“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
•12 NOVEMBER 2019
| [2019] FWC 7759 |
| 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 Ltd
(C2019/655)
COMMISSIONER MCKINNON | MELBOURNE, 12 NOVEMBER 2019 |
Reclassification dispute under enterprise agreement.
[1] This decision is about whether the career progression of Boeing Aerospace Tradespersons can be made subject to “business need” under an agreed enterprise agreement reclassification process, and whether the enterprise agreement has been followed in the case of Don Bennett. There is also a question about whether I have remaining jurisdiction to deal with the dispute.
[2] Boeing Aerostructures Australia Pty Ltd operates an aircraft parts manufacturing facility in Port Melbourne. Mr Bennett works in the facility and is a member of the Australian Manufacturing Workers’ Union, as are most of his tradesperson colleagues. He wants to be reclassified to a higher grade in recognition of his skills and contribution to the business. Reclassification would also mean a wage increase of approximately $100 per week.
[3] In November 2016, Mr Bennett commenced the process for reclassification from Level 1 to Level 2A Tradesperson under the Boeing Aerostructures Australia Pty Ltd (Port Melbourne) Enterprise Agreement 2014. The application was submitted to his manager on 15 December 2016.
[4] Boeing refused to sign the necessary form and for two years, his application sat in abeyance having been rejected due to lack of business need. On 21 September 2018, the 2014 enterprise agreement was replaced by the Boeing Aerostructures Australia Pty Ltd (Port Melbourne) Enterprise Agreement 2018 (the Agreement).
[5] The form Mr Bennett needed to progress his application was eventually signed in November 2018. On 28 November 2018 (and confirmed on 29 March 2018), the application was again rejected on business needs grounds, with Mr Bennett’s suitability for reclassification not otherwise assessed. At the time Boeing had 13 more Level 2A Tradespersons than it needed and having reviewed the position in 2017, there was a ‘freeze’ on recruitment to Level 2A.
[6] In 2019, Boeing identified a business need for additional Level 2A Tradespersons. Mr Bennett renewed his 2016 reclassification application which was assessed on 28 May 2019. The application was refused again on 28 June 2019, this time for failure to meet the minimum standards for progression.
[7] The Union says an application for reclassification under Part 13 cannot be refused on business grounds and that Mr Bennett’s application has not been properly assessed under the Agreement. Boeing says an application can be refused on business grounds but in any event, it does not matter because Mr Bennett’s application has been properly assessed and refused on different (competency) grounds.
Is there a dispute to be resolved?
[8] The Agreement covers Boeing, relevant employees and the Union as well as the Association of Professional Engineers, Scientists and Managers, Australia. It contains a Disputes Avoidance Procedure in Part 2 which gives the Commission power to deal with disputes over matters arising under the Agreement by mediation, conciliation and, if the dispute remains unresolved, arbitration.
[9] Over the course of 2019, the parties participated in conciliation in a bid to resolve the dispute. Despite those efforts, the dispute was not resolved. The Union now seeks arbitration. Boeing objects to arbitration on the basis that Mr Bennett’s reclassification application has been assessed. It says there is no dispute to be resolved.
[10] In its application to the Commission on 30 January 2019, the Union described the dispute as follows:
“The applicant contends that the Agreement, Part 13 stands apart from cl 5.1.2 and the terms in cl 5.1.2 cannot be used to circumscribe the operation of Part 13. Moreover, because Part 13 does not contain a business requirements consideration, the respondent is precluded from implying it or importing it through cl 5.1.2 or Reclassification Policy IS201-3.” 1
[11] It sought the following relief:
“If the matter is to be arbitrated, the applicant seeks a decision that confirms that the business needs consideration is not part of the reclassification process contained in the Agreement, Part 13.
Further, if the applicant is successful in obtaining the decision sought, the respondent must then assess the Claim in accordance with Part 13, Attachment 2.”
[12] Plainly, the dispute has arisen in the context of Mr Bennett’s claim for reclassification. Much of the supporting information including almost the entire factual background and the remedy of assessment in accordance with the Agreement relate only to Mr Bennett. While the question about what the Agreement means is expressed generally, it does not alter the character of the dispute. It is, and has always been, about the circumstances pertaining to Mr Bennett - his request for reclassification and Boeing’s continuing resistance to that outcome.
[13] So what remains of the dispute?
[14] In relation to whether the Part 13 reclassification process can be constrained by business need, the assessment undertaken in May 2019 occurred only after Boeing identified a need for additional Level 2A Tradespersons. The fact of the assessment does not mean there is now a consensus between the parties or any binding outcome about the relationship between business needs or requirements and Part 13 reclassification.
