstrate competency at a standard above one’s existing classification.

[28] For standards common only to 103 tradespersons, competency at classification equates to a rating above ‘3’ in the score sheet in Part 13 – so at least ‘4’ would be required. For the remaining standards, a successful rating and one worthy of reclassification will be one that meets expectations – that is, a rating of at least ‘3’.

[29] For the behavioral common standards, there is no classification description to guide how these might be assessed or even to set a starting point for the assessment. Productivity and quality are capable of being measured objectively but in a way that sits outside of the Agreement. For example, productivity may find its measure in internal benchmarks linked to individual and/or group performance, and quality might be measured by matters such as the rate of defects (known as “NCRs” or non-conformance reports), demerit points or cautions. The other three behavioral standards call for a subjective assessment of an employee’s interpersonal skills, attitude and performance. Again, there is no prescription in the Agreement about how these matters are to be assessed or the starting point for the assessment. Part 16 suggests that such characteristics might be measured against “Boeing’s Performance Values”. Separate reference was made in the proceedings to what are described as the “Boeing Behaviours”.

[30] For the behavioral common standards, the question is not so much competency as what Boeing considers a necessary or minimum acceptable outcome for each classification. Assessment of these standards is a matter of reasonable managerial discretion.

[31] The Agreement does not deal expressly with how many successful ratings are required to achieve reclassification for the purposes of Part 13 and neither Part 14 nor Part 16 provide useful guidance because they each adopt a different course. In Part 14, the answer seems to be all of them – or in a numerical sense, 100%. In Part 16, the approach is to adopt a proportionate benchmark of 80%.

[32] For Part 13, I find it to be a matter of managerial discretion. The practice adopted to date has set a benchmark of 80% of competencies required for reclassification. This allows an employee to demonstrate that they are working above level while accommodating the need for flexibility, for example, where a function once accepted as common to the group is no longer performed or permitted. It recognizes practical limits on an employee’s ability to demonstrate some of the skills or functions required for reclassification to a higher grade while working at the level below. Finally, it acknowledges the inflexibility inherent in a process which can only be modified by formal variation or replacement of the Agreement.

The meaning of “reclassification successful”

[33] Bringing all of this together, I find that for the purposes of the Agreement, “reclassification successful” in a numerical sense means achieving a proportion of successful ratings for the common standards in Attachment 2 of Part 13. It is a matter of managerial discretion as to what proportion of the necessary ratings must be achieved in order to achieve reclassification.

[34] For each common standard, a successful rating means a rating of at least the number set out in the table below:

Common standard	Attributable classification	Successful rating
Works with limited supervision	110	3
Trains others	110	3
Undertakes basic planning tasks	103	4
Competent in performing all tasks within work area within the same stream and a small level of cross training including repairs	110	3
Perform basic PC skills for input or retrieval of data	103	4
Assist ML to organize work plans and resources	110	3
Undertaking basic maintenance tasks when practical	110	3
Develop manufacturing techniques	110	3
Design/manufacture tooling & equipment	110	3
Manufacture tools/equipment for repairs or modifications using drawings or sketches	110	3
Good interpersonal skills	All	3
Undertake basic estimating tasks	103	4
Attitude	All	3
Productivity	All	3
Performance on the job	All	3
Quality	All	3

Since the first Decision, has Mr Bennett’s application been assessed in accordance with Part 13?

[35] For the reasons that follow, Mr Bennett’s application has been assessed under Part 13 but not ‘in accordance with’ the Agreement.

Were the scores given reasonable and based only on relevant considerations?

[36] The scores given to Mr Bennett in the assessment conducted in December 2019 were premised on the understanding that a score of ‘3’ met the expectations of the 103 tradesperson. For the reasons above, this was mostly a wrong premise. The error arose from reliance on a ‘reclassification tool’ developed to aid Part 13 assessments, which contained rating descriptors for each of the common standards demanding more than could reasonably have been required. As a result, the scores given to Mr Bennett were not reasonable. They were not based only on relevant considerations.

The reclassification tool

[37] The reclassification tool was developed on and from 14 November 2019 by Marina Gorgievski, ER Partner – Employee Solutions Specialist, with input from Nicholas Leon (Corporate Counsel), Matthew Storer (Senior Manufacturing Manager), Justin Nicholas (Manufacturing Manager) and Mr Terry Kozaris, Human Resources - Performance and Wellness Specialist. A first version of the tool was circulated on 2 December 2019 and before the Review Panel met with Mr Bennett. A second draft of the tool (circulated among the Review Panel on 16 December 2019) was used to assess Mr Bennett’s application by settling his scores. The final version of the tool was completed and circulated among relevant managers on 20 January 2020.

