“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Thales Australia Limited
[2011] FWA 2052
•8 APRIL 2011
Note: An appeal pursuant to s.604 (C2011/201) was lodged against this decision - refer to Full Bench decision dated 5 December 2011 [[2011] FWAFB 8246] for result of appeal.
[2011] FWA 2052 |
|
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
Thales Australia Limited
(C2010/701)
Manufacturing and associated industries | |
COMMISSIONER BLAIR | MELBOURNE, 8 APRIL 2011 |
Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)] .
[1] This matter arises from an application under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute between the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Union) and Thales Australia Limited (the Company).
[2] The matter was dealt with in conciliation on 9 December 2010. The parties were unable to resolve their difference. The dispute goes to the correct classification and remuneration of Mr Michael Liddington who is employed by the Company as a Radiographer Coordinator and is employed under the terms of the Thales Australia, Benalla and Mulwala Enterprise Agreement 2009 (the Agreement).
[3] The matter was set down for arbitration on 2 March 2011. Outlines of arguments and witness statements were provided by the Union and the Company in line with the Directions issued.
[4] The Union contends that the correct classification level and the duties expected to be performed by Mr Liddington means that Mr Liddington should be at Manufacturing Level 3 (Technical), the Union believes that Mr Liddington has been expected to perform work at Level 3 since at least the 11th June 2008 and seeks to have his reclassification and remuneration determined retrospectively.
[5] The Company believes that Mr Liddington’s role is correctly classified at Manufacturing Level 5 (Technical).
[6] The Union states as follows in their submissions:
“5. The correct classification of any employee performing work covered by the Agreement can only be determined in accordance with the relevant provisions of the Agreement. In this case, the relevant provisions are found at Clause 10 of the Agreement “Classification Provisions” (see Attachment A) and in Appendix B “Classification Definitions”. It should be noted that:
a) Sub-clause 10.3 of the Agreement provides that employees will be eligible for reclassification to higher levels in the classification structure where relevant qualifications or skills are acquired and the employee is required to exercise these qualifications or skills in the course of their employment.
b) Sub-clause 10.4 provides that National Metals and Engineering Competency Standards will be the core skills set for the Manufacturing and Technical Streams however other relevant competency standards may additionally be utilised. Further sub-clause 10.5 provides that these standards will be implemented in accordance with the National Metals and Engineering Competency Standards Implementation Guide.
c) Clause 10.6 of the Agreement sets out the agreed procedure for classifying employees.
d) Importantly and of high relevance, sub-clause 10.6.1.5 which states:
‘Where the employee has a relevant qualification recognised as a minimum training requirement for the level at which the employee seeks to be classified and he/she is exercising or will be required to exercise the skills and knowledge gained from that qualification necessary for that level of work, the employee will be classified appropriately. It is up to the Company to demonstrate reasons for a qualification that is a recognised minimum training requirement not being regarded as relevant for an employee’s work. Any disputes will be resolved in accordance with the disputes resolution procedure in this Enterprise Agreement. (Bolding added).’
e) The table at sub-clause 2.1.1 sets out the “Minimum Training Requirements” referred to above at (d). The minimum training requirement for Level 3 is thus identified as a AQF5 (ref Australian Qualifications Framework) National Diploma.”
[7] It is said that Mr Liddington holds a diploma of Engineering Technology from the Royal Melbourne Institute of Technology issued on the 14th December 2005. Mr. Liddington achieved this qualification in the course of a traineeship offered by the Company.
[8] The Union submits that Mr Liddington is exercising or will be required to exercise skills and knowledge gained from his qualification necessary for the level of work of which he seeks to be classified, namely Level 3.
[9] The Union supports such a submission with the report of Mr Michael Nicolaides, National Secretary of the TSA Division of the Union (Nicolaides Report).
[10] The Union states that the review by Mr Nicolaides was carried out by agreement between the parties in an effort to resolve the current dispute. It should be further noted that Mr. Nicolaides has been engaged by the Company to conduct similar classification reviews at other Company sites and that the findings of these reviews have generally been accepted and their recommendations enacted.
[11] The Nicolaides Report was forwarded to the Company on the 8th April 2009. The Union states that the Company has not disputed any of the specific findings of the report; however, the Company has consistently refused to reclassify Mr Liddington to Level 3. The Union states that Mr Liddington has continued to carry out the work at the same level at which he was operating as indicated by the Nicolaides Report to the current date. This evidence is supported by Mr Liddington’s application, Mr. Liddington himself, Mr Michael Nicolaides and Mr Simon Bush.