[15] Despite his attempts at reclassification over the past three years, Mr Bennett remains at Level 1. It is entirely conceivable that he will again seek reclassification and it is equally likely that business needs will again be raised against him. In those circumstances, it is unsurprising that the application is pressed. The parties are still in dispute about what the Agreement means. There is utility in resolving the dispute.
[16] There is also the question of what effect the assessment of Mr Bennett’s application in May 2019 had on the dispute. Of course, whether an action has been taken ‘in accordance with’ an enterprise agreement is not resolved simply by one party’s assertion that it has. Part 13 sets out a process to be followed, with mandatory procedural steps including those that must be completed within set timeframes. It involves assessment against a range of objective and subjective “common standards”.
[17] Boeing says Mr Bennett’s 2016 application was assessed under Part 13 of the Agreement. Whether the assessment was or could have been “in accordance with” Part 13 of the Agreement depends on a range of matters, including compliance with set timeframes and the content of the assessment. The conduct of the parties to date, including Boeing’s assessment of the 2016 application earlier this year, indicates consensus at least that the application maintained its currency in the transition from the 2014 to the 2018 enterprise agreement.
[18] The delay in dealing with the application over the period from November 2016 to May 2019 raises questions about whether given timeframes in Part 13 of the Agreement have been met.
[19] More problematic perhaps is the assessment ‘scoresheet’ used to assess Mr Bennett, which appears on its face to be different to the common standards set out in the Agreement. It was the common standards that Mr Bennett addressed in his application. It is not at all certain that he was assessed against those same common standards and the difference is potentially material, because overall Mr Bennett scored 2% less than the 80% he required for reclassification. If any one of the matters where Mr Bennett scored less than 100% had been assessed more favourably, he would have met the threshold. Instead he received one mark lower than was required.
[20] The objectivity of the assessment is also in dispute. Mr Bennett was marked down on interpersonal skills and attitude, productivity and quality. He says the outcome was predetermined against him from the start. It may also be that his overall contribution and disposition at work has suffered as a result of the way his application has been handled. It is now three years after the beginning of a process that has been debilitating for Mr Bennett. Either way, his prospects of reclassification may have been affected for reasons not contemplated by the Agreement.
[21] Accordingly, there remains capacity to deal with the dispute both in relation to whether Part 13 reclassification can be refused if there is no relevant business need and in relation to whether Mr Bennett’s reclassification application was properly assessed under the Agreement.
Can reclassification under Part 13 be refused if there is no business need?
What does the Agreement say?
[22] Clause 5.1.2 of the Agreement deals with the career progression of employees under the Agreement:
“Employees shall advance classification taking into consideration knowledge, experience, competence, attributes, qualifications and business requirements in accordance with Reclassification Policy (IS201-3).
The Reclassification Policy (IS201-3) will be maintained and modified in accordance with clause 1.8 (Introduction of Change) and 1.9 (Consultation) of this Agreement.”
[23] The reclassification policy “describes the policy applied throughout the business for reclassification of personnel in accordance with the Workplace Agreement defined rates of pay and the Individual employee grade structure.” In summary, an employee approaches their manager for reclassification. The business decides if there is a business need. Relevant assessment criteria are identified and a skills assessment is conducted. If the employees’ skills and attributes match the identified position, a review board may be assembled. Reclassification is then confirmed and various paperwork completed.
[24] However, the policy does not apply to “any reclassifications identified in the Workplace Agreements.” The term Workplace Agreements is not defined in the policy. I take it to include the Agreement.
[25] Other terms of the Agreement also have a bearing on the matter in dispute.
[26] Clause 4.9 of the Agreement sets out a process for selecting people to fill vacancies. It refers separately to the Recruitment Policy IS201 “for application of the process”. Clause 4.10 commits the Agreement parties to the continuous development of the organization and all its employees through Boeing’s training program, recognizing the tangible benefits of improved business performance through greater flexibility, consistency and innovation as well as increased employee engagement and satisfaction. A performance management process contemplates discussions between Boeing and its employees to promote mutual understanding of factors affecting performance, including job roles and knowledge held by employees as well as “business needs and plans”. Under clause 4.10.2, Boeing is obliged to “assist the employee to implement” career development “subject to business requirements.”
[27] Part 9 of the Agreement contains a classification structure “developed to allow for the development of career opportunities based on training and a flexible approach to work organization and output”. Part 9 also commits the parties to the development of a new classification structure that “will not deviate from previous obligations to provide development of career opportunities for employees”; will provide “clarity to employees as to the skills and knowledge to fulfill their duties”; “recognize and reward employees for achievements” and “encourage further training and development of employees to increase their personal skill levels and provide the company with a more efficient, flexible and productive workforce”.