[38] The first matter to observe is that the tool used for the purposes of Mr Bennett’s assessment was only a draft. This is explained at least in part as responsive to my direction in the first Decision that it assess Mr Bennett’s application in accordance with Part 13 “without delay”, although at the time Mr Bennett was absent from work on workers’ compensation. Once the final version of the tool was circulated on 17 January 2020, Renato Marasco, Employee & Labour Relations Lead, sought feedback from the Review Panel about whether any changes to the tool affected the scores given to the assessment of Mr Bennett’s application. Glenn Brennan, Manufacturing Manager and member of the Review Panel, met with Mr Marasco to consider the matter but only in a cursory way. No changes were made.

[39] Reliance on the reclassification tool affected the nature and quality of assessment undertaken by the Review Panel in December 2019, because it set the criteria against which each of the common standards was assessed. While the tool may not have been designed to be the “sole point of reference” for conduct of the assessment, in practice that is what occurred. The Review Panel considered Mr Bennett’s application and internal workplace data and “married it” to the tool, focusing on his current work area and current work. It then settled the scores and recorded them on the Part 13 score sheet. The outcome was “reclassification unsuccessful”.

[40] Boeing says its motivation in developing the tool was to assist managers by providing a basis against which scores could be ‘level set’. I accept that this may have been its original motivation, but so far as Mr Bennett is concerned, the tool had the opposite result. At the time of hearing, Mr Bennett was the only employee ever to have been assessed under Part 13 against the tool. Other employees, including those reclassified as late as 2019 after this dispute was notified, were assessed without any reference to a tool of this kind. Objectively, Mr Bennett has been held to a higher standard in his application for reclassification than any other employee who has gone through the Part 13 process since he applied. Reasons for this conclusion lie in a closer analysis of the tool’s criteria against the common standards in Part 13. I deal with each of the common standards in turn.

[41] Works with limited supervision: The common standards provide an example of what is required as “competently works on most jobs independently and makes contact only when necessary.” In the tool, the ‘3’ rating descriptor requires that an employee is “able to complete all tasks without assistance and supervision” - raising the bar from “most jobs” to “all tasks” and from “makes contact only when necessary” to “without assistance and supervision”. These anomalies were remedied in the final version of the tool in January 2020. The ‘4’ rating in that version of the tool raised the bar even higher to “assists others to complete complex tasks with some guidance and supervision”. He was able to achieve this rating – but that is not the point. The starting point for the assessment in Mr Bennett’s case was higher than what was required under the Agreement to establish competency for reclassification against this measure.

[42] Trains others: The example given for this standard in Part 13 is “e.g Structured OTJ and/or (class room) by using a training checklist or shop aids”. The tool used to assess Mr Bennett describes a competent 103 tradesperson as “one of the Primary candidates selected to train people in their immediate work area.” It elevates the standard from delivery of structured training either on the job or in a classroom to one who is the primary candidate selected to provide training. It adds the limitation that training be “in the immediate work area”, rendering irrelevant the examples given by Mr Bennett of his delivery of site wide safety training. Evidence from Caine Hayes, Assembly Technical Trainer and member of the Review Panel conducting the assessment, is that very few 103 tradespersons would meet this standard. The final version of the tool removes the “primary candidate” requirement but maintains the immediate work area limitation. It includes an additional requirement that training be performed regularly. In each version of the tool, a rating of ‘4’ requires that an employee provide “oversight to others selected to conduct all on the job training within the work cell”. This is a higher expectation than that described in Part 13, which speaks to the delivery of training rather than oversight of others performing that task.

[43] Undertakes basic planning tasks: This standard is described in the table in Part 13 by way of example as “ability to recommend operational sequence and Methods of manufacture”. The tool used to assess Mr Bennett describes rating ‘2’ as “competent with standard work” and describes rating ‘3’ as “able to organize self for basic repairs”. Rating ‘4’ is described as “provides guidance to others”. This sets the benchmark higher than the example given in Part 13 because in addition to basic planning tasks, provision of guidance to others is also required. In the final version of the tool, these descriptions are supplemented with words drawn from the example in Part 13, so that “competent with standard work” becomes “competent with standard work, operational sequence and methods of manufacture”. The changes align more closely in the final version of the tool.

[44] Competent in performing all tasks within work area (within the same stream) and a small level of cross training, including repairs: This common standard deals with competency within the employee’s particular work area and stream, with a small level of cross training. The table in Part 13 gives an example of basic cross skilling as “take on task of releasing shop orders”. The tool used to assess Mr Bennett describes at rating ‘2’ “competent in completing all tasks and stages of own work area (eg 737, IB, OB etc).” Rating ‘3’ expands the scope of competency beyond the employee’s work area to “all stages” and adds the ability to reliably complete basic repairs. A ‘4’ rating requires “competent in completing all tasks in all stages, trains others and assists others to follow SOI requirements”. The scope of work and amount of cross training required is broader than that anticipated by Part 13 of the Agreement for both 103 and 110 tradespersons. These issues carry over to the final version of the tool, with addition of the words “and perform basic cross-skilling” to the ‘3’ rating.