[12] The Union concludes that from their material it is evident that Mr Liddington holds an AQF5 qualification which is relevant to the work is required to be carried out and which is recognised as a minimum training requirement for classification at Manufacturing Level 3 (Technical) in accordance with the terms of the Agreement.
[13] The Union also submits that Mr Liddington has in fact been required by the Company to work at Manufacturing Level 3 since at least the 11th June 2008, when Mr Liddington first submitted an application for reclassification.
[14] It’s for the reasons above that the Union seeks the appropriate back pay as well as reclassification of Mr Liddington from at least the 11th June 2008 and that a reclassification should be ongoing.
[15] The Company, in their submissions, state that Mr Liddington is employed under the Agreement and that Mr Liddington is currently classified as a Level 5 (Technical) employee.
[16] The Company states that the time frame is essential to the understanding of the dispute. They state that the dispute was first raised in 2008 following three classification assessments and the matter being referred to the Australian Industrial Relations Commission (AIRC matter no. DR2009/1614). Mr Liddington was reclassified from a Level 6 to a Level 5 effective from 11th June 2008. In addition in recognition that Mr Liddington had a desire for career advancement within the Company, the Company provided further development opportunities to Mr Liddington. This was in the form of professional career and coaching and job experience.
[17] To this end, the Company states that Mr Rod Thompson, a workplace and counselling psychologist, was engaged and attempts were made to offer common opportunities to Mr Liddington. In late 2010 Mr Liddington was appointed to work as a Radiographer Coordinator on the 155 X-ray project. The Company states that Mr Liddington subsequently applied for a 10 percent team leader allowance which was rejected on the basis that the team leader was not required for the 155 X-ray project.
[18] Upon rejection of the team leader application, Mr Liddington, through the Union, sought to re-open the base classification dispute from 2008.
[19] The Company responded by stating that whilst there may have been a slight alteration in the duties of Mr Liddington it is not substantial enough to warrant permanent re-classification to a Level 3 role.
[20] The Company states that this dispute has been characterised as a dispute which dates back to 2008. It is the Company’s view that the dispute was resolved at that time. Whilst it is acknowledged that the Union reserved its position, the Union did not elect to take the matter further at the time; hence the Company considers their inaction indicative that the matter was appropriately concluded at the time.
[21] It is the Company’s view that the substantive dispute is actually about the classification of Mr Liddington while he carries out his temporary duties on the 155 X-ray Project. It should be noted that the 155 X-ray Project is expected to conclude on or around the 20th April 2011 at which point Mr Liddington will continue to perform his normal duties of Radiographer Coordinator.
[22] A Manufacturing Level 5 (Technical) employee’s classification is as follows:
“A Manufacturing Level 5 (Technical) is an employee who has the equivalent level of training of a Level 5 Engineering Tradesperson Special Class Level II or equivalent so as to enable the employee to apply skills within the scope of this level. The skills exercised by the Manufacturing Level 5 Technician are in the technical fields as defined by this Award including drafting, planning or technical tasks requiring technical knowledge.
At this level the employee is engaged in detail drafting and/or planning or technical duties requiring judgement and skill in excess of that required of a technician at Level 6 under the supervision of technical or professional staff.”.
[23] A Manufacturing Level 3 (Technical) is identified as follows:
“A Manufacturing Level 3 (Technical) is an employee who has the equivalent level of training of a Level 4 Advanced Engineering Tradesperson Level II or equivalent so as to enable the employee to apply skills within the scope of this level. The skills exercised by the engineering Manufacturing Level 3 (Technical) are in the fields as defined by this Award including drafting, planning or technical tasks requiring technical knowledge.
At this level the employee is required to exercise judgement and skill in excess of that required at level 4.”
[24] The Company states when comparing the position descriptions of a Radiographer Coordinator with a Level 3 Technical Supervisor the key differences are as follows:
“a. Supervisory Responsibilities - The level 3 position description show that an employee of this level will have direct responsibility for employees compared to the Radiography Coordinator position with nil supervisory responsibilities.
b. The primary objectives of the two positions vary considerably. The Radiography Coordinator is responsible for ensuring that they provide “accurate interpretation of the Radiographs” whereas the Laboratory Supervisor is responsible for providing “Supervision and training to Technical officers and assistance (Level 5 and below) and checking all reports for accuracy. The Radiography Coordinator is accountable for their own quality of work only (note they may provide assistance to other employees) whereas the Laboratory Supervisor is accountable for other employee’s quality of work also.
c. A Laboratory Supervisor is required to exercise “originality and sound judgement” whereas the Radiography Coordinator is responsible for the general oversight of the x-ray process, operating to pre-determined processes and project outlines. Mr Liddington is therefore not required to use discretion or judgement outside what has already been pre-determined.”