[28] Under clause 9.8, “reclassification for acquisition of additional qualifications or skills will only occur where the employee involved is required to exercise them in the course of employment. Employees holding additional skills or qualifications relevant to their job will be classified accordingly.” Clause 9.9 provides that where it is consistent with the needs of the company, every reasonable opportunity will be provided for employees to use skills they have acquired. Under clause 9.10, an employee who uses skills relevant to a higher grade or completes relevant training shall be classified at the higher grade, subject to approval by the Training Committee.
[29] Part 13 of the Agreement deals specifically with the Level 2A “110% Aerospace Tradesperson Reclassification Assessment.” Applications for reclassification are open from 1 January to 30 September each year. An employee wishing to have their classification assessed must complete a “Reclassification Assessment Request form” which is found at Attachment 1 to Part 13.
[30] The process is summarized as follows.
1. An employee fills out “Box 1” and Attachment 1 and provides supporting evidence in relation to the “Common Standards”, which are listed in Attachment 2 to Part 13. The Training Department can, but does not need to, be consulted before an assessment to help employee understanding about the necessary supporting evidence.
2. The Manufacturing Lead and Manager then counter signs “Box 2” to verify that the duties listed in Attachment 1 are accurate and that the employee has held a C Stamp for at least 6 months without any demerit points or cautions.
3. The Reclassification Assessment Request is lodged with supporting documents to the human resources department. It is signed and receipt dated and a copy is given to the employee.
4. Assessments “will commence 1st April, 1st July and 1st October each year”.
5. One month after assessment, employees must be given an outcome from the Review Panel which consists of a Training Department representative, the Manufacturing Lead and the employee’s manager.
6. Successful applicants are reclassified from the date they lodged the request with human resources. Unsuccessful applicants must wait 6 months before reapplying.
[31] The common standards listed in Attachment 2 deal primarily with the nature of work performed and able to be performed by applicants for reclassification. They also include “good interpersonal skills”, “attitude assessment”, “productivity”, “performance on the job” and “quality”.
[32] Part 14 of the Agreement sets out the assessment criteria for transition from Level 2A (110%) to Level 2B (115%) but does not detail the actual transition process.
[33] Part 16 of the Agreement deals with classification standards for Engineering and Scientist classifications. It operates “in conjunction with Part 9” (classification structure) and the reclassification policy. The process for assigning an employee’s initial classification structure and any subsequent Engineer/Scientist reclassifications by reference to the reclassification policy. Overall responsibilities in the reclassification process are expressly the same as in the policy. In addition to the policy’s “proforma”, employees must provide documentation in the form of a self-assessment of skills and behavioral attributes.
[34] Overall, the Agreement places an emphasis on the development and recognition of employee skills and career progression. A general theme in that regard is that employees who have and use relevant skills or qualifications in their work will be recognized and rewarded accordingly, while employees who acquire new skills will be supported to use those skills by Boeing where there is a business need and will be reclassified if they are required to use those skills in their employment.
[35] Business needs and requirements are relevant both in the context of clause 5.1.2 and in the process for filling vacancies. That process is different to reclassification at the request of an employee (for example under Part 13). Of course it is difficult to see how business needs could ever be irrelevant in the context of filling identified vacancies. However, where reclassification is initiated at the request of an employee, the relevance of business needs depends on the relationship between skills held and required as well as the applicable classification and reclassification process. In particular, it depends on whether the reclassification policy applies.
[36] It is in this context that Part 13 must be read. The starting point is to consider the ordinary meaning of the words used, 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 aide interpretation.
[37] Part 13 of the Agreement clearly sets out the process to be followed if an employee seeks reclassification to Level 2A between January and September of any year. The language speaks of a continuous process of assessment for Aerospace Tradespersons who can demonstrate a certain level of skills, experience and behaviours. Applications “are open” for 9 months of each year and “will commence” at specified times during the year. There is no outer limit on the time it takes to undertake an assessment but if an application is successful, reclassification (and a commensurate pay rise) is backdated to the date of application. Once assessed, employees must be advised of the outcome within one month.
[38] The role of Boeing in the application process under Part 13 is relatively straightforward. The employee’s managers verify that the employee has correctly listed their duties and has held a clean C Stamp for the requisite period. The human resources department receives and time stamps the application and gives the employee a copy so that the date of any retrospective reclassification is clear. The Review Panel thenassesses the application against the common standards. The score sheet is completed and a score is tallied. The result is either that reclassification is “successful” or “unsuccessful”. The outcome is communicated to the employee.