[45] Performs basic PC skills for input or retrieval of data: In theory, this common standard begins in the table in Part 13 from the same premise as that underpinning the reclassification tool – that is, that a rating of ‘3’ meets the expectations of the 103 role. A closer examination of the ratings does not confirm that to be the case. Instead, a rating of ‘3’ requires one to be “adequate with PC skills: can send an email, use PowerPoint and excel; no assistance.” A rating of ‘2’ more closely aligns to the description, requiring performance of basic PC skills without assistance. A rating of ‘4’ in the version of the tool used to assess Mr Bennett requires one to be an “advanced PC used on complex task, no assistance required.” The final version of the tool raises the bar even higher, so that a rating of ‘3’ also requires employees to perform basic operations of a CAD/CAM terminal without assistance and a rating of ‘4’ is described as “advanced PC/CAD/CAM user on complex task, without assistance”. In each version of the tool, achieving a rating worthy of reclassification requires one to be far more advanced in terms of PC skills than contemplated by the common standard in Part 13 of the Agreement.

[46] Assist Manufacturing Lead to organize work plans and resources: This is described in the table in Part 13 by way of example as “able to prioritise and make suggestions that utilize resources to achieve maximum efficiency”. In each version of the tool, a rating of ‘3’ requires one to assist the Manufacturing Lead daily to organize work plans and resources in immediate work area”, while a rating of ‘4’ requires the same daily assistance but in the context of dealing with complex situations and multiple teams at once. A rating of ‘2’ simply requires one to assist the Manufacturing Lead regularly on work plans and resources. This rating is the one that most closely aligns to the description in Part 13, while benchmarks for competent at existing level (‘3’) and worthy of reclassification (‘4’) are higher than contemplated by the Agreement.

[47] Undertaking basic maintenance tasks when practical: This common standard is focused on the performance of basic tasks, ancillary to the main tasks or functions of a 110 tradesperson. The example given in the table in Part 13 is “maintain hoses etc, repair or trolley/racks etc”. The tool instead imports the concept of “Autonomous Maintenance”, drawn from an external source and referring to a maintenance strategy where machine operators continually monitor their equipment in lieu of dedicated maintenance technicians. A rating of ‘3’ requires completion of autonomous maintenance and contribution to the local board responsible for preventative maintenance. Plainly, this is more than required by the table in Part 13 – an anomaly resolved in the final version of the tool which reverts to the language of Part 13. A rating of ‘4’ in each version of the tool requires an employee to lead preventative maintenance activities throughout the local work area. Again, this is a qualitatively different, and more sophisticated, type of work than performance of basic maintenance tasks when practical.

[48] Develop manufacturing techniques: The table in Part 13 describes this common standard by giving the example of “streamlining methods. Suggesting improvements to achieve project efficiency.” Each version of the tool rates ‘3’ in this regard as some who “provides guidance to others in performing standard work activities and trains new employees on the correct techniques.” This criterion bears little relationship to the development of manufacturing techniques, focusing instead on provision of on the job training. A rating of ‘4’ lifts the standard again by requiring a “driver of process improvement through revised and proven techniques. Process improvements have made a step change improvement.” This description does have relevance to the function of developing manufacturing techniques but introduces the new threshold that performing this function leads to a “step change improvement”. It demands more than contemplated by the Agreement.

[49] Design/Manufacture tooling & equipment: The table in Part 13 gives examples of the kind of tooling and equipment design and manufacture in contemplation, including “drill jigs, fixtures, one off aids for repairs etc.” In the December version of the tool, a ‘3’ rating required that a person be “relied on for special tooling requirements for one off needs” – suggesting the need to be a ‘go to’ person for when a particular tool need is identified for a particular function. A rating of ‘4’, considered the benchmark for reclassification, required a tradesperson’s designs to be “implemented as standard work in own area”, in contrast to Part 13’s inclusion of “one off aids” as an equally available outcome worthy of consideration for reclassification. In the final version of the tool, each of these ratings are revised. The ‘3’ rating description picks up the language of Part 9, requiring “performs developmental/prototype work without the aid of drawings, plans etc., in conjunction with design technicians and engineers.” The ‘4’ rating is the same except that rather than working “in conjunction” with design technicians and engineers, the work is done under their “limited supervision”.

[50] Manufacture tools/equipment for repairs or modifications using drawings or sketches: In Part 13, the example for this common standard is “working from minor tooling requests and TRJ”. The meaning of “TRJ” is not apparent. In the December version of the tool, each of the rating descriptions for this common standard are the same as for the common standard above. These are the standards against which Mr Bennett was assessed, and the difficulties inherent in them are also discussed above. In the final version of the tool, the descriptions remain unchanged for all ratings except for rating ‘3’, which is described as “Working from, for examples, minor tooling requests & TRJ, manufactures tools/equipment for repairs or modifications using drawings or sketches”. This wording is more closely aligned to the description of the common standard in Part 13.