[25] The Company states that there were two separate classification evaluations of the Radiographer Coordinator role in 2008 and 2009. It should be noted that both these reports agree that the position description accurately reflects the job of the Radiographer Coordinator. The Company does not accept that Mr Liddington is performing tasks outside is job description.
[26] In regards to the Nicolaides Report the Company states that the report utilises as its bench mark a different agreement within the Company which applies to the site engaged in non comparable work (The Manufacturer of Protected Mobility Vehicles). Although it is acknowledged that both agreements are based upon the ADI Employees Award classifications scale.
[27] The Company states that the similarities can be drawn between the PJ O’Brien Report and the Nicolaides Report. They are:
“a. Both reports recognise that the radiography coordinator has a high level of responsibility for the integrity of products tested.
b. Both reports indicate that the current position description is accurate.
c. Both indicate, by implication that the qualifications held by Mr Liddington are not strictly relevant to the role of radiography coordinator. This is something that Mr Liddington has also indicated.”
[28] The Company states that the key differences within the reports lie in the recommendations.
[29] They state that the PJ O’Brien report indicates that the position was correctly classified as a Level 6 role due to the irrelevancy of the diploma to the role and any additional duties being conducted by the incumbent being either voluntary or remunerated through a loading in line with the Agreement.
[30] In contrast the Nicolaides Report indicates that:
“Against these considerations, the position is inappropriately classified as a Level 6. At a minimum, it should be classified as a Level 5.”
[31] In respect to the relevance of the Diploma Qualifications held by Mr Liddington, Mr Nicolaides also states:
“In essence, the issue boils down to what is genuinely “required of the position”.
“It is of note that the production manager implied that such a qualification was not strictly necessary for the position ...an implication supported by the current occupant”
[32] The Company has always held that these qualification, whilst being useful, are not required of the role. Mr Liddington’s job has not changed in any substantive way since the report was drafted nor has the requirement for the qualification of the level held by Mr Liddington.
[33] It is important to note that the only time Mr Nicolaides referred to Level 3 in his report was in respect to shift supervisory duties that Mr Liddington was performing at the time (and was receiving an appropriate allowance). Importantly, the Company states, individuals in Level 3 role supervise people.
[34] The Company stated they subsequently considered both reports and accepted the view proposed by Mr Nicolaides that this was a Level 5 role. Mr Liddington was subsequently reclassified and this remains appropriate.
[35] In summary the Company states that Mr Liddington should not be classified as a Level 3, as a Level 3 employee is required to supervise people, exercise originality of thought and be accountable for the outputs of a team. Mr Liddington does not meet these thresholds as his duties revolve around predetermined and set plans and processes and has nil supervisory responsibilities.
[36] It states that while Mr Liddington does hold a high level qualification, this is not currently, nor has it ever been a requirement for his role.
[37] The Company states that the base level responsibilities as described in the Nicolaides and PJ O’Brien reports and the conclusion reached at that time is still valid today.
[38] Having considered all the material provided by the witness statements and verbal evidence, and looking at the history of this particular issue, the Tribunal is satisfied that Mr Liddington is appropriately classified at Level 5 and has been so effectively from the 11th June 2008. This is in line with the original Nicolaides Report and conveyed to Mr Vroland by email from Judy O’Loughlin on the 27th April 2009 which states in part
“Mark and I have reviewed Mike Nicolaides report favourably and I am currently working to finalise this process asap to advise you of our revised position.”
[39] Further in an email again from Judy O’Loughlin to Mr. Vroland dated 6th May 2009 it states:
“As discussed, Mark and I have reviewed the report from Mike Nicolaides re Mick Liddington’s reclassification of his position of Radiography Coordinator.
As a result, the position will be reclassified to Level 5 as per the report effective 11/6/2008.”
[40] The Tribunal is satisfied on the material before it that nothing has changed in the roles and the responsibility of Mr Liddington that requires Mr Liddington to be reclassified to a Level 3. It is very clear to the Tribunal that Mr Liddington’s functions are at a Level 5 as determined by the first Mike Nicolaides report. The Tribunal is also satisfied that if Mr Liddington were to leave the employment of the Company then any future employee employed to fill Mr Liddington’s classification would not require the same level of qualifications that Mr Liddington states are required for him to fulfil his roles and obligations thereby warranting a reclassification to Level 3.
Having determined that Mr Liddington’s functions have not changed since the reclassification is identified in emails dated the 6th May 2009, the Tribunal rejects Mr Liddington’s application.
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