Relationship between clause 5.1.2, the reclassification policy and Part 13 of the Agreement
[39] Clause 5.1.2 provides for employees to advance in classification taking into consideration knowledge, experience, competence, attributes, qualifications and business requirements in accordance with the reclassification policy (IS201-3).
[40] For the most part, clause 5.1.2 has the effect that the reclassification policy applies to advancement through classifications in the Agreement, because there is no separate reclassification process identified in the Agreement. That is so for the majority of classifications including those dealt with in Part 14.
[41] For classifications dealt with in Part 16 of the Agreement, the starting point is that in accordance with the policy, Part 16 includes reclassifications that are “identified in” the Agreement and so the policy “does not apply”.
[42] Independently of clause 5.1.2 however, Part 16 expressly incorporates the policy as part of the reclassification process. It is read in conjunction with the policy. It provides for reclassification by reference to the policy and relies on ‘proforma’ documentation required by the policy, supplemented with additional documents described in Part 16. There is no contrary intention manifest in the language of Part 16. It does not, for example, contain a detailed reclassification process distinct from that set out in the policy.
[43] As with Part 16, the policy does not apply on its terms to Part 13 reclassifications which are also “reclassifications identified in” the Agreement.
[44] Unlike Part 16, the wording of Part 13 sits uneasily with the notion that the reclassification policy applies to the processes set out in that Part. In addition to the common standards against which reclassification applications are to be assessed, it contains a detailed ‘stand-alone’ reclassification process which applies upon application from an employee in the agreed window of January to September.
[45] The process is so clearly set out that if the policy applied to Part 13 (so that reclassification was dependent upon a demonstrated business need), one would expect such an important condition to be express. And yet there is no reference to business need anywhere in Part 13, either in the explanation of the process, the pre-assessment verification given by Boeing managers, the common standards or the reclassification assessment score sheet applied and approved by the Review Panel.
[46] What does it mean for applications to be “open” for nine months of each year if once made, they can be automatically refused on business grounds? How can it be consistent with the agreement that “Assessments will commence” at set times each year for a freeze on recruitment to result in all applications being refused without assessment, regardless of when they are made?
[47] The better view is that the reclassification policy does not apply to Part 13, either by reason of clause 5.1.2 or independently by some other mechanism.
[48] The fact that Mr Bennett appealed a decision to refuse his application, or the process he used to do so, does not change the position. Mr Bennett followed the process he was told to follow by Boeing. At the time, Boeing was under a misapprehension that the policy applied to his application.
[49] Clause 5.1.2 still has work to do in relation to other terms of the Agreement and also in relation to Part 13, because each of the matters to be considered also fall for consideration under Part 13. The two are not inconsistent. Knowledge, experience, competence, attributes and qualifications are central to the common standards against which the assessment is made. Business requirements, given its ordinary meaning, can be distinguished from the concept of “business need” found in the reclassification policy and means anything the business requires. This would include many of matters required to be considered and assessed under Part 13, including elements of the common standards such as using resources to achieve maximum efficiency and suggesting improvements to achieve project efficiency.
[50] The result is that reclassification applications under Part 13 are to be assessed on their merits and in the timeframes provided. The business need consideration found in the reclassification policy is not part of the reclassification process in Part 13 of the Agreement.
Has Mr Bennett’s application been assessed in accordance with Part 13?
[51] Mr Bennett’s application was first attempted on 15 December 2016 when he sought and was refused sign off from his manager. By this time, he had compiled the relevant materials and had submitted them to his manager. The evidence does not establish when the application was first given to Boeing’s human resources department – only that it is likely that it had the application by 30 January 2018 because it was discussed in a meeting with Mr Bennett on that day.
[52] If the human resources department was given the application on 15 December 2016, it was at a time when applications for reclassification were not “open” under Part 13 (although the point was not taken by Boeing) and Boeing was not obliged to assess the application. If the application was given to the human resources department on or after 1 January 2017 at a time that fell between the months of January and September, the application fell to be assessed from the date of submission.
[53] What is certain is that the application was given to the human resources department on 26 June 2018. At this time, applications were open. It is not to the point that the application had not been counter-signed by Mr Bennett’s managers. Boeing’s non-compliance with the Agreement should not be held against Mr Bennett. The application was refused without assessment on 13 July 2018 on the basis that there were “currently no vacancies for Aerospace Tradesperson 2A (110) available” in Mr Bennett’s work area. The application was not referred to a Review Panel. It was not assessed in accordance with Part 13 of the Agreement.
[54] In the first half of 2019 (the precise date is not established), Mr Bennett submitted his application to Boeing again. The application was in the same form as the version submitted on 15 December 2016. It was assessed on 28 May 2019 and was marked unsuccessful. The outcome was notified to Mr Bennett on 28 June 2019.