[51] Undertaking basic estimating tasks: This is one of the common standards where a rating of ‘3’ can properly be said to meet the expectations of a 103 tradesperson. Examples given of work contemplated by this standard are “determining approximate times, material requirements.” In the tool against which Mr Bennett was assessed, a rating of ‘3’ is described as “completes all basic estimating without assistance and adequately understands timeline of processes.” A rating of ‘4’ is similar but more sophisticated, expressed as “completes all complex estimating without assistance, plans ahead and assists others.” In the final version of the tool, the word “complex” in rating 4 has been replaced with the word “intermediate”, drawing on the language from Part 9 of the Agreement.

[52] Good interpersonal skills: The example given in the table of Part 13 for this criterion is “ability to liaise with” team members, the Manufacturing Lead, as well as other managers and technical personnel. A ‘3’ rating in the tool lifts this expectation to “excellent relationships with” the same relevant stakeholders. A rating of ‘4’ is similar but adds “is proactive and an excellent communicator”. By contrast, a rating of ‘2’ requires only “good relationships”. The description for rating ‘2’ in each version of the tool best aligns with the description in Part 13 of the Agreement.

[53] Attitude Assessment:The tool used for Mr Bennett’s assessment has the same description for ratings ‘2’ and ‘3’ of “lives and models the Boeing Behaviours”. It appears this was modified in discussion for the purposes of Mr Bennett’s assessment, adding the qualifying “some” to rating ‘2’, with no change to rating ‘3’. In the final version of the tool, these ratings are distinguished by “regularly exhibits” (rating 2) and “always exhibits” (rating 3). The ‘4’ rating in each version of the tool is “often represented as an example for modelling the Boeing Behaviours”. Part 13 does not refer to the Boeing Behaviours as the standard against which attitude will be assessed, although it may be that this is separately communicated to employees in the course of their employment. As the Agreement is silent about what each rating requires, it is left to the exercise of reasonable managerial discretion.

[54] Productivity: No guidance is provided in Part 13 about how this criterion will be assessed. As discussed above, it is largely a matter of managerial prerogative. Meeting daily targets and schedule with limited assistance achieves only a rating of ‘2’ under each version of the reclassification tool. This is difficult to marry up with the overarching expectation that a rating of ‘3’ meets the expectations of a 103 tradesperson when it seems a rating of 2 would suffice to demonstrate competency. Rating ‘3’ is more prescriptive and requires “consistently meets the daily targets and schedule. Meets 100% threshold on Tableau for meeting Bar Chart requirements”. A rating of ‘4’, set by Boeing as the standard for reclassification, is “better than 100% for past 6 months on Tableau report.”

[55] Performance on the job: The rating descriptions for each version of the tool are the same for this common standard, with ‘3’ described as “consistently meets the level of job performance required e.g. daily targets and schedule” and ‘4’ with the addition of “helps others”.

[56] Quality: The rating descriptions for each version of the tool are largely the same with one exception. Rating ‘2’ in the version against which Mr Bennett was assessed requires that quality of work is at the “expected standard” with occasional NCRs and rework required. This sits uneasily with the premise that a rating of ‘3’ meets the expectations of a 103 tradesperson in light of evidence from Mr Brennan that it is not rare for 103 employees to have NCRs. A rating of ‘3’ requires that “quality of work is excellent and to the standard” with “No NCRs”, as well as “exercises high precision trade skills using various material and/or specialist techniques.” This latter requirement is not found in the final version of the tool.

[57] My conclusions above are not to be taken as commentary on what an employee performing effectively as a 103 or 110 tradesperson can or should be able to do in a practical or operational sense. This is largely a matter for the parties, reflected in what the parties have agreed are relevant classification descriptions and measures of competency or behavior in the Agreement. If the Part 13 common standards are no longer fit for purpose, the way of dealing with the concern is to revisit them in bargaining when the opportunity next arises. It is not a matter that can be dealt with unilaterally by one of the parties in a way that is inconsistent with the Agreement.

Was the outcome of Mr Bennett’s assessment pre-determined?

[58] When the history of this matter is taken into account, it is understandable that Mr Bennett considers the outcome of his most recent assessment for reclassification to have been pre-determined. Certainly, Boeing was open about its refusal to progress and later rejection of his application in the period from 2016 to 2018, based on a recruitment freeze and ‘lack of business need’. Since that time, the freeze has been lifted and a business need to recruit additional 110 tradespersons has been identified. Yet Mr Bennett’s application has been assessed twice in that period and twice failed.

[59] The initial failure occurred in connection with reliance on an alternate score sheet, described earlier above and dealt with in the first Decision. The second is the subject matter of this decision, involving an assessment process overseen by Kelly Knowles, General Manager, Human Resources, who delegated responsibility for giving effect to the first Decision to Mr Marasco.

[60] On 28 November 2019, when Ms Gorgievski circulated a first draft of the reclassification tool to her managers, she asked Ms Knowles, Mr Marasco, Mr Leon (Corporate Counsel) and Stacey Nicholas (HR Manager) to “advise if the reference tool is ok to be used going forward”.

[61] On 2 December 2019, two members of the Review Panel met with Mr Bennett for the purposes of his assessment. The Review Panel had a draft version of the reclassification tool and knew that the application would be assessed against it. They did not mention either matter to Mr Bennett or the Union.

[62] The following day, on 3 December 2019, Mr Leon responded to Ms Gorgievski by providing a revised version of the tool, introducing for the first time the troubling condition that a rating of ‘3’ met expectations of the 103 role. The condition appears not once but twice in the draft, suggesting it was a matter of significance for the drafter. Due to his role as Boeing’s legal adviser, I infer that the changes were made to give effect to Mr Leon’s instructions from other officers of Boeing. Ms Knowles had overall responsibility for the process, was senior to both Mr Marasco and Ms Nicholas, and was copied into the request for confirmation of the tool for use. I infer that she approved the changes. The changes were made the day after Mr Bennett met with two of the three Review Panel members for his assessment interview.

[63] On 11 December 2019, Ms Gorgievski confirmed the changes suggested by Mr Leon in a further version of the reclassification tool. She asked Ms Nicholas and Mr Marasco if they were comfortable about the rating system being applied on the basis that a rating of ‘3’ met the expectations of the 103 role. Their answer is not apparent on the record. I infer that they either accepted or did not object to the premise, both because it had been approved by Ms Knowles who was senior to them, and because it remained a feature of the tool after that time. Ms Gorgievski’s question indicates a level of concern about whether the condition was inconsistent with the Agreement, bearing in mind that she appears to be the only one to have done any substantive analysis of the Agreement in connection with development of the tool.

[64] On 16 December 2019, the Review Panel finalised its assessment of Mr Bennett’s application using the draft reclassification tool. The following day, 17 December 2019, Mr Leon provided a further revised version of the tool to Ms Gorgievski. The final version was circulated to relevant managers on 17 January 2020 and to the Review Panel on 20 January 2020. Changes made after 16 December 2019 are described earlier in the decision. At least some of these had the effect of aligning the tool more closely with the Agreement.

[65] The decision to develop a reclassification tool to ‘level set’ Part 13 assessments was, when it was first made, properly motivated. It sought simply to ensure that Boeing’s processes were fair as between employees, easy to apply and consistent with the Agreement and a decision of the Commission. However, I am persuaded – by the chronology and the tools’ evolving content – that this purpose was quickly supplanted by a strategic resolve to narrow the scope for reclassification under Part 13 with the aim of giving Boeing greater control over the reclassification process. It explains why Boeing sought to raise the threshold for success in a manner not contemplated by the Agreement and also why consultation with the Union about the content of the tool was considered but not progressed, despite the Union’s obvious interest in the reclassification process both as a signatory to the Agreement and as representative of Mr Bennett.

[66] Mr Bennett’s application became collateral damage in Boeing’s pursuit of greater control over Part 13 reclassifications once it could no longer rely on the ‘business need’ qualification. Providing the tool to the Review Panel for use in connection with the assessment ensured that a higher threshold was applied in the assessment of Mr Bennett under Part 13 than to any other employee who had gone through the process before. Rather than being pre-determined, the outcome of his assessment was a likely result of the Review Panel faithfully adopting the tool and applying it for the purposes of Part 13 of the Agreement.

Did Boeing or any of its employees act dishonestly, with bias or in a way that was plainly unreasonable, arbitrary or capricious in relation to the application for reclassification?

Compliance with the Agreement

[67] In the first Decision, I found that Boeing had not assessed Mr Bennett’s application under Part 13 in accordance with the Agreement despite its obligation to do so. In failing or refusing to process his application or consider it on the merits as required by Part 13, Boeing and relevant employees did not comply with the Agreement. Failure to comply with the terms of an enterprise agreement is an act (or omission) that is objectively and plainly unreasonable.

Reclassification tool ‘level set’ and procedural fairness

[68] The imposition of the ‘level set’ in the reclassification tool that a rating of ‘3’ met the expectations of a 103 tradesperson was flawed for the reasons above. It was also arbitrary. It imposed a condition on the application of Part 13 that found no justification in the terms of the Agreement.