[55] The assessment ‘scoresheet’ used to assess Mr Bennett’s application in May 2019 was different to the score sheet found in both Part 13 of the Agreement and its predecessor. In the version used by Boeing, there are ten competencies each carrying a weight of 10%. The version in the Agreement has 16 competencies each with no express weighting. Some competencies against which Mr Bennett was assessed do not appear in the common standards in the Agreement. For those that do, there is new detail about what an employee must demonstrate to succeed.
[56] For Mr Bennett, the differences are material. He was marked down on undertaking basic estimating / planning tasks because he did not provide evidence of “work planned over a specified timeframe, taking into account required and available resources”. The common standards describe the “undertaking basic estimating tasks” competency as “Eg. determining approximate times, material requirements.” To demonstrate this competency, Mr Bennett submitted as follows:
“I assist the team lead estimate the time and daily targets. I also estimate the amount of time a task will take, resources, tooling, materials and procedures required.”
[57] His submission did not cover the additional requirement that he demonstrate his ability to plan work over a specified timeframe. He did not know it was a requirement. As I have earlier noted, one additional mark on the scoresheet would have seen him achieve the relevant competency. A different outcome of this criterion alone may have made the difference between his application being successful and unsuccessful.
[58] In a similar vein, the common standards require evidence that an employee can “train others” by “Eg. structured OTJ and/or (class room) by using a training check list or shop aids.” The competency against which Mr Bennett was assessed has three separate elements. Mr Bennett was marked down on “trainee’s progress is reported according to standard operating procedure” because no evidence of that competency was provided, but again Mr Bennett did not know that it was required. With notice of the competency he was required to demonstrate, Mr Bennett would at least have had the opportunity to gain the one additional mark required for his application to succeed.
[59] The score sheet used to assess Mr Bennett combines three of the common standards in the Agreement into one (those being good interpersonal skills; works with limited supervision; assist [ML] cell leader to organise work plans and resources), potentially affecting the weight given to each one. As the table below shows, the expectations are also expressed quite differently:
Score sheet used to assess Mr Boeing | Score sheet in Part 13 |
1. Identify roles and responsibilities | Eg. Competently works on most jobs independently and makes contact only when necessary |
2. Identify team goals and processes | Eg. Able to prioritise and make suggestions that utilise resources to achieve maximum efficiency |
3. Communicate and cooperate with team members and management | Eg. Ability to liaise with team members, MLs, MQEs, engineering and technical personnel |
[60] Mr Bennett was marked down for not providing evidence of his ability to “Identify roles and responsibilities”. That was notwithstanding that his submission covered various career opportunities with Boeing, his 33 year career in many varied roles, experience working both autonomously and within teams as well as his previous leadership and supervising roles. It attests to his demonstrated ability to follow instructions and procedures, seek clarification and carry out tasks with little or no supervision. If this was insufficient to address the generic competency of “identify roles and responsibilities”, Mr Bennett had no way of knowing. As with the other additional criteria, he did not know it was to be assessed and did not have any opportunity to seek guidance on its meaning if necessary.
[61] The discrepancies between the score sheet used by Boeing and the one it was required to use under Part 13 are sufficient on their own to establish that the assessment carried out by Boeing in May 2019 was not “in accordance with Part 13”.
[62] Finally, Mr Bennett has raised concerns about the impropriety of conduct by certain employees of Boeing in the handling of his application over the past three years. The concerns are of a serious nature but they do not fall to be determined in this matter. There are separate remedies available under the Act for alleged conduct of that kind. On the material before me, the evidence does not establish bias or willful impropriety in the conduct of the May 2019 assessment and it is not separately a reason why the assessment was not conducted in accordance with Part 13.
Conclusion
[63] I have found jurisdiction to deal with the dispute and concluded that:
1. Applications for reclassification made within the “open” timeframes under Part 13 of the Agreement are to be assessed on their merits. The business need consideration found in the reclassification policy is not part of the reclassification process in Part 13 of the Agreement.
2. Boeing has not assessed Mr Bennett’s application in accordance with Part 13 of the Agreement.
[64] Boeing has an obligation to assess the application made by Mr Bennett in accordance with Part 13. The assessment should be undertaken without delay using the scoresheet contained in the Agreement. If successful, reclassification should apply from at least 26 June 2018, being the date it is first established that the application was submitted to the human resources department.
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:
2019.
Melbourne:
August 23.
Printed by authority of the Commonwealth Government Printer
<PR714242>
1 Form F10.
2 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005.
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