[69] On 15 November 2019, Mr Bennett was invited by Mr Marasco to provide any further evidence in relation to his application. By that time, development of the reclassification tool had begun although it was only in the early stages. I can think of no objectively justifiable reason for Mr Bennett not to be told at any time that his assessment was to be conducted by reference to the tool. Its importance to the assessment was flagged in ambiguous terms by Mr Marasco in correspondence with Mr Bennett on 12 December 2019, but by this time it was too late for Mr Bennett to have any influence on the outcome of the assessment. His materials were in and his interview had been conducted.

[70] The reclassification process evinces an intention to ensure that employees have a reasonable opportunity to understand the basis of the assessment that will be made. The contents of the tool shifted the goal posts, undermining an important purpose of the provisions of Part 13 of the Agreement by raising the bar for reclassification. It required a different standard of evidence than was apparent either from the Agreement or from the Training Department in the form of pre-assessment guidance. Mr Hayes, despite his role as Assembly Technical Trainer, had not even seen the tool before it was provided to him for use in connection with the assessment in early December 2019. Reliance on the tool had a material effect on the scores given to Mr Bennett, as feedback from Ms Melik confirmed.

[71] In not alerting Mr Bennett to the existence of the tool and its contents and in denying him the opportunity to adapt his application accordingly, the conduct of Boeing was plainly unreasonable.

Alleged threats made by Terry Kozaris

[72] The Union says that Mr Bennett’s employment with Boeing was the subject of a number of threats made in connection with the reclassification application by Mr Kozaris. Specifically, it says that in discussions both with Union delegates Luke Souvatsis and Nathan Tuddenham as well as Mr Bennett, Mr Kozaris discouraged Mr Bennett’s application, said it would not be assessed or successful, advised him not to “rock the boat and piss off his manager”, stated that he would be putting a target on his back and jeopardizing his career at Boeing including in relation to upcoming work, and stated that he would get “on the wrong side of his manager”.

[73] Mr Kozaris denies threatening Mr Bennett in connection with his reclassification application. He agrees that there were conversations with the Union delegates and Mr Bennett about whether it was wise to proceed with the application at the time as well as the risk of triggering a 6 month prohibition on reapplying if he was unsuccessful because of the terms of Part 13.

[74] I am satisfied that Mr Kozaris made or implied statements of the kind attributed to him by the Union delegates and Mr Bennett, although the full context is not apparent and only extracts of the conversation are before me. Without more, I am not prepared to find Mr Kozaris wholly responsible for the exchange. I accept that comments in relation to upcoming work were, at least in part, references to the 6 month prohibition on consecutive applications and the related prospect of missing out on future opportunities. I accept that Mr Kozaris told Mr Bennett he was being “silly” in relation to the application.

[75] I do not accept that the statements made or implied by Mr Kozaris were threats by him in relation to Mr Bennett or his career. Despite what his role title might imply, Mr Kozaris’ role was to perform established functions and tasks as directed and to provide advice. Mr Kozaris was not in a position to threaten the employment of anyone, including Mr Bennett. It was appropriate that he draw attention to the 6 month limit on reapplying for progression.

[76] At the time, Mr Kozaris was acting under the instruction of Mick Sorrenson, Director of Supply Chain Management and Operations. The two had sat together on the appeal panel convened to reconsider Mr Bennett’s application for reclassification in February/March 2018. The appeal was rejected on 29 March 2018.

[77] In making the comments that he did, Mr Kozaris was indicating to Mr Bennett that he was ‘going against’ Mr Sorrenson’s advice and that he did not think this was wise. He was trying to minimize the potential for conflict by appealing to Mr Bennett to be a ‘company man’ – to put the interests of the company ahead of his own. He saw this as being in Mr Bennett’s longer term interest. He knew the business had decided there were too many 110 tradespersons on site. He knew the history of Mr Bennett’s application. He knew the recruitment freeze was likely to be temporary and that other jobs were likely to come up. He was familiar with how Boeing operated, having performed his role by then for approximately 7 years.

[78] Armed with this experience and knowledge, he formed the view that Mr Bennett’s application would continue to be refused for reasons already explained to Mr Bennett. He expressed his opinion to Mr Bennett and his representatives when they approached him for assistance in progressing the application. The discussions in question occurred well before my finding that lack of ‘business need’ was no barrier to Part 13 reclassifications, despite Boeing’s Reclassification Policy and its assertion of managerial prerogative in this regard.

[79] The evidence does not establish who made the decision to introduce a recruitment freeze in relation to the 110 classification. The rationale for the decision is unremarkable – it was a budget measure, because Boeing had too many employees in the classification at that time. It was most likely also a value judgment about the benefits of the reclassification process, having regard to what seems to have been a low bar for reclassification under the ‘old’ score sheet compared with the Agreement. Whether the decision was made knowingly or recklessly as to whether it was contrary to the Agreement is not established.

[80] Separate to the matter of Agreement compliance dealt with above, I am not satisfied that Mr Kozaris’ conduct was biased or dishonest. It was not otherwise plainly unreasonable, arbitrary or capricious. It is, however, illustrative of the difficult position Boeing’s early non-compliance with the Agreement created both for Mr Bennett and other employees of Boeing who were charged with implementing the recruitment freeze on 110 tradespersons.

[81] Employees were put in the untenable position of being asked or expected to act in a way that was inconsistent with the Agreement. Mr Bennett became increasingly frustrated and disenfranchised. Rather than meaningful reward and recognition for his obvious contribution and enthusiasm in 2016 - both for his work and for the company - Mr Bennett experienced a deterioration in his health leading to absence from work on workers’ compensation for approximately 6 months almost three years later. It is hard to see how this outcome was in the interests of either party. The entire episode is a study in how not to manage human resources.

Timing of, and in relation to, the assessment

[82] At the time Mr Bennett met with the Review Panel for his assessment on 2 December 2019, he was on workers’ compensation. He had a return to work meeting that morning and then met with the Review Panel at 12.00pm. It is important to note that his absence on workers’ compensation had by then persisted for more than 6 months, from 20 June 2019 to 2 January 2020. It was therefore practically impossible for his “current work” in his “current work area” to be assessed.

[83] Evidence about Mr Bennett’s state of health on the day of the assessment is unsettling. He was agitated. He was scratching his arms so much that he started to bleed. Mr Brennan was so concerned about the state of Mr Bennett’s mental health that he pulled Mr Souvatsis aside after the meeting to ask if Mr Bennett was alright.

[84] The parties had earlier agreed to delay the assessment until after Mr Bennett’s return to work. Mr Bennett – for reasons that are not explained – then indicated that he was willing to participate in the interview on 2 December 2020, even though he was not due to return to work for another month. Notwithstanding my direction to the parties to undertake the assessment “without delay”, and despite Mr Bennett’s agreement to proceed, the meeting should have been abandoned and rescheduled to a later date as soon as his condition became apparent. There were two further reasons tipping the balance in favour of reasonable additional time, being the ongoing discussion about Mr Bennett’s return to work and development of the reclassification tool.

[85] While it was unreasonable for the meeting to proceed when it did, this occurred by consent of the parties and responsibility does not rest with Boeing alone for the timing of the meeting. It was, however, plainly unreasonable to rely on observations gleaned from the meeting to inform the assessment in light of Mr Bennett’s condition at the time.

Conclusion and remedy

[86] In summary, the answers to the questions for determination are these:

1. What does “reclassification successful” mean in a numerical sense in the context of an assessment for reclassification against the Common Standards in Attachment 2 to Part 13 of the Agreement?

In Part 13 of the Agreement, “reclassification successful” means achieving a proportion of successful ratings for the common standards in Attachment 2. It is a matter of managerial discretion as to what proportion of the necessary ratings must be achieved in order to achieve reclassification. A successful rating means at least the rating set out in the table below.

Common standard	Attributable classification	Successful rating
Works with limited supervision	110	3
Trains others	110	3
Undertakes basic planning tasks	103	4
Competent in performing all tasks within work area within the same stream and a small level of cross training including repairs	110	3
Perform basic PC skills for input or retrieval of data	103	4
Assist ML to organize work plans and resources	110	3
Undertaking basic maintenance tasks when practical	110	3
Develop manufacturing techniques	110	3
Design/manufacture tooling & equipment	110	3
Manufacture tools/equipment for repairs or modifications using drawings or sketches	110	3
Good interpersonal skills	All	3
Undertake basic estimating tasks	103	4
Attitude	All	3
Productivity	All	3
Performance on the job	All	3
Quality	All	3

2. Since the first Decision, has Mr Bennett been assessed for reclassification under Part 13 in accordance with the Agreement?

No. Mr Bennett has been assessed under Part 13, but not in accordance with the Agreement.

a. Were the scores he received on the assessment reasonable and based only on relevant considerations?

No. Reliance on a ‘reclassification tool’ developed to aid Part 13 assessments meant that the scores given to Mr Bennett were not reasonable and were not based only on relevant considerations.

b. Was the outcome of the assessment pre-determined by Boeing?

No, but it was the likely result of using the reclassification tool for the purposes of the assessment.

3. Did Boeing or any of its employees act dishonestly, with bias or in a way that was plainly unreasonable, arbitrary or capricious in relation to the application for reclassification?

Yes. Failure to comply with the terms of an enterprise agreement is an act (or omission) that is objectively and plainly unreasonable.

The imposition of the ‘level set’ in the reclassification tool that a rating of ‘3’ met the expectations of a 103 tradesperson was arbitrary.

Not alerting Mr Bennett to the existence of the reclassification tool and denying him the opportunity to supplement his application accordingly was plainly unreasonable.

Relying on the meeting with Mr Bennett on 2 December 2019 to inform its assessment of his application was plainly unreasonable in the circumstances.

[87] The appropriate remedy is to recalculate Mr Bennett’s scores and overall outcome having regard to my findings about the meaning of “reclassification successful” in Part 13 of the Agreement.

[88] In the future, if a reclassification tool is to be relied upon for the purposes of Part 13, consultation should occur with the Union with a view to ensuring that the contents of the tool are consistent with the Agreement and, if possible, agreed. The existence of the tool and its contents should also be made known to employees who wish to apply for reclassification under Part 13 before their application is submitted.

COMMISSIONER

Appearances:

R Wainwright for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

M Follett of Counsel for Boeing Aerostructures Australia Pty Ltd.

Hearing details:

2020.
Melbourne (video hearing):
July 3.

Printed by authority of the Commonwealth Government Printer

Comparison of Part 13 Common Standards and 103 and 110 classification descriptions Attachment 1

Aerospace Tradesperson 1 (103%)	Common Standards	Aerospace Tradesperson 2 (Level A) (110%)
Holds an aircraft Trade Certificate in electrical/electronics/avionics, mechanical or structures streams or who has undergone an aircraft conversion course or equivalent level of accredited training May hold ‘C’ stamp	D Stamp (acquired after reclassification)	Is qualified as an aircraft mechanic (mechanical, structures or avionics) or aircraft maintenance engineer (mechanical, structures or avionics) or who has completed 50% of training towards an agreed relevant Post Trade Certificate (or equivalent level of accredited training) May hold ‘D’ stamp
Generally works to a level beyond a Base Tradesperson and to the level of training Understands and implements quality control/assurance techniques including where appropriate signing off own work (ie certifies that the work completed conforms (by use of stamp) with the specifications or instructions given	Trains others	Generally works to a level beyond Aerospace Tradesperson 1 In accordance with quality/ control/ assurance policies and practices may sign off other employees work
Assist Manufacturing Lead to organize work plans and resources	Generally works to a level beyond Aerospace Tradesperson 1
Exercises a high level of independent judgement and capable of working under less direct supervision than a Base Tradesperson	Works with limited supervision	Generally works to a level beyond Aerospace Tradesperson 1 In accordance with quality/ control/ assurance policies and practices may sign off other employees work
Undertakes basic drafting, planning and estimating	Undertakes basic planning tasks Undertakes basic estimating tasks	Generally works to a level beyond Aerospace Tradesperson 1 Ancillary to the trade task exercises intermediate drafting, planning, estimating skills
Performs all trade work incidental to core skills	Undertakes basic maintenance tasks when practical	Generally works to a level beyond Aerospace Tradesperson 1
Understands and implements quality control/assurance techniques including where appropriate signing off own work (ie certifies that the work completed conforms (by use of stamp) with the specifications or instructions given May perform developmental prototype work without the aid of drawings, plans etc., in conjunction with design technicians and engineers	Develop manufacturing techniques Design/manufacture tooling & equipment Manufacture tools/equipment for repairs or modifications using drawings or sketches	Generally works to a level beyond Aerospace Tradesperson 1 In accordance with quality/ control/ assurance policies and practices may sign off other employees work
Performs all trade work incidental to core skills	Competent in performing all tasks within work area (within the same stream) and a small level of cross training, including repairs	Generally works to a level beyond Aerospace Tradesperson 1 May exercise basic knowledge and application of other trade streams beyond Aerospace Tradesperson 1
Duties may include:	Duties may include:
• Exercises high precision trade skills using various material and/or specialist techniques	• Exercises basic knowledge and application of other trade streams beyond Aerospace Tradesperson 1
• Performs developmental prototype work without the aid of drawings, plans etc., in conjunction with design technicians and engineers	• In accordance with quality/ control/ assurance policies and practices signs off other employees work
• Operates CNC machines, including tape loading and supervision of non-trade machinists; basic operations of a CAD/CAM terminal	• Performs operations on a CAD/CAM terminal in the performance of routine modifications to NC/CNC programs as necessary and ancillary to the trade task exercises intermediate drafting, planning, estimating skills
• Managing stores operations within business units including liaising with management, suppliers and customers	Generally works to a level beyond Aerospace Tradesperson 1
• Maintaining control register including inventory control and being responsible for the preparation and reconciliation of regular reports or stock movements, despatches, etc. • May perform basic operations of a CAD/CAM terminal	Perform basic PC skills for input or retrieval of data	Generally works to a level beyond Aerospace Tradesperson 1 • May perform operations on a CAD/CAM terminal in the performance of routine modifications to NC/CNC programs as necessary
Behavioral standards: good interpersonal skills, attitude, productivity, performance on the job, quality

1 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Boeing Aerostructures Australia Pty Ltd[2019] FWC 7759.

2 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Boeing Aerostructures Australia Pty Limited T/A Boeing Aerostructures Australia